Luxembourg Report

Luxembourg does not have a long-standing tradition in competition law enforcement.
Under Luxembourg’s first general act on anticompetitive practices dating back to 1970,
hardly any enforcement action was taken. Also, it took Luxembourg until 2004 to
introduce national equivalents of Articles 101 and 102 TFEU. The enforcement system
established in 2004, was dualistic, based on a strict division between the responsibility
for investigations of competition law infringements (Competition Inspection) on the
one hand and decision-making on the existence of infringements and imposing
sanctions (Competition Council) on the other hand.
In 2011, the dualistic enforcement structure was replaced by a monistic structure
and the rules on the appeal of NCA decisions were reformed. A first-instance appeal
before the Administrative Tribunal and a second-instance appeal before the Administrative
Court remained available. However, changes were made to the nature of the
appeal. Under the 2004 Competition Act, a distinction was made between appeals
against decisions of the Council regarding fines and appeals against other decisions of
the Council. Against decisions imposing a fine, a recours en réformation could be
launched, meaning that the Administrative Tribunal could replace the appealed
decision with its own decision. Against other types of decisions taken by the Council,
a recours en annulation could be brought. In such a case, the Administrative Tribunal
could only confirm or annul the appealed decision and refer it back to the Competition
Council. Both the reform of the enforcement structure and the reform of the appeal
system served to render competition enforcement more effective. Given the evolution
in the number of decisions by the Competition Council and requests for review, this
seems to have worked. Only nine decisions were taken by the Competition Council as
established by the 2004 Competition Act; thirty-eight by the Competition Council as
established by the 2011 Competition Act. All appeals were decided after 2014.
Nevertheless, the number of enforcement decisions and requests remains low.
This is not only the result of the absence of a long-standing competition culture but also
of the limited size of the country.
What is remarkable is that 75% of the appeals concern alleged infringements of
Article 102 TFEU and its national equivalent. The only cartel case that was decided on
during the period under review was triggered by a leniency application.
No grounds of appeal were accepted in the case where the Council had found an
infringement of Article 101 TFEU and its national equivalent. The appeal was fully
rejected.
Where the appeal concerned an alleged infringement of Article 102 TFEU and its
national equivalent, procedural and substantive grounds were successful. In twothirds
of the decisions, the appeal was unsuccessful. Two of those decisions were
first-instance decisions. One decision was a second-instance decision, where the
Administrative Court rejected the appeal, launched by the State/Competition Council
against the first-instance decision by the Administrative Tribunal, which had annulled
the Competition Council’s decision.