Cooling and heating appliances (760/2021)

1. CASE SUMMARY

A. Summary of facts

On 22 August 2022, the Hellenic Competition Commission ('HCC') published Decision 760/2021, following an ex officio investigation into vertical agreements between suppliers of cooling and heating systems and appliances and their retailers in Greece. The investigation, which was initially triggered by a complaint concerning alleged anti-competitive practices in the heating-boiler market, included inspections at the premises of 17 suppliers and requests for information addressed to the undertakings concerned and 112 retailers. The HCC found that nine suppliers had engaged in online resale price maintenance practices during different periods between 2011 and 2020. Two suppliers also imposed minimum advertised prices. All nine undertakings infringed Article 1 of Law 3959/2011 (the Greek Competition Act). Four of them also infringed Article 101 TFEU. The HCC imposed total fines of 1,167,381.61 EUR, ordered the undertakings to bring any ongoing infringement to an end and required them to refrain from repeating the practices.

B. Legal analysis

The investigation concerned the Greek markets for air-conditioning systems, heating boilers and other heating appliances, and water heaters, in which the undertakings concerned operated as manufacturers, importers or wholesalers. Although the practices concerned online sales, the HCC considered sales through physical stores and online stores to be interchangeable distribution channels.

The HCC found that the undertakings had restricted retailers' ability to determine their online resale prices. The practices included fixed or minimum resale prices in price lists, requests by telephone or email to change advertised prices, prohibitions on advertising below a price level set by the supplier, and warnings, threats or penalties in the event of non-compliance. In several instances, these measures were combined with price monitoring or pressure on retailers to report distributors that deviated from the prescribed price level. Two undertakings also imposed minimum advertised prices. The HCC considered these practices to constitute restrictions by object and hardcore restrictions within the meaning of Article 4(a) of Commission Regulation (EU) No 330/2010. It rejected the argument that minimum advertised prices should not be treated as resale price maintenance and referred to European and national decisional practice according to which the imposition of minimum advertised prices amounts to the fixing of resale prices. The HCC also rejected the argument that online resale price maintenance was justified by the need to protect the quality and reputation of technically specialised products requiring installation and maintenance by qualified technicians.

The decision, as summarised in the available source material, does not identify efficiencies or other circumstances capable of exempting the practices under Article 101(3) TFEU.

The HCC rejected the commitments offered by AHI Carrier SE Europe. It considered fines more appropriate for particularly serious restrictions because of their deterrent effect. It also found that the proposed contractual clauses and website announcement were insufficient to prevent repetition, as the practices resulted from the undertaking's conduct rather than from contractual provisions. In addition, the commitments were offered at an advanced stage of the investigation and would not have generated a significant procedural benefit. When setting the fines, the HCC took account of the prolonged economic crisis affecting the sector and reduced the fines imposed on all undertakings by 30%.

2. RELEVANT LEGISLATION

• Article 1 of Law 3959/2011
• Article 101 TFEU
• Regulation 330/2010
• Guidelines on vertical restraints

3. PRACTICAL SIGNIFICANCE

This case is relevant because it confirms that restrictions on advertised online prices may constitute resale price maintenance even where retailers formally remain free to determine the final transaction price. It also illustrates that commitments may be rejected in cases involving serious vertical restrictions where they do not adequately address conduct-based concerns or are offered too late to provide a meaningful procedural benefit. Finally, the case shows that broader economic circumstances may be taken into account when setting fines, as the HCC reduced the fines by 30% in view of the prolonged economic crisis affecting the sector.