The European, Middle Eastern and African Antitrust Review 2018

Lithuania: Overview

Motieka & Audzevičius

Regulatory framework

The primary source of competition law in Lithuania is the Competition Law of the Republic of Lithuania of 1999 (the Law). Subsequently, the Law has been revised as a result of Lithuania's accession to the EU and the Lithuanian competition regime is now largely aligned with the EU model. The most recent amendment was made in 2017, when the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 was implemented in the Law. The national supervisory authority and competition watchdog is the Competition Council (the Council). The Council has passed a good deal of secondary legislation facilitating the implementation of the provisions of the Law.

The Council retained a competition enforcement staff of 46 in 2016. One of the smallest budgets for a national competition authority in the world is threatening to compromise the Council's ability to thoroughly ensure the supervision of the Law. In 2012, the financing of the Council was increased to approximately €1.27 million in 2013; €1.35 million in 2014; €1.61 million in 2015; and €1.7 million in 2016. It is worth mentioning that in 2016 new financing schemes were considered at a government level. The government has proposed a new financing scheme where part of the Council's budget is formed by direct financial injections from the undertakings. However, the scheme was not put into effect as the Lithuanian government rejected such proposals initiated by the Council.

In 2016, the Council won first place in the World Bank's Competition Advocacy Contest, in the category of embedding competition principles in public and industrial policies through advocacy. Mr Sˇaru-nas Keserauskas, the chairman of the Council, was also awarded the Badge of Honour by the Lithuanian Business Confederation. The award was bestowed upon him for the Council's active and constructive cooperation with the business sector in successfully implementing competition law policy.

Anticompetitive agreements and concerted practices

Article 5 of the Law contains a prohibition on all agreements that have, as their object or effect, the restriction or possible restriction of competition, including:

  • agreements to fix, directly or indirectly, the prices of certain goods or services or other conditions of sale or purchase;
  • agreements to share a product market on a territorial basis, according to groups of buyers, suppliers or in any other way;
  • agreements to fix production or sale volumes for certain goods, as well as to restrict technical development or investment;
  • agreements to apply dissimilar (discriminating) conditions to equivalent transactions with individual undertakings, thereby placing them at a competitive disadvantage; and
  • agreements to conclude contracts subject to the assumption by other parties of supplementary obligations that, by their commercial nature or according to their purpose, have no direct connection with the subject of the contract.

Anticompetitive agreements or provisions of the agreements are considered void from the moment of their conclusion unless subject to the de minimis rule or the exemption (articles 5(3) and 6 of the Law). The prohibition above covers both horizontal and vertical agreements. These provisions reflect the provisions of article 101 of the TFEU and must be interpreted in the light of the EU case law under article 101 TFEU, as recognised by the Council and Lithuanian case law.

De minimis

The Law provides that provisions of article 5 of the Law shall not be applicable to agreements between undertakings that, due to their non-appreciable influence, cannot substantially restrict competition. Conditions and requirements were laid down in the Resolution of the Council no. 1 of 13 January 2000 (amended by the Resolution of the Competition Council no. 1S-172 of 9 December 2004 (the Resolution)). Clause 4 of the Resolution provides for presumptions when the following agreements are considered incapable of restricting competition owing to their insignificance:

  • horizontal or mixed agreements between undertakings, the aggregate market share of which does not exceed 10% of the respective market; and
  • vertical agreements between undertakings, the separate market share of which does not exceed 15% of the respective markets.

Clause 5 of the Resolution also provides for thresholds in case of cumulative effect of the agreements. These provisions, as well as provisions of the clause 4 of the Resolution, mirror the provisions of the Commission Notice on agreements of minor importance. Clauses 7 and 8 of the Resolution provide that de minimis rules do not apply to the ‘hard-core restrictions' - horizontal and vertical agreements, which are considered the most severe violations of article 5 of the Law. It contains such hard-core restrictions as price fixing, limitation of output or sales, allocation of markets, etc.

Exemptions

Article 6(1) of the Law stipulates that article 5 thereof, which governs prohibited agreements, shall not apply in cases where the agreement promotes investment, technical or economic progress or improves the distribution of goods (thus allowing all consumers to get additional benefits), nor where:

  • the agreement does not impose restrictions on the activities of the parties thereto, which are not indispensable to the attainment of the above-mentioned objectives; and
  • the agreement does not afford the contracting parties the possibility of restricting competition in the major part of the market concerned.

