Joint Bidding and Object Restrictions of Competition: The EFTA Court’s Take in the Taxi Case

Abstract

On December 22, 2016, the EFTA Court handed its Advisory Opinion in Ski Taxi SA, Follo Taxi SA og Ski Follo Taxidrift AS v Staten v/Konkurransetilsynet. In this case, the EFTA Court dealt with a preliminary question concerning the applicable test to determine whether a joint bid for a public contract constitutes an object restriction of competition under Section 10 of the Norwegian Competition Law, corresponding to Article 53 EEA – the equivalent to Article 101 TFEU. The Opinion discusses three issues. Firstly, it confirmed that for a conduct to qualify as an object restriction of competition it must reveal a sufficient degree of harm as determined by a limited context assessment, and be capable of having some market impact. Also, the ‘object’ concept must be given a restrictive interpretation – adding that this is only applicable for conducts “easily identifiable, in the light of experience and economics”. Thus, it is not sufficient that the conduct is simply capable of resulting in the prevention, restriction or distortion of competition. To constitute an object restriction a conduct must both reveal a sufficient degree of harm and be capable of having some market impact. Secondly, the EFTA Court offered guidance whether the submission of joint bids may restrict competition by object as a type of price fixing. To assess this, regard must be had to the nature of the cooperation, its objectives and its economic and legal context. Additionally, it must be determined if the parties are actual or potential competitors and whether the joint price setting may constitute an ancillary restraint with respect to a wider not anticompetitive operation. Lastly, it found that, although openly submitting a joint tender may reveal a lack of an anticompetitive intention, this is in itself not a prerequisite for determining whether an agreement restricts competition by its object.