Lietuvos gelezinkeliai v Commission (Competition - Abuse of a dominant position - Rail freight market - Opinion) [2022] EUECJ C-42/21P

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(Appeal – Competition – Abuse of a dominant position – Rail freight market – Decision finding an infringement of Article 102 TFEU – Access to infrastructure managed by Lithuania’s national railway company – Removal of a section of railway track – Concept of ‘abuse’ – Bronner case-law – Indispensability of access – Anticompetitive intent – Exercise of unlimited jurisdiction – Reduction of the amount of the fine)

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 the annulment of Commission Decision C(2017) 6544 final of 2 October 2017 relating to a proceeding under Article 102 TFEU (Case AT.39813 – Baltic Rail) (‘the decision at issue’), and, second, in the exercise of its unlimited jurisdiction, reduced the amount of the fine imposed by that decision on LG, setting it at EUR 20 068 650.

2. In the present case, the decision at issue had established an abuse of a dominant position which consisted in the removal, by LG, Lithuania’s national railway undertaking and manager of its railway infrastructure, of a 19 km section of railway track, located in Lithuania and running up to the border with Latvia (‘the Track’). According to the Commission, the removal of the Track was liable to prevent a competing railway undertaking established in Latvia from entering the Lithuanian market for the provision of rail transport services for oil products or, at the very least render its entry more difficult.

3. The first three grounds of the present appeal are directed, essentially, against the Court’s assessment of the existence of an abuse of a dominant position. The fourth ground of appeal concerns the assessment of the amount of the fine.

4. The present appeal provides the Court of Justice with the opportunity to clarify its case-law on the criteria applicable to the finding of an abuse of a dominant position and, more specifically, to provide further clarification of the scope of the case-law established in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569; ‘the judgment in Bronner’) on the criteria for classification of a refusal of access or supply by an undertaking in a dominant position as an ‘abusive practice’. In addition, this appeal also allows useful findings to be identified concerning the exercise by the General Court of its unlimited jurisdiction.

5. 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.

6. LG is Lithuania’s national railway company, a public undertaking established in that Member State, 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 in Lithuania.

7. Orlen Lietuva AB (‘Orlen’) is an undertaking established in 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. 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. That refinery is the sole installation of its type in the three Baltic States. At the end of the 2000s, 90% of the refined oil products from that refinery was transported by rail, thereby making Orlen one of LG’s most important customers.

8. At that time, Orlen produced approximately eight million tonnes of refined oil products annually at the Refinery. Three quarters of that output was destined for export, mainly by sea to countries in Western Europe. Accordingly, 4.5 to 5.5 million tonnes of refined oil products were transported through Lithuania by train to the seaport of Klaipėda (Lithuania). 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 transport by train to or through Latvia used the ‘Bugeniai-Mažeikiai-Rengė’ railway line, a route which runs from the Refinery, located close to the Mažeikiai rail junction, to the town of Rengė (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 (‘the Long Route to Latvia’).

9. 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 Lithuanian border, LDZ continued to transport Orlen’s products on Latvian territory under various contractual arrangements.

10. 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’). As well as 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.

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

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

13. On 28 July 2008, LG informed Orlen that the 1999 Agreement would be terminated as from 1 September 2008. Orlen noted during the administrative procedure before the Commission that the termination of the 1999 Agreement from 1 September 2008 had been announced by LG three days after Orlen had formally requested a quotation from LDZ to replace LG’s services for transporting, from the Refinery using the Short Route to Latvia, approximately 4.5 to 5 million tonnes of refined oil products to the seaports located in the territory of Latvia. Orlen also suggested that LG could have been informed of the request for a quotation directly by LDZ.

14. On 2 September 2008, following the identification of a defect in the rail track of several dozens of metres in length (‘the Deformation’), LG, relying mainly on safety grounds, suspended traffic on the Track between Mažeikiai and the border with Latvia.

15. 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. The Inspection Commission submitted two reports, namely the investigation report of 5 September 2008 and the technical report of the same date.

16. According to the investigation report of 5 September 2008, the Deformation was caused by the physical deterioration of a number of elements of the Track structure. That report also confirmed that traffic should remain suspended ‘until all the restoration and repair works are completed’.

17. The findings contained in the investigation report of 5 September 2008 were confirmed by the technical report of the same date, which referred solely to the site of the Deformation and identified the cause of that deformation as various problems with the structure of the Track. That technical report concluded that the traffic accident, which occurred due to the deformation on the Track, should be qualified as a buckling which happened due to physically worn-out elements of the Track’s upper structure.

18. LDZ made an offer to Orlen for the transport of its oil products on 29 September 2008, following a meeting held on 22 September 2008. According to Orlen, that offer was ‘concrete and attractive’. From 3 October 2008, LG undertook the complete removal of the Track. By the end of October 2008, the Track had been removed in its entirety.

19. On 17 October 2008, Orlen sent a letter to LDZ confirming its intention to transport approximately 4.5 million tonnes of oil products from the Refinery to the Latvian seaports. A subsequent meeting was held on 20 February 2009 and further discussions took place during the spring of 2009.

20. In January 2009, a new general transport agreement was concluded between LG and Orlen for a 15 year period, namely until 1 January 2024 (‘the 2009 Agreement’). That agreement replaced an interim agreement which had been signed on 1 October 2008.

21. Negotiations between Orlen and LDZ continued until the end of June 2009, when LDZ made an application for a licence to operate on the Lithuanian part of the Short Route to Latvia.

22. On 10 November 2009, the court of arbitration found that the unilateral termination of the 1999 Agreement by LG was unlawful and that that agreement had to be regarded as having been in force until 1 October 2008, the date on which Orlen and LG had concluded the interim transport agreement mentioned in point 20 of this Opinion.

23. According to Orlen, discussions with LDZ were interrupted in mid-2010, when it finally concluded that LG did not intend to repair the Track in the short term. At that point, LDZ withdrew its application for a licence to operate on the Lithuanian part of the Short Route to Latvia.

24. On 14 July 2010, Orlen lodged a formal complaint with the Commission pursuant to Article 7 of Regulation (EC) No 1/2003. (2) In its complaint, Orlen, in essence, stated that, following a commercial dispute with LG, the latter had removed the Track, with the result that the Short Route to Latvia was unavailable and that it was obliged to use the only route available, that is to say, the Long Route to Latvia, in order to transport by train the part of its output intended for transport to or through Latvia.

25. After, first, sending a statement of objections to LG followed by a letter of facts, on which the parties submitted their comments, and, second, organising a hearing, on 2 October 2017 the Commission adopted the decision at issue.

26. In that decision, the Commission identified two relevant markets, namely, first, the upstream market for the management of railway infrastructure and, second, the downstream market for the provision of rail transport services for oil products (‘the relevant markets’).

27. The relevant geographic market for the management of railway services is regarded as the Lithuanian national market. As for the relevant geographic market for the rail transport of oil products, the Commission took the view that that was the market for the transport of rail freight from the Refinery to the three seaports of Klaipėda, Riga and Ventspils.

28. The Commission found that, under Lithuanian legislation, LG held a statutory monopoly on the upstream market for the management of railway infrastructure in Lithuania. In that regard, the national legislation provided that the public railway infrastructure was the property of the Lithuanian State and that its management was entrusted to LG.

29. The Commission also found that LG was essentially the only undertaking active on the downstream market for the provision of rail transport services for oil products, which thereby conferred on it a dominant position on that market.

30. The Commission found that LG had abused its dominant position as railway infrastructure manager in Lithuania by removing the Track, which was capable of having anticompetitive foreclosure effects on competition on the relevant market between the Refinery and the neighbouring seaports, by raising barriers to market entry without objective justification. In particular, the Commission found that, by removing the Track in its entirety, LG had had recourse to methods other than those which conditioned normal competition.

31. In that regard, the Commission stated, first, that LG was aware of Orlen’s plans to switch to the Latvian seaports using LDZ’s services; second, that LG had removed the Track in great haste, without securing the necessary funds and without taking any of the normal preparatory steps for its reconstruction; third, that the removal of the Track was contrary to standard practice in the sector; fourth, that LG was aware of the risk of losing all of Orlen’s product transport business if the Track were rebuilt; and, fifth, that LG had taken steps to convince the Lithuanian Government not to rebuild the Track.

32. The Commission observed that the Track allowed for the shortest and cheapest route from the Refinery to a Latvian seaport to be used. In the Commission’s view, because of its proximity to Latvia and to LDZ’s logistical base, that route also represented a very favourable option for LDZ to enter the Lithuanian market.

33. As regards the anticompetitive effects of LG’s conduct, the Commission took the view that the removal of the Track had been capable of preventing LDZ from entering the market or, at the very least, had made its market entry much more difficult, even though, in the Commission’s view, before the Track was removed, LDZ had a credible opportunity to transport Orlen’s oil products for seaborne export from the Refinery to the Latvian seaports via the Short Route to Latvia. The removal of the Track meant that all rail transport from the Refinery to a Latvian seaport had to take a much longer route on Lithuanian territory. After the removal of the Track, the only option for LDZ to compete with LG would have been to attempt to operate on the route to Klaipėda or on the Long Route to Latvia. LDZ would therefore have been required to carry out is activities far from its logistical base in Latvia and would have been reliant on its competitor LG for infrastructure management services. Accordingly, the Commission took the view that, from an ex ante perspective, LDZ was exposed to significant commercial risks, which it was less likely to bear.

34. The Commission also took the view that LG had provided no objective justification for removing the Track, since the explanations put forward were inconsistent, at times contradictory and were unconvincing.

35. The Commission imposed a fine of EUR 27 873 000 on LG and ordered it to bring to an end the infringement and to submit to it, within three months of notification of the decision at issue, a proposal for measures to that effect.

36. LG brought an action before the General Court seeking, primarily, the annulment of the decision at issue and, in the alternative, the reduction of the amount of the fine imposed.

