As a direct consequence of a decision rendered by the European Court of Justice, the French Competition Authority [hereinafter “FCA”] has recently changed its decision-making practice on responses to calls for tenders by subsidiaries of the same group. On 25 November 2020, the FCA concluded that there were no grounds to continue the proceeding it had started against four subsidiaries of the Ovimpex group[1].
In this matter, the FCA started proceedings ex officio following a report submitted by the Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) stating that, between 2013 and 2016, several companies of the Ovimpex group submitted bids in response to calls for public tenders issued by France AgriMer, a national public body operating in the agricultural and seafood product sector in charge of organizing calls for tenders to supply food to charities, which then distribute the food to the most deprived sections of the population. These bids, which were submitted as different and independent bids, were alleged to be drawn up jointly.
In accordance with French case law and with its consistent decision-making practice, the FCA first considered that fines could be handed out under the rules prohibiting anticompetitive arrangements for practices consisting of submitting to the contracting authority bids that appear to be independent, but which have been prepared in a concerted manner by entities belonging to the same group[2] : that was the basis of the statement of objections submitted to the Ovimpex Group.
Then, at a later stage of the procedure, taking into consideration the Judgment of 17 May 2018 « Ecoservice projektai »[3] rendered by the Court of Justice of the European Union, the FCA concluded that, in the absence of elements making it possible to characterize the autonomy of the four companies in question, the provisions of Articles 101 TFEU and L. 420-1 of the French Commercial Code were not applicable to the agreements concluded between these companies despite the context of tendering for public contracts.
The French Competition Authority considered, in the light of the development of positive law, that there was no need to continue the proceedings. Nevertheless, it pointed out that this kind of practices were likely to be caught by public procurement law, as they could mislead the public procurement agent and, thereby, distort the results of the public procurement process.
By Grall & Associés – Paris – www.grall-legal.fr
[1] Decision 20-D-19 of 25 November 2020 regarding practices adopted in the sector for the procurement of food products by the national public body France AgriMer.
[2] See, for example, Decision n°18-D-02 of 19 February 2018 regarding practices adopted in the sector for the maintenance of green spaces in Martinique.
[3] CJEU, Judgment of 17 May 2018, “Ecoservice projektai” UAB, C-531/16.