Cartel detection and punishment is the essential condition for fair and free competition the success of which for the most part depends on the efficient legal regulation. Formally, the regulation of anti-competitive agreements among undertakings in Lithuania does not differ from that in the EU. The success of the efficiency of legal regulation depends not only on formal harmonisation of the legal framework. Efficiency is greatly impacted by the practical peculiarities of the application of law, society’s cultural aspects, political will and a number of other factors.
Cartels are cancers on the open market economy…
(Monti, 2000 )
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Article 119(1) of the Treaty on the Functioning of the European Union// OJ C 83, 3.30.2010. Declaration on Article 126 of the Treaty on the Functioning of the European Union annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 // OJ C 83, 3.30.2010 // http://www.eur-lex.europa.eu/JOHtml.do?uri¥OJ: C:2010:083:SOM:LT:HTML
Including the USA, the UK, France, Germany, Japan, India, Brazil, Korea, Russia, Poland, Sweden, and Australia.
Rulings of the Lithuanian Constitutional Court of 6 October, 1999, 9 April 2002, 17 March 2003, 26 January 2004 and 2 March 2009 // http://www.lrkt.lt/Dokumentai.html
Lithuanian legislation uses the concept of a prohibited agreement restricting competition; however, globally, competition law and the academic literature generally refer to agreements among competitors to restrict competition by object as cartels (English cartel, German Kartell, French cartel, Italian cartello). This work will use the concept of cartel to define a prohibited agreement restricting competition among competitors.
The earliest surviving example of modern competition law’s ancestors appears in the Lex Julia de Annona, enacted during the Roman Republic around 50 BC. This is an Augustian law against merchants raising the market prices of foodstuffs or committing other unfair practices in the sale or transportation of food. //A.Berger. Encyclopedic Dictionary of Roman Law. Philadelphia: American Philosophical Society, 1991, p. 553.
Currently, Article 101 of the Treaty on the Functioning of the European Union (TFEU).Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (2008/C 167/01). http://www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:167:0001:0006:EN:PDF
Commission staff working document accompanying document to the White Paper on Damages actions for breach of the EC antitrust rules COM (2008) 165 final, para 42. http://www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:405:FIN:EN:PDF
The Court of Justice of the European Union (hereinafter—the CJEU), judgment of 25 October 1977 in case No 26/76 Metro, para 20. IXth Competition Policy Report, pp. 9–11, Commission XXXIInd Report on Competition Policy, 2002, para 26.
Commission XXXIInd Report on Competition Policy, 2002, para 27.http://www.konkuren.lt/teise/EB_konkurencijos_taisykles.pdf Note: all references in legal acts to Articles 81 and 82 of the EC Treaty should be understood as references to Articles 101 and 102 of the Treaty on the Functioning of the European Union (hereinafter—the TFEU), as the title of the Treaty was changed after the Treaty of Lisbon came into effect on 1 December 2009.
Ruling A858-269/2012 of the Supreme Administrative Court of Lithuania (the SACL) of 26 January 2012 (Decoupage case).
Rulings of the Lithuanian Constitutional Court of 6 October, 1999, 9 April 2002, 17 March 2004, 26 January 2004, 2 March 2004 // http://www.lrkt.lt/Dokumentai.html
Ruling of the SACL of 17 May 2012 in case A520-1301/2012 (Orthopaedics case).Ruling of the SACL of 28 March 2011 in administrative case No A 525 -2577/2011, KOMAA and others v. Competition Council.
e.g. Judgment of the EGC of 11 December 2003 in case No T/61/99 Adriatica di Navigazione (2003), ECR II-5349, pp. 28–29.
Note: while explaining concepts in competition law it is necessary to take account of an economic context of the situation at issue. For the purposes of competition law the concepts are understood in a much broader sense due to economic meaning attached to them (e.g. the concept of a company). See Judgment of the CJEU of 23 April 1991 in case No C-41/90 Höfner and Elser/Macrotron, para 2; Judgment of the CJEU of 16 June 1987 in case No C-118/85 Commission v. Italy, para 7; Judgment of the SACL of 25 November 2008 in administrative case No A39-1939-08 Chamber of Auditors v Competition Council.
Judgment of the CJEU of 23 April 1991 in case No C-41/90 Klaus Höfner and Fritz Elser v. Macrotron GmbH, para 21.
Judgment of the CJEU of 19 September 2000 in case C-180-184/98 Pavel Pavlov and Others v. Stichting Pensioenfonds Medische Pavlov, para 75; Judgment of the CJEU of 16 June 1987 in case No C-118/85 European Commission v. Italy, p. 7, and Judgment of the EGC of 12 December 2000 in case T-128/98 A. d. P. v. European Commission, para 107.
