On July 7, 2022, Advocate General Rantos delivered his Opinion in Lietuvos geležinkeliai v Commission, Lithuanian Railways’ appeal against a General Court judgment partially upholding a decision by the Commission finding that it had infringed Article 102 TFEU by removing 19 km of train tracks.[1] The Commission concluded that this conduct prevented a major customer from switching to Latvian Railways’ rival transportation services.

Lithuanian Railways argued that the General Court should have characterized its conduct as a refusal of access to essential infrastructure, in which case the conduct would not infringe Article 102 TFEU, as it did not meet all three conditions set out by the Court of Justice’s case law:[2] (i) access to the facility must be indispensable; (ii) access must be denied without objective justification; and (iii) the refusal to allow access is likely to exclude all competition on the secondary market. The General Court had agreed with the Commission that Lithuanian Railways’ removal of the railway tracks was a distinct form of abuse, and that it was sufficient to show that it was capable of restricting competition and was not objectively justified.[3]

In Advocate General Rantos’ view, the essential facilities doctrine does not necessarily apply to every denial of access. It did not apply in Slovak Telekom,[4] where the conduct involved the tying of unrelated services or products to access to the infrastructure, so the “indispensability” of the infrastructure was not determinative of the conduct’s exclusionary nature. The conduct in this case was also different in nature to that at issue in past essential facilities cases: it involved the loss and not the preservation of infrastructure, and followed the logic of “predation” where the dominant firm sacrifices a valuable asset. Advocate General Rantos observed that the essential facilities doctrine should only apply where the dominant undertaking owned and invested in the infrastructure, which was not the case here. This is because the doctrine’s narrow scope reflects the need to safeguard a dominant firm’s incentives to invest in essential facilities.

The Court of Justice will now rule on Lithuanian Railways’ appeal. Its judgment is anticipated to clarify when the essential facilities doctrine applies, and it remains to be seen whether it will adopt the restrictive view adopted by the General Court and build on the specific principles defined by the Advocate General.

[1]      Lietuvos geležinkeliai v. Commission (Case C-42/21 P), Opinion of Advocate General Rantos, EU:C:2022:537 (“AG Rantos Opinion”). The General Court decision in the case was discussed in our November 2020 EU Competition Law Newsletter.

[2]      Oscar Bronner Gmbh & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG (Case C-7/97) EU:C:1998:569 and IMS Health (Case C-418/01) EU:C2004:257.

[3]      The Commission observed that Lithuanian Railways was aware of the customer’s plans to switch to its rival; that it had removed the track in a hurry without taking the usual preparatory steps; that this removal was contrary to standard practice in the sector; that it was aware of losing all the customer’s business if the track was rebuilt and that it had tried to convince the government not to rebuild the track. See Baltic rail (Case COMP/AT.39812), Commission decision of October 2, 2017.

[4]      Slovak Telekom v. Commission (Case C165/19 P) EU:C:2021:239.