37. In support of its application for annulment of the decision at issue, LG relied on five pleas in law. Those pleas alleged, in essence, first, manifest errors of assessment and of law in the application of Article 102 TFEU as regards the abusive nature of LG’s conduct; second, errors of assessment and of law in the application of Article 102 TFEU as regards the assessment of the practice in question; third, infringement of Article 296 TFEU and of Article 2 of Regulation No 1/2003 on the grounds of insufficient evidence and a failure to state reasons; fourth, only as regards the first part of that plea, errors in establishing the amount of the fine; and, fifth, errors relating to the imposition of a remedy.

38. In the context of its head of claim seeking the reduction of the amount of the fine, LG argued, by several complaints and the second part of the fourth plea in law, that that amount was disproportionate and challenged, in essence, first, the percentage of the value of sales used by the Commission as the gravity factor; second, the duration of the infringement; and, third, the decision to include an additional amount for deterrence in the basic amount.

39. By the judgment under appeal, the General Court rejected all the pleas put forward by LG, both in support of its application for annulment of the decision at issue and in support of its request to reduce the amount of the fine. The General Court did, however, in the exercise of its unlimited jurisdiction, set the amount of the fine at EUR 20 068 650.

IV. Procedure before the Court of Justice and forms of order sought by the parties

– set aside the judgment under appeal, in whole or in part, in so far as the judgment dismissed its action for annulment of the decision at issue;

– in the alternative, annul or further reduce the amount of the fine imposed on it, and

– order the Commission to pay the costs of the present proceedings and those of the proceedings at first instance.

42. LG raises four grounds in support of its appeal. By its first three grounds of appeal, it contests, in essence, the General Court’s assessment of the existence of an abuse of a dominant position. Its fourth ground of appeal concerns the General Court’s assessment of the fine that was imposed on it.

43. The Commission is of the view that those grounds of appeal must be dismissed. For its part, Orlen contends that the first three grounds of appeal should be dismissed; its observations do not concern the fourth ground of appeal.

44. Before beginning to examine each of those grounds of appeal, some preliminary observations of a procedural nature must be made.

45. First, it must be observed that, before stating the grounds raised in support of its appeal, LG provides a summary of the relevant facts in its view. Both the Commission and Orlen argue that that summary is misleading and inaccurate. In this regard, it is sufficient to state that, in the absence of claims of a distortion of facts and evidence by LG, that summary of the facts can have no relevance, since all questions of fact have been definitively settled by the General Court. There is therefore no need to rule on the misleading or inaccurate nature of that summary of the facts.

46. Second, both the Commission and Orlen refer in their written observations to a press release of 30 December 2019 issued by LG’s current CEO, announcing the end of the Track’s reconstruction and containing a critical assessment of the events concerned. It must be observed, as the Commission acknowledged at the hearing, that, since that document post-dates the facts of the dispute at issue, it has no bearing on the legality, scope or interpretation of the decision at issue or a fortiori, on the judgment under appeal.

47. By its first ground of appeal, LG alleges essentially that the General Court erred in law by failing, in paragraphs 90 to 99 of the judgment under appeal, to apply the criteria established in the judgment in Bronner concerning refusals of access to essential infrastructure in order to determine whether the removal of the Track can constitute an abusive practice for the purposes of Article 102 TFEU.

48. First of all, LG observes that, in paragraph 226 of the judgment under appeal, the General Court took the view, mirroring that taken by the Commission, that the removal of the Track constituted an abusive practice because it could involve market foreclosure effects for LDZ by making its access to the market more difficult and making that access subject to less advantageous conditions because LDZ found itself required to use the Long Route to Latvia in order to provide services to Orlen; that long route belongs to the same market as the short route. Accordingly, in LG’s view, the legal problem raised in the present case can be summarised by the question whether Article 102 TFEU imposed on LG the legal obligation to grant LDZ access to the Track.

49. It is, however, according to LG, apparent from the judgment in Bronner that an undertaking holding a dominant position is obliged to grant such access only if its refusal is likely to eliminate all competition on the market from the person seeking access, if that refusal cannot be objectively justified and if the access is in itself indispensable for carrying on that person’s business. Those three cumulative conditions are not met in the present case, inter alia because access to the Track is not ‘indispensable’ in order for LDZ to be able to compete with LG on the relevant market. However, in paragraphs 90 to 99 of the judgment under appeal, the General Court incorrectly held that that case-law was irrelevant in the present case. In so doing, it committed four errors of law.

50. First, contrary to the Court’s findings in paragraph 90 of the judgment under appeal, there is no rule in the case-law of the Court set out in the Bronner judgment (‘the Bronner criteria’) that those criteria apply only where there is a need to protect the incentive of an undertaking holding a dominant position to invest in the creation of essential facilities. Nor can the view be taken on the basis of the Opinion of Advocate General Jacobs, (3) cited by the Court, that such a rule exists.

51. Second, contrary to the General Court’s finding in paragraphs 91 and 92 of the judgment under appeal, there is no rule that the Bronner criteria do not apply where the regulatory framework in force already imposes (ex ante) a duty to supply. First of all, not applying that test in such a case entails national law, or secondary EU law, defining the scope of primary law, which is incompatible with the primacy of EU law and with the requirement that EU competition law is applied consistently throughout the territory of the European Union. Next, the ex post review under Article 102 TFEU and the ex ante legislation serve different objectives. Furthermore, it would be contrary to the principle of legal certainty to make undertakings in regulated sectors subject to different legal criteria under Article 102 TFEU. Finally, in the present case, when the Track was removed, LG was not subject to any obligation to grant LDZ access to the Track, since LDZ had neither applied for nor obtained a licence to operate in Lithuania. That fact means that the present case can be distinguished from that which gave rise to the judgment of 13 December 2018, Slovak Telekom v Commission (T‑851/14, EU:T:2018:929), by which the General Court held that the criteria laid down in the judgment in Bronner were not applicable when the regulatory framework already laid down a duty to supply.

52. Third, none of the provisions of the general regulatory framework mentioned by the General Court in paragraphs 96 and 97 of the judgment under appeal impose on an infrastructure manager, such as LG, the absolute legal obligation to grant access to every section of track in its network, in particular where alternative routes are available. Nor does any of those provisions impose an absolute obligation to repair a dilapidated railway track by adopting a solution that the infrastructure manager deems ineffective or economically unreasonable. Article 5 of Directive 2001/14/EC, (4) read in the light of recital 5 thereof, provides only for fair and non-discriminatory access to existing rail infrastructure that is in service. Similarly, Article 29(1) of that directive sets out merely a general obligation to ‘take all necessary steps to restore the normal situation’ in the event of a rail traffic accident.

53. Fourth, contrary to the General Court’s findings in paragraphs 91 and 93 of the judgment under appeal, no rule of law states that the Bronner criteria are inapplicable where the dominant position derives from a State monopoly. A consideration to that effect cannot be inferred from paragraph 23 of the judgment of 27 March 2012, Post Danmark, (C‑209/10, EU:C:2012:172), cited by the General Court, which makes merely a general comment that the fact that such a position has its origin in a former statutory monopoly must be taken into account. A case such as that at issue in these proceedings is not concerned with determining whether LG was obliged to provide access to a functional network previously built using public funds, but rather with ascertaining whether it was obliged, under Article 102 TFEU, to invest its own funds in the repair and replacement of a dilapidated installation in order to make access to the market less difficult and more advantageous for a particular downstream competitor. The balancing of the interests of those two companies lies at the heart of the criteria set out in the judgment in Bronner. Lastly, that same conclusion cannot be called into question by reference to a less demanding threshold set by the EU Courts in situations that do not entail such a balancing of interests. (5)

54. In order to make it easier to analyse this plea in law (see (3) below), the judgment in Bronner must first be placed within the regulatory landscape of Article 102 TFEU (see (a) below) before setting out the analysis of the General Court contested by LG (see (b) below).

1. The judgment in Bronner within the regulatory landscape of Article 102 TFEU

55. As a preliminary point, I note that Article 102 TFEU declares incompatible with the internal market and prohibits, in so far as trade between Member States may be affected, any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it. An undertaking holding a dominant position therefore has a special responsibility not to allow its behaviour to impair genuine, undistorted competition in the internal market. (6)

56. In accordance with the Court’s settled case-law, the concept of ‘abuse of a dominant position’, within the meaning of Article 102 TFEU, is based on an objective assessment of the conduct at issue. That concept relates to the conduct of a dominant undertaking which, on a market where the degree of competition is already weakened precisely because of the presence of the undertaking concerned, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition. (7)

57. Thus, in the case of exclusionary practices, the category into which the conduct at issue falls, it follows from the Court’s case-law that, for such practices to be abusive, they must, inter alia, be capable of restricting competition and, in particular, of producing the alleged exclusionary effects, and that assessment must be undertaken having regard to all the relevant facts surrounding that conduct. (8)

58. It is in the light of those general clarifications that it is necessary to examine the case-law on infrastructure classified as ‘essential facilities’, in the sense that they are indispensable for carrying on a business on a market where there is no actual or potential substitute, so that refusing access may lead to the elimination of all competition. (9) That case-law concerns, in essence, the circumstances in which a ‘refusal to supply’ (10) by an undertaking in a dominant position to competitors may constitute an abuse of a dominant position. That case-law, which is derived from the ‘essential facilities’ doctrine, (11) relates to situations in which the free exercise of an exclusive right may be limited in the interests of undistorted competition on the internal market. (12)

59. I note, first of all, that the EU Courts have traditionally taken the view that such a refusal to supply cannot in itself constitute an abuse of a dominant position. (13) Only in exceptional circumstances can such a refusal, through the exercise of the right to property, give rise to such an abuse. Whilst the initial judgments of the Court allowed the exceptional nature of the duty to supply to be outlined, (14) it was the judgment in Bronner that consolidated the relevant criteria in that regard.

60. As a reminder, the judgment in Bronner concerned whether the refusal by a press undertaking – which held a very large share of the daily newspaper market in a Member State and operated the only nationwide newspaper home-delivery scheme in that Member State – for appropriate remuneration, to grant access to that scheme to the publisher of a rival newspaper which, by reason of its small circulation, was unable either alone or in cooperation with other publishers to set up and operate its own home-delivery scheme in economically reasonable conditions, constitutes the abuse of a dominant position.

