To quote this paper: S. FREDJ, “The French Court of cassation confirmed Vinci’s sanction and clarified the scope of the Authority’s jurisdiction over local anticompetitive practices”, Competition Forum, 2025, n° 0071 https://competition-forum.com.

The Urban Community of Lille organized a tender procedure for its needs in maintenance and transformation to technical installations, allowing candidates to use subcontracting. The maintenance work could be carried out, either using closed-source software or open-source software. The last holder of this market is the company Neu, which decided to submit a bid again in this tender procedure.

One of its competitors is the company Santerne Nord Tertiaire, which provided two options. The first option was proposing the removal of the closed source software and the development of an open software. The second option was proposing to keep the existing closed-source software, and to assure its maintenance, Santerne Nord Tertiaire submitted the subcontracting of Neu, which submitted itself too. 

The two companies exchanged information on this public procurement, especially on the elements of their financial offers. After an investigation by the services of the Directorate-General for Competition, Consumer Affairs and Prevention of Fraud (DGCCRF) on this practice, the Minister in charge of economy, Bruno Le Maire, initiated an injunction and settlement procedure for an infringement of Article L. 420-1 of the French Commercial Code.

The company Neu accepted to settle with the DGCCRF and the Minister in charge of economy, so its practices are out of the scope of the investigations of the French competition authority. However the company Santerne Nord Tertiaire refused to settle. Consequently, the Minister referred the matter to the French competition authority, following the terms of Article L. 464-9 of the French Commercial Code, compelling the Minister to bring the matter to this authority when the alleged infringer refuses to settle.

Concerning those exchanged information, the French competition authority sanctioned, in a decision issued on March 4th, 2021[1], the companies Vinci, Vinci Energies, Vinci Energies France and Santerne Nord Tertiaire, as an undertaking within the meaning of Article 101 of the Treaty on the Functioning of the European Union (TFEU). The decision was confirmed on appeal, by the Court of appeal of Paris[2].

In a cassation complaint filed by the Vinci group, the French Court of cassation had to rule on the qualification of this practice, and to fix the scope of competence of the French competition authority. Indeed, the cassation complainant held, in a first part, that the authority had made an error in exceeding its scope of investigation, and in a second part, that the practice alleged was not restraining the competition especially on this tender procedure.

In other words, should Article L. 464-9 of the French Commercial Code be interpreted as limiting the French competition authority’s office, in such a manner that the authority would be bound to the qualifications given by the Minister?

And is an exchange of confidential information between two tenderers constitutive of an infringement of Article L. 420-1 of the French Commercial Code?

The French Supreme Court negatively answered the first question and positively answered the second question. Thus, this decision confirming the sanction of the French competition authority provides two clarifications: the French competition authority is not bound by the qualifications given by the Minister in a procedure pursuant to Article L. 464-9 of the French Commercial Code (I) and an information exchange between two tenderers is constitutive of a concerted practice under Article L. 420-1 of the French Commercial Code (II).

I. Affirmation by the French Court of cassation of the independence of the French competition authority from the executive power

Confirming the decision of the French competition authority, the French Court of cassation affirmed the independence of the authority from the qualifications made by the Minister in its referral procedure (from the Minister’s legal characterization when seized under Article L. 464-9 of the French Commercial Code) (A), and consequently, affirmed the impermeability between procedures handled by the French competition authority and the Minister in charge of economy (B).

A. Independence of the French competition authority from the qualifications given by the Minister

In presence of anti-competitive practices, the French competition authority is always competent to handle such practices. The competence of the Minister in charge of economy is more limited: he has juridiction regarding the provisions of Article L. 464-9 of the French Commercial Code, below a threshold of 50M turnover per company, and 200M turnover for the entire undertaking, and if the practice doesn’t affect trade between Member States (under Article 101 of the TFEU)[3].

When the Minister in charge of economy is competent, he can enjoin the undertaking to cease its practices, and may also propose to compromise. However, assuming the undertaking refuses to comply with the Minister’s injunctions or to enter a settlement, the Minister in charge of economy must refer the matter to the French competition authority.

In this case, the French competition authority is referred by the Minister based on Article L. 464-9 of the French Commercial Code, so the Vinci group was holding that the French competition authority was bound by the qualifications provided by the Minister to the matter referred.

In a ground of principle, the French Court of cassation reminded Vinci that the French competition authority is not bound by the qualifications given by the Minister as part of a referral in rem based on Article L. 464-9 of the French Commercial Code. The nature of the French competition authority – an independent administrative authority – explains the ground of the French Court of cassation.

This solution had already been implicitly recognized by the French Court of cassation which did not overturn on this ground the French competition authority’s decision affirming it is not bound by the qualifications of the Minister[4]. Also, it has been already ruled, this time explicitly, by the Court of appeal of Paris[5]. This position confirming the independence of the French competition authority had also been adopted by the French Court of cassation, not concerning the referral by the Minister, but a complaint of a competitor[6].

