Contents
Judgment of the Court (Third Chamber)12 January 2023note(Appeal — Competition — Abuse of dominant position — Rail freight market — Decision finding an infringement of Article 102 TFEU — Access by third-party undertakings to infrastructure managed by Lithuania’s national railway company — Removal of a section of railway track — Concept of abuse — Actual or likely exclusion of a competitor — Exercise by the General Court of its powers of unlimited jurisdiction — Reduction of the fine)In Case C‑42/21 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 January 2021,Lietuvos geležinkeliai AB, established in Vilnius (Lithuania), represented by K. Apel, W. Deselaers and P. Kirst, Rechtsanwälte,the other parties to the proceedings being:European Commission, represented by A. Cleenewerck de Crayencour, A. Dawes, H. Leupold and G. Meessen, acting as Agents,Orlen Lietuva AB, established in Mažeikiai (Lithuania), represented by C. Conte, avvocato, and C. Thomas, avocat,THE COURT (Third Chamber),composed of K. Jürimäe (Rapporteur), President of the Chamber, M. Safjan, N. Piçarra, N. Jääskinen and M. Gavalec, Judges,Advocate General: A. Rantos,Registrar: M. Longar, Administrator,having regard to the written procedure and further to the hearing on 27 April 2022,after hearing the Opinion of the Advocate General at the sitting on 7 July 2022,gives the following
Judgment
1By its appeal, Lietuvos geležinkeliai AB (‘LG’) seeks to have set aside the judgment of the General Court of the European Union of 18 November 2020, Lietuvos geležinkeliai v Commission (T‑814/17, EU:T:2020:545; ‘the judgment under appeal’), by which the General Court, first, dismissed its action in so far as it sought to have set aside Commission Decision C(2017) 6544 final of 2 October 2017 relating to proceedings under Article 102 TFEU (Case AT.39813 – Baltic Rail) (‘the decision at issue’) and, second, set the amount of the fine imposed on LG at EUR 20068650.
Legal context
Regulation (EC) No 1/2003
2Article 23(2)(a) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) and Article 23(3) of that regulation provide:2.The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article [101] or Article [102 TFEU]; ……3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
3Article 31 of that regulation provides:‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
Directive 2001/14/EC
4Recital 5 of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29) is worded as follows:‘To ensure transparency and non-discriminatory access to rail infrastructure for all railway undertakings all the necessary information required to use access rights are to be published in a network statement.’
5Article 5(1) of that directive provides:‘Railway undertakings shall, on a non-discriminatory basis, be entitled to the minimum access package and track access to service facilities that are described in Annex II. The supply of services referred to in Annex II, point 2 shall be provided in a non-discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. If the services are not offered by one infrastructure manager, the provider of the “main infrastructure” shall use all reasonable endeavours to facilitate the provision of these services.’
6Article 29(1) of that directive states:‘In the event of disturbance to train movements caused by technical failure or accident the infrastructure manager must take all necessary steps to restore the normal situation. To that end he shall draw up a contingency plan listing the various public bodies to be informed in the event of serious incidents or serious disturbance to train movements.’
Background to the dispute and the decision at issue
7The background to the dispute and the content of the decision at issue are set out in paragraphs 1 to 48 of the judgment under appeal. For the purposes of the present appeal, they can be summarised as follows.
Factual context
8LG is the Lithuanian national railway company, with its headquarters in Vilnius (Lithuania). LG is a public undertaking, whose sole shareholder is the Lithuanian State. As a vertically integrated undertaking, LG both manages railway infrastructure, which remains the property of the Lithuanian State, and provides rail transport services, for freight and for passengers, in Lithuania.
9Orlen Lietuva AB (‘Orlen’) is an undertaking established in Juodeikiai, in the Mažeikiai district (Lithuania), which specialises in refining crude oil and distributing refined oil products. Orlen is a wholly owned subsidiary of the Polish undertaking PKN Orlen SA.
10Orlen’s activities include operating several facilities in Lithuania, including a large refinery (‘the Refinery’) located in Bugeniai, in the Mažeikiai district in the north-west of Lithuania, close to the border with Latvia. At the end of the 2000s, 90% of the output of refined oil products from that refinery were transported by rail, thereby making Orlen one of LG’s most significant customers.
11At that time, Orlen produced approximately 8 million tonnes of refined oil products annually at the Refinery. Three quarters of that output was destined for export, mainly by sea. Accordingly, 4.5 to 5.5 million tonnes of refined oil products were transported through Lithuania by train to the seaport of Klaipėda (Lithuania).
12The remainder of the exported output, approximately 1 to 1.5 million tonnes, was transported also by train to or through Latvia and was destined mainly for consumption on the internal Estonian and Latvian markets. Around 60% of that output transported by train to or through Latvia used the ‘Bugeniai-Mažeikiai-Rengė’ railway line, a route which goes from the Refinery, itself located close to the Mažeikiai rail junction, to the town of Rengė, in Latvia, 34 km of which were located in Lithuanian territory (‘the Short Route to Latvia’). The remainder of that output transported by train to or through Latvia used the ‘Bugeniai-Kužiai-Joniškis-Meitene’ railway line, a longer route, 152 km of which were located in Lithuanian territory.
13In order to transport its products on the Short Route to Latvia, Orlen used LG’s services for the Lithuanian part of the route, namely from the Refinery to the Latvian border. LG then concluded a subcontract with Latvijas dzelzceļš, the Latvian national railway company (‘LDZ’) for transport over that Lithuanian part of the route. Since it did not have the necessary regulatory authorisation to carry out its activities independently in the territory of Lithuania, LDZ operated as a subcontractor of LG. After crossing the border, LDZ continued to transport Orlen’s products on Latvian territory.
