The Hellenic Competition Commission (HCC), in plenary, examined, following the relevant Statement of Objections by the Commissioner-Rapporteur P. Fotis, the complaints lodged against the company under the name “Organization of Football Prognostics (OPAP) S.A.” to determine whether the conditions for application of the provisions of Articles 1 and 2 of L. 3959/2011 on the “Protection of Free Competition” (Greek Competition Act), as in force, and/or Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are met. The complainants, a number of agents as well as SEPPP allege, inter alia, that the “non-compete clauses” included in OPAP’s 2017 Exclusivity Agency Agreement, under Article 13 of the above Agreement, regarding the so-called ancillary activities^[1], as well as OPAP's behavior in the period under consideration (2017-2021) are in breach of both Articles 1 and 2 of Law 3959/2011 and Articles 101 and 102 TFEU. In particular, by Art. 13 of the 2017 Agency Agreement, OPAP imposes on the agencies, in relation to ancillary services, a non-compete and exclusivity clause on its behalf as well as on behalf of the companies-members of its Group or third parties with which it maintains cooperative relationships, the combination of such non-compete and exclusivity clauses constituting a tying obligation.

In the context of the above investigation, the HCC sent requests for information to both the complaining parties and OPAP as well as to undertakings active in the relevant markets concerned.

For the purposes of this Decision and taking into account the relevant gaming markets as defined in previous HCC Decisions, the relevant product market was defined as the gaming market via terrestrial means, which includes (a) the market of special-knowledge sports gaming, conducted via terrestrial means, (b) the market for traditional lotteries via terrestrial means, (c) the market for gaming machines (OPAP Video Lottery Terminals (VLTs) and casino slot machines), (d) the market for State lotteries and (e) the market for totalizator horse-race betting via terrestrial means. The relevant geographic market of the individual gambling markets concerns the entire Greek territory.

The HCC Plenary also analyzed markets for the so-called "ancillary services". In view of the activity of the parties concerned, the relevant markets in the above context were defined as: a) the provision of bill payment services via a physical network, b) the provision of money remittance services via a physical network, in which agents act as intermediaries, and (c) the provision of sales / distribution services for third-party products, specifically pre-paid mobile and fixed phone cards and Internet data through a physical network. In this context, henceforth any reference to the above services refers to the access of final consumers and provision to them of the above services via terrestrial means only, namely via physical points, with the agents acting as intermediaries (indirect) users (distributors) with regard to the ancillary services. The Greek territory is also considered as the relevant geographic market for the above services.   

The HCC Plenary decided, by a majority, that the economic power of the OPAP group and, hence, of OPAP S.A. in the gaming market, via territorial means, is particularly significant throughout the period under consideration (2017 – 2021) resulting in the company’s position of economic strength held in the relevant market which objectively enables it to impede effective competition, behaving to a significant extent independently of its competitors, customers and, ultimately, consumers (dominant position).

Based on the overall evidence, the HCC was also found, by majority, that OPAP S.A. engaged, inter alia, in non-compete practices in all the relevant markets concerned as well as in tying practices with respect to services concerning (a) bill payment and (b) mediation for telecom firms’ product sale and marketing since the entry into force of the 2017 Agency Agreement, throughout the period under consideration (2017 – 2021), for which the Plenary decided, by majority, that they are in breach of both Articles 1 and 2 of Law 3959/2011 and Articles 101 and 102 TFEU.

Therefore, the contractual commitment regarding the ancillary markets (not the gaming markets) agreed between OPAP and the agents under the above terms (tying practice & non-compete obligation) constitutes, according to the HCC’s majority Decision, a form of permanent strategic commitment of the agents, increasing the risk of and producing anticompetitive foreclosure with respect to ancillary markets.

In this case, the HCC Plenary decided, by majority, that the hyper-dominant company, OPAP, enjoying a statutory monopoly in the market for the provision of gaming services via terrestrial means (this is a special condition that characterizes the market, which should also be taken into account , as it is a dominant position granted by the state and not acquired through a commercial policy), in the form of tying contractually imposed by OPAP (applied in conjunction with the non-compete obligation) not only protects its already very strong position in terms of the main gambling market, but what is mainly of interest in this case is that it affects, in a way not consistent with the so-called competition on the merits, competition in ancillary services, namely those concerning bill payment and intermediation for the distribution and sale of telecom products, for which no statutory monopoly has been granted, eliminating not only actual but also potential competition, by imposing the contractual terms at issue.

