Recent activity of the Competition Council

• Two dismissal decisions adopted by the Competition Council

In Decision n°2021-C-03 of 16 December 2021, the Council analysed whether the acquisition of a minority shareholding in the capital of a competitor constitutes a violation of competition rules. The Council found that, in the case at hand, the minority shareholder had neither a blocking minority nor access to information likely to influence its own competitive behaviour. Based on these elements, the Council ruled out the existence of an infringement of competition law.

In Decision n°2021-C-04 of 22 December 2021, the Council assessed the award of a public contract by the municipality of Hesperange to Publi-Lux, a publishing company. A complainant alleged a violation of competition law by both Publi-Lux and the municipality of Hesperange due to the alleged dominant position held by Publi-Lux. The Council found, first, that it has no jurisdiction to rule on a violation of competition by the State or an emanation of the State such as a municipality. Second, it found that Publi-Lux is not in a dominant position, hence it cannot be accused of any abuse of a dominant position. Here also, the case was therefore closed.

• Investigation on competition in public procurement procedures

In October 2021, the Council published the first part of its conclusions on competition in public procurement procedures in the context of its ongoing Sector inquiry in the construction and public procurement sector (see link here).

The objective of the Council's investigation is, on the one hand, to examine whether, upstream, public tenders organised in Luxembourg allow effective and non-discriminatory competition, and, on the other hand, whether, downstream, the construction sector operates in a competitive manner.

According to the Council, although overall, public procurement, which has a considerable weight in the national economy, ensures a satisfactory level of competition, access to public tenders by SMEs is rendered difficult by the complexity of the applicable legal framework and tenders largely continue to be awarded solely on the basis of price considerations.

The Council makes various recommendations to the legislator and the sector.

Finally, the Council indicates that the second part of its conclusions is forthcoming and will examine the behaviour of companies when responding to calls for public tenders.