14Commercial 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’).
15Other than setting out the rates applied by LG for transport services, the 1999 Agreement included, in particular, a specific commitment by LG to transport Orlen’s cargo on the Short Route to Latvia for the duration of the agreement, namely until 2024.
16In early 2008, a commercial dispute arose between LG and Orlen regarding the rates paid by Orlen for the transport of its oil products.
17Because 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.
18On 12 June 2008, a meeting was held between LG and Orlen, at which the plans to switch Orlen’s export business were discussed. In addition, since Orlen had made a unilateral decision in the spring of 2008 to apply a lower rate than that requested by LG and to withhold the payment of the difference, on 17 July 2008, LG initiated arbitration proceedings against Orlen.
19On 28 July 2008, LG informed Orlen that the 1999 Agreement would be terminated as from 1 September 2008.
20On 2 September 2008, following the identification of a defect in the rail track of several dozens of metres in length (‘the Deformation’), LG, mainly on the basis of safety grounds, suspended traffic on a 19-km-long section of the Short Route to Latvia between Mažeikiai and the border with Latvia (‘the Track’).
21On 3 September 2008, LG set up an Inspection Commission composed of senior employees in its local subsidiary to investigate the reasons for the Deformation. On 5 September 2008, the Inspection Commission submitted an investigation report and a technical report. According to that investigation report, the Deformation was caused by the physical deterioration of a number of elements of the Track structure. It is also apparent from that investigation report that traffic had to remain suspended ‘until all the restoration and repair works are complete[d]’. The findings contained in that investigation report were confirmed by the findings of the technical report.
22LDZ 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’.
23From 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.
24On 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.
25In the intervening period, in January 2009, a new general transport agreement was concluded between LG and Orlen for a 15-year period, namely until 1 January 2024. That agreement replaced an interim agreement which had been signed on 1 October 2008.
26Negotiations 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.
27On 10 November 2009, an arbitration court 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.
28According 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.
Administrative procedure
29On 14 July 2010, Orlen lodged a formal complaint with the European Commission pursuant to Article 7 of Regulation No 1/2003.
30Between 8 and 10 March 2011, the Commission, assisted by the national competition authorities in the Republic of Lithuania and the Republic of Latvia, carried out inspections under Article 20 of Regulation No 1/2003 at the premises of LG in Vilnius and at the premises of LDZ in Riga.
31On 6 March 2013, the Commission decided to bring proceedings against LG under Article 102 TFEU.
32After sending LG a statement of objections and then a letter of facts on which the parties submitted their observations, the Commission adopted the decision at issue on 2 October 2017.
The decision at issue
Definition of the relevant markets and LG’s dominant position on those markets
33In the decision at issue, the Commission identifies two relevant markets concerned by the abuse of a dominant position alleged against LG, 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.
34The relevant geographic market for the management of railway services is regarded as the Lithuanian national market. The Commission took the view, on the basis of the ‘point of origin – point of destination’ approach, known as the ‘O & D approach’, that the relevant geographic market was the market for the transport of rail freight from the Refinery to the three seaports of Klaipėda, Riga and Ventspils.
35The Commission found that, under the Lithuanian legislation, LG held a legal monopoly on the upstream market for the management of railway infrastructure in Lithuania. Under that legislation, the public railway infrastructure was the property of the Lithuanian State and its management was entrusted to LG.
36The Commission also found that LG was, with the exception of very small quantities transported by LDZ, 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.
Abusive conduct
37In the decision at issue, the Commission found that LG had abused its dominant position as railway infrastructure manager in Lithuania by removing the Track, which was capable of giving rise to the anticompetitive effects of foreclosing competition on the market for the provision of rail transport services for oil products between the Refinery and neighbouring seaports by raising barriers to market entry without there being an objective justification.
38In particular, the Commission found in recitals 182 to 201 of the decision at issue that, by removing the Track in its entirety, LG had had recourse to methods other than those which condition normal competition.
39In 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 business if the Track were rebuilt and, fifth, that LG had taken steps to convince the Lithuanian Government not to rebuild the Track.
40The 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.
41As regards the anticompetitive effects of LG’s conduct, the Commission took the view, following analysis set out in recitals 202 to 324 of the decision at issue, that the removal of the Track had been capable of preventing LDZ from entering the Lithuanian rail freight 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.
42According to the Commission, 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. In particular, the Commission took the view that, 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 longer route to Latvia mentioned in paragraph 12 of the present judgment. LDZ would therefore have been required to carry out its 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 take.
43The Commission also took the view, in recitals 325 to 357 of the decision at issue, that LG had provided no objective justification for removing the Track, since the explanations put forward were inconsistent, at times contradictory and were unconvincing.
Fine and order
44In applying the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’), the Commission, having regard to the gravity and duration of the infringement, imposed a fine of EUR 27873000 on LG.
45The Commission also ordered LG to bring the infringement to an end and to submit to it, within three months of notification of the decision at issue, a proposal for measures to that effect.
Operative part of the decision at issue
46Articles 1 and 2 of the decision at issue are worded as follows:‘Article 1[LG] has infringed Article 102 [TFEU] by removing the rail track between Mažeikiai in Lithuania and the Latvian border. The infringement started on 3 October 2008 and is on-going at the date of adoption of this Decision.Article 2For the infringement referred to in Article 1, a fine of EUR 27873000 is imposed on [LG].…’
The procedure before the General Court and the judgment under appeal
47By application lodged at the Registry of the General Court on 14 December 2017, LG brought an action seeking, primarily, the annulment of the decision at issue, and, in the alternative, the reduction of the fine imposed on it by that decision.
48By order of the President of the Third Chamber of the General Court of 13 July 2018, Orlen was granted leave to intervene in support of the form of order sought by the Commission. Certain information contained in procedural documents of the main parties was treated as confidential vis-à-vis Orlen.
49In 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 Article 2 of Regulation No 1/2003 on the ground of insufficient evidence and 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.
50In the context of its application for a 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 in respect of the gravity factor; second, the duration of the infringement; and, third, the decision to include an additional amount for deterrence in the basic amount.
51By the judgment under appeal, the General Court rejected all the pleas and arguments put forward by LG, both in support of its application for annulment of the decision at issue and in support of its application for a reduction of the amount of the fine.
52The General Court did, however, in the exercise of its unlimited jurisdiction, reduce the amount of the fine, which it set at EUR 20068650.
53It dismissed the action as to the remainder.
Procedure before the Court of Justice and forms of order sought
54By its appeal, LG claims that the Court should:– set aside the judgment under appeal in whole or in part, in so far as that judgment dismissed its action for annulment of the decision at issue;– set aside the decision at issue in its entirety or in part;– in the alternative, annul or further reduce the amount of the fine imposed on LG; and– order the Commission to pay all the costs arising from the present proceedings as well as from the proceedings before the General Court.
55The Commission and Orlen request the Court to:– dismiss the appeal; and– order LG to pay the costs.
The appeal
56In support of its appeal, LG raises four grounds of appeal, the first three of which seek, in essence, to challenge the General Court’s assessment of the existence of an abuse of a dominant position, and the fourth of which concerns the assessment of the fine imposed on it.
Admissibility of certain arguments
57As a preliminary point, it should be observed that the parties precede their arguments with considerations regarding the factual context of the present case.
58Accordingly, LG provides a description of the facts which appear to it to be relevant. The Commission observes that that description is misleading and erroneous, whereas Orlen alleges that, by that description, LG is attempting to challenge the facts established by the General Court.
59In addition, the Commission refers, in its preliminary observations, to a press release from LG’s Chief Executive Officer dated 30 December 2019, the admissibility and relevance of which for the purposes of the present appeal LG disputes.
60In that regard, it is sufficient to recall that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 24 September 2020, Prysmian and Prysmian Cavi e Sistemi v Commission, C‑601/18 P, EU:C:2020:751, paragraph 126 and the case-law cited).
61It follows that the various factual allegations and arguments must be declared inadmissible.
The first ground of appeal
Arguments of the parties
62By its first ground of appeal, LG criticises the General Court for having erred in law in paragraphs 90 to 99 of the judgment under appeal, in so far as it incorrectly refused to apply the test established in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), in order to establish the existence of the alleged abuse.
63That test is, in LG’s view, applicable to the present case, which raises the legal question of whether Article 102 TFEU imposed a legal duty on LG to grant LDZ access to the Track. However, the conditions relating to that test are not met in the present case.
64LG argues that, in fact, by holding, in paragraphs 90 to 99 of the judgment under appeal, that that test was not applicable in the present case, the General Court committed four errors of law.
65First, in LG’s view, contrary to the General Court’s findings in paragraph 90 of the judgment under appeal, there is no rule, either in the case-law of the Court of Justice or in the Opinion of Advocate General Jacobs in the case which gave rise to the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), cited by the General Court, that the criteria resulting from that judgment apply only where there is a need to protect a dominant undertaking’s incentive to invest in the creation of essential facilities.
66Second, LG takes the view that, contrary to the General Court’s findings in paragraphs 91 and 92 of the judgment under appeal, there is also no rule that those criteria do not apply where the regulatory framework in force already imposes a duty to supply the services in question.
67First of all, not applying those criteria in such a case implies that national law, or secondary EU legislation, defines the scope of EU primary law, which is incompatible with the primacy of EU law and with the requirement that EU competition law is applied consistently. Next, ex post review under Article 102 TFEU and ex ante sector legislation serve different purposes. 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 at the point when the Track was removed. That fact means that the present case can be distinguished from those which gave rise to the judgment of 13 December 2018, Slovak Telekom v Commission (T‑851/14, EU:T:2018:929), and subsequently to the judgments of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238), and of 25 March 2021, Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239).
68In those judgments, the Court of Justice distinguished between access to infrastructure and the conditions for such access. In the present case, the abuse found by the General Court concerns a genuine refusal to grant access on account of the removal of the Track. LG states that that refusal of access did not concern the whole of the Lithuanian rail network, but only the Track. The removal of the Track cannot be separated from the circumstances of such removal.
69Third, in LG’s view, none of the provisions mentioned by the General Court in paragraphs 96 and 97 of the judgment under appeal impose on an infrastructure manager, such as LG, an ‘absolute legal duty’ to grant access to every section of track in its network, in particular where alternative routes are available. Nor do any of those provisions impose an ‘absolute obligation’ to repair a dilapidated railway track by adopting a solution that the infrastructure manager deems to be ineffective or economically unreasonable. To that effect, LG refers, more specifically, to Article 5 of Directive 2001/14, read in the light of recital 5 thereof, and to Article 29(1) of that directive.