Agreements complying with the terms and conditions listed above are effective from the moment of conclusion thereof - no prior decision of the Council is required. The burden of proof concerning compliance with the provisions of article 6(1) shall fall upon the party that wishes to benefit from the exemption. The Council, by its Resolution no. 1S-132 of 2 September 2004, has established that agreements satisfying the conditions for the granting of an exemption laid down in the EU regulations regarding the application of article 101 TFEU shall also be deemed to satisfy the conditions for the exemption under Lithuanian law. In cases where legal acts of the EU provide that for the undertakings to be eligible for the exemption the income of such undertakings is to be of a certain amount (as a condition for the granting of the exemption), by applying Lithuanian law, the amount of the income is reduced 10 times.

Whistle-blowing

The Council, by its Resolution no. 1S-27 of 28 February 2008, has set out the rules on exemption from and reduction of fines for the members of the restrictive agreements, which reflect the Commission Notice on immunity from fines and reduction of fines in cartel cases.

Lithuanian rules on setting fines in antitrust cases

There are two main steps that the Council follows while setting a fine in an antitrust case. First, the Council will determine a basic amount for each undertaking. Second, the Council may adjust that basic amount upwards or downwards. A fine cannot exceed 10% of the gross annual income in the preceding business year of an undertaking.

The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement (periods of less than six months will be counted as half a year; periods longer than six months but shorter than one year will be counted as a full year).

The basic amount of the fine will be decided upon by the value of sales directly or indirectly related to the infringement, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or the higher end of the scale, the Council will take into account a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. The value of sales is to be determined before VAT and other taxes directly related to the sales.

Irrespective of the duration of the undertaking's participation in the infringement, the Council will include a sum of between 15% and 25% of the value of sales as defined above into the basic amount in order to deter undertakings from even entering into horizontal price fixing, market sharing and output limitation agreements (object restrictions). This may increase the fine to be imposed on undertakings which have a particularly large turnover (95%) beyond the sales of goods or services to which the infringement relates. The Council will also take into account the need to increase the fine in order to exceed the amount of gains improperly made as a result of the infringement where it is possible to estimate that amount.

The Council qualifies the following actions as mitigating circumstances: voluntary prevention of the detrimental consequences of the violation; assistance to the Council in the course of investigation; compensation for the losses; elimination of the damage caused; voluntary termination of the violation; non-implementation of restrictive practices; acknowledgement of the material circumstances established by the Council in the course of investigation; the fact that actions constituting the violation were determined by the actions of the public authorities; and serious financial difficulties of the undertaking. With respect to the settlement procedure that came into force on 29 March 2017, the acknowledgement of the infringement is considered as a mitigating circumstance pursuant to Section 37 of the Law on Competition of the Republic of Lithuania and may lead to the reduction of fine by 15%.

The Council qualifies the following actions as aggravating circumstances: obstruction of the investigation; concealment of the committed violation; and failure to terminate the violation, notwithstanding the Council's obligation to terminate illegal actions or repeated commitment of the violation within a seven-year period for which the undertakings were already subject to the sanctions provided in the Law of Competition.

Lithuanian rules on setting fines in antitrust cases are almost identical to those established in the Commission's Guidelines on the method of setting fines. However, attention shall be drawn to some domestic particularities that play a major role in determining the final amount of a fine for an undertaking. To illustrate the particularities of the national settlement procedure, national case law examples and overall insights are presented below:

