Summary of the HCC Decision

The Grand Chamber of the Hellenic Competition Commission ("HCC") examined, following a relevant Statement of Objections, a complaint lodged against undertakings operating in the market for the provision of security services for violation of articles 1 L. 703/1977 and 1 L. 3959/2011 and 101 of the Treaty on the Functioning of the European Union ("TFEU"), which did not cooperate under the settlement procedures^[1], and in particular against a) MONDIALPOL HELLAS SECURITY SERVICES S.A., b) ESA SECURITY SOLUTIONS S.A., as well as following the ex-officio investigation of Directorate-General for Competition ("GDC") into alleged infringements of articles 1 L. 703/1977, L. 3959/2011 and 101 TFEU in the market for the provision of security services.

By its unanimous Decision No. 731/2021, the HCC decided as follows:

1. According to the grounds of the Decision, it finds an infringement of articles 1 N. 3959/2011, 1 L. 703/1977 and 101 TFEU by the "SECURITY SERVICES TRADE ASSOCIATION” (SEEYA) for the period from 25.5.2009 to 06.09.2011.
2. It concludes that, by virtue of article 25 par. 2 of Law 3959/2011 on the maximum level of a fine, as laid down by law, the fine calculated for the participation of the "SECURITY SERVICES TRADE ASSOCIATION” (SEEYA) is zero.
3. It finds that the sole trader “KALOGERAKIS SECURITY” infringed articles 1 L. 3959/2011 and 1 Ν. 703/1977, for the period from 11.11.2010 to 12.4.2011. 
4. For the reasons set out in the grounds of the Decision, it does not impose a fine on “KALOGERAKIS SECURITY”.
5. Orders the "SECURITY SERVICES TRADE ASSOCIATION” and the sole trader “KALOGERAKIS SECURITY” to refrain in future from committing the infringements found according to the grounds of the Decision referred to above.
6. Threatens the "SECURITY SERVICES TRADE ASSOCIATION” and the sole trader “KALOGERAKIS SECURITY” with a fine and a penalty payment in case it establishes in future, by decision, the continuation or recurrence of the infringements hereby found.
7. According to the grounds of the Decision, no infringement by the companies MONDIALPOL HELLAS SECURITY SERVICES S.A. and “ISS SECURITY S.A.” (now “ESA SECURITY SOLUTIONS S.A.”) is found regarding articles 1 L. 3959/2011, 1 L. 703/1977.

Facts

A complaint was lodged against the companies MONDIALPOL HELLAS SECURITY SERVICES S.A. and ESA SECURITY SOLUTIONS S.A., active in the market for the provision of security services for  illegal concerted practice  in breach of competition law. The complainant reported that the undertakings in question entered into an horizontal cartel for two tenders in the context of tendering procedures in the market of security services, in violation of the provisions of Law 703/1977 and Law 3959/2011.

In the context of the investigation of the case, the HCC took a number of investigative measures, in particular: on-site inspections were carried out at the premises of security companies, the Association of Greek Security Companies ("SEEA") and the “Security Services Trade Association” (SEEYA), questionnaires were sent to companies active in the sector as well as to contracting authorities, unsworn statements were made by representatives of security companies at the offices of the HCC and assistance of other public services was sought through information requests.

Relevant market

According to the HCC and based on the information in the case file, the relevant market for the purposes of this case is defined as the provision of security services. Security services are provided throughout Greece under sufficiently homogeneous conditions of competition, as the commercial policy of the companies does not differ in terms of geographical criteria. Therefore, the geographical market is defined as the whole of the Greek territory.

Legal assessment

According to the grounds of the HCC’s Decision, SEEYA, through the Sectoral Collective Agreements ("SCAs") of 2009 and 2010, aimed at fixing the price of the security services provided, by arranging the profit of the employers-members of the association and causing distortion of price competition in the market for tenders for security services. It becomes obvious that the said anti-competitive action of SEEYA had as its object the distortion of competition in breach of articles 1 par. 1 L. 3959/2011, 1 par. 1 L. 703/1977 and 101 TFEU.

There was also evidence of an exchange of information concerning, in particular, financial bids between settling companies and the sole trader KALOGERAKIS SECURITY, in the context of their participation in tenders launched in the years 2010 and 2011. The above bids, which were also the object of the information exchange under consideration, compared with the figures contained in the statements of award of the respective body, entirely matched the final bids. In particular, the tendering procedures were distorted by the undertakings in question by way of submission of cover bids, through the exchange of information, by the sole trader KALOGERAKIS SECURITY, with the pre-agreed aim to award the project to one of the settling companies.

In the context of the case under consideration, in addition to the bid-rigging practices adopted by the sole trader KALOGERAKIS SECURITY, the HCC also investigated, with regard to their compatibility with the provisions of Article 1 of Law 703/1977 and Law 3959/2011, the practices that were implemented by the settling company, ESA SECURITY SOLUTIONS S.A. and MONDIALPOL HELLAS SECURITY SERVICES S.A., for two (2) tenders concerning an equal number of public procurement contracts within the period 2009 -2010. The HCC ruled that there was insufficient evidence that the above practices conflict with the provisions of article 1 of Law 703/1977 and / or Law 3959/2011. In particular, it was noted that the Authority’s investigation did not bring forward any evidence of the alleged unlawful concerted practices aiming at the submission of the matched bids in the tenders referred to in the complaint.

^[1] See in this regard HCC’s Settlement Decision No 721/2020 (GG 5992/Β΄/30.12.2020), here.