Danish Court: Consortium Agreement and Joint Bidding Permissible under Competition Law

Abstract

The legality of consortium agreements and joint bidding for public contracts under competition law has been a widely debated subject over the past couple of years. On 27 August 2018, the Danish Maritime and Commercial High Court rendered a much anticipated judgment on this subject. The judgment is now under appeal to the Danish Supreme Court. In its judgment, the Court repealed the Danish competition authorities’ decisions in a case regarding a consortium agreement between two companies relating to their joint bid on a public tender for road marking works in Denmark. According to the competition authorities’ decisions, the consortium agreement and the joint bid was a by object infringement of competition law. However, the Danish Maritime and Commercial High Court disagreed and held that the agreement did not infringe competition law. This article sets out the background to the proceedings, summarises the key findings of the court and comments on the legality of consortium agreements and joint bidding for public contracts under competition law.