Creation of a consortium is not a per se infringement

The High Court (Audiencia Nacional) has quashed a decision from 2016 in which the Spanish Competition Authority ("CNMC") fined Viajes Halcón and Viajes Barceló EUR 1.2 million and EUR 0.6 million respectively, for creating a temporary consortium in order to bid for public tender procedures. The Court explained that the creation of a temporary consortium did not constitute a per se infringement and that any conduct carried out by it would have required an effects analysis. 

In 1998, during the investigation, the companies changed the nature of their collaboration such that it no longer had legal personality. The CNMC became aware of this change. However, the CNMC issued a new decision in 2015 in which it accused the companies of bid-rigging in the period between 1998 and 2014.

This decision was appealed before Spain's High Court, which has ruled that the creation of informal consortium without legal personality does not constitute an infringement of competition "by object" as it does not involve secret and anticompetitive conduct, in contrast with the conduct analysed in the 2000 decision. Therefore, any potential competition law infringements carried out by the consortium could only have constituted effects infringements. However, in order to establish an effects infringement, the CNMC would have been required to carry out an autonomous and independent analysis.

Thus, in ongoing and future cases, the CNMC should not treat the creation of a temporary consortium as a per se infringement and any conduct carried out by it should be analysed from an effects perspective.

With thanks to Irene Valin of Ashurst for her contribution.