The Plenary Session of the Hellenic Competition Commission (HCC) examined, following the Statement of Objections (SO) by the case-Rapporteur P. Fotis and HCC Decision No 708/2020[1], the complaint lodged by the company under the name “AGNI INDUSTRIAL & COMMERCIAL S.A.” («AGNI» or «the complainant») against the company “COCA COLA TRIA EPSILON INDUSTRIAL & COMMERCIAL S.A.” («COCA COLA» or «the company complained of»), to determine the applicability of the provisions of article 2 of L. 3959/2011 on the “Protection of Free Competition”, as in force, and/or article 102 of the Treaty on the Functioning of the European Union (TFEU).
According to the complaint, the company complained of, COCA COLA, abuses its dominant position in the markets in which it operates by adopting aggressive behavior and methods of "predatory underpricing" against the competing products of the complainant, AGNI, thus trying to eliminate the complainant from the market. In this regard, the complainant alleges that the company complained of applies selective price reduction on those of its products that compete with those of the complainant, aiming at eliminating the latter from the market.
In particular, regarding the definition of the relevant product market in this case, the HCC considers that it comprises, in principle a) the market for carbonated soft drinks (cola type) and b) the market for other carbonated soft drinks (orange sodas, lemon-lime soft drinks, etc.). COCA COLA is active in all the aforementioned markets, while the complainant is active only in the market of other carbonated soft drinks (orange sodas, lemon-lime soft drinks, etc.). In relation to the definition of the relevant geographic market, the HCC considers that, in the present case, it is the Greek territory.
In the relevant product market for off-trade cola-type soft drinks, both in the Greek territory and in individual markets thereof, COCA COLA holds a leading/super-dominant position and very high market shares over time, while with regard to the relevant product market for other, off-trade, carbonated soft drinks (non-colas), it is pointed out that the company complained of enjoys the highest market shares in the Greek territory of all the companies active in it.
The HCC unanimously upheld that, in the light of the evidence and arguments put forward by the complainant, the Authority's investigation, the case file and the hearing on the case, there are no indications of an infringement of Article 2 of Law 3959/2011 due to a predatory pricing strategy or selective price reduction practices in COCA COLA products which compete with those of the complainant in order to eliminate the latter from the market of other carbonated soft drinks.
In particular, COCA COLA does not apply an abusive practice of selectively reducing prices in the areas of activity of the complainant and to the products marketed by it. Regarding the complainant's allegation of cross-subsidisation on the part of the company complained of, the latter did not use its revenues in the markets where there are no competitive pressure to cover its loss in those where such pressure exists, namely in the markets where the complainant operates, given that the company complained of does not use below-cost pricing in the markets where the complainant operates, in particular, and therefore does not suffer any damage in the said markets.
Regarding the other allegations of the complainant, the HCC unanimously considers that the AGNI’s allegation regarding an abuse of the dominant position of the company complained of, through exerting pressure to have AGNI’s refrigerators removed, in order to achieve the non-placement of competing products in a specific store, is not substantiated by any evidence in the case file and must be rejected as unfounded. Similarly, in the light of the evidence in the case file, the complainant's allegation of a discriminatory treatment against AGNI by COCA COLA’s exclusive suppliers is not substantiated to the required standard of proof and must be rejected as unfounded.
The analysis of product cost data collected by the HCC does not indicate any existence of indication of infringement, nor does it confirm the allegations of the complainant. On the contrary, it suggests that the prices set by the company complained of for the products, which have been subject to the investigation, are consistently at levels above the average total cost, per product. The difference between the prices set by the company complained of in relation to its total costs is so significant that it leaves no doubt about any below-cost pricing by COCA COLA. Τhe same analysis confirms neither that production costs were the same for all the products, especially for those packaged in glass bottles, nor that the price was differentiated only for these products.
Based on the above findings, the HCC, by its plenary Decision no. 751/2021, unanimously decided, in an open vote, to reject the complaint of “AGNI INDUSTRIAL & COMMERCIAL S.A.” against "COCA-COLA 3E S.A.", for an alleged infringement of article 2 of Law 3959/2011, as legally and factually unfounded.
