JUDGMENT OF THE GENERAL COURT (First Chamber, Extended Composition)

18 November 2020 ( *1 )

(Competition – Abuse of a 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 – Calculation of the amount of the fine – 2006 Guidelines on the method for setting fines – Remedies – Proportionality – Unlimited jurisdiction)

In Case T‑814/17,

Lietuvos geležinkeliai AB, established in Vilnius (Lithuania), represented by W. Deselaers, K. Apel and P. Kirst, lawyers,

applicant,

v

European Commission, represented by A. Cleenewerck de Crayencour, A. Dawes, H. Leupold and G. Meessen, acting as Agents,

defendant,

supported by

Orlen Lietuva AB, established in Mažeikiai (Lithuania), represented by C. Thomas and C. Conte, lawyers,

intervener,

APPLICATION pursuant to Article 263 TFEU seeking, primarily, the annulment of Commission Decision C(2017) 6544 final of 2 October 2017 relating to proceedings under Article 102 TFEU (Case AT.39813 – Baltic Rail) and, in the alternative, the reduction of the fine imposed on the applicant,

THE GENERAL COURT (First Chamber, Extended Composition),

composed of S. Papasavvas, President, H. Kanninen, N. Półtorak (Rapporteur), O. Porchia and M. Stancu, Judges,

Registrar: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 February 2020,

gives the following

Judgment

I. Background to the dispute

A. Factual context

1 Lietuvos geležinkeliai AB (‘the applicant’ or ‘LG’) 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.

2 Orlen Lietuva AB (‘the intervener’ or ‘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 PKA Orlen S.A.

3 Orlen’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. That refinery is the sole installation of its type in the three Baltic States. 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 the applicant’s most significant customers.

4 At 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 to countries in Western Europe. Accordingly, 4.5 to 5.5 million tonnes of refined oil products were transported through Lithuania by train to the seaport of Klaipėda (Lithuania).

5 The 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 (‘the Long Route to Latvia’).

6 In order to transport its products on the Short Route to Latvia, Orlen used the applicant’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 the applicant. After crossing the border, LDZ continued to transport Orlen’s products on Latvian territory under various contractual arrangements.

7 Until September 2008, commercial relations between Orlen and the applicant concerning the applicant’s transport services on the Lithuanian rail network, including transport on the Short Route to Latvia, were governed by an agreement signed in 1999 (‘the 1999 Agreement’).

8 As well as setting out the rates applied by the applicant for transport services, the 1999 Agreement included, in particular, a specific commitment by the applicant to transport Orlen’s cargo on the Short Route to Latvia. Article 6.1 of that agreement entitled Orlen to ‘use the Bugeniai-Rengė route (approximately 34 km) to carry loads anywhere in Latvia, Estonia or [the Commonwealth of Independent States]’ for the duration of the agreement, namely until 2024.

9 In early 2008, a commercial dispute arose between the applicant and Orlen regarding the rates paid by Orlen to the applicant for the transport of its oil products.

10 Because of the commercial dispute with the applicant concerning the rates, 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.

11 Accordingly, on 4 April 2008, Orlen wrote to the Latvian Ministry of Transport and Communications to inform it of its plans to switch its seaborne export business to the Latvian seaport of Ventspils using LDZ’s rail transport services and suggested organising a meeting to discuss those plans with the Ministry. Orlen also requested information on the rates which it could expect for LDZ’s rail transport services. In its reply of 7 May 2008, the Ministry informed Orlen that it would not interfere with LDZ’s commercial decisions but that it nevertheless was very interested in developing freight transportation in Latvia.

12 On 12 June 2008, a meeting was held between the applicant 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 the applicant and to withhold the payment of the difference, on 17 July 2008, the applicant initiated arbitration proceedings against Orlen.

13 On 28 July 2008, LG informed Orlen that the 1999 Agreement would be terminated as from 1 September 2008. Orlen noted during the administrative procedure before the Commission of the European Communities that the termination of the 1999 Agreement from 1 September 2008 had been announced by LG three days after it had formally requested a quotation from LDZ to replace the applicant’s services for transporting, from the Refinery using the Short Route to Latvia, approximately 4.5 to 5 million tonnes of refined oil products to the seaports located in the territory of Latvia. Orlen also suggested that the applicant could have been informed of the request for a quotation directly by LDZ.

14 On 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’).

15 On 3 September 2008, the applicant set up an Inspection Commission composed of senior employees in its local subsidiary to investigate the reasons for the Deformation. The Inspection Commission submitted two reports, namely the investigation report of 5 September 2008 and the technical report of 5 September 2008 (together, ‘the Reports of 5 September 2008’).

16 According to the investigation report of 5 September 2008, the Deformation was caused by the physical deterioration of a number of elements of the Track structure. The investigation report of 5 September 2008 also confirmed that traffic should remain suspended ‘until all the restoration and repair works are complete[d]’.

17 The findings contained in the investigation report of 5 September 2008 were confirmed by the technical report of 5 September 2008, which, as the first report had done, referred solely to the site of the Deformation and identified the cause of that deformation as various problems with the structure of the Track. The technical report of 5 September 2008 concluded that the traffic accident which occurred as a deformation on the Track should be qualified as a buckling which happened due to physically worn-out elements of the upper track construction.

18 LDZ 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’.

19 From 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.

20 On 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.

21 In January 2009, a new general transport agreement was concluded between the applicant and Orlen for a 15-year period, namely until 1 January 2024 (‘the 2009 Agreement’). That agreement replaced an interim agreement which had been signed on 1 October 2008.

22 The 2009 Agreement used as its basis the applicant’s standard pricing policy in relation to rates, which attributed a basic rate to each route in Lithuania. In addition, the 2009 Agreement applied a system of discounts to those rates [confidential]. ( 1 )

23 [confidential]

24 Negotiations 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.

25 On 10 November 2009, an arbitration court found that the unilateral termination of the 1999 Agreement by the applicant was unlawful and that that agreement had to be regarded as having been in force until 1 October 2008, the date on which Orlen and the applicant concluded an interim transport agreement.

26 According to Orlen, discussions with LDZ were interrupted in mid-2010, when it finally concluded that the applicant 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.

B. Administrative procedure

27 On 14 July 2010, Orlen lodged a formal complaint with the Commission pursuant to Article 7 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).

28 In its complaint, Orlen, in essence, stated that, following a commercial dispute with LG, the latter had removed the Track, with the result that the Short Route to Latvia was unavailable and that it was obliged to use the only route available, that is to say, the Long Route to Latvia, in order to transport by train the part of its output intended for transport to or through Latvia.

29 More specifically, Orlen explained that the commercial dispute at issue concerned the rates charged by LG for rail freight transport and that, because of that disagreement, it had begun to examine the possibility of using solely LDZ’s service to transport its refined oil products on the Short Route to Latvia and to switch, using that route, its seaborne export business from the seaport of Klaipėda to the seaports of Riga and Ventspils, a fact of which LG was aware. Orlen thus argued that the applicant’s actions, namely the suspension of traffic and the subsequent removal of the Track, were not objectively justified and that their sole purpose was to prevent it from switching its seaborne exports to Latvian seaports using the rail transport services of LDZ.

30 Between 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 the applicant in Vilnius and at the premises of LDZ in Riga. In the course of those inspections, the Commission, inter alia, seized documents which, in its view, demonstrated that the applicant was aware of the potential competition from LDZ and of the risk that Orlen might switch its seaborne exports to the Latvian seaports.

31 On 6 March 2013, the Commission decided to initiate proceedings against LG pursuant to Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18).

32 On 5 January 2015, the Commission sent a statement of objections to the applicant. In that statement of objections, the Commission came to the preliminary conclusion that the applicant might have infringed Article 102 TFEU.

33 On 25 March 2015, Orlen submitted observations on a non-confidential version of the statement of objections.

34 On 8 April 2015, the applicant replied to the statement of objections and submitted comments on Orlen’s observations. An oral hearing was subsequently held on 27 May 2015.

35 On 23 October 2015, the Commission sent a letter of facts to the applicant, to which the applicant responded on 2 December 2015. On 29 February 2016, the applicant made a further submission to the Commission.

36 On 2 October 2017, the Commission adopted Decision C(2017) 6544 final relating to proceedings under Article 102 TFEU (Case AT.39813 – Baltic Rail) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union (OJ 2017 C 383, p. 7).

