In 2013 Andrius Mironovskis played a key role in a price cartel fixing prices for government procurement. He was also involved in the hiding of evidence during the Organized Crime and Corruption Investigation, changed his company name three times of which only one appears on his resume and was the only member of the cartel that did not appeal the penalty.

Hi, had to inform you about some of these competitions. Cover the necessary documents. The supplier’s declaration must include the actual document number. I will inform about the offered prices later,

Yes, as soon as I adjust possible prices, I’ll let you know

August 2013 | Andrius Mironovskis | BNS

None of the UAB Nebūk briedis computers were found in any pre-trial investigation. The fact that the price of the offer coincides with the price of the public media offer project found on the computers of the mentioned persons is a total accident.

TV Europa | Court of Vilnius Decision

Vilnius County Administrative Court 2016

Administrative case no. eI-4872-244 / 2016
Category of Process Decision 1.7.2; 3.21.

ADMINISTRATIVE COURT OF VILNIUS CIRCULATION DECISION

2016 March 14

Vilnius County Administrative Court Judges’ Chamber, composed of Liudmila Zaborovska, Chairperson and Rapporteur, Irena Paulauskienė and Margarita Stambrauskaite, Judges, with Justin Vanag, the representative of the applicant and the third party, and Raimund Moiseev, Jolita Rush Puškoriene and Ieva Sodeikaite, the defendant’s representatives, Daumantas Grikis. and Lina Strikauskaite, having heard an administrative case in a public court hearing against a complaint lodged by UAB “Ministerium” and Public Institution “Media medis” against the defendant of the Republic of Lithuania Competition Council, third parties UAB Nebūk briedis and VšĮ TV Europa regarding the annulment of the decision,

found:

By Resolution of 5/11/2015, the Competition Council recognized Media Media as a violation of Article 5 (1) (2) of the Law on Competition of the Republic of Lithuania and imposed a fine of EUR 15,700. He also acknowledged that JSC “Ministerium” violated the requirements of Article 5 (1) (1) of the Law on Competition and imposed a fine of EUR 8 800 on it.

The complainant public institution Media medis filed a complaint with the court requesting the annulment of the Competition Council of 2015 November 5 Decree no. 2S-15/2015 “On the Compliance of Economic Operations by Participating in Public Procurement for Information Technology and Publicity Services Compliance with Article 5 of the Law on Competition of the Republic of Lithuania” (hereinafter – the Resolution). Having established that the applicant Public Media Media has violated the requirements of Paragraph 2 of Paragraph 1 of Article 5 of the Law on Competition and without repealing the Competition Council Resolution no. 2S-15/2015 to reduce the fine of EUR 15,700 awarded by Media Medis.

The petitioner UAB “Ministerium” requests the annulment of the Resolution No. 2S-15/2015 “Part 1 of the operative part of the Resolution of the Competition Law of the Republic of Lithuania on Compliance with Article 5 of the Law of the Republic of Lithuania on the Participation of Economic Entities in the Procurement of Information Technology and Publicity Services” and paragraph 3.1 of the operative part, which imposed a fine of EUR 8,800 on UAB “Ministerium”.

In the complaint, the complainants explained that the Competition Council did not properly assess all the relevant factual circumstances, did not comply with the provisions of the legislation in force, relevant case-law, and therefore wrongly found an infringement of the Competition Law and incorrectly calculated the amount of the fine imposed.

The Competition Council did not have to follow the data collected during the pre-trial investigation as they were gathered not by the defendant but by other institutions – the Special Investigation Service – during the pre-trial investigation, and the use of such evidence in the defendant’s investigation constitutes an infringement of the Competition Law.

According to Media Medis, the Resolution did not investigate all the facts necessary for an objective, comprehensive and comprehensive investigation. The Competition Council erroneously refers to the facts as the applicant was not questioned in a public procurement organized by the Ministry of Environment. There is no evidence in the case that Mr Justinas Vanagas, head of Media Medis, would have promised someone to confirm that he had been interviewed by specialists from the Ministry of Environment. When communicating with Andrius Mironovskis and Paulius Paulaičius, Justinas Vanagas acted as a private person and did not represent the Media Medis. In the public procurement organized by the Ministry of Environment, Media Medis did not submit a tender offer and therefore no agreement was reached. Competition in public procurement was distorted by unfair practices by the contracting authority, rather than the alleged agreement between Public Media Media and Nebūk briedis. The petitioner also relies on an investigation by the Vilnius Regional Prosecutor’s Office of Organized Crime and Corruption in 2014. November 24 The Ministry of Environment may terminate the pre-trial investigation and state that employees of the Ministry of Environment could violate the requirements of the Law on Public Procurement of the Republic of Lithuania, therefore the Competition Law cannot be applied.

In the complaint, the Media Medis Public Institution indicates that the Competition Council failed to provide convincing evidence that the applicant entered into a prohibited agreement by participating in the 2013 competition. In a public procurement organized by the Ministry of Environment, this should be assessed for the benefit of the company and it is recognized that the applicant has not violated Article 5 of the Law on Competition. The fine imposed by the Decree was incorrectly calculated and its size did not meet the criteria of proportionality and equity. In the opinion of the Media Medis, the Competition Council did not correctly identify the revenues related to the violation, applied excessive amounts to the danger, and did not apply the attenuating circumstances unreasonably, and also violated the principles of equality and non-discrimination. The Competition Council unjustifiably applied 30 percent. for dangerousness. The role of the applicant was passive and the fine should be reduced in the light of \ t

