Consolidated version valid from 12 January 2024

REPUBLIC OF LITHUANIA

LAW

ON COMPETITION

23 March 1999 No VIII-1099

(As last amended on 29 June 2023 – No XIV-2110)

Vilnius

CHAPTER I

GENERAL PROVISIONS

Article 1. Purpose of the Law

1. The purpose of this Law is to protect freedom of fair competition in the Republic of Lithuania.

2. This Law shall regulate the activities of entities of public administration and undertakings which restrict or may restrict competition as well as acts of unfair competition, establish the rights, duties and liability of the said undertakings, the legal basis for the supervision of restriction of competition in the Republic of Lithuania and the specific features of compensation for the harm caused by infringements of competition law.

3. This Law has the aim of harmonising the law regulating competition relations between the Republic of Lithuania and the European Union.

4. This Law shall implement the legal acts of the European Union listed in the Annex to this Law.

Article 2. Scope of the Law

1. This Law shall prohibit undertakings from performing acts which restrict or may restrict competition, regardless of the nature of their economic activity, except in cases where this Law or other laws governing specific areas of economic activity provide for exemptions. Under this Law, entities of public administration shall be prohibited from adopting decisions restricting competition, except in cases specified in this Law, the Law of the Republic of Lithuania on Local Self-Government or other laws.

2. This Law shall also apply to activity of undertakings registered outside the Republic of Lithuania if the said activities restrict competition on the domestic market of the Republic of Lithuania.

3. This Law shall not apply to activity of undertakings which restrict competition on foreign markets, unless the international treaties to which the Republic of Lithuania is a party provide otherwise.

4. If the international treaties ratified by the Republic of Lithuania provide for other requirements for the protection of competition, the provisions of these treaties shall apply.

Article 3. Definitions

1. ‘Relevant market’ means the market of a certain product in a certain geographic territory.

1¹. ‘Immunity from fines’ means non-imposition of fines that would normally be imposed on a participant in a prohibited agreement between competitors as referred to in points 1-4 of Article 5(1) of this Law or in another agreement between competitors aimed at restricting competition and infringing the provisions of Article 5(1) of this Law or Article 101(1) of the Treaty on the Functioning of the European Union or on a participant in a prohibited agreement between non-competitors regarding direct or indirect price setting (fixing) as referred to in Article 5(1)(1) of this Law in order to reward them for cooperation with the Competition Council pursuant to Article 38(1) of this Law.

1 ². ‘Reduction of fines’ means reduction of the amount of fines that would normally be imposed on a participant in a prohibited agreement between competitors as referred to in points 1-4 of Article 5(1) of this Law or in another agreement between competitors aimed at restricting competition and infringing the provisions of Article 5(1) of this Law or Article 101(1) of the Treaty on the Functioning of the European Union or on a participant in a prohibited agreement between non-competitors regarding direct or indirect price setting (fixing) as referred to in Article 5(1)(1) of this Law in order to reward them for cooperation with the Competition Council pursuant to Article 38(1) of this Law.

2. ‘Dominant position’ means the position of one or more undertakings in a relevant market directly facing no competition or enabling to exert a unilateral decisive influence in the relevant market by effectively restricting competition. Unless proved otherwise, an undertaking (except for an undertaking engaged in retail trade) with the market share of not less than 40% shall be deemed to enjoy a dominant position in the relevant market. Unless proved otherwise, each of a group of three or a smaller number of undertakings (except for undertakings engaged in retail trade) with the largest relevant market shares which jointly hold in the relevant market the share of 70% or more shall be deemed to enjoy a dominant position. Unless proved otherwise, an undertaking engaged in retail trade with the market share of not less than 30% shall be deemed to enjoy a dominant position in the relevant market. Unless proved otherwise, each of a group of three or a smaller number of undertakings engaged in retail trade with the largest relevant market shares which jointly hold in the relevant market the share of 55% or more shall be deemed to enjoy a dominant position.

2 ¹. ‘Final decision of the Competition Council’ means a decision of the Competition Council referred to in Article 12(1), Article 24(4), Article 28(3) or (4) or points 1, 2 and 3 of Article 30(1) of this Law.

3. ‘Geographic territory/geographic market’ means the territory in which all undertakings are exposed to substantially similar conditions of competition in a given product market and which may be distinguished from adjacent territories on this basis.

4. ‘Competition authority of another Member State of the European Union’ means the authority designated under Article 35 of Regulation (EC) No 1/2003 by a Member State of the European Union other than the Republic of Lithuania.

5. ‘Concentration’ means:

1) merger, where one or more undertakings which cease to operate as independent undertakings are joined to the undertaking which continues to operate, or when a new undertaking is established from two or more undertakings which cease to operate as independent undertakings;

2) acquisition of control, where the same natural person(s) already controlling one or more undertakings, or one or more undertakings, by agreement, jointly establish a new undertaking (except the cases when such new undertaking does not perform the functions of an independent undertaking) or gain control over another undertaking by acquiring an enterprise or part thereof, all or part of the undertaking’s assets, shares or other securities, voting rights by contract or by any other means.

6. ‘Restriction of competition’ means any acts which impede competition in the relevant market or may weaken, distort or otherwise have a negative effect on competition.

7. ‘Conditions of competition’ means various economic parameters of purchase or sale, the most important thereof being prices, discounts, markups or other payments, as well as factors affecting them (legal restrictions on economic activity, aid granted by entities of public administration, production technologies and costs, characteristics of the use and consumption of goods, transportation possibilities, etc.).

8. ‘Competitors’ means undertakings which are, or may be, exposed to competition with each other in the same relevant market.

9. ‘Control’ means any rights arising from laws or transactions of the Republic of Lithuania or any other state which entitle a legal or natural person to exert a decisive influence on the activity of an undertaking, including:

1) the right of ownership to all or part of the assets of the undertaking or the right to use all or part of the undertaking’s assets;

2) other rights which permit exertion of a decisive influence on decisions of bodies of the undertaking or the composition of the personnel thereof.

10. ‘Controlling person’ means a legal or natural person holding or acquiring the right of control over an undertaking. A controlling person may be a citizen of the Republic of Lithuania, a foreign national or a stateless person, or an undertaking, as well as an entity of public administration. Spouses, parents and their minor children/adopted children shall be considered as one controlling person. If two or more legal or natural persons, acting by agreement, acquire control of an undertaking subject to concentration, each of these legal or natural persons shall be considered as a controlling person.

11. ‘Decisive influence’ means a situation where a controlling person implements or is in a position to implement his/her decisions in relation to the economic activities of the controlled undertaking, the decisions of the bodies or the composition of the personnel thereof.

12. ‘Indirect purchaser’ means a natural or legal person who has acquired from a direct purchaser or a subsequent purchaser, but not from an undertaking which committed an infringement of Article 5 or 7 of this Law or Article 101 or 102 of the Treaty on the Functioning of the European Union the goods which became the object of the infringement or the goods manufactured from the goods which became the object of such infringement or the goods which are assembled with the goods which became the object of such infringement.

13. ‘Injured party’ means a natural or legal person who has suffered harm as a result of an infringement of Article 5 or 7 of this Law or Article 101 or 102 of the Treaty on the Functioning of the European Union.

14. ‘Aid grantor’ means a state or municipal institution or any other legal person providing state aid or de minimis aid.

15. ‘Subsidiary’ means an undertaking over which another undertaking exercises a decisive influence.

16. ‘Parent undertaking’ means an undertaking which exercises a decisive influence over another undertaking.

17. ‘Overcharge’ means the difference between the price actually paid and the price that would otherwise have prevailed in the absence of an infringement of Article 5 or 7 of this Law or Article 101 or 102 of the Treaty on the Functioning of the European Union.

18. ‘Goods’ means any object of purchase or sale, including all kinds of services, works, rights or securities. The transfer or acquisition of goods under contracts of purchase and sale, supply contracts, contracts for work or other transactions shall be considered as purchase or sale. Articles/property transferred under lease or loan for use contracts shall be considered to be equivalent to goods.

19. ‘Product market’ means the totality of goods which, from the consumers’ point of view, are appropriate substitutes according to their properties, application and prices.

20. ‘Market share’ means the ratio, expressed as a percentage, of goods purchased or sold by an undertaking or a group of associated undertakings to the total sales or purchases of goods in the relevant market. If it is impossible to obtain reliable data on the sales or purchases of goods when determining the market share, other objective information about the relevant market, including the value of the purchases or sales of goods, may be taken into consideration.

21. ‘Group of associated undertakings’ means two or more undertakings which due to their mutual control are regarded as one undertaking for concentration control purposes when calculating total turnover and market share. Unless proved otherwise, a group of associated undertakings shall be considered to be comprised of:

1) the undertaking concerned and

2) undertakings in which the undertaking concerned holds directly or indirectly (through other undertakings) more than half of the shares, other securities or assets or holds more than half of the votes, or has the right to appoint more than half of the members of the supervisory or management bodies, or has the right to manage the undertaking’s affairs within the meaning of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings;

3) undertakings which have in the undertaking concerned the rights listed in point 2 of this paragraph;

4) undertakings in which the undertakings referred to in point 3 of this paragraph or other persons controlling the undertaking concerned have the rights listed in point 2 of this paragraph;

5) undertakings in which two or more undertakings referred to in points 1 to 4 of this paragraph jointly have the rights listed in point 2 of this paragraph.

22. ‘Agreement’ means contracts concluded in any form (written or oral) between two or more undertakings or concerted practices between undertakings, including decisions made by any combination (association, union, consortium, etc.) of undertakings or by representatives of such a combination of undertakings.

23. ‘Direct purchaser’ means a natural or legal person who has acquired, directly from an undertaking which committed an infringement of Article 5 or 7 of this Law or Article 101 or 102 of the Treaty on the Functioning of the European Union, the goods that became the object of the said infringement.

24. ‘Economic activity’ means any type of manufacturing, commercial, financial or professional activities associated with the purchase or sale of goods, except for acquisitions by natural persons intended for personal and household needs.

25. ‘Undertaking’ means an enterprise, a combination of enterprises (associations, unions, consortiums, etc.), an institution or an organisation, or other legal or natural persons which engage, or may engage, in economic activity in the Republic of Lithuania or whose actions affect or whose intentions, if realised, could affect economic activity in the Republic of Lithuania. Entities of public administration of the Republic of Lithuania shall be regarded as undertakings if they engage in economic activity.

26. ‘Assets of an undertaking’ means tangible fixed assets and other non-marketable assets used in economic activity.

27. ‘Manager of an undertaking’ means a natural person who is in charge of a legal person and is its single-person management body.

28. ‘State aid measure or de minimis aid measure’ (hereinafter: an ‘aid measure’) means a legal act, a state aid or de minimis aid scheme, decision or another document or a totality of such documents on the basis of which state aid or de minimis aid is granted.

29. The concept of ‘state aid’ used in this Law shall be interpreted within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union. The concept of ‘de minimis aid’ used in this Law shall be interpreted within the meaning of Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid, as amended, Commission Regulation (EU) No 1408/71 of 18 December 2013 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector, as amended, Commission Regulation (EU) 717/2014 of 27 June 2014 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the fishery and aquaculture sector, as amended, and Commission Regulation (EU) No 360/2012 of 25 April 2012 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest, as amended.

Article 4. Duty of entities of public administration to ensure freedom of fair competition

1. In carrying out the assigned tasks related to the regulation of economic activity within the Republic of Lithuania, entities of public administration must ensure freedom of fair competition.

2. Entities of public administration shall be prohibited from adopting legal acts or other decisions which grant privileges to or discriminate against individual undertakings or their groups and which give, or may give, rise to differences in the conditions of competition for undertakings competing in a relevant market, except where the difference in the conditions of competition may not be avoided in the fulfilment of statutory requirements.

Article 4¹. Assessment of the effect of envisaged legal regulation on competition

1. The drafter of a legal act shall perform an assessment of the effect of the draft legal act on competition, where the regulation established, amended or repealed by the draft legal act:

1) grants exclusive rights to an undertaking to engage in economic activity;

2) establishes a limited number of undertakings which may engage in certain economic activity;

3) is related to the procedure of licensing, acquisition of authorisations or another procedure of acquisition of the right to engage in economic activity;

4) restricts possibilities of undertakings to engage in economic activity;

5) significantly increases costs for undertakings seeking to enter or exit the market;

6) establishes geographic restrictions on the sale of goods or services, investment or movement of members of staff;

7) restricts possibilities of undertakings to set prices of their goods or services;

8) increases or decreases operating costs for undertakings operating on the market by imposing different requirements on individual undertakings or by other means;

9) restricts possibilities of undertakings to advertise their goods or to choose the ways of selling them;

10) sets quality standards for goods or services;

11) requests or encourages the publication of information on prices, costs, sales of goods of undertakings or their production capacities;

12) regulates the mechanism of self-regulation of undertakings;

13) limits possibilities of purchasers to decide from which undertaking they will purchase goods or services;

14) reduces the mobility of consumers by increasing the costs of consumers wishing to choose or change the supplier or by other means;

15) may encourage the emergence of new markets or determine a significant reduction in the regulation (liberalisation) of the existing markets;

16) regulates issues of intellectual property rights;

17) regulates issues of public procurement or concessions;

18) is related to direct or indirect support provided to undertakings or to the provision of assets for the purpose of carrying out economic activity of undertakings;

19) is related to the provision of public services or economic activity of undertakings managed by the State or municipalities;

20) is related to the establishment of undertakings managed by the State or municipalities;

21) grants exclusive status to certain undertakings, groups thereof or the projects carried out by them;

22) in other cases, where the legal regulation provided for by the legal act being drafted may affect competition.

2. At the request of drafters of legal acts, the Competition Council shall provide them with consultations on methods of assessment of the effect on competition.

CHAPTER II

RESTRICTIVE PRACTICES

SECTION ONE

PROHIBITED AGREEMENTS

Article 5. Prohibition of agreements restricting competition

1. All agreements which have the purpose of restricting competition or which restrict or may restrict competition shall be prohibited and shall be void from the moment of conclusion thereof, including:

1) agreements to directly or indirectly set (fix) prices of certain goods or other conditions of purchase or sale;

2) agreements to share the product market on a territorial basis, according to groups of purchasers or suppliers or in any other way;

3) agreements to fix production or sale volumes for certain goods as well as to restrict technical progress or investment;

4) agreements to apply dissimilar (discriminatory) conditions to equivalent contracts with individual undertakings, thereby placing them at a competitive disadvantage;

5) agreements to require other undertakings to accept supplementary obligations which, by virtue of their commercial nature or purpose, have no direct connection with the subject of the contract.

2. The agreements concluded between competitors, as listed in points 1, 2, 3 and 4 of paragraph 1 of this Article, shall, in all cases, be considered as restricting competition.

3. This Article may be omitted in respect of agreements concluded between undertakings which, by reason of their insignificant effect, are not capable of substantially restricting competition. The conditions and requirements for such agreements shall be laid down by the Competition Council of the Republic of Lithuania (hereinafter: the ‘Competition Council’).

Article 6. Exemption

1. Article 5 of this Law shall not apply if an agreement promotes technical or economic progress or improves the production or distribution of goods, while allowing consumers to receive additional benefit, also if the agreement:

1) does not result in restrictions on the activities of the parties thereto which are not indispensable to the attainment of the objectives referred to in this Article;

2) does not afford the parties thereto the possibility to restrict competition in a substantial part of the relevant market.

2. The agreement meeting the conditions set out in paragraph 1 of this Article shall be effective from the moment of conclusion thereof (ab initio) without any prior decision of the Competition Council. In the event of a dispute regarding the compliance of the agreement with the provisions of paragraph 1 of this Article, the burden of proof to demonstrate that it complies shall fall upon the party to the agreement benefiting from this exemption.

3. The Competition Council shall have the right to determine groups of agreements as well as conditions under which an agreement meets the conditions set out in paragraph 1 of this Article.

4. The Competition Council may revoke the right of undertakings based on the exemption established by the Competition Council pursuant to paragraph 3 of this Article if it is established that, in certain cases, the effect of the agreement is incompatible with the provisions of paragraph 1 of this Article.

SECTION TWO

ABUSE OF A DOMINANT POSITION

Article 7. Prohibition to abuse a dominant position

It shall be prohibited to abuse a dominant position on the relevant market by engaging in any conduct which restricts or may restricts competition, limits, without due cause, the possibilities of other undertakings to act on the market or violates the interests of consumers, including:

1) direct or indirect imposition of unfair prices or other conditions of purchase or sale;

2) limiting of trade, production or technical progress to the prejudice of consumers;

3) application of dissimilar (discriminatory) conditions to equivalent contracts with certain undertakings, thereby placing them at a competitive disadvantage;

4) conclusion of a contract subject to acceptance, by the other party, of supplementary obligations which, by virtue of their commercial nature or purpose, have no direct connection with the subject of such contract.

SECTION THREE

CONTROL OF CONCENTRATION

Article 8. Notification of a concentration

1. The intended concentration must be notified to the Competition Council and its authorisation must be obtained if the combined aggregate income of the undertakings concerned in the business year preceding the concentration is more than EUR 20 million and the aggregate income of each of at least two undertakings concerned in the business year preceding the concentration is more than EUR 2 million.

2. No longer effective from 1 January 2018.

3. If the concentration involves the participation of:

1) an insurance undertaking, the value of gross insurance premiums shall be calculated instead of the aggregate income;

2) collective investment undertakings or management companies managing them, the aggregate income shall be calculated as the total amount of aggregate income of all the undertakings under the control of the management company, closed-ended investment company or investment company with variable capital, the management of the assets whereof has not been transferred to the management company;

3) an undertaking which belongs to a group of associated undertakings, the aggregate income shall be calculated as the total amount of aggregate income of all the undertakings belonging to the group of associated undertakings;

4) no longer effective from 1 January 2018.

