Friday, 10 March 2017 14:21

Decision 642/2017

Settlement Procedure - Decision on the ex-officio investigation concerning tenders for contracts in public infrastructure projects, in particular road construction, modernization and upgrading of roads, construction of new highways, transport projects (metro / OSE / airports / ports), as indicated in the following projects: a) Railway Line Stations, section Kiato-Rododafni, b) section Rododafni - Psathopyrgos (Panagopoulas Tunnel), c) Kallidromou Tunnel, d) Tithorea - Domokos (Residual Infrastructure-Superstructure-Electromobility), e) Egnatia Odos: Derveni-Serres-Promaxonas, f) Egnatia Odos: Section Koromilia - Krystallopigi, g) Egnatia Odos: Vertical Axis Florina - Niki, h) Attiko Metro / Thessaloniki Metro, i) Neos Limenas Patron-3rd Section-A phase, j) Egnatia Odos: Completion Works of section Panagia-Grevena, k) Egnatia Odos: Completion Works from Sellon Junction-Metsovo Tunnel, l) Egnatia Odos: Completion Works from Metsovo Tunnel - Panagia Junction, in order to determine whether there is an infringement of Article 1 of Law 3959/2011 (on the “Protection of Free Competition”) and/or Article 101 TFEU.

Decision 642/2017
File (PDF) Decision 642/2017
Date of Publication of Decision March 10th, 2017
Issue Number of Government Bulletin  
Relevant Market Tenders for public works
Proceedings Collusion
Legal Framework Article 1 and 25 of the Greek Competition Act 3959/2011
Decision Infringement of Article 1 of the Greek Competition Act 3959/2011 – Settlement Procedure
Complainant Ex officio investigation
Company under examination

 1. ΑΚΤOR S.A.

2. ELLAKTOR S.A.

3. AKTOR CONCESSIONS S.A.

4. TERNA S.A.

5. INTRACOM HOLDINGS

6. INTRAKAT S.A.

7. J&P ΑΒΑX S.A. - ΕΤΕTH S.A. - ΑTHINA S.A.

8. ΤΕCHNICAL OLYMPIC S.A.

9. SIEMENS AG - SIEMENS S.A.

10. VINCI CONCESSIONS S.A.

11. AEGEK S.A.

12. DOMIKI KRITIS S.A.

13. ΕΚΤΕR S.A.

14. ΕRΕΤΒΟ S.A.

15. THEMELI S.A.

16. CHRISTOPHER D. CONSTADINIDIS S.A.

Summary of Decision

The Competition Commission, in the context of the simplified Settlement procedure in conjunction with the implementation of the Leniency Program, ruled that a total of fifteen (15) contractors that participated in the above procedure, violated articles 1 of the Greek Law 3959 / 2011 (and / or Article 1 of Law 703/1977) and 101 of the TFEU as they participated in distinct horizontal partnerships for market allocation and bid-rigging for public infrastructure projects, in order to consolidate their market shares and the lowering the level of discounts offered in public tenders. The companies of the highest class of contractors (7th) i.e. AKTOR SA, J&P - AVAX SA, TERNA SA, AEGEK SA, TECHNICAL OLYMPIC SA. Ε. and INTRAKAT SA adopted, as they themselves accepted, each at the time of its participation, a joint plan for bid-rigging of public works tenders during the period 2005 to 2012.

The distortion of these tenders was achieved mainly by identifying, prior to the submission of the financial tenders, the bidder and the submission of cover tenders, and, in some cases, by determining in advance the shapes that would carry out the critical projects. This horizontal partnership was implemented, in particular, through regular meetings of the competitors concerned and/or the conclusion of safeguard/compensation agreements. The above allocation mechanism included, among others, METRO projects of the period 2005-2006 and 2012, SDIT projects of the period 2008-2009 and infrastructure projects of the period 2011-2012. The companies of the lower class of contractors (6th) i.e. THEMELI SA, ERETVO SA, EKTER SA, CHRISTOPHER D. CONSTADINIDIS S.A. and DOMIKI KRITIS SA also participated in the above partnership regarding specific tenders, each at the time of its participation.

With its decision, the Competition Commission granted to ΤΕCHNICAL OLYMPIC S.A. full exemption from payment of a fine, for its participation in the infringement of the period 2005 - 2012 in the context of the first successful implementation of the Leniency Program by the Competition Commission.

Also, the Commission reduced by 15% the amount of fines imposed on the above companies AKTOR SA, J&P - AVAX SA, TERNA SA, AEGEK CONSTRUCTION SA, TECHNIKI OLYMPIAKI SA, INTRAKAT SA, THEMELI SA, ERETVO SA, EKTER SA, CHRIST. D. KONSTANTINIDIS SA and DOMIKI KRITIS SA, for their cooperation in the context of the Settlement Procedure.

In addition, the Competition Commission found that mitigating circumstances to be applicable concerning the companies AKTOR SA  and J&P - AVAX SA, due to the fact that they provided new additional evidence for the the infringements of the period 2005 to 2012, as well as to the company EKTER SA due to its distance from the partnership. Regarding the company J&P - AVAX SA its obstruction of the two on-the-spot ispections carried out at its premises was taken into account as an aggravating circumstance. In calculating the sanctions imposed, the Competition Commission has taken into account the prolonged economic crisis that has hit the construction sector in recent years, including.

Of the aforementioned companies, two alleged failure to pay the fine. The Competition Commission for the first time accepted (in part, in this case) the requests for insolvency and reduced the fine imposed on these companies.

In view of the above, the Competition Commission imposed a total of EUR 80,7 million in fines. €. In particular, depending on the duration of each undertaking's participation in the single and continuous infringement of the period 2005 to 2012, the following fines were impose: AKTOR S.A. fine 38,495,453 €, JP AVAX S.A. fine 18,320,193 €, TERNA S.A. fine 18,611,695 €, AEGEK S.A. fine 532,859 €, TECHNIKI OLYMPIAKI SA zero fine (0 €), INTRAKAT S.A. fine 4,300,493 €, THEMELI S.A. fine 110,953 €, ERETVO S.A. fine 110,953 €, ETER S.A. fine 99,858 € , CHRIST. D. KONSTANTINIDIS S.A. fine 110,953 € and DOMIKI KRETIS S.A. fine 8,899 €.

Finally, the decision, after considering for specific contractors, on the one hand, the existence of uniform and continuous infringements for the period 1989 to 2000, and, on the other hand, the existence of a series of autonomous practices for the allocation of public works tenders, which took place in the years 1981-1988 and 2001-2002, found that the power of the Commission to impose sanctions for these infringements has been barred in accordance with Article 42 of Directive 3959/2011.

As regards the rest of Greek and foreign construction companies involved in the Commission's ex-officio investigation, which did not submit a request for inclusion in the settlement procedure, another independent procedure was followed before the Commission. 
Judicial Means Final. Decision has not been appealed
Decisions by the Court of Appeal of Athens(Administrative Division) -
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