The case concerned the Danish Road Directorate’s re-procurement of road markings in 3 regions in March 2014. It was possible to tender for individual regions and at an aggregate discount if awarded the contract for several regions. Eurostar Danmark A/S and GVCO A/S (formerly LKF Vejmarkering A/S) decided to join forces as a consortium and tender for the whole contract at an aggregate discount as neither of them had the capacity required to tender for the whole contract and as they assessed that the actual competition was for the whole contract. The consortium won the whole contract submitting the lowest overall price. A competitor filed a complaint with the Danish Competition and Consumer Authority who decided to intervene in the case.
In June 2015, the Danish Competition Council decided that the consortium was unlawful on a par with a classic cartel as the two companies could have tendered separately for individual regions, resulting in fewer tenders. The case was brought before the Danish Competition Appeals Tribunal who affirmed the Danish Competition Council’s decision in April 2016.
The case was then brought before the Maritime and Commercial High Court who quashed the former decisions in August 2018. The court found that a company interested in tendering for the contract but lacking the capacity to tender for the whole contract on its own, only having the capacity for individual districts, could not be barred from participating in a consortium to submit a tender for all the regions as such restriction would not necessarily intensify competition. The court found that the two companies’ capacity calculations showed that they were incapable of tendering for all regions and that the competition authorities had failed to prove that the two companies’ capacity calculations were not fair.
The Competition Council appealed the decision to the Danish Supreme Court who overruled the Maritime and Commercial High Court’s decision in November 2019. The court considered the two companies as competitors as there was no basis for assuming that the competition by virtue of the special discount structure was only for the whole contract. In addition, the court stated that the consortium eliminated competition between the two companies and violated competition law.
Accura represented Eurostar Danmark A/S in the case.