Luxembourg competition law update

Several decisions and judgments in the competition law field over the last quarter are noteworthy. A link to the 2020 Annual Report of the Competition Council is available here .

Significant sanctions for vertical price-fixing in the food retail distribution sector

In three decisions of 19 November 2020, the Competition Council imposed significant fines on several players in the food retail distribution sector, the supplier Bahlsen and its distributors Cactus, Delhaize and Auchan for the fixing of retail prices of Bahlsen products between 2011 and 2015. Although the Council could not establish any (horizontal) collusion between the distributors regarding the retail prices of these products, it withheld that sufficient proof was found of prohibited vertical price-fixing between Bahlsen and each of them respectively. The decisions were adopted following an ex officio investigation by the Council. Following an inspection at its premises, Bahlsen had applied for leniency but this did not prevent the imposition of a (reduced) fine.

The decision in case 2020-FO-04 – Cactus is under appeal.

No interim measures for alleged abuse of dominance by Laboratoires National de Santé

In an interim decision of 17 December 2020, the President of the Competition Council rejected the request for interim measures against Laboratoire National de Santé ("LNS") for an alleged abuse of dominant position in the field of COVID 19 testing. A complaint, accompanied by a request for interim measures, had alleged abusive practices in the market for medical biology analyses and the supply of biology equipment, reagents and consumables contrary to the Law on Competition of 23 October 2011 and relevant EU Treaty provisions.

According to the complaint, LNS violated competition law notably by having been granted a dominant position by the State in carrying out virological and serological tests, by abusing this dominant position to limit the supplies of its competitors, and by practising an aggressive human resources policy.

The decision recalls that the Competition Council is not competent to examine the legality of State measures granting a dominant position and that the adoption of interim measures requires the existence of a prima facie infringement of competition law, proof of which was lacking in this particular case. The Decision is without prejudice to the final decision on the substance of the complaint.

The administrative court confirms the absence of merger control competence for the Council

In a judgment of 25 January 2021, the Luxembourg Administrative Tribunal confirmed the absence of merger control powers of the Competition Council. It upheld its decision to dismiss a complaint by Fédération des Artisans that an already completed acquisition of Paul Wagner et Fils by Encevo amounted to an abuse of dominance as the merged company would be dominant in several markets and could foreclose competitors. The Tribunal held that the Council correctly found that there was no evidence of a competition law infringement. The merger itself did not constitute an abuse of dominance since the companies were not direct competitors so it did not create or strengthen a dominant position that could harm competition.