Beyond this, the French Court of cassation concluded to the total separation between procedures before the French competition authority and before the Minister in charge of economy.

B. Regularity of the French competition authority’s proceedings despite the irregularity of the Minister’s proceedings

In its decision, the French Court of cassation affirmed, this time explicitly, the independence of the French competition authority from the executive power in a referral procedure under Article L. 464-9 of the French Commercial Code. Moreover, this independence, derived from its nature of independent administrative authority, illustrates the independence between the procedures conducted by the French competition authority and the Minister in charge of economy.

Indeed, the main issue of the present case was that the decision of the Minister was flawed: the undertaking exceeded the 200M turnover, limiting the competence of the Minister. He nevertheless decided to pursue the procedure with the Vinci group. Consequently, the Vinci group argued that the irregularity of the first procedure tainted the second (Vinci argued that the Minister’s procedural error should have invalidated the ADLC’s proceedings)[7]. The French Court of cassation rejected this argument, holding that the two procedures are entirely independent[8].

Perhaps one might have preferred a different outcome, similar to what we find in criminal procedure. Nevertheless, the solution provides legal certainty, allowing the French competition authority to sanction restraints of trade, despite of the Minister’s flawed procedure.

According to an author[9], is thereby sending a message: it’s better to accept a settlement with the Minister in charge of economy, even if he’s not competent, than to let the case proceed to the French Competition Authority (given the higher potential fines). The Minister was also wrong to decide that the subsidiary Santerne was the only author of the infringement, ignoring that it was owned by the Vinci company – which is the only relevant author in antitrust law. 

Moreover, the irregularity on the first procedure, led by the Minister in charge of Economy, cannot taint the second procedure before the French competition authority, as in the procedure of Article L. 462-5 I of the French Commercial Code. Thereby, the authority is fully performing its role as a safeguard against the executive’s power, which is a mission of its very nature as an independent administrative authority.

But is this pragmatic purpose an objective justification to the transgression of the rules made by the legislator?

By a rather debatable procedural reasoning, the French Court of Cassation avoided addressing the alleged irregularity of the ministerial procedure, merely noting the absence of any irregularity in the Authority’s referral. Yet, an author[10] pointed out that the minister’s initiative under Article L.464-9 was arguably tainted by a breach of his jurisdictional limits, since the notion of “enterprise” should have excluded Vinci from the scope of the ministerial transaction. The Court’s silence thus leaves an uneasy impression of procedural leniency: the irregularity, though “cured” by the subsequent in rem referral to the Authority, remains unsolved.

That said, this approach can be understood as motivated by pragmatic concerns. By assimilating the minister’s powers under Articles L.464-9 and L.462-5, the Court ensures that practices escaping the minister’s direct competence do not also escape sanction altogether. The reasoning, while procedurally imperfect, reflects a desire to preserve the effectiveness and continuity of antitrust enforcement.

Having resolved by affirming the total independence of the French Competition Authority from the executive power, the French Court of cassation analyzed whether an exchange of confidential information between two tenderers constitutes an infringement of Article L. 420-1 of the French Commercial Code.

II. Exchange of confidential information between tenderers constituting an infringement of Article L. 420-1 of the French Commercial Code

In analyzing the exchange of confidential information between the two tenderers, in order to declare the restriction as a restriction by object, the French Court of cassation proceeds to an analysis of the object of the agreement (A), which finally leads to a better protection of the principle of free access to public procurement (B).

A. A restriction by object

Agreements restricting competition are prohibited under Article L. 420-1 of the French Commercial Code if it restricts competition in the market. This restriction may be established either by its effects – when the authority is examines the consequences of the practice on the market – or by its object – when the conduct reveals a sufficient degree of harm to competition that it is unnecessary to examine its effects[11].

Some authors have argued that the distinction between restrictions by object and by effect has been blurred. Some noted the tendency of the European Commission to characterize the restriction both by object and by effect, which leads to a loss of the initial benefit of this notion: the economy of reasoning it was meant to ensure[12]. Others have highlighted the lack of precision of this notion by the jurisdictions[13].

Nevertheless, in our case, the Court identified a restriction by object by relying on two factual elements that don’t derive from the content, objectives and context of the measures: the repeated use of the Neu company logo by the Vinci company, and the fact that the Neu company gave access to quantitative part of its financial offer to the Vinci company. Those two elements led the Court to believe the two companies tried to deceive the project owner about the intensity of the competition made between them.

However, the French Court presented the case this way, but the CJEU[14] had already considered that the exchange of confidential information may itself constitute a restriction of competition, insofar as competitors will necessarily consider those information[15]. It remains that the criteria for assessing a restriction by object don’t prevent competition authorities to consider the effects of the restriction, considering the probability of occurrence[16].

We must also keep in mind, in this case, that the protection of the market is not the only concern, and the Court also had to protect the principle of free access to public procurement.

B. The goal of protecting free access to public procurement

In its decision, the French Court of cassation strikes a balance between the protection of the market, and the principle of free access to public procurement.

