17 March 2021

Recently the Danish Competition and Consumer Authority published new guidelines on joint bidding. The guidelines describe how to assess consortia agreements in the wake of several Nordic cases on cartel infringements in consortia.

Alongside Norway and Lithuania, Denmark is among the countries in Europe with leading case law on the application of competition law on consortia agreements and joint bidding. Thus, the new guidelines on joint bidding from the Danish Competition and Consumer Authority may provide relevant guidance, which can be useful in other jurisdictions as well.

The Road Marking Case

The Danish guidelines has been updated after the Danish Supreme Court passed its judgement in the Road Marking Case. In the case, the Supreme Court stated that a consortium agreement between two companies were illegal under competition rules and revoked a judgement from the Danish Maritime and Commercial High Court. The decisive factor in the Supreme Court’s judgement was that the parties of the consortium agreement were actual competitors and able to bid on subcontracts in the tender individually.

Guidelines with practical advice

The guidelines are based on the new judgement in the Road Making Case as well as several leading cases from the European Court of Justice and the EFTA Court.

The guidelines also give practical advice on the assessment of a consortium agreement in relation to key competition law considerations. Among those are:

  • If the parties to a consortium agreement are actual or potential competitors in relation to the specific contract, competition law applies, and the agreement will be considered an infringement unless specific efficiencies can be proven.
  • Keep sound documentation of the assessments regarding a company’s inability to bid on the specific contract alone, when entering a consortium with a company in the same industry.
  • Limit information exchange to information, which is strictly necessary for the completion of the specific contract that the consortium agreement is established to carry out.

You can read the new Danish guidelines on joint bidding in English here.

By Andreas Christensen and Marie Løvbjerg, Horten, Denmark