According to the HCC majority Decision, the practices of the company complained of mainly affect the level of agents, who act as intermediate consumers of the services offered by OPAP in the relevant markets concerned, but also as partners of OPAP in the context of the ecosystem it has set up. Furthermore, due to OPAP's dominant (monopoly) position in the territorial gaming market in which OPAP's agents also operate as intermediate users (distributors) and OPAP's power-leveraging practices (with tied sales being an example of such a leverage), these particular practices may also have at least potential effects on end consumers as well, by limiting the possibility of OPAP's competitors in the affected ancillary markets to compete effectively with it, giving OPAP S.A. a significant competitive advantage in those markets, which may affect the entry of new market players, thus affecting end-consumer choice of new or improved products or services, service quality and innovation. Furthermore, as OPAP's dominant position in the territorial gaming market will be maintained, at least in the coming years, it cannot be excluded that this undertaking will have other opportunities to resort to leveraged or tying practices in relation to other adjacent markets /ancillary services.

By  its Decision No. 787/2022, the HCC decided, in an open vote, as follows:

Α.1 Finds, by majority, that the company under the name “Organization of Football Prognostics S.A.” infringed, according to the grounds of the Decision, Articles 2 of Law 3959/2011 and 102 TFEU.

Α.2 Orders the “Organization of Football Prognostics S.A.” to: 

Α.2.1 Cease the infringement found of Articles 2 of Law 3959/2011 and 102 TFEU.

Α.2.2 Refrain in future from the infringement found of Articles 2 of Law 3959/2011 and 102 TFEU.

Α.3 Threatens the “Organization of Football Prognostics S.A.” with a fine of ten thousand euros (€10,000) for each day of non-compliance with the above Decision, from the date of publication thereof, i.e. for each day of repetition of the infringement found of Articles 2 of Law 3959/2011 and 102 TFEU, if such an infringement is established by a new HCC Decision.

Β.1 Finds, by majority, that the “Organization of Football Prognostics S.A.” infringed, according to the grounds of the Decision, Articles 1 of Law 3959/2011 and 101 TFEU.

Β.2 Orders the “Organization of Football Prognostics S.A.” to: 

Β.2.1 Cease the infringement found of Articles 1 of Law 3959/2011 and 101 TFEU.

Β.2.2 Refrain in future from the infringement found of Articles 1 of Law 3959/2011 and 101 TFEU.

Β.3 Threatens the “Organization of Football Prognostics S.A.” with a fine of ten thousand euros (€10,000) for each day of non-compliance with the above Decision, from the date of publication thereof, i.e. for each day of repetition of the infringement found of Articles 1 of Law 3959/2011 and 101 TFEU, if such an infringement is established by a new HCC Decision.

Γ. Imposes, by majority, a fine totaling twenty four million five hundred sixty-two thousand two hundred forty-nine euros  and five cents (EUR 24,562,249.05) on the company under the name “Organization of Football Prognostics S.A.” for the infringements found of Articles 1 of Law 3959/2011, 101 TFEU and 2 of Law 3959/2011, 102 TFEU. 

^[1] According to Art. 4.1. of the Hellenic Gaming Commission’s (HGC’s) 2016 Agency Regulation, as was in force during the period considered, apart from operating as terrestrial gambling venues, some of the gaming agencies (namely those falling under types A and F) may operate as points of:

 «a) access to postal services, 

b) sale of activated and pre-activated mobile or mobile card plugin packages or prepaid plugin packages, pay TV packages, distribution of power supply packages,

c) network of payment and e-money institutions,

d) for electricity, water, telephone and related services bills payment,  purchasing of tickets for entertainment events, public transport and related services and parcel consignments. 

e) provision (stores) of prepared meals, beverages, soft drinks-juices and alcoholic beverages with the exception of those referred to in Article 144 (with an alcoholic strength exceeding 15% vol.) of the Food and Beverage Code, as in force, in accordance with the written provisions on stores of hygienic interest ".