Lietuvos geležinkeliai AB v European Commission.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2023:12
Docket NumberC-42/21
Celex Number62021CJ0042
Date12 January 2023
62021CJ0042

JUDGMENT OF THE COURT (Third Chamber)

12 January 2023 ( *1 )

(Appeal – Competition – Abuse of dominant position – Rail freight market – Decision finding an infringement of Article 102 TFEU – Access by third-party undertakings to infrastructure managed by Lithuania’s national railway company – Removal of a section of railway track – Concept of ‘abuse’ – Actual or likely exclusion of a competitor – Exercise by the General Court of its powers of unlimited jurisdiction – Reduction of the fine)

In Case C‑42/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 January 2021,

Lietuvos geležinkeliai AB, established in Vilnius (Lithuania), represented by K. Apel, W. Deselaers and P. Kirst, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

European Commission, represented by A. Cleenewerck de Crayencour, A. Dawes, H. Leupold and G. Meessen, acting as Agents,

defendant at first instance,

Orlen Lietuva AB, established in Mažeikiai (Lithuania), represented by C. Conte, avvocato, and C. Thomas, avocat,

intervener at first instance,

THE COURT (Third Chamber),

composed of K. Jürimäe (Rapporteur), President of the Chamber, M. Safjan, N. Piçarra, N. Jääskinen and M. Gavalec, Judges,

Advocate General: A. Rantos,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 27 April 2022,

after hearing the Opinion of the Advocate General at the sitting on 7 July 2022,

gives the following

Judgment

1

By its appeal, Lietuvos geležinkeliai AB (‘LG’) seeks to have set aside the judgment of the General Court of the European Union of 18 November 2020, Lietuvos geležinkeliai v Commission (T‑814/17, EU:T:2020:545; ‘the judgment under appeal’), by which the General Court, first, dismissed its action in so far as it sought to have set aside Commission Decision C(2017) 6544 final of 2 October 2017 relating to proceedings under Article 102 TFEU (Case AT.39813 – Baltic Rail) (‘the decision at issue’) and, second, set the amount of the fine imposed on LG at EUR 20068650.

Legal context

Regulation (EC) No 1/2003

2

Article 23(2)(a) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) and Article 23(3) of that regulation provide:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a)

they infringe Article [101] or Article [102 TFEU]; …

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

3

Article 31 of that regulation provides:

‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’

Directive 2001/14/EC

4

Recital 5 of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29) is worded as follows:

‘To ensure transparency and non-discriminatory access to rail infrastructure for all railway undertakings all the necessary information required to use access rights are to be published in a network statement.’

5

Article 5(1) of that directive provides:

‘Railway undertakings shall, on a non-discriminatory basis, be entitled to the minimum access package and track access to service facilities that are described in Annex II. The supply of services referred to in Annex II, point 2 shall be provided in a non-discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. If the services are not offered by one infrastructure manager, the provider of the “main infrastructure” shall use all reasonable endeavours to facilitate the provision of these services.’

6

Article 29(1) of that directive states:

‘In the event of disturbance to train movements caused by technical failure or accident the infrastructure manager must take all necessary steps to restore the normal situation. To that end he shall draw up a contingency plan listing the various public bodies to be informed in the event of serious incidents or serious disturbance to train movements.’

Background to the dispute and the decision at issue

7

The background to the dispute and the content of the decision at issue are set out in paragraphs 1 to 48 of the judgment under appeal. For the purposes of the present appeal, they can be summarised as follows.

Factual context

8

LG is the Lithuanian national railway company, with its headquarters in Vilnius (Lithuania). LG is a public undertaking, whose sole shareholder is the Lithuanian State. As a vertically integrated undertaking, LG both manages railway infrastructure, which remains the property of the Lithuanian State, and provides rail transport services, for freight and for passengers, in Lithuania.

9

Orlen Lietuva AB (‘Orlen’) is an undertaking established in Juodeikiai, in the Mažeikiai district (Lithuania), which specialises in refining crude oil and distributing refined oil products. Orlen is a wholly owned subsidiary of the Polish undertaking PKN Orlen SA.

10

Orlen’s activities include operating several facilities in Lithuania, including a large refinery (‘the Refinery’) located in Bugeniai, in the Mažeikiai district in the north-west of Lithuania, close to the border with Latvia. At the end of the 2000s, 90% of the output of refined oil products from that refinery were transported by rail, thereby making Orlen one of LG’s most significant customers.

11

At that time, Orlen produced approximately 8 million tonnes of refined oil products annually at the Refinery. Three quarters of that output was destined for export, mainly by sea. Accordingly, 4.5 to 5.5 million tonnes of refined oil products were transported through Lithuania by train to the seaport of Klaipėda (Lithuania).

12

The remainder of the exported output, approximately 1 to 1.5 million tonnes, was transported also by train to or through Latvia and was destined mainly for consumption on the internal Estonian and Latvian markets. Around 60% of that output transported by train to or through Latvia used the ‘Bugeniai-Mažeikiai-Rengė’ railway line, a route which goes from the Refinery, itself located close to the Mažeikiai rail junction, to the town of Rengė, in Latvia, 34 km of which were located in Lithuanian territory (‘the Short Route to Latvia’). The remainder of that output transported by train to or through Latvia used the ‘Bugeniai-Kužiai-Joniškis-Meitene’ railway line, a longer route, 152 km of which were located in Lithuanian territory.

13

In order to transport its products on the Short Route to Latvia, Orlen used LG’s services for the Lithuanian part of the route, namely from the Refinery to the Latvian border. LG then concluded a subcontract with Latvijas dzelzceļš, the Latvian national railway company (‘LDZ’) for transport over that Lithuanian part of the route. Since it did not have the necessary regulatory authorisation to carry out its activities independently in the territory of Lithuania, LDZ operated as a subcontractor of LG. After crossing the border, LDZ continued to transport Orlen’s products on Latvian territory.

14

Commercial relations between Orlen and LG concerning LG’s transport services on the Lithuanian rail network, including transport services on the Short Route to Latvia, were governed by an agreement signed in 1999 (‘the 1999 Agreement’).

15

Other than setting out the rates applied by LG for transport services, the 1999 Agreement included, in particular, a specific commitment by LG to transport Orlen’s cargo on the Short Route to Latvia for the duration of the agreement, namely until 2024.

16

In early 2008, a commercial dispute arose between LG and Orlen regarding the rates paid by Orlen for the transport of its oil products.

17

Because of that commercial dispute, Orlen explored the possibility of contracting directly with LDZ for rail transport services for its freight on the Short Route to Latvia, and switching its seaborne export business from Klaipėda, in Lithuania, to the seaports of Riga and Ventspils, in Latvia.

18

On 12 June 2008, a meeting was held between LG and Orlen, at which the plans to switch Orlen’s export business were discussed. In addition, since Orlen had made a unilateral decision in the spring of 2008 to apply a lower rate than that requested by LG and to withhold the payment of the difference, on 17 July 2008, LG initiated arbitration proceedings against Orlen.

19

On 28 July 2008, LG informed Orlen that the 1999 Agreement would be terminated as from 1 September 2008.

20

On 2 September 2008, following the identification of a defect in the rail track of several dozens of metres in length (‘the Deformation’), LG, mainly on the basis of safety grounds, suspended traffic on a 19-km-long section of the Short Route to Latvia between Mažeikiai and the border with Latvia (‘the Track’).

21

On 3 September 2008, LG set up an Inspection Commission composed of senior employees in its local subsidiary to investigate the reasons for the Deformation. On 5 September 2008, the Inspection Commission submitted an...

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