  • The G4S Lietuva case is one of the most recent vertical agreement cases where the Council took a very rigorous approach with regard to the calculation of a fine. The G4S Lietuva case relates to exclusive supply agreements, where the Council found no restriction by object. The Council only argued that the agreements could have had a potential effect on the relevant market. However, the fine in this case was calculated by applying the same principles as in cartel cases. One of the key motives of the Council was that the agreements potentially foreclosed a large part of the relevant market and the exclusive supply agreement was concluded between strong market players. The final decision in this case will be delivered at the end of 2017. The case shows how the Council has blurred the boundaries between restrictions by object and restrictions by effect in the context of calculating fines for an undertaking. Even if the agreement per se does not restrict competition, the Council usually gives priority to the criteria such as: market power of the contracting parties; duration of the agreement; geographical scope of the agreement; and potential harm for the consumers. It calculates the fine under the same standard as in cartel cases.
  • The Council recently took a very interesting approach towards a vertical agreement (a biofuel exclusive-supply agreement) that was concluded after the public tender was won by the supplier. Neither the public procurement office nor any market players have disputed the legality of the public tender. However, the Council initiated the proceedings and concluded that the biofuel exclusive supply agreement could potentially have foreclosed the biofuel supply market for a very long period, and calculated the fine by applying the same approach as in the G4S Lietuva case. The final decision in this case will be delivered at the end of 2017.
  • By analysing the administrative practice of the Council and the jurisprudence of the administrative courts, it could be noticed that when the Council investigates a market or a sector for the first time it tends to take a more rigorous approach in relation to calculating fines in order to discourage other market players from anticompetitive behaviour.
  • When the Council evaluates the severity of an infringement it usually analyses whether the consumers directly suffered from the anticompetitive agreement. If the answer is yes, irrespective of the nature of the agreement, the infringement will be qualified as a serious breach of competition law and the principles of calculation of a fine could be the same as in object cases.
  • It should be noted that the administrative courts very rarely reduce the fines established by the Council. Even if the courts decide to reduce the fine, the reduction is usually rather symbolic.

Technicalities of the Lithuanian settlement procedure and its implications

In order for an undertaking to be a subject to the application of a mitigating circumstance, according to which an undertaking acknowledges the infringement of Lithuania's Competition Law and the fine imposed during the investigation, an undertaking shall voluntarily submit to the Council a written statement of acknowledgement. This shall contain the following:

  • clear, unambiguous and unconditional acknowledgment of the participation in the alleged infringement and the liability for said infringement;
  • evaluation of the main circumstances of the infringement, including the nature, mechanism and duration of the infringement, and the role of the undertaking or public administration entity therein;
  • the maximum fine, proportional to the suspected infringement, that the undertaking or public administration entity agrees to pay in respect to the application of this mitigating circumstance.

Mitigating circumstances, according to which an undertaking acknowledges the infringement of Lithuania's Competition Law and the fine imposed during the investigation, may be applied only if it assures a more efficient investigation. The conditions that assure a more efficient investigation are assessed by the Council by evaluating the actual likelihood of reducing the resources consumed, the number of the undertakings or public administration entities suspected of the infringement, the number of the undertakings or public administration entities planning to submit the statement of acknowledgement, and other circumstances. An undertaking or a public administration entity that has submitted the statement of acknowledgement is prohibited, until the end of investigation, from disclosing the contents of the statement of acknowledgement to the undertakings or public administration entities and other persons suspected of the same infringement. In case of violation of the prohibition, the Council has a right not to apply this mitigating circumstance.

The contents of the statement of acknowledgement are not disclosed to the undertakings or public administration entities and other persons suspected of the same infringement until the end of the investigation. In case of the violation of the statement of acknowledgement, an undertaking or public administration entity suspected of said violation has no right to withdraw. Upon completion of the investigation, the contents of the statement of acknowledgement can be only disclosed to the undertakings or public administration entities suspected of the same infringement for defensive purposes only and in accordance with article 29 of the Law on Competition. Said undertakings or public administration entities suspected of the same infringement are prohibited by any means to make copies of the statement of acknowledgement or its segments. In case of application of the mitigating circumstance, according to which an undertaking acknowledges the infringement of Lithuania's Law on Competition and the fine imposed during the investigation, the Council shall reduce the fine by 15%.

Commitment proceedings

Under the Lithuania's Law on Competition there is a possibility to initiate commitment proceedings during the investigation. The Law states that if the actions did not cause significant damage to the interests protected by the law, and the undertaking suspected of the violation of the Law has voluntarily terminated the actions and submitted to the Council a written obligation not to perform such actions, or to perform actions eliminating the suspected violation or creating preconditions to avoid it in the future, the Council shall adopt a resolution to close the investigation. However, the Council has discretion not to accept the commitments of an undertaking.

