# C_2017133EN.01000501.xml

| 27.4.2017 | EN | Official Journal of the European Union | C 133/5 |
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27.4.2017

EN

Official Journal of the European Union

C 133/5

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JUDGMENT OF THE COURT

of 22 December 2016

in Case E-3/16

Ski Taxi SA, Follo Taxi SA and Ski Follo Taxidrift AS v The Norwegian Government, represented by the Competition Authority

(Article 53 EEA — Restriction of competition by object — Public procurement — Submission of joint bids through a joint management company)

(2017/C 133/05)

In Case E-3/16, Ski Taxi SA, Follo Taxi SA and Ski Follo Taxidrift AS v the Norwegian Government, represented by the Competition Authority — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Norway (Norges Høyesterett) concerning the interpretation of the Agreement on the European Economic Area, and in particular Article 53 thereof, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 22 December 2016, the operative part of which is as follows:

Norges Høyesterett

| 1. | For an agreement to be regarded as a restriction of competition by object within the meaning of Article 53(1) EEA, it must reveal a sufficient degree of harm to competition. It does not suffice that it is simply capable, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition. |
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1.

For an agreement to be regarded as a restriction of competition by object within the meaning of Article 53(1) EEA, it must reveal a sufficient degree of harm to competition. It does not suffice that it is simply capable, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition.

| 2. | In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part. When determining that context, it is also necessary to take into consideration the nature of the services affected, as well as the real conditions of the functioning and structure of the market or markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Court from taking that factor into account. |
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2.

In order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part. When determining that context, it is also necessary to take into consideration the nature of the services affected, as well as the real conditions of the functioning and structure of the market or markets in question. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Court from taking that factor into account.

| 3. | An agreement reveals a sufficient degree of harm to competition that it may be considered a restriction of competition by object only if its harmful nature is easily identifiable. That assessment cannot go as far as a full examination of its actual or potential effects. Nor can it amount to carrying out an assessment of the pro- and anticompetitive effects and thus to applying a rule of reason. |
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3.

An agreement reveals a sufficient degree of harm to competition that it may be considered a restriction of competition by object only if its harmful nature is easily identifiable. That assessment cannot go as far as a full examination of its actual or potential effects. Nor can it amount to carrying out an assessment of the pro- and anticompetitive effects and thus to applying a rule of reason.

| 4. | In order to determine whether the submission of joint bids through a joint management company reveals a sufficient degree of harm that it may be considered a restriction of competition by object, regard must be had to the substance of the cooperation, its objectives and the economic and legal context of which it forms part. The parties’ intention may also be taken into account, although this is not a necessary factor. |
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4.

In order to determine whether the submission of joint bids through a joint management company reveals a sufficient degree of harm that it may be considered a restriction of competition by object, regard must be had to the substance of the cooperation, its objectives and the economic and legal context of which it forms part. The parties’ intention may also be taken into account, although this is not a necessary factor.

| 5. | Since the submission of joint bids involves price-fixing, which is expressly prohibited by Article 53(1) EEA, consideration of the economic and legal context may be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object. However, such an assessment needs to take into account, albeit in an abridged manner, whether the parties to an agreement are actual or potential competitors and whether the joint setting of the price offered to the contracting authority constitutes an ancillary restraint. |
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5.

Since the submission of joint bids involves price-fixing, which is expressly prohibited by Article 53(1) EEA, consideration of the economic and legal context may be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object. However, such an assessment needs to take into account, albeit in an abridged manner, whether the parties to an agreement are actual or potential competitors and whether the joint setting of the price offered to the contracting authority constitutes an ancillary restraint.

| 6. | While the disclosure of the joint nature of the bids to the contracting authority may be an indication that the parties did not intend to infringe the prohibition on agreements between undertakings, that, in itself, is not a prerequisite for determining whether an agreement may be considered a restriction of competition by object. |
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6.

While the disclosure of the joint nature of the bids to the contracting authority may be an indication that the parties did not intend to infringe the prohibition on agreements between undertakings, that, in itself, is not a prerequisite for determining whether an agreement may be considered a restriction of competition by object.

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