Limitation Periods for the Hellenic Competition Commission: The Conseil D’ Etat has spoken with a New Ruling
Limitation Periods for the Hellenic Competition Commission: The Conseil D’ Etat has spoken with a New Ruling
KG Law Firm’s Competition team analyses the decision of the Greek Supreme Administrative Court (Conseil d’ Etat), in which the later examined the limitation periods for competition law violations and the notion of ‘reasonable time’ within which the Hellenic Competition Commission (HCC) can bring cases against undertakings, and delivered an ambiguous ruling which deviates from its previous decision on the matter:
In its much expected decision 582/2019, the Greek Supreme Administrative Court, examined once more the issue of limitation periods for competition law violations and the notion of ‘reasonable time’ within which the Hellenic Competition Commission can bring cases against undertakings, and delivered an ambiguous ruling which deviates from its previous decision on the matter.
Violations falling under the previous law 703/1977 on protection of competition could not, according to some, be time barred because the law did not include an explicit provision on limitation periods. The relevant provision was introduced for the first time with article 42 of law 3959/2011. However article 50 para. 6 of law 3959/2011 provides that this limitation period does not apply to violations conducted prior to the entry into effect of the new 3959/2011, in case the relevant investigation by the HCC has already begun.
Under a previous ruling (1976/2015), the Conseil d’ Etat held that, the absence of an explicit provision on limitation periods in law 703/1977 was not compatible with the principle of legal certainty and therefore the limitation period rules provided in article 25 of Regulation 1/2003 should apply by analogy to national violations, both regarding the power of the HCC to establish an infringement as well as the power to impose sanctions.
In its recent decision 582/2019, the Conseil d’ Etat has opted for a different approach.
The case was brought before the administrative high court through an appeal filed by the Hellenic Competition Commission (HCC) against decision 3040/2014 of the Athens Administrative Court of Appeal annulling HCC decision 441/V/2009 which had imposed a fine on a number of retailers including the respondent ‘AFOI VEROPOULOS S.A.’ and on ‘Unilever Hellas AEBE’, for including a clause in their product placement agreements which restricted parallel trade. The Conseil d’ Etat upheld the HCC’s appeal and in its turn annulled decision 3040/2014 which had ruled that where the law does not include explicit provisions on limitation periods for competition law violations, the limitation period provided in article 25 of Regulation 1/2003 should apply by analogy where the case has an EU dimension.
In particular the Conseil d’ Etat in its latest decision quoted the principle of judicial autonomy of the Greek administrative authorities and referred to the scope of Regulation 1/2003 which primarily applies to the European Commission rather than the national authorities, including the provisions of Article 25 on limitation periods. Nevertheless due to the absence of an explicit statute of limitations for competition law violations under the previous regime and the need for a compromise between the power of the HCC to impose sanctions and the right of individuals to properly defend themselves, the Conseil d’ Etat recognized HCC’s obligation to rule on competition law violations, within a ‘reasonable time’.
The notion of ‘reasonable time’ should be examined in each case ad hoc, based on the nature and the severity of the violation, the difficulty for its detection, the nature of the measure taken each time by the HCC, the Authority’s goal and in general on the overall circumstances. Specifically with respect to the imposition of sanctions, the Conseil d’ Etat ruled that the length of ‘reasonable time’, should be assessed based on the principles of effectiveness of EU law and proportionality but also having in mind the limitation periods of article 25 of Regulation 1/2003, in the sense that ‘reasonable time’ can neither be shorter than the periods provided in the Regulation nor can it be considerably longer than the maximum time provided (namely 10 years). The Court’s Decision however was not unanimous: It includes a descending opinion which follows at large the ruling of the Court’s previous decision (1976/2015).
Consequently, long awaited Decision 582/2019, raises skepticism as it overturns existing jurisprudence of the same Court and provides a ruling which departs from the clarity and certainty of the previous decision primarily because it resorts to indicative and unclear criteria for limitation periods which are interpreted on an ad hoc basis.
The Court’s preference to the concept of ‘reasonable time’ within which the HCC is able to establish a violation and/or impose sanctions, although not an unknown concept in the Court’s jurisprudence, leaves businesses in ambivalence given that both minimum as well as maximum limitation periods for a violation can vary from case to case. Especially regarding its maximum limit, the 10-year period provided by Regulation 1/2003, is used as an indicative but not absolute limit: depending on the specific circumstances of the case, the HCC or a court may rule that a fine imposed even ten years after the termination of an infringement falls within the ‘reasonable time’ imposed by the specific circumstances.