In its Resolution, the Competition Council erroneously assessed the actions of UAB “Ministerium” and misapplied the provisions of the Law on Competition, as well as wrongly imposing a fine on UAB “Ministerium”. UAB “Ministerium” had no intention and did not express a common will with other suppliers in the manner indicated, and the fictitious procurement procedure was determined by the agreement between the contracting authority and UAB Nebūk briedis. JSC “Ministerium” points out that the director of the company Aušrinė Jurgelionytė communicated with Justinas Vanagi and the director of UAB Nebūk briedis Andrius Mironovskis exclusively as specialists in the field of information technologies, not realizing them as competitors. The petitioner points out that, by participating in a public procurement, she sought to win a tender and to implement the project on her own behalf, thus generating additional revenue. The applicant claims that that in the case-law, economic operators suspected of infringing competition law have a right not to be harmed. Since the applicant is not active on the market for the provision of information services, the fine was wrongly calculated on the basis of the total revenue not related to the alleged infringement. For these reasons, the Competition Council had to allocate only a symbolic fine to UAB “Ministerium”.

The respondent does not agree with the complaint with the complaint and requests to reject it as unfounded.

In its response, the defendant explained that the Decree was lawful and that it had established the facts of the competitors’ agreement after assessing a number of circumstances derived from various sources. The Competition Council rightly found that UAB Nebūk briedis, together with Public Media Media, participated in the public procurement organized by the Ministry of Environment of the Republic of Lithuania, did not act independently but co-ordinated its actions and determined the winner in advance, thus restricting competition by within the meaning of Article 5 of the Law on Competition. The arguments put forward by the applicant’s ‘Media Medis’ do not call into question the conclusion that a prohibited agreement exists. There is no reason to say that Justinas Vanagas, Director of Media Medis, acted as a private person in his contacts with the director of UAB Nebūk briedis and an employee of the Ministry of Environment. whereas UAB Nebūk briedis, for its competitor, has sent the requisites of Media Medis and identified it as an economic entity that is expected to participate in the public procurement of the Ministry of Environment. The fact that Media Medis did not submit a tender offer does not deny the participation of this entity in the agreement with UAB Nebūk briedis on the coordination of tenders and their submission, especially considering that under the agreement, Media Media was not required to submit a commercial offer and this would allow the public procurement to win UAB Nebūk Briedis. Regardless of the contracting authority’s actions, Media Medis had every opportunity to independently submit a commercial offer and thus compete in a public procurement. Considering this

The Competition Council has rightly found that UAB “Ministerium”, together with the public institution TV Europa and UAB Nebūk briedis, did not act independently in the public procurement organized by the Public Road and Transport Research Institute, but co-ordinated their actions and determined the winner in advance. concluded an agreement restricting competition within the meaning of Article 5 of the Law on Competition. Taking into account 2013 August 1 – 5 email There is no reason to say that the director of JSC „Ministerium“ Aušrinė Jurgelionytė and Justinas Vanagas and the director of UAB Nebūk briedis Andrius Mironovskis were only in communication with specialists. Regardless of the actions of the Contracting Authority, UAB “Ministerium” had every opportunity to independently submit a commercial proposal and thus compete in public procurement, not to combine a commercial offer with competitors in a public procurement. The Competition Council was able to rely on the information gathered by the Special Investigation Service of the Republic of Lithuania and the evidence gathered is sufficient to conclude that UAB “Ministerium” has violated Article 5 of the Law on Competition. The Competition Council used the national legislation to set the fine and reasonably calculated the fine from the joint income of UAB “Ministerium”. Considering that the violation of the Law on Competition made by UAB “Ministerium” is considered to be one of the most dangerous violations by its nature, and the fact that UAB “Ministerium” itself has taken active actions, there is no reason to reduce the fine imposed by the Resolution. The Competition Council was able to rely on the information gathered by the Special Investigation Service of the Republic of Lithuania and the evidence gathered is sufficient to conclude that UAB “Ministerium” has violated Article 5 of the Law on Competition. The Competition Council used the national legislation to set the fine and reasonably calculated the fine from the joint income of UAB “Ministerium”. Considering that the violation of the Law on Competition made by UAB “Ministerium” is considered to be one of the most dangerous violations by its nature, and the fact that UAB “Ministerium” itself has taken active actions, there is no reason to reduce the fine imposed by the Resolution. The Competition Council was able to rely on the information gathered by the Special Investigation Service of the Republic of Lithuania and the evidence gathered is sufficient to conclude that UAB “Ministerium” has violated Article 5 of the Law on Competition. The Competition Council used the national legislation to set the fine and reasonably calculated the fine from the joint income of UAB “Ministerium”. Considering that the violation of the Law on Competition made by UAB “Ministerium” is considered to be one of the most dangerous violations by its nature, and the fact that UAB “Ministerium” itself has taken active actions, there is no reason to reduce the fine imposed by the Resolution. The Competition Council used the national legislation to set the fine and reasonably calculated the fine from the joint income of UAB “Ministerium”. Considering that the violation of the Law on Competition made by UAB “Ministerium” is considered to be one of the most dangerous violations by its nature, and the fact that UAB “Ministerium” itself has taken active actions, there is no reason to reduce the fine imposed by the Resolution. The Competition Council used the national legislation to set the fine and reasonably calculated the fine from the joint income of UAB “Ministerium”. Considering that the violation of the Law on Competition made by UAB “Ministerium” is considered to be one of the most dangerous violations by its nature, and the fact that UAB “Ministerium” itself has taken active actions, there is no reason to reduce the fine imposed by the Resolution.

The third party, TV Europa, explained in its reply that it agrees with the complaint.

