Joint Tendering Under EU Competition Law

Abstract

From a competition law perspective, subcontracting and consortia both constitute joint tendering. Joint tendering comes down to joint selling, which can constitute an infringement of Article 101 if all its other conditions are met. However, not all joint tendering is anti-competitive joint selling. Joint tendering can also be the expression of legitimate cooperation between firms. A joint tender may be the only way for two firms to produce efficiencies that outweigh the competition concerns, or to be able to tender at all. 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 can require a multi-step reasoning drawing on the distinction between competitors and non-competitors (section 2), object and effect restrictions and joint selling versus joint production (section 3). Section 3 also discusses other theories of harm than joint selling, namely exclusivity clauses and spillover information exchanges. Section 4 addresses several common arguments against classifying joint tenders among competitors as restrictions by object, and finds them all unconvincing. Section 5 discusses efficiencies under Article 101(3).