Judgment of the CJEU of 14 July 1972 in case No 48/69 Imperial Chemical Industries Ltd. v. European Commission, par. 133; and Judgment of CJEU of 4 May 1988 in case No 30/87 Corinne Bodson v. SA Pompes funebres des regions liberees, para 19.
Judgment of the EGC of 12 December 2007 in case No T-112/05 Akzo Nobel NV and Others v. European Commission, p. 64, supported in Judgment of the CJEU of 10 September 2009 in case No C-97/08 P Akzo Nobel NV and Others v. the Commission of the European Communities, para 74.
Ruling of the SACL of 22 May 2008 in administrative case No A 248 -697/2008, Eurointegracijos projektai v. Competition Council.
Within the meaning of Article 101 of the TFEU the central feature of the concept of an agreement is existence of a joint intention between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention. See Judgments of the CJEU of 15 July 1970 in case No 41/69 Chemiefarma, para 112; and of 11 January 1990 in case No C-277/87 Sandoz, para 13; Judgment of the Court of First Instance of 26 October 2000 in case No T-41/96 Bayer, paras 67, 69, 173; Decision of the European Commission in Polypropylene case, 1986.
A decision by an association of undertakings covers any act of the association, including any recommendation of non-binding character, aimed at coordinating the conduct of its members in breach of Article 101 of the TFEU. Judgment of the CJEU of 8 November 1983 IAZ International Belgium NV v Commission, No 96/82, para 20; Judgment of the Court of 27 January 1987 Verband der Sachversicherer e.V. v Commission No 45/85).
By prohibiting concerted practices it is aimed to prosecute also those undertakings which even though have not agreed on concerted behaviour on the market but which form their economic policy by cooperating, directly or indirectly, with other undertakings. A. Jones, B. Sufrin, EC Competition Law, 2004, p. 151. A concerted practice implies, besides undertakings’ concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between them. Judgments of the CJEU: of 8 July 1999 in case No C-49/92 P, Anic Partecipazioni v. Commission, paras 118, 121; case No C-199/92 Polypropylene, paras 158 to 167; of 14 July 1972 in case No 48/69, ICI v. Commission, para 64.
Judgment of the CJEU of 14 July 1972 in case No 48/69 ICI v. Commission, para 64.Judgment of the CJEU of 16 December 1975 in Joined cases 40 to 48, 50, 54 to 56, 111, 113 and 114-73 Suiker Unie.
Communication from the European Commission—Notice—Guidelines on the application of Article 81(3) of the Treaty (2004/C 101/08), paras 21 to 23.
Ruling of the SACL of 11 May 2006 in administrative case No A 1 -686/2006 Martono taksi and Others v. Competition Council; Ruling of the SACL of 21 June 2012 in administrative case No A 552 -2016/2012 Specialus montažas—NTP v. Competition Council; Judgment of the SACL of 28 March 2011 in administrative case A 525 -2577/2011 KOMAA v Competition Council.
Judgment of the CJEU of 8 July 1999 in case No C-49/92 P Commission of the European Communities v Anic Partecipazioni SpA.
OJ C 101, 27.4.2004 p. 0081-0096.Note: the aforementioned provisions apply to both Article 101 of the TFEU and Article 102 of the TFEU; however, taking into account that the aim of the work relates only to Article 101 of the TFEU, the specificities of application of Article 102 of the TFEU will not be covered in the text.
EU Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03).National courts shall have the power to directly apply Article 101 of the TFEU (Article 6 of Regulation No 1/2003) in cases of private individuals concerning the award of damages. Thus, exercising the private competition law enforcement courts supplement the public enforcement of competition law implemented by the competition authorities and the Commission (for more information see Sect. 4.4.2).
For example, Case COMP/38.543—International removal services—cartel in the Belgium market. Articles 17 to 22 of EU Regulation No 1/2003.e.g. see Judgment of of the SACL of 23 March 2005 in administrative case No A15-39/2005; Ruling of the SACL of 3 February 2006 in administrative case No A248-749/2006; Ruling of the SACL of 1 March 2012 in administrative case No A502-1668/2012.
Rules concerning the setting of the amount of a fine imposed for infringements of the Lithuanian Law Programme of the Sixteenth Lithuanian Government of the Republic of Lithuania on Competition as approved by Resolution No 1591 of the Lithuanian Government of 6 December 2004 Official Gazette No 177-6567, 9.12.2004.
This seven-year timeframe for treating recidivism as the circumstance aggravating liability was fixed in a version of the Law on Competition that took effect on 1 May 2012 (Article 37(3) of the LoC).
Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (2006/C 210/02) http://www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:210:0002:0005:LT:PDF
e.g. Resolution No 2S-9 of the Competition Council of 7 June 2012 in the Case of travel agencies; Resolution No 2S-25 of the Competition Council of 8 December 2011 in the Case of ship agents.
Ruling of the SACL of 1 March 2012 in case No A502-1668/2012, City service v Competition Council. Ruling of the SACL of 23 June 2011 in case No A444-1433/2011. Ruling of the SACL of 1 March 2012 in case No A502-1668/2012, City service v Competition Council.Implementation of the setting of sufficiently deterrent fines not only for the purpose of punishing the undertaking having committed the infringement but also of deterring other undertakings was started in 2006 after the European Commission approved the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003.
Case-law and the academic literature on competition law use various terms for full or partial exemption from a fine to be levied on an undertaking for its participation in a cartel if the undertaking provides information on such participation in illegal activity and cooperates with a competition authority: leniency (EU), amnesty (US), immunity (UK, Canada, Australia, Brazil).
e.g. Series of seminars for business associations “How not to breach the competiton law requirements?”; Guidelines to contracting authorities “How to recognise a cartel in public tendering procedures?” // http://www.kt.gov.lt/index.php
p. 28: “Law enforcement goes first. It is necessary to have [cases] in order to communicate.”Commission notice on immunity from fines and reduction of fines in cartel cases (2006/C 298/11)//http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:298:0017:0022:LT:PDF
Judgments of the Court of Justice of the EU of 20 September 2001 Courage and Crehan, C-453/99; 13 July 2006 in Joined Cases C-295/04–C-298/04—Manfredi; 14 June 2011 Pfleiderer AG v Bundeskartellamt, C-360/09; 6 November 2012 European Community v Otis NV and Others, C-199/11.
Judgment of the Court of Justice of the EU of 13 July 2006 in Joined Cases C-295/04–C-298/04—Manfredi.
EU Commission’s White Paper on damages actions for breach of the EC antitrust rules, COM (2008) 165 // http://www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0165:FIN:lt:PDF
e.g. in the USA, Australia, Canada, Japan, Israel, Norway, the RSA, and others.e.g. in 2006, 10 Member States (Ireland, Estonia, Cyprus, Slovak Republic, Denmark, Malta, Greece, Germany, Austria, UK) applied criminal penalties for cartels (for more information see Cseres K. J., Schinkel M.P., Vogelaar F.O.W. Criminalization of Competition Law Enforcement: Economic and Legal Implications for the EU Member States. Edward Elgar Publishing, 2006), whereas 18 Member States in 2010.
e.g. Whish R. Competition Law, Sixth Edition, 2008, p. 498.The principle of the freedom of fair competition was first enshrined in Lithuanian law in 1992 (Article 46 of the Lithuanian Constitution, the first Law on Competition passed in 1992). The concept of individual’s economic freedom and initiative already occurred in the 1918–1940 Constitutions of independent Lithuania, which in the contemporary context is treated as a right to freely choose a business, a right to freely conclude contracts, equal treatment of undertakings and the freedom of fair competition. And the 1932 Law on Fight against Unfair Competition and the 1935 Law on Price Supervision could be considered only as the beginning of a moden competition law whose development discontinued in 1940 after transition to the plan economy (Articles 4 and 11 of the LSSR Constitution).
Article 46 of the Lithuanian Constitution; judgements of the Lithuanian Constitutional Court of 13 May 1995, 18 April 1996, 6 October 1999, 18 October 1999, 9 April 2002, 17 March 2003, 26 January 2004, 13 May 2005, 31 May 2006, 21 January 2008, 30 June 2008, 4 December 2008 //http://www.lrkt.lt/Dokumentai.html
Investigation on the conformity of actions of undertakings engaged in brewing and sale of beer with the requirements of Article 5 of the Lithuanian Law on Competition and of Article 101 of the Treaty on the Functioning of the European Union // http://www.kt.gov.lt/index.php?show=tyrimai
Decision No 111-S-25 of the Seimas Committee on Health Affairs of 4 December 2013 concerning the need to ensure that public administraties entities in their activities do not ignore the objectives and principles of the national alcohol control policy.
Investigation on the conformity of UAB Lukoil Baltija actions with the requirements of Article 8(1) and Article 9(2) of the Lithuanian Law on Competition// http://www.kt.gov.lt/index.php?show=tyrimai
About the meeting of the Committee on Economics of 11 December 2013 (question 7)// http://www3.lrs.lt/pls/inter/w5_show?p_r=9033&p_k=1
