The Hellenic Competition Commission (HCC), in plenary, examined, following the relevant Statement of Objections by the Commissioner-Rapporteur P. Fotis, the case concerning the ex officio investigation into the print distribution market, in order to determine whether the conditions for application of the provisions of Articles 1 and 2 of Law 3959/2011on the " Protection of Free Competition", as in force, and/or Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are met, as well the HCC's ex officio investigation following its Decision No. 659/2018[1].
In the context of the above investigations, officials of the Directorate General for Competition (DGC) carried out on-site inspections (dawn raids) at the premises of ARGOS as well as at the premises of the other parties involved, sent requests for information to the Press Distribution Agency, to publishing companies that maintain a cooperative relationship with ARGOS, to associations thereof as well as to kiosk owners’ associations. In addition, the Authority has sent requests for information to and received responses from seven (7) European national Competition Authorities, in the countries of which, like in Greece, press distribution is carried out by one or two press distribution companies. For the sake of completeness, the HCC has also sent questionnaires to ninety (90) individual parties that operate final points of sale as well as to a sample of seventy-one (71) sub-agents/sub-distributors which cooperate or were cooperating with ARGOS.
The relevant product market in this Decision is the (Athenian/Pan-Hellenic) printed press distribution market (magazines, newspapers), which operates at three distribution levels/levels: a) at the Press Distribution Agency level (b) at the news vendor/sub-agent level and (c) at the level of final points of sale.
The relevant geographic market, in this case, depending on the level/stage concerned, is defined as: a) at the agency level, the entire Greek territory, b) at the level of news vendors/sub-distributors and sub-agents, the narrower area in which printed press is distributed thereby and c) at the level of final points of sale, namely mainly kiosks, the relevant geographic market is considered to be their "operating region".
In respect of the HCC’s ex officio investigation into the press distribution market, it is clear that ARGOS' anti-competitive practices vis-à-vis sub-distributors and sub-agents consist in market/customer allocation within the selective distribution network of the above company (restriction of cross-supplies by authorized sub-distributors and sub-agents to points of sale, network members, and/or geographical areas exclusively allocated to other authorized sub-distributors/sub-agents, and, respectively, restriction of cross-supplies between sub-distributors/sub-agents) as well as in the imposition of "single branding"/non-compete obligations. These practices continued uninterruptedly from August 2017 at least to the date of adoption of this Decision (30.12.2021) and fall under the provisions of Articles 1 (1) of Law 3959/2011 and 101 (1) TFEU. The above conducts of ARGOS, each of which constitutes an aspect of a series of acts and continuous conduct, reflect a coherent overall strategy and contribute, through their combined effect, to the attainment of a common anti-competitive objective. Therefore, the relevant individual restrictions of competition, besides constituting distinct infringements of Articles 1 of Law 3959/2011 and 101 TFEU, are also part of a single and continuous infringement of the above Articles, due to their scope, time sequence, complementarity and common focus, and it would be fictitious to divide this behavior, which is characterized by a common purpose, in several distinct, individual infringements.
In that regard, overall evidence in the case file indicates that ARGOS applies exclusionary abusive practices consisting in the imposition of exclusivity clauses, both vis-à-vis the publishing companies operating at an upstream economic level, and vis-à-vis the members of the selective distribution network (sub-distributors/ sub-agents), which operate at a downstream level, namely at each level of the press distribution chain in the Greek territory. The relevant individual restrictions of competition, besides constituting distinct infringements of Articles 1 of Law 3959/2011 and 101 TFEU, are also part of a single and continuous infringement of the above Articles, due to their scope, time sequence, complementarity and common focus.
In respect of the ex officio investigation conducted by the HCC following its Decision No. 659/2018, there is no evidence to confirm the concerns expressed by some publishers regarding the possibility of any adverse effects on the competitive conditions in the vertical markets concerned (upstream and downstream markets), as stated in HCC Decision 659/2018. In particular, the investigation revealed no evidence in relation to the imposition of unfair conditions on press distribution by ARGOS to the benefit of the publishing companies – controlling shareholders thereof and to the detriment of other publishing companies, b) a possible change in the commercial practices of ARGOS to the detriment of the publishing companies that are not among the Agency’s (controlling) shareholders, c) possibly false circulation bulletins, failing to present the actual sales of printed press publications to the detriment of publishing companies, non-controlling shareholders thereof. Therefore, according to the HCC, there is no evidence to establish that the acquisition/holding of a de facto indirect joint control, as stated in HCC Decision 659/2018, constitutes a breach of Articles 1 of Law 3959/2011 and 101 TFEU and Articles 2 of Law 3959/2011 and 102 TFEU.
By its Decision No. 763/2021, the HCC decided, in an open vote, as follows:
Α.1 Finds, by majority, that the company under the name "ARGOS Press Distribution Agency S.A." infringed, according to the grounds of the Decision, Articles 1 of Law 3959/2011 and 101 TFEU, over the period extending from 10.08.2017 to 30.12.2021.
Α.2 Orders "ARGOS Press Distribution Agency S.A." to:
Α.2.1 Cease the above infringement the above infringement of Articles 1 of Law 3959/2011 and 101 TFEU.
Α.2.2 Refrain in future from the above infringement of Articles 1 of Law 3959/2011 and 101 TFEU.
Α.3 Imposes, by majority, on "ARGOS Press Distribution Agency S.A." a fine amounting to three hundred thirty nine thousand one hundred fifty two euros and fifty two cents (EUR 339,152.52) for the infringement found of Articles 1 of Law 3959/2011 and 101 TFEU, as referred to above.
Α.4 Threatens "ARGOS Press Distribution Agency S.A." with a fine of ten thousand euros (€10,000) for each day of non-compliance with the above Decision, from the date of publication thereof, i.e. for each day of repetition of the infringement found of Articles 1 of Law 3959/2011 and 101 TFEU, if such an infringement is established by a new HCC Decision.
Β.1 Unanimously finds that the company under the name "ARGOS Press Distribution Agency S.A." infringed, according to the grounds of the Decision, Articles 2 of Law 3959/2011 and 102 TFEU, over the period extending from 10.08.2017 to 30.12.2021.
Β.2 Orders "ARGOS Press Distribution Agency S.A." to:
Β.2.1 Cease the above infringement the above infringement of Articles 2 of Law 3959/2011 and 102 TFEU.
Β.2.2 Refrain in future from the above infringement of Articles 2 of Law 3959/2011 and 102 TFEU.
Β.3 Imposes, by majority, a fine totaling four hundred eleven thousand five hundred thirty five euros and fifty four cents (EUR 411,535.54) on "ARGOS Press Distribution Agency S.A." for the infringements found of Articles 2 of Law 3959/2011 and 102 TFEU.
Β.4 Threatens "ARGOS Press Distribution Agency S.A." with a fine of ten thousand euros (€10,000) for each day of non-compliance with the above Decision, from the date of publication thereof, i.e. for each day of repetition of the infringement found of Articles 2 of Law 3959/2011 and 102 TFEU, if such an infringement is established by a new HCC Decision.
C. Finds that there was no breach of Articles 1 and/or 2 of Law 3959/2011, as in force, by the companies under the names “ALTER EGO MEDIA S.A.’’, "ELEFTHERIA TYPOU SA", "PROTO THEMA SA" and "S.A.J.P PUBLICATIONS PC", according to the grounds of the Decision.
Based on the overall evidence in the case file, the total fine imposed by the HCC for the established infringements of Articles 1 and 2 of Law 3959/2011 and 101 and 102 TFEU amounts to €750,656.06.