Summary
The Hellenic Competition Commission (“HCC”), in plenary, unanimously adopted Decision No 758/2021 according to which an association of professionals active in the installation and maintenance of elevators in Northern Greece (“SYSEVE”) infringed article 1 Law 3959/2011 (domestic equivalent to article 101 TFEU) for the period from 31-03-2006 to 15-12-2020.
The infringement concerned a statutory provision which allowed the Board of Directors to set minimum remuneration rates for its members. However, such decision was never adopted.
The HCC has imposed a number of corrective/ behavioural remedies on the association in order to educate both its members and the general public as well as to boost competition in this sector.
Facts
The ex officio investigation by the HCC’s Directorate General for Competition focused on the behaviour by two associations of undertakings active in the installation and maintenance of elevators, SESA and SYSEVE. This decision (758/2021) concerns only SYSEVE’s practices. Following its settlement submission, SESA’s practices were assessed by Decision No 750/2021. The investigation focused, in particular, on potential minimum remuneration rates for the members of SYSEVE as per the relevant statutory provision.
Relevant Market
The relevant market is the market for the maintenance and installation of elevators in the northern part of Greece, since all members of SYSEVE are active only in this area.
Assessment
Association of undertakings
SYSEVE is an association of undertakings, since its members, the interests of whom SYSEVE promotes according to its Articles of Association, are professionals active in the installation and maintenance of elevators. Therefore, Article 1 Law 3959/2011 is applicable.
Compliance with the provisions of SYSEVE’s Articles of Association is mandatory and express the collective will of its members.
Decision restricting competition
The Articles of Association of SYSEVE, as in force until 15-12-2020, constitute a decision by an association of undertakings according to article 1 Law 3959/2011. In particular, article 13 par. 10 of the Articles of Association allowed the determination of minimum remuneration rates by a decision of the Board of Directors. In case of non-compliance by a member of SYSEVE and after a relevant opinion by the Disciplinary Council, the Board of Directors could, according to article 8 par. 5 of the Articles of Association, expel that member from the association.
However, the Board of Director has never adopted a decision determining minimum remuneration rates.
In addition, SYSEVE has already amended its Articles of Association.
Corrective-Behavioural remedies
Based on the principle of proportionality and taking into account the relevant case law (HCC Decision No 554/2012 and HCC Decision No 675/2018) as well as all the conditions and special circumstances in this case, in particular the fact that (a) the statutory provisions in question were not applied and that (b) on its own initiative and before the issuance of the relevant Statement of Objections, SYSEVE amended its Articles of Association deleting the anti-competitive clauses, the HCC unanimously decided that SYSEVE infringed Article 1 Law 3959/2011, however exceptionally due to these special circumstances, did not impose a fine.
In the present case, the Commission considered that informing all the members of SYSEVE, as well as the general public, that professionals active in lift installation and maintenance are free to determine their prices will strengthen the competitive process and encourage professionals to offer reduced prices, ultimately boosting competition.
In view of the above, the HCC imposed a range of corrective / behavioural measures.
According to the Decision, SYSEVE should, within 20 days from receiving this decision:
- send an e-mail and letter by post to all its members informing them about the amendment of its Articles of Association as well as the association’s obligation not to be involved from now on in any initiative which will involve the direct or indirect setting of prices. In these letters SYSEVE should explicitly mention the HCC decision;
- make a similar statement in the next meeting of the General Assembly and post a similar statement on its website;
- publish a similar statement in two newspapers; and
- organise training seminars for its members in cooperation with the HCC.
The imposed behavioral remedies enhance professionals' compliance with competition law and emphasize the educational role of the sanctions/remedies imposed by the HCC - in addition to their deterrent role. Finally, it is recalled that any violation of competition law may also lead to criminal penalties.