Competition Commission: Fine in Athoniki for violating the competition of the project ‘Gournes – Hersonissos’

The Plenary Session of the Competition Commission (EA) with no. 755/2021 its unanimous decision (“Decision”), finds a violation of articles 1 par. 1 of Law 3959/2011, as in force of article 101 par. “and imposes on the involved company ATHONIKI TECHNIKI SOCIETE ANONYME TECHNICAL COMPANY (” ATHONIKI “) for the above violation of articles 1 par. 1 of Law 3959/2011 as in force, as well as article 101 par. 1 TFEU, a fine of € 5,828.5 .

Record

In the context of an ex-officio investigation conducted by the Directorate-General for Competition (GDA) in tenders for public infrastructure tenders, in order to determine whether the conditions for the application of the provisions of article 1 of Law 3959/2011 and article 101 of the TFEU were met, the GDA conducted on 25.01.2017 on-site inspection of the companies PYTHAGORAS SA and ATHONIKI TECHNIKI SA during which a document was identified from which emerges the involvement of the company ATHONIKI in a horizontal partnership during the auction of the project “Gournes-Hersonissos”.

The project was part of a wider cartel partnership between a group of 7th class contractors and 6th class companies for the distribution of public works tenders on the grounds that one group would enter a tender against the other, as opposed to the promise that another team would in turn be relegated to the next competition. Relevant and the no. 642/2017, 647/2017 and 748/2021 decisions of EA.

Related Market

Considering that in the case of bid-rigging cases the main point of reference for the definition of the relevant product market is in fact the work affected by the cartel under investigation, the relevant product market for the present is the “Gournes” project. -Peninsula”. The relevant geographical market is the whole of the Greek territory.

Legal Assessment

ATHONIKI participated with the MEDITERRANEAN[1] and the other members of the partnership[2] in a horizontal anti-competitive partnership in the form of an agreement / concerted practice between companies within the meaning of article 1 par. 1 of Law 3959/2011 and 101 par. 1 TFEU. In particular, ATHONIKI participated in a distribution plan of this tender, defining the framework of its joint action with the above-mentioned companies, in the framework of which they preventively reduced the uncertainty implied by the autonomous competitive behavior. The aim of the above plan was the artificial configuration of the offered discounts on the relevant project at levels different from those in which they would have been formed under conditions of real competition.

In particular, the behavior of ATHONIKI consists of an agreement / harmonized practice concluded / adopted before the submission of the financial bids for the distribution of the tender for the Gournes Hersonissos project, ie for the distribution of the market. Specifically, ATHONIKI made a) an agreement / concerted practice (i) for the prior identification of the bidder in the said tender, (ii) for the submission of a cover offer, in favor of the pre-agreed bidder, in order to maximize the chances, the pre-agreed (iii) to adopt a compensation procedure to ensure compliance with the agreement; and (b) to exchange sensitive commercial information between competitors.

Fine / Penalties

EA found that the company ATHONIKI violated, as it accepted and according to what is stated in the reasoning of the decision, article 1 of Law 3959/2011, as in force, and article 101 TFEU, by participating in a prohibited horizontal partnership of fraud tender and imposed a fine of € 5,828.55.

The calculation of the fine, based on the reasoning mentioned in the decision, is imposed for reasons of observance of the principle of equal-equal treatment of ATHONIKI in relation to the other companies, whose behavior in this cartel has already been examined and evaluated by EA in the Decision Regulation 642/2017, and in respect of which the manner of calculation of the fine imposed on each of them was done in a corresponding manner.

It is recalled that in case of damage, the injured parties, if the other conditions are met, can file compensation actions following the decisions of the EA (follow on) before the civil courts. Particularly in the case of anti-competitive cartels, it has been estimated that 93% of these lead to overcharge with an average observed overpricing of around 20%.[3]

[1] The participation of which and its responsibility is not evaluated in the present, as it has already been evaluated and judged with the EA 748/2021 Settlement Decision.

[2] Namely DOMIKI KRITIS SA, EKTER SA, ERETVO SA, THEMELI SA and CHR. D. KONSTANTINIDIS SA, whose participation in the infringements under consideration and their responsibility in the context of them are not evaluated here, as they have already been evaluated and judged by EA 642/2017 Settlement Decision.

[3] Practical Guide – Quantification of Damage in Compensation Claims Based on Infringements of Articles 101 or 102 of the Treaty on the Functioning of the European Union (2013) OJ C167 / 19, paras. 142-143.