Commitment decision in public procurement context

By Decision 2017-E-01 dated 8 March 2017, the Luxembourg Competition Council has accepted commitments offered by two companies operating in the passenger transport market in response to concerns regarding the conformity of their tender for public procurement contracts with competition law.

On 3 May 2014, the Ministry of Sustainable Development and Infrastructures ("Ministry") launched a public tender for the transportation of passengers with special needs. The tender submitted by Transport Union Lëtzebuerg ("TUL"), a joint venture between the two most important companies operating in the Luxembourg passenger transport market, was the only one that met the requirements laid down in the tender documents.

On 16 July 2014, the Ministry cancelled the tender because of concerns that TUL's submission constituted an infringement of competition law.

Pursuant to the statement of objections issued by the Competition Council on 25 April 2016, TUL was placed under the sole and immediate control of its shareholders and had no autonomous decision-making power with the result that it was not an undertaking within the meaning of competition law. It further stated that an exchange of information took place between the undertakings participating in the tender submitted by TUL and that the creation of this joint venture company by them constituted an agreement between undertakings within the meaning of Article 3 of the Law of 23 October 2011 on competition ("Competition Law") and Article 101 of the Treaty on the Functioning of the European Union ("TFEU").

Without taking a definite position on possible justifications for the agreement within the meaning of Article 4 of the Competition Law and Article 101, paragraph 3, TFEU, as alleged by the two companies concerned, or on the existence of an infringement, the Competition Council has decided, in accordance with Article 13 of the Competition Law, to accept and make binding the commitments offered by these companies in order to address any competition concerns identified in the statement of objections. The companies have undertaken (i) to dissolve TUL at the latest before 1 July 2017, (ii) to organise information, training and awareness sessions in relation to competition law for their staff, and (iii) to keep data and information for 5 years which relate to negotiations and commercial exchanges with competitors in the context of their next submission with respect to the same public procurement contracts.