Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
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Global Competition Law

In certain cases where irreparable harm is threatened, and if there is sufficient evidence that an infringement of the Competition Act has taken place, the Competition Council may, pursuant to Section 26, take interim measures where this is deemed necessary in order to prevent substantial or irreparable damage from being caused to other undertakings or to the public interest. Interim relief may ta …

Interim relief

Pursuant to Section 23 of the Act, the Competition Council has the right to investigate where it considers that an infringement of the Act may have taken place. The right to request an investigation into restrictive practices is also vested in:

- undertakings whose interests have been violated due to restrictive practices;

- associations and unions representing the interests of undertakings and consumers.

The Competition Council has the right to start investigations on its own initiative upon adoption of a justified decision to this effect (Section 23(2)).

The Council must examine a request for investigation within 30 days of its submission. However, under Section 24(4), the Council may refuse to start an investigation if:

- the facts of the case indicate that there is no substantial damage to competition;

- the investigation of the facts shows that the case does not fall within the jurisdiction of the Competition Council;

- the facts specified in the application have already been investigated and a resolution has already been adopted on the issues;

- the applicant has failed to provide, within the time period set by the Competition Council, the data and documents required to initiate an investigation;

- the legal act or resolution of an entity of public administration, appealed against in cases of the violations specified in Point 1 of Paragraph 1 of Section 22, has been annulled, changed or expired before the day of the examination of the application at the Competition Council;

- there is no factual data that would allow to reasonably suspect that there was a violation of the Act;

- investigation of the factual circumstances specified in the application does not correspond to the Competition Council's priorities.

Section 25, as amended on 25 June 2020, provides that the officers of the Competition Council are empowered to:

- enter and carry out inspections in any premises, land and means of transport used by the undertaking and affix seals;

- enter and carry out inspections of other premises, areas and means of transport, including residential and other premises of heads and employees of the undertaking, if a reasonable suspicion arises that documents or any other evidence necessary for investigation and likely to have an influence on proving a serious violation of Sections 5 or 7 of the Act or Articles 101 and 102 TFEU are held in such premises, territories or means of transport;

- review the documents required for the investigation (regardless of the medium in which they are stored), receive copies and extracts thereof, get acquainted with the records of the employees of the undertaking related to work activities, as well as copy information that is available to the inspected entity, and, where appropriate, continue to review the documents, employee notes and information at the Competition Council or other premises;

- seal documents, staff records and information media for the period and to the extent necessary for the inspection;

- get oral and written explanations from persons who may have information relevant for the investigation, including answers to questions of facts and documents from persons related to the activities of the investigated economic operators, and request them to come to the Council's premises for explanations;

- get data and documents or copies thereof relating to the economic operations of the undertaking under investigation from other undertakings, as well as from entities of public administration;

- carry out an inspection (audit) of the economic activity of the undertaking;

- seize any documents and objects having evidential value in the investigation of the case;

- obtain information on subscribers from 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;

- enlist the assistance of specialists and experts in carrying out the investigation;

- use technical means for investigation purposes;

- record factual circumstances;
- use for the purpose of the investigation information obtained in the course of other investigations.

Search and seizure must be authorized by a warrant of a Higher Administrative Court judge.

An investigation may not last more than five months from the date it was launched. The Council may extend this period by up to three months by way of a reasoned decision (Section 23(5)).

Complaints and investigations

Upon completion of an investigation, the officers of the Competition Council may either decide to discontinue their investigation or propose further proceedings. Pursuant to Section 29, interested parties must be informed of this decision in writing. Where it has been decided to continue the proceedings, the parties may submit explanations and have access to the file. The Council holds a hearing at which the applicant, the alleged offending undertaking, other undertakings demonstrating a direct interest in the matter, and designated experts all have the right to be heard (Section 29(4)). The Council may subsequently adopt a resolution imposing penalties, closing the case or remanding it for further investigation (Section 30).

In addition, pursuant to Section 28(4) et seq. as amended on 14 March 2019, the Competition Council may terminate an investigation if the undertaking suspected of infringing the Competition Act offers commitments liable to eliminate the competition concerns observed. 

Proceedings before the Competition Council

In certain cases where irreparable harm is threatened, and if there is sufficient evidence that an infringement of the Competition Act has taken place, the Competition Council may, pursuant to Section 26, take interim measures where this is deemed necessary in order to prevent substantial or irreparable damage from being caused to other undertakings or to the public interest. Interim relief may take the form of ordering a private or public undertaking to terminate an illegal activity, or ordering, with the prior authorization of the Vilnius Regional Administrative Court, performance of certain actions where the failure to perform would result in serious damage to other undertakings or to the public interest. Before adopting a resolution to apply interim measures, the Competition Council must give the undertaking an opportunity to provide explanations.

Provisional measures may be imposed for a period of up to one year, which may be extended by a decision of the Competition Council, or, if necessary, until the final decision thereof.

The decision to apply provisional measures may be appealed to the Vilnius Regional Administrative Court within 10 days of the date of its notification. The lodging of the appeal does not suspend the application of interim measures, unless the court decides otherwise. Such a complaint must be examined and decided on within 45 days. The ruling of the Vilnius Regional Administrative Court may be appealed to the Supreme Administrative Court of Lithuania within 7 days of its notification. The Supreme Administrative Court must examine the appeal and make a decision within 45 days.

On 12 January 2017, EU Directive 2014/104 on damages actions for competition law breaches was implemented in Lithuanian national law. The new provisions are to be found at Sections 43 et seq. of the amended Competition Act. The scope of the new procedure covers infringements of Sections 5 and 7 of the Act and of Articles 101 and 102 TFEU (Section 43). The Act provides for a right to full compensation for the claimant provided unjust enrichement is avoided. Under Section 44(3), a rebuttable presumption that an infringement of Section 5(1) to (4) of the Act or of Article 101 TFEU causes harm is established. Under Section 45, when the infringement is commited by several undertakings, the each may be held jointly and severally liable vis-a-vis the claimant. An exception is however made, under certain conditions, for leniency recipients and SMEs, which may be held liable only vis-a-vis their direct or indirect purchasers. Pursuant to Section 47(2), the defendant may invoke the passing on defense, on condition that it prove that the overcharge has been passed on by the claimant. The burden of proof is somehow softened for the indirect purchaser who, under certain conditions, benefits from a rebuttable presumption that the overcharge has been passed on by the direct purchaser (Section 47(4)). The limitation period for the action is set at five years, running from the termination of the infringement and the knowledge, by the claimant that an infringement of competition rules has been committed, that it caused harm and of the identity of the offender(s). The limitation period may be suspended, in particular where the Competition Council has launched an investigation on the matter. The Vilnius Regional Court is granted exclusive jurisdiction to hear damages actions claims (Section 51(2)). Final decisions of the Competition Council establishing an infringement of competition rules by the defendants constitute undisputable proof of a breach in the course of a damages action (Section 51(3)). Conversely, similar decisions from competition authorities of other Member States only constitute prima facie evidence. Finally, Sections 52 et seq. set out the rules allowing a proportionate disclosure of evidence. In this respect, an undertaking's interest in avoiding a claim to damages will not be deemed a legitimate interest to oppose to the communication of requested documents. Thus, access to confidential information may be granted where it is necessary to establish a claim. Refusal to comply with a disclosure order or destruction of proof makes the offender liable to a EUR 10,000 fine. Access to the Competition Council's file may also be granted under certain conditions, but this may not in any case extend to leniency applications and settlement agreements.

Global Competition Law

482. Interim relief

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Les notions juridiques connexes

482. Interim relief

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise