ARTICLES: EXCLUSIONARY CONDUCT - TENDERS - ORGANISER - APPLICANT COMPANIES

Exclusionary conduct against the applicant companies in tender procedures

Traditionally, exclusionary conduct includes strategies aiming at excluding competitors from the market, the wrongdoer and his victim being in competition. The purpose of this article is to demonstrate that, beside this traditional understanding, competition law also apprehends exclusionary practices targeting non-competitors. This is especially the case of practices of the organiser of a tender procedure whose object or effect is to prevent or limit one or more companies to bid by, for instance, the absence of alottment of the tender procedure or the imposition of injustified technical or legal restrictions. The characterization of such exclusionary practices raises the possibility that competition law may even impose, under specific circumstances, the organization of a call for tender.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. "The traditional category [of exclusionary] abuses includes strategies by which a dominant firm seeks to deter, delay or eliminate competitors by means other than competition on the merits [1]. ” It is thus understood, as the Competition Authority points out, that an undertaking which has committed an abuse of exclusion or participated in a cartel having the same object or effect [2] is necessarily in a competitive relationship with the undertaking which is the victim. It would even be the object of such practices to seek, by means other than competition on the merits, to exclude a competitor from the market. Resulting from a presentation at the Law

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Laurent Ayache, Charlotte Michellet, Exclusionary conduct against the applicant companies in tender procedures, May 2015, Concurrences N° 2-2015, Art. N° 72274, pp. 67-76

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