4. The Competition Council shall establish the procedure for calculating the aggregate income applicable to control of concentration.

5. A concentration shall be deemed not to arise where commercial banks, other credit institutions, intermediaries of public trading in securities, collective investment undertakings or management companies managing them and insurance undertakings acquire shares in another enterprise with a view to transferring them, provided that they do not exercise the voting right conferred by the shares and that any such transfer takes place within one year and the information is submitted to the Competition Council not later than within one month from the acquisition. If the financial institutions which acquired shares in another enterprise decide not to comply with the conditions provided for in this paragraph, they must submit a notification of a concentration in accordance with the general procedure.

6. Two or more transactions entered into between the same persons or undertakings over a two-year period shall be treated as a single concentration arising at the time of the last transaction.

Article 9. Submission of a notification of a concentration

1. A notification of a concentration in the case of acquisition of control shall be submitted by the controlling persons, in the case of merger – jointly by all undertakings participating in the concentration.

2. The notification of a concentration must be submitted to the Competition Council in accordance with the procedure established by the Competition Council prior to the implementation of the concentration. The notification of a concentration shall be submitted after the submission of a proposal to conclude an agreement or to acquire shares, securities or assets, an instruction to conclude an agreement, conclusion of an agreement, acquisition of the right of ownership or the right to dispose of certain assets. The notification of a concentration may also be submitted in case of a good faith intention to conclude an agreement or to make a public bid to buy up shares.

3. The Competition Council shall set out requirements for the notification of a concentration necessary for carrying out the assessment of the effect of the concentration on relevant markets as well as the form of the notification of a concentration. The notification of a concentration must contain the information to be provided in the form of a notification of a concentration as established by the Competition Council, including the following information:

1) the registration data of the undertakings participating in the concentration;

2) the reasons for and purposes of the concentration;

3) a description of the manner of the concentration;

4) sets of annual financial statements of each undertaking participating in the concentration for the last one year prior to the concentration;

5) data on the enterprises owned by each undertaking participating in the concentration or the controlling persons as well as data on the enterprises the holders of shares or member shares whereof they are;

6) assessment of the market share in the relevant market of each undertaking participating in the concentration;

7) a list of the main competitors in the relevant markets of each undertaking participating in the concentration.

4. If a notification of intended concentration with participation of an undertaking belonging to a group of associated undertakings is submitted, the data regarding all the undertakings belonging to the group of associated undertakings shall be submitted pursuant to the requirements of paragraph 3 of this Article.

5. No longer effective from 1 January 2018.

6. A person submitting a notification of a concentration shall pay to the Competition Council a fee for the examination of the notification of a concentration. If the person fails to pay the fee, the Competition Council shall not examine the notification of a concentration.

Article 10. Suspension of concentration

1. Undertakings participating in a concentration which is subject to notification or controlling persons shall have no right to implement the concentration until a decision of the Competition Council is adopted in accordance with point 1 or 2 of Article 12(1) of this Law, except for the cases provided for in paragraphs 3 and 4 of this Article.

2. All transactions and actions of undertakings and controlling persons related to the concentration in respect whereof the decision referred to in Article 12(1)(3) was adopted shall be regarded as being invalid and not producing any legal effects.

3. On a reasoned request of undertakings participating in the concentration or the controlling person, the Competition Council may, taking into account the consequences of the suspension of concentration on the persons concerned and the envisaged effect of the concentration on competition, adopt a decision to authorise the performance of individual actions of concentration. The authorisation of the Competition Council to perform individual actions of concentration may be granted subject to certain conditions and obligations necessary to ensure effective competition. A person submitting the request to authorise the performance of individual actions of concentration shall pay to the Competition Council a fee for examination of this request. If the person fails to pay the said fee, the Competition Council shall not examine the request to authorise the performance of individual actions of concentration.

4. Undertakings participating in the concentration and controlling persons may, without the authorisation of the Competition Council to perform individual actions of concentration, make a public offer to buy up shares and make transactions on transferable securities admitted to trading on a regulated market, provided that a notification is submitted to the Competition Council no later than within seven days after these actions and the acquirer of the securities does not exercise the voting rights granted by the securities.

Article 11. Examination of notifications of a concentration by the Competition Council

1. Upon receiving a notification of a concentration, the Competition Council shall publish an announcement thereof on their website and indicate the nature of the concentration and the parties concerned. For the purpose of monitoring concentrations or providing information to the public, the forenames and surnames of the controlling persons and the persons acquiring control, information about the undertakings directly and indirectly controlled by them, the undertakings whose control is acquired, the rights exercising control, including the number of shares held and/or acquired, the manner of acquisition of control and the economic activity carried out shall be published on the website of the Competition Council for a period of two years from the receipt of the notification of a concentration.

2. The Competition Council shall examine notifications of a concentration submitted in accordance with the requirements set out by the Competition Council and adopt the decisions referred to in Article 12(1) of this Law not later than within four months, except for the cases where this time limit is suspended in accordance with paragraph 6 of this Article or extended in accordance with paragraph 7 of this Article. This time limit shall begin on the day following receipt of the notification of a concentration which complies with the requirements set out by the Competition Council. If the notification of a concentration does not comply with the requirements set out by the Competition Council, the Competition Council shall, without delay, inform in writing the persons who have submitted the notification. The Competition Council shall commence the procedure of examination of a notification of a concentration only upon receiving a notification of a concentration meeting the set requirements.

3. The Competition Council must, within one month from the receipt of a notification of a concentration which complies with the requirements set out by the Competition Council, adopt a decision pursuant to point 1 or 2 of Article 12(1) or a decision to proceed with further examination of the notification of a concentration.

4. The Competition Council, intending to adopt a decision in accordance with Article 12(1)(2), may, on a reasoned request of the person who has submitted the notification, extend by one month the time limit for examination of the notification of a concentration referred to in paragraph 2 of this Article.

5. When examining notifications of a concentration, the Competition Council shall be entitled to obtain from undertakings, controlling persons and entities of public administration the information, oral and written explanations necessary for adopting a decision on the concentration.

6. When examining a notification of a concentration, the Competition Council may suspend the time limit referred to in paragraph 2 of this Article if at least one of the undertakings participating in the concentration or associated undertakings fails to provide, within the time limit of at least one working day fixed by the Competition Council, the additional information required for the examination of the notification of a concentration in accordance with paragraph 5 of this Article or does not provide it in full. The Competition Council shall, not later than within seven working days from the expiry of the time limit for providing information, adopt a reasoned decision to suspend the time limit referred to in paragraph 2 of this Article and shall inform in writing the undertakings participating in the concentration. The suspension of the time limit shall be calculated from the next working day on which the fixed time limit for the provision of information expires until the working day on which the Competition Council receives all the information. The Competition Council shall, not later than within seven working days from the receipt of all the information, adopt a decision on the expiry of the suspension of the time limit and inform in writing the undertakings participating in the concentration. If the total duration of suspension of the time limit for the examination of the notification of concentration on the grounds of this paragraph is longer than three months, the procedure for the examination of the notification of concentration shall be terminated, the undertakings participating in the concentration shall be informed in writing of the termination of the procedure for the examination of concentration and it shall be considered that a notification of a concentration has not been submitted.

7. The Competition Council may adopt a decision to extend the time limit referred to in paragraph 2 of this Article subject to the receipt of a consent of the undertakings which have submitted a notification of a concentration regarding the extension of this time limit or if, less than 20 days before the expiry of this time limit, the undertakings, controlling persons or entities of public administration provide the additional information required for the adoption of the decisions referred to in Article 12(1) of this Law and if, for objective reasons, it is impossible to examine the notification of a concentration within the time limit referred to in paragraph 2 of this Article. The undertakings participating in the concentration shall be informed of the adopted decision in writing within two working days from the adoption of the decision and the reasons for the extension of the time limit shall be indicated. The total duration of the extension under this paragraph may not exceed one month.

8. The persons who have submitted a notification of a concentration must inform the Competition Council in writing without delay of any changes in the facts contained in that notification which occurred in the course of the examination of the notification of a concentration or provide any information referred to in Article 9(3) of this Law which has not been provided in the notification of a concentration. If, in the course of the examination of a notification of a concentration, it transpires that the information required to be provided in accordance with Article 9(3) of this Law, which is relevant for the assessment of the effect of a new concentration, is known or should be known to the persons who have submitted the notification, the Competition Council shall have the right to consider the notification of a concentration to have been received by the Competition Council on the day on which the relevant information is received by the Competition Council. The Competition Council shall inform in writing without delay the persons who have submitted the notification.

Article 12. Decisions of the Competition Council on concentration

1. Upon examining a notification of a concentration, the Competition Council shall adopt one of the following decisions:

1) to authorise the implementation of the concentration in accordance with the submitted notification;

2) to authorise the implementation of the concentration in accordance with the conditions and obligations established by the Competition Council for the undertakings concerned or controlling persons and necessary to prevent the creation or strengthening of a dominant position or a substantial restriction of competition in the relevant market;

3) to refuse to grant authorisation to implement the concentration and impose an obligation on the undertakings participating in the concentration or controlling persons to perform actions restoring the previous condition, or to eliminate the consequences of the concentration, including the obligations to sell the enterprise or part thereof, the assets of the undertaking or part thereof, the shares or part thereof, to cancel or amend contracts, as well as to establish the terms and conditions for the fulfilment of the above obligations, where the concentration will result in creation or strengthening of a dominant position or substantial restriction of competition in a relevant market.

2. Prior to adopting the decision referred to in point 3 of paragraph 1 of this Article, the Competition Council shall submit in writing to the undertakings or controlling persons participating in the concentration reasoned conclusions on the examination of the notification of a concentration and, from the submission of these conclusions, provide access to the materials of the examination of the notification of a concentration, except for the documents of official use and the information comprising commercial and professional secrets of other undertakings.

3. The decision of the Competition Council referred to in point 2 or 3 of paragraph 1 of this Article shall indicate the reasons for imposition of concentration implementation conditions and obligations or the reasons for refusal to authorise concentration. When adopting this decision, the Competition Council shall have the right to rely only on those reasons regarding which the undertakings or controlling persons participating in the concentration were able to give explanations.

4. The persons who have submitted notifications of a concentration shall be informed about the decisions adopted by the Competition Council in writing. If within the time limit referred to in Article 11(2) of this Law the Competition Council does not adopt the decisions referred to in paragraph 1 of this Article, the undertakings or controlling persons shall have the right to implement the concentration in accordance with the conditions formulated in the notification of a concentration.

5. Decisions of the Competition Council referred to in this Article shall be published on the website of the Competition Council.

Article 13. Application of the concentration control procedure on own initiative

1. The Competition Council may impose an obligation on undertakings to submit a notification of a concentration and apply mutatis mutandis the concentration control procedure provided for in this Section, even though the aggregate income indicators established in Article 8(1) of this Law are not exceeded, where it is likely that concentration will result in the creation or strengthening of a dominant position or a substantial restriction of competition in the relevant market.

2. The Competition Council may adopt a separate decision to apply the concentration control procedure only in cases where no more than 12 months have elapsed from the implementation of the concentration in question.

Article 14. Investigation of a breach of concentration implementation and amendment or repeal of the Competition Council’s decisions on concentration

1. If there are reasonable grounds to believe that concentration has been implemented in violation of the requirements of this Law or in breach of decisions of the Competition Council, the Competition Council shall carry out an investigation in accordance with the provisions of Chapter V of this Law.

2. The Competition Council shall have the right to amend or repeal its decisions on concentration provided for in Article 12(1) of this Law if such a decision was adopted on the basis of incorrect or incomplete information which had been provided by the undertakings or controlling persons participating in the concentration and had a decisive influence when adopting the decision, or if the undertakings or controlling persons have violated the conditions and obligations of the implementation of the concentration.

3. If all or part of the decision of the Competition Council provided for in Article 12(1) of this Law is annulled under a final court decision, undertakings must submit to the Competition Council a notification of a concentration revised according to the current market situation. If the undertakings do not perform these actions, the consequences provided for in paragraph 2 of Article 10(2) of this Law shall arise mutatis mutandis to the extent they do not contradict the final court decision.

4. The revised notification provided for in paragraph 3 of this Article must be submitted to the Competition Council no later than within one month after the court decision has become final. The Competition Council shall examine the revised notification of a concentration and adopt one of the decisions referred to in Article 12(1) of this Law. In this case, the time limit referred to in Article 11(2) of this Law shall run from the date on which the undertakings submit a revised notification of a concentration.

CHAPTER III

UNFAIR COMPETITION

Article 15. Prohibition of acts of unfair competition

1. Undertakings shall be prohibited from performing any actions contrary to fair business practices and good usages if such actions may be detrimental to the competitive potential of another undertaking, including:

1) unauthorised use of a reference mark identical with, or similar to, another undertaking’s name, registered trade mark or unregistered well-known trade mark or another reference mark with a distinctive character used on a preferential basis if this causes, or is likely to cause, confusion with this undertaking or its activity, or if it is sought to take unfair advantage of the repute of this undertaking (its mark or reference mark), or if this may be detrimental to the repute of this undertaking (its mark or reference mark), or if it may be detrimental to the distinctive character of the mark or reference mark used by this undertaking;

2) misleading of undertakings by providing them with incorrect or unsubstantiated information about the quantity, quality, components, properties of usage, place and method of production and price of their goods or the goods of another undertaking, or concealing of risks associated with the consumption, processing or other usage of those goods;

3) usage, transfer, disclosure of information comprising a commercial secret of another undertaking without its consent as well as obtaining of such information from persons not authorised to transfer such information for the purpose of competing, seeking self-benefit or inflicting harm upon this undertaking;

4) proposing that members of staff of the competing undertaking terminate their employment contracts or refrain from performing all or part of their work-related duties, seeking self-benefit or inflicting harm upon this undertaking;

5) imitating of the product or product packaging of another undertaking, copying of the shape, colour or other distinctive elements of that product or product packaging if this may be misleading in terms of the identity of the product, or if it is sought by such actions to take unfair advantage of the repute of another undertaking;

6) provision of incorrect or unsubstantiated information about their own or another undertaking’s managing personnel, qualifications of staff, the legal, financial or other position of the undertaking if harm may thereby be inflicted upon another undertaking;

7) no longer effective from 1 May 2019.

2. The use of an identical or similar name, trade mark or another reference mark referred to in point 1 of paragraph 1 of this Article shall not be considered as such where the forename or surname of the owner, the holder of the qualifying holding or the founder is used in the name, trade mark or reference mark and where the undertakings using such a name, trade mark or reference mark have taken measures to prevent misleading as to the identity of the undertaking or the goods.

3. The geographical indications provided in any form, characterising goods as being produced on the territory of a certain state or a certain region or area of that territory which is associated with the quality, reputation or other properties of the goods shall be attributed to the information referred to in point 2 of paragraph 1 of this Article concerning the designation of origin of the goods.

4. Persons who have become aware of a commercial secret as a result of their work or any other contractual relationship with the undertaking may use this information after the lapse of not less than one year from the termination of employment or any other contractual relationship, unless laws or the contract provide otherwise.

5. Actions taken with a view to achieving certain functional properties of goods or their packaging shall not be considered as imitation of the appearance of the goods or the form of their packaging, provided that the person taking such actions has taken measures to prevent misleading other undertakings or consumers as to the identity of the manufacturer or the goods.

Article 16. Judicial remedies

1. An undertaking whose legitimate interests are violated by actions of unfair competition shall have the right to bring an action before a court seeking:

1) termination of the unlawful actions;

2) compensation for the harm incurred;

3) imposition of an obligation to make one or several statements of specific content and form, refuting the previously submitted incorrect information or providing clarification as to the identity of the undertaking or its goods;

4) seizure or destruction of the goods, their packaging or other means directly related to unfair competition, unless the infringements may be brought to an end otherwise.

2. Organisations representing the interests of undertakings or consumers shall also enjoy the rights referred to in points 1, 3 and 4 of paragraph 1 of this Article.

3. No longer effective from 1 May 2019.

4. No longer effective from 1 November 2020.

CHAPTER IV

COMPETITION CONTROL AUTHORITY

Article 17. Competition Council

1. The Competition Council shall be an independent state institution accountable to the Seimas of the Republic of Lithuania, implementing state competition policy and supervising compliance with this Law. In performing the functions assigned to it, the Competition Council shall take decisions autonomously and independently of political and other external influence, without seeking or taking instructions from state institutions or any other public or private entity, refraining from any actions which are incompatible with the performance of the functions and the exercise of the powers of the Competition Council. Actions of competent authorities in formulating competition policy shall not be considered as restricting the autonomy or independence of the Competition Council. The requirements for the autonomy and independence of the Competition Council as set out in this paragraph shall not remove the binding effect of final court decisions, rulings, orders or resolutions on the Competition Council.

2. The Competition Council shall be a legal person having accounts with banks and a seal bearing the coat of arms of the State of Lithuania and its name.

3. The Competition Council shall be a budgetary institution financed from the state budget of the Republic of Lithuania, including the income of the Competition Council referred to in paragraph 5 of this Article. The Competition Council shall also be financed from other lawfully obtained funds.

4. For the performance of its functions and the exercise of its powers, the Competition Council shall have at its disposal a sufficient number of qualified staff and financial, technical and technological resources proportionate to its functions and powers.