He explained that contrary to the conclusions made by the Competition Council, the public institution TV Europa neither negotiated with UAB Nebūk briedis nor UAB “Ministerium” regarding price offers at the Public Road and Transport Research Institute in 2013. July. organized procurement. UAB “Celence” (currently UAB Nebūk briedis) was not known to the third party, TV TV, until the announcement of the contracting authority’s Public Roads and Transport Research Institute (now UAB Nebūk briedis), as well as the former head of this company Andrius Mironovskis. and current leader Justin Vanagas. 12-12-2013 Justinas Vanagas, a suspect interviewed, did not talk about any agreements with TV Europa. None of the persons interviewed during the pre-trial investigation confirmed

There is no evidence to show that the price of this public offer was agreed with other tenderers. TV Europa prepared the offer for itself. None of the UAB Nebūk briedis computers were found in any pre-trial investigation. The fact that the price of the offer coincides with the price of the public media offer project found on the computers of the mentioned persons is a total accident.

Complaint from Media Media is partially satisfied, complaint of UAB “Ministerium” is rejected.

In the present case the dispute arises from the Competition Council of the Republic of Lithuania in 2015. November 5 Decree no. 2S-15/2015 On the legality and validity of the actions of economic entities participating in public procurement for the purchase of information technologies and publicity services in accordance with the requirements of Article 5 of the Law on Competition of the Republic of Lithuania.

Article 5 (1) (1) of the Law on Competition provides that all agreements which have as their object or effect the restriction of competition, or which restrict or may restrict competition, shall be prohibited and shall be prohibited from the moment of their conclusion, including the fixing of prices or other purchases of the product in question. or sale terms. Pursuant to Article 5 (2) of the Law on Competition, the above-mentioned agreements between competitors are considered to be restrictive of competition in all cases.

Under Article 3 (15) of the Law on Competition, an agreement shall be taken to mean any form of contract concluded by two or more undertakings (in writing or orally) or concerted practices between undertakings, including any combination of undertakings (association, association, consortium, etc.) or the entity. decision taken by representatives of the \ t

Article 101 (1) TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. Paragraph 1 (a) of this Article stipulates that agreements which directly or indirectly fix purchase or selling prices or any other trading conditions shall be prohibited.

Taking into account that Article 1 (3) of the Law on Competition states that this Law seeks to harmonize the law governing competition relations between the Republic of Lithuania and the European Union and that Article 5 of the Law on Competition is in essence and for the purposes of Article 101 TFEU (formerly the European Community). Article 81 of the EC Treaty, the interpretation and application of Article 5 of the Law on Competition are based on the practice of applying Article 101 TFEU.

About Media Medis

Complained in 2015 November 5 by Decree no. 2S-15/2015 The Competition Council has established that Public Media Media has participated in public procurement organized by the Ministry of Environment in violation of the requirements of Item 2 of Part 1 of Article 5 of the Law on Competition and awarded the Competition Council Media Media 15 for the violation referred to in paragraph 2 of the operative part of the Resolution. € 700 fine.

Article 3 (15) of the Law on Competition defines an agreement as any agreement (written or oral) between two or more undertakings or concerted practices between economic operators, including any combination of undertakings (association, association, consortium, etc.) or representatives of that entity. decision taken by the Commission. The case-law of the SACC and the CJEU recognizes that for the purpose of reaching an agreement within the meaning of Article 5 of the Competition Act and Article 101 TFEU, it is sufficient to establish the coincidence (harmonization) of the parties’ will (desires, intentions) to act in the market in an appropriate manner, and the subjective aspirations of the applicants, usually in the agreement. has no meaning. In addition, the will of the parties may derive from both the terms of the contract and the conduct of the parties, as the agreements also recognize not only formalities, written agreements (conclusion of a written contract), but also verbal agreements or even non-legally binding documents. The case-law recognizes that concerted action is a form of coordination between economic operators which, although not developed literally before the conclusion of the contract, deliberately allows for the exchange of competition-related risks through practical cooperation. It should also be noted that, when assessing the behavior of economic operators (concerted practices), parties are not required to have a realistic action plan, but it is unequivocally recognized that, in the spirit of competition, each operator must independently define the policies and conditions that it implements in the single market. intends to offer its customers.

In assessing whether there has been concerted action, it is sufficient to establish that, by disclosing its intentions, a competitor should have eliminated or at least substantially reduced uncertainty as to its own conduct on the market. If the operators who have coordinated their actions continue to be active in the market, it is assumed that these operators, when choosing their market direction, take into account the information exchanged with their competitors.

According to the written evidence in the case file, it was established that during the investigation the Competition Council established sufficient circumstances that allowed to draw conclusions regarding the participation of Media Medis in the prohibited agreement.

According to the petitioner, Justinas Vanagas, Director of Media Medis, both in the interviews and in the opinion submitted to the Competition Council on the conclusions of the investigation, and at the Competition Council meeting, stated that he did not claim to be interviewed by the Ministry of Environment, he said he did not agree with Andrius Mironovsky’s assertions and consistently claimed that he had not met Paulius Paulius with him in order for the Ministry of Environment to buy infographics from UAB Nebūk briedis.

In the course of the investigation, the Competition Council found that the public institution Media medis and UAB Nebūk briedis were in contact with each other on the public procurement of the Ministry of Environment. In addition, e-mail was sent between these companies. Correspondence. Justinas Vanagas sent a letter to the head of UAB Nebūk briedis Andris Mironovskis with the requisites of his company VšĮ Media medis in order to provide information on the economic entities participating in the survey to the contracting authority. Although the head of the media company Media Medis stated in the surveys that he did not intend to participate in the purchase and did not think that he was participating in it, however, UAB Nebūk briedis – who sent his competitor – sent details of Media Medis and specified it as an economic entity. which is supposed to participate in the public procurement of the Ministry of Environment. 2013 September 23 An interview was held between Andrius Mironovskis, an employee of the Ministry of Environment and UAB Nebūk briedis, during which the employee of the Ministry of Environment informed that UAB Nebūk briedis, Media Medis and Lukrecijos Reklama UAB were not interviewed for submission of tenders, but Andrius Mironovsky should inform the managers of these entities that they should confirm that they were interviewed by the Ministry of Environment, but did not submit any commercial proposals. Andrius Mironovskis, Head of UAB Nebūk briedis, handed over this information to Justin Vanagas, head of Public Media Media. however, Andrius Mironovskis should inform the managers of these entities that they should confirm that they were interviewed by the Ministry of Environment, but did not submit any commercial proposals. Andrius Mironovskis, Head of UAB Nebūk briedis, handed over this information to Justin Vanagas, head of Public Media Media. however, Andrius Mironovskis should inform the managers of these entities that they should confirm that they were interviewed by the Ministry of Environment, but did not submit any commercial proposals. Andrius Mironovskis, Head of UAB Nebūk briedis, handed over this information to Justin Vanagas, head of Public Media Media.

Thus, the arguments of the Media Medis complaint should be rejected, that J. Vanagas communicated with A. Mironovskis as a private person without representing the interests of the public company Media medis and provided his professional advice to A. Mironovskis.

The defendant rightly argues that, although Media Medis indicates that in the public procurement organized by the Ministry of the Environment, Media Medis did not submit a tender offer, the prohibited agreements cover not only the coordination of commercial offers by public entities in public procurements and their submission to the contracting authority. but also in cases where entities agree that only one of the dealers will participate in the public procurement and the other will not submit a tender.

In the present case, it was agreed that other economic entities would not submit a bid for the public procurement to be won by UAB Nebūk briedis. In addition, as seen from the electronic correspondence, Justinas Vanagas, Head of Public Media Media, helped to prepare the technical conditions for public procurement, and also referred to the manager of UAB Nebūk briedis Andris Mironovskis other economic entities that could participate in the public procurement. The fact that Media Medis did not submit a tender offer does not deny the participation of this entity in the agreement with UAB Nebūk briedis on the coordination of tenders and their submission, especially considering that under the agreement, Media Media was not required to submit a commercial offer and thus to enable the public procurement to win UAB Nebūk briedis.

Article 5 (1) (1) of the Law on Competition prohibits economic operators from concluding agreements aimed at restricting or restricting or restricting competition, including agreements to fix or fix the price or other conditions of purchase or sale of a given product, directly or indirectly. product market on a territorial basis, according to groups of buyers or suppliers or otherwise. Under Article 5 (2) of the Law on Competition, the agreements listed in subparagraphs 1, 2, 3 and 4 of paragraph 1 of that article are in any event regarded as restrictive of competition. Thus, in all cases, agreements restricting competition constitute such a category of agreements whose negative effects on competition are presumed to be self-evident, so the defendant rightly submits that: that if the agreement falls within the scope of Article 5 (2) of the Law on Competition, the Competition Council is not required to individually demonstrate the contradiction of the purpose of the agreement with fair competition and / or its adverse effect on competition. The Supreme Administrative Court of Lithuania has noted that the harmonization of the content of commercial offers (information, including price, the content of future commercial offers to a competitor) is treated as contrary to Article 5 (1) (1) of the Law on Competition. Where economic operators pre-negotiate the terms of the commercial offers before submitting them to the procurement organization, it is clear that the successful tenderer is determined not by a competitive struggle but by a prior agreement between economic operators.

In the case of violation of Article 5 (1) (2) of the Law on Competition, the winner of the public procurement is determined not by the competitive struggle but by the prior agreement of the economic operators on the submission or non-submission of tenders in a particular procurement procedure, therefore the winner of the procurement is known in advance, which allows him to determine the maximum price or other worse purchasing conditions. Thus, the Competition Council has rightly acknowledged that UAB Nebūk briedis and VšĮ Media medis participated in the participation of JSC „Nemunas briedis“. In a public procurement organized by the Ministry of the Environment, publicity and communication services were not purchased independently, but they coordinated their actions and pre-established the winner and entered into an agreement on market sharing within the meaning of Article 5 (1) (2) of the Competition Act.

In the present case, irrespective of the contracting authority’s actions, the supplier had every opportunity to independently submit a commercial offer and thus to compete in a public procurement. Meanwhile, Media Media did not provide any commercial offer at all. The Competition Council has rightly held that in this case Article 5 of the Law on Competition applies to the actions performed by the public institution Media medis.

Media Medis points out that the allegedly prohibited agreement does not meet the requirements of the Organization for Economic Co-operation and Development’s recommendations on prohibited agreements in public procurement. Since the Competition Council assessed the compliance of the activities of the Public Institution Media medis with the requirements of Article 5 of the Law on Competition and not with the requirements of the aforementioned recommendations, the fact that the actions of the applicant and other economic entities did not correspond to the examples given in the recommendations does not negate the violation of Article 5 of the Competition Law by the applicant and does not remove the liability for the infringement in question.

The Court concludes that the Competition Council has rightly found that UAB Nebūk briedis, together with the Public Media Media, participated in the public procurement organized by the Ministry of Environment and did not act independently, but also coordinated their actions with each other.
pre-established the winner of the procurement. restrictive by purpose
within the meaning of Article 5 of the Law on Competition. The Competition Council conducted an assessment of the actions of economic entities participating in the procurement of information technologies and publicity services within the meaning of Article 5 of the Law on Competition. As is apparent from paragraphs 2.2 and 5 of the Order, the Competition Council identified and identified all the facts that led to the conclusion that prohibited agreements were restrictive of competition by object. Complained in 2015 November 5 by Decree no. 2S-15/2015 The Competition Council has rightly found that Public Media Media has violated the requirements of Article 5 (1) (2) of the Law on Competition by participating in a public procurement organized by the Ministry of Environment. The legality of a ruling is not affected by the fact that paragraph 59 of the

The complainant Public Media Media claims in th

e complaint that the fine imposed by the Resolution has
not been correctly calculated , its size does not meet the criteria of proportionality and fairness. In the opinion of the Media Medis, the Competition Council did not correctly identify the revenues related to the violation, applied excessive amounts to the danger, and did not apply the attenuating circumstances unreasonably, and also violated the principles of equality and non-discrimination.

