Abstract
The Law on Competition, mainly aiming to protect economic as well as consumer interests, forms the key legislation regulating the abuse of a dominant decision in Lithuania. Besides some sector specific regulation, e.g. in the fields of retail and communications, exist. Decisions of the Lithuanian Competition Council and Lithuanian courts on abuse of dominance are rather rare compared with decisions in other antitrust matters. As can be seen from the analysis, cases on abuse of a dominant decision have not been very successful in Lithuania. Reasons for that might be a necessity to engage in a highly difficult cost- and time-consuming analysis of dominance in the respective market and, on the other hand, missing sufficient evidence for an abuse. Thus, should we, based on the above, draw the conclusion that claims and procedures in the field of abuse of a dominant position are generally not very promising in Lithuania? Although the temptation might be to say “Yes”, such a conclusion would likely not be objective. The overall policy of the Competition Council seems to show that other areas need more attention at the moment and of course resources are limited.
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Notes
- 1.
Law on Competition, Official Gazette 1992, No. 29-841.
- 2.
Decision No. 2a Concerning the Definition of the List of Dominant Undertakings of 29 December 1992.
- 3.
Decision No. 2 Concerning the Market Study on the Market for Meat and Dairy of 29 December 1992.
- 4.
Law on Competition, Official Gazette 1999, No. 30-856.
- 5.
E.g. Decision of the Lithuanian Competition Council No. 5/b in the case Concerning actions of AB “Klaipėdos jūrų krovinių kompanija” corresponding with the requirements of Article 9 Para. 3 of the Law on Competition of 11 April 2002, and corresponding decision of the Vilnius District Administrative Court No. I12-1028/2002 of 21 June.
- 6.
Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567.
- 7.
Constitution of the Republic of Lithuania, Official Gazette 1992, No. 33-1014.
- 8.
Decision of the Lithuanian Competition Council on Explanations concerning the Establishment of a Dominant Position, Official Gazette 2000, No. 19-487 with amendments in the Official Gazette 2013, No. 37-1830.
- 9.
Decision of the Lithuanian Competition Council on Explanations concerning the Definition of the Relevant Market, Official Gazette 2000, No. 24-363 with amendments in the Official Gazette 2005, No. 20-684 and 2013, No. 37-1834.
- 10.
Decision of the Government of the Republic of Lithuania on Rules on the Establishment of the Amount of Fines Imposed for Infringements of the Law on Competition, Official Gazette 2012, No. 12-511.
- 11.
Law on Prohibition of Unfair Practices of Retail Companies, Official Gazette 2010, No. 1-31 with amendments at the Registry for Legal Acts TAR 2014, No. 14287.
- 12.
The Competition Council indicated in its annual monitoring report in March 2015 that four retail chains with significant market power are at present active in Lithuania. Annual Report on the Monitoring of the Law on Prohibition of Unfair Practices of Retail Companies in the Republic of Lithuania. http://kt.gov.lt/mp/pazymos/pazyma_2015-03-02.pdf. Accessed 1 May 2015.
- 13.
Law on Electronic Communications, Official Gazette 2004, No. 69-2382 with its last amendments at the Registry for Legal Acts TAR 2014, No. 14859.
- 14.
Law on Natural Gas of the Republic of Lithuania, Official Gazette 2010, No. 89-2743 with its last amendments at the Registry for Legal Acts TAR 2014, No. 21324; Law on Electric Energy of the Republic of Lithuania, Official Gazette 2010, No. 66-1984 with its last amendments at the Registry for Legal Acts TAR 2015, No. 7656.
- 15.
Art. 3 para. 2 of the Law on Competition defines dominance as a position in the market where no direct competition is faced or which allows unilateral decisive influence on the market by restricting competition. It is assumed that an undertaking with at least 40% market share is in a dominant position. It is further assumed that each undertaking in a group of three or fewer undertakings enjoys dominance if they collectively hold at least 70% of market share and have the largest shares in the market.
- 16.
Notwithstanding the additional Law on Prohibition of Unfair Practices of Retail Companies, Art. 3 para. 2 of the Law on Competition already applies a stricter assumption for dominance in the retail field, where undertakings with a market share of 30%, and each undertaking in a group of three or fewer undertakings with a collective market share of 55% are to be seen as in a dominant position.
- 17.
Art. 3 of the Law on Prohibition of Unfair Practices of Retail Companies, Official Gazette 2010, No. 1-31 with amendments at the Registry for Legal Acts TAR 2014, No. 14287.
- 18.