61. In answer to that question, and drawing on its earlier case-law, (15) the Court held, in paragraph 41 of the Bronner judgment, that, in order for the refusal by an undertaking in a dominant position to grant access to a service to constitute abuse within the meaning of Article 102 TFEU, it was necessary (i) that that refusal be likely to eliminate all competition in the market on the part of the person requesting the service, (ii) that that refusal be incapable of being objectively justified and (iii) that the service in itself be indispensable to carrying out that person’s business, inasmuch as there was, in respect of that person, no actual or potential substitute in existence for that home-delivery service (‘the Bronner criteria’).

62. With regard to the criterion of indispensability in particular, it is apparent from paragraphs 43 and 44 of the judgment in Bronner that, in order to determine whether a product or service is indispensable to allow a rival undertaking to carry on its business in a particular market, it is necessary to establish whether there are products or services constituting alternative solutions, even if they are less advantageous, and if there are technical, legal or economic obstacles capable of making it impossible, or at least unreasonably difficult, for any rival undertaking intending to operate on that market to create, potentially in cooperation with other operators, alternative products or services. According to paragraph 46 of that judgment, for the existence of economic obstacles to be accepted, it must at the very least be established that it is not economically viable to create those products or services to achieve an output on a scale comparable to that of the undertaking controlling the existing product or service.

63. As Advocate General Jacobs explains, in essence, in his Opinion in Bronner, (16) the choice of the indispensability criterion, and that concerning the likelihood of eliminating all competition, addresses two objectives.

64. First, from a legal perspective, the purpose of imposing conditions that are so demanding, from an evidentiary viewpoint, is to protect an undertaking’s right to choose its trading partners and to freely dispose of its property, generally recognised principles in the legal systems of the Member States, in some cases with constitutional status. The starting point for any analysis of a refusal to supply must be that an undertaking, whether or not it is dominant, must have the right to contract and dispose of its assets freely. Accordingly, any intervention, for the purposes of Article 102 TFEU, which consists in imposing on a dominant undertaking a (complete or partial) duty to supply to its competitors may clearly affect that right and should be carefully considered and justified. (17) As the Court explained in the judgment in Slovak Telekom, ‘a finding that a dominant undertaking abused its position due to a refusal to conclude a contract with a competitor has the consequence of forcing that undertaking to conclude a contract with that competitor. Such an obligation is especially detrimental to the freedom of contract and the right to property of the dominant undertaking, since an undertaking, even if dominant, remains, in principle, free to refuse to conclude contracts and to use the infrastructure it has developed for its own needs’. (18) It follows that any approach that involves a strict interpretation and application of that judgment would, in my eyes, disregard that underlying purpose. (19)

65. Second, from an economic perspective, the Bronner criteria seek to promote competition in the long term, in the interests of consumers, by allowing a company to reserve for its own use the facilities that it has developed. The purpose of the Bronner criteria is thus to ensure that the obligation imposed on an undertaking in a dominant position to provide access to its infrastructure does not, ultimately, hinder competition by reducing, from that undertaking’s perspective, the initial incentive to construct such infrastructure. There would be less incentive for a dominant undertaking to invest in infrastructure if its competitors were, upon request, able to share in the benefits of that infrastructure. In that regard, it must be borne in mind that the primary purpose of Article 102 TFEU is to prevent distortions of competition – and in particular to safeguard the interests of consumers – rather than to protect the position of competitors. (20) The duty to supply under Article 102 TFEU can therefore be relied upon only where the refusal to supply is capable of causing sufficiently serious damage to competition and, more specifically, to the interests of consumers. Thus, the Court has repeatedly held that, from the perspective of competition, although an undertaking being held liable for having abused its dominant position due to a refusal to conclude a contract with a competitor has the consequence, in the short term, of encouraging competition, by contrast, in the long term, it is generally favourable to the development of competition and in the interest of consumers to allow a company to reserve for its own use the facilities that it has developed for the needs of its business. The existence of such a duty to supply to competitors may in itself deter undertakings from investing and innovating and, therefore, harm consumers. More specifically, learning that a duty to supply may be imposed on them against their will may lead undertakings (whether dominant undertakings or those expecting to become so) not to invest or to invest less in the business in question. Similarly, competitors could be inclined to benefit easily and without cost (free riding) from the investments made by the dominant undertaking rather than making investments themselves. None of those consequences would, in the long term, be in the interest of consumers. Therefore, where a dominant undertaking refuses to give access to infrastructure that it has developed for the needs of its own business, the decision to oblige that undertaking to grant that access cannot be justified, at a competition policy level, unless the dominant undertaking has a genuinely tight grip on the market concerned. (21)

66. It is in the light of those considerations that it is necessary to examine LG’s arguments by which it criticises the General Court for having found that the Commission was correct to refrain from assessing whether the conduct at issue satisfied the Bronner criteria.

67. I note that the argument that the Commission should have applied the Bronner criteria in the decision at issue was also raised at first instance. (22) In that regard, the General Court rightly held that the Commission had refrained from assessing whether the conduct at issue met the Bronner criteria, and that it was sufficient, subject to any objective justification, to show that the conduct in question was such as to restrict competition and, in particular, to constitute an impediment to market entry. (23)

68. The General Court based this finding on the following reasoning. First, it recalled, in substance, that the purpose of the Bronner criteria is to ensure that a duty imposed on an undertaking in a dominant position to provide access to its infrastructure does not ultimately impede competition by reducing that undertaking’s initial incentive to build such infrastructure. (24) However, the General Court held that such a requirement to protect the incentive of the undertaking in a dominant position to invest in the creation of essential facilities was not present where the applicable regulatory framework already imposed a duty to supply on the dominant undertaking, or where the dominant position which the undertaking has acquired on the market derives from a former State monopoly. (25) That was the situation in the present case.

69. More specifically, it held, first, that the Bronner criteria apply only where there is no legal duty to provide access to a service or a product, since where such a duty exists, the necessary balancing of the economic incentives had previously been carried out by the legislature when such a duty was imposed. However, in its capacity as manager of Lithuania’s railway infrastructure, LG is responsible, under both EU and national law, inter alia, for granting access to the public railway infrastructure. (26)

70. Second, the requirement to protect the incentive to invest ceases to exist where, as in the present case, the dominant position derives from a statutory monopoly and the undertaking has not invested in the development of that infrastructure, which was built and developed using public funds. (27)

71. First of all, in order to examine whether the General Court’s analysis is well-founded, it is necessary to examine the merits of the premiss upon which all LG’s arguments are based, namely that the present case can be summarised by the question whether Article 102 TFEU imposed on LG the obligation to grant LDZ access to the Track. (28) In other words, it must be determined whether the factual circumstances here are those of a case in which the conduct at issue constitutes a ‘refusal to supply’, such that the Bronner criteria must be applied.

72. In that regard, I recall that the General Court confirmed the classification of the alleged conduct by the decision at issue (see paragraphs 84 of the judgment under appeal) and found that that conduct consisted in the removal of the Track as such, irrespective of the suspension of traffic on that track on 2 September 2008 and the failure to repair it. In so doing, the General Court implicitly treated the removal of the Track as an independent and distinct form of abuse and not as a ‘refusal of access’. (29) From that perspective, it rightly recalled, in paragraph 85 of the judgment under appeal, that the list of abusive practices covered by Article 102 TFEU is not exhaustive, with the result that the list of abusive practices contained in that provision does not exhaust the methods of abusing a dominant position which are prohibited by EU law.

73. That classification of the conduct at issue seems fair to me. First, LDZ, LG’s potential competitor on the relevant market, could technically, even after the removal of the Track, access Lithuania’s rail network by other routes. Second, it is apparent from the background to the dispute that LG never refused access to the services of providing rail transport services for oil products for the relevant geographic market. (30)

74. In the absence of an explicit refusal of access, the question arises whether that conduct raises an issue common to that of the ‘refusal of access’ cases in so far as, with the removal of the Track, all rail transport from the Refinery to a Latvian seaport had to take a much longer route on Lithuanian territory, thus exposing LDZ to commercial risks that it was less likely to take. From that point of view, the conduct at issue could be perceived as an implicit refusal of access (constructive refusal to supply), that is conduct ultimately having de facto the same result as an (explicit) refusal of access.

75. If the conduct at issue does raise an issue common to that of the ‘refusal of access’ cases, in particular because it may have the same exclusionary effects, it is necessary to ascertain whether the constituent elements of the refusal within the meaning intended by the judgment in Bronner are likewise present, such that that conduct must be analysed from the perspective of that judgment. It is therefore necessary to assess whether such conduct, which does not technically constitute a ‘refusal of access’, must nevertheless satisfy the conditions laid down in the judgment in Bronner in order to be classified as abusive, or whether, to be so classified, it is sufficient, as the General Court stated in paragraph 98 of the judgment under appeal, that the conduct at issue was capable of having anticompetitive effects.

