22.3.2021

Official Journal of the European Union

C 98/16

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(Case C-42/21 P)

(2021/C 98/16)

Language of the case: English

Parties

Appellant: Lietuvos geležinkeliai AB (represented by: W. Deselaers, K. Apel, P. Kirst, Rechtsanwälte)

Other parties to the proceedings: European Commission, Orlen Lietuva AB

Form of order sought

The appellant claims that the Court should:

—set aside the judgment under appeal, in whole or in part, in so far as the judgment dismissed the appellant’s action for annulment against the Commission Decision C(2017) 6544 final of 2 October 2017 in Case AT.39813 — Baltic Rail (1);

—annul the Decision, in whole or in part;

—in the alternative, annul or further reduce the fine imposed on Lietuvos geležinkeliai; and

—order the Commission to pay all costs related to the present proceedings and the proceedings before the General Court.

Pleas in law and main arguments

The appellant bases its appeal on four grounds.

First, the General Court has incorrectly interpreted and as a result incorrectly applied the Court’s jurisprudence by which a dominant undertaking only needs to grant access to an infrastructure if the refusal is likely to eliminate all competition on the market on the part of the person requesting access, if such refusal is incapable of being objectively justified, and if the access in itself is indispensable to carrying on that person’s business.

Second, the removal of a 19 kilometre rail track connecting Mažeikiai in north-western Lithuania with the Latvian border (the ‘Track’) ‘in great haste and without having first secured the necessary funds’ does not constitute an abuse of a dominant position.

Third, the General Court committed an error of law in qualifying the removal of the Track as capable of restricting competition.

Fourth, the General Court contradicted itself by referring to appellant’s allegedly anticompetitive intent for the purpose of determining whether a fine should be imposed and for the purpose of assessing the level of fine, despite having found that the alleged infringement is not based on the appellant’s intent, anticompetitive strategy or bad faith.

Summary of Commission Decision of 2 October 2017 relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union (Case AT.39813 — Baltic Rail) (notified under document number C(2017) 6544) (OJ 2017, C 383, p. 7).

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