I – The CJEU’s approach
On 17 May 2018, the CJEU ruled that subsidiaries of a same group which respond separately to calls for public tenders form a single undertaking within the meaning of European competition law. As such, the fact that bids were submitted in a coordinated manner by the companies of a same group could not be regarded as an anti-competitive agreement within the meaning of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) (case ).
II – The FCA’s case
The present case deals with annual call for tenders organized by France Agrimer, in order to supply food products to social grocery stores and charities. Three subsidiaries
(Dhumaeux, MVS, Vianov) of Group Ovimpex and their parent company submitted between 2013 and 2016 autonomous bids that were, in reality, prepared by the subsidiary Dhumaeux. Each company was bound to secrecy regarding the bid preparation process. Following an investigation report prepared by the DGCCRF (General Directorate for Competition Policy, Consumer Affairs and Fraud Control), the FCA investigated the case, in order to analyze the existence of a possible anti-competitive agreement.
The companies involved did not contest the facts and applied for the settlement procedure in order to obtain a reduction of their possible penalty. They agreed to a settlement proposal with the FCA’s case handlers.
III – The FCA’s alignment with the CJEU
Although the Authority and the Paris Court of Appeals had previously consistently considered that such concerted bids could be qualified as anticompetitive, the FCA took into account the above-mentioned 2018 ruling of the CJEU, when handling the Group Ovimpex case.
The FCA noted that, in this particular case, Ovimpex held a controlling stake in Dhumaeux, MVS and Vianov. The FCA thus considered that the four companies, both parent company and its subsidiaries, constituted a single economic entity within the meaning of competition law, despite the separate bids submitted to France
AgriMer. The application of Article 101 TFEU was therefore rejected, in the absence of any evidence of autonomy of the subsidiaries vis-à-vis their parent company.
In practice, the FCA’s case handlers proposed to drop the case, due to the recent EU case law concerning intra-group agreements in the context of public tenders. On this basis, the FCA’s Board considered that the settlement procedure’s conditions were not met and confirmed the approach of the case handlers to drop the case. The companies were therefore not fined.
The Authority however points out in its decision that such practices may infringe public procurement law, as they may mislead the public agent and distort the results of the public procurement process.