5. The fees referred to in Article 9(6) and Article 10(3) of this Law shall be paid into the account of the Competition Council. The Competition Council shall, each year but not later than by 1 March, set and approve the rates of the said fees, based on the last year’s costs of activities of the Competition Council. The rates of the fees shall be published on the website of the Competition Council.

6. The Law of the Republic of Lithuania on Budgetary Institutions shall apply to the activities of the Competition Council, unless otherwise provided in this Law.

Article 18. Functions and powers of the Competition Council

1. The Competition Council shall:

1) supervise compliance by undertakings and entities of public administration with the requirements of this Law;

2) establish criteria and the procedure for defining a relevant market and determining a dominant position, investigate and define relevant markets for the purpose of the performance of its own functions, determine the market share of undertakings and their position in the relevant market;

3) examine whether or not legal acts or other decisions adopted by entities of public administration, except legal acts adopted by the Government of the Republic of Lithuania, are in compliance with the requirements set out in Article 4 of this Law;

4) examine notifications of a concentration;

5) investigate and examine infringements of this Law, the Law of the Republic of Lithuania on the Prohibition of Unfair Practices of Retailers (hereinafter: the ‘Law on the Prohibition of Unfair Practices of Retailers’), the Law on Advertising and other laws in relation to which the Competition Council has responsibility for supervising compliance and impose on infringers the sanctions provided for in these laws;

6) refer to court for the protection of public interests safeguarded by this Law;

7) within its remit, carry out expert examination of drafts of laws and other legal acts, submit its conclusions regarding the impact of these acts on competition to the Seimas and the Government;

8) submit to the Government for assessment proposals on the amendment of laws and other legal acts restricting competition where the Competition Council imposes such restrictions of competition in performing its functions;

9) perform the monitoring of competition effectiveness on markets and provide conclusions and proposals to the Seimas or the Government on measures to ensure effective competition;

10) cooperate with other institutions and organisations of the Republic of Lithuania, foreign and international institutions and organisations in accordance with the procedure laid down by the legal acts and agreements providing for cooperation;

11) monitor the implementation of the conclusions and proposals submitted by the Competition Council to state institutions regarding restrictions of competition and, within its remit, take action to eliminate the respective restrictions of competition;

12) raise awareness in the field of competition;

13) perform other functions specified by this Law and other laws applicable to the activities of the Competition Council.

2. In performing the functions assigned to it, the Competition Council shall have the right: 1) to issue obligatory instructions to undertakings, including commercial banks, other credit institutions and entities of public administration, submit financial and other documents, including documents containing commercial or professional secrets, as well as other information required for the performance of the functions of the Competition Council;

2) to monitor the effectiveness of fulfilment by undertakings or entities of public administration of obligations binding on them under provisions of Article 35(1) and (2) of this Law or of obligations assumed under provisions of Article 28(4) of this Law;

3) to adopt legal acts within its remit;

4) to set the priorities of activities of the Competition Council and publish them on its website;

5) to set up an advisory committee;

6) to involve professionals and experts. The tasks assigned to professionals and experts and their rights and obligations while implementing the tasks shall be specified in an agreement with the Competition Council;

7) to organise consultation meetings, to set up working groups and advisory groups or commissions, to determine their working arrangements, to receive advisory findings and proposals;

8) to record factual circumstances relevant for the commencement and conduct of investigations of infringements of this Law, the Law on the Prohibition of Unfair Practices of Retailers and other laws in relation to which the Competition Council has responsibility for supervising compliance;

9) to exercise other rights conferred on the Competition Council.

Article 19. Composition, formation and working arrangements of the Competition Council

1. The Competition Council shall consist of the chair and four members. The chair and members of the Competition Council shall be appointed by the President of the Republic on a recommendation of the Prime Minister. The chair and members of the Competition Council shall be appointed for a term of six years. The same person may be appointed chair or member of the Competition Council for not more than two consecutive terms of office. The chair of the Competition Council shall appoint two vice-chairs of the Competition Council from among the appointed members of the Competition Council.

2. The chair and members of the Competition Council may be citizens of the Republic of Lithuania of good repute with a university degree in law or economics (at least a Master’s degree or equivalent). The criteria according to which a person may not be considered to be of good repute shall be those specified in the Law of the Republic of Lithuania on the Civil Service for civil servants.

3. The chair and members of the Competition Council shall be released from their duties only:

1) at own request;

2) upon the expiry of the term of office;

3) upon being elected or appointed to another office;

4) if a judgment of conviction becomes final;

5) if instances of material breach of duties transpire;

6) if, by their acts, they discredit the name of chair or member of the Competition Council;

7) for health reasons;

8) if instances of non-compliance with the requirements set out in paragraph 2 of this Article transpire.

4. Upon the expiry of their term of office, the chair or members of the Competition Council shall continue to perform their duties until the same or other persons are appointed to the respective position. The chair and members of the Competition Council released from duties upon the expiry of their term of office shall be paid a severance pay equal to their average monthly salary, except in cases where they are appointed for a new term of office.

5. During their term of office the chair and members of the Competition Council may not engage in any other activity, except for scientific, educational or creative work.

6. The chair and members of the Competition Council shall be state officials.

7. When dealing with issues falling within its remit, the Competition Council shall adopt decisions. Decisions shall be adopted by majority vote, with participation of at least three members of the Competition Council, including the chair of the Competition Council. The chair and members of the Competition Council shall vote independently and autonomously. The chair and members of Competition Council participating in a meeting shall not be entitled to abstain from voting on a decision.

8. The Competition Council shall have the right to transfer part of its powers to the chair of the Competition Council or its individual members according to their areas of activity, except for the adoption of decisions referred to in this Law, hearing of participants in the infringement procedure regarding this Law, imposition of sanctions specified in this Law and adoption of regulations related to application of this Law, the Law on the Prohibition of Unfair Practices of Retailers and other laws in relation to which the Competition Council has responsibility for supervising compliance.

9. In performing its functions, the Competition Council shall be assisted by the administration of the Competition Council. The structure thereof and lists of positions of civil servants and employees working under employment contracts shall be approved by a decision of the Competition Council. The functions of the administration of the Competition Council shall be laid down by this Law and the regulations of the administration of the Competition Council approved by a decision of the Competition Council.

10. Working arrangements of the Competition Council and the rules intended for the procedures conducted by the Council with regard to infringements of this Law, the Law on the Prohibition of Unfair Practices of Retailers and other laws in relation to which the Competition Council has responsibility for supervising compliance shall be laid down in the rules of procedure adopted by a decision of the Competition Council.

11. The chair and members of the Competition Council and the administrative staff of the Competition Council shall, upon ceasing to hold office in the Competition Council, have the duty, for a period of seven years after the termination of service in the Competition Council, to withdraw from representation of another person or from acting on behalf or in the interest of another person in respect of those infringement investigation or concentration control procedures which the person examined in the Competition Council, decisions on which were adopted with the person’s participation or to whose evaluation the person otherwise contributed.

Article 20. Chair and members of the Competition Council

1. The chair of the Competition Council shall:

1) direct the work of the Competition Council;

2) represent the Competition Council in the Republic of Lithuania and abroad;

3) recruit and release/dismiss members of staff of the Competition Council’s administration;

4) submit a set of annual statements of the Competition Council to the Seimas and the Government;

5) sign decisions of the Competition Council;

6) have the right to resolve current internal administration issues related to him/her, with the exception of those provided for in Article 11(4) of the Law of the Republic of Lithuania on the Adjustment of Public and Private Interests;

7) perform other functions established for the head of an institution by law and assigned by the Competition Council.

2. The chair of the Competition Council shall have the right to participate in meetings of the Government in a deliberative capacity and must voice his/her comments should the decisions proposed for adoption contradict this Law.

3. In the absence of the chair of the Competition Council, the vice-chair of the Competition Council shall, on his/her instruction, deputise for him/her.

4. Members of the Competition Council shall participate in the consideration and adoption of decisions on the issues within the remit of the Competition Council, shall be responsible for activities assigned to them and perform other functions assigned to them by the Competition Council or the chair of the Competition Council.

Article 21. Protection of commercial secrets, documents intended for official use and other documents

1. The Competition Council and members of staff of its administration must protect the commercial or professional secrets of undertakings that they became aware of in the course of exercising supervision of compliance with this Law and, in the absence of the undertaking’s consent, may use them only for the purposes for which they were provided. The Competition Council shall not have the right to familiarise itself with the information comprising an advocate’s professional secret.

2. The Competition Council shall have the right to disclose to the undertakings suspected of an infringement for the purposes of the exercise of the right of defence and to use commercial or professional secrets of undertakings if this is necessary to prove the infringements for which the possibility to impose fines pursuant to Article 36 of this Law is provided. Before the Competition Council takes a decision on the disclosure of commercial or professional secrets of undertakings, the undertaking whose commercial or professional secrets are to be disclosed shall be invited to submit its explanations within the time limit of not less than three working days fixed by the Competition Council. Upon evaluating the explanations provided by the undertaking, the Competition Council shall take a decision to disclose commercial or professional secrets, unless the undertaking justifies that the disclosure of commercial or professional secrets is not required to prove infringements, or a decision not to disclose commercial or professional secrets, where the undertaking justifies that the disclosure of commercial or professional secrets is not required to prove the infringements. If the Competition Council does not receive explanations from the undertaking, it shall take a decision to disclose commercial or professional secrets.

3. Undertakings must, when furnishing documents and other information to the Competition Council or immediately after becoming aware themselves or from the Competition Council that documents or other information comprising their commercial or professional secrets is available to the Competition Council, submit an application to the Competition Council for protection of commercial or professional secrets. The application must clearly state which information the Competition Council should consider as the undertaking’s commercial or professional secret. The Competition Council or its authorised official shall take a decision on the application and shall inform the undertaking accordingly.

4. If an undertaking submits an application for protection of commercial or professional secrets, but does not indicate the specific information which the Competition Council should consider as a commercial or professional secret of the undertaking, the applying undertaking may be required to provide this information within the time limit of not less than one working day fixed by the Competition Council. If the undertaking fails, within the fixed time limit, to provide the specific information that the Competition Council should consider as a commercial or professional secret, it shall be assumed that the information available to the Competition Council about the undertaking does not comprise a commercial or professional secret.

5. If an undertaking fails to submit an application for protection of commercial or protection of professional secrets as referred to in paragraph 3 of this Article, it shall be assumed that the information available to the Competition Council about the undertaking is not the information comprising a commercial or professional secret.

6. An undertaking whose information comprising a commercial or professional secret is available to the Competition Council may be placed under the obligation to submit within the time limit of not less than three working days fixed by the Competition Council an extract of a document or another information without the information comprising a commercial or professional secret and the description of the information to be protected. If within the fixed time limit the undertaking fails to submit the extract and the description as referred to in this paragraph, it shall be assumed that the information requested by the undertaking to be protected does not comprise a commercial or professional secret.

7. Applications of undertakings for protection of commercial or professional secrets submitted after the adoption of a final decision of the Competition Council or any other final decision concerning the issue under consideration shall not be examined.

8. Documents prepared by the Competition Council in the performance of the functions assigned to it which contain the opinions expressed by the Competition Council for internal use, also documents related to the matters on which there is no final decision of the Competition Council or any other decision adopted and documents intended solely for internal work organisation of the Competition Council shall be considered documents for official use, shall not be provided to third parties and shall not be entered into investigation files to which third parties have the right of access. Such documents of the Competition Council intended for official use may only be provided to law enforcement institutions for the purpose of performing the functions assigned to them by laws governing activities of law enforcement institutions.

9. The Competition Council shall not disclose internal documents and mutual communication documents of the European Commission and other competition authorities of the Member States of the European Union. The Competition Council shall have the right to disclose and use this information if this is necessary to prove the violations specified in Article 5 or 7 of this Law.

10. The Competition Council shall disclose neither applications for granting immunity from fines or fines reduction submitted thereto on the basis of Article 38(1) of this Law for a secret cartel referred to in Article 44(3) of this Law, nor written settlement submissions referred to in Article 37(2)(6) of this Law, as presented in the course of an investigation and concerning an infringement referred to in Article 43 of this Law, including quotations from the said applications and submissions. The Competition Council shall disclose the said applications and submissions only:

1) to undertakings suspected of or, by a decision of the Competition Council, recognised as having participated in the same infringement as the undertaking which submitted an application for granting immunity from fines or fines reduction or presented a settlement submission in accordance with the procedure and for the purposes of the exercise of the right of defence set out in Article 29(2) of this Law, as well as to a court, where the decision of the Competition Council is appealed against on the basis of Article 33(1) of this Law;

2) to a court, where it is necessary for the court to ascertain that the leniency applications have been submitted on the basis of Article 38(1) of this Law and the settlement submissions have been presented on the basis of Article 37(2)(6) of this Law. The court shall not under any circumstances make it possible for other persons to access the said leniency applications and settlement submissions.

11. The Competition Council shall disclose neither applications for granting immunity from fines or fines reduction submitted thereto on the basis of Article 38(1) of this Law, nor written settlement submissions referred to in Article 37(2)(6) of this Law, as presented in the course of an investigation and concerning infringements other than those referred to in paragraph 10 of this Article. The Competition Council shall disclose the said applications and submissions only:

2) to a court which, upon evaluating the circumstances provided for in Article 53(1) and (2) of this Law, decides to evoke the said documents in proceedings for damages.

12. Limitations set out in paragraphs 10 and 11 of this Article shall apply to leniency applications submitted on the basis of Article 38(1) or (2) of this Law and to written settlement submissions referred to in of Article 37(2)(6) of this Law, as presented in the course of an investigation, but not to the evidence adduced along with the said documents.

13. The Competition Council shall not make copies of leniency applications submitted on the basis of Article 38(1) of this Law and of written settlement submissions referred to in Article 37(2)(6) of this Law, as presented in the course of an investigation, except for copies for court in the cases provided for in paragraphs 10 and 11 of his Article.

14. Persons shall be granted the right of access to the documents and other information available to the Competition Council not earlier than after the adoption of a final decision of the Competition Council or any other decision concerning the issue under consideration. The said right shall not cover the documents and other information to which persons have no right of access pursuant to this Law and other laws or other legal acts governing the protection of various types of documents and other information. Requests to submit all documents and other information related to the final decision of the Competition Council or any other decision on the issue under consideration without specifying the documents and other information requested shall not be satisfied.

15. The Competition Council shall process personal data in accordance with the procedure laid down by this Law and other laws and regulations of the European Union.

16. The Competition Council shall have the right to restrict, in whole or in part, the following rights of data subjects under Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) as regards the procedure of investigation of infringements of this Law and other laws in relation to which the Competition Council has responsibility for supervising compliance or of concentration supervision:

1) the right to be informed about the processing of their data;

2) the right of access to data;

3) the right to request rectification of data;

4) the right to request erasure of data;

5) the right to restrict data processing.

17. The restrictions of rights as referred to in paragraph 16 of this Article may be applied to the Competition Council in the performance of the functions assigned to it by this Law and other laws in relation to which the Competition Council has responsibility for supervising compliance for as long as and to the extent that is necessary and proportionate in the following cases:

1) if the exercise of the rights of the data subject would have a detrimental effect on the course, strategy or objectives of the procedure of investigation of infringements of this Law and other laws in relation to which the Competition Council has responsibility for supervising compliance or of concentration control;

2) if, upon exercising the rights of the data subject, the rights and freedoms of other persons which must be ensured by the Competition Council during the procedure of investigation of infringements of this Law and other laws in relation to which the Competition Council has responsibility for supervising compliance or of concentration control would be violated.

18. Restriction of the rights of a data subject may be applied only to those categories of personal data of the data subject for which these rights cannot be fully or partially exercised. The procedure for exercising restrictions of these rights shall be established by the Competition Council.

CHAPTER V

PROCEDURE OF INVESTIGATION BY THE COMPETITION COUNCIL OF INFRINGEMENTS OF THIS LAW

SECTION ONE

INVESTIGATION BY THE COMPETITION COUNCIL OF INFRINGEMENTS OF THIS LAW

Article 22. Infringements investigated by the Competition Council

1. According to the procedure specified in this Section, the Competition Council shall investigate:

1) compliance of legal acts or other decisions adopted by entities of public administration with the requirements of Article 4 of this Law;

2) agreements restricting competition;

3) abuse of a dominant position;

4) implementation of a concentration without a prior notification or consent or in breach of the established conditions or obligations of concentration implementation as well as continuation of concentration during its suspension;

5) no longer effective from 1 November 2020;

6) infringements where instructions to submit the information necessary for an investigation or for the examination of a concentration pursuant to Article 11(5) and Article 25(1)(6) of this Law are not carried out or are not carried out in a timely manner, incorrect, misleading or incomplete information is provided, instructions to provide answers to the questions posed to the persons related to the activities of the undertakings under investigation regarding facts and documents pursuant to Article 25(1)(5) of this Law are not carried out or the answers provided to the questions are incorrect, misleading or incomplete, the officials of the Competition Council are prevented from carrying out the actions referred to in Article 25(1) of this Law or the requirements made in exercising the rights referred to in Article 25(1) of this Law are not complied with, the seal affixed in accordance with Article 25(1)(4) of this Law is damaged or torn off, or the sanctions referred to in points 1, 2 and 3 of Article 35(1) of this Law and imposed by decisions of the Competition Council, interim measures or restrictions on economic activity as well as commitments assumed by undertakings under Article 28(4) of this Law are not complied with.

2. Investigations shall be carried out by authorised members of staff of the administration of the Competition Council (hereinafter: ‘authorised officials of the Competition Council’).

3. Applicants and entities suspected of an infringement of this Law shall be notified about the decisions of the Competition Council, as referred to in this Chapter, adopted with regard to the investigation of infringements of this Law within the time limits specified in the rules of procedure of the Competition Council.

