CRIMINAL LAW – WHITE COLLAR CRIME IN GREECE

In Greece criminal proceedings are extremely slow.

Under the Greek criminal law, the legal entities bear no criminal liability, which is entirely borne by their legal representatives.

Therefore, companies / enterprises must be extremely careful in defining the liability of each of their executives.

TELECOMMUNICATIONS LAW IN GREECE

Any type of electronic communications activities relating to the provision of networks and/or electronic  communications are subject to the General Permit requirements of L. 3431/2006 titled “Electronic Communications and other provisions” (Government Gazette13/Α/3-2-2006) and to the “General Permits Regulation” (Government Gazette 748/Β/21-6-2006), as amended by Decisions No.442/68/28-6-2007 and 513/014/3-3-2009 of the Hellenic Telecommunications and Post Commission (Integrated text of the General Permits Regulation (Government Gazette 748/Β/2006, Government Gazette 1279/Β/2007, 492/Β/2009).

The provision of electronic communications services by third parties who lack privately-owned infrastructures and provide services under a different trade mark or under different corporate organization, by using infrastructures of other electronic communications network or service providers, under special agreements, is subject to the General Permits regime and to an Application for Registration.

On the contrary, a General Permit is not required:

• For the simple resale of electronic communications services to end users;
• For the private use of terminal radio equipment based on non-exclusive use of specific radio frequencies by the users for purposes not relating to any form of financial operations, such as use of the citizen zone by radio amateurs, which does not constitute provision of Network or electronic communications services and is governed by the applicable laws regulating the terminal equipment and radio equipment.
• For the state electronic communications networks, the radio communications networks and individual stations of the Radio Amateurs Service, of the Radio Amateurs Service through satellite and any networks used exclusively for experimental or research purposes and demonstration.

HTPC (Hellenic Telecommunications and Post Commission) is an independent Authority and the National Operator who monitors, regulates and controls:

• The electronic communications market, which mainly comprises the fixed and mobile telephony enterprises and wireless communications and internet providers and
• the posts market, which mainly comprises post and courier service providers. HTPC further exercises the powers of the Competition Commission in the relevant markets.

Within the scope of its duties, the Commission mainly engages in the following:

• Regulates any matters relating to

1. the determination of the relevant electronic communications markets, products or services in the Greek Territory and

1. the determination and the duties of any Providers with Significant Power over the relevant markets according to the national and Community laws;

• Supervises and monitors the electronic communications network and/or service providers; imposes sanctions and keeps and manages the Register of Electronic Communications Network and Service Providers;
• Issues Codes of Ethics as to the provision of electronic communications networks and services;
• Procures for due implementation of the laws governing electronic communications and of the provisions of L. 703/1977, as in force, and imposes the relevant sanctions;
• Cooperates with the Regulatory Authorities of other member-states of the European Union or third countries, as well as with Community or international organizations, in any matters falling within its powers and duties;
• Regulates any matters relating to the General Permits;
• Manages the National Numbering Plan (NNP);
• Regulates any matters relating to number portability, the selection and/or pre-selection of providers and monitors the implementation of the applicable provisions;
• Grants the rights of use of radio frequencies and/or numbers;
• Regulates any matters relating to Internet domain names ending in “.gr” and is competent to regulate any matters relating to domain names ending in “.eu”;
• Regulates any matters relating to electronic signatures;
• Regulates any access and interconnection matters;
• Exercises powers relating to the Universal Service;
• Regulates any matters pertaining to the protection of consumers in the field of electronic communications and post services;
• Regulates and monitors the post services market;
• Manages the commercial radio frequency spectrum, excluding radio and television frequencies. Within this context, HTPC:
• Defines in which cases the use of radio frequencies is subject to permit;
• Grants such permits where necessary;
• Defines the royalties payable for such use;
• Monitors and supervises the use of the radio frequency spectrum and imposes the applicable sanctions;
• Keeps the national register of radio frequencies;
• Grants permits for the construction of land antennas;
• Handles any matters relating to the distribution and use of terminal telecommunications equipment and radio equipment.

At the beginning of 2010, the implementation of tax measures is the main subject of political discussion and strict measures are clearly about to be implemented. New ideas and measures are suggested on a daily basis and the government has opened a public dialogue on a series of measures.

In general, the situation is currently as follows:

Α1. INCOME TAXATION

Income taxation of natural persons generally escalates based on income level, with a maximum limit of 40%, whereas corporate entities are subject to fixed taxation rates, depending on their legal form, which may not exceed 25%.

In many cases specific income categories are subject to favorable taxation, with no reasonable excuse (e.g. members of the Parliament, jurists, football players etc.)!!!

