Case C-42/21P Lithuanian Railways – another clarification on the Bronner case law and the non-exhaustive character of art. 102 TFEU

competition law, abuse of dominance, refusal to supply, Lithuanian railways, bronner, essential facility, art. 102 TFEU

The recent case of Lithuanian Railways provides yet another clarification on the scope of application of the Bronner case law. The Judgement of the CJEU reconfirms exceptional character of the Bronner case law and the type of situations it is intended to apply to. By doing so the CJEU potentially helps prevent future disputes of a similar  nature in the context of the constantly growing number of regulatory frameworks in the digital economy.  Furthermore, the CJEU takes the opportunity to show once more that the array of abuses that can be found under art. 102 TFEU is non-exhaustive.

Factual background leading to the (appeal) case

The case of Lithuanian Railways concerns access to a short rail track route between Lithuania and Latvia (‘the Short Route to Latvia’). Lietuvos Geležinkeliai AB (LG), which was granted a statutory monopoly to manage and maintain the entire Lithuanian railway network was found to abuse its dominant position due to the removal of this track between Lithuania and Latvia and thereby undermining the access to the Lithuanian railway network for railway transport providers with which it would potentially compete.

The removal of the track was a last phase in an escalated financial dispute between LG and one of its main customers, Orlen Lietuva AB, which specialized in the refining and distribution of oil. Prior to the dispute, Orlen used LG’s services to transport its refined oil from Lithuania to Latvia via a short rail route connecting the two countries and to transport refined oil from its factory to the seaport of Klaipeda (Lithuania) for export. The transport service to Latvia was facilitated by LG and operated together with the Latvian national railway company (LDZ) subcontracted by LG. Because of the financial dispute concerning the rates of LG for this service, Orlen considered contracting directly with LDZ instead. Furthermore, Orlen also considered moving its seaborne export business from Klaipeda (Lithuania) to Riga and Ventspils (Latvia). Shortly after Orlen started putting these plans into action as well as communicating them to LG, LG suspended all traffic on the short track for safety reasons, and later on proceeded with removing the entire short rail track between Lithuania and Latvia. According to the Commission, the removal of the short rail track by LG, constituted an abuse of dominance. By removing the track, LG prevented LDZ from entering the market for rail transport services between Lithuania and Latvia and thus hindered competition on the market.

In its appeal before the General Court (Case T-814/17), LG claimed that the Commission had wrongfully chosen not to apply the Bronner case law criteria when assessing its practices given the matter concerns an alleged refusal to grant access to the Lithuanian railway network. The GC disagreed and dismissed LG’s arguments in this regard. The GC took a similar stance as in Slovak Telekom that is quoted (par. 92). Accordingly, since unhindered access to the national railway systems was already mandated by national legislation and EU secondary legislation, the Bronner case law would not constitute the relevant legal framework for establishing an abuse (para. 96-99). According to the GC, where secondary EU legislation concerning access to infrastructure is in place, the balance of interests carried out in the Bronner case law has already been made, with the outcome that granting such access is mandatory (par. 92).

Following the decision of the GC in favor of the Commission, LG appealed the decision before the CJEU. In its appeal LG requested the annulment of the GC decision, claiming, among other things, the erroneous application of the Bronner case law as well as an erroneous application of the concept of abuse under art. 102 TFEU. On the matter of Bronner, as in the case before the GC, LG claimed that since the alleged abuse concerned the denial of access finding an infringement of art. 102 TFEU requires the application of the Bronner criteria of essential facility. On the matter of abuse LG claimed that the removal of the rail track section and the circumstances revolving around that event do not amount to an abuse under art. 102 TFEU. The former of the two is however is where this case delivers the most value to current practice, as will be discussed.

The findings of the CJEU

When addressing the relevance of the Bronner criteria, the CJEU finds, similar to AG Rantos , that the destruction of infrastructure (e.g. removal of a piece of track) which has the outcome of hindering access is not the same as refusing access to the infrastructure as intended to be addressed by the Bronner case law (para. 81-83). According to the CJEU refusal to supply cases in the sense of the Bronner case law involve situations where the dominant undertaking refuses to grant access to its infrastructure  (facility or input) so as to reserve such capacity to itself in pursuit of an immediate benefit. By contrast, the destruction of a (part of) an infrastructure entail willingly incurring additional costs while at the same time hindering access to the infrastructure for both (potential) competitors as well as the dominant undertaking itself. Furthermore, the hindering of access to the infrastructure in this case does not concern the entire railway network as such but only to a specific section; other (longer) routes on the network connecting similar destination and departure points remained open for potential competitors. Accordingly, the CJEU findings that these circumstances do not entail a problem of access as intended to be covered by the Bronner case law.