According to point 4 of the description of the amount of the fine, the amount of the fine imposed on the operator for the prohibited agreement is calculated in two stages: first, the basic amount of the fine is calculated, then the basic amount of the fine is adjusted – increased or reduced. It also states that the basic amount of the fine is calculated on the basis of the income and duration of the sales of the goods directly and indirectly affected by the infringement. If the entity has no income from the sale of goods directly and indirectly related to the infringement, the basic amount of the fine shall be calculated on the basis of the gross income and duration of the infringement received by the economic operator in the last financial year.

UAB Nebūk briedis and Public Media Media participated in the public procurement of the Ministry of Environment and concluded a prohibited agreement on publicity and communication services. And, as stated in paragraph 1.4 of the Resolution, the activities of the public institution Media medis are information service activities, advertising, publishing, production of video and television programs, consulting business and management activities, organization of events, social projects, marketing, strategic consulting. The defendant rightly maintains that all services provided by the company include publicity and communication services other than information services. The grants received are income received by the company from different sources, so there is no reason to exclude the grants received from the proceeds of the infringement.

The Competition Council has justifiably acknowledged the Media Medis in 2013. income received directly and indirectly through the proceeds of the infringement.

The petitioner claims that the amount of the fine should not exceed 20 percent for the severity of the crime, as the Vilnius Regional Prosecutor’s Office for Organized Crime and Corruption Investigation 2014 will not exceed 20 percent. November 24 It was stated in the Order that no objective evidence was found that the suspected acts could have caused significant damage.

According to point 10 of the description of the amount of the fine, the amount of the fine for the gravity of the infringement is calculated in the light of all the circumstances of the particular infringement, such as the nature of the infringement, the overall market share of all the participants in the infringement, the geographical area of ​​the infringement and other circumstances. The importance of these circumstances and the need for their assessment depend on each specific violation. Point 11 of the description of the amount of the fines states that, in the case of price fixing, market sharing, production or sales volumes of prohibited competitors, the sales value used to calculate the basic amount of the fine is between 20% and 30% of the sales value. Horizontal pricing agreements, including company agreements, concerted practices and decisions in public procurement, which are usually secret, by its nature, is considered one of the most serious infringements of competition. In the present case, the undertakings under investigation committed a serious infringement of competition law by concluding cartel agreements. Such prohibited agreements are detrimental to the entire economy of the country by eliminating the initiative of the parties to the agreement to use the limited resources effectively. The defendant rightly maintains that, in accordance with the principle of fair competition, they should be penalized with the utmost rigor, fines imposed to discourage undertakings from engaging in illegal activities. because it eliminates the initiative of the parties to the agreement to make efficient use of limited resources. The defendant rightly maintains that, in accordance with the principle of fair competition, they should be penalized with the utmost rigor, fines imposed to discourage undertakings from engaging in illegal activities. because it eliminates the initiative of the parties to the agreement to make efficient use of limited resources. The defendant rightly maintains that, in accordance with the principle of fair competition, they should be penalized with the utmost rigor, fines imposed to discourage undertakings from engaging in illegal activities.

During the pre-trial investigation, actions and damage were assessed under Article 228 of the Criminal Code of the Republic of Lithuania. The absence of damage under the Criminal Code does not mean that the violation cannot be considered dangerous within the meaning of the Law on Competition. Violation of the Competition Law by Media Medis is restricting competition by purpose and is automatically considered as one of the most dangerous violations of competition law; size for the hazard.

Media Medis claims that in the case at issue the Competition Council had to apply the attenuating circumstances when imposing the sanction, because the conduct constituting the violation was determined by the actions of the authorities.

According to the case-law, the conclusion that an operator did not have any freedom of action and its anti-competitive behavior was determined by the actions of the government can be done when it appears that, on the basis of objective, consistent and substantial evidence, such anti-competitive behavior was unilaterally imposed by the authorities under heavy pressure, for example, threatening to incur sanctions (from public entities), which would result in significant losses for the economic operator concerned. Having assessed the circumstances set out in Paragraph 2.2 of the Resolution, there is no reason to assert that the actions of the public institution Media medis were determined by the authorities, especially considering the fact that the applicant did not submit a commercial offer in the public procurement in order to win public procurement UAB Nebūk briedis. So, there is no reason to apply this mitigating circumstance and reduce the fine imposed. There are also no other attenuating circumstances in the case.

Media Media actively communicated with UAB Nebūk briedis and employees of the Ministry of Environment to make public procurement and win it to UAB Nebūk briedis, therefore there is no reason to assert that the role of Public Media Media was passive and to reduce the fine imposed.

The complainant complains that the Competition Council infringed the principles of equality and non-discrimination in the award of a sanction to Media Medis, as the applicants identified 30% of the costs. for other companies and 5% for other companies. size for the hazard.