70Fourth, LG argues that, contrary to the General Court’s findings in paragraphs 91 and 93 of the judgment under appeal, no rule of law states that the criteria resulting from the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), are inapplicable where the dominant position derives from a State monopoly. In accordance with paragraph 23 of the judgment of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172), cited by the General Court, the fact that such a position has its origins in a former statutory monopoly ought solely to be taken into account.
71In the present case, it is not a question of determining whether LG was obliged to provide access to a functional network previously built using public funds, but rather of ascertaining whether LG 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 test established in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569).
72The Commission and Orlen contend that the first ground of appeal should be rejected as being unfounded.
Findings of the Court
73By its first ground of appeal, LG criticises in particular paragraphs 90 to 99 of the judgment under appeal, on the ground that, by refusing to apply the criteria established in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), to the present case, the General Court applied an incorrect legal test in order to assess whether there was an abuse of a dominant position.
74In paragraph 99 of the judgment under appeal, the General Court held that the Commission did not err in not assessing whether the conduct at issue, which consisted, as is apparent from paragraph 84 of that judgment, of the removal of the Track as such, met the conditions regarding the indispensability of the service to which access had been refused and the elimination of all competition laid down in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), and that it was sufficient, subject to any objective justification, to show that the conduct was such as to restrict competition and, in particular, to constitute an impediment to market entry.
75In paragraphs 90 to 98 of that judgment, the General Court justified that conclusion by reference to the purpose of the exceptional circumstances set out in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), which consists of ensuring that the obligation imposed on a dominant undertaking to provide access to its infrastructure does not, ultimately, hinder competition by reducing that undertaking’s initial incentive to construct such infrastructure and to invest in infrastructure. The General Court inferred, in essence, that the case-law arising from the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), could not apply where, as in the present case, the applicable regulatory framework already imposes a duty to supply on the dominant undertaking or where the dominant position derives from a statutory monopoly, particularly where the infrastructure in question belongs to the State and has been built and developed using public funds.
76In order to assess whether those considerations are, as LG alleges, vitiated by an error of law, it is important to recall that Article 102 TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it, in so far as it may affect trade between Member States. A dominant undertaking therefore has a special responsibility not to allow its behaviour to impair genuine, undistorted competition in the internal market (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 40 and the case-law cited).
77In accordance with the Court of Justice’s settled case-law, the concept of ‘abuse of a dominant position’, within the meaning of Article 102 TFEU, is an objective concept relating 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 (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 41 and the case-law cited).
78The examination of the abusive nature of a dominant undertaking’s practice pursuant to Article 102 TFEU must be carried out by taking into consideration all the specific circumstances of the case (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 42 and the case-law cited).
79As regards practices consisting of a refusal to grant access to infrastructure developed by a dominant undertaking for the purposes of its own business and owned by it, it is apparent from the case-law of the Court that such a refusal may constitute an abuse of a dominant position provided not only that that refusal were likely to eliminate all competition in the market in question on the part of the entity applying for access and that such refusal were incapable of being objectively justified but also that the infrastructure, in itself, were indispensable to carrying on that undertaking’s business, inasmuch as there was no actual or potential substitute in existence for that infrastructure (see, to that effect, judgments of 26 November 1998, Bronner, C‑7/97, EU:C:1998:569, paragraph 41, and of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraphs 43 and 44).
80The imposition of those conditions, in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), was justified by the specific circumstances of the case which gave rise to that judgment, which consisted in a refusal by a dominant undertaking to give a competitor access to infrastructure that it had developed for the needs of its own business, to the exclusion of any other conduct (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 45).
81First, as the Advocate General observed, in points 78 to 82 of his Opinion, the destruction, by a dominant undertaking, of infrastructure must be distinguished from a refusal of access, as provided for in the case-law arising from the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569).
82It follows from the foregoing considerations that that case-law concerns, in essence, a refusal of access to infrastructure, whereby, ultimately, the dominant undertaking reserves the infrastructure which it has developed for its own use (see, to that effect, judgment of 25 March 2021, Deutsche Telekom v Commission, C‑280/19 P, EU:C:2021:238, paragraph 47). That case-law implies, as the Advocate General has pointed out, in particular, in point 80 of his Opinion, maintaining infrastructure, the use of which the dominant undertaking reserves for itself in pursuit of an immediate benefit.
83It is clear that, by contrast, destroying infrastructure entails sacrificing an asset, subject, where appropriate, to the costs associated with such destruction. As a result of the destruction, the infrastructure inevitably becomes unusable by competitors but also by the dominant undertaking itself.
84Contrary to LG’s assertions, the present case does not therefore raise a ‘problem of access’ to infrastructure as provided for in the case-law arising from the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569).
85That is all the more true given that, as LG moreover acknowledges, the conduct complained of related to only one section of the Lithuanian rail network and did not prevent LG’s potential competitor from gaining access, as appropriate, to that network by another route.
86Second, it also follows from the Court’s case-law that the criteria established in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), are intended to strike a fair balance between, on the one hand, the requirements of undistorted competition and, on the other hand, the freedom of contract and the right to property of the dominant undertaking. In that sense, those criteria are intended to be applicable in the event of refusal of access to infrastructure which the dominant undertaking owns and which it has developed for the needs of its own business by means of its own investments (see, to that effect, judgments of 26 November 1998, Bronner, C‑7/97, EU:C:1998:569, paragraph 37, and of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 47).
87Accordingly, the General Court did not err in law in holding, in essence, in paragraphs 90, 93 and 94 of the judgment under appeal, that, having regard to their purpose, those criteria do not apply, in a situation such as that in the present case, where the infrastructure in question was financed by means not of investments specific to the dominant undertaking, but by means of public funds and that undertaking is not the owner of that infrastructure.