Case law and recent developments

Investigating horizontal agreements has been declared a priority of the Council in contrast to investigations that require a proof of economic effect on competition (eg, abuses of dominant position). Therefore, most of the cases are those imposing the least burden of proof on the Council, such as horizontal price-fixing and market-sharing agreements. In fact, between 2000 and 1 June 2017, the Council investigated over 90 cases of restrictive agreements (under article 5 of the Law).

On 2 December 2015 the Council adopted a decision and imposed a €19 million fine on a central heating provider Vilniaus energija and a €3.5 million fine on a biofuel supplier First Opportunity. The decision dealt with the question of an allegedly exclusive purchase agreement that allegedly had a foreclosure effect in the biofuel market. The Council found that Vilniaus Energija and First Opportunity entered into an agreement under which Vilniaus Energija agreed to buy biofuels solely from First Opportunity for a period of five years. This way, Vilniaus Energija missed the opportunity to buy from other suppliers which could have possibly offered lower prices, so the agreement could have had a negative impact on competition and consumers. The decision has been appealed. On 19 October 2016, the Vilnius Regional Administrative Court adopted a decision acknowledging the legality of the Council's decision. The latter decision was appealed to the Supreme Administrative Court of Lithuania. The case is currently at the appeal stage. The final decision will delivered at the end of the year.

On 20 December 2012 the Council found that the actions of G4S Lietuva breached article 5 of the Law on Competition and article 101 of the Treaty on the Functioning of the European Union. G4S Lietuva was fined €2,733,375. The Council reopened the investigation into anticompetitive agreements within the market of cash-handling services following the decision by the Supreme Administrative Court of Lithuania. The latter obligated the Council to evaluate whether the commitments proposed by G4S Lietuva could have helped the company avoid sanctions in the case concerning anticompetitive agreements whereby AB SEB bank, AB Swedbank and AB DNB Bank agreed to purchase cash-handling services exclusively from G4S Lietuva.

Having re-evaluated the circumstances, the Council found that G4S Lietuva actions inflicted serious harm on the freedom of fair competition. The authority also noted that the restrictions of competition had direct impact on the bank clients using cash-in-transit services. Having taken into consideration all the circumstances, including the gravity and duration of the infringement, the Council held that the commitments proposed by G4S Lietuva could not have helped the company avoid sanctions.

On 19 September 2016 the Vilnius Regional Administrative Court adopted a decision, and partially annulled the Council's decision, and obligated the Council to accept the commitments proposed by G4S Lietuva. The Court's decision was appealed by the Council. An oral hearing is expected to take place in the near future, and the final decision will delivered at the end of the year.

Abuse of dominant position

Article 7 of the Law prohibits the abuse of a dominant position and lists cases of conduct likely to constitute an abuse, similar to article 102 TFEU, which can consist of:

  • directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
  • limiting production, markets or technical development to the prejudice of consumers;
  • applying dissimilar (discriminative) conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
  • making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations, which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

Article 3(2) of the Law defines a dominant position as a position of one or more undertakings that faces no direct competition in a relevant market, or a position that enables them to exert unilaterally a decisive influence in that market by effectively restricting competition therein. The Law explicitly defines presumptions of dominance and collective dominance, stating that:

  • an undertaking with a market share of not less than 40% shall be considered to have a dominant position in the market, unless it is proved otherwise; and
  • each undertaking in a group of three or fewer undertakings that have the largest share of and hold jointly 70% or more of the market shall be considered to enjoy a dominant position, unless it is proved otherwise.

The amendments to the Law, which came into force on 1 January 2010, included an amendment that reduced the dominance position threshold applicable for the retail trade operators. Thus, unless proven otherwise, an undertaking engaged in retail trade with a market share of not less than 30% (compared with the previous 40%) shall be considered to enjoy a dominant position within the relevant market. Moreover, unless proven otherwise, each of a group of three or fewer undertakings engaged in retail trade with the largest shares of the relevant market, jointly holding 55% (compared to a previous 70%) or more of the relevant market, shall be considered to enjoy a dominant position. The Council, in its Decision No. 52 of 17 May 2000 (as amended by Decision no. 1S-15 of 12 February 2005), set out the criteria for defining dominance based on EU competition case-law. On 24 February 2000, the Council also adopted Decision no. 17 regarding definition of the relevant market that mostly reflects the provisions of the European Commission notice on the definition of the relevant markets for the purposes of community competition law.

