5.  The applicant company is a legal entity registered in Mažeikiai. 6.  In 2004 the Competition Council (Konkurencijos taryba) opened an investigation into the applicant company’s alleged abuse of its dominant position on the fuel market. The investigation covered the applicant company’s activities between 2002 and 2004. According to the applicant company, the last action that fell within the scope of the investigation was undertaken on 31 December 2004. 7.  On 7 March 2005 the Competition Council decided to broaden the scope of the investigation and to find out whether the applicant company’s activities had affected trade between the European Union member States, as defined in Article 82 of the Treaty establishing the European Community (“the TEC”) – now Article 102 of the Treaty on the Functioning of the European Union (“the TFEU” – see paragraph 43 below). 8.  On 22 December 2005 the Competition Council found that the applicant company had abused its dominant position on the fuel market, and fined it 32,000,000 Lithuanian litai (LTL – approximately 9,267,841 euros (EUR)). 9.  The applicant company appealed against the decision of the Competition Council of 22 December 2005 (see paragraph 8 above). It argued that the Competition Council had committed procedural violations and that it had also made mistakes in defining the scope of the market and the scope of the geographical market, and that its ruling that the applicant company had abused its dominant position on the fuel market had thus been unjustified. The applicant company also described as unjustified the Competition Council’s ruling that its pricing had been discriminatory and that the applicant company had obliged other economic entities to sign loyalty and non-competition agreements (see paragraph 16 below), and that it had discriminated against other economic entities. The applicant company also described as unfounded the Competition Council’s ruling that it had sold diesel fuel for differing prices to different economic entities and had thus discriminated against them and that it had sold arctic diesel fuel to one economic entity for a better price than that which it had offered to others. The applicant company was also dissatisfied with the level of the fine and was of the view that that it had been disproportionate. 10.  On 28 June 2008 the Vilnius Regional Administrative Court stated the following. The court held that the Competition Council had a right to investigate whether actions of economic entities had been in accordance with Article 82 of the TEC. The court emphasised that the Law on Competition enabled the Competition Council to initiate an investigation upon its own initiative if it gave sufficient reasons for doing so. In the present case, the Competition Council had given sufficient reasons for broadening the investigation to cover Article 82 of the TEC. The court found that the Competition Council had committed some procedural violations and decided to annul parts of its decision. The court also examined the case on the merits. It held that the Competition Council had defined the scope of the market and the geographical market incorrectly, and that that had had a major impact on its decision. It followed that further conclusions reached by the Competition Council regarding the applicant company’s dominant position, its abuse of that dominant position and compliance with Article 82 of the TEC could not have been just because they had been based on incorrect data. 11.  The Competition Council appealed. On 8 December 2008 the Supreme Administrative Court delivered its decision, stating that it disagreed with the first-instance court regarding a number of procedural violations but holding that the Competition Council had not extensively explained why it had ignored the applicant company’s arguments regarding the scope of the market. In order to establish the scope of the market, it was necessary to investigate further. The court thus decided to return the case to the Competition Council for additional investigation (grąžinti bylą Konkurencijos tarybai atlikti papildomą tyrimą). 12.  On 15 January 2009 the Competition Council decided that the Supreme Administrative Court’s decision (see paragraph 11 above) obliged it to undertake additional investigative measures into the applicant company’s activities and decided to reopen the investigation (atnaujinti tyrimą) with regard to the applicant company. 13.  On an unspecified date, the applicant company appealed against the decision of the Competition Council to recommence the investigation. It submitted that the investigation of the applicant company’s activities had covered the period between 2002 and 2004. Although the initial investigation had not mentioned the end date of the actions examined, it could be presumed that the last investigated action had been undertaken on 31 December 2004. Domestic law provided that economic entities could only be held liable for breaches of the Law on Competition up to three years after the date of the violation in question or, if the violation was continuous, three years after the date of the last action that had been contrary to the Law on Competition (see paragraph 27 below). The applicant company stated that the last such action had been undertaken by it on 31 December 2004 and that the limitation period had ended on 31 December 2007; it could thus not be held responsible for breaches of the Law on Competition. 14.  