Reinforcement Of The Competition Council - Law Of 23 October 2011 On Competition

Considering the new leverages which the Law confers to the Council, it seems that the legislator has approached a new level of competition enforcement, resulting in an increase in efficiency of the individual procedure as well as the tightening of the implementation of competition rules.

It is now possible for the Council to seize itself in competition matters; the delays between the seizure and the judgment will be considerably reduced.

Although the new standards ensure the rationalisation of the Competition authority and will be beneficial to the economy, the companies will have to face new hurdles, such as how to adopt an adequate solution in order to cope with the pressure evolving from the Council. The companies shall, therefore, develop strategies, such as evaluating of their own situation and thinking about how to handle situations like the potential arrival of a Council commissioner at their premises or how to draft a correct response towards a letter of information.

The Law of 23 October 20111 (The "Law") entered into force on 1 February 2012 and abrogated the laws of 11 March 2004 and 17 May 2004 on competition.

Indeed, the Law confirms:

The main principles of competition law; The cartel prohibition listed in its article 3; and The prohibition of abuse of dominant position listed in its article 5. A modification appeared to be necessary in order to reinforce the authority of the Competition Council and to extend its prerogatives.

The reform mainly reorganises the Luxembourgish competition authorities by merging the competition inspectorate (Inspection de la concurrence) with the Competition Council (Conseil de la concurrence), thus making one sole competent authority having both investigative and decision-making powers.

In fact, in governance of the law of 17 May 2004, the competition inspectorate was in charge of investigating any violation of the competition law; whereas, the Competition Council, which is an AAI (autorité administrative indépendante), had the power to sanction the infringements and make decisions.

Another principle of the Law is the extension of the powers and duties of the Competition Council (I).

The mission field of the Competition Council now expressly includes issuing opinions on draft laws and regulations. Further, it may conduct sector inquiries and define market circumstances which suggest that competition is restricted or distorted.

The Law also provides an amendment of procedural rules (II) aimed at...