88Third, it is important to recall that the Court has already held that a regulatory obligation can be relevant for the assessment of abusive conduct, for the purposes of Article 102 TFEU. While the existence of a regulatory obligation on the dominant undertaking to grant access to the infrastructure in question cannot relieve the Commission of the requirement to establish the existence of an ‘abuse’ within the meaning of Article 102 TFEU, the fact remains that the imposition of such an obligation has the consequence that the dominant undertaking cannot actually refuse to give access to that infrastructure, without prejudice, as appropriate, to its decision-making autonomy in relation to the conditions for such access (see, to that effect, judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraphs 57 and 58 and the case-law cited).
89The General Court did not therefore err in law in holding, in paragraphs 91 and 92 of the judgment under appeal, that the criteria established in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569) are not applicable where the dominant undertaking is subject to an obligation to give access to its infrastructure.
90In the present case, LG does not dispute, as such, that it is subject to an obligation to grant access to the Lithuanian rail network. It is solely the scope of that obligation which is disputed.
91It follows from all of the foregoing that, contrary to the arguments put forward by LG, the removal of the Track cannot be understood as a refusal of access, as provided for in the case-law arising from the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), but must be viewed, depending on the circumstances, as an independent form of abuse (see, by analogy, judgments of 17 February 2011, TeliaSonera Sverige, C‑52/09, EU:C:2011:83, paragraphs 55 to 58, and of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 75). Consequently, the criteria established in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), are not applicable to the assessment of the conduct at issue.
92It follows that the General Court was fully entitled to hold, in paragraph 99 of the judgment under appeal, that the Commission did not err in not assessing whether the conduct at issue met those criteria.
93In the light of all the foregoing, the first ground of appeal put forward in support of the appeal must be rejected as being unfounded.
The second ground of appeal
Arguments of the parties
94By its second ground of appeal, LG submits that the General Court erred in law in finding that the Commission had established to the requisite legal standard that, in the circumstances of the present case, the removal of the Track constituted an ‘abuse’ within the meaning of Article 102 TFEU and in thereby categorising that removal itself as an ‘abuse’.
95According to LG, in paragraphs 168, 170, 177, 197, 204 and 231 of the judgment under appeal, the General Court, like the Commission, based that categorisation on two cumulative elements, namely on the fact that that removal was made ‘in great haste’ and on the fact that that removal was made ‘without [LG] having first secured the necessary funds’. Neither of those two elements justifies such a categorisation.
96First, 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 which would have led to its replacement at a later date. The abuse alleged against LG therefore lies solely in the timing of that removal, that is to say, as from 3 October 2008. However, since the timing of that 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 did not have any anticompetitive intent.
97Second, LG alleges that it expected to receive the funds for the reconstruction of the Track, which had to be available by the time the major part of the works would be carried out. Referring to paragraphs 152, 153, 160, 171, 174 to 176 and 196 of the judgment, LG argues that it had indeed requested 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.
98It maintains that the circumstances to which the General Court refers in order to establish the abuse alleged against it, in essence, arose after 3 October 2008. LG argues that, in that context, the General Court erred in law in requiring LG, in paragraphs 164, 165, 170 and 178 of the judgment under appeal, to establish or substantiate the timing of the Track’s removal, whereas it was for the Commission to establish the abuse.
99Furthermore, in paragraphs 152 and 170 of that judgment, the General Court failed to carry out a concrete examination of LG’s argument concerning the storage of the reusable parts of the Track and their reuse in other tracks. In any event, in order to be able to commence preparatory work on a project, it is not necessary to have first secured the necessary funds for the whole project.
100In its reply, LG states that it based the present ground of appeal on the only two elements which the General Court consistently mentioned and which relate to the fact that the removal of the Track was carried out ‘in great haste’ and without LG having first secured the necessary funds. In any event, even if it were necessary to include all four or five elements referred to in paragraphs 42 and 194 of the judgment under appeal, the finding of abuse has not been established. The additional elements, which are ancillary or irrelevant, are not capable of establishing such an abuse.
101LG also submitted arguments seeking to challenge each of those five elements at the hearing.
102The Commission contends that the present ground of appeal is unfounded.
103Orlen maintains that the present ground of appeal is ineffective and, in any event, inadmissible, in that it amounts to challenging the General Court’s assessment of the facts and evidence.
Findings of the Court
104By its second ground of appeal, LG criticises the General Court for having erred in law in upholding the Commission’s categorisation of the removal of the Track as an ‘abuse of a dominant position’ within the meaning of Article 102 TFEU. According to LG, that categorisation is based, in paragraphs 168, 170, 177, 197, 204 and 231 of the judgment under appeal, on two cumulative elements, namely the fact that that removal was made ‘in great haste’ and the fact that that removal was undertaken ‘without [LG] having first secured the necessary funds’.
105In so far as that argument is based on the premiss that the categorisation of the Track’s removal as an ‘abuse of a dominant position’ is based exclusively on those two elements, it must be held that it is based on a reading of the judgment under appeal which is manifestly erroneous.
106It is abundantly clear from a reading of the judgment under appeal as a whole, and in particular from paragraphs 42, 83, 193, 194, 196 and 224 thereof, that the General Court pointed out that it was by taking into account a set of factual and legal circumstances surrounding the removal of the Track that, in the decision at issue, the Commission had reached the conclusion that that removal constituted an ‘abuse of a dominant position’ within the meaning of Article 102 TFEU.