76. In that regard, it should be observed, first of all, that not every issue of access, whether partial or total, means necessarily that the conditions set out in the judgment in Bronner relating to refusal of access must be applied. The Court has found in Slovak Telekom that, where a dominant undertaking gives access to its infrastructure but makes that access, the provision of services or the sale of products subject to unfair conditions, the Bronner conditions do not apply. It is true that where access to such an infrastructure is indispensable in order to allow competitors of the dominant undertaking to operate profitably in a downstream market, this increases the likelihood that unfair practices on that market will have at least potentially anticompetitive effects and will constitute abuse within the meaning of Article 102 TFEU. Nevertheless, as regards practices other than a refusal of access, the absence of such indispensability is not in itself decisive for the purposes of the examination of potentially abusive practices on the part of a dominant undertaking. (31) As the Court has held, it cannot be inferred from the judgment in Bronner that the conditions required in order to establish the existence of an abusive refusal to supply must necessarily be applied when assessing the abusive nature of conduct that consists in making the provision of services or the sale of products subject to disadvantageous terms or terms which might be of no interest to the purchaser, since such conduct may, in itself, constitute an independent form of abuse distinct from the refusal to supply. (32)

78. First, based on the description of the conduct at issue, it must be stated that the removal of the Track constituted an independent destruction of infrastructure, preventing use not only by competitors, such as LDZ, but also by LG itself. Therefore, the present case is markedly different from cases of refusal of access in which the dominant undertaking does not suffer any loss of infrastructure. On the contrary, it would appear, from the elements in the case file, that that behaviour was motivated only by the willingness to harm competitors. Accordingly, such behaviour cannot constitute competition on the merits and, to my mind, presents similarities to the known examples of ‘naked restrictions’ in competition law. (33)

79. Second, as Orlen rightly points out, the key feature of the behaviour at issue is that it follows the logic of ‘predation’. Indeed, as in the context of predatory pricing, LG elected to destroy, and therefore to sacrifice, a valuable asset (the Track), thus denying itself the use of that asset and ensuring that it could no longer earn income from it, whilst preventing rival third parties from using it as well. In addition, like predatory pricing, (34) the only rational explanation for LG’s action was the monopoly rewards that that undertaking would derive from excluding LDZ from the market. It follows that the present case does not follow the same logic as the refusal of access cases. Indeed, in the present case, the exclusionary anticompetitive effects vis-à-vis rival operators stem from the logic of short-term loss with a view to benefits in the medium-to-long term, whereas cases of refusal of access are necessarily characterised by the logic of immediate benefit.

80. Third, I observe that the Bonner criteria apply, as was confirmed recently in paragraph 47 of the judgment in Slovak Telekom, inasmuch as ‘it is generally favourable to the development of competition and in the interests of consumers to allow a company to reserve for its own use the facilities that it has developed for the needs of its business’. (35) It follows that the very logic behind the Bronner criteria is based on maintaining infrastructure. However, in the present case, the voluntary destruction of infrastructure without its replacement cannot, by its very nature, tally with the inherent logic of those criteria, since LG derives no benefit from the investment that it made in its own infrastructure.

81. Fourth, I also note that, in the present case, there was no need, in order for it to bring to an end the abuse at issue, that LG dispose of an asset or conclude contracts with persons with whom it had opted not to do so. I would recall that the Commission, by the decision at issue, imposed a fine on LG and ordered it to bring the infringement to an end. It did not, however, require LG to grant LDZ access on the relevant market. (36) Accordingly, the finding of abuse does not have the consequence of requiring that undertaking to conclude a contract with that competitor, which would be, within the meaning of Slovak Telekom judgment, ‘especially detrimental to freedom of contract and the right to property’. (37)

82. It follows that the removal of the Track, despite the fact that it raises an issue common to refusal that has a comparable exclusionary effect, cannot be analysed applying the Bronner criteria.

83. Therefore, since the first ground of the appeal is based exclusively on a legally erroneous premiss, namely that the behaviour at issue constitutes a ‘refusal to supply’ within the meaning of the Bronner judgment, I propose that it be dismissed in its entirety, without it being necessary to examine all LG’s complaints, which are necessarily ineffective.

84. In the second place, and for the sake of completeness, the finding that the Bronner criteria are inapplicable in the present case is also supported by the objectives of those criteria.

85. On the one hand, with respect to the protection of the property of a dominant undertaking, it follows even from the wording of the Bronner judgment, as well as from prior case-law, that the criteria set out therein apply to infrastructure of which the dominant undertaking is the owner and which, in principle, result from its own investment. (38) However, in the present case and as was pointed out by the General Court in paragraphs 94 and 95 of the judgment under appeal, it is common case (i) that the infrastructure at issue is not a facility owned by LG (which does not enjoy the free exercise of the exclusive right of property ownership being merely the manager of public railway infrastructure that belongs to the Lithuanian state) and (ii) that LC did not make any investment in the Lithuanian railway infrastructure in so far as that infrastructure was constructed and developed through public funding. Consequently, there are no grounds that would justify the application of the higher probative standards of the Bronner criteria which aim to protect the right of property ownership. Similarly, there is no plausible harm to the freedom to contract from the point in time when LG acted as manager of the public railway infrastructure which would imply, in particular, an obligation to grant access to the public railway infrastructure.

86. On the other hand, from the economic perspective, and as was pointed out by the General Court in paragraphs 91 and 92 of the judgment under appeal, the protection of the incentive for a dominant undertaking to invest in essential facilities is affected greatly where the applicable regulatory framework already imposes a duty to supply. More specifically, the legislation at issue presumes that the incentive for the dominant undertaking to invest in the creation of products and services is safeguarded. (39) In that way, the applicable regulatory framework cannot restrict the application of Article 102 TFUE (40) and is a relevant factor in the consideration of the abusive nature of the conduct of a dominant undertaking because it is indicative of the competitive conditions in which that undertaking operates. (41) Regardless of the objectives pursued by each, the ex post competition law review completes the ex ante legislative framework. (42)

87. In light of the foregoing considerations and which were not all reflected in the judgment under appeal, I consider that the General Court held correctly, at paragraphs 90 to 99 of the judgment under appeal, that the Bronner criteria were inapplicable to the present case. In those circumstances, the first ground of appeal must be set aside as unfounded.

88. By its second ground of appeal, LG claims that the General Court erred in law by classifying the Track’s removal as an ‘abusive practice’ for the purposes of Article 102 TFEU. More specifically, it alleges that, in paragraphs 168, 170, 177, 197, 204 and 231 of the judgment under appeal, the General Court did not accept the Commission’s finding that the Track’s removal was abusive on ‘just’ two cumulative factors, namely that that removal was carried out ‘in great haste’ (43) and ‘without [LG] having first secured the necessary funds’. (44) However, neither of those factors can support such a classification, especially since, as the General Court acknowledged in paragraph 168 of that judgment, the removal of the Track was ‘the only relevant and economically reasonable option’.

89. In so far as Orlen pleads that this ground of appeal is ineffective, I would point out that the effective nature of a ground of appeal refers to its capacity, in the event that it is well founded, to lead to the form of order sought by the applicant by that ground of appeal. (45)

90. Here, by its second ground of appeal, LG challenges the classification of the Track’s removal as an ‘abusive practice’ for the purposes of Article 102 TFEU, and calls into question two factors upon which the Commission and, subsequently, the General Court exclusively relied.

91. However, as is clear in particular from paragraphs 42 and 194 of the judgment under appeal, the Commission, in the decision at issue, took the view that, by removing the entire Track, LG had had recourse to methods other than those governing normal competition. That conclusion was reached on the basis of a series of points of fact and of law (those points are grouped into five categories and listed in point 31 of this Opinion). (46)

92. It follows that, contrary to LG’s claim, the allegedly abusive nature of the conduct is not the result of ‘just two cumulative factors identified by the General Court, namely a removal carried out “in great haste” and “without having first secured the necessary funds”’. Those factors are merely part of a series of points of fact to which the Commission, and subsequently the General Court, refers in order to classify the conduct at issue as abusive. That practice is consistent with the Court’s settled case-law that the assessment of the abusive nature of conduct must be undertaken having regard to all the relevant facts. (47)

93. The question is thus raised whether the second ground of appeal may be regarded as effective in so far as LG contests only some of the factors taken into account by the Commission in classifying the conduct as abusive.

94. In that regard, it should be noted that, in paragraphs 168, 170, 204 and 231 of the judgment under appeal, to which this ground of appeal refers, the General Court simply rejected the challenges raised by LG vis-à-vis certain factual assessments that do not form part of the reasoning adopted in the decision at issue. (48) However, it cannot be inferred from that mere finding that this ground of appeal is incapable of invalidating the conclusion that the conduct at issue was abusive.

95. Since those two factors form part of a series of factors taken into account by the Commission (in recitals 184 to 193 of the decision at issue) and confirmed by the General Court (in paragraphs 164 to 177 of the judgment under appeal), and given that there is no weighting or hierarchy between the significance attributed to each of those factors, I take the view that it cannot be concluded with certainty at the outset that, if the removal of the Track had not been undertaken hastily or had been undertaken after LG secured the necessary funds, the Commission would nevertheless have classified the conduct as abusive.

96. It is therefore my view that this ground of appeal should be regarded as effective.

97. The Commission and Orlen argue, in essence, that, in so far as the purpose of the second ground of appeal is to challenge assessments of facts without point to an error of law, that ground of appeal should be dismissed as being inadmissible.

98. In that regard, it should be recalled that, in accordance with the Court’s settled case-law, where the General Court has determined or assessed the facts, the Court of Justice has sole jurisdiction under Article 256 TFEU to review their legal characterisation and the legal conclusions which were drawn from them. The assessment of the facts is not therefore, other than in cases where the evidence produced before the General Court has been distorted, a point of law which is subject, as such, to review by the Court of Justice. (49)

99. In the context of the second ground of appeal, LG does not allege a distortion of the evidence examined by the General Court demonstrating that the Track was removed ‘in great haste’ or without having ‘first secured the necessary funds’, and it is not for the Court of Justice to review the probative value of that evidence. LG claims only that the General Court was wrong to find that the Commission had been entitled to rely on those two factors to conclude that there was an abusive practice. Thus, prima facie, it appears that LG is not asking the Court of Justice to reassess the facts but rather to review their legal characterisation. However, a more in-depth analysis of LG’s arguments reveals that LG is, in reality, seeking a fresh assessment by the Court of the facts as established by the General Court. (50)

100. In the first place, with regard to LG’s arguments regarding its haste in deciding to remove the Track, contrary to LG’s claim, the General Court did not ‘acknowledge’, in paragraph 168 of the judgment under appeal, that the removal of the Track was ‘the only relevant and economically reasonable option’. In that paragraph, the General Court simply raised a hypothetical argument – which is quite clear from the opening words ‘even if, as the applicant contends, Option 2 were the only relevant and economically reasonable option’ (51) – with a view to confirming that, even in the context of Option 2, there would have been no need to remove the Track because of concerns about the safety of rail traffic. (52) It therefore appears to me that LG is seeking to have a factual assessment made by the General Court characterised afresh, in order that the Court of Justice find that the removal of the Track was the only relevant and economically reasonable option.

