Konsortiers anvendelse af strategisk kontrahering for opnåelse af effektivitetgevinster, jf. art. 101, stk. 3 TEUF

Abstract

The thesis examines what legal arguments can be included when the European Court of Justice (ECJ) should determine whether a joint bidding can be exempted from anticompetitive behavior following article 101(3) TEUF. The thesis analyses how the legal system views competitors and when two parties can be seen as actual as well as potential competitors within the context of public procurement. This is often a question of whether the cooperation parties have the capacity themselves to deliver on a public tender. Furthermore, it is examined if a consortium can be seen as anticompetitive and therefore is within the scope of article 101(1) TEUF. Bidding consortia often involves price coordination which constitutes a hardcore restriction on competition. Agreements containing such restrictions generally has as its object to limit competition. It can be established that as a result of price fixing consortia are often within the scope of article 101(1) TEUF. Bidding consortia may have to use the exemption within article 101(3) TEUF to form the consortium. The thesis includes economic tools that could lead to an exemption. This is strategic alliances where the cooperating companies take actions such as combining the complementary resources within the companies. A combination of such resources, such as knowhow, can lead to relational rent which is an additional value that can only be obtained by combining the two companies’ resources. Additionally, risk sharing between the cooperating parties is examined and found to be a key component for the possibility of creating relational rent. The additional value can be seen in the development of new products, cost savings, etc. Lastly the thesis examines if relational rent can be used as a legal argument for exemption under article 101(3) TEUF. This is done to establish what arguments the ECJ would exercise when determining whether a consortium can use the exemption. It is seen from case law that arguments such as combining complementary resources to develop something not possible otherwise, cost savings and a sharing of financial risk resulting from the development can be used as argument