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Chapter 6 Greece

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Chapter 6 Greece Chapter 6 Greece Content 1 A Market definition in competition and media law in Greece 3 I Introduction 3 II The general approach to market definition in Greek competition law 5 1. Relevant product market 6 a) Demand-side substitution 6 aa. Characteristics of the Product 7 bb. Intended Use 8 cc. The price of the products 9 dd. The Hypothetical Monopolist Test (SSNIP) 9 b) Supply-side substitution 10 2. Geographic dimension of the market 11 3. Evidence relied upon 12 III. Ex lege defined markets 13 IV. Other criteria 13 1. The structure of the markets 14 2. Actual and potential competition 16 3. Legal, economic and other entry barriers 18 B Repertoire of relevant product and geographic market in media sector in Greece 18 I. Publishing and books sector 18 II. Music-copyright 20 III. Broadcasting 21 IV. Film sector 21 V. Internet 23 VI. Advertising in the media 25 C Comparative analysis of market definitions adopted by the European Commission and those adopted by Competition Authorities in Greece 30 I General remarks 30 II. The general methodology followed by the Greek Competition Committee 31 III. Comparative analysis of the approach on the media sector market 32 1. Publishing and books sector 32 2. Film sector 33 3. Internet sector 35 4. Advertising in the media 37 1 D Impact of different regulatory frameworks on market definitions 39 I. The regulatory framework for the media sector in Greece 39 1. Constitutional provisions 39 2. Sector-specific regulation 39 II. Media Regulators 40 1. Ministry of Press and Mass Media 41 2. Ethniko Symvoulio Radiotileorasis (ESR = National Council of Radio – Television) 41 3. EETT (Ethniki Epitropi Tilepikinonion kai Tahydromion = National Telecommunication and Post Commission) 42 4. Other governmental bodies 43 a) National Book Centre: 43 b) Copyright Organisation: 43 III. Market Definitions and/or Criteria upheld for market perception in the relevant sector focused legislation 43 1. Publishing 43 a) Press 43 b) Books 44 2. Music-Copyright 44 3. Film 45 4. Broadcasting 45 a) Cross media ownership rules 45 b) Broadcasting products or services 46 c) Broadcasters and distributors 46 d) Categories of broadcasters (depending on area of coverage) 47 5. Internet 47 IV. Market definitions in the media sector, as upheld in sector specific practice of authorities and/or courts 48 V. Common factors and differences between the media (sector) specific market definitions and the market definitions used in application of competition rules. 49 VI. The impact of the non competition framework and practice on the work of the competition regulator, in particular when defining the relevant markets. 49 2 The present section follows a similar outline pattern as in the previous sections. 6.01 The first part (part A) starts with a short introduction of the legal provisions and the main institutions dealing with the implementation of competition law in Greece. It continues with (i) the general approach to demand and supply side substitutability for defining the relevant market, and (ii) other more specific criteria used to define the market. Then, under section (B) the work portrays the main markets delineated in the media sector by the Greek National Authorities. The third section (C) provides a comparison between the market definition applied at the EC level and the methodology adopted by the Greek Authorities. The last part (part D) provides a detailed analysis of all sector specific regulatory frameworks that have may have an impact on market definition in the media sector. A Market definition in competition and media law in Greece One might find differences in the way markets are defined for the purposes of 6.02 different competition law provisions in Greece, i.e. provisions dealing with infringements (agreements and abuse of dominant position), or provisions dealing with merger control cases. These differences follow from the fact that each provision serves a specific purpose. Thus, market definition is carried out corresponding to the diverse rationales these provisions enclose. However, these particularities with respect to market definition in different proceedings of competition law do not justify a separate analysis of the market definition approach under each provision. Without suggesting every course of action operates in an identical manner and according to identical standards, it can be said that different procedures do not result in completely different models for market definition approach. In the end, all competition law provisions reflect the same concern, i.e. the abuse or potential abuse of the economic power of the enterprises in a particular market. Hence, the present work will embrace an all- encompassing scheme while exploring Greek competition law approach to market definition, and only where it is considered to be significantly imperative, it will point out the differences. I Introduction In Greece, the legal