Case law and recent developments

The Council officially states that investigations in cases where the economic effect on competition has to be proven (for example, abuses of dominant position) are not the Council's priority.

On 22 April 2016, the Council terminated its investigation into Vakaru laivu gamykla, AB (VLG), an allegedly dominant Klaipeda Seaport operator, after the Council concluded that the VLG has ceased its practices by allegedly restricting undertakings' possibilities to provide ship supply, maintenance and repair services at the Klaipeda Seaport.

On 24 March 2016, the Council has initiated investigation on AB ORLEN Lietuva for possibly abusing its dominant position as a major diesel supplier to the Lithuanian market. The investigation was initiated as a result of the report of the Lithuanian petrol stations association. The report states that AB ORLEN Lietuva may have applied differentiated conditions in selling agricultural diesel to the association and UAB Imlitex. On 20 February 2017 the target date of the investigation was extended for an undefined period of time.

Mergers

Concentrations

The Law describes the term ‘concentration' as either a merger when one or more undertaking terminates its independent activity and is joined to an undertaking that continues its operations; or when a new undertaking is established from two or more undertakings that terminate their independent activity. The concept of the concentration mirrors provisions of article 3 of the Council Regulation no. 139/2004, and is interpreted in the light of the Commission's Consolidated Jurisdictional Notice under Regulation 139/2004.

Notifications and thresholds

Transactions that are subject to mandatory notification in Lithuania may not be implemented until they have been reviewed by the Council (the standstill obligation). The Law requires that parties to a concentration notify the Council of the transaction when the following two cumulative turnover thresholds are met:

  • the combined aggregate turnover of the undertakings participating in the concentration exceeds €14,481,001 in the preceding business year; and
  • the aggregate turnover of each of at least two undertakings concerned exceeds €1,448,100 in the preceding business year.

The Council has the power to intervene against any concentration that falls below the notification thresholds, even when there is no obligation to notify. In cases such as these, the Council may intervene by ordering the submission of a complete notification within a 12-month deadline following the implementation of a concentration if the concentration is likely to result in the creation or strengthening of a dominant position, or a significant restraint of competition in the relevant market. Owing to the EU ‘one-stop shop' principle, when a concentration meets the thresholds for notification at EU level, no notification at national level is required.

The obligation on parties to suspend the completion of a merger until the Council has approved the transaction is subject to fines, which can be as high as 10% of each of the parties' turnovers. If a concentration is implemented without the Council's clearance and the Council explicitly blocks the concentration in question, the concentration is considered null and void. In exceptional circumstances, the Council can grant derogation from the suspension obligation. The combined aggregate income of the undertakings is calculated based on the rules defined in article 10(2) of the Law and in the Resolution No 1S-98 (2016) of the Council, 23 August 2017.

It is worth noting that the previous regime (before amending the Resolution No 1S-98 (2016) of the Council) had substantially inflated the turnover of the undertaking acquiring control, and led to a situation where the acquirer of control had an obligation to notify the Competition Council about the intended concentration and to obtain its authorisation, while no such obligations exist under the EU law under the same scenario. Hence, even though the Lithuanian regulation of concentrations expressly recognised the EU principle of avoiding double calculation of turnover, this principle was not implemented in practice. One of the major differences was the calculation of turnover of undertakings involved in the concentration, which varied depending on the type of concentration carried out. According to the previous Lithuanian rules that were in force before the abovementioned amendment, in cases where the concentration is performed by virtue of a shift from joint control to sole control, the share of turnover of the undertaking whose control is acquired was being added to the turnover of the acquirer. Now the turnover of the acquirer of sole control and undertaking whose control is acquired is calculated entirely separately, regardless of whether the acquirer of control was a shareholder of the undertaking whose control is acquired prior to the concentration.

Other amendments to the Lithuanian merger regime that came into force with the Resolution No 1S-98 (2016) of the Council related to:

  • identifying undertakings taking part in the concentration where changes in the quality of joint control occur;
  • identifying undertakings taking part in the concentration where sole control is being replaced with joint control;
  • turnover structure of the undertakings taking part in the concentration; and
  • identifying undertakings taking part in the concentration where the concentration includes a joint venture not performing functions of an autonomous undertaking.