On 25 May 2009 the Vilnius Regional Administrative Court dismissed the applicant company’s complaint. The court held that final court decisions had to be executed, and that in view of the fact that the decision of the Supreme Administrative Court of 8 December 2008 had become final (see paragraph 11 above), the Competition Council had an obligation to reopen the investigation into the applicant company’s activities. 15.  The applicant company lodged an appeal, which was dismissed by the Supreme Administrative Court on 13 May 2010. The court provided its reasoning in five short paragraphs, holding that by its impugned decision the Competition Council had merely restarted the previous investigation (rather than opening a new one) (skundžiamu nutarimu yra tik atnaujinamas anksčiau vykdytas tyrimas vykdant Lietuvos vyriausiojo administracinio teismo įpareigojimą, o ne pradedamas naujas tyrimas), and that the provision of the domestic law regarding the limitation period was only applicable in respect of new investigations. 16.  In order to comply with the decision of the Supreme Administrative Court of 8 December 2008 (see paragraph 11 above), on 16 December 2010 the Competition Council carried out an additional investigation into the applicant company’s activities. The Competition Council clarified the definition of the geographical scope of the market, narrowing it to the territory of Lithuania. The Competition Council found that the applicant company had undertaken actions that had restricted competition – namely, it had abused its dominant position by applying discriminatory pricing, by imposing yearly loyalty requirements on other economic entities (that is to say by requiring them to agree to purchase a certain amount of fuel per year from the applicant company) and by restricting parallel imports and the onward sale by its clients of cheap fuel. The applicant company raised an issue regarding the limitation period, claiming that it had expired and that the Competition Council therefore had to terminate the investigation. The Competition Council was of the view that a limitation period had to be calculated from the time at which the economic entity in question had ceased engaging in unlawful activity. One of the breaches committed by the applicant company had started in 2002; one had started in 2003; and the rest had started in 2004. There was no information that the applicant company had ended its unlawful activities (except for one of them). Thus, the three‑year limitation period had not even started to run. Moreover, there was no information that the applicant company had changed its behaviour on the relevant markets in such a way that it no longer undertook actions contrary to the Law on Competition and the TFEU; therefore, the violation had been continuous, and it could not be held that the limitation period had expired. Even if the limitation period had started running before the Competition Council’s issuance of its decision of 22 December 2005, the calculation of it would nevertheless have ceased to run on the day that the Competition Council adopted its decision. The time‑limit for holding the applicant company liable should have started running on 8 December 2008 – the date of the Supreme Administrative Court’s partial annulment of the decision of the Competition Council. Otherwise, it would have been impossible for the Competition Council to rectify the shortcomings in its decision owing to the length of the court proceedings. Such a situation would have been contrary to the principles of justice and reasonableness because the harmful actions in question could have continued and there would have been no opportunities to require the applicant company to terminate them. Moreover, it would have been impossible to enforce the execution of the court’s decisions. The calculation of the limitation period provided by the applicant company was favourable to other economic entities that had breached the Law on Competition. Such economic entities would only have to behave in such a manner as to ensure that the court proceedings in respect of their own behaviour lasted for a long time.
The Competition Council also drew attention to the provisions of the Code of Administrative Offences, wherein it was stated that if a court annulled a decision to impose a sanction on an economic entity or to terminate the procedure regarding the imposition of a sanction (or if that first‑instance decision was annulled by an appellate court), the time-limits would start to run again from the date on which the court’s or appellate court’s decision became final (see paragraph 31 below). The Supreme Administrative Court held that responsibility for violations of the Law on Competition was an administrative responsibility in the broad sense and that the principles of administrative responsibility could also be applied to violations of the Law on Competition (see paragraph 38 below). The Competition Council decided that the provisions of the Code of Administrative Offences had to be applied in the applicant company’s case and that – irrespective of the rules of the Law on Competition – the time-limit had to be calculated from the day on which the Supreme Administrative Court had adopted its decision. The provisions of European Union law also provided that the limitation period for imposing fines had to be suspended when the European Commission’s decision was reviewed by the European Union Court of Justice (see paragraph 47 below). The Competition Council was of the view that the national competition authority could not be more limited than the European Commission in its ability to suspend the limitation period.