Decision of the Lithuanian Competition Council No. 2S-20, Concerning actions of AB “Lietuvos Pastas” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 27 August 2007. A similar situation had already been decided as abusive in 2002, when Lithuanian Telecom used its legal monopoly in the cable voice telephony market to refuse access to its facilities for internet voice telephony providers. Decision of the Lithuanian Competition Council No. 2/b, Concerning actions of AB “Lietuvos Telekomas” corresponding with the requirements of Article 9 Para. 2 of the Law on Competition of the Republic of Lithuania of 21 February 2002.
- 19.
Decision of the Lithuanian Competition Council No. 2S-11, Concerning actions of UAB “Vilniaus Energija” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 6 May 2010.
- 20.
E.g. decision of the Lithuanian Competition Council No. 2S-1, Concerning actions of the state company “International Vilnius Airport” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania and Art. 102 of the Treaty on the Functioning of the European Union of 21 January 2010 and decision of the Lithuanian Competition Council No. 16/b Concerning actions of AB “Lietuvos telekomas” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 22 December 2000.
- 21.
Decision of the Lithuanian Competition Council No. 2S-8, Concerning actions of the service and trade company of A. Jankauskas corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 8 May 2003.
- 22.
Decision of the Lithuanian Competition Council No. 8/b Concerning violation of Article 9(1) of the Law on Competition of the Republic of Lithuania by SP AB “Utenos silumos tinklai“ of 15 June 2000 and decision of the Lithuanian Competition Council No. 11/b, Concerning violation of Article 9(1(3)) of the Law on Competition of the Republic of Lithuania by AB ”Mazeikiu nafta” of 10 July 2000.
- 23.
Decision of the Lithuanian Competition Council No. 2S-31, Concerning actions of AB “Orlen Lietuva” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania and Article 102 of the Treaty on the Functioning of the European Union of 16 December 2010.
- 24.
Decision of the Lithuanian Competition Council No. 2S-11, Concerning actions of UAB “Vilniaus energija” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 6 May 2010.
- 25.
See for further reading on the case: Working Party No. 2 on Competition and Regulation. Excessive Prices. Lithuania 2011, p.3-5. http://kt.gov.lt/naujienos/docs_oecd/wp_2_2011_01.pdf. Accessed 20 May 2015; ECJ, case 27/76, United Brands Company and United Brands Continentaal BV v Commission of the European Communities, ECR 1978 207. ECJ, case 226/84, British Leyland Public Limited Company v Commission of the European Communities, ECR 1986 3263.
- 26.
Decision of the Vilnius Administrative District Court in case No. 1-3681-562/2011 of 24 October 2011 and decision of the Supreme Administrative Court in the case A858-1516/2012 of 13 August 2012.
- 27.
E.g. decision of the Lithuanian Competition Council No. 1S-30, Concerning the termination of investigations based on actions of AB “LEO LT” during the provision of services in the field of cable telephony corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 1 March 2012 and decision of the Lithuanian Competition Council No. 1S-184, Concerning the termination of investigations based on actions of AB “Lietuvos Gelezinkeliai” corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 5 September 2011.
- 28.
The Law on Commercial Arbitration of the Republic of Lithuania, Official Gazette 1996, No. 39-961.
- 29.
The Law on Commercial Arbitration of the Republic of Lithuania, Official Gazette 1996, No. 39-961 with its last amendments in the Official Gazette 2012, No. 76-3932.
- 30.
Decision of the Vilnius Administrative District Court in case No. I-1220-142/10 of 7 June 2010.
- 31.
Decision of the Vilnius Administrative District Court in case No. 1-3681-562/2011 of 24 October 2011 and decision of the Supreme Administrative Court in case A858-1516/2012 of 13 August 2012.
- 32.
Decision of the Supreme Administrative Court in case A502-801/2013 of 21 January 2013.
- 33.
Decision of the Lithuanian Competition Council No. 1S-233 Concerning activities of VIASAT WORLD LIMITED AND VIASAT AS corresponding with the requirements of the Article 9 of the Law on Competition of the Republic of Lithuania and Article 102 of the Treaty on the Functioning of the European Union of 22 November 2011.
- 34.
Decision of the Lithuanian Supreme Administrative Court in case No. A502-706/2013 of 5 March 2013.
- 35.
Council Regulation 1/2003 of 16 December 2002 on implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003, L 1, p. 1.
- 36.
Decision of the Lithuanian Supreme Administrative Court in case No. A502-706/2013 of 5 March 2013.
- 37.
Decision of the Lithuanian Competition Council No. 1S-93/2014 Concerning the termination of investigations on the activities of VIASAT WORLD LIMITED AND VIASAT AS corresponding with the requirements of the Article 9 of the Law on Competition of the Republic of Lithuania and Article 102 of the Treaty on the Functioning of the European Union of 19 June 2014.
