The European, Middle Eastern and African Antitrust Review 2017

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 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.

Having 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.1 The financing of the Council was increased to about €1,274,300 in 2013, €1,350,000 in 2014 and €1,610,000 in 2015. The Council retained 48 competition enforcement staff in 2015. The Council, however, has recently proposed new financing schemes to the government, claiming direct financing from the businesses in order to boost the Council’s budget and secure independence from possible political pressures.

Some credit is due to the Council for receiving three stars in Global Competition Review’s Rating Enforcement 2015 survey.2

Anticompetitive agreements and concerted practices

Prohibition

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 which, 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 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 TFEU and must be interpreted in the light of the EU case law under article 101 TFEU, as recognised by the Council and the Lithuanian case law.

De minimis

The Law provides that the provisions of article 5 of the Law shall not be applicable to agreements between undertakings which, 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 agreements are considered to be incapable of restricting competition owing to their insignificance:

  • horizontal or mixed agreements between undertakings, the aggregate market share of which does not exceed 10 per cent of the respective market; and
  • vertical agreements between undertakings, the separate market share of which does not exceed 15 per cent 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 to be 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 the 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 the 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 that satisfy 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 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.

Whistleblowing

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.

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 the ones imposing the least burden of proof on the Council, such as horizontal price-fixing and market-sharing agreements. In fact, between 2000 and 21 May 2015, the Council investigated over 50 cases of restrictive agreements (under article 5 of the Law).

On 3 May 2016 the Supreme Administrative Court of Lithuania (the Supreme Court) partially annulled the Council’s decision that over 30 travel agencies used online booking system E-TURAS to concert practices when applying discounts to bookings and thus breached competition law. The Supreme Court dropped the charges against several travel agencies since there was not enough evidence to prove that the companies were aware of discount restrictions applied in the E-TURAS online booking system. This case is the first Lithuanian competition case that had a question referred to the Court of Justice of the EU (see Case C-74/14, Eturas and others).

On 18 December 2015 the Council adopted a decision and imposed a €1,384,300 fine on Forum Cinemas, the largest Lithuanian cinema operator. The Council has found that competing cinema operators in two largest cities in Lithuania had been fixing prices of movie tickets, size of discounts and other customers’ rewards. For filing leniency applications two of the caught undertakings were exempted from €99,200 and €138,800 fines. The decision has been appealed.

On 2 December 2015 the Council adopted a decision and imposed a €19,004,000 fine on a central heating provider, Vilniaus energija and a €3,529,000 fine on a biofuel supplier, First Opportunity. The decision has dealt with a question of an allegedly exclusive purchase agreement that allegedly had a foreclosure effect in the biofuel market. The decision has been appealed.

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 the 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 face 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 per cent 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 per cent 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 per cent (compared with the previous 40 per cent) 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 per cent (compared to a previous 70 per cent) or more of the relevant market, shall be considered to enjoy a dominant position.

The Council, in its Decision No. 52, 17 May 2000 (as amended by Decision No. 1S-15, 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 (eg, abuses of dominant position) are not the Council’s priority.

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

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 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 €14,481,0013 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 per cent 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 the article 10(2) of the Law and in Resolution No. 1S-82/2015 of the Council, 11 August 2015.

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.4

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 by 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 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 either:

  • 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 36 concentrations; in 2012, 29; in 2013, 29; in 2014, 49; and until 27 June 2016, 19 concentrations.

On 6 May 2016 the Council blocked a concentration between Eesti Meedia and AllePAL in advertisement for real estate and transport vehicles markets. Also, on 15 October 2015 the Council blocked a concentration between malt producers Viking Malt and Maltosa. These are the first prohibition decisions on notified concentrations issued by the Council.

Enforcement

Council

The main institution overlooking the implementation of competition law is the 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 the Republic 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 recently ruled that the decision of the Council to initiate a competition infringement investigation is not subject to appeal and is considered inadmissible (case No. A-S143-212/2011).

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 per cent 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 per cent 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 in a 10-day period. 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.

Notes

  1. The Competition Council’s annual report of 2015 in English, available http://kt.gov.lt/en/annual/2015_eng_short.pdf.
  2. Ratings are available in English at http://kt.gov.lt/veikla/nauda_gcr_2014.pdf.
  3. An increased combined aggregate turnover of €14,481,002 was introduced with the amendments of the Law on Competition of 1 May 2012, compared with the previous threshold of €8,688,601.
  4. Resolution No. 1S-82/2015 of the Council of the 11 August 2015.

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