Α.1.1. SUPPLEMENTARY CONTRIBUTION

Law 3758/2009 imposed an “extraordinary supplementary contribution” on natural persons for year 2007. Such contribution was levied on any tax payers who declared an income of over €60,000 in year 2008.

This measure caused serious reaction and many tax payers addressed the administrative courts claiming anti-constitutionality, as retroactive taxation (e.g. taxation of income of previous years) is prohibited under the Greek Constitution.

In the last days the first ruling was issued by a First Instance Court whereby the supplementary contribution was declared illegal and therefore cancelled. The case is now referred to the Supreme Court. If the Supreme Court upholds the decision of the first instance court, then the State will be liable to refund the tax payers with any amounts collected, which will seriously burden the state economics, which are already seriously problematic.

Α.2. INHERITANCE TAX

In 2008 (law 3634/2008) the government adopted a serious of measures to limit inheritance taxation. In particular, the following measures were adopted:

Α.2.1. Full exemption from the inheritance tax with regard to the acquisition of a residence up to 200 sq.m. or the acquisition of land by the deceased’s spouse or children, provided that they do not own a residence that meets their housing needs.

Α.2.2. Reduction of the taxation rates applicable to the deceased’s next of kin.

More specifically, first-degree relatives (as defined in the law) were exempted from taxation for any assets not exceeding in value €95,000 whereas second-degree relatives were exempted up to €20,000. Any assets exceeding in value the above limits were subject to taxation of 1% over the excessive value.

Α.3. PARENTAL GRANT TAXATION

Parental grant is any transfer of property from parents to children, in the form of a donation.

Α.3.1. Law 3634/2008 introduced a restructuring of the taxation of parental grants. The tax exemption limit was again set at €95,000. Any transfer of property from parents to children exceeding that limit in value was subject to taxation of 1%.

Α.3.2. The same law provides for full tax exemption of any parental grants consisting exclusively in the transfer of the beneficiary’s primary residence. Such exemption applies to any estates not exceeding 200 sq.m.

Α.3.3. Parental grants of movable property are subject to 10% taxation. Parental grants of holdings, shares or other movable securities are subject to independent taxation, ranging from 0.6% to 1.2%.

It should be noted that the applicable tax rates and tax exemption limits are particularly favorable compared to previous tax regulations.

As analyzed below, the government has already begun to replace the applicable tax rates with significantly higher ones.

Α.4. REAL ESTATE TAXATION

Α.4.1. Standard real estate tax.

Law 3634/2008 introduced standard real estate taxation, based on the value of the real estates and any real rights over them as at January 1st of the taxation year. The total value of the real estate property owned by natural persons in Greece, less the value of primary residence, is subject to a standard tax rate, subject to 0.1% graduated tax rate. The value of the real estate property owned by legal entities is subject to taxation of 0.6%.  (In most cases, such value is calculated  based on the values defined per district by special law).

Natural persons are exempted from tax with regard to their primary residence provided that it does not exceed two hundred (200) square meters and three hundred thousand euros (€300,000) in value.

The following entities are exempted from real estate tax with regard to any real estates used privately: (a) The Greek State, the municipal authorities and state enterprises; (b) The foreign countries for any real estates they own; (c) Any real estates not included in the city plan; (d) The social security organizations and funds; (e) All established religions and communions.

It should be noted that the Real Estate Tax has replaced the Large Property tax previously applied, which was much stricter on the large property owners; therefore, it is seen as great relief for the large property owners, however, at the same time it was also imposed on small property owners, who used to be fully exempted.

Α.5. EXCISE TAX

Among others, in 2009 the Greek Government adopted the following tax / collective measures:

Α.5.1. A raise in the Excise Tax levied on unleaded regular gasoline and super unleaded gasoline.
Α.5.2. A raise in mobile telephony charges, i.e. a raise in the charges imposed with regard to the use of mobile phones, which are collected through the telephone bills, and 12% taxation on card connections.
Α.5.3. An extraordinary contribution was imposed on the owners of leisure yachts exceeding 10 m. in length and sailing vessels exceeding 15 m.

PHARMACEUTICAL LAW IN GREECE

The Greek authority competent to regulate medicine-related matters is the National Organization for Medicines (“EOF”), which is a Legal Entity of Public Law of the Ministry of Health and Social Solidarity.

EOF is assigned with the task of protecting Public Health against the circulation in Greece of:

• Pharmaceutical products for use in human or veterinary medicine;
• Medicated animal food and animal food additives;
• Foods for particular nutritional use and food supplements;
• Biocides;
• Medical devices;
• Cosmetics.