107Those circumstances, set out in paragraph 39 of the present judgment, relate to the facts that LG was aware of Orlen’s plans to switch to the Latvian seaports using LDZ’s services, 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, that the removal of the Track was contrary to standard practice in the sector, that LG was aware of the risk of losing all of Orlen’s business if the Track were rebuilt, and that LG had taken steps to convince the Lithuanian Government not to rebuild the Track.
108It was only after it had rejected all the arguments raised by LG in order to challenge those findings that the General Court upheld the substance of the Commission’s findings.
109The fact that the General Court referred, in paragraphs 168, 170, 177, 197, 204 and 231 of the judgment under appeal, which LG disputes, to only two of the elements set out in paragraphs 39 and 107 of the present judgment, namely the removal of the Track in great haste and with no guarantee of securing the necessary funds, is not capable of invalidating that reading of the judgment under appeal. In those paragraphs, the General Court merely examined specific arguments relating to those circumstances, which had been put forward by LG in order to challenge the finding of an ‘abuse of a dominant position’ within the meaning of Article 102 TFEU.
110It follows that the present ground of appeal must be rejected as being unfounded, there being no need to examine the arguments relating, more specifically, to those two elements.
111In any event, it should be noted, as did the Advocate General in points 99 to 102 of his Opinion, that, by those arguments, and by the arguments raised out of time in the reply and at the hearing in order to challenge the other circumstances which justified finding an abuse of a dominant position, LG is, in reality, seeking a fresh assessment of the facts.
112In the absence of an allegation of some kind of distortion, those arguments are therefore inadmissible, in accordance with the case-law cited in paragraph 60 of the present judgment.
113In the light of all the foregoing, the second ground of appeal must be rejected in its entirety.
The third ground of appeal
Arguments of the parties
114By its third ground of appeal, LG alleges that, in paragraphs 219 to 233 of the judgment under appeal, the General Court erred in law in categorising the removal of the Track, as such and irrespective of the earlier suspension of traffic on it, as ‘capable of restricting competition’.
115First, in LG’s view, that approach on the part of the General Court is based on a false premiss, which is apparent from paragraphs 223, 225 and 227 of the judgment under appeal. According to that premiss of the General Court, the option consisting of targeted initial repairs followed by a full reconstruction of the entire Track within five years, described by LG as ‘Option 1’, was a relevant and economically reasonable alternative to the option consisting of a full and immediate reconstruction of the Track, described by LG as ‘Option 2’. In addition, the General Court did not reject LG’s position, summarised in paragraphs 150, 151 and 167 of that judgment, that ‘Option 2’ was the only relevant and economically reasonable option, but simply left that question open, in paragraph 168 of the judgment. In those circumstances, LG takes the view that, for the purposes of the present appeal, ‘Option 2’ should be regarded as the only relevant and economically reasonable option. From that, LG infers that paragraphs 223, 225 and 227 of the judgment under appeal are contradictory and incompatible with the choice of ‘Option 2’.
116In addition, 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 means of the initial repairs under ‘Option 1’. That is, however, not the case, since, as LG submitted before the General Court, such repairs would have required LG to follow the same process, in particular 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 thereby contradicted itself.
117Second, LG argues that the General Court contradicted itself in finding, in paragraph 225 of the judgment under appeal, that the first stage of ‘Option 1’ involved ‘local repairs’, whereas, as it acknowledged in paragraph 164 of that judgment, that option involved substantial repairs along the entire length of the Track.
118Third, contrary to the General Court’s statements in paragraphs 221 to 223 of the judgment under appeal, LG is of the opinion that it is not subject to an absolute legal duty to restore the normal situation on the Track by making the initial repairs under ‘Option 1’ and that it could legitimately choose ‘Option 2’. LG claims that ‘Option 2’ would have allowed it to restore the normal situation, whilst clarifying that the timing of the Track’s removal, which cannot be avoided in order to implement ‘Option 2’, is irrelevant.
119Fourth, LG argues that the statement in paragraph 225 of the judgment under appeal, that foreclosure effects resulted from the fact that, when Orlen concluded 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 inconsistent with the findings made in paragraphs 24 and 25 of the judgment under appeal. In those paragraphs 24 and 25, 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. The removal of the Track therefore had no influence on the decision to withdraw the licence application, which is, in fact, 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 is apparent from paragraph 26 of the judgment under appeal.
120Fifth, in its reply, LG adds that the rapid implementation of the removal of the Track did not aggravate the situation existing after the earlier traffic suspension. At the material time, namely on 3 October 2008, in the absence of the removal, there was ‘no prospect of the Track being returned to service in the short term’.
121The Commission and Orlen contend that all those arguments should be rejected as being, in essence, unfounded.
Findings of the Court
122By its third ground of appeal, LG criticises the General Court for having erred in law in paragraphs 219 to 233 of the judgment under appeal.
123In those paragraphs, the General Court examined and rejected LG’s arguments seeking to dispute the Commission’s findings that the removal of the Track as such, irrespective of the earlier suspension of traffic on it, gave rise to the anticompetitive effects of foreclosing competition.
124First, the argument that paragraph 168 of the judgment under appeal contradicts paragraphs 223, 225 and 227 of that judgment is based on a misreading of paragraph 168.