C. The contested decision

37 In the contested decision, the Commission, in essence, concluded that the applicant had abused its dominant position as the railway infrastructure manager in Lithuania by removing the Track, thus preventing LDZ from entering the Lithuanian market. The Commission imposed a fine on the applicant and ordered it to bring the infringement to an end.

1. Definition of the relevant markets and the applicant’s dominant position on those markets

38 In the contested decision, the Commission identified two relevant markets, namely: – the upstream market for the management of railway infrastructure; – the downstream market for the provision of rail transport services for oil products.

39 The relevant geographic market for the management of railway infrastructure 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.

40 The Commission found that, under national legislation, the applicant held a legal monopoly on the upstream market for the management of railway infrastructure in Lithuania. In that regard, Article 5(1) of the Lietuvos Respublikos geležinkelių transporto kodekso patvirtinimo, įsigaliojimo ir taikymo įstatymas (Railway Transport Code of the Republic of Lithuania) of 22 April 2004 (Žin., 2004, No IX‑2152; ‘the Railway Transport Code’) provided that public railway infrastructure was the property of the Lithuanian State and its management was entrusted to the applicant.

41 The 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.

2. Abusive conduct

42 In the contested decision, the Commission found that the applicant had abused its dominant position as railway infrastructure manager in Lithuania by removing the Track, this being capable of having the anticompetitive effect 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 objective justification. In particular, the Commission found in recitals 182 to 201 of the contested decision that, by removing the Track in its entirety, LG had had recourse to methods other than those which condition normal competition. In 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.

43 The 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.

44 As regards the anticompetitive effects of the applicant’s conduct, the Commission took the view, following analysis set out in recitals 202 to 324 of the contested decision, that the removal of the Track had been capable of preventing LDZ from entering the 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. 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 the applicant would have been to attempt to operate on the route to Klaipėda or on the Long Route to Latvia. 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.

45 The Commission also took the view, in recitals 325 to 357 of the contested decision, that the applicant had provided no objective justification for removing the Track, since the explanations put forward were inconsistent, at times contradictory and were unconvincing.

3. Fine and order

46 In 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 the applicant.

47 The Commission also found that several behavioural or structural remedies could have either restored the competitive situation that existed before the removal of the Track or eliminated the disadvantages faced by potential competitors on the alternative routes to the seaports. To that end, it ordered LG to bring the infringement to an end and to submit to it, within three months of notification of the contested decision, a proposal for measures to that effect.

4. Operative part of the contested decision

48 The operative part of the contested decision reads 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 2 For the infringement referred to in Article 1, a fine of EUR 27873000 is imposed on [LG]. … Article 3 [LG] shall bring to an end the infringement referred to in Article 1 and submit to the Commission within three months a proposal for measures to that effect. That submission shall be sufficiently detailed in order to enable the Commission to make a preliminary assessment as to whether the proposed measures will ensure effective compliance with the Decision. [LG] shall refrain from repeating any act or conduct having the same or similar object or effect to the act described in Article 1. …’

II. Procedure and forms of order sought

49 By application lodged at the Court Registry on 14 December 2017, the applicant brought the present action.

50 By document lodged at the Court Registry on 5 April 2018, Orlen sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

51 At the request of the Commission, the time limit for lodging an application for confidential treatment was extended and set at 4 June 2018.

52 By letters lodged at the Court Registry on 1 and 4 June 2018, the Commission and the applicant respectively submitted an application for confidential treatment vis-à-vis the intervener of certain information contained in the application and in the defence as well as in some of the annexes to them. Common non-confidential versions of the application and the defence were lodged by the applicant and the Commission.

53 By a letter of 15 June 2018, the applicant submitted an application for confidential treatment vis-à-vis the intervener of certain information contained in the reply and in the annex thereto.

54 By 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. The decision on the substance of the applications for confidential treatment was reserved and non-confidential versions of the various procedural documents prepared by the main parties were provided to Orlen.

55 By letter of 31 July 2018, the Commission submitted an application for confidential treatment vis-à-vis the intervener of certain information contained in the reply. On the same day, a common non-confidential version of the reply was lodged by the applicant and the Commission.

56 By letter of 5 August 2018, the intervener disputed the confidential nature of certain redacted passages in the non-confidential versions of certain of the procedural documents, namely Annexes A.14 and A.26.

57 By letter of 30 August 2018, the applicant submitted an application for confidential treatment vis-à-vis the intervener of certain information contained in the rejoinder. A common non-confidential version of the rejoinder was lodged at the Court Registry by the main parties.

58 On 15 September 2018, the intervener lodged its statement in intervention.

59 By letter of 22 September 2018, the intervener stated that it had no objections against the applications for confidential treatment lodged by the main parties with regard to certain passages of the reply and the rejoinder.

60 On 24 September 2018, within the context of the measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure of the General Court, the General Court (Third Chamber) put questions in writing to the applicant and the intervener. Those questions were answered within the time limit set.

61 On 13 December 2018, within the context of the measures of organisation of procedure provided for in Article 89(3) of its Rules of Procedure, the General Court (Third Chamber) put questions in writing to the applicant and the intervener.

62 On 21 December 2018, further to those questions, the intervener withdrew its objections regarding Annex A.26, whilst on 7 January 2019 the applicant withdrew the application for confidential treatment of Annex A.14. There are therefore no outstanding objections with regard to the application for confidential treatment made by the applicant.

63 Following a change in the composition of the Chambers of the General Court pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the First Chamber, to which the present case was accordingly allocated.

64 Acting on a proposal from the First Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.

65 On 28 November 2019, following a proposal from the Judge-Rapporteur, the General Court (First Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure under Article 89 of the Rules of Procedure, put questions in writing to the parties and requested the production of a document. The parties complied with those requests within the prescribed period.

66 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 5 February 2020.

67 The applicant claims that the Court should: – annul the contested decision; – in the alternative, reduce the amount of the fine imposed on it under Article 2 of the contested decision; – order the Commission to pay the costs.

68 The Commission and the intervener contend that the Court should: – dismiss the action in its entirety; – order the applicant to pay the costs.

III. Law

A. The principal claims, seeking annulment of the contested decision

69 The applicant relies on five pleas in law in support of its principal claims by which it seeks the annulment of the contested decision. In essence, the first plea alleges manifest errors of assessment and of law in the application of Article 102 TFEU as regards the abusive nature of the applicant’s conduct, the second plea alleges errors of assessment and of law in the application of Article 102 TFEU as regards the assessment of the practice in question, the third plea alleges infringement of Article 296 TFEU and Article 2 of Regulation No 1/2003 on the grounds of insufficient evidence and a failure to state reasons, the fourth plea, only as regards the first part of that plea, alleges errors in establishing the amount of the fine, and the fifth plea alleges errors relating to the imposition of a remedy.

1. First plea in law: errors of assessment and of law in the application of Article 102 TFEU as regards the abusive nature of the applicant’s conduct

70 In support of its first plea, the applicant disputes, in essence, the legal test applied by the Commission in the contested decision to categorise its conduct as an abuse of a dominant position within the meaning of Article 102 TFEU. According to the applicant, the Commission should have appraised the present case in the light of the established case-law on refusal of access to essential facilities, which sets a significantly higher threshold for finding that a practice is abusive than that applied in the contested decision.

71 First of all, according to the applicant, it is not the removal of the Track which has anticompetitive effects. In fact, it is the suspension of traffic, which occurred a month earlier, which had those effects. In the applicant’s opinion, even if the Track had not been removed on 3 October 2008 and regardless of the fact that it had been left unrepaired following the traffic suspension on 2 September 2008, LDZ could not, in any event, have used it. Consequently, in the applicant’s view, the legal issue comes down to the question of whether, in the circumstances of the present case, Article 102 TFEU imposed on it a duty to repair the Track. In the absence of such a duty, the question of whether or not there are objective justifications for the removal of the Track does not arise.

72 Next, the applicant submits, in essence, that the duty to repair or invest in a facility to which a competitor may request access could be imposed on it under Article 102 TFEU only if the Track is an essential facility, that is to say, if it is indispensable to enable LDZ to operate on the relevant downstream market, and that its non-repair by the applicant would eliminate all competition on the downstream market. However, according to the applicant, those two conditions are not met in the present case. In particular, access to the Track is not indispensable for LDZ to compete with it on the relevant market.

