COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
A temporary grouping of undertakings (consortium) in order to pool the necessary resources for the realization of major works is not unlawful in itself. A grouped bid must however be induced by technical necessity, or to neutralize risk. In effect, the purpose of the setting up the consortium must not have the aim of responding in a concerted manner to calls for tenders when each of the member companies has sufficient stature to present a competitive bid on its own. Competing undertakings may not, for the sole purpose of submitting a single bid, group together in any structure in order to share the market and align their prices.
he existence of structural or capital links between competing bidders (i.e. the same individual being a director of one of the bidders and the CEO of the other) is not sufficient, in the absence of other elements, to establish the existence of an anticompetitive agreement. Undertakings belonging to the same group may submit separate and competing bids as long as they are commercially autonomous and do not engage in concerted action. Where the bids come from a parent company and its subsidiary, the autonomy of each in terms of trading and finance does not preclude a characterization as a cartel if concerted behavior or information exchanges are shown to have taken place. Furthermore, technical or commercial dependency, and/or financial ties between bidding undertakings is sufficient for demonstrating the anticompetitiveness of a cover bid.
