To impose on OPAP S.A. a fine of €500,000 was decided by the Competition Commission as it found late notification of the concentration concerning the acquisition of exclusive control over STOIXIMAN BUSINESS.
In particular, the Plenary Session of the Competition Committee met on June 9, 2021, following the Rapporteur’s Report, in order to decide whether the company with the name “Football Prediction Organization Anonyme Company” notified the Competition Committee (EA) in a timely manner, in accordance with article 6 par. 1 & 4 of Law 3959/2011, the concentration concerning the acquisition by itself of exclusive control over the Greek and Cypriot activities of the company Kaizen Gaming International Ltd (Gun jumping)[1].
As the Commission points out, based on the data in the case file, OPAP holds exclusive rights to organize, conduct and provide games of chance, the license to operate gaming machines (video lottery terminals), the exclusive right to operate the State Lotteries (the LAIKO lotteries, NATIONAL, STATE and SCRATS), the exclusive control over the right to organize and hold horse races, while since June 2014 OPAP SA has also started its activities in the field of online sports betting with PAME BET and in providing online casino games to the playing public . GML has been 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 to notify mergers between companies in advance is based on article 6 par. 1 of Law 3959/2011. According to article 6 par. 4 sec. a’ of Law 3959/2011, “[σ]in the event of a culpable breach of the obligation to be notified, the Competition Commission imposes on each of those liable to be notified under paragraph 3 a fine of at least thirty thousand (30,000) euros, which does not exceed ten percent (10%) of the total turnover, as defined in article 10”. As can be seen from the letter of the provision of article 6 paragraph 4 paragraph a of Law 3959/2011, its application depends on the cumulative contribution of three (3) conditions, namely: (a ) there is an obligation to notify a concentration pursuant to article 6 paragraph 1 of Law 3959/2011, (b) a breach of said obligation and (c) the breach is due to the fault of the person(s) obliged to notify.
The EA by its unanimous decision (Decision no. 752/2021) considers that OPAP notified the concentration concerning its acquisition of exclusive control over STOIXIMAN BUSINESS out of timein violation of article 6 par. 1 of Law 3959/2011.
As for the duration of the infringementas analyzed in the above Decision, the EA considers that the relevant Notification Form should have been submitted to the Service no later than May 18, 2020. Instead, the concentration was notified late to the Service on December 18, 2020, i.e. within two hundred and forty-five (245) days from the conclusion of the Framework Agreement and exceeding by two hundred and fourteen (214) days the deadline for early notification.
The EA, with its unanimous decision, considers that with regard to the seriousness of the violation in question and in relation to the assessment of the fine, it should first be noted that the whistleblower is a very important company for Greek data with a large financial surface, its power in most of the markets in which it operates is very large, since it holds a super-dominant position in most markets, while STOIXIMAN BUSINESS also has significant financial strength and an established (first) position in the horizontally affected relevant online sports betting market.
However, the EA unanimously considers that from the evidence in the case file it does not appear that a) the culpable violation of late notification was done fraudulently, b) it does not appear that the culpable violation of late notification had the aim or effect of circumventing the essential control of the merger by the EA, c) the estimated effect of the merger on competition is negligible, given that it was 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 whistleblower cooperated well with the Service, responding immediately and to a large extent fully to every request for information.
Therefore, the EA taking into account all the elements of the case file, the elements that emerged from the meeting of the Commission on June 9, 2021 and the memorandums of OPAP S.A., unanimously decides:
1. To ascertain the overdue notification of the concentration which concerns the acquisition of exclusive control by OPAP SA over STOIXIMAN BUSINESS, in violation of article 6 par. 1 of Law 3959/2011.
2. To impose a fine of five hundred thousand euros (€500,000) on OPAP S.A., as a notification obligee according to the provisions of article 6 par. 4 of Law 3959/2011.
[1] It is pointed out that at a meeting of the Plenary of the Competition Committee on March 01, 2021, it was unanimously decided to approve the notified merger, in accordance with article 8 par. 6 of Law 3959/11, as applicable. In particular, the Competition Commission decided, according to article 8 paragraph 3 of Law 3959/2011, that from the above notified concentration, which falls within the scope of paragraph 1 of article 6 of Law 3959/2011, no serious doubts as to its ability to significantly restrict competition in the relevant markets to which it relates. See related here.
Source: Capital
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