73 More generally, the applicant claims that the fact that an alternative may be less advantageous from the point of view of one competitor does not make a facility ‘essential’ or ‘indispensable’. In its view, it would be an undue restriction on the applicant’s freedom to conduct business and its property rights if it were required under Article 102 TFEU to invest substantially in a non-essential (and completely dilapidated and non-functioning) facility solely in order to allow a single competitor to enter the market, by making available to that competitor a more attractive route to serve one single customer and for a small portion of that customer’s output.

74 Finally, the applicant observes that the legal test based on the case-law concerning essential facilities was what the Commission itself intended to apply before the statement of objections was issued. It points out that, at a meeting with the applicant on 25 March 2013, the Commission’s services in fact explained that the theory of harm was based on the premiss that the removal of the Track constituted a refusal to supply essential infrastructure services to LDZ.

75 The Commission and the intervener dispute those arguments.

76 In that regard, it must be recalled that Article 102 TFEU prohibits a dominant undertaking from, among other things, adopting pricing practices that have an exclusionary effect on competitors considered to be as efficient as it is itself and strengthening its dominant position by using methods other than those that are part of competition on the merits (see judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 136 and the case-law cited).

77 According to settled case‑law, a dominant undertaking has a special responsibility not to allow its behaviour to impair genuine, undistorted competition on the internal market (see judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 135 and the case-law cited).

78 It has been held, in this regard, that the concept of abuse of a dominant position prohibited by 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 goods 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 on the market or the growth of that competition (see judgments of 19 April 2012, Tomra Systems and Others v Commission, C‑549/10 P, EU:C:2012:221, paragraph 17 and the case-law cited, and of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 140 and the case-law cited).

79 Article 102 TFEU covers not only those practices which directly cause harm to consumers but also practices which cause consumers harm through their impact on competition (see, to that effect, judgments of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 20 and the case-law cited; see also, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 171).

80 It is not necessarily a question of the actual effect of the abusive conduct complained of. For the purposes of establishing an infringement of Article 102 TFEU, it is necessary to show that the abusive conduct of the undertaking in a dominant position tends to restrict competition or, in other words, that the conduct is capable of having that effect (judgment of 19 April 2012, Tomra Systems and Others v Commission, C‑549/10 P, EU:C:2012:221, paragraph 68; see, also, judgments of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 144 and the case-law cited, and of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 268 and the case-law cited). Furthermore, the fact that the abusive conduct of an undertaking in a dominant position has adverse effects on markets other than the dominated markets does not preclude the application of Article 102 TFEU (see, to that effect, judgment of 14 November 1996, Tetra Pak v Commission, C‑333/94 P, EU:C:1996:436, paragraph 25).

81 The arguments advanced by the applicant in support of its first plea must be examined in the light of those principles.

82 In the present case, it should be pointed out that the arguments put forward by the applicant in the first plea relate solely to the legal test applied by the Commission to categorise its conduct as an abuse of a dominant position.

83 In recitals 177 and 178 of the contested decision, the Commission found that, by removing the Track without objective justification, the applicant had abused its dominant position on the Lithuanian market for the management of railway infrastructure. In particular, the Commission took the view that, in the legal and factual circumstances in question, the removal of the Track was not a practice which was consistent with those which condition normal competition. In the Commission’s view, that has led to potential anticompetitive effects on the market for the provision of rail transport services for oil products between the Refinery and the seaports of Klaipėda, Riga and Ventspils, through the creation of barriers to market entry.

84 It follows that, in the present case, the conduct objected to in the contested decision consists of the removal of the Track as such, irrespective of the suspension of traffic on that track on 2 September 2008 and the non-repair thereof.

85 In that regard, first of all, to the extent that, by its arguments, the applicant disputes the fact that the removal of the Track as such can be categorised as potentially abusive conduct, it must be recalled that the list of abusive practices set out in Article 102 TFEU is not exhaustive, with the result that the list of abusive practices contained in that provision does not exhaust the methods of abusing a dominant position which are prohibited by EU law (see judgment of 17 February 2011, TeliaSonera Sverige, C‑52/09, EU:C:2011:83, paragraph 26 and the case-law cited). Therefore, as a general rule, any conduct by an undertaking in a dominant position which is capable of restricting competition on a market may be categorised as abusive. It follows that it cannot be ruled out that the removal of the Track could, of itself, irrespective of the suspension of traffic and the non-repair of the Track, be categorised as potentially abusive conduct.

86 Consequently, it is necessary to ascertain whether, in the present case, the Commission applied, in the contested decision, the appropriate legal test for finding that the practice in question, namely the removal of the Track, constituted an abuse of a dominant position within the meaning of Article 102 TFEU.

87 As a preliminary point, it must be noted that the case-law on essential facilities relates, in essence, to circumstances in which a refusal to supply by an undertaking in a dominant position, by virtue, in particular, of the exercise of a property right, may constitute an abuse of a dominant position. That case-law therefore relates in particular to situations in which the free exercise of an exclusive right, being a right which rewards investment or innovation, may be limited in the interest of undistorted competition on the internal market (see judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 679 and the case-law cited).

88 In particular, that limitation, which ultimately results in a duty to supply being imposed, is permitted provided that the three exceptional circumstances, detailed by the Court of Justice in particular in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), are met.

89 In the case which gave rise to the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), the Court of Justice held that, in order for the refusal by an undertaking in a dominant position to grant access to a service to constitute an abuse within the meaning of Article 102 TFEU, that refusal must be likely to eliminate all competition on the market on the part of the person requesting the service, such refusal must be incapable of being objectively justified, and the service in itself must be indispensable to carrying on that person’s business (judgment of 26 November 1998, Bronner, C‑7/97, EU:C:1998:569, paragraph 41; see, also, judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 147 and the case-law cited).

90 The purpose of the exceptional circumstances set out in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), is to ensure that a duty imposed on an undertaking in a dominant position to provide access to its infrastructure does not ultimately impede competition by reducing that undertaking’s initial incentive to build such infrastructure. Indeed, the incentive for a dominant undertaking to invest in facilities would be reduced if its competitors were, upon request, able to share the benefits (see, to that effect, Opinion of Advocate-General Jacobs in Bronner, C‑7/97, EU:C:1998:264, point 57).

91 However, such a requirement to protect the incentive of the undertaking in a dominant position to invest in the creation of essential facilities is not present where the applicable regulatory framework already imposes a duty to supply on the undertaking in a dominant position or where the dominant position which the undertaking has acquired on the market derives from a former State monopoly.

92 The case-law has accordingly acknowledged that the exceptional circumstances described in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), had been laid down and applied in the context of cases dealing with the question whether Article 102 TFEU could be such as to require the undertaking in a dominant position to supply to other undertakings access to a product or service, in the absence of any regulatory obligation to that end (judgment of 13 December 2018, Slovak Telekom v Commission, T‑851/14, under appeal, EU:T:2018:929, paragraph 118). Where there is a legal duty to supply, the necessary balancing of the economic incentives, the protection of which justifies the application of the exceptional circumstances developed in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), has already been carried out by the legislature at the point when such a duty was imposed.

93 Case-law has also acknowledged that the existence of a dominant position having its origins in a legal monopoly must be taken into consideration in the context of the application of Article 102 TFEU (see, to that effect, judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 23 and the case-law cited). This is especially true when, in a situation where there is a legal monopoly, the undertaking has not invested in the construction of the infrastructure, which was built and developed with public funds.

94 In the present case, it must be noted in the first place that the applicant holds a dominant position on the market for the management of railway infrastructure which derives from a statutory monopoly. Also, the applicant has not invested in the Lithuanian railway network, which belongs to the Lithuanian State and was built and developed using public funds.

95 In the second place, it must be recalled that the applicant does not enjoy unfettered exercise of an exclusive property right, which rewards investment or innovation. In its capacity as Lithuania’s railway infrastructure manager, it is responsible under both EU and national law for granting access to public railway infrastructure and ensuring the good technical condition of that infrastructure, as well as ensuring safe and uninterrupted rail traffic and, in the event of disturbance to rail traffic, taking all necessary measures to restore the normal situation.

96 It must be noted that Article 10 of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25) granted railway undertakings established in the European Union access to railway infrastructure on equitable conditions for the purpose of operating such services in all Member States. In addition, Article 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) granted railway undertakings the right of access, on a non-discriminatory basis, to the minimum access package and track access to service facilities that are described in Annex II to that directive. Similarly, as was stated in recital 131 of the contested decision, at the national level, the Rules for Allocation of Public Railway Infrastructure Capacities set the categories of infrastructure services that mirror the list of services in Annex II to Directive 2001/14. In particular, paragraph 57 of those rules states that the ‘minimum access package’ and access to railway infrastructure must be provided on a non-discriminatory basis.

