The Hellenic Competition Commission (HCC) unanimously decided, at its plenary meeting held on 19/07/2023 (Decision no 824/2023), according to para. 35 of its Decision no 790/2022, to accept the settlement proposals submitted by Caudalie, according to para. 37 of HCC Decision no 790/2022.

This Decision examines practices by Caudalie of prohibiting the promotion of its products by retailers via online price comparison platforms or the relevant online platform price comparison services/tools.

The DGC’s ex officio investigation was triggered by some findings raised in the context of the Sector Inquiry conducted by the HCC into e-commerce^[1]. For the purposes of the investigation, the DGC, acting within its competences, conducted an unannounced inspection (dawn raid) at the premises of Caudalie Hellas. In addition, in order to fully assess the evidence in the case file, has sent questionnaires to both the above company and online search and price and/or online marketplaces comparison platforms.

The relevant market of products or services in this case includes all products or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use. In this case, Caudalie is active in the cosmetics market. The relevant product market in this case is the production and marketing of high quality and price cosmetic products, which are generally distributed through selective distribution networks and mainly, in this case, through pharmacies.

The relevant geographic market is defined as the whole of the Greek territory, as both Caudalie and its retailers are active throughout the Greek territory, in which the conditions of competition are sufficiently homogeneous.

Caudalie Hellas and Caudalie SAS, for which sufficient evidence to establish a violation, on their part, of Article 1 of Law 3959/2011 and 101 of the TFEU in the context of vertical agreements was collected, expressed in writing their interest in examining the possibility of their placement under the Settlement Procedure (SP) and submitted a relevant request, in accordance with para. 16 of HCC Decision no. 790/2022 on the Settlement Procedure.

Following these requests, the HCC unanimously decided on the pertinence of the case as to place the undertaking concerned under the Settlement Procedure, considering that the relevant criteria are met. To this end, in the context of exercising its discretionary power in placing cases under the SP, the HCC took into account, in particular, the genuine willingness of the company to settle, the nature of the infringement as a vertical agreement and the expected degree of procedural efficiency, which was deemed considerably high in this case. Hence, it authorized the case-Rapporteur, P. Fotis^[2], to hold bilateral meetings with the undertakings concerned with a view to possibly settling the case.

The Rapporteur then invited the parties to bilateral meetings. During those meetings of the Rapporteur and the DGC with the undertakings, the latter were informed about the most important facts of the case, as mentioned in para. 20 of HCC Decision no. 790/2022, including the calculation of the fine.

The evidence available shows that the undertakings concerned engaged in a practice of prohibiting the use of online advertising platforms, in the context of a vertical agreement, in breach of Articles 1 (1) of Law 3959/2011 (Greek Competition Act) and 101 (1) TFEU, which lasted from 29.3.2021 to 31.3.2023. In particular, in light of the facts in the case file, it is clear that Caudalie prohibited outright the promotion of its products via online price comparison platforms, including a prohibition of the promotion of its products on both exclusively price comparison platforms and online platforms price comparison tools of dual function.

The above behavior entirely prevents the use of online advertising channels and, in particular, the use of price comparison services and tools and, therefore, constitutes a restriction on the effective use of the internet. This is a hardcore restriction within the meaning of Article 4 point (c) of Regulation 330/2010, now Article 4 point (e) of Regulation 720/2022 and, therefore, shall not be exempted under the above block exemption Regulations nor under the individual exemption provided for in Article 1 (3) of Law 3959/2011 and 101 (3) TFEU, as the relevant conditions are not met. On the same grounds, no individual exemption shall be understood on the basis of the "safe harbour" applicable to de minimis agreements, which do not significantly restrict competition in accordance with Article 101(1) TFEU.

The Grand Chamber of the HCC, by virtue of para. 35 of its Decision no. 790/2022, decided to accept, according to the grounds of the Rapporteur’s Statement of Objections, the above Settlement Proposals submitted by the above undertakings, and ruled as follows:

Finds that the undertakings concerned infringed Article 1 of Law 3959/2011 and 101 TFEU due to their participation in a prohibited vertical agreement through their engagement in the practices referred to above.

Orders the undertakings concerned to refrain in the future from the infringement of Articles 1 of Law 3959/2011 and 101 TFEU established in the above grounds.

Imposes a fine totalling €111,521.13  on the company for committing the infringement of Articles 1 of Law 3959/2011 and 101 TFEU, found in the above grounds.

^[1] For more information on the HCC’s Sector Inquiry into e-commerce, see https://www.epant.gr/en/enimerosi/sector-inquiry-into-e-commerce.html.

^[2] See HCC’s Press Release at https://www.epant.gr/en/enimerosi/press-releases/item/2377-press-release-cosmetics-and-personal-care-sector-case-prioritization-and-assignment-to-a-commissioner-rapporteur.html.