The French Cour de cassation confirms the FCA’s independence in settlement-referral procedures and classifies information exchanges between tenderers, including when exploring subcontracting, as a restriction by object.[1]
On September 24, 2025, the French Cour de cassation upheld the sanction imposed by the French Competition Authority (“FCA”) on Vinci group entities active in construction and technical services, and on their subsidiary Santerne Nord Tertiaire (“Santerne”), for unlawful exchanges of confidential information during a public tender procedure.
The ruling provides two important clarifications. First, it confirms that when a case is referred to the FCA following a refusal to settle, the FCA is not bound by the Minister’s legal characterization or choice of addressees. Second, it confirms that the exchange of confidential information between competing tenderers, including when exploring subcontracting, constitutes a restriction of competition by object.
Background
On April 11, 2014, the Urban Community of Lille launched a tender procedure for maintenance and transformation work on technical installations, allowing partial subcontracting. The incumbent operator, Neu Automation (“Neu”), a building management company, submitted a new bid. Santerne, one of Neu’s competitors, filed two offers: one proposing to replace Neu’s proprietary software with an open-source alternative, and another retaining Neu’s system with Neu acting as subcontractor.
In 2017, the Directorate General for Competition, Consumer Affairs and Fraud Control (“DGCCRF”) investigated the building-maintenance sector in Lille. It found that Neu had exchanged confidential information with two other bidders, STTN Energie and Santerne, prior to their bid submission. Neu and STTN Energie accepted settlements and were fined €19,400 and €14,850 respectively. Santerne refused to settle, and the DGCCRF referred the case to the FCA.[2]
On March 4, 2021, the FCA fined Santerne and its parent companies, Vinci Energies France and Vinci,[3] a total of €435,000 for exchanging sensitive pricing and technical information used to prepare Santerne’s bid.[4] While acknowledging that undertakings may seek external expertise, the FCA stressed that sharing such detailed information between competitors is inherently anticompetitive because it undermines the independence of bids. It further held that the submission of two ostensibly separate bids misled the contracting authority regarding the level of competition.
On March 9, 2023, the Paris Court of Appeal upheld the FCA’s decision.[5] It held that the information exchanged between Neu and Santerne, who had initially considered a subcontracting relationship before submitting separate bids, compromised the independence of their bids and thus constituted an anticompetitive practice.
In its appeal before the French Cour de Cassation, the Vinci group challenged both the legal qualification of the conduct and the FCA’s jurisdiction. It argued, first, that the FCA had exceeded the scope of the DGCCRF referral and the Minister’s initial legal qualification, and second, that the Minister should not have used the settlement procedure at all because the undertaking’s turnover exceeded the statutory threshold set out in Article L. 464-9 of the French Commercial Code. They further claimed that, in any event, the conduct did not restrict competition in the context of the tender.
Procedural issues: the FCA’s independence in settlement-referral procedures
The French Cour de cassation first confirmed that when a company refuses the settlement proposed by the Minister under Article L. 464-9 of the French Commercial Code, the matter is referred to the FCA in rem —that is, with respect to the facts themselves, not to the Minister’s legal framing of those facts. As a result, the FCA is not bound by the Minister’s legal assessment, legal qualification, or choice of addressees. It remains fully autonomous in requalifying the conduct and determining which undertakings should be held liable, including parent companies that were not targeted during the ministerial stage.
The French Cour de cassation then examined whether the Minister’s alleged lack of jurisdiction, arising from the fact that the undertaking’s turnover exceeded the thresholds for using Article L. 464-9 of the French Commercial Code’s settlement procedure, could make the referral invalid. It held that it could not. Even if the Minister should not have proposed a settlement to an undertaking above the statutory turnover thresholds, this does not affect the validity of the referral. By opting to use Article L. 464-9 of the French Commercial Code, the Minister initiates a process that leads to an FCA referral if the company refuses to settle. This follows from the Minister’s separate power to refer cases under Article L. 462-5 I of the French Commercial Code, which does not depend on the validity of the prior settlement attempt.
Taken together, the judgment confirms the clear institutional separation between the Minister’s settlement procedure and the FCA’s enforcement role. The FCA’s jurisdiction and analytical freedom remain intact, regardless of how the Minister framed the initial case.
Substantive issue: Information exchanges between tenderers, including when exploring subcontracting, constitute a restriction by object
On substance, the French Cour de cassation upheld the finding that the information exchanges between Neu and Santerne constituted a restriction of competition by object.
Referring to established case law from the European Court of Justice (“ECJ”),[6] the French Cour de cassation noted that undertakings must determine their market conduct independently. Any exchange of sensitive information capable of influencing a competitor’s conduct may amount to a concerted practice when it alters normal competitive conditions.
The French Cour de cassation endorsed the Paris Court of Appeal’s findings that Neu had provided Santerne with significant parts of its financial and technical bid before both submitted their offers. Around 47% of Neu’s financial proposal (24% of the full bid) and a substantial portion of its technical memorandum were shared and subsequently used by Santerne.
The French Cour de cassation also noted Santerne’s ambiguous use of Neu’s logo, which implied potential subcontracting but failed to clearly set out the nature of their cooperation. In these circumstances, the submission of two ostensibly independent bids (i.e., when one had been prepared using the other’s confidential information) necessarily distorted competition and misled the contracting authority.
The French Cour de cassation reiterated that cooperation, including subcontracting, can be lawful and even pro-competitive. However, such cooperation must not compromise the independence of competing bids. Exchanges must be limited to what is strictly necessary. Here, the information exchanged went well beyond what subcontracting would require.
The French Cour de cassation therefore confirmed that the conduct amounted to a restriction of competition by object, with no need to prove actual anticompetitive effects.
Key Takeaways
Procedural. Refusing a settlement under Article L. 464-9 of the French Commercial Code automatically triggers a full referral to the FCA, which is free to requalify the conduct, broaden liability, and include parent companies. Companies should assess ministerial settlement proposals strategically, given the heightened exposure following refusal.
Public procurement. Subcontracting is permissible, but information exchanges must be strictly limited to what is necessary for that cooperation. Sharing detailed pricing or substantial technical elements while submitting parallel bids will almost always be treated as a restriction by object. Companies should determine early whether another operator is a competitor or a subcontractor, ring-fence bid teams, avoid dual roles, and ensure that any subcontracting arrangement is disclosed clearly and transparently to the contracting authority. Vague references or shared logos are insufficient and may be considered misleading.
[1] French Cour de cassation, Appeal 23-13.733 and 23-14.293, September 24, 2025, available here.
[2] See DGCCRF’s report from 2019, available here. 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 brings the case to the FCA.
[3] Santerne’s parent companies argued that Santerne acted autonomously and that they should not be held liable. The FCA rejected this argument, finding no evidence sufficient to rebut the presumption of decisive influence, particularly given multiple references to the parent companies in Santerne’s tender documents.
[4] FCA Decision, No 21-D-05 of March 4, 2021 regarding practices implemented in the building management systems sector for the city of Lille (Lille métropole communauté urbaine), available here. For further details, see the blog post from March 4, 2021, “The French Competition Authority Fines Vinci Group for Bid Rigging in a Public Tender for Building Maintenance in the City of Lille”, available here.
[5] Paris Court of Appeal, March 9, 2023, RG n° 21/06028, available here
[6] See e.g., ECJ, judgment of January 23, 2018, C-179/16, F. Hoffmann-La Roche; ECJ, judgment of December 21, 2023, C-333/21, European Superleague Company; and ECJ, judgment of July 2024, C-298/22, Banco BPN/BIC Português.