4. Decisions of the Competition Council regarding the investigation of infringements of this Law may be considered confidential by a decision of the Competition Council until a threat to the investigation process ceases to exist but not longer than until completion of any action provided for in points 1, 2, 3, 4, 5, 7 or 8 of Article 25(1) of this Law regarding the undertakings suspected of having committed an infringement of this Law.

5. The Competition Council shall have the right to establish a separate procedure for investigation and examination of individual types of infringements, the investigation and examination whereof fall within the remit of the Competition Council, of this Law, the Law on the Prohibition of Unfair Practices of Retailers and other laws in relation to which the Competition Council has responsibility for supervising compliance, to the extent such procedure does not contradict provisions of the said laws.

Article 23. Right of initiative to launch an investigation of an infringement of this Law

1. The right to request to launch an investigation of a infringement of this Law shall be vested in:

1) undertakings whose interests have been violated by operations in breach of this Law;

2) entities of public administration;

3) associations or unions representing the interests of undertakings and consumers.

2. The Competition Council shall have the right to launch an investigation on its own initiative.

3. The right to request to launch an investigation of an infringement of this Law shall be vested in the consumers whose interests have been violated by operations in breach of this Law. Upon evaluating the circumstances indicated in the consumers’ applications, the Competition Council shall have the right to launch an investigation on its own initiative.

4. The Competition Council shall adopt a reasoned decision to investigate operations in breach of this Law.

5. The Competition Council must complete an investigation not later than within five months from the adoption of a decision to launch an investigation. The Competition Council may, by a reasoned decision, extend this time limit each time for not longer than three months.

Article 24. Submission of an application for the initiation of an investigation and the examination thereof

1. Applicants referred to in Article 23(1) requesting to initiate an investigation must submit to the Competition Council a written application indicating the factual circumstances of actions in breach of this Law that they are aware of. The application shall be accompanied by the supporting documents.

2. The Competition Council shall establish general requirements for the data and documents to be provided by the applicant in order to commence the examination of the application regarding actions in breach of this Law.

3. The Competition Council must examine the application regarding actions in breach of this Law which meets the requirements laid down by the Competition Council and must take a decision to launch an investigation or to refuse to launch an investigation not later than within 30 days from the submission of the application and the documents.

4. The Competition Council shall adopt a decision to refuse to launch an investigation if:

1) the facts contained in the application are immaterial, causing no substantial harm to the interests protected under this Law;

2) investigation of the facts contained in the application is outside the remit of the Competition Council;

3) the facts contained in the application have already been investigated and a decision of the Competition Council has already been adopted or there is a final court decision thereon;

4) the applicant has failed to provide, within the time limit fixed by the Competition Council, the data and documents required to launch an investigation;

5) a period of limitation referred to in Article 35(3) of this Law has expired;

6) the legal act or decision of an entity of public administration appealed against in cases of the infringements referred to in Article 22(1)(1) has been repealed, amended or has expired before the examination of the application at the Competition Council;

7) there is no factual data that would allow to reasonably suspect that there was an infringement of this Law;

8) investigation of the factual circumstances contained in the application does not correspond to the Competition Council’s priorities.

Article 25. Rights and duties of the Competition Council and the authorised officials of the Competition Council in conducting an investigation

1. In conducting an investigation, the authorised officials of the Competition Council shall have the right:

1) to enter and carry out an inspection in the premises, land and means of transport used by the undertaking, seal the premises used by the undertaking for the duration of, and to the extent necessary for, the inspection;

2) to enter and carry out an inspection in other premises, land and means of transport, including residential and other premises of managers and members of staff of the undertaking if there are reasonable grounds for believing that documents or any other information that may be relevant to prove an infringement of Article 5 or 7 of this Law or Article 101 and 102 of the Treaty on the Functioning of the European Union are held in such premises, land or means of transport;

3) to examine the documents necessary for investigation (irrespective of the medium on which they are stored), obtain their copies and extracts, be granted access to the notes of the members of staff of undertaking related to work activities, also to copy the above notes as well as the information stored in computers and on any other media, storage devices and databases which is available to the undertaking under inspection; where appropriate, to continue examining the documents, the notes of the members of staff and the information referred to in this point on the premises of the Competition Council or other premises;

4) to seal the documents, the notes of the members of staff and the information media for the duration of, and to the extent necessary for, the inspection;

5) to obtain oral and written explanations from persons who may possess any information relevant to the investigation, including answers to questions concerning facts and documents from persons linked to the activities of the undertakings under investigation, and request them to appear in the official premises of the authorised official conducting the investigation in order to give explanations;

6) to obtain from undertakings, other natural and legal persons and entities of public administration the documents, data and other information available to these persons necessary to conduct the investigation. These undertakings and persons shall also have the right to provide such information to the authorised officials of the Competition Council on their own initiative;

7) to inspect (audit) the economic activity of the undertaking and, on the basis of the inspection material, to obtain conclusions from expert bodies;

8) to seize documents and items that may be of evidentiary value in the investigation of the case;

9) to obtain information on subscribers to electronic communications services or registered users of electronic communications services, related traffic data and the content of information transmitted by electronic communications networks from providers of the electronic communications network and/or services;

10) to enlist the assistance of professionals and experts in conducting the investigation. Restrictions on the protection of commercial or professional secrets as specified in Article 21(1) of this Law shall apply to the professionals and experts enlisted by the Competition Council;

11) to use technical means in the course of the investigation;

12) to document the factual circumstances;

13) to use for the purpose of the investigation the information available to the Competition Council which was obtained during other investigations or examinations.

2. In performing the investigative actions referred to in paragraph 1 of this Article, the authorised officials of the Competition Council shall ensure the rights and freedoms guaranteed by the Constitution of the Republic of Lithuania, the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or its Additional Protocols, the Charter of Fundamental Rights of the European Union and general principles of EU law.

3. The investigative actions referred to in points 1, 2 and 9 of paragraph 1 of this Article may be performed only under a court authorisation.

4. In order to provide conditions for the authorised officials of the Competition Council conducting an investigation of the Competition Council to properly conduct the investigation, the authorised officials of the Competition Council may enlist the assistance of police officers. Restrictions on the protection of commercial or professional secrets as specified in Article 21(1) of this Law shall apply to the professionals and experts enlisted by the Competition Council and participating in the carrying out of an inspection.

5. Before performing the actions referred to in this Article, the authorised officials of the Competition Council must produce a document issued by the Competition Council certifying their powers, the purpose and time limits of the investigation.

6. In exercising their rights granted by this Law and the Competition Council, the authorised officials of the Competition Council shall execute investigative actions in writing by drawing up documents (acts, minutes, requests, etc.). The form and the procedure for filling out the above documents shall be established by the Competition Council.

7. The requests of the authorised officials of the Competition Council when performing the actions referred to in paragraph 1 of this Article shall be mandatory. Sanctions laid down in this Law and the Code of Administrative Offences shall be applied in the event of non-compliance with the said requirements.

8. The authorised officials of the Competition Council conducting the investigation shall warn in writing the persons giving explanations of their liability for providing false information or for refusing to provide information to the Competition Council.

9. The authorised officials of the Competition Council shall have the right, on behalf of the competition authority of another Member State of the European Union, to perform the investigative actions referred to in paragraph 1 of this Article in order to determine whether an undertaking has violated the requirements of the competition authority of another Member State of the European Union during the investigation and the decisions stipulated in the national legal acts of another Member State of the European Union transposing the provisions of Articles 6, 8-12 of Directive (EU) 2019/1. The Competition Council shall have the right to forward the collected information to the competition authority of another Member State of the European Union.

10. Where the authorised officials of the Competition Council perform the investigative actions referred to in paragraph 1 of this Article on behalf of the competition authority of another Member State of the European Union in accordance with Article 22 of Regulation (EC) No 1/2003, the persons authorised by the competition authority of another EU Member State or other persons accompanying them shall have the right to contribute to the performance of the investigative actions.

11. The Competition Council shall have the right to request the competition authority of another Member State of the European Union to perform the investigative actions provided for in the national legal acts of another Member State of the European Union and transposing the provisions of Articles 6-9 of Directive (EU) 2019/1 in order to determine whether an undertaking has violated the rights of authorised officials of the Competition Council as stipulated in paragraph 1 of this Article and the requirements set out by the Competition Council in accordance with Article 26, Article 28(4), points 1 and 2 of Article 35(1) of this Law. The Competition Council shall have the right to use as evidence the information collected by the competition authority of another EU Member State and transmitted to the Competition Council only subject to the restrictions and protective measures specified in Article 12 of Regulation (EC) No 1/2003. Where the investigative actions are performed on behalf of the Competition Council by the competition authority of another Member State of the European Union in accordance with Article 22 of Regulation (EC) No 1/2003, the authorised officials of the Competition Council shall have the right to contribute to the performance of the investigative actions to the extent permitted under the law of that Member State of the European Union.

Article 26. Interim measures

1. In urgent cases, if there is a prima facie finding of an infringement of this Law, the Competition Council shall have the right to adopt, in accordance with the principle of proportionality, a decision to apply interim measures in order to avoid serious harm or irreparable consequences to the interests of undertakings or the public.

2. In cases referred to in paragraph 1 of this Law, the Competition Council shall be entitled to apply the following interim measures with respect to an undertaking or an entity of public administration suspected of having committed an infringement of this Law:

1) to obligate undertakings or entities of public administration to terminate unlawful activities;

2) to obligate undertakings or entities of public administration to perform certain actions if the failure to perform them would result in serious damage for other undertakings or for public interests, or incur irreparable consequences.

3. Before adopting a decision to apply interim measures, the Competition Council must give an undertaking or entity of public administration suspected of having committed an infringement of this Law an opportunity to give explanations within the time limit of not less than seven working days fixed by the Competition Council.

4. The Competition Council may, by its decision, apply interim measures for a period of up to one year, which may be extended by a decision of the Competition Council or, where necessary, interim measures shall be applied until the adoption of a final decision of the Competition Council.

5. A decision of the Competition Council to apply interim measures may be appealed against to a first instance administrative court within ten days from the serving of the decision. The filing of an appeal shall not have suspensory effect on the application of interim measures, unless the court decides otherwise. The appeal must be examined and a decision thereon must be taken within 45 days from the receipt of the appeal. The decision of the first instance administrative court may be appealed against to the Supreme Administrative Court of Lithuania in accordance with the procedure laid down by the Law of the Republic of Lithuania on Administrative Proceedings within seven days from the pronouncement of the decision. The Supreme Administrative Court of Lithuania must examine the appeal against the decision of first instance administrative court and adopt a decision thereon within 45 days from the receipt of the case by the court..

Article 27. Procedure for issuing court authorisations to perform investigative actions and apply restrictions of economic activity

1. Upon the adoption by the Competition Council of a decision on investigative actions as provided for in Article 25(3) of this Law or on restrictions of economic activity as provided for in Article 35(2) of this Law, the authorised official of the Competition Council shall submit an application to a first instance administrative court for the issuance of an authorisation to perform these actions and apply restrictions of economic activity.

2. The application must include the name of the undertaking or entity of public administration, the character of the alleged infringements and the envisaged investigative actions, the applicable restrictions of economic activity.

3. A judge of the first instance administrative court shall examine the application for the issuance of a court authorisation to perform investigative actions and apply restrictions of economic activity and shall issue a reasoned ruling to satisfy or reject the application..

4. An application for the issuance of a court authorisation to perform investigative actions and apply restrictions of economic activity must be examined and a ruling thereon must be issued not later than within 72 hours from the filing of the application.

5. If the Competition Council disagrees with the ruling of the judge of the first instance administrative court to reject the application, it shall have the right to appeal against the judge’s ruling to the Supreme Administrative Court of appeal Lithuania within seven days.

6. The Supreme Administrative Court of Lithuania must examine the appeal against the ruling of the first instance administrative court not later than within seven days. The representative of the Competition Council shall have the right to participate in the appeal proceedings.

7. A ruling of the Supreme Administrative Court of Lithuania shall be final and not subject to appeal.

8. When examining applications and hearing appeals regarding the issuance of an authorisation to perform investigative actions and apply restrictions of economic activity, courts must ensure the confidentiality of the information provided and the actions planned.

Article 28. Supplementation, splitting/joining and completion of an investigation

1. In order to achieve timeliness and cost-effectiveness of an investigation, the Competition Council shall have the right to adopt a decision to supplement the investigation, split it into separate investigations, or join separate investigations into one investigation.

2. An investigation shall be considered to have been completed when the Competition Council approves a statement of objections of the authorised officials concerning the alleged infringement (hereinafter: a ‘statement of objections’). In that case, the actions provided for in the Second Section of this Chapter shall be performed.

3. The Competition Council shall adopt a decision to terminate an investigation if:

1) it transpires in the course of the investigation that there is no substance of infringement of law;

2) the circumstances referred to in Article 24(4) of this Law transpire or arise in the course of the investigation.

4. The Competition Council, intending to impose on an undertaking the obligation to terminate a prohibited agreement or abuse of a dominant position, shall have the right to adopt a decision to terminate an investigation if the undertaking suspected of having committed an infringement of this Law submits its written commitments regarding the elimination of the suspected infringement and the Competition Council establishes them by a decision as binding on undertakings. The period of application of the commitments referred to in this paragraph shall be determined by the decision of the Competition Council.

5. The commitments submitted in accordance with of paragraph 4 of this Article and included in the decision of the Competition Council to terminate the investigation shall be binding on the undertaking.

6. If new circumstances transpire, the Competition Council shall have the right to adopt a decision to reopen the terminated investigation.

7. The decisions adopted by the Competition Council pursuant to paragraph 4 of this Article shall be published on the website of the Competition Council.

SECTION TWO

HEARING OF PARTICIPANTS IN THE PROCEDURE AT THE COMPETITION COUNCIL AND ADOPTION OF A DECISION OF THE COMPETITION COUNCIL REGARDING AN INFRINGEMENT OF THIS LAW

Article 29. Submission of a statement of objections and hearing of participants in the procedure

1. Upon the completion of an investigation, an applicant and an entity suspected of having committed an infringement (hereinafter: ‘participants in the procedure’) and, by a decision of the Competition Council, also other interested undertakings or entities of public administration (hereinafter: ‘other interested persons’) shall be provided with a written statement of objections and offered to give written explanations on the said statement within a reasonable time limit fixed by the Competition Council.

2. Upon the completion of the investigation, the investigation file material shall also be made available to the participants in the procedure, except for the documents containing state secrets or service secrets, or commercial or professional secrets of another undertaking. In order to access the documents containing commercial or professional secrets of another undertaking, it shall be necessary to obtain the consent of the undertaking whose documents containing commercial or professional secrets are sought to be accessed. Restrictions provided for in Article 21(10) to (13) of this Law shall apply to access to the information provided by an undertaking to the Competition Council on the basis of Article 38(1) or (2) of this Law or in the form of a written settlement submission referred to in Article 37(2)(6) of this Law and presented in the course of the investigation. Access to information about a natural person who has provided evidence on the basis whereof the Competition Council establishes the existence of an agreement between competitors as referred to in Article 5(2) of this Law or an agreement between non-competitors regarding direct or indirect price setting (fixing) as referred to in Article 5(1)(1) of this Law shall be subject to restrictions provided for in Article 38¹(6) this Law.

3. Until the Competition Council adopts one of the decisions referred to in Article 28(3) or (4) or points 1, 2 and 3 of Article 30(1) of this Law in respect of all the suspected undertakings, the participants in the procedure may not use in judicial proceedings the following information which they received in the course of the investigation procedure conducted by the Competition Council regarding an infringement of this Law:

1) information prepared by other natural or legal persons for the purposes of the investigation procedure conducted by the Competition Council regarding the infringement of this Law;

2) information prepared and provided to the participants in the procedure by the Competition Council in the course of the investigation procedure regarding the infringement of this Law;

3) written settlement submissions presented pursuant to Article 37(2)(6) of this Law which have been withdrawn.

4. Before the Competition Council adopts a decision on the infringement of this Law, participants in the procedure and other interested persons shall be entitled to give explanations and to be heard at a meeting of the Competition Council. They must be notified of the venue and time of the meeting in advance and according to the procedure laid down by the Code of Civil Procedure of the Republic of Lithuania (hereinafter: the ‘Code of Civil Procedure’). The Competition Council shall have the right to notify of the planned meeting through the media or its own website.

5. Meetings of the Competition Council during which the participants in the procedure and other interested persons are heard shall be public. The Competition Council may, on its own initiative or at the request of the participants in the procedure or other interested persons, announce a closed hearing of the case if it is necessary to protect state secrets or official secrets, or commercial or professional secrets of undertakings.

6. It shall be considered that the participants in the procedure and other interested persons have been heard where there is evidence that they have been properly notified of the venue and time of the meeting of the Competition Council, have been afforded an opportunity to give explanations, to have access to the statement of objections and the participants in the procedure have been given access to the investigation material.

Article 30. Decisions of the Competition Council regarding an infringement of this Law

1. Upon performing the actions referred to in Article 29 of this Law, the Competition Council shall have the right to adopt a decision:

1) to impose sanctions provided for by this Law;

2) to refuse to impose sanctions if there is no ground established by this Law;

3) to terminate the procedure regarding an infringement of this Law if there is no infringement of this Law;

4) to conduct a supplementary investigation.

2. The decision of the Competition Council must include the circumstances of the infringement of this Law, explanations provided to the Competition Council by the participants in the procedure and other interested persons as well as their assessment, the reasons and legal basis for the adopted decision.

