ARTICLES: JOINT TENDERING - ANTI-COMPETITIVE JOINT SELLING - OBJECT RESTRICTIONS - EFFECT RESTRICTIONS - EXCLUSIVITY CLAUSE - EXCHANGE OF INFORMATION - EFFICIENCIES

Joint tendering under EU competition law

This article seeks (a) to draw the line between legitimate joint tendering and joint tendering which is actually anti-competitive joint selling, and (b) to draw attention to other theories of harm than joint selling in the area of joint tendering. The EU competition law assessment of joint selling draws on the distinction between competitors and non-competitors, “object” and “effect” restrictions and joint selling versus joint production. Other theories of harm than joint selling include exclusivity clauses and “spillover” information exchanges. This article also addresses several common arguments against classifying joint tenders among competitors as restrictions by object, and finds them all unconvincing. Finally, this article discusses efficiencies under Article 101(3) in the context of joint tendering.

1. Cartels are the worst form of anti-competitive agreements, as they are usually harmful, devoid of efficiencies, and secret. According to standard definitions of cartels, bid-rigging is a type of cartel behaviour. [1] In some Member States, bid-rigging in a public procurement context can lead to criminal prosecution of individuals, while other cartel offences cannot. 2. The term “cartel” entails legal consequences as a matter of EU law. Mainly, (a) only cartels are eligible for the settlement procedure; (b) only secret cartels are eligible for the leniency procedure; (c) cartels are not eligible for the commitment procedure; [2] and (d) according to Article 17(2) of the Damages Directive, “it shall be presumed that cartel infringements cause harm,” although “the infringer shall have

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Author

  • DG COMP (Brussels)

Quotation

Cyril Ritter, Joint tendering under EU competition law, May 2017, Concurrences Review N° 2-2017, Art. N° 84019, pp.60-69

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