framework regulating economic competition is based on 6.03 two assumptions, namely (i) certain inequitable commercial practices are not just for they employ “non ethical” means whilst competing for the same economic ends and shall, therefore, be prohibited by the legal order, and (ii) the economic competition shall be free, i.e. everyone shall have the right to freely enter and compete in the market of her/his choice and any non-legitimate obstacles restricting this right shall be prohibited. Thus, two legal regimes have emerged in Greece, namely unfair competition law based on the first principle, and free competition law based on the second one. The main legal provision regulating unfair competition is Act No. 146 of 1914 On Unfair Competition (“Peri Athemitou Antagonismou”). The disputes between the parties under Act No 146 of 1914 fall within the jurisdiction of Civil or Criminal Courts. We will 3 not elaborate further on unfair competition and will deal only with the free competition regime herein1. The main legal provision regarding free competition law in Greece (from now 6.04 on referred to as competition law only) is Act No 703 of 26 September 1977 (from now referred to as Act 703/1977) on the Control of Monopolies and Oligopolies and the Protection of Free Competition (“Περί ελέγχου µονοπωλίων και ολιγοπωλίων και προστασίας του ελευθέρου ανταγωνισµού”) as it stands after the latest amendments brought about by Act No 2941 of 19 September 20012. According to Article 8b3 of Act 703/1977, the Competition Committee (Epitropi Antagonismou) has exclusive powers with regard to the implementation of the provisions of the Act. It functions as an administrative independent authority being at the same time economically self-sufficient. The Competition Committee upon its own initiative or upon a complaint filed by a third party or a request made by the Minister of Development may intervene when the free competition is distorted either by cooperative actions of undertakings or as a result of an abuse of the market power of a dominant firm or as a result of a merger between two or more firms. The decisions of the Competition Committee may be challenged on appeal to the Athens Administrative Court of Appeal (“Dioikitiko Efeteio”) and then to the Council of State (“Symboulio tis Epikratias“). Following the EC Treaty pattern, namely Article 81, Article 1(1) of Act 6.05 703/1977 prohibits all agreements between undertakings, all decisions by associations of undertakings and concerted practices of whatsoever kind, which have as their object or effect the prevention, restriction or distortion of competition. However, according to paragraph (3) of the same article, derogations to the prohibitions referred to in paragraph (1) may be granted upon a decision made by the Competition Committee (or the Minister of Trade according to Article 8a of the Act), provided that certain conditions are fulfilled. Article 2 of the Act, which is the Greek equivalent to Article 82 EC Treaty, prohibits any abuse of the dominant position of the undertakings. Articles 4 to 4f deal with merger cases and are designed with Regulation No 4046/1989 (Merger Control Regulation) in mind (from now on ECMR)4. 1 For more on unfair competition law in Greece, see in general: Kotsiris, L., ∆ίκαιο Ανταγωνισµού Αθέµιτου Και Eλεύθερου [Law of Unfair and Free Competition], pp. 1-367; Marinos, M. T., Αθέµιτος Ανταγωνισµός [Unfair Competition]. For a more comprehensive account on free competition law in Greece, see in general: Kotsiris, L., ∆ίκαιο Ανταγωνισµού Αθέµιτου Και Eλεύθερου [Law of Unfair and Free Competition], pp. 367- 615; Vouterakos, Konstantinos Gr., Competition Law in Greece, in Vogelaar, Floris O.W./ Stuyck, Jules/ van Reeken, Bart L.P (ed.), Competition Law in the EU, its Member States and Switzerland. 2 Act No. 703/1977 [Official Gazette 278/A/26.9.1977] has been amended by Acts No 1934 of 8 March 1991, No 2000 of 24 December 1991, No 2296 of 2 February 1995, No 2323 of 13 July 1995, No 2741 of 28 September 1999, Act 2837 of 28 August 2000, and Act No. 2941 of 19 September 2001. 3 When article numbers of Greek legal provisions are provided, the original Greek letters are replaced with the Latin equivalent (e.g. instead of the Greek letter Γ we refer to as C). 4 Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings, [OJ L 395, 30.12.1989] as amended by (EC) No 4 II The general approach to market definition in Greek competition law Despite the major importance that market definition possesses for the correct 6.06 implementation of competition law, the Greek Competition Committee has not so far issued any particular informing material regarding the methodology and the strategies it will follow for defining the relevant markets. However, a sufficient decisional practice of the Greek Competition Committee does exist and the following analysis will show that Greek competition law and the Competition Committee case law follow in general the approach held at the EC level.
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