The Competition Council also relied on the decision of the Supreme Administrative Court of 13 May 2010, whereby the court held that the Competition Council had been obliged to reopen the investigation and not to start a new one (see paragraph 15 above). The Competition Council found that the applicant company had breached the Law on Competition and the TFEU and fined it LTL 8,231,000 (approximately EUR 2,383,862). 17.  The applicant company lodged a complaint with the Vilnius Regional Administrative Court and asked it to annul the order of the Competition Council of 16 December 2010 (see paragraph 16 above). The applicant company’s arguments were based, inter alia, on the fact that the limitation period for imposing the fine had been missed and that the applicant company could not be held responsible for violations of the Law on Competition and of the TFEU. The applicant company argued, inter alia, that the Law on Competition set the most serious economic sanctions of all those provided under the Lithuanian legal system and that such high fines threatened the continuity of the activities of economic entities and that because of that it was logical that the law provided that the limitation period could not be suspended or renewed. 18.  On 15 April 2011 the Vilnius Regional Administrative Court dismissed the applicant company’s complaint. As regards the limitation period and its calculation, the court held that the investigation into the applicant company’s activities had been started on 15 July 2004. The Competition Council was of the view that the limitation period had not started running before 22 December 2005 and that even if it had, it must have stopped when the Competition Council had adopted its decision (see paragraph 8 above). When the Supreme Administrative Court had annulled part of the Competition Council’s decision (see paragraph 11 above), the time-limit for responsibility for violations of competition law had had to be reset. The Vilnius Regional Administrative Court decided that the investigation had merely been reopened and that no new investigation had been initiated (nagrinėjamu atveju tyrimas tiesiog buvo atnaujintas, o ne pradėtas naujas) and that the applicant company’s arguments regarding the limitation period had been unfounded. 19.  The applicant company appealed, raising the issue of the limitation period. On 21 January 2013 the Supreme Administrative Court upheld the arguments of the Vilnius Regional Administrative Court (see paragraph 18 above). It added that there was disagreement between the parties about the dates on which the applicant company had committed violations. Because the Competition Council had investigated the applicant company’s activities between 2002 and 2004, the court held that the last violation had been committed by the applicant company on 31 December 2004. The court also observed that the Competition Council had not proved that the violation had continued after 31 December 2004, and did not accept its arguments that the applicant company’s violation had been continuous or that the limitation period had not started running at all. The court then emphasised the importance of the principle of res judicata – that is to say the factual and legal aspects had been examined in another decision of the court and had to be accepted, and that a party to the proceedings or another person who had participated in the case (where the parties to the proceedings were the same) could rely on that court’s decision without having to prove the same circumstances again. In addition, one of the most important elements of the principle of the rule of law was the principle of legal certainty, which required that the principle of res judicata be respected. Accordingly, when the courts resolved a case, their decisions should not be questioned or left unexecuted, because courts’ decisions (together with legal norms) were a guarantee of the stability of public life and the certainty of social relations. Having regard to that, the Supreme Administrative Court was of the view that on 13 May 2010 it had already examined the Competition Council’s right to reopen the investigation into the applicant company’s activities (see paragraph 15 above). As a result, the legality of the reopening of the investigation had the power of res judicata and could not be questioned again.
The Supreme Administrative Court also referred to another one of its cases, decided by different composition with an exception of one judge, on 21 June 2012, which had concerned the sale of dairy products (“the dairy products case”). In that case it had examined the relevant provisions of the Law on Competition – namely their application when a case concerning a violation of competition law was transferred for examination to a court, which then annulled the decision of the Competition Council and returned the case to it for further investigation (see paragraph 40 below). However, the court held:
“In the opinion of the extended composition of the court, the reasoning provided in the dairy products case is not applicable to the present case firstly, because of the abovementioned arguments regarding the influence of the decision of 13 May 2010 and the principle of res judicata. Moreover, the circumstances of the instant case and the one in which the decision of 21 June 2012 has been adopted, are not the same or so similar that they could be examined similarly. In the administrative case no. A520‑2136/2012 the court has examined the legality of the decision of the Competition Council whereby the economic entity was suspected of a breach of the provisions of the Law on Competition and in the instant case the applicant company is suspected of breaching both the Law on Competition and the TFEU. In the opinion of the extended composition of the court, this circumstance also determined the conclusion that the two cases are substantively different and the decision, taken in one of them, cannot be a precedent in determining the other one.”
The court thus decided that the Competition Council’s ruling that (i) the limitation period had not expired and (ii) the applicant company could be held liable for the breaches of the Law on Competition had been lawful.
The court did however lower the fine to LTL 7,819,450 (approximately EUR 2,264,669).