The Committee on Budgetary Implementation meets this Monday at 2pm to take another look at the Court of Auditors' report on expenditure on large-scale testing. This report follows on from the same committee's referral to the institution in 2021, notably concerning the provisions of its call for tenders and its financing.

By its very nature, this report does not comment on the substance--i.e., the appropriateness of having deployed a large-scale testing system in the midst of the covid crisis--but on the form. In other words, whether the budget appropriations voted were respected, whether the rules governing public procurement were complied with and whether the results of the contracts awarded were satisfactory. And on these points, the Cour des Comptes (Court of Auditors) is not soft on the subject in its report, which is available.

In addition, the representatives of the Court of Auditors complained to the committee about the difficulties encountered in their analysis. In fact, the report was presented in February 2025, almost five years after the end of the large-scale testing scheme. Not least because "many of the documents and supporting evidence were provided late and in a form that made them difficult to use", they told MPs.

Commission chairman  (LSAP) put these criticisms into perspective. In his view, the Court of Auditors' report "largely ignores the context". For Fayot, who was minister for the economy at the time, "we have the impression that the procedure is being judged as it might have been under normal circumstances. This is leading to somewhat aberrant conclusions. Like on the question of over-commitment of capacities. I was at the heart of the cyclone. We were in the unknown and in an absolute hurry to find a service provider. I have the impression that this report is a bit out of touch, because it is disconnected from the context on many points. It was an absolute crisis. We did everything necessary at every level.”

A first phase in its infancy

However, the Court of Auditors is no soft touch.

On 24 February, discussions focused on the first phase of the scheme. As a reminder, the first phase ran from 27 April 2020 to 15 September of the same year. Phase two opened the following day and ran until 24 March 2021. Phase three ran from 25 March 2021 to 15 September 2021.

For the first phase, the court highlighted several irregularities. In order, there was "a lack of written procedures in many cases", "a lack of documents or supporting evidence" and "substantial shortcomings in terms of public procurement". The first phase of large-scale testing was originally a research project initiated by the Luxembourg Institute of Health (LIH). Testing was based on invitations to a selected target population. But the results of these tests were also used for diagnostic purposes by the health department, which decided to place positive cases in isolation and on sick leave. So, legally speaking, the tests had to be carried out by a health laboratory. The LIH was not. The LIH then commissioned Laboratoires Réunis Luxembourgeois (LRL), without anyone really knowing why. No prior bid, invitation to tender or specifications had been published on the grounds of a "pressing health emergency". LRL subsequently called in subcontractors: Santé et Services, which was responsible for logistics, Ecolog, which was responsible for recruiting nurses, and CTIE, which was responsible for invitations and sampling procedures.

Another problem was the choice of reagent. The choice fell to the High Commission for National Protection (HCPN), which chose a reagent from FTD. A reagent that did not have the mandatory CE mark at the time--it obtained it a few weeks later--and which, more seriously, had been withdrawn from the market in January 2020 for quality defects! The troubling fact is that LTD belonged to the Luxembourg Institute of Health until 2017, when it was sold to the Siemens group.

Prevarication? Culpable cronyism? The case has been before the courts since 2021 on behalf of Bionext, which was effectively excluded from the LST and estimates its losses at "several tens of millions of euros".

A trial for incompetence? No, says Fayot, referring to the OECD's assessment of Luxembourg's crisis management. "The LST has made it possible to minimise the effect of the crisis on the economy and on education, and has allowed a more rapid exit from the restrictions linked to the lockdown.

One, two, three...

This "trial" will continue on Monday. MPs will consider phases two and three. At this point, the health department will take over again, with the Luxembourg Institute of Health withdrawing. This time, a call for tenders for phase 2 will be drawn up. As a result, it was inevitable that the players involved in phase 1 would be reappointed. Only LRL will submit a dossier. But it didn't! As a result, the invitation to tender was transformed into a negotiated contract by the health department. A contract that would help to eliminate all of LRL's competitors. At least, that's what the competitors argued. The health department, for its part, is invoking a "pressing emergency" and "a lack of competition" to justify a method that will be used again for the third phase. The matter has now been referred to the courts for a ruling.

What did MP  (Piraten) take away from the meeting on 24 February? He said he was "shocked by the nonchalance of decision-makers with regard to the rules on public contracts". "Look at the third phase: the decision to renew the contract was taken in January and in March they launched a non-competitive contract, knowing full well that there were candidates other than the one who already had the contract. As far as the first phase is concerned, I have no criticism whatsoever. It's normal that mistakes were made. We were in a panic. For the second phase, we were still in the dark. I agree. But for the third phase, the choice was deliberately made to stay the course of previous decisions, whatever the cost".

Between nonchalance and dishonesty, Clement is refusing to take the plunge and give an opinion until the courts have ruled. It’s a reservation that some members of the commission did not have on 24 February, when they accused members of the health department by name.

Choosing a rapporteur: a complicated political decision

Unless a third meeting is necessary, the MPs will appoint a rapporteur. The rapporteur will have to report on the Court of Auditors' report.

And the choice of rapporteur will not be an insignificant one. It is traditional within the Budget Implementation Committee for the rapporteur to be chosen from the ranks of the opposition. But most of today's opposition--the LSAP and the Greens--were in the previous government. The health ministry--on the front line--was held by the Socialists, having succeeded , who resigned from the government on 4 February 2020. had held this post from 2013 to 2018 and before her from 2004 to 2013. The DP is keeping a low profile, with the notable exception of , who is highly critical of the management of the health crisis. "A personal grudge against certain members of the commission". However, some members of the commission would like to see the post of rapporteur fall to him. As for the CSV, in coalition with the DP of , the former prime minister, will he want to take up the post? We will know more late on Monday afternoon.

The report drawn up by the successful candidate will not in itself be a political report in the primary sense of the term. It will be a faithful record of the exchanges between the members of the committee. It is not for the commission to decide on the political appropriateness of a measure.

What happens after the report? It will be up to the commission to decide whether a plenary debate is warranted. For Fayot, this seems the likely outcome. "You only have to look at what people are saying to understand that. The presentation of his report to the plenary session will then give rise to debate. Debates during which the political dimension will inevitably resurface. Apart from the question of possible collusion, another subject could well come up: the health effectiveness of the system. The combination of the choice of FTD reagent, pharyngeal sampling, the use of the pooling technique to process results--a technique prohibited in Luxembourg under the Grand Ducal Regulation of 27 May 2004--and the use of sampling kits distributed by ABL--four major sources of lack of sensitivity according to experts--meant that the LST contributed to only around 10% of positive cases being detected. This resulted in a large volume of false negatives, which by their very nature are difficult to estimate.

The Budget Implementation Committee can also issue recommendations to draw lessons from the case in question and put in place safeguards to prevent the errors highlighted from being repeated. These recommendations may give rise to legislative initiatives. Clement does have one idea: to create a coordination unit between ministries for the award of major public contracts. "We wonder why the ministry with the most experience--the ministry of mobility, public buildings and public works, as it was then called-- did not support the ministry of health. When it comes to public procurement, the ministries work in silos, to the detriment of the quality of the contracts they can award. Especially in times of crisis.

The courts have yet to rule on the merits of the case.

This article was originally published in .