Finally, the CJEU adds , agreeing with the GC, that where access to an infrastructure has been already mandated by a separate regulatory framework, the Bronner criteria are no longer applicable when such access is hindered by the dominant undertaking. Interestingly, the CJEU takes a bit of a different approach to the matter than the GC. According to the CJEU the reason why the Bronner case law in no longer relevant in such cases is that the dominant undertaking is (formally) not able to refuse access, as such, but merely influence the conditions of such access. In this case the CJEU noted that the regulatory obligation to grant access to the infrastructure was not disputed, only the scope of such obligation was. Therefore, if one cannot (legally) refuse, there is no room for applying the case law developed for refusal to supply cases.  Therefore, according to the CJEU the behavior of LG constituted an independent form of abuse, thereby emphasizing once more the non-exhaustive nature of art. 102 TFEU that is inherently a topic of debate in unprecedented cases. Before reaching this finding, however, the CJEU pointed out that the presence and eventual infringement of a regulatory obligation by a dominant undertaking does not as such relieve the Commission from proving how such practices contribute to the finding of an abuse under art. 102 TFEU. In other words, the infringement of a regulatory obligation by a dominant undertaking does not, on its own, suffice to find a abuse of dominance. A clear link between the circumstances of the infringement and the rationale behind the concept of abuse needs to be made.

Outlook  

The judgement of the CJEU, while not revolutionary, delivers an important clarification on the application of the Bronner case law criteria which further emphasizes their exceptional character and very narrow scope of application. This is a valuable contribution to future practice. While the Commission is unlikely to pursue cases that deal with genuine refusals to supply due to the stringency of the Bronner criteria (for better or worse), the same high standard of proof makes this case law an appealing defense strategy for dominant undertakings facing potential findings of abuse. By further clarifying the applicability scope of the Bronner case law the CJEU ensured that the exceptional nature of such cases does not spill-over to other types of unintended circumstances.

This contribution will be particularly  valuable in future cases concerning the digital economy where the various applicable EU regulatory frameworks include multiple obligations related to access, interoperability, compatibility, (data) sharing, which directly or indirectly may also have an actual or potential effect on competition. It is not hard to imagine that the enforcement of such obligations and potential infringements thereof when it comes to undertakings with significant market power, could easily cross lines with EU competition law and the potential application of art. 102 TFEU. In absence of clarifications such as the one in the case at hand – the debate on the applicability of the Bronner criteria in such cases is almost inevitable.

What remains to be seen in practice is how the Commission (or NCAs) will incorporate infringements of such regulatory frameworks in their application of EU competition law. As the CJEU indicates, the infringement of such frameworks alone does excuse the Commission from substantiating how and why such actions would (also) constitute an infringement of EU competition law – whilst at same time avoiding crossing paths with the ne bis in idem principle.

Finally, the finding that LG’s behavior in this case constituted an independent form of abuse provides yet another important reminder that the scope of EU competition law is non-exhaustive and is constantly evolving within the (legal and economic) boundaries of its rationale and objectives. This in turn is principal for sustaining the legitimacy of legal intervention in novel situations which often do not fit the frameworks of previously established infringements despite being equally undesirable from a competition policy perspective. In this regard this reaffirmation by the CJEU is particularly valuable in the case of art. 102 TFEU where the identification of ‘new’ forms of abuse is often subject to extensive critique from practitioners and academics. By showcasing once more the non-exhaustive scope of art. 102 TFEU, the CJEU send a clear message with regard to which elements of future decisions can be challenged. The possibility of finding of new abuses is as such not subject to debate; the manner in which these are established and substantiated, however, is. When moving forward with the enforcement of EU competition law in the context of digital markets, establishing this common ground is key to preventing legal debates from getting off track (no pun intended) which in turn do little other than prolonging the entire enforcement process.

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Daniel Mandrescu

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Assistant Professor EU competition law, Europa Institute, Leiden University

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