97 In addition, as is clear from recital 122 of the contested decision, Article 29(1) of Directive 2001/14 provided that ‘in the event of disturbance to train movements caused by technical failure or accident the infrastructure manager [had to] take all necessary steps to restore the normal situation’. Similarly, under Article 8(1)(4) of the Lietuvos Respublikos geležinkelių transporto sektoriaus reformos įstatymas (Law on the Reform of the Rail Transport Sector of the Republic of Lithuania) of 27 April 2004 (Žin., 2004, No 61‑2182), which was in force until 8 October 2011, the applicant was required to ensure the good technical condition of the public railway infrastructure and safe and uninterrupted rail traffic. Furthermore, paragraph 69 of the Rules for Allocation of Public Railway Infrastructure Capacities, adopted by Decision No 611 of the Government of the Republic of Lithuania of 19 May 2004, as amended by Decision No 167 of 15 February 2006, provides that, in the event of disturbance of railway traffic caused by a railway traffic accident, the infrastructure manager is to take all necessary measures to restore the normal situation.

98 In the light of the foregoing, it must be held that, contrary to what the applicant claims, in the light of the relevant regulatory framework, the conduct in question, namely the removal of the entirety of the Track, cannot be analysed in the light of the case-law established in relation to refusal to provide access to essential facilities, but must be analysed as conduct capable of hindering market entry by making access to the market more difficult and thus leading to an anticompetitive foreclosure effect. It follows that the question whether Article 102 TFEU imposed a duty on the applicant to repair the Track is irrelevant for the purposes of the present case.

99 It follows that the Commission did not err in not assessing whether the conduct at issue 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). It was sufficient, subject to any objective justification, to show that the conduct in question was such as to restrict competition and, in particular, to constitute an impediment to market entry (see, to that effect, judgment of 6 December 2012, AstraZeneca v Commission, C‑457/10 P, EU:C:2012:770, paragraphs 149 and 153).

100 The applicant, in response to the Commission’s arguments, seeks to challenge that finding, arguing that it was not obliged under Article 102 TFEU to invest its resources in new infrastructure since the Track was completely dilapidated and could no longer be used. In particular, according to the applicant, no provision of national law imposed on it an absolute duty to invest its very limited resources in a new infrastructure replacing a completely dilapidated track where alternative routes on the network were available.

101 In that regard, it must be stated that that argument is based on the premiss that the Commission, instead of examining the removal of the Track as an abuse, should have examined whether the failure to repair such facilities could be categorised as an abuse in the light of the case-law concerning essential facilities. However, it is clear from the analysis in paragraphs 98 and 99 above that that premiss is incorrect.

102 As to the argument that the Commission itself had in mind the legal test based on the case-law concerning access to essential facilities prior to the statement of objections, since, at a meeting with the applicant on 25 March 2013, the Commission services explained that the theory of harm in the present case was based on the premiss that the removal of the Track constituted a refusal to provide LDZ with access to essential infrastructure services, it is sufficient to point out that the fact that the minutes of a meeting with the representatives of the Commission services prior to the statement of objections which were drafted solely by the applicant’s legal adviser and not approved by the Commission, indicate that the ‘theory of harm’ previously applied by it may have been a refusal to supply essential services to LDZ, cannot dictate the Commission’s assessment in the contested decision. Furthermore, it is patently clear from the minutes in question that the opinions expressed at the meeting were purely preliminary views and that other theories of harm could also be considered by the Commission. In particular, it is evident from the second paragraph of the ‘Theory of harm’ section of those minutes that, in the Commission’s view, the removal of the Track could also be regarded as a restriction of competition by object, since it could have prevented competition in the provision of rail transport services.

103 In view of the foregoing, it must be concluded that the Commission was not required to assess the compatibility of the applicant’s conduct with Article 102 TFEU in the light of the established case-law in relation to refusal to provide access to essential facilities.

104 The first plea must therefore be rejected as unfounded.

2. Second plea in law: errors of assessment and of law in the application of Article 102 TFEU to the assessment of the practice in question

105 By its second plea, the applicant claims, in essence, an infringement of Article 102 TFEU and manifest errors of assessment as regards the assessment of the practice in question, since, in its view, in the legal and factual circumstances of the present case, the removal of the Track, which was a non-essential and dilapidated infrastructure, did not constitute an abuse of a dominant position. In particular, according to the applicant, even if the removal of such a facility could, under very exceptional circumstances, have constituted an abuse even though the conditions laid down in the case-law and referred to in the first plea are not met, the Commission has not shown to the requisite legal standard that such very exceptional circumstances existed in the present case in relation to the Track.

106 The applicant divides the second plea into four parts.

107 As a preliminary point, it must be recalled that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant and taking account of all the elements submitted by the applicant (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72 and the case-law cited).

(a) The first part of the second plea: errors in the ‘doubts’ expressed by the Commission regarding the reality of the Track defects

108 By the first part of the second plea, the applicant complains that the Commission committed an error of law compounded by an error of assessment in that the doubts expressed by the Commission regarding the existence and significance of the Track defects for traffic safety have no basis. In particular, the applicant criticises the Commission on the ground that it stated that the removal was ‘not justified’ and that the technical explanations given by the applicant in relation to the Track and its defects were ‘unconvincing’. It also claims that the ‘doubts’ expressed by the Commission regarding the existence and significance of the defects in the Track were in reality driven by the fact that the Commission suspected that safety concerns were used as a pretext to cover up its conduct.

109 In support of that first part, the applicant puts forward four complaints.

(1) The first complaint of the first part: there were doubts regarding the occurrence of the Deformation of the Track

110 By its first complaint, the applicant submits that the doubts expressed by the Commission concerning the occurrence of the Deformation are wholly without basis. The applicant maintains that the doubts expressed by the Commission regarding the existence of the Deformation are driven by suspicions linked to the fact that it claimed safety problems as justification for its conduct. In that regard, it argues that the Deformation was in fact promptly reported by several of its employees who were involved in or responsible for supervision of the Track and that all their reports were consistent in their description of the Deformation. Therefore, in the applicant’s view, there is absolutely no reason to suspect that they could all have ‘colluded’ to ‘invent’ a Deformation which did not exist.

111 The Commission and the intervener dispute that complaint.

112 In the present case, it is sufficient to note that, as the applicant itself acknowledges, the Commission stated in recital 181 of the contested decision that, despite its doubts regarding the existence of the Deformation, it had based its analysis on the assumption that the Deformation had occurred as reported by the applicant. In particular, the Commission was of the view that there was insufficient evidence to disregard the applicant’s claims regarding the occurrence and extent of the Deformation, which it confirmed once again at the hearing, in response to a question from the Court. In addition, the Commission, like the applicant, recognised that the Deformation had been recorded in various written documents submitted by the applicant. It is also clear from recital 179 of the contested decision that the Commission examined the circumstances surrounding the appearance of the Deformation not in order to attempt to demonstrate that the applicant had acted in bad faith by purely and simply inventing the Deformation, but solely because the intervener had claimed that the Deformation could not have occurred in the manner described by the applicant, a claim which the applicant strenuously disputed.

113 Consequently, it is necessary to reject the applicant’s argument alleging that doubts were expressed by the Commission regarding the Deformation of the Track.

(2) The second complaint of the first part: errors in the assessment of the claim that the removal of the Track was due solely to the Deformation

114 By its second complaint, the applicant disputes the assertion in recital 329 of the contested decision that it initially claimed, in its response to the first request for information of 6 January 2012, that the removal of the entire Track was due solely to the occurrence of the Deformation. In that regard, it maintains that it referred in its response to the detailed description of the procedure which led to the closure and the removal of the Track. Therefore, according to the applicant, both in its response to the first request for information and in its observations on the statement of objections, it put forward the same arguments, namely that, while the Deformation had led it to assess the Track as a whole, it was in fact the general condition of the Track, and not the occurrence of the Deformation alone, which had justified its removal.

