The final judgment in the Danish road marking case: marking the path ahead for bidding consortia in public procurement

The Danish Courts ultimately found that the joint bids submitted by the Danish Road Marking Consortium in 2013 and 2014 amounted to a restriction by object, constituting an infringement of Article 101(1) TFEU and Section 6(1) of the Danish Competition Act.<br/><br/>In its judgment, the Danish Eastern High Court found that the consortium agreements constituted cartel arrangements involving coordination of bids, thereby falling within the definition of a cartel under Section 23(3) of the Danish Competition Act.<br/><br/>Notwithstanding the severity of the violations, the Danish Court discharged the penalties, taking into consideration the specific circumstances of the case, including an excusable error regarding the compatibility of the consortium agreements with competition law.<br/><br/>The Danish Road Marking Case contributes to the discussion on the legal framework for assessing bidding consortia. While the Danish court’s competitor assessment aligns with the European Commission’s Horizontal Agreements Guidelines, its classification of the consortium agreements as cartel arrangements involving coordination of bids may diverge from the interpretation under EU competition law.