Thus, the aim to harmonise the Lithuanian regulatory framework with that of the EU has been successfully accomplished.

No legislation exists that deals specifically with foreign mergers. The Law explicitly states that it also applies to the activities of undertakings registered outside Lithuania if said activities restrict competition on the domestic market. However, the aggregate turnover of a foreign undertaking (registered outside Lithuania) participating in a concentration that may affect the Lithuanian market is assessed only on the income received from the sales of its products in Lithuania. Sector-specific merger control legislation applies to banks and other financial intermediaries, insurance companies, broadcasters and others. Such legislation requires the approval or consent of the relevant official supervisory body, which should be obtained prior to the implementation of concentration.

Examination of notifications

The Council adopted the Resolution on Approval of the Procedures for Submission and Examination of Notification of Concentration and Calculation of the Aggregate Turnover (the Guidelines), which sets out the regulation of concentration in greater detail.

A mandatory notification must be made after:

  • the submission of a proposal to conclude the agreement or acquire shares or assets;
  • an instruction to conclude the agreement;
  • conclusion of the agreement; or
  • the acquisition of the right of ownership or the right to dispose of certain assets.

A notification can be filed even when there is only a clear intention to conclude a contract or to make a public offer to buy stock. A standard form of notification should be lodged jointly by all parties taking part in a concentration. In the case of the acquisition of control, notification must be submitted by the acquiring party. The Law allows the Council four months in total to examine the submitted notification if it is in accordance with the established requirements. If commitments are offered, the examination period may be extended for an additional month at the request of the notifying parties. However, in practice, the Council clears the majority of mergers within a month of filing. If the Council does not render a decision within the allotted time, the undertakings have the right to implement their concentrations under the conditions defined in their notifications. The time limit commences the day after the receipt of a complete notification. The Council immediately notifies the parties in writing if the notification is incomplete; in which case the term for the examination begins to run once the Council is provided with a complete notification.

There are no fast-track procedures; moreover, pursuant to the Competition Law, the Council is not explicitly empowered to render advance rulings either. Nevertheless, in order to accelerate the review procedure, the parties are encouraged to enter into informal pre-merger consultations with the Council. The Council publishes all notifications received and decisions made in the website of the Competition Council and in the Official Gazette, specifying the nature of concentration and the parties concerned. All interested persons have the right to submit their opinions on the intended concentration during the two weeks following publication.

Persons that have submitted objections to the intended concentration in writing have the right to familiarise themselves with the materials related to the case (except for commercially sensitive or secret information), submit comments and submit a request to participate and be heard at the meeting of the Council. The Council, upon completing the examination of the notification, may:

  • allow the unconditional implementation of the concentration;
  • impose conditions upon the concentration to prevent the strengthening of dominance or restriction of competition; or
  • block the implementation of a concentration and impose an obligation to perform actions restoring the previous situation or remove the consequences of the concentration.

Final decisions made by the Council can be appealed within 20 days of the receipt of the decision. An appeal does not stop the implementation of a decision unless the court decides otherwise.

Case law and recent developments

In 2015, the Council cleared 49 concentrations; in 2012 it cleared 29; in 2013 it cleared 29; in 2014 it cleared 49; in 2015 it cleared 36; and in 2016 it cleared 37.

On 6 May 2016, the Council blocked a concentration between Eesti Meedia and AllePAL in advertisement for real estate and transport vehicles markets. The decision was appealed. Eesti Meedia has managed to prove that the Competition Council, in adopting the decision prohibiting Eesti Meedia from acquiring 100% of AllePAL shares, committed procedural violations. By partially upholding the company's appeal, the court ordered the Competition Council to carry out an additional investigation.

On 18 April 2017, the Supreme Administrative Court of Lithuania rejected the appeal of AMIC Lithuania (formerly Lukoil Baltija) and confirmed that the decision of the Competition Council dated 12 May 2014, and the €3,297,700 fine it imposed, were both legitimate and proportionate. On 12 May 2014, the Competition Council found that in 2003 Lukoil Baltija entered into a joint venture agreement with Baltic Petroleum, thus taking over 15 petrol stations. The Competition Council concluded that by doing so Lukoil Baltija violated the Law on Competition and implemented the concentration without notifying the Council. Lukoil Baltija appealed the decision to the Vilnius Regional Administrative Court, which confirmed that the company violated the Law on Competition and the Competition Council imposed a fine reasonably. As stated above, an appeal regarding this decision was submitted to the Supreme Administrative Court of Lithuania and was rejected afterwards.