101. It should also be recalled that, contrary to LG’s assertion, it is not apparent from the judgment under appeal that ‘it may therefore be considered established, for the purposes of this appeal, that LG had to remove the entire Track sooner or later’. That assertion, upon which LG’s argument is based, is contradicted by the factual assessments made in paragraphs 164 to 166 of the judgment under appeal. (53) It cannot therefore be established, as LG alleges, that the abuse of which it stands accused ‘therefore lies rather in the timing of its removal of the Track’. The implicit purpose of that argument is therefore to obtain a re-classification of the facts, so as to be able to challenge the legal characterisation.

102. In the second place, as regards the failure to secure funds, it appears to me that LG’s claim that it ‘expected to receive those funds to rebuild the Track’, upon which its second argument is based, is clearly contradicted by the factual assessments made by the General Court, in particular in paragraphs 151, 173, 175, 176, 177 and 181 of the judgment under appeal. Accordingly, since LG does not point to a distortion of the facts, those assessments must be regarded as definitively established for the purposes of this appeal.

103. In the light of the foregoing, I propose that the second ground of appeal be dismissed as inadmissible or, at the very least, as manifestly unfounded.

104. By its third ground of appeal, LG alleges that the General Court erred in law by classifying the removal of the Track as a practice likely to produce, from 3 October 2008, anti-competitive effects even though rail traffic had already been suspended on that route from 2 September 2008. This ground of appeal, which is divided into four parts, (54) seeks to challenge, in essence, paragraphs 219 to 233 of the judgment under appeal, in which the General Court rejected LG’s arguments that the Commission had been wrong to find that the removal of the Track, as such, irrespective of the earlier suspension of traffic on that track, was capable of having anticompetitive effects on the market.

105. In that regard, I observe that, in paragraph 226 of the judgment under appeal, the General Court held that, despite the earlier suspension of traffic, the removal of the Track by LG ‘could involve market foreclosure effects consisting of making access to that market more difficult, since access would be subject to less advantageous conditions’. More specifically, in response to that same argument raised by LG at first instance, the General Court held, in paragraph 227 of the judgment under appeal, that the LG is incorrect in claiming that the competitive situation in the counterfactual scenario would not have been any different from that in the status quo. In the General Court’s view, that situation could have been different, since the removal of the Track, in great haste and without securing the funds necessary for its reconstruction, first, aggravated the situation existing at the time of the suspension of traffic, transforming that suspension (which was temporary in nature) into a situation in which it was absolutely impossible to use the Track, and, second, made the repair of the Track more difficult because it rendered impossible the option of targeted initial repairs followed by a full reconstruction of the entire Track within five years (‘Option 1’) and prevented the implementation in full of the option of immediate and complete reconstruction of the Track (‘Option 2’).

106. However, none of the arguments put forward by LG in the third ground of appeal appears to me to be capable of establishing that that assessment by the General Court is vitiated by errors of law or by contradictions.

107. By the first part of the third ground of appeal, LG claims, in its first complaint, that the approach taken by the General Court is based on a false premiss, which is revealed in paragraphs 223, 225 and 227 of the judgment under appeal. According to LG, Option 1 is a relevant and economically reasonable alternative to Option 2. In addition, the General Court did not reject LG’s position, as summarised in paragraphs 150, 151 and 167 of that judgment, that Option 2 was the only relevant and economically reasonable option, but rather simply left that question unanswered in paragraph 168 of the judgment. LG infers from this that paragraphs 223, 225 and 227 of the judgment under appeal are contradictory and incompatible with the choice of Option 2. In a second complaint, LG argues that paragraphs 223, 225 and 227 of the judgment under appeal are based on the incorrect assumption that the Track could have been returned to service ‘in the short term’ by virtue of the initial repairs foreseen under Option 1. That is however not the case, since such repairs would have required LG to follow the same procedure, inter alia for the purposes of securing the funds from the Republic of Lithuania or from the European Union, as for Option 2. The General Court failed to take that fact into account and thus contradicted itself.

108. With regard to the first complaint, I note, first, that, in paragraphs 223, 225 and 227 of the judgment under appeal, the General Court does not criticise LG for having chosen Option 2, but simply observes, in paragraph 225 of that judgment, that ‘the removal of the Track made it de facto impossible to proceed with Option 1, since the first stage of that option, namely local repairs to part of the Track which did not allow safe train traffic, could no longer be envisaged’. As the General Court explained in paragraph 229 of the judgment under appeal, ‘the Commission does not criticise [LG] for having chosen Option 2 instead of Option 1, but criticises rather the manner in which Option 2 was implemented’. Second, in paragraph 168 of that judgment, the General Court merely stated why LG’s claim that Option 2 was the only relevant and economically reasonable option was incapable of establishing that the Track had to be removed at great haste. Accordingly, since there is no contradiction or error of assessment, to the effect claimed by LG, I propose that this first complaint be rejected as unfounded.

109. As for the second complaint, namely that the General Court failed to take into account the fact that implementing Option 1 would have necessitated the same procedure to secure funds as for Option 2, I take the view that, by that argument, which repeats the line of argument put forward at first instance, (55) LG is essentially seeking to challenge findings of fact, which does not constitute a point of law that is subject, as such, to review by the Court of Justice. (56) Furthermore, in the present case, LG does not allege any distortion of facts or state how a fresh assessment of the facts should appear obvious. Lastly, in any case, even in the event of a failure on the General Court’s part, that failure would not establish a contradiction with traffic being restored in the short term, since the General Court held, in paragraph 176 of the judgment under appeal, that LG could have secured funds from the European Union for the reconstruction of the Track if it had initiated, in good time, the administrative procedure necessary for that purpose.

110. I therefore propose that the first part of this ground of appeal be rejected as partly unfounded and partly inadmissible.

111. By the second part of the third ground of appeal, LG claims that the General Court contradicted itself by stating, in paragraph 225 of the judgment under appeal, that implementing Option 1 necessitated ‘local repairs to parts of the Track which did not allow safe train traffic’, whereas, in paragraph 164 of that judgment, it acknowledged the need for repairs ‘along the entire length of the Track’.

112. I find it difficult to see a contradiction between those two paragraphs. In paragraph 164 of the judgment under appeal, the General Court merely set out the contents of LG’s internal letter, (57) according to which, inter alia, the repair of the Track under Option 1 ‘had to involve the complete and immediate removal of the Track’ despite the fact that ‘the Track would have to be fully repaired within five years’, whereas, in paragraph 225 of that judgment, the General Court simply observed that the first stage of implementing Option 1 involved carrying out ‘local repairs to parts of the Track which did not allow safe train traffic’.

113. I therefore propose that the second part of this ground of appeal be rejected as unfounded.

114. By the third part of its third ground of appeal, LG states that, contrary to what is suggested by the General Court in paragraphs 221 to 223 of the judgment under appeal, LG was not subject to an absolute legal obligation to restore the normal situation on the track by carrying out the initial repairs foreseen under Option 1 and could legitimately choose Option 2. LG claims that the latter option allowed it to restore the normal situation, whilst clarifying that the timing of the Track’s removal, an inevitable stage of Option 2 implementation, is irrelevant.

115. In that regard, I am keen to point out, first of all, as has been stated in the context of the first part of this ground of appeal, that the argument is based on the flawed premiss that the General Court held that LG was subject, under the applicable EU and national legislation, to an absolute legal obligation to restore the normal situation by making the initial repairs foreseen under Option 1 and that it could not choose Option 2.

116. Next, I would observe that the assessments concerning the applicable regulatory framework, and in particular the obligations imposed by that framework on railway infrastructure managers, were relied on in paragraph 222 of the judgment under appeal, specifically with a view to finding, first, that the infrastructure manager is obliged, under the applicable regulatory framework, not only to guarantee safe traffic but also to ‘minimise disturbance on the rail network and to restore the normal situation following a disturbance to train movements’ and, second, that the ‘removal of the entire Track could not be justified solely on safety grounds, since safety had already been ensured by the suspension of traffic on 2 September 2008’. In addition, in paragraph 223 of that judgment, the General Court considered that the fact that LG held a dominant position on the relevant market, it had a responsibility under Article 102 TFEU to ‘[avoid] eliminating all prospect of the Track being returned to service in the short term by means of a staggered reconstruction, by complying with its duty to minimise disturbance on the rail network by restoring the normal situation following a disturbance’.

117. It follows from the findings contained in those paragraphs of the judgment under appeal that the General Court did not conclude that LG had an absolute legal obligation to undertake the initial repairs foreseen under Option 1, and that, in any event, the findings relating to the obligations of railway infrastructure managers were based primarily on LG’s special responsibility under Article 102 TFEU.

118. I therefore propose that the third part of this ground of appeal be rejected as unfounded.

119. By the fourth part of the third ground of appeal, LG claims that the finding, contained in paragraph 225 of the judgment under appeal, of a foreclosure effect due to the fact that, when Orlen came to the view that LG did not intend to repair the Track in the short term, LDZ withdrew its application for a licence to operate on the Lithuanian part of the Short Route to Latvia is contradictory in the light of the findings made in paragraphs 24 and 25 of that judgment, by which the General Court established that LDZ had made an application for such a licence ‘[at] the end of June 2009’, that is to say, after the removal of the Track. In LG’s view, the Track’s removal therefore had no bearing on the decision to withdraw the licence application, which can, in reality, be explained by the fact that, in mid-2010, Orlen had concluded that LG did not intend to repair the Track in the short term, as stated in paragraph 26 of the judgment under appeal.

120. In that regard, I would observe that it could actually be argued, on the basis of a reading of paragraphs 24, 25 and 225 of the judgment under appeal, that there is no causal link between the removal of the Track and LDZ’s withdrawal of the licence application.

121. However, the reference to the withdrawal of LDZ’s application made in paragraph 225 of the judgment under appeal must be understood in its very specific context. The General Court referred to the withdrawal of LDZ’s application in order to illustrate the finding made in the preceding sentence, namely that ‘the change from a temporary to a permanent situation is capable of having an effect on the competitive situation, in that potential competitors will behave differently depending on whether they believe that a return to “normal” may occur in the short term, in the medium term or never’. The fact that, as it was clear that the Track would not be repaired in the short term, LDZ withdrew its application to operate in Lithuania serves to illustrate that general conclusion on the conduct of competitors, regardless of the date on which the withdrawal in question occurred. I therefore propose that the fourth part of this ground of appeal be rejected as unfounded.