125In paragraph 168 of the judgment under appeal, the General Court in no way described ‘Option 2’, involving a complete and immediate reconstruction of the Track, as being the only relevant and economically reasonable option. On the contrary, the words ‘even if, as [LG] contends, Option 2 were the only relevant and economically reasonable option’, found in that paragraph, clearly indicate that, as LG moreover acknowledges, the General Court did not make a finding concerning whether or not that option was the only relevant and economically reasonable option, to the exclusion, as the case may be, of ‘Option 1’. It follows that, contrary to the position taken by LG, it clearly cannot be asserted that, for the purposes of the present appeal, ‘Option 2’ must be regarded as having been the only relevant and economically reasonable option.
126Consequently, the argument based on such a premiss alleging contradictory reasoning must be rejected as being unfounded.
127In addition, in so far as LG disputes the finding, in paragraphs 223, 225 and 227 of the judgment under appeal, that the Track could have been returned to service ‘in the short term’ by means of initial repairs, it is sufficient to note that, in so doing, LG is, in reality and under the guise of relying on an alleged contradiction, seeking to call into question the General Court’s findings of fact. Since LG is not alleging any distortion of that evidence by the General Court, its argument is inadmissible, in accordance with the case-law referred to in paragraph 60 of the present judgment.
128Second, as regards the alleged contradiction between paragraphs 164 and 225 of the judgment under appeal, it must be observed that, in paragraph 164 of that judgment, the General Court stated that it was apparent from a letter sent on 18 September 2008 by LG’s Railway Infrastructure Directorate to LG’s Strategic Planning Council that only 1.6 km of the Track had to be reconstructed immediately and that defects found over 19 km of the Track implied that it ought to ‘be fully repaired within five years’. The General Court found that problems with 1.6 km of the 19 km of the Track could not justify the Track’s complete and immediate removal. It also stated that that letter also did not state that full repair within five years would have to involve the complete and immediate removal of the Track.
129In paragraph 225 of the judgment under appeal the General Court noted that the first stage of ‘Option 1’ consisted of ‘local repairs to parts of the Track which did not allow safe train traffic’.
130However, that finding does not appear to conflict in any way with the need for immediate repairs on a part of the Track or with the need for full repair within a longer period of five years.
131The argument alleging a contradiction between paragraphs 164 and 225 of the judgment under appeal must therefore be rejected as being unfounded.
132Third, as regards the arguments seeking to dispute paragraphs 221 to 223 of the judgment under appeal, it must be stated that they are based on a reading of those paragraphs which is incorrect and taken in isolation.
133In paragraphs 221 and 222 of that judgment, the General Court stated that LG, as a railway infrastructure manager, in addition to a regulatory obligation to guarantee safe traffic, was under an obligation to minimise disruption and improve the performance of the rail network. In paragraph 223 of that judgment, the General Court noted that LG, as the dominant undertaking on the relevant market, also had a special responsibility not to allow its conduct to impair genuine, undistorted competition. According to the General Court, LG should have taken that responsibility into account and avoided eliminating all prospect of the Track being returned to service in the short term by means of a staggered reconstruction. From that, the General Court inferred, in paragraph 224 of that judgment, that, by removing the entire Track, in the circumstances of the case, LG failed to have regard for its special responsibility under Article 102 TFEU.
134In addition, it is apparent from paragraphs 225 and 229 of the judgment under appeal that the finding that such removal of the Track was capable of having the anticompetitive effect of market foreclosure is based (i) on the fact that, by that removal, LG aggravated the situation prevailing after the suspension of traffic on that track and (ii) on the manner in which ‘Option 2’ was implemented, and not on the choice, as such, of that option instead of ‘Option 1’.
135It is apparent from those elements that, contrary to LG’s assertions, the General Court did not impose on it an ‘absolute legal duty’ to restore the normal situation on the Track by making the ‘Option 1’ initial repairs. On the contrary, it was the specific manner in which ‘Option 2’ was implemented and the effects of removing the Track which justified the finding of anticompetitive effects.
136Consequently, those arguments must be rejected as being unfounded.
137Fourth, as indicated by the use of the word ‘indeed’ in the context of the last sentence of paragraph 225 of the judgment under appeal, the reference in that place to the withdrawal, by LDZ, of its application for a licence to operate on the Lithuanian part of the Short Route to Latvia is a finding made for the sake of completeness.
138It follows that LG’s argument alleging a contradiction between that paragraph and paragraphs 24 and 25 of that judgment must be rejected as being ineffective.
139Fifth, in so far as LG alleges, for the first time in its reply, that the rapid implementation of the removal of the Track did not aggravate the situation existing after the suspension of traffic on that track, its argument is inadmissible on the ground that it is out of time. LG also seeks to call into question a factual assessment which, in accordance with the case-law cited in paragraph 60 of the present judgment, falls outside the jurisdiction of the Court of Justice at the appeal stage.
140In the light of all the foregoing, the third ground of appeal put forward in support of the appeal must be rejected in its entirety.
The fourth ground of appeal
Arguments of the parties
141By its fourth ground of appeal, LG criticises the General Court for having erred in law in its assessment of the fine imposed on it.
142In that regard, LG states that it follows from paragraphs 98, 196, 204 and 209 of the judgment under appeal that, according to the General Court, the decision at issue and the Commission’s findings were not based on a finding of anticompetitive intent on the part of LG.
143In examining, at the stage of reviewing the fine, arguments based on the novelty of the legal theory adopted in the decision at issue and the gravity of the infringement alleged against LG, the General Court referred to such an intent. That is shown by the wording of paragraphs 339, 368 and 374 of the judgment under appeal, according to which the conduct at issue ‘[was] seeking to keep competitors away from the market’ or was undertaken ‘with the aim of keeping competitors far from the market’.
144LG argues that the General Court therefore contradicted itself. That contradiction in reasoning had an impact on the General Court’s assessment of the need to impose a fine and, where appropriate, the appropriate amount of that fine, as well as the gravity of the infringement. In the absence of that contradiction, the General Court ought to have accepted that the legal theory underlying the decision at issue was novel and could have adopted another approach as regards the gravity of the infringement in the absence of anticompetitive intent and, accordingly, as regards the exercise of its unlimited jurisdiction.
145In its reply, LG adds, in the latter respect, that since the finding of such intent is vitiated by an error, the General Court’s assessment could change, irrespective of any other considerations on which it relied. In any event, it cannot be excluded that the amount of the fine set by the General Court would have been lower if the General Court had not relied on contradictory reasoning and on LG’s alleged intent to keep competitors far from the market.
146LG further added at the hearing that, at the stage of calculating the fine, in paragraph 399 of the judgment under appeal, the General Court took account of the gravity of the infringement, which is based on anticompetitive intent. By referring to anticompetitive intent as a factor in assessing gravity, the General Court altered the constituent elements of the infringement found by the Commission and, accordingly, exceeded its powers.
147The Commission contends that that ground of appeal is ineffective.
Findings of the Court
148By the fourth ground of appeal LG criticises the General Court for contradictory reasoning. Accordingly, on the one hand, the General Court, in its review of the finding of an abuse of a dominant position, expressly ruled out, in paragraphs 169, 204 and 209 of the judgment under appeal, any anticompetitive intent. On the other hand, however, it alluded to such an intent in paragraphs 339, 368 and 374 of that judgment and took it into account when calculating the amount of the fine in paragraphs 397 to 406 of that judgment. That contradiction and the taking into account of an anticompetitive intent at the stage of calculating the fine may have had an effect on the exercise, by the General Court, of its unlimited jurisdiction and, consequently, on the amount of the fine imposed on it.
149The present ground of appeal is misplaced. Even if the General Court contradicted itself, as LG alleges, such a contradiction would not justify setting aside the judgment under appeal or result in the Court of Justice re-evaluating the amount of the fine.
150After having rejected all the pleas concerning legality seeking annulment of the decision at issue and all the complaints raised by LG in support of its application for a reduction of the amount of the fine, the General Court, in paragraphs 389 to 406 of the judgment under appeal, re-evaluated the amount of the fine. Following that re-evaluation, the General Court set that fine at EUR 20068650, an amount significantly lower than that adopted by the Commission, without making any reference whatsoever to anticompetitive intent.
151In that regard, it is important to recall that, in accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines set by the Commission.
152The General Court is therefore empowered, in addition to carrying out a mere review of the lawfulness of those fines, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 124 and the case-law cited, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 136).
153By contrast, it is not for the Court of Justice, when ruling on questions 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. Accordingly, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 125 and 126 and the case-law cited, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 137).
154In addition, it is settled case-law that the General Court is bound, when exercising its unlimited jurisdiction, by certain requirements, which include the duty to state reasons, by which it is bound in accordance with Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court under the first paragraph of Article 53 of the statute, and the principle of equal treatment (see, to that effect, judgments of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77 and the case-law cited, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 138).
155In the present case, in accordance with Article 23(3) of Regulation No 1/2003, the General Court’s assessment of the amount of the fine was guided, as is apparent from paragraphs 394, 395, 397 and 404 of the judgment under appeal, by taking into consideration the gravity of the infringement committed and its duration. In paragraphs 399 to 402 of the judgment under appeal, the General Court, as regards the gravity of the infringement in question, took account of the nature of that infringement, LG’s position on the relevant markets and the geographic extent of that infringement.
156It is abundantly clear from the grounds set out in paragraphs 398 to 406 of the judgment under appeal that, as the Advocate General also observed in points 151 and 153 to 155 of his Opinion, the re-evaluation of the amount of the fine is in no way based on account having been taken of any anticompetitive intent.
157It follows that, even if, in assessing the arguments put forward by LG in support of its applications for annulment of the decision at issue and for a reduction of the amount of the fine, the General Court contradicted itself concerning whether or not there was anticompetitive intent, such a contradiction would, in any event, have no effect on the General Court’s re-evaluation of the amount of the fine.
158Consequently, LG’s arguments alleging a contradiction in the grounds of the judgment under appeal are, in any event, ineffective.
159Furthermore, in so far as LG seeks to ask the Court to review the General Court’s exercise of its unlimited jurisdiction, it is sufficient to note that, having regard to the case-law referred to in paragraph 153 of the present judgment, LG has failed to adduce evidence capable of showing that the level of the fine, as reduced by the General Court, is not only inappropriate, but also excessive to the point of being disproportionate.
160In the light of all the foregoing, the fourth ground of appeal must be rejected in its entirety.
161Since none of the grounds of appeal raised in support of the present appeal have been successful, the appeal must be dismissed in its entirety.
Costs
162Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
163Since the Commission and Orlen have applied for costs to be awarded against LG and the latter has been unsuccessful, LG must be ordered to bear its own costs and to pay those incurred by the Commission and by Orlen.
Operative part
On those grounds, the Court (Third Chamber) hereby:
1.Dismisses the appeal;
2.Orders Lietuvos geležinkeliai AB to bear its own costs and to pay the costs incurred by the European Commission and by Orlen Lietuva AB.
Delivered in open court in Luxembourg on 12 January 2023.
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