It is clear from the content of the Resolution that JSC “Ministerium”, “TV Europa”, 2013. did not receive income from computer (information) service provision activities, ie received no income that could be considered as revenue related to the violation. As stated in paragraph (191) of the Resolution, although UAB Nebūk briedis did November 2 has submitted several additional invoices which, in its opinion, confirm the revenue from the provision of design and information technology (programming) services, but these newly submitted information are not sufficient to determine the value of the entity’s sales, and the information provided is considered unreliable in the light of the fact that the invoices are not approved. Therefore, as no revenue related to the infringement has been identified,

Paragraph 16 of the description of the amount of the fines sets out the cases in which the amount of the fine is calculated on the basis of the overall income of the undertakings. The basic amount of the fine shall be equal to the product of the aggregate share of the economic operators, calculated on the basis of an assessment of the seriousness of the infringement and the duration of the infringement. The severity of the violation shall be assessed in the light of the circumstances referred to in paragraphs 10 and 11 of the Description and other considerations to the extent necessary to properly assess the seriousness of the breach, in accordance with the principles of justice, reasonableness and proportionality. The basic amount of the fine may not exceed 10 percent of the entity’s total annual income in the preceding business year.

As is apparent from paragraph 8 of the Order, the Competition Council had to calculate the fines to be imposed by UAB Nebūk briedis, JSC “Ministerium” and VšĮ TV Europa on the basis of paragraph 16 of the Description of the Fines. Meanwhile, unlike the mentioned companies, the Media Medis was able to identify the revenue related to the infringement and the amount of the fine was calculated on the basis of the other points of the Description of the Fines.

The defendant is therefore right to claim that there is a difference between the situation of Media Medis and that of other companies, so there is no reason to assert that the principle of equality and non-discrimination has been infringed.

The Court concludes that the Competition Council has established sufficient circumstances that led to the conclusion that the prohibited agreement between UAB Nebūk briedis and Media Medis is in existence, has properly established the proceeds of the infringement and there are no grounds for applying mitigating circumstances and the role of the applicant. was not passive.

In its defense, the defendant states that, having taken into account the arguments of the applicant’s Media Medis and having verified the fine imposed by the Order, it was noted that one of the points of the fine set for the applicant had not been applied in determining the basic amount of the fine, which led to an inaccurate final amount of the fine. The Competition Council provided explanations to the court regarding the recalculation of the fine to be imposed.

According to point 4 of the description of the amount of the fines, the basic amount of the fine is calculated on the basis of the income and duration of the sales of the goods directly and indirectly affected by the infringement. If the entity has no income from the sale of goods directly and indirectly related to the infringement, the basic amount of the fine shall be calculated on the basis of the gross income and duration of the infringement received by the economic operator in the last financial year.

Point 5 of the description of the amount of the fines states that the value of sales is usually determined by the sales revenue of the last year of the undertaking’s participation in the infringement obtained from the sale of the goods directly and indirectly involved in the infringement. This paragraph also provides that if the entity’s participation in the infringement is less than one business year, the sales value is determined by the sales revenue from the sales of the goods directly and indirectly related to the infringement that the entity received during the period of participation in the infringement.

The Competition Council has determined that the contract concluded by the public institution Media medis was concluded in a public procurement. Media Medis participated in the prohibited agreement for one month, therefore the basic amount of the fine is calculated on the basis of the revenue of 1/12 Public Media Media received in 2013. (111 837,06 Eur * 1/12 = 9 319,75 Eur). Next, according to point 10 of the description of the amount of the fines, the amount to be determined for the gravity of the infringement. Further, the basic amount of the fine is adjusted in accordance with the Description of the Fines. The Court concludes that the amount of the recalculated fine, adjusted by the defendant in its response to the fine-setting statement, is EUR 4 200, which does not exceed the maximum amount of 10% laid down in Article 36 (1) of the Competition Act. Media Medis General Income Received in 2014, Based on the Reasons given Complaint from the applicant’s public institution Media medis to be partially met, applicants Media Media Medis by Resolution No. The fine of EUR 15 700 imposed on 2S-15/2015 is reduced to EUR 4 200.

About Ministerium

Complained in 2015 November 5 by Decree no. 2S-15/2015 The Competition Council found that UAB “Ministerium”, by participating in the public procurement organized by the Public Road Transport and Transport Research Institute, violated the requirements of Item 1 of Part 1 of Article 5 of the Law on Competition and awarded Public Media Media for the violation referred to in paragraph 1 of the operative part of the Resolution. ‘A fine of EUR 8 800.

Article 3 (15) of the Law on Competition defines an agreement as any agreement (written or oral) between two or more undertakings or concerted practices between economic operators, including any combination of undertakings (association, association, consortium, etc.) or representatives of that entity. decision taken by the Commission.

In the case of the Supreme Administrative Court of Lithuania and the Court of Justice of the European Union (hereinafter referred to as the CJEU) it is recognized that for the purpose of reaching an agreement within the meaning of Article 5 of the Competition Act and Article 101 TFEU, it is sufficient to establish an explicit or implicit overlap (harmonization) of the will of the parties to act in the market in an appropriate manner, and the subjective aspirations of the applicants, as part of the agreement, are generally irrelevant. In addition, the will of the parties may derive from both the terms of the contract and the conduct of the parties, as the agreements also recognize not only formal, written agreements (the conclusion of a written contract), but also verbal agreements or even non-legally binding documents. Coordinated action is a form of coordination between economic operators which, although not developed before the conclusion of the contract, is in the strict sense, however, it deliberately allows to change the competition-related risks in practical cooperation. When assessing the behavior of economic operators (concerted practices), it is unequivocally recognized that, in accordance with the concept of competition, each economic operator must independently determine the policies and conditions that the market intends to offer to its customers. This requirement of autonomy does not deprive economic operators of the right to adapt to the current or implied conduct of their competitors, but it strictly prohibits any direct or indirect relationship between those entities whose purpose or effect is to create conditions of competition which do not meet the normal market conditions in question. It is sufficient to determine whether a mutual action has been coordinated that, by disclosing its intentions, the competitor had to eliminate or at least significantly reduce uncertainty as to its own conduct on the market. If the operators who have coordinated their actions continue to be active in the market, it is assumed that these operators, when choosing their market direction, take into account the information exchanged with their competitors.