The solution of the French Court of cassation introduces a limitation to this principle: the candidature of the new tenderer would be automatically more expensive than the one of the last holder of the public procurement. The subcontracting used by the company Santerne Nord Tertiaire thus transforms this issue into a solution.

Moreover, when the Court of appeal held that the two offers submitted by the company Santerne Nord Tertiaire complied with the provisions of the requirements specification, it completely overlooked the very purpose of public procurement procedure, which is to win the tender through genuine competition.

To conclude, perhaps the criticism should not focus on the appreciation of a restriction of competition, which is sanctioned by object while considering factual elements. The criticism should better focus on the way public powers – the competition authority as the government – interfered in the tender procedure in this special case.

Nevertheless, the confidential information exchanged between the two tenderers inevitably provided a real advantage on the other tenderers, leading, in our mind, to a distortion of competition. The restriction could have been analyzed in its effects, so the inclusion of factual considerations can be seen as valuable in this case, even though it continues to blur the distinction between restriction by effect and by object.

Sami FREDJ

[1] French competition authority, March 4th 2021, no. 21-D-05.

[2] Court of appeal of Paris, March 9th 2023, no. RG 21/0608828, available online: https://www.courdecassation.fr/decision/640ad9cde13caefb02957326.

[3] L. Vogel, Les fondamentaux du droit de la concurrence I – Pratiques anticoncurrentielles, t. 1, LawLex, 2020.

[4] P. Wilhelm, L. Ferchiche, Procédures de contrôle des pratiques anticoncurrentielles – Procédure devant l’Autorité de la concurrence, Leaflet no. 381, JCI Concurrence – Consommation, March 2013. 

[5] Court of appeal of Paris, November 16th 2023, RG no. 20/03434, see: https://www.autoritedelaconcurrence.fr/sites/default/files/appealsd/2023-12/Arret%20RG%20n°%2020-03434.pdf

[6] French Court of cassation, Commercial Chamber, October 22th 2002, no. 00-18.048, see: https://www.legifrance.gouv.fr/juri/id/JURITEXT000007046213

^[7] French Court of cassation, Commercial Chamber, September 24th 2025, no. 23-13.733, §16: the applicant argued that “[…] thus, the Minister’s consideration of the undertaking constitutes a condition for the exercise of his power to impose a sanction; that, in holding that the Minister had not exceeded his competence in view of the turnover achieved by all of these companies, while attributing the infringement to all the parent companies of the group — from which it followed that the company Santerne was therefore not autonomous and that the ministerial settlement procedure and the subsequent acts were necessarily irregular insofar as the turnover threshold had to be calculated by taking into account all the companies to which the infringement was ultimately attributed — the Court of Appeal, which failed to draw the legal consequences of its own findings, infringed Article L. 464-9 of the French Commercial Code”.

^[8] French Court of cassation, Commercial Chamber, September 24th 2025, no. 23-13.733, §17: the French Supreme Court thus answered that “The fact that the Minister orders a legal entity forming part of an undertaking which, in France, achieved a turnover exceeding 50 million euros during the last closed financial year, to put an end to its anti-competitive practices and proposes to it to enter into a settlement, is not such as to render irregular the referral of the matter to the Competition Authority in the event that this legal entity refuses to settle or fails to fulfil the obligations it has undertaken”.

[9] Alain Ronzano, Appel d’offres : La Cour de cassation rejette le pourvoi contre l’arrêt confirmant pour l’essentiel la décision de l’Autorité de la concurrence sanctionnant une filiale et ses sociétés mères pour des échanges d’informations entre deux candidats ayant envisagé une sous-traitance avant de soumissionner séparément au même appel d’offres (Vinci), 24 septembre 2025, Concurrences no. 9-2025, Art. no. 128820, www.concurrences.com.

[10] R. Amaro, Conséquences de la saisine in rem de l’Autorité en cas de procédure ministérielle préalable pour micro-PAC, 24 octobre 2025, no. 10, Revue Pratique Droit des Affaires, La Base Lextenso.

[11] CJEU, Septembre 11th 2014, Groupement des cartes bancaires, C-67/13.

[12] C. Prieto, Ententes, Synthesis, JCI Europe Traité, Septembre 2023.

[13] D. Bosco, Restriction « par l’objet » : Une histoire sans fin, Contrats – Concurrence – Consommation, no. 6, June 2020.

[14] CJEU, May 19th 2009, Assitur Srl c. Camera di Commercio, Industria, Artigianato e Agricoltura di Milano, C-538/07: this decision affirmed, by interpreting Article 49 of the TFEU on the freedom of establishment, that the automatic exclusion of related companies from the same public tender is disproportionate, unless it is justified by concrete risks to transparency and equal treatment.

[15] CJEU, June 4th 2009, T-Mobile Netherlands, C-8/08.

[16] D. Ferrier, Concurrence – Distribution, Janvier 2014 – Décembre 2014, Dalloz collection, 2015, p. 943.