STRICTER RULES ON UNILATERAL CONDUCT GREECE

1. STRICTER RULES ON UNILATERAL CONDUCTGREECE Dr Assimakis Komninos Commissioner, Hellenic Competition Commission Visiting Research Fellow, University College London

2. The EU regime • Art. 3 Reg. 1/2003 • 2. […] Member States shall not under this Regulation be precluded from adopting and applying on their territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings. • 3. Without prejudice to general principles and other provisions of Community law, paragraphs 1 and 2 do not […] preclude the application of provisions of national law that predominantly pursue an objective different from that pursued by Articles 81 and 82 of the Treaty. • Recital 8 Reg. 1/2003 • [S]tricter national laws may include provisions which prohibit or impose sanctions on abusive behaviour toward economically dependent undertakings.

3. The EU regime • Recital 9 Reg. 1/2003 • Articles 81 and 82 of the Treaty have as their objective the protection of competition on the market. This Regulation, which is adopted for the implementation of these Treaty provisions, does not preclude Member States from implementing on their territory national legislation, which protects other legitimate interests provided that such legislation is compatible with general principles and other provisions of Community law […] Member States may under this Regulation implement on their territory national legislation that prohibits or imposes sanctions on acts of unfair trading practice, be they unilateral or contractual. Such legislation pursues a specific objective, irrespective of the actual or presumed effects of such acts on competition on the market. This is particularly the case of legislation which prohibits undertakings from imposing on their trading partners, obtaining or attempting to obtain from them terms and conditions that are unjustified, disproportionate or without consideration.

4. Scope of Art. 3(2) Reg. 1/2003 • NCAs and national courts can prohibit conduct allowed under Article 102 TFEU only if their national rule is a priori stricter • No general exception to the principle of supremacy of EU competition law for all cases of unilateral conduct • Reg. 1/2003 refers to stricter laws and not to stricter application of laws (Recital 8) • Historical interpretation → 19-21 GWB, Art. L420-2(1)(b) Code de Commerce, etc.

5. Scope of Art. 3(3) Reg. 1/2003 • “legislation [pursuing] a specific objective, irrespective of the actual or presumed effects of such acts on competition on the market” (Recital 9) • “provisions of national law that predominantly pursue an objective different…” (Art. 3(3)) • Q: ruling on “objectives” difficult → question of EU or national law? (see GR below) • Q: does it matter? A: probably not.

6. Greek law – abuse of economic dependence • Old Art. 2a Law 703/1977 – abuse of economic dependence (1991-2000 & 2000-2005) - see now Art. 18a Law 146/1914 (Unfair Competition Act) • Interesting debate: Art. 3(2) or 3(3) Reg. 1/2003? • EU → Art. 3(2) • GR → Art. 3(3) (“this provision protects an individual right and does not pertain to the antitrust rules which protect competition on the market for the benefit of consumers” Law 3784/2009)

7. Greek law – below-cost selling • Art. 24 Law 2941/2001 (see Art. L-420-5 Code de Commerce and Art. 20(4) GWB) • Conditions: • Sale of products in prices below cost of purchase • Actual or likely damage to the market OR • Substantial harm to the principles of competition and to the interests of the consumers • Q: is this really antitrust law? Which is the appropriate cost benchmark? 3(2) or 3(3)? • Competence → Ministry of Commerce

8. Greek law - other stricter prohibition rules • Unfair competition law (Law 146/1914) • Legislative Decree 16.9.1926 – prohibition of “boule de neige” (supplier sells a product at a low price in return for the obligation of the customer to provide the supplier with other customers with whom he has a contractual relationship) • Art. 281 Civil Code (abuse of rights) • etc.

9. Proposal • Full convergence • Exception only for prohibition rules that (predominantly or exclusively) pursue non-antitrust related objectives, subject to • Principle of supremacy • Four freedoms • Q: Should these rules be identified and possibly notified to the EU?

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