122. Even if the Court were to find there to be an internal contradiction in the judgment under appeal vitiating the statement of reasons contained in paragraph 225 thereof, that contradiction could not, in my view, invalidate the conclusion at which the General Court ultimately arrived, namely that ‘the removal of the Track in great haste and without first obtaining the necessary funds for its reconstruction increased the risk, which materialised in the present case, that safe rail traffic would not be restored on the short route until more than 10 years later’. In that regard, the fourth part of the third ground of appeal is ineffective.

123. In the light of the foregoing, I propose that the fourth part of the third ground of appeal be rejected and, thus, the third ground of appeal dismissed in its entirety.

124. By its fourth ground of appeal, which has two parts, LG alleges that the General Court made errors of law and of assessment in its examination of the legality of the fine imposed on LG.

125. By the first part, LG asserts that the judgment under appeal is vitiated by a contradiction in its grounds in so far as the General Court took the view, in particular in paragraph 196 of the judgment under appeal, that ‘the Commission did not in any way rely on LG’s intent, anticompetitive strategy or bad faith to justify its finding that competition law had been infringed’, (58) whereas, in the subsequent parts of the judgment in which the General Court addresses the pleas in law relating to the setting of the amount of the fine, it referred to LG’s alleged anticompetitive intent. Since there is nothing to indicate that the General Court intended to amend the findings made in paragraph 196 of the judgment under appeal, that contradiction points to an error of assessment in two respects. First, the General Court made an error of assessment in paragraph 339 of the judgment under appeal where, when analysing the question of the novelty of the legal theory on which the decision at issue is based, it described the conduct at issue as ‘seeking to keep competitors away from the market’. Second, the General Court wrongly repeated that description of the conduct at issue when analysing the allegedly disproportionate nature of the gravity factor adopted by the Commission, specifically in paragraph 368 of the judgment under appeal (which refers to the aforementioned paragraph 339) and in paragraph 374 of that judgment, which refers to ‘the removal of the Track, with the aim of keeping competitors far from the market on less advantageous conditions’. In addition, LG contends that such errors of assessment by the General Court had an impact both on the assessment of the need to impose a fine and, as the case may be, on the actual amount of that fine.

126. By the second part, LG argues, without substantiating its claims, that the alleged novelty of the conduct at issue and the lack of anticompetitive intent could have influenced the General Court’s analysis in the exercise of its unlimited jurisdiction. At the hearing, LG made two clarifications in this regard. First, LG claimed that the lack of anticompetitive intent was relevant in so far as, in paragraphs 398 and 404 of the judgment under appeal, the General Court explained that, in the exercise of its unlimited jurisdiction, the amount of the fine was set, inter alia, on the basis of ‘a fair assessment of the gravity of the infringement’, with anticompetitive intent being a key element of the assessment of the gravity of the infringement. Second, LG claimed that the General Court exceeded its unlimited jurisdiction in so far as, by assuming anticompetitive intent as a factor in the assessment of gravity, it altered the constituent elements of the infringement lawfully determined by the Commission.

127. The Commission considers that the fourth ground of appeal must be dismissed as ineffective (59) in so far as the General Court, first, exercised its unlimited jurisdiction and substituted its own assessment of the fine for that of the Commission and, second, did not refer to any anticompetitive intent on LG’s part in the context of that assessment.

128. Here, by its fourth ground of appeal, LG seeks a further reduction in the amount of the fine imposed on it, relying on an error of assessment by the General Court when addressing the pleas in law concerning the setting of the amount of the fine. The fact that the General Court exercised its unlimited jurisdiction and substituted its own assessment of the amount of the fine for that of the Commission cannot render this ground of appeal ineffective. That fact does not rule out, in itself, first, that, in the event that it is well founded, this fourth ground of appeal could lead to a subsequent reduction in the amount of the fine initially imposed by the Commission, since an error of assessment related to intent could indeed affect certain parameters of the fine, and in particular the level of gravity, and, second, that such a reduction would, in turn, have led the General Court to consider that it was no longer appropriate to exercise its unlimited jurisdiction. That possibility is all the more plausible in so far as the General Court, first, appears to have undertaken, on its own initiative and exercising its unlimited jurisdiction, a reassessment of the amount of the fine that led it to set that fine at a significantly lower amount than that set by the Commission and, second, did not set out the reasons why it amended the final amount of the fine imposed, even though it had dismissed all the pleas in law raised in support of the claims for annulment of the decision at issue and all the complaints raised in support of LG’s request that the amount of the fine be reduced.

129. It follows from the foregoing that this ground of appeal cannot be dismissed as ineffective straightaway. It is therefore necessary to consider its merits.

130. As a preliminary point, I would observe that the fourth ground of appeal is necessarily based on the premiss that the General Court took into account, both in its examination of the setting of the fine by the Commission and in the exercise of its unlimited jurisdiction, LG’s alleged anticompetitive intent. Indeed, it is upon that premiss that LG relies to claim that there is an internal contradiction within the judgment, in so far as the General Court stated that anticompetitive intent on LG’s part had not been taken into account when characterising its conduct as abusive.

131. In that regard, it should be observed, first of all, that, in paragraphs 196 and 197 of the judgment under appeal, (60) the General Court held that the Commission did not rely in the contested decision on LG’s intent, anticompetitive strategy or bad faith to justify its conclusion that competition law had been infringed. In so doing, the General Court expressly rejected LG’s argument that the decision at issue was vitiated by an error of law in that the Commission identified the practice at issue as abusive relying, inter alia, on LG’s anticompetitive intent. (61)

132. Next, I note that none of the parts of the judgment to which the fourth ground of appeal refers makes express reference to an alleged anticompetitive intent on LG’s part. The only factors that could therefore support LG’s claim that the General Court took account of its alleged anticompetitive intent are, according to LG, first, the use of wording alluding to such an intent (in paragraphs 339, 368 and 374 of the judgment under appeal, in the context of the first part of this ground of appeal) and, second, even more implicitly, the reference to a fair assessment of the gravity of the infringement, in so far as anticompetitive intent is relevant in that regard (in paragraphs 398 and 404 of the judgment under appeal, in the context of the second part of this ground of appeal).

133. For the following reasons I take the view that neither of those two factors is sufficient to demonstrate that the General Court took account of LG’s alleged anticompetitive intent, and that, therefore, both parts of the fourth ground of appeal should be rejected as unfounded.

134. By the first part of the fourth ground of appeal, LG submits, in essence, that the General Court made an error of assessment when examining the legality of the fine imposed by the Commission. In that regard, it raises two complaints: the first alleges an error of assessment, contained in paragraph 339 of the judgment under appeal, as part of the analysis of the question of the novelty of the legal theory on which the decision at issue is based, the second an error of assessment, contained in paragraphs 368 and 374 of the judgment under appeal, as part of the analysis of the allegedly disproportionate nature of the gravity factor.

135. In the first place, as regards the complaint relating to paragraph 339 of the judgment under appeal, I note that that paragraph is part of the General Court’s analysis of LG’s complaint that the Commission made an error of law and of assessment by imposing a fine on it because the conduct complained of in the contested decision constituted a novel category of abuse and LG was unaware that that conduct was unlawful. The General Court recalled that the conduct at issue ‘was capable of causing potential anticompetitive effects of foreclosing competition on the [relevant] market …, by raising barriers to market entry without any objective justification’. It is therefore in the light of that finding, and with a view to responding to the argument that the abusive nature of that conduct should be classified as novel, that the General Court took the view that ‘the abusive nature of conduct such as that of the applicant, seeking to keep competitors away from the market, has already been found to be unlawful by the EU Courts’. (62)

136. Whilst the words ‘conduct … seeking to keep competitors away from the market’ (in the judgment’s English language version, that is to say, the language of the present case) are, admittedly, somewhat ambiguous and could in fact, if taken out of context, be understood as alluding to the existence of anticompetitive intent, they must, however, be considered in their specific context. (63)

137. That form of words draws on paragraph 164 of the judgment in AstraZeneca v Commission, (64) in which the Court inter alia clarified, in the context of an assessment of the novelty of the infringements in question and their impact, that AstraZeneca ‘was aware of the highly anti-competitive nature of its conduct and should have expected it to be incompatible with competition rules under European Union law’. (65) It follows that intent, in the context of that case-law, has a different nuance as compared with the concept of intention, understood as the existence of ‘a business strategy pursued by an undertaking’. Indeed, when the General Court refers to intent in paragraphs 196 and 197 of the judgment under appeal, it does so relying on ‘subjective factors, such as the motives underlying the business strategy in question’ (see paragraph 191 of the judgment under appeal). (66) By contrast, where it refers to conduct ‘seeking to keep competitors away from the market’, that is an objective assessment connected with the question whether, in the light of all the relevant circumstances, certain conduct is capable of restricting competition.

138. I am therefore of the view that the first complaint of the first part of this ground of appeal alleging an error of assessment contained in paragraph 339 of the judgment under appeal, in the context of the analysis relating to the classification of the conduct in question as novel, should be rejected.

139. In the second place, as regards the complaint relating to paragraphs 368 and 374 of the judgment under appeal, I note that those paragraphs are part of the General Court’s analysis of the allegedly disproportionate nature of the gravity factor adopted by the Commission when determining the amount of the fine.

140. In that regard, I would point out first of all that, in paragraph 366 of the judgment under appeal, the General Court recalled that, in order to establish the degree of gravity of the infringement in question, the Commission took into account four elements – namely, the nature of the infringement, the situation on LG’s relevant markets, the geographic scope of the infringement and the arrangements for the effective implementation of the infringement. It must be observed that no subjective factor, such as the intentional nature of the conduct, forms part of any of those elements taken into account by the Commission with a view to establishing the degree of gravity. (67)

141. That conclusion cannot be invalidated by the argument put forward by LG that there are two references, namely paragraphs 368 and 374 of the judgment under appeal, which, read in isolation, could suggest that account was taken of a subjective factor indicating intent.

