The plenary session of the Hellenic Competition Commission (hereinafter the “HCC”) examined upon the basis of the relevant Statement of Objections, pursuant to Article 25 paragraph 5 of Greek Law 3959/2011 (“Greek Competition Act”), the compliance of the company “ARGOS SA Press Distribution Agency” (ARGOS) with condition II.3 of the operative part of the HCC Decision no. 687/2019, as regards specifically the period from 28.07.2020 till 26.05.2021.

In it is reminded that, the HCC with its Decision no. 687/2019¹ (which was adopted in the context of an ex officio investigation of the HCC’s Directorate General for Competition and following a relevant request of the Minister of Economy and Development), had decided, unanimously, to order interim measures vis-a-vis the said company in view of the urgency to directly prevent an imminent threat of irreparable harm to the public interest and after having considered that an infringement consisting in an abuse of ARGOS’ dominant position in the press distribution market was likely and probable.

With condition II.3 of the HCC Decision no. 687/2019 ARGOS was obliged to distribute the Press of all publishing companies in accordance with its (then) commercial policy until either the issuance of an HCC final decision on the substance of the main case or the successful outcome of the negotiations between ARGOS and all the publishing companies.

Subsequently, with its Decision no. 720/2020² , the HCC found, by majority, that ARGOS had not complied with the obligations set out in the conditions II.1.3, II.2 and II.3 of the HCC Decision no. 687/2019³.

It is noted that to the according to the reasoning of the unanimous Decision HCC no. 746/2021, on the new investigation of the compliance of ARGOS, the condition II.3 of the Decision on interim measures aims to protect the public interest, which consists in ensuring the viability of all publishing companies as well as of ARGOS. In that perspective, ARGOS, on which the interim measures were imposed, must, until the expiration of the period of the ordered measures, not take any actions that endanger the implementation of the Decision, especially if these actions may cause irreversible changes, especially of an economic nature (in this case through the unilateral implementation of the New Commercial Policy), which affect the goals of the HCC’s decision.

The obligation of ARGOS to maintain the "old commercial policy", which derives from condition II.3, is objective and exists without the need to evaluate the reasons why the negotiations were not successful.

Both the principle of effectiveness of the application of EU competition law, as well as the protective nature of interim measures for the public interest, impose an obligation on the specific undertaking not to implement practices that will be contrary to the ordered measures. The HCC decision on interim measures mandates the financial balance between the parties and in any case imposes the distribution of the Press under the terms of the old commercial policy of ARGOS in the event that the necessary compromise between the parties is not finally reached, through negotiations, until the issuance of the Decision of the HCC on the substance of the main case⁴. The public interest in this case is served, by virtue of the HCC Decision on interim measures, by ensuring the viability, i.e. the remaining in the market, of both the publishing companies and ARGOS, in a state of economic equilibrium, based on the old commercial policy, if the negotiations between the parties have not succeed.

According to the HCC Decision no. 746/2021:

1. ARGOS has not complied with the condition II.3 of the HCC Decision no. 687/2019 as regards its obligation to distribute the Press of eight (8) publishing companies, in view of the fact that it implemented its new commercial policy before the issuance of a final decision on the substance of the case and before achieving a successful outcome in the negotiations with the publishing companies (according to condition II. 2 of the HCC Decision no. 687/2019), as follows:
(a) as regards one (1) publishing company, ARGOS’ non-compliance concerns the period from 28.07.2020 till 26.05.2021 (due to the unilateral implementation of the new commercial policy).
(b) as regards six (6) publishing companies / group of companies, ARGOS’ non-compliance concerns the period from 01.11.2020 till 26.05.2021 (due to the unilateral implementation of the new commercial policy); and
(c) as regards one (1) publishing company, ARGOS’ non-compliance concerns the period from 01.11.2020 to 04.01.2021 (due to the unilateral implementation of the new commercial policy).

Upon the basis of the above, HCC:

2. imposes on ARGOS a fine of a total amount of 41.11,11 euros in accordance with condition II.4 HCC Decision no. 687/2019 for the violation described above and recalcitrant behavior.

3. threaten ARGOS with a new fine, if with a new decision the HCC confirms the continuation or repetition of the established violation.

1 See https://www.epant.gr/apofaseis-gnomodotiseis/item/919-apofasi-687-2019.html.

2 See https://www.epant.gr/apofaseis-gnomodotiseis/item/1285-apofasi-720-2020.html

3 See the press release and the published HCC Decision in detail https://www.epant.gr/apofaseis-gnomodotiseis/item/1285-apofasi-720-2020.html

4 Pending the issuance of a final decision on the substance of the Main Case which was discussed in the Plenary Session of HCC and its finalization is expected.