Commercial companies in Greece are divided into partnerships and incorporated firms.

Partnerships comprise General Partnerships (GP) and Limited Partnerships (LP).

Incorporated firms comprise the Companies Limited by Shares (Societes Anonymes or SA) and the Limited Liability Companies (LTD).

PARTNERS’ LIABILITY 

The major difference between partnerships and incorporated firms is that general partners are personally liable for the company’s debts with their personal property.

SHARE CAPITAL LIMITATIONS

There are no limitations as to the minimum capital of general and limited partnerships.

The minimum share capital required for companies limited by shares is €60,000.

With regard to Limited Liability Companies, such limit is currently €4,500.

FORMALITIES

General and limited partnerships are subject to very few formalities with regard to their establishment and operation.

Companies limited by shares on the other, are subject to a series of formalities:

• They are incorporated by means of a notarized deed;
• Their annual financial accounts are subject to publication formalities (i.e. the Balance Sheet, Profit and Loss Account and Allocation of Profits, prepared in accordance with the Greek General Accounting Plan, are published in the Government Gazette and in one political newspaper).
• Specific decisions of the BoD and the General Shareholders’ Meetings e.g. on Company representation are subject to publication;
• The notice to a GM is published in the press (with specific exclusions).

COSTS

The establishment cost of general and limited partnerships is quite low.

For SAs and LTD, the incorporation cost is much higher.

The following apply to the incorporation of societes anonymes:

Capital Accumulation Tax, at 1% of the share capital and any share capital increase;

Notaries fees, at approx. 1.20% of the share capital.

TAX EXEMPTIONS IN CASE OF MERGER

1. 2166/1993 provides for a series of tax exemptions in case of merger of two anonymous societies. We indicatively mention that one of the major advantages provided in the law with respect to mergers is that the tax reserves of the company acquired formed in accordance with the development laws are not subject to taxation as at the time of the merger, provided that they are deferred to the reserves account of the new or acquiring company.

Moreover, Section 3 of L. 2166/93 provides explicitly that the contribution and transfer of the assets of the transforming companies, any actions or agreements pertaining to the contribution or transfer of assets, liabilities, rights or obligations, and any actions or agreements required for the transformation or incorporation of the new company, are exempt from all taxes, stamp duties or other State charges.

CYPRIAN COMPANIES

Cyprus is a member-state of the European Union. Companies seated in Cyprus are subject to a more favorable tax regime compared to those seated in Greece.

Greece and Cyprus have entered into a Double Taxation Convention, which renders taxation even more favorable for the companies seated in Cyprus.

In Greece, corporate governance was introduced at the beginning of the last decade, by law 3016/2002.

CODES OF ETHICS APPLICABLE TO THE PHARMACEUTICAL SECTOR 

The pharmaceutical sector is governed, among others, by the following codes of ethics:

The Code of Ethics of SFEE (Hellenic Association of Pharmaceutical Companies),regulating the promotion of prescribed medicines.

The EMEA Code of Ethics, regulating the promotion of prescribed medicines.

CODES OF ETHICS APPLICABLE TO TELECOMMUNICATIONS

This sector is governed, among others, by the following codes of ethics:

Code of Ethics on the Provision of Electronic Communications Services to the Consumers.

Code of ethics on the provision of multi-media information.

Code of ethics on value added services offered through mobile phones and on the protection of minor users.

A general principle governing the Greek law is the freedom to contract. However, such freedom is limited by the principles of good faith and the moral conventions as well as by other mandatory provisions of the law.

Several types of contracts are regulated by special laws, which in most cases derive directly from the respective EU directives.

We typically mention the following:

COMMERCIAL AGENCY AND DISTRIBUTION CONTRACTS 

They are governed by P.D. 219/1991.

The law provides for clientele indemnification in case of contract termination.

FRANCHISING AGREEMENTS

According to certain court decisions, these agreements are also governed by the law regulating commercial agency contracts.

The applicable legislation in Greece is Law 3373/2005 (as supplement to L. 703/77) on free competition, which is transfer of the respective EU directives, and L. 146/1914 on unfair competition.