3. The decision of the Competition Council must be based only on the statement of objections and factual circumstances of the investigation with respect to which the undertaking or entity of public administration suspected of having committed the infringement of this Law has been afforded an opportunity to give explanations in accordance with the procedure laid down by Article 29 of this Law.

4. Decisions of the Competition Council provided for in this Article, with the exception of the decision referred to in point 4 of paragraph 1 of this Article, may be amended or annulled only by a court.

Article 31. Publication of decisions of the Competition Council

1. The decisions of the Competition Council referred to in Article 30(1) of this Law shall be notified to the participants in the procedure and other interested persons within the time limits specified in the rules of procedure of the Competition Council.

2. Decisions of the Competition Council provided for in Article 30 shall be published on the website of the Competition Council.

SECTION THREE

APPEALS AGAINST DECISIONS AND ACTIONS OF THE COMPETITION COUNCIL AND ITS AUTHORISED OFFICIALS

Article 32. Appeals against actions and decisions of authorised officials and other members of staff of the Competition Council

1. Undertakings and other persons who consider that their rights have been violated shall have the right to appeal to the Competition Council against the actions performed, and the decisions taken, by the authorised officials and other members of staff of the Competition Council in the course of the investigation procedure regarding an infringement of this Law. An appeal shall be filed not later than within ten days after becoming aware of the actions or decisions appealed against. A decision of the Competition Council on the appeal must be taken within ten days from the receipt of the appeal.

2. The time limit for filing appeals laid down in paragraph 1 of this Article may be reopened if a reasoned request to reopen the time limit is submitted together with an appeal. In such case, the Competition Council shall admit the appeal if it determines that the time limit for filing it was exceeded for compelling objective reasons. A decision of the Competition Council to refuse to reopen the time limit for filing the appeal may be appealed against in accordance with the procedure laid down in paragraph 3 of this Article.

3. If undertakings or other persons who filed an appeal object to a decision of the Competition Council or if the Competition Council fails to adopt a decision within ten days, they shall have the right to file an appeal with a first instance administrative court. Filing of an appeal shall not have suspensory effect on the investigation procedure regarding an infringement of this Law.

4. The procedure for appealing, as laid down in this Article, shall apply mutatis mutandis to the decisions taken, and actions performed, by members of staff of the Competition Council in exercising the concentration supervision provided for in Section Three of Chapter II of this Law and in other cases where such actions and decisions are related to the performance of the functions assigned to the Competition Council by this Law, the Law on the Prohibition of Unfair Practices of Retailers and other laws in relation to which the Competition Council has responsibility for supervising compliance.

Article 33. Appealing against decisions of the Competition Council

1. Undertakings, also other persons who consider that their rights protected by this Law have been violated shall have the right to appeal to a first instance administrative court against the decisions of the Competition Council preventing any further investigation of an infringement of this Law or closing the examination of a notification of a concentration. The participants in the procedure and other interested persons referred to in Article 29(1) of this Law shall have the right to appeal against the decisions of the Competition Council provided for in Article 30 of this Law, with the exception of the decision of the Competition Council referred to in Article 30(1)(4) of this Law.

2. An appeal shall be filed in writing not later than within one month from the service of a decision of the Competition Council or from the publication of the decision, whichever occurs first.

3. Filing of an appeal against a decision of the Competition Council imposing a fine on an undertaking or an entity of public administration shall not have suspensory effect on the implementation of the decision of the Competition Council, except for the cases where the Competition Council, acting in compliance with Article 39(7) of this Law, takes a decision not to refer to a bailiff for enforced recovery of a fine or if a court decides otherwise.

Article 34. Court decision

Upon hearing an appeal against a decision of the Competition Council, a court shall adopt one of the following decisions:

1) to uphold the decision and to dismiss the appeal;

2) to annul the decision or individual sections thereof and to refer the case back to the Competition Council for supplementary investigation;

3) to annul the decision or individual sections thereof;

4) to amend a decision on concentration, application of sanctions or interim measures.

CHAPTER VI

LIABILITY FOR INFRINGEMENTS OF COMPETITION LAW

SECTION ONE

ADMINISTRATIVE LIABILITY

Article 35. Sanctions applied to undertakings and entities of public administration

1. Upon establishing that undertakings and entities of public administration have performed the actions prohibited under this Law or have otherwise committed infringements of this Law, the Competition Council shall, in accordance with the principles of objectivity and proportionality, have the right:

1) to obligate the undertakings to terminate unlawful activities, to perform actions restoring the previous situation or eliminating the consequences of the infringement, including the obligation to terminate, amend or conclude contracts, also to fix time limits and conditions for the fulfilment of these obligations;

2) to obligate the undertakings to terminate a prohibited agreement or abuse of a dominant position by means of measures modifying the structure of the undertakings, including obligations to sell the enterprise or a part thereof, the undertaking’s assets or a part thereof, shares or a part thereof, to reorganise the enterprise, also to fix time limits and conditions for the fulfilment of these obligations;

3) to obligate the undertakings or controlling persons who have implemented a concentration resulting in the establishment or strengthening of a dominant position or a substantial restriction of competition on the relevant market without notifying the Competition Council or obtaining its authorisation, also in the cases provided for in Article 14(2) of this Law, to perform actions restoring the previous situation or eliminating the consequences of concentration, including the obligations to sell the enterprise or a part thereof, the undertaking’s assets or a part thereof, shares or a part thereof, to reorganise the enterprise, to terminate or amend contracts, also to fix the time limits and conditions for the fulfilment of these obligations;

4) to order the entity of public administration to amend or repeal within a fixed time limit the legal acts, other decisions contradicting the requirements referred to in Article 4 of this Law or to perform other actions eliminating the infringement of provisions of Article 4 of this Law;

5) to impose on undertakings and entities of public administration effective and dissuasive pecuniary penalties provided for in Article 36 of this Law, calculated in accordance with provisions of Article 37 of this Law.

2. Upon receiving an authorisation of a first instance administrative court, the Competition Council may, by its decision, impose restrictions on economic activity of undertakings which fail to comply with the imposed sanctions referred to in paragraph 1 of this Article: temporary suspension of export and import operations, banking operations, an authorisation (licence) to engage in respective economic activity. Decisions of the Competition Council shall be binding on the institutions which may apply such restrictions and must be implemented without delay. The restrictions shall be lifted by a decision of the Competition Council where the Competition Council establishes that the imposed sanctions have been implemented.

3. Sanctions may be imposed on undertakings for infringements of this Law not later than within five years from the date on which the infringement was committed or, in the event of a continuing infringement, from the date on which the last actions were committed or terminated.

4. The time limit for the imposition of sanctions as referred to in paragraph 3 of this Article shall be suspended where:

1) the Competition Council carries out the investigation procedure as referred to in Sections One and Two of Chapter V of this Law regarding infringements of this Law. In this case, the time limit for the imposition of sanctions shall be suspended from the date on which at least one undertaking or entity of public administration in respect whereof the Competition Council has initiated the infringement procedure is informed of the infringement procedure initiated against it until the date on which the Competition Council adopts a decision to terminate the investigation or a decision referred to in points 1, 2 and 3 of Article 30(1) of this Law. Such suspension of the time limit shall apply to all undertakings or entities of public administration participating in the commission of the infringement in respect whereof the Competition Council has initiated the infringement investigation procedure;

2) the investigation conducted by the Competition Council is suspended by a court decision. In this case, the time limit for the imposition of sanctions shall be suspended for the period of suspension of the investigation conducted by the Competition Council;

3) a dispute regarding the decision of the Competition Council to impose sanctions is pending before the court. In this case, the time limit for the imposition of sanctions shall be suspended from the date on which an appeal is filed with the court until the date on which the court decision becomes final;

4) competition authorities of other Member States of the European Union or the European Commission are conducting an infringement investigation procedure in respect of the same alleged infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union. In this case, the time limit for the imposition of sanctions by the Competition Council shall be suspended from the date on which the competition authority of another Member State of the European Union or the European Commission informed at least one undertaking against which the infringement investigation procedure has been initiated about the procedure initiated against it until the date on which the relevant authority adopts a decision to establish an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union or a decision that there are no grounds for taking action where such a decision has not been appealed against within the time limit for appealing against it or after a court decision on the relevant authority’s decision becomes final. Such suspension of the time limit shall apply to all undertakings participating in the infringement in respect whereof the infringement investigation procedure has been initiated.

5. The Competition Council shall have the right to impose one or several obligations referred to in points 1 and 2 of paragraph 1 of this Article. The Competition Council shall impose the obligation specified in points 1 and 2 of paragraph 1 of this Article which is more effective in solving the competition issue. If, in a specific case, several obligations referred to in points 1 and 2 of paragraph 1 of this Article are equally effective in solving the competition issue, the Competition Council shall, following the principle of proportionality, impose the obligation which least onerous for the undertaking.

6. Where two or more natural or legal persons engaged in economic activity act as a single undertaking, the parent undertaking and a subsidiary shall be jointly and severally liable for infringements of this Law, also other persons comprising the undertaking and engaged in economic activity shall be jointly and severally liable. The conditions of such liability shall be determined in accordance with the requirements set out in Articles 101 and 102 of the Treaty on the Functioning of the European Union. The payment of the fine may be requested from all the persons listed in the decision of the Competition Council jointly as well as from any of them separately. If one of the persons listed in the decision of the Competition Council fails to pay the fine in full, another person or persons listed in the decision of the Competition Council shall be required to pay the remaining part of the fine.

7. Liability for infringements of this Law shall be imposed on successors to the rights and economic activity of the infringing undertaking to the extent that the sanction imposed by the Competition Council has not been implemented.

Article 36. Fines

1. For prohibited agreements, abuse of a dominant position, implementation of a notifiable concentration without the authorisation of the Competition Council, continuation of concentration during the period of suspension thereof, violation of concentration implementation conditions or mandatory obligations established by the Competition Council, failure to comply with the obligations referred to in points 1, 2 and 3 of Article 35(1) of this Law, for failure to comply with interim measures, restrictions of economic activity or commitments assumed under Article 28(4) of this Law, undertakings shall be imposed a fine in the amount of up to 10% of the annual total worldwide turnover in the preceding business year. The total worldwide turnover shall mean all income received by an undertaking in all countries of the world.

2. Where an infringement, as referred to in Article 5 or 7 of this Law, committed by a combination of undertakings is related to the activities of the undertakings belonging to such a combination of undertakings, the Competition Council shall have the right to choose to impose a fine in accordance with paragraph 1 of this Article or, for the purposes of efficiency of the infringement investigation procedure, to impose a fine in accordance with this paragraph. The Competition Council shall have the right to impose on a combination of undertakings for an infringement of Article 5 or 7 of this Law a fine in the amount of up to 10% of the sum of the annual total worldwide turnover of each undertaking belonging to the combination of undertakings and active on the market affected by the infringement committed by the combination of undertakings in the preceding business year. In such a case, the financial liability of each undertaking belonging to the combination of undertakings as regards the payment of the fine imposed on the combination of undertakings may not exceed 10% of the annual total worldwide turnover of the undertaking belonging to the combination of undertakings in the preceding business year.

3. For failure to provide, or failure to provide in a timely manner, the information necessary for the investigation or for the examination of a concentration, also provision of incorrect, misleading or incomplete information in accordance with Article 11(5) and Article 25(1)(6) of this Law, failure to comply with instructions to submit answers to questions posed to persons related to the activities of the undertakings under investigation in relation to facts and documents in accordance with Article 25(1)(5) of this Law or provision of incorrect, misleading or incomplete answers to the questions, failure to comply with the demands made in exercising the rights referred to in Article 25(1) of this Law, hindering from carrying out the actions referred to in Article 25(1) of this Law, damaging or tearing-off of seals affixed in accordance with point 1 or 4 of Article 25(1) of this Law, undertakings shall be imposed a fine in the amount of up to 1% of their annual total worldwide turnover in the preceding business year.

4. For failure to comply with the obligations of the Competition Council to terminate unlawful activities, perform actions restoring the previous situation or eliminating the consequences of the infringement, failure to comply with the obligations to terminate a prohibited agreement or abuse of a dominant position by means of measures modifying the structure of undertakings, failure to comply with interim measures, failure to comply with the demands made in exercising the rights referred to in Article 25(1) of this Law, hindering from carrying out the actions referred to in Article 25(1) of this Law, failure to comply with the commitments assumed under Article 28(4) of this Law, the undertakings shall be imposed a fine in the amount of up to 5% of their average daily total worldwide turnover in the preceding business year for each day of commitment/continuation of the infringement.

5. For failure to provide information required in order to conduct an investigation, also for provision of incomplete or incorrect information, entities of public administration shall be imposed a fine in the amount of up to EUR 6 000.

6. For failure to fulfil the obligations referred to in Article 35(1)(4) of this Law within the time limit fixed by the Competition Council or extended on the basis of Article 39(5) of this Law, entities of public administration shall be imposed a fine in the amount of up to EUR 600 for each day of the infringement after the expiry of the time limit for fulfilling the obligations to bring the infringement to an end.

7. For infringements of Article 4 of this Law, entities of public administration shall be imposed a fine in the amount of up to 0.5% of the budget of the entity of public administration for the current year and other annual total turnover in the preceding year, but not exceeding the amount of EUR 60 000.

8. The fines referred to in paragraphs 1, 2 and 3 of this Article shall be imposed for a period ending not later than on the date of adoption of a decision of the Competition Council to impose a fine.

9. The fines referred to in paragraph 4 of this Article shall be imposed for a period beginning with the date of adoption of a decision of the Competition Council on the imposition of a fine and ending on the date on which the commitment/continuation of the relevant infringement ends.

Article 37. Imposition of fines and fixing of the amount thereof

1. The fines imposed on undertakings and entities of public administration shall be differentiated taking into consideration:

1) the seriousness of the infringement;

2) the duration of the infringement;

3) the circumstances mitigating or aggravating liability of the undertaking or the entity of public administration;

4) the influence of each undertaking in the commitment of the infringement, where the infringement has been committed by several undertakings;

5) the value of sales of the goods of the undertaking or undertakings if the fine is imposed on the basis of Article 36(2) of this Law, where the goods are directly and indirectly related to the infringement.

2. The following circumstances shall be considered as mitigating circumstances:

1) undertakings or entities of public administration which have committed an infringement have voluntarily prevented the harmful consequences of the infringement;

2) undertakings or entities of public administration have assisted the Competition Council during the investigation;

3) undertakings or entities of public administration have compensated for the harm caused;

4) undertakings or entities of public administration have voluntarily brought the infringement to an end;

5) undertakings or entities of public administration have not performed any actions restricting competition;

6) undertakings or entities of public administration have admitted the infringement and the envisaged fine by presenting a written settlement submission to the Competition Council in the course of the investigation, thereby creating conditions for a more efficient conduct of the investigation;

7) undertakings or entities of public administration have acknowledged the material circumstances established in the course of the investigation carried out by the Competition Council;

8) the conduct of the undertaking or the entity of public administration constituting the infringement was caused by actions of public authorities;

9) the undertaking is in a very difficult financial situation.

3. The following circumstances shall be considered as aggravating circumstances:

1) undertakings or entities of public administration have obstructed the investigation;

2) undertakings or entities of public administration have concealed the committed infringement;

3) undertakings or entities of public administration have continued the infringement despite the obligation of the Competition Council to terminate unlawful actions;

4) undertakings or entities of public administration have repeatedly infringed this Law within seven years;

5) undertakings have continued the infringement of Articles 101 or 102 of the Treaty on the Functioning of the European Union as established by the European Commission or the competition authority of another Member State of the European Union;

6) undertakings have committed, within seven years, an infringement similar to an infringement of Articles 101 or 102 of the Treaty on the Functioning of the European Union as established by the European Commission or the competition authority of another Member State of the European Union.

4. The Government shall approve a description of the procedure for fixing the amount of fines.

Article 38. Immunity from and reduction of fines

1. An undertaking being a participant in a prohibited agreement between competitors as referred to in points 1-4 of Article 5(1) of this Law or in another agreement between competitors aimed at restricting competition and infringing the provisions of Article 5(1) of this Law or Article 101(1) of the Treaty on the Functioning of the European Union or a participant in a prohibited agreement between non-competitors regarding direct or indirect price setting (fixing) as referred to in Article 5(1)(1) of this Law shall, upon providing the Competition Council with all the information on such an agreement in its application for granting immunity from fines, be granted immunity from the fine envisaged for this infringement, provided that all of the following conditions are met:

1) the undertaking has disclosed to the Competition Council its participation in the prohibited agreement;

2) the undertaking is the first of the participants in the prohibited agreement, according to the assessment of the Competition Council, to supply sufficient evidence to carry out the inspection provided for in point 1 or 2 of Article 25(1) of this Law (hereinafter: a ‘targeted inspection’) or to establish an infringement, however, only if the Competition Council did not have sufficient evidence to carry out the targeted inspection (or has not yet carried it out) or to establish the infringement before the submission of the undertaking’s application for granting immunity from fines;

3) the undertaking has ended its participation in the prohibited agreement, except for what would, in the Competition Council’s view, be expedient to preserve the integrity of the investigation;

4) the undertaking cooperates with the Competition Council;

5) the undertaking has not destroyed, falsified or concealed the evidence of the prohibited agreement or has not disclosed the fact, or any of the content, of its contemplated application to the Competition Council for granting immunity from fines, other than to the European Commission and other competition authorities of the Member States of the European Union or competition authorities of third countries;

6) the undertaking has not taken steps to coerce other undertakings to join the prohibited agreement or to remain in it.

