On March 4, 2021, the FCA fined Santerne Nord Tertiaire (“Santerne”), a Vinci group subsidiary, a total of €435,000 for bid rigging in a public tender for building maintenance in the city of Lille.[1]

In 2017, the French Directorate General for Competition, Policy, Consumer Affairs, and Fraud Control (the “DGCCRF”) carried out an investigation in the building maintenance sector in Lille. The DGCCRF found that building management company Neu had exchanged confidential information with two other bidders, STTN Energie and Santerne, prior to submitting their bids in 2013 and 2014. While Neu and STTN Energie settled with the DGCCRF and were fined €19,400 and €14,850 respectively, Santerne refused to enter into a settlement with the DGCCRF. The DGCCRF thus referred Santerne’s case to the FCA.[2]

In its decision, the FCA found that the information exchange on price and technical plans had helped prepare Santerne’s bid.[3] The FCA considered that, while an undertaking may ask other undertakings for expert opinions, the exchange of information on pricing and technical aspects between bidders to a tender is anticompetitive since bids are no longer prepared independently.[4] The FCA concluded that the submission of two apparently independent bids had necessarily misled the tendering authority as to the intensity of competition between bidders.[5]

As a result, the FCA fined Santerne, as well as its parent companies Vinci Energies France and Vinci. While Santerne’s parent companies argued that Santerne was acting independently, and thus that its parent companies should not be fined, the FCA found that there was insufficient evidence to rebut the presumption that Santerne’s parent companies exercised decisive influence over it, particularly in light of the fact that Santerne made several references to its parent companies in its tender bids.[6]

[1] FCA Decision no. 21-D-05 of March 4, 2021 on practices concerning the technical management of buildings in Lille (“FCA Decision”).

[2] Article L. 464-9 of the French Commercial Code provides that the DGCCRF can (i) order undertakings to put an end to anticompetitive practices and (ii) propose a settlement no higher than €150,000 and 5% of the undertaking’s turnover in France. If the undertaking refuses to settle, the DGCCRF will bring the case to the FCA.

[3] FCA Decision, para. 65.

[4] FCA Decision, para. 68.

[5] FCA Decision, para. 86.

[6] FCA Decision, paras 106, 112.