The Hellenic Competition Commission (HCC) convened, in Plenary, on the 9th of June 2021, following the relevant Commissioner-Rapporteur’s Statement of Objections, to decide whether there exist a gun – jumping case with regard to the notified transaction, pursuant to art. 6(1)-(4) of L. 3959/2011, concerning the acquisition by OPAP SA of sole control over the Greek and Cypriot activities of Kaizen Gaming International Ltd (ex GML Interactive Limited)[1].
According to the information in the case file, OPAP holds exclusive rights to organize, conduct and provide gaming activities, a license to operate Video Lottery Terminals, the exclusive right to operate the State Lotteries (LAIKO, ETHNIKO, KRATIKO and SCRATCH), the exclusive control over the right to organise and operate horse races while, from June 2014, OPAP SA also engaged in the activity of online sports betting with pame STOIXIMA and in providing online casino games to gamblers. GML is active in online sports betting in Greece since June 2014 and in Cyprus under the Stoiximan brand. Stoiximan Business provides online sports betting services in Greece through the Stoiximan.gr platform.
The obligation of prior notification of concentrations between undertakings stems from article 6(1) of Law 3959/2011. According to article 6 par. 4(a) of Law 3959/2011, “The Competition Commission shall impose on each person who is at fault for failing to notify in accordance with par. 3 of the present article, a fine of at least EUR thirty thousand (30,000) capped at ten per cent (10%) of the aggregate turnover, as defined in Article 10”. As the wording of that provision of art. 6 par. 4(a) pf L.3959/2011 indicates, its application shall be conditional on the following three (3) cumulative conditions: (a) existence of the obligation of prior notification of concentration pursuant to art. 6(1) of L. 3959/2011· (b) failure to comply with that obligation, and (c) any such failure be attributable to
a fault of those subject to the notification obligation.
By its unanimous decision (Decision no 752/2021), the HCC held that OPAP’s notification of the transaction consisting in the acquisition, by OPAP, of sole control over STOIXIMAN BUSINESS was not within the relevant time-limit, in breach of article 6(1) of law 3959/20111.
Regarding the duration of the infringement, as detailed in the above Decision, the HCC considers that the relevant Notification Form should have been submitted to the Authority no later than May 18, 2020. Instead, the concentration was notified late to the HCC on December 18, 2020, namely within two hundred and forty-five (245) days of the conclusion of the Framework Agreement, thus exceeding by two hundred and fourteen (214) days the statutory time-limits for submission of the notification.
By the same decision, the HCC held that, regarding the gravity of the above infringement and the calculation of the amount of the fine to be imposed, it should first be noted that the acquirer is a very large company with a significant economic standing, its power in most of the markets in which it operates is very high, as it holds a super-dominant position in most markets, while STOIXIMAN BUSINESS also has significant economic power and an established position (placed first) in the horizontally affected relevant market of online sports betting.
However, according to the HCC’s Decision and in the light of the evidence in the case file, it does not appear that a) the infringement found with regard to late notification has been intentional, b) it does not appear that the infringement found with regard to late notification had as its object or effect to circumvent the effective control of the merger by the HCC, c) the estimated effect of the merger on competition is negligible, given that it concerns a change in the quality of control and namely the acquisition of exclusive control by a company that already had joint control over STOIXIMAN BUSINESS and d) the acquirer fully cooperated well with the Authority, responding immediately and fully, to a large extent, to every request for information.
Therefore, the HCC, considering all the information in the case file, the information arising during the course of the Commission's meeting held on the 9th of June, 2021 and OPAP’s written statements, unanimously decides on the following:
1. Establishes that the notification of the concentration concerning the acquisition of exclusive control by the company OPAP SA over STOIXIMAN BUSINESS was out of time, in breach of article 6 par. 1 of Law 3959/2011.
2. Imposes a fine of five hundred thousand euros (€500,000) on OPAP SA, as an entity subject to the notification obligation, in accordance with the provisions of article 6 paragraph 4 of Law3959/2011.
[1] It is noted that, at its plenary meeting held on 01 March 2021, the HCC unanimously approved the notified transaction pursuant to article 8(6) of Law 3959/11, as in force. In particular, the Competition Commission ruled that, according to article 8(3) of Law 3959/2011, the proposed concentration, which falls within the scope of paragraph 1 of article 6 of Law 3959/2011, does not raise serious concerns as to its ability to significantly restrict competition in the relevant markets concerned. More information is available here.