The Grand Chamber of the Hellenic Competition Commission examined, following the relevant Statement of Objections^[1], a) the complaint lodged by “MYTILINEOS S.A. - GROUP OF COMPANIES” (hereinafter referred to as “MYTILINEOS S.A.”) against the companies under the names a) “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” and the distinctive title “IMERYS BAUXITE S.A.”) and b) “IMERYS INDUSTRIAL MINERALS GREECE SINGLE MEMBER S.A.” and the distinctive title “IMERYS GREECE S.A.”), active in the bauxite production and supply market, for alleged infringements of Articles 2 of L. 3959/2011 and/or 102 of the Treaty on the Functioning of the European Union (TFEU) and b) the ex officio investigation of compliance of “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” with HCC Decision No. 690/2019 on the Adoption of Interim Measures, pursuant to Article 25(5) of L. 3959/2011.

In the context of examining the Complaint regarding the compliance of the company "IMERYS BAUXITE GREECE SINGLE MEMBER S.A." with HCC Decision No. 690/2019 on the Adoption of Interim Measures, the HCC sent questionnaires-requests for information both to the Complainant and the companies complained of, as well as to bauxite and/or alumina producers in Montenegro and Turkey, and other foreign independent authorities. In addition, requests for information were sent to aluminum rolling and extrusion companies, and the parties concerned submitted written statements and financial, legal and technical studies/reports (both prior to and after the ex officio interim proceedings in the context of the examination of the case in the main proceedings and the review of compliance), with regard to the definition of the relevant market, the interchangeability of the various types of bauxite for the production of alumina, the substantiation of the existence or non-existence of a dominant position and the establishment of an abuse or non-abuse thereof, the range of technical conversions required to enable an alumina production plant to consume alternative types of bauxite, the relevant conversion costs as well as in relation to the alleged excessive pricing by "IMERYS BAUXITE GREECE SINGLE MEMBER S.A." to the detriment of “MYTILINEOS S.A. - GROUP OF COMPANIES”.

According to the complaint, "MYTILINEOS S.A. - GROUP OF COMPANIES" puts forward a series of allegations against the companies complained of regarding their practices, namely consisting in a) a highly abusive general strategy, which is specified in abusive terms and practices indicatively referring to the negotiating stance of “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” leading to the termination of cooperation with “MYTILINEOS S.A. - GROUP OF COMPANIES”, b) unjustified refusal to sell and discontinuation/termination of trading relations between the parties, c) excessive pricing, d) structural abuse and e) monopolistic inefficiency.

By Decision No. 690/2019, adopted on 30.07.2019, the HCC ruled on the alleged abuse of a dominant position by "IMERYS BAUXITE GREECE SINGLE MEMBER S.A." pursuant to Articles 2 of Law 3959/2011 and 102 TFEU and, acting ex officio, unanimously ordered the following interim measures^[2]: 

“ELMIN must immediately supply MYTILINEOS with the required quantities of standard quality bauxite for 2019, and must do so respectively for the quantities for 2018, in order to address the potential systemic inefficiencies in the relevant markets. Specifically, bearing in mind that the total quantity of bauxite sold in 2018 by ELMIN was 770,000MT,  ELMIN must supply MYTILINEOS with the quantity that corresponds to the difference between the two years (770,000MT-550,000MT=220,000MT), in proportion to the months remaining until the termination of the agreement signed on 22/03/2019 between the two parties, i.e. to supply an extra 18.333MT of standard quality bauxite per month at the contractually agreed price and for the duration of 5 months until the expiry of the term of the agreement, on 31/12/2019. The total quantity that must be delivered is 18.333MT x 5 months = 91.665MT. To implement this measure, ELMIN must, within 10 days from the publication of the interim measures Decision, make the appropriate amendments to the agreement signed on 22/03/2019, and must share evidence of the aforementioned actions within 10 days of their completion to the Commission. ELMIN shall begin negotiations with MYTILINEOS in order to agree on a deal for the procurement of bauxite. The deal shall be capable of ensuring the viability of MYTILINEOS and of the derivative market for the period after the termination of the current, amended as stated above, agreement. The negotiations, for which relevant protocols shall be observed, shall commence within 20 days of the publication of the decision on interim measures and be concluded within two months of their commencement. ELMIN must share evidence of its actions together with the adhered-to protocols within 10 days from the conclusion of the negotiations.”

