On 27 November 2019, the Danish Supreme Court delivered its judgment in the expected ''Road marking case'', deciding that two undertakings had infringed the Danish Competition Act by submitting joint bids for a project for the Danish Road Directorate in 2014.
In February 2014, the Danish Road Directorate called for tenders regarding road marking in three districts of Denmark; South Denmark, Zealand and the Capital area. The two major road marking undertakings decided to submit a joint bid through a consortium for all three contracts. The consortium was awarded the contract with the overall lowest price for all three contracts.
The Danish Supreme Court found that the members of the consortium were competitors because the two undertakings each had the capacity to submit bids on a separate basis on one or more of the districts.
Furthermore, the Danish Supreme Court found that the consortium agreement had the object of restricting competition. In essence, this was due to the fact that the consortium agreement concerned the provision of individual services through a joint bid based on a prior allocation of the three districts, which ultimately eliminated the competition between the two undertakings. In addition, the consortium agreement did not foster any synergies in the cooperation between the members of the consortium in the performance of the contract.
Consequently, the Danish Supreme Court concluded that the consortium had infringed Article 6 of the Danish Competition Act and TEUF Article 101(1).
For more information, please refer to the decision from the Danish Supreme Court available in Danish here