The German Federal Court of Justice rules on the restriction of competition through vertical agreements in the context of public bids

The German Federal Court of Justice (the “Court”) has ruled in its decision of 25 July 2012 that the organiser of a public tender can violate Sec. 298 (1) of the German Criminal Code (Strafgesetzbuch - “StGB”) by organizing together with participating bidders an offer which is based on an unlawful agreement (i.e. restricting competition through agreements in the context of public bids). In its decision, the Court based its reasoning inter alia on the consideration that Sec. 1 of the German Act against Restraints of Competition (“ARC”) in its version of 1 July 2005, which refers to the prohibition of agreements restricting competition, takes into account not only horizontal agreements but also vertical agreements, such as an agreement between the organiser of a public tender and one of the

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  • Commeo (Frankfurt)

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Isabel Oest, The German Federal Court of Justice rules on the restriction of competition through vertical agreements in the context of public bids , 25 July 2012, e-Competitions July 2012, Art. N° 69339

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