- 38.
Decision of the Lithuanian Competition Council No. 1S-89 Concerning the Enforcement Priorities of the Competition Council of the Republic of Lithuania of 2 July 2012.
- 39.
Points 5, 6 and 8 of the Decision of the Lithuanian Competition Council No. 1S-89 Concerning the Enforcement Priorities of the Competition Council of the Republic of Lithuania of 2 July 2012.
- 40.
Decision of the Lithuanian Competition Council No. 1S-99 Concerning the refusal to open investigations based upon actions of AB “Lietuvos pastas” corresponding with the requirements of the Article 7 of the Law on Competition of the Republic of Lithuania of 17 July 2013 and Decision of the Lithuanian Competition Council No. 1S-87/2014 Concerning the refusal to open investigations based upon actions of AB “Lietuvos pastas” corresponding with the requirements of the Articles 7 and 15 of the Law on Competition of the Republic of Lithuania of 5 June 2014.
- 41.
Point 12 of the Decision of the Lithuanian Competition Council No. 1S-89 Concerning the Enforcement Priorities of the Competition Council of the Republic of Lithuania of 2 July 2012 foresees the right to evaluate the possibilities of other institutions to decide the case effectively and Point 14 refers to the rational use of resources in proportion to the expected results of the investigation.
- 42.
Decision of the Vilnius Administrative District Court in case No. I-0926-189/2014 of 3 March 2014.
- 43.
Decision of the Lithuanian Competition Council No. 2S-15 Concerning actions of AB “SEB bankas”, AB “Swedbank”, AB “DNB bankas”, UAB “First data Lietuva” und UAB ”G4S Lietuva” corresponding with the requirements of Article 5 of the Law on Competition of the Republic of Lithuania and Article 101 of the Treaty on the Functioning of the European Union as well as actions of UAB ”G4S Lietuva” corresponding with the requirements of Article 7 of the Law on Competition of the Republic of Lithuania and Article 102 of the Treaty on the Functioning of the European Union of 20 December 2012.
- 44.
Not including decisions on procedural issues.
- 45.
E.g. decision of the Lithuanian Court of Appeal in case No. 2A-1019/2012 of 18 January 2012 and decision of the Lithuanian Court of Appeal in case No. 2-7488-302/2011 of 14 December 2011.
- 46.
Decision of the Lithuanian Supreme Court in case No. 3K-3-152/2014 of 12 March 2014.
- 47.
Decision of the Lithuanian Supreme Court in case No. 3K-3-207/2010 of 17 May 2010.
- 48.
Not including decisions on procedural issues and on declarations during public procurement procedures.
- 49.
During recent years one priority seems to be proceedings under Article 4 of the Law on Competition against entities in public administration adopting legal acts or decisions restricting free competition.
- 50.
E.g. Decision of the Lithuanian Competition Council No. 2S-15 Concerning actions of AB “SEB bankas”, AB “Swedbank”, AB “DNB bankas”, UAB “First data Lietuva” und UAB ”G4S Lietuva” corresponding with the requirements of Article 5 of the Law on Competition of the Republic of Lithuania and Article 101 of the Treaty on the Functioning of the European Union as well as actions of UAB ”G4S Lietuva” corresponding with the requirements of Article 7 of the Law on Competition of the Republic of Lithuania and Article 102 of the Treaty on the Functioning of the European Union of 20 December 2012.
- 51.
Art. 33 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567 and Art. 10 of the Law on Prohibition of Unfair Practices of Retail Companies, Official Gazette 2010, No. 1-31 with amendments at the Registry for Legal Acts TAR 2014, No. 14287.
- 52.
Arts. 41 and 35 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567.
- 53.
Arts. 43 and 47 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567 and Art. 13 of the Law on the Prohibition of Unfair Practices of Retail Companies, Official Gazette 2010, No. 1-31 with amendments at the Registry for Legal Acts TAR 2014, No. 14287.
- 54.
Art. 33 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567.
- 55.
Art. 20 of the Law on Administrative Court Proceedings in the Republic of Lithuania, Official Gazette 2000, No. 85-2566 with its last amendments at the Registry for Legal Acts TAR 2014, No. 19929.
- 56.
As to e.g. preliminary suspension of licences, interrupting imports or exports as well as bank operations.
- 57.
Art. 41 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567.
- 58.
