Tuesday, 04 June 2019 17:55

Decision 687/2019

Decision on the imposition of interim measures, pursuant to Article 25 par. 5 of the Greek Competition Act 3959/2011, on the company ARGOS S.A. regarding a potenial violation of Article 2 of the Greek Competition Act 3959/2011 and Article 102 TFEU. 

Decision 687/2019
File (PDF) Decision 687/2019
Date of Publication of Decision June 4th, 2019
Issue Number of Government Bulletin 1852/Β'/15.05.2020
Relevant Market Distribution of Printed Press
Proceedings Interim Measures
Legal Framework Article 25 par. 5 of the Greek Competition Act 3959/2011
Decision Potential violation of Article 2 of the Greek Competition Act 3959/2011 and 102 TFEU
Respondent ARGOS S.A.
Summary of Decision

Following an ex officio investigation into the market for the distribution of printed press, upon request by the Minister of Economy and Development to investigate the possibility of imposing interim measures, pursuant to article 25(5) of the Greek Competition Act 3959/2011, against ARGOS S.A. PRESS & BOOK DISTRIBUTION AGENCY (“ARGOS”), the Hellenic Competition Commission, in plenary session, unanimously decided in an open vote that:

1. A violation of Article 2 of the Greek Competition Act 3959/2011 and Article 102 TFEU (abuse of dominant position) is likely to have been committed by ARGOS. In particular through:

  • the unjustified refusal to sell, consisting in a refusal to maintain business relations through a) the sudden and unilateral imposition of the company’s new trade policy b) failure to give proper notice to the affected publishing companies about the new trade terms, and c) the refusal to engage in constructive negotiations with the publishing companies vis-a-vis the imposition of the new terms. The above actions appear inconsistent with fair trading practices, pursuant to Articles 2(c) of the Greek Competition Act 3959/2011 and 102(c) TFEU.
  • the imposition of unreasonable conditions of trade in the company’s new trade policy, specifically clause 5 (“other terms of cooperation”), which constitutes a unilateral action that is inconsistent with fair trading practices, pursuant to Articles 2(2)(a) of the Greek Competition Act 3959/2011 and 102(a) TFEU.
  • the discriminatory treatment of certain publishing companies, both shareholders and non-shareholders of ARGOS, with regards to reimbursing the sums withheld from social security contributions, in violation of Article 2(2)(c) of the Greek Competition Act 3959/2011 and Article 102(c) TFEU. In particular, while for certain publishing companies, shareholders of ARGOS, there are no outstanding duties regarding the withheld social-security contributions, for other publishing companies, non-shareholders of ARGOS, ARGOS has refunded only a fraction of the withheld social-security contributions, and, notably, to a number of them, using post-dated checks from its customers. ARGOS has fully reimbursed certain publishing companies, whilst for others there continue to be outstanding duties.
  • the unjustified refusal to sell, in particular the unreasonable and unjustified refusal to distribute printed press in violation of Article 2(2)(c) of the Greek Competition Act 3959/2011 and Article 102(c) TFEU.

2. Due to the need to prevent the threat of irreparable harm being caused to the public interest, pursuant to Article 25 (5) of the Greek Competition Act 3959/2011, it is imperative that ex officio interim measures are imposed by the Commission on ARGOS. The measures will stay in force until the Commission’s final decision on the main case is delivered. In particular:

  • ARGOS shall, within ten (10) days of the publication of the decision on interim measures, retract its new trade policy, upload a notice on its website to inform all publishing companies about the retraction and present evidence of the above to the Commission.
  • ARGOS shall cease, from the date of publication of the decision on interim measures, the unjustified refusal to sell i.e the refusal to distribute printed press.
  • ARGOS shall cease its discriminatory treatment of publishing companies with regards to refunding the sums withheld for social security contributions, and shall return to all publishing companies the total sum owed up to today, on fair terms and no later than 31/12/2019.
  • ARGOS shall begin negotiations with all publishers, either through the Athenian Daily Newspapers Publishers Association (“ADNA”) or directly, on its new trade policy, whilst taking into consideration the idiosyncrasies of the press distribution market, ARGOS’ new charging structure (both with regards to the price of supply as well as the rest of the charges), the company’s new trade policy, the discriminatory handling of the outstanding duties owed to publishing companies, the system for monitoring returns, clause 5 of the company’s new trade policy, the report on the new trade policy which will be drawn up by experts appointed by the Commission as set out below, and the public interest served by preserving the sustainability of ARGOS, as well as of the publishing companies. Protocols shall be followed throughout the negotiations and evidence of adherence shall be presented by ARGOS to the Commission. The negotiations shall conclude within one (1) month from the publication of the experts’ report.
  • ARGOS shall distribute printed press for all publishing companies in accordance with the current trade policy, until the publication of a final decision on the main case or until an agreement is achieved during the aforementioned negotiations.
  • In the event of failure to comply with the above measures, the Commission reserves the right to impose a fine of five thousand Euros (€5,000) per day of non-compliance, which will be imposed upon a decision by the Commission confirming non-compliance.

3. Appoints, pursuant to Article 20(2) of the Commission’s Rules of Procedure and Management, an expert or experts, to appraise, in accordance with the International Standards on Auditing:

  • The current financial situation and/or viability of ARGOS,
  • The causes which have led to the current financial situation of ARGOS, upon an analysis (long-term and/or mid-term) of the company’s finances,
  • Whether the company’s new pricing policy, as mentioned above, considering the financial records of the company, as well as the cost of administration and distribution and its allocation to the publishing companies, in relation to the services offered to them, is reasonable and whether it ensures ARGOS’ viability.
  • If there are any alternative proposals for pricing supply and other charges included in ARGOS’ new trade policy, which are reasonable and ensure the company’s viability.

3.1 The expert or experts, who will be appointed by the Commission, will be obliged to deliver their findings within twenty (20) days of being made aware of their appointment.

Judicial Means Decision has been appealed
Decisions by the Court of Appeal of Athens (Administrative Division) -
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