Granting of an advertising concession to a private company

Facts

On August 19, 2014, the Municipality of Lausanne launched a call for tenders to renew the advertising concession on the public and private domain of the municipality. Three companies submitted bids, including A. SA and B. SA. On January 23, 2015, the Municipality awarded the concession to A. SA. B. SA appealed this decision to the Vaud Cantonal Court, which upheld the appeal and awarded the concession to B. SA.

A. SA and the Municipality of Lausanne filed a public law appeal and a subsidiary constitutional appeal to the Federal Tribunal, requesting the reform of the Cantonal Court's judgment.

Considerations

The Federal Tribunal upheld the public law appeals. It considered that the Cantonal Court had made an incorrect application of Article 2 paragraph 7 of the Federal Act on the Domestic Market (LMI) by disregarding the social criteria adopted by the Municipality of Lausanne in favor of A. SA. These social criteria, such as the bonuses offered and the early retirement benefits, could be taken into account by the Municipality without an explicit legal basis, as this was a transfer of a monopoly concession and not a public procurement contract.

The Federal Tribunal…