Art. 43 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567 and Art. 13 of the Law on Prohibition of Unfair Practices of Retail Companies, Official Gazette 2010, No. 1-31 with amendments at the Registry for Legal Acts TAR 2014, No. 14287; decision of the Lithuanian Supreme Court in case No. 3K-3-207/2010 of 17 May 2010.
- 59.
Art. 47 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567.
- 60.
Arts. 11 and 9 of the Law on Natural Gas of the Republic of Lithuania, Official Gazette 2010, No. 89-2743 with its last amendments at the Registry for Legal Acts TAR 2014, No. 21324; Arts. 65 and 68 of the Law on Electric Energy of the Republic of Lithuania, Official Gazette 2010, No. 66-1984 with its last amendments at the Registry for Legal Acts TAR 2015, No. 7656.
- 61.
Art. 7 of the Law on Natural Gas of the Republic of Lithuania, Official Gazette 2010, No. 89-2743 with its last amendments at the Registry for Legal Acts TAR 2014, No. 21324; Arts. 64 and 65 of the Law on Electric Energy of the Republic of Lithuania, Official Gazette 2010, No. 66-1984 with its last amendments at the Registry for Legal Acts TAR 2015, No. 7656.
- 62.
Art. 9 of the Law on Natural Gas of the Republic of Lithuania, Official Gazette 2010, No. 89-2743 with its last amendments at the Registry for Legal Acts TAR 2014, No. 21324; Art. 68 of the Law on Electric Energy of the Republic of Lithuania, Official Gazette 2010, No. 66-1984 with its last amendments at the Registry for Legal Acts TAR 2015, No. 7656.
- 63.
Art. 10 of the Law on Natural Gas of the Republic of Lithuania, Official Gazette 2010, No. 89-2743 with its last amendments at the Registry for Legal Acts TAR 2014, No. 21324; Art. 65 para. 11 of the Law on Electric Energy of the Republic of Lithuania, Official Gazette 2010, No. 66-1984 with its last amendments at the Registry for Legal Acts TAR 2015, No. 7656.
- 64.
Working Party No. 2 on Competition and Regulation. Excessive Prices. Lithuania 2011, p.2-3. http://kt.gov.lt/naujienos/docs_oecd/wp_2_2011_01.pdf. Accessed 1 May 2015.
- 65.
Decision of the Lithuanian Supreme Administrative Court in case No. A858-1309/2010 of 10 November 2010.
- 66.
Arts. 8 and 14 of the Law on Electronic Communications, Official Gazette 2004, No. 69-2382 with its last amendments at the Registry for Legal Acts TAR 2014, No. 14859.
- 67.
Decision of the Lithuanian Competition Council No. 1S-14 On the refusal to open investigations concerning activities of AB “TEO LT”connected with the provision of services in the field of cable telephony, corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 31 January 2008 and decision of the Lithuanian Competition Council No. 1S-51 On the refusal to open investigations concerning activities of AB “TEO LT”, corresponding with the requirements of Article 9 of the Law on Competition of the Republic of Lithuania of 2 April 2009; Art. 25 para. 4 point 2 of the Law on Competition, Official Gazette 1999, No. 30-856.
- 68.
Decision of the Lithuanian Supreme Administrative Court in case No. A822-538/2009 of 23 April 2009 and decision of the Lithuanian Supreme Administrative Court in case No. A858-1309/2010 of 10 November 2010.
- 69.
Decision of the Lithuanian Supreme Administrative Court in case No. A822-538/2009 of 23 April 2009.
- 70.
Decision of the Lithuanian Supreme Administrative Court in case No. A858-1309/2010 of 10 November 2010.
- 71.
Arts. 72, 74, 75 of the Law on Electronic Communications, Official Gazette 2004, No. 69-2382 with its last amendments at the Registry for Legal Acts TAR 2014, No. 14859.
- 72.
Art. 28 of the Law on Electronic Communications, Official Gazette 2004, No. 69-2382 with its last amendments at the Registry for Legal Acts TAR 2014, No. 14859.
- 73.
Art. 28 of the Law on Electronic Communications, Official Gazette 2004, No. 69-2382 with its last amendments at the Registry for Legal Acts TAR 2014, No. 14859.
- 74.
Decision of the Lithuanian Competition Council No. 1S-89 Concerning the Enforcement Priorities of the Competition Council of the Republic of Lithuania of 2 July 2012.
- 75.
See also Art. 1 of the Law on Competition, Official Gazette 2012, No. 42-2041 with its last amendments at the Registry for Legal Acts TAR 2014, No. 13567.
- 76.
Communication from the Commission—Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings of 24 February 2009, OJ 2009, C 45, p. 7.
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Goldammer, Y. (2017). Lithuania. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_8
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