The Competition Council has determined that the Ministerium UAB UAB August. communicated with UAB Nebūk briedis and VšĮ TV Europa. In assessing whether there is sufficient evidence to justify the conclusion of a prohibited agreement, the CJEU has repeatedly stated in its case-law that a conclusion on the existence of anti-competitive practices can be made on the basis of a number of overlaps and attributes that are considered together when there is no other logical explanation. may be evidence of an infringement of the competition rules.

The applicant UAB “Ministerium” points out that the company’s director Aušrinė Jurgelionytė communicated with Justinas Vanagi and the director of UAB Nebūk briedis Andrius Mironovskis exclusively as specialists in the field of information technologies, but not by perceiving them as competitors, but by e-mail. there is no reason to conclude such correspondence. Correspondence took place between UAB “Ministerium” and Justinas Vanago, Justinas Vanago and UAB “Nebūk briedis”, as well as UAB “Ministerium” and UAB “Nebūk briedis”. UAB “Ministerium” has sent to Justinas Vanagas the details of UAB “Ministerium” and UAB “Public media”, which Justinas Vanagas has forwarded to Andrius Mironovskis, Director of UAB Nebūk briedis. In addition, on the same day, the director of UAB Nebūk briedis e-mail: In its letter to UAB “Ministerium” not only informed about the public procurement in progress, but it can be seen from the annexes of the letter. that he has forwarded the Ministerium’s Supplier and Fairness Declarations. Considering the email correspondence, it is clear that the director of UAB “Ministerium” and Justinas Vanagu and UAB Nebūk briedis did not communicate with the professionals, who would calculate the price of the works. In addition, the fact that the agreement was aimed at enabling public procurement to win UAB Nebūk briedis was also approved by other persons.

It was established in the case that UAB “Ministerium” sent its company details to Justinas Vanagas and also coordinated the commercial offer with UAB Nebūk briedis, therefore the Competition Council rightly held that in this case Article 5 of the Law on Competition was applicable to the actions performed by UAB “Ministerium”.

The applicant argues that, by participating in a public procurement, she sought to win a tender and implement the project on her own behalf, thus earning additional income. The circumstances specified in the complaint of UAB “Ministerium” contradict the circumstances established during the investigation.

The petitioner indicates that he has submitted the estimated price of UAB Nebūk briedis as he does not perform such activities himself. As can be seen from the explanations provided by the Director of UAB “Ministerium” during the pre-trial investigation, if UAB “Ministerium” had won the public procurement, it would be used as a partner by UAB Nebūk briedis, if the estimated price of UAB Nebūk briedis was to be considered as a future project partner. the calculated amount should be paid by UAB “Ministerium” itself, the calculated amount should be considered the price of works of UAB Nebūk briedis, if the order was made by UAB “Ministerium” together with UAB Nebūk briedis. As stated in the investigation, the price of the proposals submitted by UAB “Ministerium” to the accuracy of cents coincides with the price of works prepared by the director of UAB Nebūk briedis. There is no evidence in the case confirming the applicant’s allegations that the Director of UAB “Ministerium” did not know that UAB Nebūk briedis will participate in the public procurement. Thus, after assessing the circumstances established during the investigation and the fact that the circumstances indicated by the applicant during the investigation were not established, the defendant reasonably concluded that UAB “Ministerium”, participating in the 2013 public organization of the Road and Transport Research Institute. July. did not act independently. For these reasons, the Competition Council has justifiably acknowledged UAB “Ministerium” together with the public company “TV Europa” and UAB “Nebūk briedis” after the conclusion of the restrictive agreement. did not act independently. For these reasons, the Competition Council has justifiably acknowledged UAB “Ministerium” together with the public company “TV Europa” and UAB “Nebūk briedis” after the conclusion of the restrictive agreement. did not act independently. For these reasons, the Competition Council has justifiably acknowledged UAB “Ministerium” together with the public company “TV Europa” and UAB “Nebūk briedis” after the conclusion of the restrictive agreement.

The petitioner claims that in the case-law the right to non-discrimination is imposed on the economic entities suspected of violating competition law, states that the Competition Council could not rely on the evidence provided by the Director of Ministerium Ausrinė Jurgelionytė during the pre-trial investigation as it was questioned as a witness and not as a suspect.

The scope of the right not to give evidence against yourself is less restrictive in the infringement proceedings than in criminal proceedings. The undertaking under investigation may not refuse to provide information on the ground that it is accusing, ie may be used to establish an infringement of competition law. However, the Competition Council is not in a position to compel the investigated entities to admit the infringement.

In the present case, the pre-trial inquiries were conducted by the STT and not by the Competition Council by conducting an investigation into the compliance of the actions of economic entities involved in the procurement of information technology and publicity services with the requirements of Article 5 of the Law on Competition. There is no evidence in the case that the Director of UAB “Ministerium” is forced to admit that it has concluded an anti-competitive agreement that violates Article 5 of the Law on Competition. The content of the right not to be convicted of an infringement is not absolute – the content and reliance on that principle are exclusively related to the composition of the alleged infringement and to the context and context of the case. Thus, while in the case at issue the Minister of UAB “Ministerium” was asked questions regarding actions during the STT surveys,

It is not justified to conclude from the circumstances established during the investigation that the director of UAB “Ministerium” communicated with Justinas Vanagi and the director of UAB Nebūk briedis Andrius Mironovskis exclusively as IT specialists. In addition, 2013 August 1 The Director of UAB “Ministerium” has sent to Justinas Vanagas the details of UAB “Ministerium” and UAB “Public media”, which Justinas Vanagas has forwarded to Andrius Mironovskis, Director of UAB Nebūk briedis. In addition, on the same day, the director of UAB Nebūk briedis e-mail: In its letter to UAB “Ministerium” not only informed about the public procurement in progress, but it can be seen from the annexes of the letter that it has forwarded UAB “Ministerium” supplier and honesty declarations.