142. More specifically, first, in paragraph 368 of the judgment under appeal, as in paragraph 339, cited above, the General Court set out that ‘the abusive nature of conduct such as [LG’s] conduct, which was intended to keep competitors away from the market, has … been censured on a number of occasions by the EU Courts’. That reference to the same form of words used in paragraph 339 of the judgment under appeal considered above is due to the fact that LG refers to the arguments raised in support of the plea in law concerning the allegedly novel and unprecedented nature of the case, with a view to challenging the allegedly disproportionate nature of the gravity factor adopted by the Commission. It follows that my analysis in paragraphs 315 and 136 of this Opinion applies mutatis mutandis.

143. Second, in paragraph 374 of the judgment under appeal, the Commission seeks to respond to LG’s argument that the gravity factor is likewise disproportionate in the light of the Commission’s practice in comparable cases in which Article 102 TFEU applied and thereby infringes the principle of equal treatment. It is in that context that the General Court stated that ‘the removal of the Track, with the aim of keeping competitors far from the market on less advantageous conditions, cannot be analysed as [a refusal to provide access to an essential facility]’. (68)

144. Whilst the words ‘with the aim’ are indeed ambiguous, and could therefore be understood as referring to an anticompetitive intent, it is my view that this is an unhappy formulation by the General Court, since, in that part of the judgment under appeal, it is simply restating its analysis regarding the characterisation of the conduct as an abuse of a dominant position, namely that the conduct in question cannot be classified as a ‘refusal of access’. It is for that specific reason that those words are preceded by the words ‘it has been determined in the analysis of the first plea’.

145. Accordingly, the General Court did not, in paragraph 374 of the judgment under appeal, carry out a fresh assessment as to the intentional nature of the infringement, which could be perceived as contradictory, but rather simply reiterated the conclusion that it had previously drawn in its analysis of the first plea in law, and in particular in paragraph 98 of the judgment under appeal, namely that ‘the conduct in question, … cannot be analysed in the light of the case-law established in relation to refusal to provide access to essential facilities’.

146. In the third place, for the sake of completeness, it should be recalled that, for the purposes of this appeal, there is no need to examine the alleged contradiction in the grounds of the judgment under appeal from the perspective of an alleged failure to comply with the General Court’s duty to state reasons, since the reasons stated for the judgment under appeal set out clearly and unequivocally that subjective factors, such LG’s intent, anticompetitive strategy or bad faith, were not taken into account to establish the existence of the infringement. There is therefore no internal inconsistency that would prevent a proper understanding of the reasons underlying the General Court’s analysis in that regard. (69)

147. In light of the foregoing, I propose that the second complaint of the first part of this ground of appeal, alleging an error of assessment as part of the analysis of the allegedly disproportionate nature of the gravity factor adopted by the Commission, and that first part as a whole be rejected.

148. By the second part of the fourth ground of appeal, LG claims, in essence, that the General Court made an error of assessment as part of the exercise of its unlimited jurisdiction by assuming the existence of anticompetitive intent when assessing the gravity of the infringement.

149. First of all, I note that, in accordance with settled case-law, to which the General Court expressly refers in paragraph 390 of the judgment under appeal, when they exercise their unlimited jurisdiction, the EU Courts are empowered, in addition to the mere review of the legality of the penalty, to substitute, in relation to the determination of the amount of that penalty, their own assessment for that of the Commission, which adopted the measure in which that amount was initially fixed, to the exclusion, however, of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the General Court. (70)

150. It follows that, in so far as, in paragraphs 196 and 197 of the judgment under appeal, (71) the General Court held that the Commission had rightly not relied, in the decision at issue, inter alia, on LG’s anticompetitive intent to justify its conclusion that competition law had been infringed, the General Court is not empowered to alter such a ‘constituent element of the infringement’ by taking such intent into account in the context of its unlimited jurisdiction.

151. In addition, as I have already noted, in particular in point 132 of this Opinion, the word ‘intent’ does not appear anywhere in the part of the judgment devoted to the exercise of unlimited jurisdiction, that is to say, paragraphs 389 to 406 of the judgment under appeal. Furthermore, LG did not clarify, in its appeal, which part of the General Court’s analysis is vitiated by considerations connected with the intentional nature of the conduct in question, but rather stated, at the hearing, that considerations related to intent are inherent in the assessment of the gravity of the conduct.

152. In that regard, I would point out that, according to the Court’s case-law, the unlimited jurisdiction conferred on the EU Courts by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers those courts, in addition to carrying out a mere review of legality with regard to the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. While the exercise of that unlimited jurisdiction does not amount to a review ex officio, and the proceedings are inter partes, the EU Courts are bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all submissions on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity and the duration of the infringement. (72) The exercise of unlimited jurisdiction therefore involves taking into consideration the seriousness and duration of the infringement at issue, in compliance, inter alia, with the principles of proportionality, the individualisation of penalties and equal treatment. (73) It is in fact on the basis of those two criteria concerning the gravity and the duration of the infringement that the General Court exercised its discretion. (74)

153. With regard to the gravity of the infringement, which is the relevant criterion in the context of the first part of this ground of appeal, it is apparent from paragraph 399 of the judgment under appeal that the General Court considered it appropriate to take account of three elements: the nature of the infringement, LG’s position on the relevant markets and the geographic extent of that infringement. The intentional nature of the infringement can, by its very nature, be factored into the assessment of the first element only, that is to say, the nature of the infringement.

154. However, it must be observed that, in paragraph 400 of the judgment under appeal, which is the paragraph in which the General Court set out its analysis of the nature of the infringement, the General Court referred to objective considerations that are neither directly nor indirectly connected with any alleged anticompetitive intent.

155. It follows that, contrary to what is alleged by LG, the General Court did not rely on any alleged anticompetitive intent to conduct a ‘fair assessment of the gravity of the offence’, and that, therefore, this second part of the fourth ground of appeal should likewise be rejected as unfounded.

156. Nevertheless, additionally and for the sake of completeness, I wish to clarify two points regarding the assessment of the appropriate amount of the fine and the duty to state reasons in the exercise of unlimited jurisdiction.

157. First, in accordance with settled case-law, it is not for the Court of Justice, when ruling on points of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. Only where the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, does it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine. (75)

158. Here, LG contests the General Court’s assessment of the amount of the fine imposed in the light of the circumstances of the present case, without however establishing or even alleging that that amount is not only inappropriate but also excessive to the point of being disproportionate. Therefore, the Court of Justice could also dismiss this part of the fourth ground of appeal as inadmissible.

159. Second, I would recall that it is settled case-law that the General Court is bound, when exercising its unlimited jurisdiction, by certain requirements, including the requirement to state reasons, imposed on it by Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute. (76)

160. In the present case, the General Court, in paragraphs 400 to 402 of the judgment under appeal, provided only a rather vague statement of reasons, from which it is scarcely possible to understand how it was able to arrive at a significant reduction in the amount of the fine applied. That failure to provide reasons is all the more surprising since the General Court upheld the decision at issue, dismissing all the pleas in law raised by LG. Whilst it is true that the General Court may, in the exercise of its unlimited jurisdiction, vary the contested measure, inter alia by reducing the amount of the fine imposed, even if that measure is not annulled, the fact remains that reasons must be stated for such a revision of the fine in order that the grounds justifying such a revision of the fine can be identified, without it being essential, however, that a precise mathematical exercise be undertaken.

161. However, in the present case, LG has not argued that reasons were not stated, and the Commission, which would also have a legitimate interest in arguing that there had been a breach of the requirement to state reasons, has not lodged a cross-appeal limited to challenge the fine.

162. In those specific circumstances, the Court should not, in my raise, of its own motion, the failure to state reasons. If, however, the Court considers it appropriate to find that the exercise of unlimited jurisdiction is vitiated by an insufficient statement of reasons, in so far as it is for the General Court to assess the gravity of unlawful conduct, this case should be referred back to the General Court for it to provide more detailed reasons for the calculation carried out. (77) It is true that, in such a scenario, in order to comply with the principle prohibiting reformatio in pejus, (78) as well as the principles of the protection of legitimate expectations and of legal certainty, and in the absence of any challenge whatsoever on the part of the Commission, the General Court cannot increase the amount of the fine above the amount imposed by the judgment under appeal.

163. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those Rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since, in my view, LG has been unsuccessful on all grounds, it should be ordered to pay the costs of the appeal procedure.

164. In the light of the foregoing considerations, I propose that the Court should:

– Order Lietuvos geležinkeliai AB to bear its own costs and to pay the costs incurred by the European Commission.

2 Council Regulation 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).

3 Opinion of Advocate General Jacobs in Bronner (C‑7/97, EU:C:1998:264; ‘the Opinion of Advocate General Jacobs in Bronner’).

4 Directive 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).

5 In that regard, LG refers to the judgment of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266).

6 Judgment of 25 March 2021, Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239; ‘the judgment in Slovak Telekom’, paragraph 40 and the case-law cited).

7 Judgment of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 68 and the case-law cited).

8 See judgments of 17 February 2011, TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 68) and of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 154).

9 See, to that effect, judgments of 15 September 2021, European Night Services and Others v Commission, (T 374/94, T 375/94, T 384/94 and T 388/94, EU:T:1998:198, paragraphs 208 and 212, and the case-law cited), and of 10 November 2021, Google and Alphabet v Commission (Google Shopping) (T‑612/17, EU:T:2021:763, under appeal; ‘the judgment in Google Shopping’, paragraph 215).

10 In competition law practice, the concept of a ‘refusal to supply’ covers a broad range of practices, such as the refusal to supply products to existing or new customers, the refusal to license intellectual property rights, including when the licence is necessary to provide interface information, or the refusal to grant access to an essential facility or network (paragraph 78 of the Communication from the Commission entitled ‘Guidance on the Commission’s enforcement priorities in applying Article 82 [EC] to abusive exclusionary conduct by dominant undertakings’ (OJ 2009 C 45, p. 7; ‘the Guidance’).