115 The Commission and the intervener dispute that complaint.

116 In the present case, it should be noted that, as observed in recital 329 of the contested decision, in its response to the first request for information, the applicant stated that ‘the closure and subsequent removal of the Lithuanian [part of the] track were the result of the incident which occurred on the track on 2 September 2008’. However, immediately after that sentence, the applicant referred to ‘[the] detailed description of the procedure which led to the closure and removal of the track’.

117 However, even if the claim in the contested decision – that the applicant had initially maintained that the removal of the Track was the result of the Deformation having appeared – were not correctly reflected, as the applicant asserts, that is irrelevant, since the Commission, in the contested decision, did not base its analysis on that claim but rather on the applicant’s arguments put forward in response to the statement of objections. The contested claim was used only to rule out the possibility that the Deformation alone could have justified the removal of the entire Track.

118 It follows that the applicant’s complaint must be rejected.

(3) The third complaint of the first part: errors in the assessment of the differences between the Reports of 5 September 2008 and the letters of 4 and 5 September 2008

119 By its third complaint, the applicant submits that the allegedly unexplained discrepancies pointed out by the Commission in recital 334 of the contested decision between, first, the Reports of 5 September 2008 and, second, the two letters from the local director of a branch of the applicant (‘the local director’) of 4 and 5 September 2008, according to which the reports stated, on the one hand, that a local repair of the Deformation site was sufficient while, on the other hand, the letters from the local director referred to the need for more comprehensive work on the Track, are due to the fact that the mandate of the four members of the inspection commission was restricted to analysing the Deformation and that they examined solely the site of the Deformation, and not the entire Track. By contrast, the local director, to whom the members of the inspection commission reported, was not restricted by any mandate. He was the most senior employee, since he was in charge of infrastructure and ensuring safe traffic in his region, and his key responsibility was to assess what the incident meant for the safety of the entire Track. On the basis of his experience of the Track and the fact that all the steps taken previously, including the minor repairs and the speed reductions to 25 km/h, had not prevented an incident as serious as the Deformation, which could have had a potentially devastating impact on the environment (oil pollution), and which could also have occurred on any other segment of the Track, he was led to conclude that a renovation (that is to say, a reconstruction) of the entire Track was needed in order to resume safe traffic. Furthermore, the applicant states that it was well aware of the speed limit on the Track, with the result that the Commission could not draw any conclusion from the fact that the local director had not explicitly referred in his letters of 4 and 5 September 2008 to the failure of the speed-limit reduction to prevent the Deformation.

120 The Commission and the intervener dispute that complaint.

121 In that regard, it must be recalled that on 3 September 2008 the applicant set up an inspection commission composed of senior employees of its local branch to investigate the reasons for the Deformation. The inspection commission visited and inspected only the site of the Deformation. Therefore, its conclusions were related to the condition of the Track with reference only to that location. The inspection commission submitted two reports, namely the investigation report of 5 September 2008 and the technical report of 5 September 2008.

122 According to the investigation report of 5 September 2008, the Deformation was caused by the physical deterioration of a number of elements of the Track structure. That investigation report also confirmed that traffic should remain suspended ‘until all the restoration and repair works are complete[d]’.

123 The findings contained in the investigation report of 5 September 2008 were confirmed by the technical report of 5 September 2008, which, as the first report had done, referred solely to the site of the Deformation and identified the cause of the Deformation as various problems with the structure of the Track. The technical report of 5 September 2008 concluded that the traffic accident which had occurred as a deformation on the Track should be qualified as a buckling which was attributable to physically worn-out elements of the upper Track construction.

124 On 4 September 2008, one day before the inspection commission submitted the Reports of 5 September 2008, the local director sent a letter to LG’s Railways Infrastructure Directorate. In that letter, the local director noted the same findings as in the 5 September 2009 reports, but concluded that ‘partial track repair will not solve the problem’ and requested permission and financing to implement a project to repair the entire Track.

125 The local director repeated his conclusions in a second letter of 5 September 2008, in which he estimated the cost of the works at 38 million litai (LTL), corresponding to approximately EUR 11.2 million.

126 Accordingly, first, it is not clear from the content of the local director’s letters of 4 and 5 September 2008 that, as the applicant submits, his mandate was not limited to the site of the Deformation, which meant that he found it necessary to assess the condition of the entire Track, whereas the inspection commission of 3 September 2008 had limited its review to the site of the Deformation. Indeed, the author of the letter of 4 September 2008 did no more than point out that a deformation at the 18th kilometre of the Track had been reported during a regular inspection, then listed the results of the inspection concerning the cause of the deformation and concluded by stating that ‘partial track repair will not solve the problem’. He also concluded by requesting the necessary permission and financing to implement a project to repair the entire Track. Similarly, the letter of 5 September 2008 is a short letter in which the local director reported the date and time of the Deformation and stated that, in order to restore traffic on the Track, work on the entire Track was necessary. He also estimated the cost of the works at LTL 38 million and requested the recipient’s assistance in allocating funding for the execution of those works.

127 Second, as the Commission states, the members of the inspection commission of 3 September 2008, who prepared the Reports of 5 September 2008 and who recommended a local repair of the Deformation, were senior employees belonging to the same LG branch as the local director and who, like the latter, must have been familiar with the history of the Track.

128 Third, as stated in recital 332 of the contested decision, it is clear from a comparison of the Reports of 5 September 2008 with the letter of 4 September 2008 from the local director, as summarised in Table 2 in recital 46 of the contested decision, that those three documents describe the same problems with the structure of the Track. Therefore, it is difficult to see why the Reports of 5 September 2008 recommended local repairs at the site of the Deformation, whereas the letters of 4 and 5 September 2008 called for full repairs on the entire Track.

129 Fourth, the applicant is not justified in claiming that the local director had concluded that the Track had to be completely removed and reconstructed on the basis of (i) his experience with the Track and (ii) the fact that the measures taken previously, in particular speed reductions, had not prevented the Deformation from occurring. The letters from the local director of 4 and 5 September 2008 do not mention an alleged failure of previous measures, such as the speed limit. In particular, the letter from the local director of 4 September 2008 did no more than state, without further clarification, that ‘partial track repair will not solve the problem’. Furthermore, the fact that the issue of limiting the speed on the Track was well known within LG, even if it were established, is not capable of remedying the lack of reference to the failure of the previous measures nor, in any event, of justifying the inconsistencies between the Reports of 5 September 2008 and the letters from the local director.

130 It follows that the justifications put forward by the applicant to explain the discrepancies between the Reports of 5 September 2008 and the letters from the local director of 4 and 5 September 2008 are not sufficient to invalidate the finding made by the Commission in the contested decision that there were inconsistencies.

131 Consequently, the applicant’s complaint must be rejected.

(4) The fourth complaint of the first part: the Commission was incorrect in rejecting the arguments concerning systemic problems in the Track bed

132 By its fourth complaint, the applicant submits that the arguments which it put forward relating to the systemic problems with the Track bed are not, as the Commission found in the contested decision, inconsistent or unconvincing. In its opinion, those problems can be explained by the specific circumstance that it was late (11 September 2008) before a specific expert in track beds and ballast was able to analyse the Track. The extraordinary commission set up on 10 September 2018, which examined the Track, found, inter alia, a high level of ballast deterioration, four ‘gullies’ which indicate ‘roadbed defects’ and a bed width which did not correspond to technical regulations. On the basis of those findings, the extraordinary commission concluded that, in that case, the Deformation had to have been caused by systemic problems in the fastening system and the Track bed. According to the applicant, that conclusion did not require an excavation of the ballast. Indeed, in its view, those perfectly visible defects of, inter alia, the state and form of the ballast, and which provided strong indications of the poor state of the bed in general, were sufficient in themselves to allow the experts to come to their conclusions.

133 According to the applicant, the Track was generally in a very poor condition and the occurrence of the Deformation made it clear to the extraordinary commission that the ad hoc measures adopted previously (minor repairs to the Track structure and speed reductions) had not been sufficient to address the serious safety problems which had arisen. On the basis of the clear technical findings of the expert in track beds and ballast and those of the extraordinary commission as a whole, there was therefore, in the applicant’s view, no alternative other than the reconstruction of the entire Track in order to prevent further dangerous incidents or even accidents from occurring. Thus, according to the applicant, that new detailed overall assessment of the track as a whole formed the basis of the decision to remove the Track.