According to par. II.3 of the operative part of the HCC’s interim measures Decision no. 690/2019, the Commission, in the event of"failure [to comply with the interim measures imposed], threatens ELMIN BAUXITES with a fine of eight thousand (8,000) euros for each day of non-compliance, which will be imposed by an HCC relevant Decision on non-compliance".

In the light of the evidence in the case file and the hearing on the case, as well as according to Decision no. 690/2019, the HCC held, by majority, that there are disruptions in bauxite supply over specific time periods within the 3-year period from 2017 to 2019 by "IMERYS BAUXITE GREECE SINGLE MEMBER S.A." to “MYTILINEOS S.A. - GROUP OF COMPANIES”, which is IMERYS’s most important customer in the context of a long-term and regular trading relationship, and these disruptions constitute an abuse of a dominant position according to Article 2 of L. 3959/2011 without any justification on objective grounds. 

In particular, by its Decision no. 807/2023, adopted on 19.01.2023, the Grand Chamber of the Hellenic Competition Commission decided as follows:  

Α.1 Finds, by majority, that “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” infringed Article 2 of Law 3959/2011, according to the grounds of the Decision, by implementing a practice relating to the total and/or partial refusal to supply and interruption of a long-term business relationship, for the period extending from 01.01.2017 to 31.12.2019.

Α.2 Orders, by majority, the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” (formerly “ELMIN BAUXITES S.A.): 

Α.2.1 To bring the infringement found of Article 2 of L. 3959/2011 to an end.

Α.2.2 To refrain in future from the above infringement of Article 2 of L. 3959/2011.

Α.3 Imposes, by majority, on “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.”  (formerly “ELMIN BAUXITES S.A.) a fine amounting to one million three hundred seventy two thousand three hundred sixty nine euros  (€1,372,369) for the aforementioned infringement of Article 2 of L. 3959/2011. 

Α.4 Threatens, by majority, the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.”  with a fine of ten thousand euros (€10,000) for each day of delay in complying with the above decision, from the date of its publication, i.e. for each day of repetition of the above established infringement of Article 2 of Law 3959/2011, if any such repetition is established by a subsequent decision of the HCC.

Β.1 Finds, by majority, the non-compliance of the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.”  (formerly “ELMIN BAUXITES S.A.) with points II.a and II.b of the grounds of the interim measures Decision no. 690/2019 of the Hellenic Competition Commission, according to the grounds of the Decision.

Β.2 Imposes, by majority, a fine on the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” amounting to five hundred and sixty thousand euros (€560,000) for the company's non-compliance with points II.a and II.b of the grounds 690/2019 of the interim measures Decision no. 690/2019 of the Hellenic Competition Commission.

C. Unanimously finds the non-violation of Article 2 of Law 3959/2011 regarding the alleged practices of a) abusive "excessive pricing", b) " monopolistic inefficiency" and c) "structural abuse" by the company “IMERYS BAUXITE GREECE SINGLE MEMBER S.A.” (formerly "ELMIN BAUXITES S.A."), for the period from 01.01.2017 to 31.12.2019.

^[1] See in this regard https://www.epant.gr/en/enimerosi/press-releases/item/1146-press-release-examination-of-the-complaint-of-the-company-mytilineos-s-a.html. 

^[2] For more information about this HCC Decision, see https://www.epant.gr/en/decisions/item/1119-decision-690-2019.html. The interim measures Decision was published on 04.11.2019 in the Government Gazette, Issue No Β΄3993, according to the provisions of Article 27(1) of L. 3959/2011.