Although there is no direct evidence in the case that JSC “Ministerium” has agreed with other participants of the agreement that it will withdraw the submitted commercial offer, the circumstances established during the investigation lead to the conclusion that JSC “Ministerium” did not act independently and combined the commercial offer with UAB Nebūk Briedis. Thus, the Competition Council was entitled to rely on the information gathered by the STT during the pre-trial investigation, and sufficient facts were established during the investigation which led to the conclusion that the Ministerium concluded a prohibited agreement. JSC “Ministerium” did not act independently in public procurement, thus violating Article 5 of the Competition Law.

The applicant UAB “Ministerium” claims that it would not have benefited from the agreement, because the planned profit of UAB Nebūk briedis had to be divided into UAB Nebūk briedis, UAB “Lexita web” and the contracting authority, therefore the prohibited agreement does not make sense.

In order to determine whether a violation of Article 5 of the Law on Competition has been committed, it is not necessary to determine whether the entity has received or was able to derive direct financial benefit from the agreement. In order to reach an agreement within the meaning of Article 5 of the Competition Act and Article 101 TFEU, it is sufficient to establish the coincidence (harmonization) of the parties’ will (desires, intentions) to act in the market in an appropriate manner, and the subjective aspirations of the applicants in the agreement usually have no meaning.

The Court concludes that the evidence gathered is sufficient to establish that UAB “Ministerium” has committed a violation of Article 5 of the Law on Competition.

The petitioner argues that the amount of the sanction imposed by the Resolution is unreasonably high, disproportionate and unjust, the calculation of the fine on gross income is contrary to the practice of the EU institutions, which the Competition Council must follow.

The Competition Council argues that, by imposing a fine on Ministerium, it relied on the description of the amount of the fine.

The fact that UAB “Ministerium” did not act in the relevant market at the time of the infringement does not justify the imposition of a symbolic fine and deviate from the description of the amount of the fine. Symbolic fines for violations of competition rules are only granted in exceptional cases. The fines imposed must have a dissuasive effect. The SACL has noted that in cases where economic operators pre-negotiate the terms of the commercial offers before submitting them to the procurement organization, it is clear that the winner of the public procurement is determined not by the competitive struggle but by the prior agreement of the economic operators. Thus, in such cases, the combination of the content of the commercial offers leads to the possibility of public procurement being won by a well-known economic operator, which makes the procurement procedure itself fictitious and loses its meaning. Therefore, if only a symbolic fine were imposed or not at all, economic operators would be able to avoid liability for actions restricting competition, amongst which the fine would not be sufficiently dissuasive. For these reasons, there is no reason to impose only a symbolic fine.

In its Resolution, the Competition Council rightly held that UAB “Ministerium” had committed a serious violation of competition law by concluding a cartel. Such prohibited agreements are detrimental to the entire economy of the country by eliminating the initiative of the parties to the agreement to use the limited resources effectively.

JSC “Ministerium” did not act independently when participating in public procurement. As reasonably established by the Competition Council during the investigation, UAB “Ministerium” sent its details to Justinas Vanagas, who sent them to UAB Nebūk briedis. UAB Nebūk briedis has forwarded UAB Ministerium’s declarations of integrity and supplier. The fact that the applicant was not the organizer or the initiator of the agreement does not justify the assertion that the role was purely passive and, consequently, a reduction of the fine.

Article 37 (1) of the Law on Competition provides that fines imposed on economic operators shall be differentiated according to the seriousness of the infringement, the duration of the infringement, the aggravating or aggravating circumstances of the undertaking, the influence of each operator on the infringement, where the infringement is committed by several economic operators, the goods of the economic operator and directly. indirectly related to the infringement. In the present case, the Competition Council assessed all the circumstances surrounding the infringement.

The Court concludes that, in assessing the fines for infringements of the competition rules, the Competition Council did not infringe the principles of proportionality and fairness when calculating the fine from the gross revenue of UAB “Ministerium” and imposing a fine of EUR 8 800 on it. And since the violation of the Competition Law by the applicant is considered to be one of the most dangerous violations by its nature, and UAB “Ministerium” itself has acted actively, there is no reason to reduce the fine imposed on it by the Resolution.

On the basis of the above, the complaint of the applicant UAB Ministerium must be rejected.

The court, pursuant to Articles 85-87 of the Law on Administrative Proceedings of the Republic of Lithuania, Art. 1, 2, Art.

decided to:

Complaint of the complainant Public institution Media medis partially.

Applicants Public institution Media medis by the Competition Council Resolution Nr. The reduction of the fine of EUR 15 700 imposed by Regulation 2S-15/2015 to EUR 4 200.

The remainder of the complainant’s Public Institution Media Medis is dismissed as unfounded.

Reject the claim of the applicant UAB Ministerium as unfounded.

The decision may be appealed to the Supreme Administrative Court of Lithuania within 14 days of its appeal, either directly to the Supreme Administrative Court of Lithuania or through the Vilnius Regional Administrative Court.

Judges

Irena Paulauskienė

Margarita Stambrauskaitė

Ludmila Zaborovska

Baltic News Service | Four companies cartel agreements
Vilnius County Administrative Court 2016| Administrative case no. eI-4872-244 / 2016

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