Judgment_paragraph 67 · Lietuvos geležinkeliai AB v European Commission (C-42/21 P)

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).