Also, following a complaint from Lietuvos Energijos Gamyba, the Competition Council launched an investigation and found that Gazprom's refusal to negotiate with Lietuvos Energijos Gamyba for natural gas exchanges in 2013-2015 led to breaches of the conditions put in the merger control clearance. in 2004 the Competition Council allowed Gazprom to acquire shares of Lietuvos Dujos, provided that it does not hinder the company from purchasing natural gas from other suppliers. As a result, the largest fine in the history of Lithuania was imposed on Gazprom: €35,651,000.

Gazprom appealed the Council's decision to the Vilnius Regional Administrative Court, which dismissed the complaint. The company appealed the court's decision to the Supreme Administrative Court of Lithuania. On 22 December 2016, the court found that the findings of the Competition Council and the validity of the fine were legitimate and justified.

Enforcement

Competition Council

The main institution overlooking the implementation of competition law is the Competition Council (English version accessible on http://kt.gov.lt/en/index.php). The Council is composed of five members appointed for a term of six years. The chairman of the Council is appointed by the president of Lithuania. The Council cooperates with the European Commission and national competition authorities within the European Competition Network (ECN). Through the ECN, the information-exchange process is coordinated in cross-border mergers. In addition to the supervision of the Law, the Council performs supervision of the Law on Monitoring of State Aid to Undertakings and also carries out functions assigned by the Law on Prices and the Law on Advertising. The Council investigates competition restrictions both on its own initiative and on the basis of notifications and complaints. It is worth noting that the Supreme Administrative Court has ruled that the decision of the Council to initiate a competition infringement investigation is not a subject to appeal and is considered inadmissible (case no. A-S143-212/2011).

The Council lists a number of sectors on which it places a greater emphasis in order to ensure fair competition. Such sectors include energy, waste and pharmaceutical sectors as well as public procurement.

The Council has extensive investigatory powers. It may:

  • request information from undertakings under investigation;
  • search premises with or without notice (but only after obtaining a court order);
  • inspect and copy documents;
  • seize evidence;
  • obtain oral and written explanations;
  • require individuals to appear at the offices of the Council;
  • obtain information and documents from other economic entities (not subject to the investigation) and also from public and local authorities; and
  • enlist police assistance.

The Council's enforcement powers are backed with the Council's right to impose on undertakings a fine 1% of the gross annual income in the preceding business year for obstructing the Council's officials to exercise the powers of investigation mentioned above or for providing incomplete and/or false information. Also, the Council may impose a fine of up to €579 on natural persons responsible for equivalent procedural infringements.

According to the Law, the Council has rights to:

  • impose administrative fines up to 10% of the gross annual income;
  • prohibit concentrations;
  • prohibit anticompetitive practices;
  • apply interim measures; and
  • grant exemptions in respect of certain agreements and decisions.

According to article 172-18 of the Code of Administrative Law Offences, a penalty of up to €14,481 may be imposed on a natural person who fails to report a prospective concentration to the Council. In urgent cases where there is sufficient evidence of infringement of the Law, the Council shall have the right to apply interim measures necessary for the implementation of the final decision of the Council - that is, to obligate the undertakings to terminate an illegal activity or, with the court's permission, to obligate the undertakings to perform certain actions in order to prevent serious damage to other undertakings or public interests or irreparable consequences.

Appeals to the Council

An undertaking under investigation or other interested persons may appeal the actions of the authorised officials and other employees to the Council within 10 days of the actions being made. The Council must adopt a decision with 10 days. A complaint to the Vilnius Regional Administrative Court can be lodged if the decision of the Council is not satisfactory or if the decision was not issued at all within 10 days. However, such complaint shall not stop the ongoing investigation.

Appeals to the court

All decisions made by the Council can be appealed to the Vilnius Regional Administrative Court. The appeal shall be filed in writing no later than 20 days after the receipt of the resolution of the Competition Council.

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