2. A participant in a prohibited agreement between competitors as referred to in points 1-4 of Article 5(1) of this Law or in another agreement between competitors aimed at restricting competition and infringing the provisions of Article 5(1) of this Law or Article 101(1) of the Treaty on the Functioning of the European Union or a participant in a prohibited agreement between non-competitors regarding direct or indirect price setting (fixing) as referred to in Article 5(1)(1) of this Law who does not qualify for immunity from fines in accordance with paragraph 1 of this Article may have the amount of the fine reduced in accordance with a description of the procedure for fixing the amount of fines as approved by the Government, provided that all of the following conditions are met:

1) the undertaking has disclosed to the Competition Council its participation in the prohibited agreement;

2) the undertaking has submitted to the Competition Council evidence of the prohibited agreement which, in comparison with the evidence already in the possession of the Competition Council, represents significant added value for the purpose of proving the infringement;

3) the undertaking has ended its participation in the prohibited agreement, except for what would, in the Competition Council’s view, be expedient to preserve the integrity of the investigation;

4) the undertaking cooperates with the Competition Council;

5) the undertaking has not destroyed, falsified or concealed the evidence of the prohibited agreement or has not disclosed the fact, or any of the content, of its contemplated application to the Competition Council for fines reduction or the content of such an application, other than to the European Commission and other competition authorities of the Member States of the European Union or competition authorities of third countries.

3. An undertaking seeking immunity from fines under paragraph 1 of this Article or fines reduction imposed on it under paragraph 2 of this Article must submit to the Competition Council an application for granting immunity from fines or fines reduction. The requirements applicable to applications, simplified applications for granting immunity from fines or fines reduction in the presence of the conditions specified in paragraph 1 or 2 of this Article as well as the procedure for submitting and examining them shall be established by the Competition Council.

4. An undertaking shall have the right to submit to the Competition Council a simplified application for granting immunity from fines or fines reduction if that application covers more than three Member States of the European Union as territories affected by the alleged prohibited agreement and if the undertaking has already submitted to the European Commission a full application for granting immunity from fines or fines reduction or has applied to the European Commission for a place on the waiting list for immunity before formally submitting an application for granting immunity from fines or fines reduction regarding the same alleged prohibited agreement.

5. When adopting a decision referred to in point 1 or 2 of Article 30(1) of this Law, the Competition Council shall decide whether the conditions referred to in paragraph 1 or 2 of this Article have been complied with for the undertaking to qualify for immunity from fines or fines reduction.

6. Submission of the evidence specified in paragraphs 1 and 2 of this Article to the Competition Council shall not be considered as disclosure of a commercial or professional secret and other confidential information and the undertaking shall not incur contractual or non-contractual liability for the submission of such evidence to the Competition Council.

7. The Competition Council shall have the right to forward applications for granting immunity from fines or fines reduction as referred to in paragraphs 3 and 4 of this Article to the competition authority of another European Union Member State on the basis of Article 12 of Regulation (EC) No 1/2003 only with the consent of the applicant undertaking or where the competition authority of another Member State of the European Union has already received from the same undertaking an application for granting immunity from fines or fines reduction related to the same infringement of Article 101 of the Treaty on the Functioning of the European Union and the undertaking submitting such an application may not withdraw the information submitted to the competition authority of another Member State of the European Union.

Article 38¹. Rewarding for the provision of evidence to the Competition Council

1. The Competition Council shall have the right to grant a one-off payment to natural persons who have submitted evidence on the basis whereof the Competition Council establishes the existence of an agreement between competitors as referred to in Article 5(2) of this Law or an agreement between non-competitors regarding direct or indirect price setting (fixing) referred to in Article 5(1)(1) of this Law.

2. The amount of the one-off payment shall be 1% of the amount of all fines imposed by the Competition Council for the infringement referred to in paragraph 1 of this Article in respect whereof evidence has been submitted by a natural person, but not less than EUR 1 000 and not more than EUR 100 000.

3. The one-off payment may be granted, provided that all of the following conditions are met:

1) the natural person submitted the evidence before the initiation of the investigation by the Competition Council and is the first person to have submitted it;

2) the evidence has not been obtained as a result of commission of a criminal act;

3) the natural person is not the manager, member of the management or supervisory bodies, shareholder or member of staff of an undertaking which has submitted under Article 38 of this Law an application for granting immunity from fines or fines reduction for the same infringement in respect whereof the evidence has been submitted by the natural person;

4) the evidence has not been obtained by a natural person in the course of performing his/her duties at law enforcement institutions or other institutions and agencies exercising supervision of compliance with the requirements of legal acts.

4. The Competition Council shall decide whether the conditions, as set out in this Article for granting the one-off payment to a natural person, have been complied with only after adopting a decision, as referred to in Article 30(1)(1) of this Law, to recognise that the agreements referred to in paragraph 1 of this Article have violated the requirements set out in Article 5 of this Law The Competition Council shall establish the procedure for granting and making one-off payments.

5. If, after making the one-off payment, it transpires that evidence has been obtained as a result of commission of a criminal act, the one-off payment must be repaid.

6. At the request of a natural person who has submitted evidence of the prohibited agreements referred to in paragraph 1 of this Article, the Competition Council shall ensure his/her confidentiality. The identity of this person shall not be disclosed to the participants in the procedure, including the undertakings suspected or recognised by a decision of the Competition Council as having participated in the infringement in respect whereof the natural person has submitted evidence, unless indirect disclosure of the identity of the person cannot be avoided for the purposes and to the extent of the exercise of the right to defence provided for in Article 29(2) of this Law. The identity of the person may be disclosed to a court where it is necessary to verify the evidence of prohibited agreements referred to in paragraph 1 of this Article and submitted by that person. The court shall in no case disclose the identity of that natural person to third parties.

7. Submission to the Competition Council of the evidence of prohibited agreements referred to in paragraph 1 of this Article shall not be considered as disclosure of a commercial/industrial secret, professional secret, bank secret, confidential information of an institution or information about the private life of a natural person, and the natural person shall not incur contractual or non-contractual liability for the provision of such information.

8. One-off payments to natural persons shall be made from the appropriations of the state budget of the Republic of Lithuania allocated to the Competition Council for this purpose.

Article 39. Implementation of sanctions imposed on undertakings and entities of public administration

1. An undertaking or an entity of public administration must pay a fine imposed by the Competition Council to the state budget not later than within three months from the publication of a decision on the website of the Competition Council.

2. If the undertaking or the entity of public administration fails to pay the fine within the time limit laid down in paragraph 1 of this Article, interest at the rate specified in Article 6.210(2) of the Civil Code shall be charged. Interest shall be charged from the next day following the expiry of the time limit laid down in paragraph 1 of this Article. Interest shall be calculated on a daily basis and shall finish to be charged on the day on which the fine is paid into the state budget but for not longer than 180 days. Interest shall not be calculated during the period of deferment of payment of the fine or a part thereof as specified in paragraph 4 of this Article and in the case specified in paragraph 7 of this Article where the Competition Council takes a decision not to refer to a bailiff for enforced recovery of the fine.

3. If the undertaking or the entity of public administration pays the fine and such a fine imposed on the undertaking or public entity by the Competition Council is reduced or annulled by a final court judgment, the overpaid amount of money shall be credited or refunded to the undertaking or the entity of public administration mutatis mutandis in accordance with the procedure for crediting or refunding tax overpayments laid down in the Law of the Republic of Lithuania on Tax Administration.

4. If there is a justified request of the undertaking or the entity of public administration, the Competition Council shall have the right to defer the payment of the fine or a part of it for a period up to six months if the undertaking or the entity of public administration is unable to pay timely the fine for objective reasons.

5. An undertaking or an entity of public administration must fulfil obligations set out for it by a decision of the Competition Council in accordance with Article 35(1) of this Law under the set terms and conditions. Upon a reasoned request of the undertaking or the entity of public administration, the Competition Council shall have the right to extend the time limit for the fulfilment of the obligations for a twice longer period than specified in the decision if the undertaking or the entity of public administration is unable to fulfil the obligations in a timely manner for objective reasons.

6. The fine and the interest not paid by the undertaking or the entity of public administration shall be recovered to the state budget. The decision of the Competition Council regarding the enforced recovery of the fine and the interest shall be an enforceable document and shall be submitted for execution to a bailiff in accordance with the procedure laid down in the Code of Civil Procedure not later than within one year from the adoption of the decision of the Competition Council imposing the fine on the undertaking or the entity of public administration. This time limit shall be extended for the litigation period if the enforced recovery of the fine and the interest has been suspended in accordance with paragraph 7 of this Article or if the court temporarily suspends the enforcement of the decision of the Competition Council.

7. The Competition Council shall take a decision not to refer to a bailiff for enforced recovery of a fine during the litigation period where the decision of the Competition Council imposing the fine is appealed against in court and an undertaking or an entity of public administration submits to the Competition Council a financial guarantee granted by a financial institution and/or a suretyship insurance taken out with an insurance undertaking and covering the amount of the fine imposed.

8. If the entity of public administration fails to fulfil the obligation referred to in Article 35(1)(4) of this Law within the time limit fixed by the Competition Council or extended in accordance with paragraph 5 of this Article, the Competition Council shall have the right to refer, within 20 days from the expiry of the time limit for fulfilment of the obligation, in accordance with the procedure laid down by the Law on Administrative Proceedings to a first instance administrative court with an application for repeal of the legal act or annulment of any other decision of the entity of public administration contradicting Article 4 of the Law on Competition, or with an application for bringing the infringement to an end in any other way.

Article 39¹. Specific features of payment of fines imposed on combinations of undertakings

1. If a combination of undertakings which has been imposed a fine by the Competition Council in accordance with Article 36(2) of this Law is unable to pay the imposed fine, the combination of undertakings shall be obliged to call for contributions from the undertakings belonging to the combination of undertakings to cover the amount of the fine. The undertakings belonging to the combination of undertakings shall pay the contributions within the time limit fixed by the Competition Council.

2. If the undertakings belonging to the combination of undertakings fail to pay their contributions to cover the amount of the fine in accordance with paragraph 1 of this Article within the time limit fixed by the Competition Council, the Competition Council shall have the right to require the payment of the fine imposed on the combination of undertakings by any of the undertakings belonging to the combination of undertakings whose representatives were members of the decision-making bodies of the combination of undertakings.

3. If it is necessary to ensure the payment of the fine in full, the Competition Council shall, after requiring the payment of the fine in accordance with paragraph 2 of this Article, shall also have the right to require the payment of the imposed fine by any of the undertakings belonging to the combination of undertakings which were active on the market on which the infringement was committed, with the exception of the undertakings belonging to the combination of undertakings which prove that they did not implement the decision of the combination of undertakings infringing this Law and either were not aware of it or actively distanced from it prior to the adoption of the decision of the Competition Council to initiate the investigation.

Article 40. Sanctions imposed on managers of undertakings

1. For the contribution to a prohibited agreement between competitors concluded by an undertaking or the abuse of a dominant position, the manager of the undertaking may have the right to hold the position of the manager of a public and/or private legal entity or be a member of the collegial supervisory and/or management body of a public and/or private legal entity restricted for a period from three to five years. For the contribution to the prohibited agreement between competitors concluded by the undertaking or the abuse of a dominant position, the manager of the undertaking may, apart from the restriction of the right specified in this paragraph, be additionally imposed a fine in the amount of up to EUR 14 481.

2. The manager of an undertaking shall be considered to have contributed to the commission of an infringement where:

1) he/she has been directly involved in the commitment of the infringement;

2) he/she has not been directly involved in the commitment of the infringement, however, he/she had grounds for suspecting that the undertaking managed by him/her was in the process of committing the infringement and did not take any actions to prevent the infringement;

3) he/she was not aware, although he/she ought to have been aware, of the fact that the undertaking managed by him/her committed or was in the process of committing the infringement.

3. The sanctions referred to in paragraph 1 of this Article may not be imposed on:

1) the manager of an undertaking which has submitted to the Competition Council an application for granting immunity from fines under Article 38(1) of this Law if the application for granting immunity from fines submitted by the undertaking meets the requirements set out in points 1 and 2 of Article 38(1) of this Law and the manager of the undertaking cooperates with the Competition Council;

2) the manager of an undertaking which has submitted to the Competition Council an application for fines reduction under Article 38(2) of this Law if the application for fines reduction submitted by the undertaking meets the requirements set out in points 1 and 2 of Article 38(2) of this Law and the manager of the undertaking cooperates with the Competition Council;

3) the manager of the undertaking who has submitted to the Competition Council the information, meeting mutatis mutandis the conditions set out in Article 38(1) of this Law, about the infringements committed by the undertaking with whom the employment relationship ceased to exist prior to the provision of the information to the Competition Council.

4. The provisions of paragraph 3 of this Article on non-imposition of sanctions may be omitted if the undertaking has terminated the employment relationship with the manager of the undertaking due to his/her contribution to the commitment of the infringement in the manner referred to in point 1 of paragraph 2 of this Article and has applied to the Competition Council for granting immunity from fines.

5. Termination of the employment relationship between the manager of the undertaking and the undertaking which committed the infringement or termination of the powers of the manager of such an undertaking prior to the adoption by the Competition Council of a decision on the infringement of this Law shall not release the manager of the undertaking from the liability under this Article, with the exception of point 3 of paragraph 3 of this Article.

6. When imposing the sanctions referred to in paragraph 1 of this Article on the manager of the undertaking, Article 35(3) and (4) of this Law shall apply mutatis mutandis.

Article 41. Submission to a court, and examination by the court, of an application for the imposition of sanctions on managers of undertakings

1. Upon establishing the presence of the circumstances referred to in Article 40(1) and (2), the Competition Council shall adopt a decision to refer to a first instance administrative court with an application for the imposition of sanctions specified in Article 40(1) of this Law.

2. The decision referred to in paragraph 1 of this Article shall contain the circumstances forming the basis for the application together with the supporting evidence adduced thereto as well as a reasoned proposal in relation to the imposition of the sanctions specified in Article 40(1) of this Law and the level thereof. In adopting a decision to impose sanctions, the court shall not be bound by the proposal of the Competition Council in relation to sanctions and the level thereof.

3. The Competition Council shall have the right to refer to the court with the application referred to in paragraph 1 of this Article within three months from the date on which:

1) the time limit for appealing against the decision of the Competition Council regarding the infringement referred to in Article 40(1) of this Law expires, unless the decision is appealed against in accordance with the procedure and within the time limits laid down in Article 33 of this Law;

2) a court decision becomes final, where the court decision does not annul the decision of the Competition Council or a part thereof regarding the infringements referred to in Article 40(1) of this Law, insofar as it relates to the undertaking appealing against the decision of the Competition Council in accordance with the procedure and within the time limits laid down in Article 33 of this Law.

4. Upon examining the application of the Competition Council, the court shall adopt one of the following decisions:

1) to impose the sanctions specified in Article 40(1) of this Law;

2) to reject the application.

5. In imposing the sanctions specified in Article 40(1) of this Law on the manager of an undertaking, the court shall act in compliance with the principles of justice, reasonableness and fairness and take into consideration the following:

1) the seriousness of the infringement committed by the undertaking;

2) the duration of the infringement committed by the undertaking;

3) the nature of involvement of the manager of the undertaking in the infringement committed by the undertaking;

4) the behaviour of the manager of the undertaking in the course of the investigation carried out by the Competition Council with regard to the infringement committed by the undertaking;

5) other relevant circumstances.

6. The court shall, not later than on the next working day after the decision to impose the sanctions specified in Article 40(1) of this Law has become final, submit a copy of this decision to the data processor of the Register of Legal Entities. The list of persons whose right to hold the position of the manager of a public and/or private legal person or to be a member of a collegial body has been restricted by the final court decision shall be published on the website of the data processor of the Register of Legal Entities mutatis mutandis in accordance with Article 14 of the Law of the Republic of Lithuania on Insolvency of Legal Persons.

7. Upon establishing that a final court decision imposing the sanctions referred to in Article 40(1) of this Law is not executed, the Competition Council shall deliver the court decision for execution to a bailiff in accordance with the procedure laid down in the Code of Civil Procedure.

Article 42. Administrative liability

Persons shall be subject to administrative liability for infringements of this Law in accordance with the procedure laid down by this Law and the Code of Administrative Offences.

SECTION TWO

SPECIFIC FEATURES OF CIVIL LIABILITY

Article 43. Rules applicable to compensation for harm

This Section shall define the specific features of compensation for the harm caused by an infringement of Article 5 or 7 of this Law or Article 101 or 102 of the Treaty on the Functioning of the European Union.

Article 44. Presumption of harm and compensation for harm

1. An injured party shall have the right to seek full compensation for harm from the undertaking/undertakings which has/have committed an infringement referred to in Article 43 of this Law.

2. Full compensation for harm must place the injured party who is to be compensated for harm in a position in which that person would have been had the infringement referred to in Article 43 of this Law not been committed, however, unjust enrichment shall be prohibited. Full compensation for harm shall cover direct loss and loss of profit as well as interest calculated from the moment of occurrence of that harm.

3. Unless proved otherwise, it shall be considered that agreements between competitors referred to in points 1 to 4 of Article 5(1) of this Law or other agreements between competitors concluded with the aim of restricting competition and infringing the provisions of Article 5(1) of this Law or Article 101(1) of the Treaty on the Functioning of the European Union shall be considered as causing harm.

4. Where, in the cases of an infringement referred to in Article 43 of this Law, it is practically impossible or excessively difficult for the court to precisely quantify the suffered harm on the basis of the evidence available in the case, the court shall notify the parties to the proceedings that without being able precisely to quantify the harm, it shall estimate the level of the harm. Upon examining the case, the court shall estimate the level of the harm taking into consideration the European Commission’s methodological documents concerning the quantification of harm and other circumstances relevant to the implementation of the principle of full compensation for harm.