11 For an overview of the essential facilities doctrine, as originally conceived in U.S. antitrust law, see Opinion of Advocate General Jacobs in the Bronner case (points 45 to 47).

12 See judgment of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266, paragraph 679).

13 See judgments of 5 October 1988, Volvo (238/87, EU:C:1988:477, paragraph 8), and of 17 September 2007, Microsoft v Commission (T‑201/04, EU:T:2007:289, paragraph 331).

14 In its case-law prior to the judgment in Bronner, the Court had held the refusal of a dominant undertaking to supply to an undertaking on a neighbouring market the raw materials (judgment of 6 March 1974, Istituto Chemioterapico Italiano and Commercial Solvents v Commission (6/73 and 7/73, EU:C:1974:18, paragraph 25)) or the services (judgment of 3 October 1985, CBEM (311/84, EU:C:1985:394, paragraph 26)) that were essential to the business of the latter undertaking to be abusive only in so far as the conduct in question was capable of eliminating all competition on the part of that undertaking. That same approach, namely that the exercise of an exclusive right, such as the refusal to grant a licence by a holder of an intellectual property right, can give rise to abusive conduct only in ‘exceptional circumstances’, was confirmed in the judgment of 6 April 1995, RTE and ITP v Commission (C‑241/91 P and C‑242/91 P, EU:C:1995:98, paragraphs 49 and 50).

19 Although, in his Opinion in Deutsche Telekom v Commission and Slovak Telekom v Commission (C‑152/19 P and C‑165/19 P, EU:C:2020:678), Advocate General Saugmandsgaard Øe states the judgment in Bronner is ‘a special case within the regulatory landscape of Article 102 TFEU’, ‘the scope [of which] needs to be interpreted strictly in order to preserve the effectiveness of Article 102 TFEU’ (point 55 of the Opinion, which refers to paragraph 58 of the judgment of 17 February 2011, TeliaSonera Sverige, (C‑52/09, EU:C:2011:83)); I take a contrary view and consider that the judgment in Bronner is (and has always been) the starting point for any analysis in the field of competition law regarding a refusal to supply to competitors. The judgment in Bronner should therefore be the leading judgment, and the rule rather than the exception, and the criteria laid down therein are not to be interpreted restrictively.

20 See Opinion of Advocate General Jacobs in Bronner (point 58) and my Opinion in Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2021:998, points 87 to 108).

21 The judgment in Slovak Telekom (paragraph 48) and points 57 and 65 of the Opinion of Advocate General Jacobs in Bronner.

29 See, by analogy, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 96) and Opinion of Advocate General Saugmandsgaard Øe in Deutsche Telekom v Commission and Slovak Telekom v Commission (C‑152/19 P and C‑165/19 P, EU:C:2020:678, point 106).

30 I note that it would appear that the judgment in Bronner applies to situations in which there has a been a ‘refusal’ to provide access, which implies that a ‘request’ has been made or in any event that a wish to be granted access has been expressed and there has been a consequential ‘refusal’ (see, to that effect, the judgment in Google Shopping, paragraph 232 and the case-law cited).

32 This is inter alia case where the abuse takes the form of the squeezing of competing operators’ margins on a downstream market (see judgments 17 February 2011, TeliaSonera (C‑52/09, EU:C:2011:83, paragraph 58); of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraphs 75 and 96); and in Slovak Telekom (paragraphs 52 and 53)).

34 Judgment of 3 July 1991, AKZO v Commission (C‑62/86, EU:C:1991:286, paragraph 69).

36 See, to that effect, judgment of 23 October 2003, Van den Bergh Foods v Commission (T‑65/98, EU:T:2003:281, paragraph 161).

38 See, to that effect, the judgments in Bronner (paragraph 37), Slovak Telekom (paragraphs 43, 45, 46, 48 and 49). I observe that Advocate General Jacobs in his Opinion in the Bronner case (C‑7/97, EU:C:1998:264, point 66) could anticipate the application of the Bronner criteria to a situation where the facility at issue was created in non-competitive conditions, in part from public funding.

39 See, to that effect, the judgment in Slovak Telekom (paragraphs 47 and 48); the Opinion of Advocate General Saugmandsgaard Øe in the cases of Deutsche Telekom v Commission and Slovak Telekom v Commission (C‑152/19 P and C‑165/19 P, EU:C:2020:678, points 75 through 78).

40 Judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 128).

41 See, to that effect, the judgment in Slovak Telekom (paragraphs 42 and 57).

42 See, to that effect, the judgment of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 92).

43 Referring to paragraphs 148, 164 and 168 of the judgment under appeal, LG observes that the General Court found that LG was entitled to opt to remove the Track, rather than to undertake partial repairs that would have led to its later replacement. The abuse of which it stands accused therefore lies solely in the timing of that removal, that is to say from 3 October 2008. However, since the timing of the removal had no impact on its cost, the decision to remove the Track immediately was a rational management decision. Moreover, the General Court found, in paragraphs 197, 204 and 209 of that judgment, that LG was not pursuing any anticompetitive intent. Therefore, the removal of the Track, which would have been necessary in any case at a later stage without any additional cost, was a rational management decision that cannot be regarded as an abusive practice.

44 LG claims that the removal of the Track ‘without having first secured the necessary funds’ is likewise not an abusive practice, since it expected to receive the funds to rebuild the Track when the majority of the works were carried out. Referring to paragraphs 152, 153, 160, 171, 174 to 176 and 196 of the judgment, LG argues that it had indeed sought funding on 2 October 2008, before commencing the Track removal works, that European funds were available at that time and subsequently, and that it did not act with anticompetitive intent. It points out that the facts identified by the General Court in order to make the finding of abuse essentially occurred after 3 October 2008. In that context, the General Court erred in law by requiring LG, in paragraphs 164, 165, 170 and 178 of the judgment under appeal, to establish or justify the timing of the Track’s removal, whereas it was for the Commission to establish the abuse. Furthermore, in paragraphs 152 and 170 of that judgment, the General Court failed to give specific consideration to LG’s argument concerning the storage of the reusable parts of the Track and their reuse for other tracks before the onset of winter. In any case, there is no need to have first ‘secured’ the necessary funds for an entire project before being able to begin the preparatory stages of that project.

45 See, to that effect, judgment of 21 September 2000, EFMA v Council (C‑46/98 P, EU:C:2000:474, paragraph 38).

46 See, to that effect, paragraphs 83, 193, 196 and 224 of the judgment under appeal.

47 See, to that effect, judgment of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 72 and the case-law cited).

48 More specifically, (i) paragraph 168 concerns LG’s contention that Option 2 was the only relevant and economically reasonable option; (ii) paragraph 170 concerns the alleged need to recover appropriate materials from the Track in order to prevent damage to them over the winter; (iii) paragraph 204 concerns the alleged influence of the arbitration decision of 17 December 2010 on the decision not to rebuild the Track; and (iv) paragraph 231 concerns LG’s argument that Option 1 was less efficient than Option 2.

49 Judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 68 and the case-law cited).

50 On the difficulty of ‘draw[ing] the dividing line between issues of fact and questions of law’, in particular in competition cases, see Opinion of Advocate General Jacobs in Hilti v Commission (C‑53/92 P, not published, EU:C:1993:875, points 46 and 47).

52 I note that, in its appeal, LG acknowledges that ‘the General Court simply leaves this issue unresolved and does not establish any facts to the contrary’.

53 Specifically, the General Court held that LG ‘has not established that, after the Deformation appeared and after the detailed assessment of the condition of the entire Track, it was in a state which would justify its immediate and complete removal’ (paragraph 164), and that LG ‘has not sufficiently substantiated the claim that the defects … had been observed at numerous other locations along the length of the Track’ (paragraph 165). Emphasis added.

54 Given their technical nature, and to provide a better understanding of them, each of the five parts of the third ground of appeal will be illustrated directly in my analysis.

55 See the summary of LG’s argument in paragraph 216 of the judgment under appeal.

56 See points 98 to 101 of this Opinion. See also judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission (C‑466/19 P, EU:C:2021:76, paragraphs 42 and 43 and the case-law cited).

57 Letter sent on 18 September 2008 by LG’s Railway Infrastructure Directorate to its Strategic Planning Council and drawn up on the basis of the extraordinary commission’s inspection report of 12 September 2008.

59 As recalled in point 89 of this Opinion, the effective nature of a ground of appeal refers to its capacity, in the event that it is well founded, to lead to the form of order sought by the applicant by that ground of appeal.

64 Judgment of 6 December 2012, AstraZeneca v Commission (C‑457/10 P, EU:C:2012:770).

66 See, to that same effect, judgments of 19 April 2012, Tomra Systems and Others v Commission (C‑549/10 P, EU:C:2012:221, paragraphs 20 and 21), and of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 162).

67 As regards the ‘nature of the infringement’, to which reference is made in paragraph 366 of the judgment under appeal, the General Court considered ‘the fact that the conduct consisting of the removal of a public railway track between two Member States harmed consolidation of the single market, in particular the single European rail market’.

69 See, in this regard, judgment of 16 December 2015, Cargolux Airlines v Commission, T‑39/11, not published, EU:T:2015:991, paragraph 31).

70 See, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraphs 75 to 77).

72 Judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571, paragraphs 96 and 97 and the case-law cited).

73 Judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 90).

75 Judgment of 25 March 2021, Lundbeck v Commission (C‑591/16 P, EU:C:2021:243, paragraphs 197 and 198 and the case-law cited).

76 Judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214, paragraph 138).

77 See, to that effect, judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571, paragraph 95 and the case-law cited).

78 See, in this regard, point 237 of the Opinion of Advocate General Kokott in Joined Cases Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C-293/13 P and C-294/13 P, EU:C:2014:2439).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Lietuvos gelezinkeliai v Commission (Competition - Abuse of a dominant position - Rail freight market - Opinion) [2022] EUECJ C-42/21P_O (07 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C4221P_O.html Cite as: EU:C:2022:537, ECLI:EU:C:2022:537, [2022] EUECJ C-42/21P_O

Court of Justice of the European Communities (including Court of First Instance Decisions)