In 1999 the City of Brussels awarded a tender to JC Decaux for the production, supply, setting up, putting into service, control and maintenance of information boards, bus shelters and advertising boards mainly intended for advertising. The agreement was for a duration of 15 years and contained an exclusivity clause in favour of JC Decaux in relation to similar apparatus that could be used for advertising. In 2006 the agreement was amended to include the setting up and day-to-day management of a network of self-service bicycles available to the public (Cyclocity) for an 8 year period.
Further to a tender issued in March 2008, the Brussels Capital Region (Region) awarded a concession for the setting up of an automatic system for the hiring of bicycles (bicycles concession) to JC Decaux on 13 November 2008.
On the same day, ClearChannel asked the president of the Competition Council to prohibit the awarding of the bicycles concession. It also completed its complaint already lodged in February 2008 against the 1999 agreement between the City of Brussels and JC Decaux. It mainly argued that the amendment in 2006 of the 1999 agreement to include the setting up and day-to-day management of the self-service bicycle network, would have allowed JC Decaux to obtain the bicycles concession awarded by the Region in 2008, therefore there would have been an illegal agreement that allowed JC Decaux to acquire a dominant position that it could then abuse in order to obtain the bicycles concession.
The Auditor did not accept the argument that JC Decaux would have benefited from a competitive advantage during the bicycles concession awarding procedure. This was because the information submitted by the Region indicated that the Region had imposed the requirement that, if JC Decaux was awarded the bicycles concession, it would need to withdraw its network of self-service bicycles that was already installed on the City of Brussels territory as the renting system of Brussels City was not compatible with the bicycles renting system of the Region in terms of bicycle age, colour, brands and infrastructure.
In relation to the concession procedure and the selection criteria used, the Auditor ruled that the tender procedure as well as the Region's decision to award the bicycles concession to JC Decaux were based on open, transparent and non discriminatory criteria known to all tender parties and that there was no indication that JC Decaux would have abused its dominance during the concession procedure.
Finally, with regard to the cumulative requirements that there needed to be a risk of serious, imminent and irreparable harm to the company whose interest is affected in order for the Auditor to be able to grant interim measures, the Auditor ruled that there was no risk of serious harm because the Region had clearly confirmed that it did not intend to use the advertising spaces already granted to ClearChannel and Belgian Posters in the context of the bicycles concession, therefore the request for interim measures was declared unfounded. A similar complaint launched by Belgian Posters on 28 November 2008 was also declared unfounded by the Auditor.