KG Law Firm’s Competition team analyses the decision of the Greek Supreme Administrative Court (Conseil d’ Etat), in which the later examined the limitation periods for competition law violations and the notion of ‘reasonable time’ within which the Hellenic Competition Commission (HCC) can bring cases against undertakings, and delivered an ambiguous ruling which deviates from its previous decision on the matter:
In its much expected decision 582/2019, the Greek Supreme Administrative Court, examined once more the issue of limitation periods for competition law violations and the notion of ‘reasonable time’ within which the Hellenic Competition Commission can bring cases against undertakings, and delivered an ambiguous ruling which deviates from its previous decision on the matter.
Violations falling under the previous law 703/1977 on protection of competition could not, according to some, be time barred because the law did not include an explicit provision on limitation periods. The relevant provision was introduced for the first time with article 42 of law 3959/2011. However article 50 para. 6 of law 3959/2011 provides that this limitation period does not apply to violations conducted prior to the entry into effect of the new 3959/2011, in case the relevant investigation by the HCC has already begun.
Under a previous ruling (1976/2015), the Conseil d’ Etat held that, the absence of an explicit provision on limitation periods in law 703/1977 was not compatible with the principle of legal certainty and therefore the limitation period rules provided in article 25 of Regulation 1/2003 should apply by analogy to national violations, both regarding the power of the HCC to establish an infringement as well as the power to impose sanctions.
In its recent decision 582/2019, the Conseil d’ Etat has opted for a different approach.
The case was brought before the administrative high court through an appeal filed by the Hellenic Competition Commission (HCC) against decision 3040/2014 of the Athens Administrative Court of Appeal annulling HCC decision 441/V/2009 which had imposed a fine on a number of retailers including the respondent ‘AFOI VEROPOULOS S.A.’ and on ‘Unilever Hellas AEBE’, for including a clause in their product placement agreements which restricted parallel trade. The Conseil d’ Etat upheld the HCC’s appeal and in its turn annulled decision 3040/2014 which had ruled that where the law does not include explicit provisions on limitation periods for competition law violations, the limitation period provided in article 25 of Regulation 1/2003 should apply by analogy where the case has an EU dimension.
In particular the Conseil d’ Etat in its latest decision quoted the principle of judicial autonomy of the Greek administrative authorities and referred to the scope of Regulation 1/2003 which primarily applies to the European Commission rather than the national authorities, including the provisions of Article 25 on limitation periods. Nevertheless due to the absence of an explicit statute of limitations for competition law violations under the previous regime and the need for a compromise between the power of the HCC to impose sanctions and the right of individuals to properly defend themselves, the Conseil d’ Etat recognized HCC’s obligation to rule on competition law violations, within a ‘reasonable time’.
The notion of ‘reasonable time’ should be examined in each case ad hoc, based on the nature and the severity of the violation, the difficulty for its detection, the nature of the measure taken each time by the HCC, the Authority’s goal and in general on the overall circumstances. Specifically with respect to the imposition of sanctions, the Conseil d’ Etat ruled that the length of ‘reasonable time’, should be assessed based on the principles of effectiveness of EU law and proportionality but also having in mind the limitation periods of article 25 of Regulation 1/2003, in the sense that ‘reasonable time’ can neither be shorter than the periods provided in the Regulation nor can it be considerably longer than the maximum time provided (namely 10 years). The Court’s Decision however was not unanimous: It includes a descending opinion which follows at large the ruling of the Court’s previous decision (1976/2015).
Consequently, long awaited Decision 582/2019, raises skepticism as it overturns existing jurisprudence of the same Court and provides a ruling which departs from the clarity and certainty of the previous decision primarily because it resorts to indicative and unclear criteria for limitation periods which are interpreted on an ad hoc basis.
The Court’s preference to the concept of ‘reasonable time’ within which the HCC is able to establish a violation and/or impose sanctions, although not an unknown concept in the Court’s jurisprudence, leaves businesses in ambivalence given that both minimum as well as maximum limitation periods for a violation can vary from case to case. Especially regarding its maximum limit, the 10-year period provided by Regulation 1/2003, is used as an indicative but not absolute limit: depending on the specific circumstances of the case, the HCC or a court may rule that a fine imposed even ten years after the termination of an infringement falls within the ‘reasonable time’ imposed by the specific circumstances.