5. Where the court orders an expert examination in the proceedings for damages, the court’s experts must, when conducting the expert examination, act in all cases pursuant to the European Commission’s methodological documents concerning the quantification of harm.

Article 45. Specific features of application of joint and several liability

1. Where an infringement referred to in Article 43 of this Law is committed by several undertakings, such undertakings which have jointly committed the infringement shall be jointly and severally liable for the harm caused by the infringement, save for the exceptions provided for in this Article.

2. An undertaking which has been granted immunity from fines on the basis of Article 38(1) of this Law for the secret cartel referred to in Article 44(3) of this Law shall be jointly and severally liable to the following persons:

1) to its direct and indirect purchasers or providers;

2) to other injured parties only if full compensation for harm cannot be obtained from the other undertakings that were involved in the same infringement.

3. Where the infringement referred to in Article 43 of this Law is committed by a small or medium-sized enterprise within the meaning of Commission Recommendation No 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, the infringer shall be liable only to its own direct and indirect purchasers or suppliers, provided that it corresponds to both of the following characteristics:

1) its market share in the relevant market was below 5% at any time during the infringement referred to in Article 43 of this Law;

2) the application of the rules of joint and several liability would irretrievably jeopardise its economic viability and cause its assets to lose all their value.

4. Provisions of paragraph 3 of this Article shall not apply if at least one of the following conditions is met:

1) the small or medium-sized enterprise has encouraged and/or has coerced another undertaking(s) to commit or to join in committing the infringement referred to in Article 43 of this Law, or has led such an infringement;

2) it has been established by the Competition Council or the court that the small or medium-sized enterprise has previously committed the infringement referred to in Article 43 of this Law;

3) the injured parties other than the direct and indirect purchasers or providers of the small or medium-sized enterprise are unable to obtain full compensation from the other undertakings that were involved in the same infringement as the small or medium-sized enterprise.

5. Paragraph 2 of this Article shall apply mutatis mutandis to undertakings which are granted immunity from fines by the European Commission or a competition authority of any other Member State of the European Union.

Article 46. Implementation of the right of recourse

1. An undertaking which has compensated for the harm jointly caused by several undertakings by committing an infringement referred to in Article 43 of this Law shall have the right of recourse to other undertakings which have committed the said infringement. The amount of a recourse claim shall be calculated in accordance with the rule stipulated in Article 6.279(2) of the Civil Code, with the exception provided for in paragraph 2 of this Article.

2. It shall not be permitted to claim by the right of recourse from an undertaking which has been granted immunity from fines on the basis of Article 38(1) of this Law for the secret cartel referred to in Article 44(3) of this Law more than the harm it caused to its direct and indirect purchasers or providers.

3. To the extent that the infringement referred to in Article 44(3) of this Law has caused harm to injured parties other than the direct and indirect purchasers or providers of the undertakings which jointly committed the infringement, it shall be permitted to claim by the right of recourse from the undertaking which has been granted immunity from fines on the basis of Article 38(1) of this Law for the secret cartel referred to in Article 44(3) of this Law a part of the awarded damages for other injured parties, calculating it pursuant to paragraph 1 of this Article. In this case, the exception referred to in paragraph 2 of this Article shall not apply.

4. Paragraphs 2 and 3 of this Article shall apply mutatis mutandis to undertakings which are granted immunity from fines by the European Commission or a competition authority of another Member State of the European Union.

Article 47. Passing-on of overcharges in proceedings for damages

1. In proceedings for damages for an infringement referred to in Article 43 of this Law, a court shall assess whether (and to what extent) the share of the overcharge was passed on to the claimant’s purchasers. When assessing the share of the overcharge passed on to an indirect purchaser, the court shall take into account the European Commission’s methodological documents concerning the determination of the share of the overcharge passed on to the indirect purchaser.

2. In proceedings for damages for the infringement referred to in Article 43 of this Law, the defendant shall be entitled to invoke as a defence against the claim for damages for the infringement referred to in Article 43 of this Law the fact that the claimant passed on the whole or part of the overcharge resulting from the said infringement to the purchasers. If the defendant proves that the whole or part of the overcharge was passed on to the purchasers, the court shall reduce the amount of the damages awarded to the claimant accordingly.

3. Where the claimant is an indirect purchaser, the burden of proving the existence and scope of a passing-on of the overcharge shall rest with the claimant, taking into account the commercial practice that price increases are passed on down the supply chain.

4. The indirect purchaser shall be deemed to have proven that a passing-on of the overcharge to that indirect purchaser occurred where that indirect purchaser has shown that:

1) the defendant has committed the infringement referred to in Article 43 of this Law;

2) the said infringement has resulted in an overcharge for the direct purchaser of the defendant; and

3) the indirect purchaser has purchased the goods that were the object of the said infringement, or has purchased goods derived from or containing them.

5. The presumption referred to in paragraph 4 of this Article may be relied upon only by indirect purchasers. If the defendant rebuts the presumption referred to in paragraph 4 of this Article or a part thereof, such presumption shall not apply or shall apply only to the part that has not been rebutted.

6. The rules referred to in this Article shall apply mutatis mutandis in the cases where the infringement referred to in Article 43 of this Law is committed by direct or indirect purchasers.

Article 48. Effect of consensual dispute resolution on subsequent actions for damages

1. If an injured party resolves a dispute with an undertaking that committed an infringement referred to in Article 43 of this Law through consensual dispute resolution, any remaining claim of the injured party shall be exercised against other co-infringers not settling with the injured party for damages. The remaining claim of the injured party against other co-infringers shall be calculated by reducing the amount of the harm caused to the injured party by the share of the harm caused to the injured party by the undertaking settling with the injured party.

2. The co-infringers not settling with the injured party for damages shall not be permitted to require the payment of the remaining share of the damages recovered from them in the judicial proceedings from the co-infringer settling with the injured party.

3. If the co-infringers not settling with the injured party cannot pay the remaining damages, the injured party may exercise the remaining claim for damages against the co-infringer settling with the injured party, unless the possibility for the injured party to bring such a claim is excluded under the terms of the consensual settlement.

4. Mutual claims of the co-infringers shall be resolved in accordance with the procedure laid down by Article 46 of this Law, taking due account of any damages paid pursuant to a prior consensual settlement involving the relevant co-infringer.

Article 49. Limitation periods for bringing an action for damages

1. Limitation periods for bringing an action for damages for an infringement referred to in Article 43 of this Law shall not begin to run before the said infringement ceases and the claimant knows, or can reasonably be expected to know:

1) of the defendant’s behaviour and the fact that it constitutes the infringement of Article 43 of this Law;

2) of the fact that the said infringement caused the claimant harm;

3) the identity of the undertaking which committed the infringement and is to be held liable for damages. If the conditions referred to in Article 45(2)(2) or Article 45(4)(3) of this Law arise for holding liable respectively the undertaking which obtained immunity from fines on the basis of Article 38(1) of this Law for the secret cartel referred to in Article 44(3) of this Law or the small or medium-sized enterprise, the limitation periods shall not begin to run before the arising of the said conditions.

2. The limitation period for bringing actions for damages for an infringement referred to in Article 43 of this Law shall be five years.

3. The limitation period referred to in paragraph 2 of this Article shall be suspended:

1) where the Competition Council adopts a decision to initiate an investigation in respect of the infringement to which the action for damages relates. The suspension of the limitation period shall end one year after the deadline for appealing against the decision adopted by the Competition Council on the ground referred to in Article 28(3) and (4) or points 1, 2 and 3 of Article 30(1) of this Law has expired or the court decision concerning the infringement has become final. Where the infringement is examined by the European Commission or the competition authority or a court of another Member State of the European Union, the rules for suspension of limitations periods for bringing an action for damages as referred to in this point shall apply mutatis mutandis;

2) for the duration of any consensual dispute resolution process. In this case, the limitation period shall be suspended for the duration of the said process and only with regard to those parties to the proceedings that are or that were involved in this consensual dispute resolution process.

Article 50. Effect of consensual dispute resolution

A court seized of an action for damages for an infringement referred to in Article 43 of this Law shall have the right to suspend its proceedings for up to two years where parties thereto are involved in consensual dispute resolution.

Article 51. Court proceedings

1. Proceedings relating to an action for damages for an infringement referred to in Article 43 of this Law shall be held in compliance with the rules laid down in the Code of Civil Procedure, unless otherwise provided for in this Law.

2. Vilnius Regional Administrative Court shall have exclusive competence to hear the following cases:

1) actions for damages for the infringement referred to in Article 43 of this Law;

2) a person whose interests have been violated demands to bring to an end the unlawful acts referred to in Chapter II of this Law or Article 101 or 102 of the Treaty on the Functioning of the European Union.

3. Following the adoption of a decision of the Competition Council on the infringement referred to in Article 43 of this Law, where it has not been appealed against within the time limit laid down in Article 33(2) of this Law, or after a court decision regarding the same infringement has become final, the circumstances indicated in the decision or the court decision and concerning the nature of the infringement, the territory, duration thereof and persons shall be deemed to be circumstances which do not need to be proved (prejudicial facts) in proceedings for damages for the infringement referred to in Article 43 of this Law.

4. A final decision of a court of another Member State of the European Union adopted in that Member State and recognised under regulations of the European Union or a final decision of the competition authority of another Member State of the European Union regarding an infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union shall constitute an official written evidence and have greater evidential value (prima facie evidence) that the infringement of Article 101 or 102 of the Treaty on the Functioning of the European Union has been committed.

5. Upon admitting an action for damages for the infringement referred to in Article 43 of this Law, the court shall publish information about the initiation of proceedings on its website, indicating the parties to the proceedings.

6. If it appears in the course of the proceedings for damages for the infringement referred to in Article 43 of this Law, prior to adoption of a court decision, that other claimants have also brought actions for damages for the infringement referred to in Article 43 of this Law against the same defendant/defendants, the court shall, in order to properly establish the total amount of the harm caused and the amounts of the harm caused to individual claimants, join all cases together.

7. Persons who consider that they have also suffered harm as a result of unlawful acts of the defendant/defendants regarding the infringement referred to in Article 43 of this Law shall have the right to intervene in accordance with the procedure laid down in Article 46 of the Code of Civil Procedure.

8. In proceedings relating to an action for damages for the infringement referred to in Article 43 of this Law, the Competition Council shall have the right, upon request of the court, to submit an opinion on the determination of the quantum of damages.

9. In proceedings relating to an action for damages for the infringement referred to in Article 43 of this Law, the court shall, in assessing whether the burden of proof resulting from the application of Article 47(2) to (5) of this Law is satisfied, take due account of other decisions of the court or, where possible, decisions of a court of another Member State of the European Union adopted in the actions for damages that are related to the same infringement, but that are brought by claimants from other levels in the supply chain.

Article 52. Specific features of collection of evidence in proceedings for damages

1. A claimant and a defendant shall, when being unable to obtain information concerning proceedings relating to an action for damages, have the right to request a court to order the disclosure of such information. Upon a reasoned request of the claimant or the defendant, the court shall order the other party to the proceedings or a third party to disclose evidence or categories of evidence.

2. The court shall order the disclosure of specified items of evidence or certain categories of evidence relevant to the proceedings. When requesting the court to order the disclosure of certain categories of evidence, the categories of evidence must be circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts presented in the request of a person participating in the proceedings, i.e. the category of evidence should be identified by reference to common features of its constitutive elements, such as the nature, object or content of the documents the disclosure of which is requested, and the time during which they were drawn up.

3. The order to disclose evidence must be proportionate. In determining whether any request to order disclosure by the person participating in the proceedings is proportionate, the court shall consider the legitimate interests of all persons participating in the proceedings as well as other persons not participating in the proceedings. The court shall, in particular, consider:

1) the extent to which the claim or defence is supported by available facts and evidence justifying the request to order the disclosure of evidence;

2) the scope of ordering the disclosure of evidence and costs of executing the obligation to order the disclosure of evidence, including preventing non-specific searches for information which is unlikely to be of relevance for the proceedings;

3) whether the evidence the disclosure of which is requested to be ordered contains secrets protected under law or any other protected confidential information, especially that concerning the persons not participating in the proceedings (hereinafter: ‘confidential information’), and what arrangements are in place for protecting such confidential information.

4. The interest of undertakings to avoid actions for damages following an infringement referred to in Article 43 of this Law shall not constitute an interest that warrants protection.

5. The court may also order the disclosure of evidence containing confidential information if the court considers it relevant to civil proceedings. Upon obtaining or ordering the disclosure of such evidence, the court shall take effective measures to protect confidential information. To this effect, the court shall apply one or more of the following measures:

1) identify the participants in the proceedings who may handle the part of the case file which contains confidential information and to establish for them rational and proportionate obligations of confidential information protection;

2) prohibit the use of the part of the case file which contains confidential information for the purposes other than the specific case;

3) prohibit the parties to the proceedings from accessing the relevant part of the case file which contains confidential information and may obligate the persons participating in the proceedings to prepare and present an extract of such information which does not contain confidential information as well as a description of the information to be protected that are publicly available to other participants in the proceedings. In its decision, the court may invoke only the information which has been disclosed to all persons participating in the proceedings;

4) prohibit copying and dissemination of this part of the case file;

5) where the need is identified, apply other measures which ensure effective protection of confidential information, having regard to the purposes for which such protection is established and to the type of measures which are generally applied in order to ensure protection of confidential information.

6. It shall not be permitted to order the disclosure of information to which legal professional privilege is applied as well as information which may not be considered as evidence in civil proceedings.

7. Before the court orders disclosure of evidence, it shall grant the person from whom the disclosure of evidence is sought as well as the persons participating in the proceedings a time limit of at least seven days for the submission of an opinion regarding the request to order the disclosure of evidence. This shall not preclude the court from taking measures to preserve evidence pending resolution of the issue relating to the disclosure order; however, the evidence for the proceedings shall be submitted and the issue of its adduction shall be resolved only after the court decides to order the disclosure of evidence.

8. If the disclosure order of the court is not complied with within the fixed time limit, the persons who fail to comply with the said order may be imposed a fine referred to in Article 199(6) of the Code of Civil Procedure.

9. The court may impose a fine in the amount of up to EUR 10 000 on persons who destroy the evidence relevant to an action for damages for the infringement referred to in Article 43 of this Law, or who fail or refuse to comply with the confidential information protection obligations imposed by the court, or who breach the limits on the use of evidence specified in this Article and Article 53 of this Law. Imposition of fines shall not relieve the said persons of compliance with unfulfilled or inadequately fulfilled obligations as well as of civil liability for the harm caused by such unlawful actions.

10. If a party to the proceedings fails to produce the evidence ordered by the court or destroys such evidence, the court shall have the right to draw adverse inferences about the circumstances which could be rebutted or confirmed by the evidence that has not been produced or has been destroyed in respect of the party to the proceedings which has failed to produce the evidence or destroyed it.

Article 53. Specific features of ordering the disclosure of evidence included in the file of a competition authority

1. A court shall, in accordance with the procedure laid down in this Article, order from the Competition Council the disclosure of evidence which is not the documents prepared by the Council and which is included in the file of the Competition Council only where no other persons are reasonably able to provide that evidence.

2. When assessing the proportionality of the order to disclose evidence included in the file of the Competition Council, the court shall, in addition to the circumstances referred to in Article 52 of this Law, consider the following:

1) whether the request to order the disclosure of evidence has been formulated specifically with regard to the nature, subject matter or contents of documents submitted to the Competition Council or held in the file thereof;

2) whether the party requesting to order the disclosure of evidence is doing so in relation to an action for damages for an infringement referred to in Article 43 of this Law which is brought before the court; and

3) whether the operational efficiency of the Competition Council will be undermined in the cases provided for in paragraphs 1 and 4 of this Article or following an opinion delivered by the Competition Council to the court pursuant to paragraph 7 of this Article.

3. A request to order the disclosure of evidence included in the file of the Competition Council without specifying the evidence or the categories of evidence relating to the proceedings shall not be granted.

4. Until the Competition Council adopts one of the decisions referred to in Article 28(3) and (4) or in points 1, 2 and 3 of Article 30(1) of this Law, the court cannot order disclosure of and use the following:

1) information prepared by a person specifically for the infringement investigation procedure carried out by the Competition Council;

2) information prepared and sent by the Competition Council to persons for the purposes of the infringement investigation procedure.

5. Applications for granting immunity from fines or fines reduction and settlement submissions referred to in Article 21(10) of this Law may not be used as evidence in civil proceedings. A claimant may present a reasoned request that the court access the documents referred to in Article 21(10) of this Law and being in possession of the Competition Council for the sole purpose of ensuring that they have been submitted to the Competition Council on the basis of Article 38(1) or (2) or Article 37(2)(6) of this Law. In that assessment, the court may request only the Competition Council to submit copies of the applications for granting immunity from fines or fines reduction and settlement submissions referred to in Article 21(10) of this Law as well as conclusions regarding the said assessment. The court shall also have the right to hear persons who have submitted the relevant applications for granting immunity from fines or fines reduction or settlement submissions to the Competition Council. In no case shall the court permit other persons, with the exception of the persons who have submitted the relevant applications for granting immunity from fines or fines reduction or settlement submissions to the Competition Council, access to those documents. The provisions of this paragraph shall not apply to any evidence adduced to the applications for granting immunity from fines or fines reduction or the settlement submissions.