The Hellenic Competition Commission (CC) is assigned with the task of ensuring smooth market operation and due implementation of fair competition. The Commission operates as an independent authority and enjoys administrative and financial autonomy.
The Competition Commission is assigned with the implementation of L. 703/77 “On the Control of Monopolies and Oligopolies and Protection of Free Competition”.
In particular, the Competition Commission:

• Identifies any collaborations between enterprises which are intended to or actually limit competition, in accordance with the provisions of Section 1 para. 1 of L. 703/77;
• Exempts any collaborations which limit competition, yet have a positive financial effect, benefit the consumers, do not cancel out competition or bind excessively the collaborating enterprises, in accordance with the provisions of Section 1 para. 3 of L. 703/77;
• Identifies any abusive behavior on part of enterprises having dominant position in the market, pursuant to Section 2 of L. 703/77;
• Identifies the abuse by one or more enterprises of the financial dependency upon them of other companies being their customers or suppliers, even with regard to specific types of products or services, where the latter lack any other alternatives, in accordance with Section 2(a) of L. 703/77;
• Carries out preliminary investigation on the impact that certain collaborations may have on competition, in accordance with Sections 4 – 4(f) of L. 703/77;
• Imposes sanctions where violations of L. 703/77 are identified;
• Takes security measures where a violation of Sections 1, 2, 2(a) and 5 of L. 703/77 is speculated;
• Investigates, at the request of the Minister for Development or ipso jure, specific sectors of the Greek market, where it is identified that the conditions of effective competition are not met and may take, by means of a justified decision, any regulative measures required with regard to market restructuring and the creation of conditions of free competition;
• Opines on any competition matters, at the request of the Minister for Development or any other competent Minister or any Chamber associations or industrial / commercial associations;
• Implements the provisions of Articles 81 and 82 of the European Community Treaty;
• Cooperates closely with the European Commission and the Competition Authorities of other EU member-states for due implementation of the Community competition law;
• Monitors the enforcement of the decisions of the Competition Commission, the ministerial decisions and the court decisions rendered with regard to any appeals against the aforementioned decisions.

With regard to certain sectors, such as the telecommunications sector, the above powers and duties are assigned to other authorities, such as the Hellenic Telecommunications and Post Commission.

COMMERCIAL AGENCY AND DISTRIBUTION CONTRACTS

These contracts are governed by P.D. 219/1991.

The law provides for clientele indemnification in case of contract termination.

FRANCHISE AGREEMENTS

According to certain court decisions, these agreements are also governed by the law regulating commercial agency contracts.

An administrative dispute is any disruption in the legal relations between the citizens and the state (or legal entities of public law) caused as a result of any action or omission on part of the state as a public authority.

Any disputes between private citizens and the state are referred to the administrative courts.

Normally, the procedure before the administrative courts is extremely long and time-consuming.

The basic law governing environmental protection in Greece is L. 1650/86, which enforces the relevant EU Directives.

The Council of the State (Supreme Administrative Court) is particularly strict on environmental matters.

Basic principles that should be applied by the Administration Authorities in performing their duties.

• The Principle of Legality;
• The Protection of the Public Interest;
• The principle of subsidiarity of the State;
• The principle of efficiency of the Administrative Actions;
• The principle of continuity of the Administration Bodies;
• The right of previous hearing of the Citizens prior to taking an unfavorable decision;
• The principle of good faith and protection of justified trust;
• The principle of proportionality;
• The principle of prudent management and leniency;
• The principle of equality;
• The principle of necessity.

The administrative disputes are distinguished into substantive disputes and annulment proceedings.

In the annulment proceedings, the courts examine only the legitimacy of an administrative acts and may only cancel them. In substantive disputes the court carries out a check of appropriateness of the contested administrative act and has the power to amend it.

LAWS AND DECREES GOVERNING THE PROTECTION OF INDUSTRIAL PROPERTY 

• L.1733/1987: TRANSFER of TECHNOLOGY, INVENTIONS, INNOVATIONS, ATOMIC ENERGY […];
• L. 2239/ 1994: NEW INSTITUTIONAL LAW ON TRADEMARKS;
• P.D. 259/1997: PROVISIONS ON THE IMPLEMENTATION OF THE HAGUE CONVENTION ON THE INTERNATIONAL REGISTRATION OF INDUSTRIAL DESIGNS AND SAMPLES, WHICH WAS RATIFIED BY L. 2417/1996 AND PROVISIONS ON THE NATIONAL PROTECTION TITLES (GOVERNMENT GAZETTE A 185/19-10-1997);
• P.D. 321/2001: PROTECTION OF BIOTECHNOLOGICAL INVENTIONS (DIRECTIVE 98/44/EC);

LAWS ON THE PROTECTION OF INTELLECTUAL PROPERTY 

1. 2121/1993: INTELLECTUAL PROPERTY, RELATED RIGHTS, CULTURAL MATTERS

TRADEMARK REGISTRATION PROCEDURE AND REQUIREMENTS

The basic requirements applicable to trademark registration are:

• The trademark is not identical or similar to any registered Trademark distinguishing any identical or similar products or services or even different product or services, if the registered trademark has gained some reputation in the commercial transactions.
  Therefore, before applying for a trademark registration, research should be carried out on the list of registered Trademarks and specifically at the site of the Minister of Economy, Competitiveness and Shipping (former Ministry of Development), (www.gge.gr), at the site of the Office of Harmonization for the Internal Market (OHIM) (www.oami.europa.eu,) as well as at the site of the World Intellectual Property Organization (www.wipo.int). in order to discover any registered trademarks which could hinder the registration of the specific trademark.
• The trademark is distinguishable, so that the consumers can be sure that the products branded under that trademark derive from a specific company. In fact, the trademark must be clearly distinguished from other trademarks deriving from different companies.
• The trademark does not consist exclusively in marks or indications as to the type, quality, properties, quantity, value, origin or other characteristics of the product or service.
• The trademark does not infringe upon the moral conventions or the public order.
• The trademark is not able to mislead the consumers, especially as to the nature, quality or geographic origin of the product or service.

Trademark registration procedure:

The following documentation is submitted with the Ministry of Economy, Competitiveness and Shipping (former Ministry of Development, Gen. Secretariat for Commerce – Directorate for Commercial & Industrial Property, Kanigos Sq, – 2nd floor- Suite 224 – Business hours: 10:30-13:30):

• A declaration of specific form in six (6) copies, signed by an authorized attorney.

1. Where the trademark beneficiary claims that the trademark has “specific colored configuration”, then a colored image is affixed on the above six (6) copies, and ten (10) more colored images are submitted together with ten (10) images in black and white.

1. Where the trademark beneficiary submits the trademark only in black and white, then a black and white image is affixed on the above six (6) copies and ten (10) more images are submitted in black and white.

1. Trademark dimensions may not exceed 9 cm. x 8 cm. .

• In addition to the declaration copies required under para. (1) above, five (5) additional copies are required of the products or services distinguished by the trademark, classified in classes, printed out on an A4 sheet.
• A revenue stamp of €120.00 for the first class (and a €30.00 revenue stamp for every additional class).
• A power of attorney (not necessarily notarized) to the undersigned attorney, providing special authorization for trademarks.
• Where the trademark beneficiary is a General or Limited Partnership, a copy of the company’s Articles of Association is also submitted, whereas with regard to Limited Liability Companies and Companies Limited by Shares a copy of the Government Gazette or other legalization document of the undersigned attorney. The power of attorney must essentially bear the company’s seal and the signature of its legal representative.
• With regard to foreign trademarks, i.e. where the beneficiary is seated or domiciled abroad, the special power of attorney must define that the beneficiary is subject to the jurisdiction of the Courts of Athens.
• A dossier with flaps.
• Stamp duties:        €2.30 in favor of the Athens Attorneys Social Security Fund;    €4.00 in favor of the Jurists’ Fund / Attorneys’ Auxiliary Fund, and a Court revenue stamp of €1.00, which are all affixed on one copy of the declaration (i.e. other than the original), plus a Court revenue stamp of €0.50 which is affixed on one copy for issue of one copy of the declaration submitted.
• Attorney’s fees prepayment voucher.
• With regard to Trademarks deriving by Conversion of Community Trademarks, in addition to the above, a special printed declaration is also submitted, along with a Greek translation of the following:

1. The Community Trademark application;

1. The application for conversion;

1. An OHIM certificate certifying the community trademark’s submission date;

1. An ΟΗΙΜ decision specifying the reason why the community trademark application was rejected. The time limit applicable to the submission of the above documentation is two (2) months, starting as of the date following notification of the applicant by notice of our Department, upon receipt.

• With regard to Trademarks deriving by Conversion of an International Trademark, in addition to the above, a special printed declaration is also submitted, along with a Greek translation of the following supporting documentation:

1. A W.I.P.O document certifying the date that the international registration ceased to apply;

1. A W.I.P.O document containing the information of the international registration.

Procedure from submission of a trademark declaration until final registration:

The trademark declaration together with the relevant file are submitted with the Ministry of Economy, Competitiveness and Shipping (former Ministry of Development). The date of hearing is normally 3 to 4 months after the submission date.

The Trademark Administration Committee examines whether the submitted trademark meets the requirements of the Law. The Committee renders a decision in approximately 6 months.

• If the trademark is sustained, then it is published within one year in the Commercial and Industrial Property Bulletin (CIPB). Four months after such publication, any third party having a legitimate interest can file an Appeal. If the trademark is not appealed, then it is finally registered.
• If the trademark is rejected by the Committee, the applicant can file an appeal before the Administrative Court of First Instance and then an appeal before the Administrative Court of Appeals and – if the latter is also dismissed – a petition for reversal before the Council of the State.