134 The Commission and the intervener dispute that complaint.

135 In the present case, it should be recalled that, in recital 336 of the contested decision, the Commission observed that, in its correspondence with the Minister for Transport and Communications and in its observations submitted during the administrative procedure, the applicant had stated several times that the main reason for the removal of the entire Track was to be found in a systemic problem in the bed of that track, namely a deterioration of the ballast which caused the bed of the Track to narrow, the repair of which required removal of the Track structure. However, in recital 337 of the contested decision, the Commission pointed out that the condition of the Track had been known since at least a previous report of 3 September 2004 and yet no systemic problems in the Track bed had been reported at that time or until the extraordinary inspection report of 12 September 2008, even though the Track had been subject to regular checks between those two dates.

136 Furthermore, in recital 338 of the contested decision, the Commission stated that, in its response to the statement of objections, the applicant had stated that, unlike the inspection commission which had prepared the Reports of 5 September 2008 and which had not noted any problems with the Track bed, the extraordinary inspection commission set up on 10 September 2008 included specialists in track beds and ballast who had taken the view that ‘in order to perform an analysis of the bed, ballast has to be excavated. The bad condition of the bed cannot be seen visually’.

137 However, it is clear from recital 339 of the contested decision that, when the Commission subsequently sought clarification of that new explanation, the applicant stated that the extraordinary inspection commission had not excavated any ballast from the Track.

138 In addition, it is clear from recital 340 of the contested decision that, in its response to the letter of facts, the applicant again revised its explanations, arguing that the main objective of the extraordinary inspection commission had been to carry out a visual evaluation of the Track in order to detect visible defects. According to the applicant, it was only after those visual defects had been detected that special research could have been performed. In the same recital, the contested decision notes, however, that none of those defects had been mentioned in the extraordinary inspection report of 12 September 2008 and that the decision to dismantle the Track had been taken before the inspection commission had conducted any special research which supposedly would have included excavation of the ballast.

139 Accordingly, in the first place, it must be observed that the inspection report of the extraordinary commission of 12 September 2008 contained two different sections, one of which concerned the main characteristics of the Track and the other concerned the defects found along the Track as a result of the Deformation. That inspection report did not mention the level of ballast deterioration among the defects found along the Track, but that factor was mentioned in the section dedicated to the main characteristics of the Track, along with other factors such as, inter alia, the type of rail, the type of sleepers, and the intensity of traffic. It follows that the deterioration of the ballast as mentioned in the extraordinary commission’s inspection report of 12 September 2008, namely as part of the consistent and objective characteristics of the Track, is not relevant in terms of explaining the need to remove the entire Track.

140 In addition, the only defect concerning the Track bed mentioned in the report in question consisted of four ‘gullies’ showing ‘bed defects’ and a bed width that did not correspond to technical regulations. However, as the Commission points out, the applicant does not explain how the appearance of four gullies along the Track would have necessitated the removal of the entire Track.

141 In the second place, as regards the argument that it was not necessary to excavate the ballast in order for the extraordinary commission to be able to conclude that there were problems with the bed, it must be stated that such an argument, even if it were established, contradicts the argument put forward by the applicant in its response to the statement of objections that the poor condition of the bed was not visible and that examination of it would have required excavation of the ballast. That contradiction confirms the applicant’s difficulties in providing a coherent justification for removing the Track.

142 In the third and final place, it should be observed that the arguments put forward by the applicant in support of the fourth complaint are not sufficient to explain the other inconsistencies pointed out by the Commission in the contested decision, in particular in recital 340 thereof.

143 In view of all of the foregoing, it must be held that the Commission did not commit an error of assessment in concluding that the applicant’s arguments relating to the systemic problems in the Track bed were inconsistent or unconvincing.

144 That conclusion cannot be called into question by the applicant’s argument that the very poor general condition of the Track, combined with the new detailed assessment of the Track as a whole conducted by the extraordinary commission following the discovery of the Deformation, had led it to take the view that reconstruction of the entire Track was necessary to reinstate traffic safely. Indeed, such an argument is not relevant in order to challenge the doubts raised by the Commission concerning the systemic problems in the Track bed, on the basis of the documents submitted by the applicant. In any event, since that argument is repeated in the context of the second part of the second plea, it will be analysed in that context.

145 Consequently, the applicant’s complaint must be rejected.

146 In the light of all of the foregoing, it must be held that none of the complaints put forward by the applicant in support of the first part of the second plea is capable of calling into question the conclusion reached by the Commission in the contested decision that the explanations put forward concerning the existence and significance of the Track defects for the safety of traffic were inconsistent with each other, contradictory and unconvincing.

147 Therefore, the first part of the second plea must be rejected.

(b) The second part of the second plea: errors of assessment in that the Commission took the view that the removal of the Track was ‘highly unusual’

148 After recalling that, on the basis of the technical conclusions reached following the extraordinary commission’s inspection, it had two options, namely, on the one hand, targeted initial repairs followed by a full reconstruction of the entire Track within five years (‘Option 1’) or, on the other hand, an immediate and full reconstruction of the Track (‘Option 2’), the applicant maintains that, in the particular circumstances of the present case, immediate implementation of Option 2 was not ‘highly unusual’, with the result that that situation could not be regarded as a matter constituting an abuse.

149 In that regard, first, the applicant submits that it was the Track which was ‘highly unusual’ since, at the relevant time, it was almost 140 years old and no major restoration had been carried out since 1972. The applicant continues that a number of defects had been detected along the length of the Track but that only minor repairs have been carried out, coupled with reductions of train speeds to 25 km/h. Far from being in line with industry practice in Europe, such measures are, according to the applicant, an expression of the very particular and difficult financial situation faced by the applicant and its sole shareholder, the Lithuanian State.

150 Second, following the appearance of the Deformation and the detailed assessment of the state of the entire Track by the extraordinary commission, the applicant maintains that it had become clear that another cheap patchy repair would not resolve the Track safety issues. For that reason, on 19 September 2008, the applicant decided that reconstructing the Track (whether under Option 1 or 2) was the only way to ensure safe traffic.

151 Third, the applicant claims that, of the two options for it to choose between, Option 2 was the only relevant and economically reasonable solution. In its view, initial repairs would not actually have solved the various problems, since, even if Option 1 were implemented, reconstruction of the entire Track would have been needed within five years. In addition, Option 1 would have been, in short, more expensive than Option 2. Furthermore, Option 1 would have required substantial duplication of work, unlike Option 2, under which the works would be carried out only once. Moreover, all materials used in the initial repairs would have had to be replaced once more in the subsequent reconstruction.

152 Fourth, the applicant maintains that, since Option 2 was the only relevant and economically reasonable solution, there was no reason for it to wait to implement it. Indeed, according to the applicant, LDZ itself explained that a track is normally removed where there is no reason to believe that it will be reused. LDZ also confirmed that removal is a standard practice which is required if the existing rails must be replaced with other rails or if renovation works are needed, for example renovation of the bed and ballast, which cannot technically be performed until the rails are removed. In addition, the applicant claims that it had decided to reuse some of the Track material to repair other tracks. According to the applicant, those materials would have been damaged over the winter if it had not removed them quickly in October 2008 in order to store them safely. Finally, the applicant alleges that, by rapidly removing the Track and simultaneously requesting funds for its reconstruction, it had demonstrated sufficiently to Orlen, which was putting it under persistent pressure, its determination to reconstruct the Track in accordance with its contractual obligations.

153 Fifth, the applicant claims that, at the point when the Track was removed, namely on 3 October 2008, it had a reasonable expectation that it would obtain the funds needed to reconstruct the Track because the impact of the financial crisis following the collapse of Lehman Brothers bank in September 2008 was not yet being felt by it. In particular, according to the applicant, at the material time, it could not foresee the situation developing so adversely, which forced it to stop, as of the end of 2008, the implementation of its major renovation projects, one of which related to the Track. In addition, the applicant points out that, at the material time, (i) EU funds for major investments in railway infrastructure for the period from 2007 to 2013 were still available and (ii) it legitimately expected to qualify for those funds in order to finance the Track reconstruction. The claim in the contested decision that, in the letter of 2 October 2008 to the Ministry of Transport and Communications, it had not made a genuine effort to obtain funding for the renovation of the Track is, in the applicant’s view, therefore unfounded.

154 In its observations on the statement in intervention, the applicant explains that it did not have sufficient funds to carry out all the important renovation works on its network and had to prioritise how to use its very limited resources most effectively. At the point in time at which the Track was removed, EU funds were available and it was just a question of prioritisation whether or not to use parts of those funds for the Track. However, the incident completely changed the priority analysis. Furthermore, according to the applicant, given its net profits in 2008, at the material time, even its own funds would have been sufficient and were available to finance in full the reconstruction of the Track in the event that EU (and/or State) funds were not secured.