6. The disclosure of evidence included in the file of the Competition Council, other that the evidence indicated in paragraph 4 or 5 of this Article, may be ordered in actions for damages for the infringement referred to in Article 43 of this Law at any time in compliance with the provisions of the Code of Civil Procedure or paragraph 1 of this Article.

7. The Competition Council shall, acting on its own initiative or in the case referred to in the first sentence of Article 52(7) of this Law, have the right to state its views to the court on the proportionality of the request to order the disclosure of its evidence.

8. Only the person who has received the evidence or his/her successor in title shall have the right to rely on the evidence obtained on the basis of Article 29(2) of this Law and not provided for in paragraph 4 or 5 of this Article.

9. The provisions of this Article concerning a disclosure order shall also apply mutatis mutandis when the court orders the disclosure of evidence included in the file of the European Commission or the competent authority of any other Member State of the European Union. Documents included in the file of the European Commission or the competent authority of any other Member State of the European Union and corresponding to the applications for granting immunity from fines or fines reduction referred to in Article 21(10) of this Law for infringements of Article 101 of the Treaty on the Functioning of the European Union and settlement submissions for infringements of Article 101 or 102 of the Treaty on the Functioning of the European Union may not be considered as evidence in civil proceedings. The provisions of this paragraph shall not apply to any evidence adduced to the applications for granting immunity from fines or fines reduction or the settlement submissions. The provisions of paragraph 4 of this Article shall apply mutatis mutandis to settlement submissions with regard to infringements of Article 101 or 102 of the Treaty on the Functioning of the European Union that were presented to the European Commission or the competition authority of any other Member State of the European Union and later withdrawn, where the possibility of withdrawal of such settlement submissions is foreseen by legal acts of the European Union or other Member States of the European Union.

CHAPTER VII

APPLICATION OF EUROPEAN UNION COMPETITION RULES, REGULATION (EU) 2022/1925 AND REGULATION (EU) 2022/2560

Article 54. Authorised institution and/or competent authority

1. The Competition Council shall be an institution authorised to apply the European Union competition rules in relation to which a national competition authority has responsibility for supervising compliance, according to Union competition law.

2. The Competition Council shall be deemed to be a competent authority ensuring compliance with the rules referred to in Article 1(6) of Regulation (EU) 2022/1925 and implementing the functions related to inspections in the European Union as referred to in Article 14(5) to (7) of Regulation (EU) 2022/2560.

3. In performing its functions assigned under paragraphs 1 and 2 of this Article, the Competition Council shall act in accordance with the procedure laid down by this Law to the extent that its functions as an authorised institution and/or a competent authority are not specified by the European Union competition rules and/or Regulation (EU) 2022/1925 or Regulation (EU) 2022/2560.

Article 55. State aid

1. The Competition Council shall be the coordinating authority in the field of State aid and de minimis aid (hereinafter collectively: ‘aid’) falling within the scope of the EU aid rules.

2. The provider of aid shall, in accordance with the procedure established by the Government, submit to the Competition Council draft aid measures for expert examination. A draft aid measure shall indicate the decision(s) of the European Commission governing the granting of the aid and/or any other legal act(s) of the European Union on the basis of the requirements whereof the draft aid measure has been drawn up. The draft aid measure shall contain a reference to the regulation laid down in Article 55¹ of this Law, which provides for the cases when the beneficiary must voluntarily repay the amount of aid paid thereto under the aid measure or this amount is recovered in accordance with the non-contentious procedure. The Competition Council shall, in accordance with the procedure established by the Government, carry out an expert examination of draft aid measures and submit conclusions to aid providers on the compatibility of the draft aid measures with the EU aid rules. The Competition Council shall also make recommendations on aid and the obligation to recover unlawful aid granted by the aid grantor in breach of the requirement laid down in Article 108(3) of the Treaty on the Functioning of the European Union or in breach of applicable legal acts of the European Union or a decision(s) of the European Commission (hereinafter: ‘unlawful aid’) and the obligation to recover aid granted by the aid grantor which has been declared by the European Commission as unlawful and incompatible with the internal market of the European Union (hereinafter: ‘incompatible aid’), accumulate information about aid granted by aid grantors and make this information available to the European Commission, other institutions and persons concerned.

3. The data controller of the register of granted state aid and de minimis aid (hereinafter: the ‘register’) shall be the Competition Council. The information accumulated in the register for a period of ten years starting from the granting of a certain aid shall be published in a publicly accessible part of the register for the purposes of ensuring of aid transparency and provision of information to the public. Information on the aid granted to specific aid beneficiaries and on de minimis aid reserved in the register, including the names of natural persons engaged in economic activity and unique numbers formed for them by the register, shall be made public in accordance with the procedure established by the Government.

Article 55¹. Repayment of unlawful and incompatible aid (recovery in accordance with the non-contentious procedure)

1. If an aid grantor finds that, by granting the aid, it has infringed EU rules on aid and has granted unlawful aid, it shall, without delay but in any case not later than within ten working days from the establishment of the said circumstances, take a decision declaring the aid unlawfully granted and repayable to the state budget (hereinafter: the ‘decision on the repayment of unlawful aid’) and notify the aid beneficiary that the repayment/recovery of the unlawful aid will be carried out in accordance with the non-contentious procedure and propose that the beneficiary pay the repayable amount of unlawful aid voluntarily to the state budget within ten working days from the receipt of the decision on the repayment of unlawful aid. If the beneficiary fails to repay the repayable amount within ten working days, the aid grantor shall, not later than within three working days from the expiry of the time limit for the voluntary repayment of unlawful aid, apply to the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania (hereinafter: the ‘STI’), with the exception of the case referred to in paragraph 4 of this Article, for the initiation of the process of the repayment/recovery of the amount of unlawful aid to the state budget and submit the required decision on the repayment of unlawful aid. The STI shall, not later than within 45 working days, forward the aforementioned decision of the aid grantor on the repayment of unlawful aid to a bailiff for execution in accordance with the procedure laid down in the Code of Civil Procedure.

2. If the European Commission finds that the aid granted by the aid grantor is incompatible aid, the aid grantor which has granted the aid shall, without delay but in any case not later than within ten working days from the taking of the decision by the European Commission, take a decision declaring the aid repayable to the state budget (hereinafter: the ‘decision on the repayment of incompatible aid’) and notify the aid beneficiary that the repayment/recovery of incompatible aid will be carried out in accordance with the non-contentious procedure and propose that the aid beneficiary pay the repayable amount of incompatible aid voluntarily to the state budget within ten working days from the receipt of the decision on the repayment of incompatible aid. If the aid beneficiary fails to repay the repayable amount within ten working days, the aid grantor shall, not later than within three working days from the expiry of the time limit for the voluntary repayment of incompatible aid, apply to the STI, with the exception of the case referred to in paragraph 4 of this Article, for the initiation of the process of the repayment/recovery of the amount of incompatible aid to the state budget within the time limits laid down in this Law and legal acts of the European Union and submit the required decision of the European Commission and a decision on the repayment of incompatible aid. The STI shall, not later than within 45 working days, forward the aforementioned decision of the aid grantor on the repayment of incompatible aid to a bailiff for execution in accordance with the procedure laid down in the Code of Civil Procedure.

3. If insolvency proceedings have been opened against the aid beneficiary, the aid grantor shall, upon taking a decision on the repayment of unlawful aid or the recovery of incompatible aid in accordance with the procedure laid down in paragraph 1 or 2 of this Article and not later than within three working days from the publication of a court ruling on the opening of insolvency proceedings against the aid beneficiary on the website of the supervisory authority, transfer to the STI the rights of claim to the amount of unlawful aid or incompatible aid repayable by the aid beneficiary.

4. If the aid grantor is the STI, it shall refer to the aid beneficiary without delay upon taking a decision on the repayment of unlawful aid or a decision on the repayment of incompatible aid in accordance with the procedure laid down in paragraph 1 or 2 of this Article and notify the aid beneficiary that the repayment of unlawful aid or incompatible aid will be carried out in accordance with the non-contentious procedure and propose that the amount of unlawful aid or incompatible aid be voluntarily repaid to the state budget within ten working days from the receipt of the relevant decision. If the aid beneficiary fails to repay the repayable amount within ten working days, the STI shall initiate, within the time limits laid down in this Law and legal acts of the European Union, the process of the repayment/recovery of the amount of unlawful aid or incompatible aid to the state budget and shall, not later than within 45 working days from the expiry of the time limit for the voluntary repayment of unlawful aid or incompatible aid, forward the relevant decision to a bailiff for execution in accordance with the procedure laid down in the Code of Civil Procedure.

5. The aid grantor’s decision on the repayment of unlawful aid or decision on the repayment of incompatible aid shall be an enforceable document. It shall be executed in accordance with the procedure laid down in the Code of Civil Procedure.

6. The aid grantor’s decision on the repayment of unlawful aid or decision on the repayment of incompatible aid shall indicate the date(s) of payment of the aid and the amount to be repaid by each beneficiary, including interest calculated in accordance with the procedure laid down in Regulation (EU) 2015/1589 and the EU legal acts implementing it. The Government shall approve standard forms of a decision on the repayment of unlawful aid and a decision on the repayment of incompatible aid and a description of the procedure for the repayment of the aid.

7. Provisions of this Article shall not apply if unlawful or incompatible aid has been granted from the funds of the European Union and co-financing resources. Such repayable aid shall be repaid in accordance with the procedure established by the Government.

Article 56. Police assistance and issuance of court authorisations for investigative actions

1. Authorised officials of the European Commission conducting an investigation in accordance with the European Union competition rules or provisions of Regulation (EU) 2022/1925 or Regulation (EU) 2022/2560 or authorised officials of the Competition Council assisting these persons in the conduct of an inspection may, for the purpose of maintaining public order and possible use of coercion, enlist the assistance of police officers.

2. A first instance administrative court shall issue court authorisations for the possible use of coercive measures in the cases referred to in Article 20 of Regulation (EC) No 1/2003, Article 23(8) of Regulation (EU) 2022/1925 or Article 14(6) of Regulation (EU) 2022/2560.

3. A first instance administrative court shall issue court authorisations for the inspections conducted by the European Commission and the possible use of coercive measures in the case referred to in Article 21 of Regulation (EC) No 1/2003.

4. Applications for the issuance of court authorisations shall be filed by the European Commission or the Competition Council.

Article 57. Hearing of competition cases and Regulation (EU) 2022/1925 application cases in court

1. Upon receipt of a claim related to the application of Articles 101 or 102 of the Treaty on the Functioning of the European Union, a court shall inform the Competition Council thereof. In this case, the Competition Council shall have the rights provided for in Article 50(2) of the Code of Civil Procedure.

2. A transcript of a decision adopted, or of a ruling issued, in the case in which Article 101 or 102 of the Treaty on the Functioning of the European Union or provisions of Regulation (EU) 2022/1925 were applied shall, without delay, be forwarded to the European Commission and the Competition Council upon pronouncement of such a decision/ruling. A transcript of a decision adopted, or of a ruling issued, in the case in which Article 4, 5, 6 or 7 of this Law was applied shall, without delay, be forwarded to the Competition Council upon pronouncement of such a decision/ruling.

3. The proceedings may be reopened where it transpires that after the adoption of the court decision, or the issue of the ruling, in which Article 101 or 102 of the Treaty on the Functioning of the European Union or provisions of Regulation (EU) 2022/1925 were applied to agreements, decisions or practices the European Commission adopts a decision on the application of the said Articles or the provisions of Regulation (EU) 2022/1925 to the same agreements, decisions or practices, and the effects of the application differ substantially.

4. Where the case is heard at a first instance administrative court, paragraphs 1, 2 and 3 of this Article shall apply mutatis mutandis.

CHAPTER VIII

COOPERATION WITH AUTHORITIES OF OTHER MEMBER STATES OF THE EUROPEAN UNION

Article 58. Applications for information and enforced recovery of fines and interest

1. Upon receiving an application from the competition authority of another Member State of the European Union, the Competition Council shall, on behalf of that authority, inform the relevant persons of the conclusions of its investigation, the decisions and procedural decisions of which the persons must be informed or of any other documents relating to the application of Article 101 or 102 of the Treaty on the Functioning of the European Union, including those ensuring the enforced recovery of fines and interest.

2. Upon receiving from the competition authority of another Member State of the European Union of an application for enforced recovery of a fine and interest in the Republic of Lithuania which meets the requirements set out by the Competition Council in paragraph 11 of this Article and which is accompanied by a decision of the competition authority of another Member State of the European Union imposing a fine for an infringement of provisions of Articles 101 and 102 of the Treaty on the Functioning of the European Union or an infringement for which fines are provided under the national legislation transposing Articles 13 and 16 of Directive (EU) 2019/1, which has not been appealed against within the time limit for appealing against it, or upon the entry into force of a court decision on a decision of an appropriate authority imposing a fine (hereinafter: a ‘decision imposing a fine’), the Competition Council shall submit an appropriate decision of the authority of another Member State of the European Union imposing a fine to a bailiff for execution on behalf of that authority.

3. Applications received from the competition authority of another Member State of the European Union pursuant to paragraphs 1 and 2 of this Article shall be binding on the Competition Council.

4. The Competition Council shall have the right to submit to the bailiff for execution the decision received from the competition authority of another Member State of the European Union imposing a fine in cases other than those referred to in paragraph 2 of this Article, including the cases where an undertaking from which the fine and the interest is to be recovered is not established in the territory of the state of the competition authority of another Member State of the European Union which has filed the application with the Competition Council.

5. The Competition Council or a bailiff may refuse to satisfy the applications received pursuant to paragraphs 1 and 2 of this Article or may refuse to execute the decisions imposing fines only in the following cases:

1) the applications do not meet the requirements set out for them by the Competition Council in paragraph 11 of this Article;

2) the implementation or execution of the applications or the decisions would be manifestly contrary to public policy of the Republic of Lithuania.

6. A decision of the competition authority of another Member State of the European Union imposing a fine which must be executed in accordance with paragraph 2 or 4 of this Article shall be an enforceable document. In the execution process, the Competition Council shall have the rights and duties of a recoverer as provided for in the Code of Civil Procedure, with the exception of the right to waive recovery and the right to conclude a settlement agreement.

7. The limitation periods for the enforced recovery of the fine and the interest within which the imposed fine may be recovered pursuant to an application for the enforced recovery of the fine and interest received by the Competition Council, as well as the time limits within which a referral must be made to a bailiff for the enforced recovery of the fine and the interest shall be governed by the law of the Member State of the European Union whose competition authority has applied to the Competition Council.

8. The Competition Council shall have the right to request the competition or another competent authority of another Member State of the European Union to inform the relevant persons on behalf of the Competition Council of statements of objections, decisions, procedural decisions of the Competition Council of which the persons must be informed or of any other documents related to the application of Article 101 or 102 of the Treaty on the Functioning of the European Union, including those which must ensure the enforced recovery of fines and interest, or to request the enforced recovery of the fine imposed by the Competition Council during the investigation and the interest referred to in Article 39(2) of this Law for an infringement of the requirements set out, and decisions adopted, by the Competition Council as stipulated in Articles 101 and 102 of the Treaty on the Functioning of the European Union, Article 25(1), Article 26, Article 28(4), points 1 and 2 of Article 35(1) of this Law.

9. The Competition Council shall have the right to apply to the competition authority of another Member State of the European Union for reimbursement of expenses incurred by the Competition Council in carrying out the actions referred to in paragraphs 1, 2 and 4 of this Article and Article 25(9) and (10) of this Law. The procedure for calculating and paying execution expenses incurred due to the enforced recovery of the fine imposed by the competition authority of another Member State of the European Union and the interest shall be laid down by the Code of Civil Procedure and other regulatory enactments governing bailiffs’ activities.

10. At the request of the competition or another competent authority of another Member State of the European Union, the Competition Council shall reimburse the expenses incurred by the competition or another competent authority of another Member State of the European Union in carrying out actions by these authorities in accordance with paragraph 8 of this Article and Article 25(11) of this Law.

11. Requirements for the applications provided for in this Article, the procedure for executing them, the procedure for reimbursement of the costs related to cooperation and incurred by the Competition Council and competition or other competent authorities of other European Union Member States, including the costs incurred in carrying out the actions referred to in Article 25(9), (10) and (11) of this Law, shall be established by the Competition Council.

Article 59. Settlement of disputes

1. A regional administrative court, as a court of first instance, shall hear information disputes arising between the Competition Council executing an application submitted to the Competition Council by the competition authority of another Member State of the European Union pursuant to Article 58(1) of this Law and the person being informed. Disputes shall be settled in accordance with the procedure laid down by the Law on Administrative Proceedings.

2. Disputes over the enforced recovery of a fine and interest, where a bailiff executes a decision imposing a fine as received from the competition authority of another Member State of the European Union, shall be heard by courts of general jurisdiction.

3. The regional administrative court, as a court of first instance, shall hear disputes concerning the legitimacy of an application submitted by the Competition Council pursuant to Article 58(8) of this Law, or of the documents submitted together with the application and relating to the application of Article 101 or Article 102 of the Treaty on the Functioning of the European Union, of which the relevant persons must be informed, or of the documents relating to the recovery of the fines and interest imposed by the Competition Council.

I promulgate this Law passed by the Seimas of the Republic of Lithuania.

PRESIDENT OF THE REPUBLIC VALDAS ADAMKUS

Annex to

the Republic of Lithuania

Law on Competition

LEGAL ACTS OF THE EUROPEAN UNION IMPLEMENTED BY THIS LAW

1. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

2. Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

3. Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (codification).

4. Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law, as last amended by Directive (EU) 2019/1151 of the European Parliament and of the Council of 20 June 2019.

5. Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.

6. Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act).

7. Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market.