The Danish Competition Appeals Tribunal confirms that consortia agreement between two road-contractors was illegal

The tender consisted of three contracts, which each covered a part of Denmark. The tender was organized in such a way that it was possible to submit a bid for just one of the contracts. The DCC had found that the consortium was not objectively necessary to enable the companies to participate in the tender. This was because the parties could individually have submitted a bid for one of the contracts, thereby being actual competitors in the tender. The consortium had as its object to restrict competition since the parties had submitted only one bid and thereby coordinated prices and divided the market between them.  

In its decision, the Danish Competition Appeals Tribunal confirmed that LKF and Eurostar were actual competitors. The fact that the chance of winning potentially could be larger by submitting a bid for all three contracts was part of the normal parameters of competition and did not affect that the parties were competitors. Nor did the experience of other competitors’ behaviour from prior tenders change the fact that the companies in question were competitors. It was therefore not necessary to consider whether the parties individually could have made a bid for all three contracts.

Furthermore, the Danish Competition Appeals Tribunal confirmed that the consortia agreement had as its object the restriction of competition. The fact that the consortium submitted the lowest bid did not document that the price could not have been lower, had there in fact been competition between the parties and other tenderers.

Finally, the Competition Appeals Tribunal found that neither LKF nor Eurostar had lifted the burden of proving that the consortia agreement qualified for exemption under Section 8 of the Danish Act on Competition or Article 101(3) TFEU (efficiency defence).