On February 1st, the Hellenic Competition Commission (HCC) released its Guidelines on the implementation of Article 1A of Law 3959/2011. This new Article 1A, introduced by Law 4886/2022, deals with the “Invitation to conclude a prohibited collusion and announcement of future pricing intent with regard to products and services between competitors.”

Article 1A addresses what is known as the “oligopoly gap,” which refers to unilateral conduct that cannot be caught under Article 101 TFEU/1 GCA1 in markets which allow for collusive outcomes with the communication of some information between competitors. This provision aims to tackle two unilateral practices: invitations to collude and price signaling.

Invitations to collude, also known as “attempted cartels”, refer to solicitation attempts that are not considered agreements between competitors, and therefore not subject to Article 101 TFEU or relevant national provisions. The Guidelines clarify that an invitation to a cartel refers to communicating with a competitor publicly or privately. Even if an invitation is rejected by the company that received it, it still constitutes an infringement.

The Guidelines specify what actions would be considered as an invitation to join a cartel, such as proposing, coercing, motivating, or inviting another company to collude. The precise nature of such invitations would be analyzed on a case-by-case basis. In addition, the Guidelines provide examples of what constitutes a proper rejection or acceptance of a private invitation to collude, as well as proper distancing in the case of public invitations. Public invitations to collude are rare. However, an invitation that is directed towards competitors and can be readily identifiable could also be interpreted as an invitation to collude.

Price signaling occurs when a company reveals its pricing plans and strategies to the public, which can lead to tacit collusion among competitors in the market. This conduct is not considered an agreement under competition law and cannot be addressed using Article 101 TFEU or relevant national provisions. This can lead to less aggressive competition in a concentrated market. Public disclosure can come in different forms, such as panel discussions, public or semi-public meetings, or interviews published in journals. However, not all announcements are examined for potential antitrust violations.

In the Guidelines, three categories of announcements that have the potential to restrict competition are identified:

a) those that forecast future conduct and the forthcoming development of the industry,

b) those that dictate how competitors, or the industry should act,

c) those that define conduct that is dependent on a competitor’s actions.

The HCC evaluates several criteria to determine if a disclosure could potentially restrict competition. These factors include whether the information is presented in an individualized or aggregated manner, whether it pertains to past or future data, and the competitive dynamics present in the market.

If a company directs a public announcement towards end-users or incorporates it into their regular business practices, it is not classified as price signaling. However, if a company makes future pricing announcements based on a legitimate business reason but is unable to provide evidence to support it, it may result in an investigation into price signaling by the competition authority, or be perceived as an invitation to form a cartel.

In conclusion, the HCC’s Guidelines on Article 1A establish a clear framework for assessing invitations to collude and price signaling in Greece, which will be a valuable resource for companies operating in the country. This proactive approach to antitrust enforcement is a positive development for the Greek market, as it helps create a level playing field for businesses and prevents anticompetitive practices. By providing transparency and guidance, the HCC is helping to promote fair competition, which is essential for the growth and sustainability of the Greek economy.