The Spanish Competition Authority ("CNMC") has fined Schneider Electric Spain ("Schneider"), Adasa Sistemas ("Adasa") and DTN Services and Systems Spain ("DTN") a total of EUR 610,000 for organising a bid rigging cartel in the market for the supply and maintenance of weather radars tendered by the National Meteorological Agency ("AEMET"). Furthermore, the CNMC has banned these companies from participating in future public tenders.
| what you need to know - key takeaways |
- This case shows once again the interest of the CNMC and regional authorities in tackling collusion in public tenders.
- It is the fourth time that the CNMC has used its power to ban future public tendering, again leaving the National Consultancy Board for Administrative Contracting to determine the scope and duration of the ban.
- The Catalonian Competition Authority, however, in a similar case, did determine the scope and duration of the ban, showing some divergence with the CNMC in the application of this legal instrument.
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The CNMC fined the companies for sharing among themselves two public contracts tendered by the AEMET in 2014 and 2017 for the supply and maintenance of weather radars:
- In the 2014 public tender (for a value of EUR2.211 billion), the CNMC considered that Adasa and Telvent Energia (now Schneider), instead of competing against each other, agreed to form a temporary consortium (named UTE in Spanish) that submitted the only bid received by the AEMET that therefore awarded the tender to the consortium.
- In the 2017 public tender (for a value of EUR15,730), the CNMC considered that Adasa and DTN (company belonging to Schneider's group) pretended to compete against each other when bidding on the tender, when in fact they had already decided to share it. However, this time, there were also other companies bidding for the contract that was eventually awarded to one of these competitors.
The authority considers that there was no economic rationale nor justification behind these agreements, as demonstrated in internal documents seized during dawn-raids at the infringing companies' premises.
Accordingly, the CNMC fined Adasa, Schneider and DTN EUR450,000, EUR110,000 and EUR50,000, respectively. Furthermore, the CNMC imposed a ban on the infringers from submitting public tenders in the future, with the scope and duration to be determined by the National Consultancy Board for Administrative Contracting (as has been the case in previous decisions in which the CNMC has made use of this legal instrument to prosecute cartels).
The case came to light through the Catalan Competition Authority ("ACCO"), which took a decision in a similar case in Catalonia in January 2020 and informed the CNMC of the possible participation of the companies in other cartels at national level.
It is interesting to note that the ACCO sanctioned Adasa and MCV with fines of EUR764,506.5 and EUR154,199.13, which are significantly higher of the ones imposed by the CNMC. Moreover, it imposed personal fines on the directors of both companies and decided to ban the companies from submitting public tenders in the future, and determined the scope and duration of such ban (which the CNMC has not done to date).
This case shows once again the interest of the CNMC and regional authorities in addressing collusion in public tenders (see examples here and here), while it also evidences some divergence between them in the use of new legal tools to deter anticompetitive conducts in the market, such as the ban from submitting public tenders, and in the amount of the fines.
With thanks to Ana Soria of Ashurst for her contribution.