155 The Commission and the intervener dispute those arguments.

156 It must be stated that, by its arguments, the applicant is challenging the Commission’s assessment in recitals 184 to 198 of the contested decision that, in essence, first, the removal of the Track was done in great haste without taking any of the normal preparatory steps for its reconstruction (recitals 184 to 193 of the contested decision) and, second, that removal was contrary to standard practice in the rail sector (recitals 194 to 198 of the contested decision).

157 In that regard, first, it should be recalled that, in recital 184 of the contested decision, the Commission took the view that the applicant had removed the Track in great haste, without securing the necessary funds or taking the normal preparatory steps for its reconstruction. It is clear from recital 185 of the contested decision that, in response to the Commission’s request for information, the applicant explained that ‘the Lithuanian leg of [the Track] was removed … in order to perform reconstruction works and reopen it for railway traffic as soon as possible, because this track was important for one of the major clients of LG, namely [Orlen]’. The applicant also explains that it ‘was acting under persistent pressure from [Orlen] to speed up the reconstruction on this track and therefore made best efforts to perform the necessary works as soon as possible’.

158 Second, in recital 186 of the contested decision, the Commission noted that the applicant had considered at the time that it did not have sufficient funds to renovate the Track and that it was obvious that a lengthy administrative procedure would have to be completed before funds could be secured for a project of that magnitude. According to the arrangements set by the Lithuanian State at the time, major infrastructure works were to be financed with EU funds, while the applicant’s limited resources were to be used only for the routine maintenance of the infrastructure. A request for EU funding had to be supported by preparatory steps, including a feasibility study, which in this case took two years to accomplish. The final decision on whether to allocate EU structural funds to a project had to be taken by the Ministry of Transport and Communications. There was therefore no guarantee that funds would be secured, with the result that there was no urgency in removing the Track. Finally, in recital 187 of the contested decision, the Commission also observed that the removal of the entire Track would not have significantly saved time when actual reconstruction works could have started after the conclusion of all preliminary administrative steps.

159 Furthermore, it is clear from recital 188 of the contested decision that the Commission asked the applicant to explain how the dismantling of the Track in October 2008 could have accelerated its reconstruction considering that a lengthy and uncertain procedure of applying for the necessary funds was still to be followed. It is clear from that same recital that, in its response, the applicant repeated, in essence, its claim that the removal of the Track was a necessary step in its reconstruction and was meant to reduce the time needed for the remaining work. It added that the procedure was not lengthy, but rather simple, and that ‘when making the request for financing, [it] acted in reasonable expectation that the necessary funds were actually granted for this project’ and that ‘this expectation was also supported by the fact that LG was asked to present a feasibility study for this project’. According to recital 189 of the contested decision, in its response to the statement of objections, the applicant repeated its argument that it had removed the Track with the sole intention of repairing it as soon as possible. It argued that removal of the Track was not an extraordinary measure, but rather a necessary measure before the short route could be fully repaired and traffic could resume.

160 Third, in recital 190 of the contested decision, the Commission noted that the applicant had made its request for funding on 2 October 2008 in a short letter to the Minister for Transport and Communications, requesting LTL 620 million (approximately EUR 179.71 million) for the renovation of eight different tracks, including the Track, without any specific representations being made with respect to the Track. In addition, the Commission pointed out that the normal approval procedure was expected to be protracted and that its result could not be guaranteed. Nevertheless, the applicant started removing the Track as of the following day, 3 October 2008, without even waiting for the response of the Minister for Transport and Communications. It is clear from recital 191 of the contested decision that, in its response of 28 October 2008, the Ministry of Transport and Communications pointed out that, since those projects had not been approved in the past, no provision for their financing had been made. In addition, the Ministry of Transport and Communications reminded the applicant that EU funds were still available and invited it to identify projects for financing. However, since the success of the funding request depended on the results of a feasibility study and the decision of the Ministry of Transport and Communications, the applicant could not, in the Commission’s view, reasonably expect that the EU funds, if granted, would be allocated within a short period of time.

161 Fourth, in recital 192 of the contested decision, the Commission took the view that the applicant’s subsequent actions also demonstrated that it was not seeking to rebuild the Track. In that regard, it pointed out, in particular, that the applicant had prepared notes to the Lithuanian Government arguing against the reconstruction of the Track and that it had recommended adding the renovation of the Track to the priority funding list only because the government had instructed it to do so.

162 Furthermore, in recital 194 et seq. of the contested decision, the Commission detailed the reasons why it took the view that removing the Track was ‘highly unusual’ and contrary to ‘standard practice’ in the rail sector. First, the Commission noted that, although there were several railway tracks in Lithuania on which traffic was suspended, the applicant had not been able to provide any example of a track that was removed before the renovation works could start.

163 Second, the Commission recalled that it had sent requests for information to the railway infrastructure managers in the two other Baltic countries, the Republic of Estonia and the Republic of Latvia. The Estonian railway infrastructure manager was able to provide only one example of the dismantling of a long section of track. In that case, the track had been removed because the route itself had been closed, abandoned and replaced by another route. The Estonian railway infrastructure manager also indicated that works requiring the dismantling of tracks were not performed on the entire track simultaneously, but in intervals that interrupted traffic for a period of up to 12 hours. Major repair works, including the removal of a track, would not commence until the administrative procedure to approve them had been concluded. LDZ, the Latvian railway infrastructure management company, stated that a track was, as a general rule, removed only after it had not been used for many years and only if there was no reason to believe that it would be used again. In the two examples provided by LDZ, the tracks had been removed after 10 and 13 years of closure. In addition, in Latvia the removal of a track for repair work would be carried out on a step-by-step basis. Such work would not commence until the administrative procedure had been concluded and funding secured.

164 In the present case, as regards, in the first place, the question of the removal of the Track in great haste without any of the preparatory steps for its reconstruction having been adopted, first, the Court observes that it is clear from the analysis of the first part of the second plea that the applicant has not established that, after the Deformation appeared and after the detailed assessment of the condition of the entire Track, it was in a state which would justify its immediate and complete removal. By contrast, it must be observed that the extraordinary commission’s inspection report of 12 September 2008, which examined the entirety of the Track, did not find defects along the entire length of the Track but only, as the Commission noted on the basis of the information provided by the applicant, along 1.6 km of the Track. In addition, in a letter sent on 18 September 2008 by LG’s Railway Infrastructure Directorate to its Strategic Planning Council and drawn up on the basis of the extraordinary commission’s inspection report of 12 September 2008, it was stated that only 1.6 km of track had to be reconstructed immediately. However, as was correctly stated in recital 348 of the contested decision, problems with 1.6 km of the 19 km of the Track cannot justify the Track’s complete and immediate removal. It is true that that letter of 18 September 2008 also stated that the rail fastenings had to be replaced along the 19 km of the Track, that the Track bed had to be repaired, that the communication cables had to be replaced along the entire length of the Track and that, in order to guarantee traffic safety, the Track would have to be fully repaired within five years. However, it did not state that such repairs would have to involve the complete and immediate removal of the Track.

165 Second, it must be stated that the applicant has not sufficiently substantiated the claim that the defects which caused the 2 September 2008 incident had been observed at numerous other locations along the length of the Track. That claim is based on the ‘Wacetob report’, prepared by the Warsaw Centre for the Advancement of Science and Organisation in Construction (Poland), which the Commission considers, in recitals 349 to 356 of the contested decision, without being contradicted by the applicant, to be devoid of probative value and not capable of supporting the applicant’s arguments. In addition, the finding that another ‘cheap patchy repair’ would not solve the Track’s safety problems, contained in the letter from the local director dated 4 September 2008, was, as stated in paragraphs 126 to 130 above, correctly not considered to be consistent with the Reports of 5 September 2008, according to which, in essence, a local repair would have enabled traffic to be restored safely.

166 It must therefore be held that the argument based, in essence, on the need to remove the Track because of concerns about the safety of rail traffic does not support the conclusion that the Commission committed an error of assessment.

167 That conclusion is not called into question by the argument that Option 2 was the only relevant and economically reasonable option, with the result that the applicant had no reason to wait to implement its decision.

