Summary

On September 7, 2023, the French Competition Authority (“FCA”) imposed fines totaling €31.2 million on five companies active in the nuclear dismantling sector for colluding on tenders organized by the French Commission for Atomic Energy and Alternative Energies (Commissariat à l’Energie Atomique et aux Energies Alternatives, “CEA”) at a nuclear site in Marcoule, in the South of France.[1]

Background

In September 2018, ONET Group disclosed to the FCA the existence of a cartel in which its subsidiary, OTND, had participated since January 2015 in the dismantling of the Marcoule nuclear plant.  In January 2019, the FCA granted ONET Group, including OTND, full immunity from fines in relation to the reported practices.[2]

In February 2019, based on the information provided by ONET Group, the FCA raided OTND and five other alleged members of the cartel, i.e. Nuvia Process (a Soletranche Freyssinet and Vinci Group subsidiary), ENDEL, BCEN, SNEF, and SPIE Nucléaire (a SPIE Group subsidiary).

The FCA Decision

In its September 2023 decision, the FCA found that the six companies had exchanged commercially sensitive information during tender proceedings organized by the CEA for its Marcoule site.  The FCA identified two subsets of infringements:

  • Infringements relating to a framework agreement.[3]  In January 2015, the CEA launched a tender to set up a three-year framework agreement establishing the terms under which implementing contracts would be awarded during this period.  The FCA found that Nuvia Process and ENDEL had exchanged competitively sensitive information on prices prior to submitting their respective bids.  The FCA also found that, later on, the three companies, as well as a fourth, BCEN, repeatedly exchanged competitively sensitive information, including prices, to allocate the implementing contracts among themselves.[4]
  • Infringements relating to contracts outside the framework agreement.[5]  The FCA found that, between April 2014 and October 2017, OTND, Nuvia Process, BCEN, SNEF, and SPIE Nucléaire exchanged commercially sensitive information during nine other ad hoc tenders to allocate the contracts among themselves.

The FCA considered that, given their nature, purpose and duration, these bid-rigging practices were “by-object” infringements of Article L. 420-1 of the French Commercial Code and Article 101(1) TFEU.  According to the FCA, the cartel was “sophisticated”[6] as the companies closely monitored the contract allocations (via regular status meetings and allocation tracker spreadsheets).  Information was regularly exchanged during in-person meetings or via texts and emails (using both work and personal or family email addresses).[7]  The cartel disrupted the normal course of tendering procedures and constituted a serious breach of economic public policy.[8]

Sanctions imposed

In line with its decision-making practice, the FCA sanctioned the five companies – all but the leniency applicant OTND who benefitted from immunity – directly involved in the cartel, jointly and severally with their parent companies. The fines imposed on Nuvia Process and BCEN were increased by 15% due to repeated infringements, as their parent companies, Vinci Group and Bouygues Group, had committed similar antitrust infringements in the past.[9]  The FCA further increased the fines of ENDEL (+60%), Nuvia Process (+50%) and BCEN (+40%) due to the size and economic power of the group they belong to.[10]  In total, the FCA imposed fines of €31.2 million, split as follows: €13.9 million on Nuvia Process; €11 million on ENDEL; €6.2 million on BCEN; €20,000 on SNEF; and €10,000 on SPIE.[11]   

This Decision confirms that bid-rigging practices for public tenders – such as exchanges of sensitive information – are among the most serious anticompetitive practices and are heavily sanctioned.

[1]              FCA Decision no. 23-D-08 of September 7, 2023, regarding practices implemented in the engineering, maintenance, decommissioning and nuclear waste treatment services sector for nuclear sites (the “Decision”).

[2]              See Article L. 464-2 of the French Commercial Code. Under the French leniency regime, the first undertaking to report an infringement to the FCA is granted full immunity from fines if the leniency requirements are met.  Subsequent leniency applicants may receive a reduced fine depending on their order of arrival and level of cooperation.  For additional details on the French leniency regime, which was revised in 2020 following the implementation of the ECN+ Directive, please see our previous French Competition Law Newsletter of April 2023.

[3]              See Decision, pp. 19-31.

[4]              See Decision, pp. 21-22.

[5]              See Decision, pp. 31-38.

[6]           See Decision, p. 104.

[7]           See Decision, pp. 31, 57 and 104.

[8]           See Decision, pp. 51-52, 104 and 113.

[9]              Vinci and Bouygues had already been sanctioned in 2006 for allocating public tenders in the Ile-de-France region.  See FCA Decision no. 06-D-07 of 21 March 2006 on practices implemented in the public works sector in the Ile-de-France region.

[10]             See Decision, pp. 105-106.

[11]          The fines imposed on SNEF and SPIE are marginal because these two companies only took part in a limited number of infringements relating to contracts outside the framework agreement (respectively 4 and 1 out of the 9 infringements outside the framework agreement identified by the FCA) and only for a limited period of time (less than a month for each of the infringements identified).  Considering the various degrees of involvement, the different times of entry in the market and the disparities in size between the participants, the FCA applied a flat-rate method to set the fines for the infringements relating to contracts outside the framework agreement.  See Decision, pp. 112-117.