JUDGMENT OF THE COURT
of 22 December 2016
in Case E-3/16
Ski T axi 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 T axi SA, Follo Taxi SA and Ski Follo Taxidrift AS v the N orwegian Government, represented by the 
Competition Authority — REQUEST to the Court under Article 34  of t he Agreement between the EFTA States on the 
Establishment of a Sur veillance  A uthority and a Cour t  of Justice b y the Supreme Court of Norway (Norges Høy esterett ) 
concer
ning the interpretation of the Agreement on the European Economic Area, and in particular Article 53  t hereof, 
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:
1.For an agreement to be regarded as a restriction of competition by object within the meaning of Article 53(1)  EEA, it 
mus
t reveal a sufficient degree of harm to competition. It does not suffice that it is simply capable, having regard to 
t
he specific legal and economic context, of resulting in the prevention, restriction or distortion of competition.
2.In or der to determine whether an agreement between undertakings or a decision b y 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 t
he 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 struc­
ture of the market or markets in question. In addition, although the parties’ intention is not a necessary f actor 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 ag reement reveals a sufficient deg ree of harm to competition that it may be considered a restriction of com peti­
tion by object only if its harmful nature is easily identifiable. That assessment cannot go as far as a full e xamination 
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 
deg
ree of harm that it may be considered a restriction of competition by object, regard must be had to the substance 
of t
he 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, consider­
ation of t
he economic and legal context may be limited to what is strictly necessary in order to establish the exis­
tence of a restriction of competition by object. However, such an assessment needs to take into account, albeit in an 
abr
idged 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 
de
termining whether an agreement may be considered a restriction of competition by object.27.4.2017 EN Official Journal of the European Union C 133/5