168 Even if, as the applicant contends, Option 2 were the only relevant and economically reasonable option, it did not necessarily involve the removal of the Track in great haste. In that regard, it should be observed that, as the Commission points out in recital 187 of the contested decision, the immediate removal of the Track would not have saved any time when reconstruction work could have begun only after conclusion of all the preliminary administrative steps, including in particular obtaining the necessary funding. Therefore, since it did not yet have the necessary funds to begin reconstruction work on the Track, the applicant had no reason to remove the Track in great haste. It cannot therefore claim that there was no reason to wait to put into effect its decision to implement Option 2 or even to remove the Track.

169 Third, the pressure which it is claimed Orlen put on the applicant also cannot justify the removal of the Track in great haste. In that regard, it must be stated that that argument is contradicted by the fact that the applicant chose not to inform Orlen in advance of its plan to remove the Track. Such forbearance is not justified in the light of the nature of the work involved, especially since Orlen was the only customer using the Track. Furthermore, that finding cannot be called into question by the applicant’s observations on the statement in intervention, which seek to argue that there was no secrecy surrounding its directorate’s actions in 2008. Indeed, as is apparent from recital 55 of the contested decision, on 5 September 2008, Orlen was informed through the railway stations of the mere ‘temporary closure’ of the Track. It was not informed that the Track was being removed. It is clear, in particular from the explanations provided by the parties at the hearing, that the telegram communicating the ‘temporary suspension of traffic’ on the Track until the completion of reconstruction and repair work was issued by the applicant’s Railway Infrastructure Directorate to inform the stations and LDZ that traffic was suspended, but that that document was never addressed to Orlen.

170 Fourth, the same is true of the alleged need to recover appropriate materials from the Track to prevent damage over the winter, which cannot additionally justify the removal of the Track in great haste. In that respect, it is sufficient to note, as the Commission does, that that argument is not substantiated.

171 Fifth, the argument that, at the time when the Track was removed, the applicant reasonably expected to obtain the necessary funds for the reconstruction of the Track must be rejected for a variety of reasons.

172 First of all, it should be observed that the applicant itself, in its observations submitted in response to the statement in intervention, acknowledges that it did not have sufficient funds to carry out all the important renovation works on its network.

173 Next, in response to a request for information from the Commission as to whether the applicant had planned to carry out any major renovation works on the Track before 2 September 2008, the applicant pointed out that the Track was not one of the priority railway lines and that, in general, the Lithuanian State did not allocate sufficient funds from the public budget for the modernisation of railway infrastructure. In addition, it added that the EU structural funds and its own funds were not sufficient to ensure modernisation of the priority national railway lines. It follows that the applicant was aware of the fact that, once the Track was removed, it would not have its own funds available to rebuild the Track and would find it difficult to obtain the funds necessary for its reconstruction from the State or the European Union.

174 In particular, as regards State funds, it is common ground that, as noted in recital 190 of the contested decision, the applicant made its request for funding on 2 October 2008 in a short letter to the Minister for Transport and Communications, asking for LTL 620 million (approximately EUR 179.71 million) for the renovation of eight different tracks, including the Track. No specific representation was made with respect to the Track. In addition, as was also noted in recital 190 of the contested decision, the normal approval procedure was expected to be protracted and its result could not be guaranteed. Notwithstanding those considerations, the applicant began to remove the Track as of the following day, 3 October 2008, without even waiting for the response of the Minister for Transport and Communications, which it received on 28 October 2008 and which stated that, since those projects had not been approved in the past, no provision for their financing had been made.

175 In that regard, it must be stated that, while it is true that the Minister for Transport and Communications reminded the applicant that EU funds for major investments in railway infrastructure for the period from 2007 to 2013 continued to be available and while the Minister invited it to identify projects for financing, the fact remains that the Commission made no error of assessment in taking the view, in recital 191 of the contested decision, that the applicant could not reasonably expect to receive those funds without commencing in good time the preliminary administrative procedure necessary to obtain them. As the Commission points out in recitals 63 and 64 of the contested decision, the applicant initiated preparation of a feasibility study concerning the renovation and development of eight railway tracks, but it took eight months following approval by its Technical Board to obtain approval from its Director-General, on 29 July 2009, and a further three months to publish the call for tenders.

176 Finally, it is of no use for the applicant to argue that the financial crisis which followed the collapse of Lehman Brothers bank in September 2008 led to a deterioration in its financial situation with immediate consequences for its ability to undertake major renovation works, such as the reconstruction of the Track. In that regard, it must be stated that it is clear from its arguments concerning the dilapidated state of the Track that the applicant was in a precarious economic situation even before the financial crisis of September 2008. Indeed, the applicant itself claims that it is exactly because of its difficult financial situation that no major repair works had been carried out on the Track since 1972 and that, despite a number of defects having been detected along the length of the Track prior to September 2008, only minor repairs had been carried out, coupled with speed reductions to 25 km/h. Furthermore, even if the 2008 financial crisis might have affected the applicant’s ability to undertake major renovation works, such as the reconstruction of the Track, it must be observed, as the Commission does, that access to EU funds was not affected by the financial crisis. The applicant could have obtained such funds if it had initiated, in good time, the administrative procedure necessary for that purpose.

177 It follows that the Commission committed no error of assessment in taking the view that the Track had been removed in great haste and without having first secured the necessary funds.

178 As regards, in the second place, the issue of whether removal of the Track was unusual in the light of practice in the rail sector, first, the Court observes that, as the Commission noted in recital 186 of the contested decision, even though there were several rail tracks in Lithuania on which traffic was suspended, the applicant was unable to provide an example of a track which was removed before renovation works began. In addition, as the Commission points out, the applicant has never removed the Bugeniai-Skuodas-Klaipėda track, although it has been closed since 1995, and, moreover, despite the lack of traffic demand on that track.

179 Second, it should be noted that the Commission sent requests for information to the railway infrastructure managers in the two other Baltic States, the Republic of Estonia and the Republic of Latvia. The Estonian railway infrastructure manager was able to provide only one example of the removal of a long section of track. In that case, the track had been removed because the route itself was closed, abandoned and replaced by another route. The Estonian railway infrastructure manager also indicated that works requiring the dismantling of tracks were not performed on the entire track simultaneously, but in intervals that interrupted traffic for a period of up to 12 hours. Major repair works, including the removal of a track, would not otherwise commence until the administrative procedure to approve them has been concluded.

180 LDZ, the Latvian railway infrastructure management company, replied that a track was, as a general rule, removed only after it had not been used for many years and if there was no reason to believe that it would be used again. In the two examples provided by LDZ, the tracks were removed after 10 and 13 years of closure. As in Estonia, the removal of a track for repair work is carried out on a step-by-step basis in Latvia. According to LDZ, such work does not commence until the administrative procedure has been concluded and funding has been secured.

181 It follows from all of the foregoing that the Commission did not commit an error of assessment in finding, in the contested decision, that the removal of the Track in question in the present case was ‘highly unusual’.

182 Therefore, the second part of the second plea must be rejected.

(c) The third part of the second plea: errors in the Commission’s assessment of LG’s intentions at the time when the Track was removed

183 By the third part of the second plea, the applicant claims that the contested decision is vitiated by an error of law and an error of assessment since, at the time when the Track was removed, contrary to the Commission’s view in the contested decision, it intended to reconstruct it.

184 In particular, the applicant submits that, by asserting that it had not at any time sought to rebuild the Track, the Commission presumed that the removal of the Track was part of an anticompetitive strategy adopted on 19 September or 3 October 2008 to prevent competition on the part of LDZ. The applicant claims that the presumption that it acted in bad faith is based on three points taken into account by the Commission, namely, first, the fact that it had requested that the project for the reconstruction of the Track be moved to the reserve list for EU funds, second, the fact that it had prepared three notes for the Lithuanian Government arguing against reconstruction of the Track and, third, the fact that it had recommended adding the renovation of the Track to the priority list only because it was instructed to do so by the government.

(1) The first complaint of the third part: error of law regarding the applicant’s anticompetitive intent being taken into account

185 In support of this first complaint, the applicant maintains, in essence, that the contested decision is vitiated by an error of law in that the Commission highlighted the abusive nature of the practice in question on the basis of, inter alia, its anticompetitive intent, whereas, according to the case-law, the concept of abuse is an objective concept relating to the conduct of a dominant undertaking which is such as to influence the structure of a market and which has the effect of hindering the maintenance of the degree of competition still existing on