Subcontracting exclusive, "Bid rigging" and competition


Exclusive subcontracting may violate the Act Antitrust.

However, to declare invalidity of that exclusivity clause, it is necessary that the parties claiming when we are in civil litigation.

The Third Section of the Audiencia Provincial de Burgos has solved one of these cases in Case 23 June 2016.

The company "Conal Technology S.L." (hereinafter "Conal") It was contracted to build a juice factory and concentrated in Fraga, by the company "Juices Catalano Aragoneses" ("Zucasa"). The contract "turnkey" amounted to € 6,900,000 plus VAT. In turn "Conal" outsourced the assembly of the elements of the installation to the company "Group of Companies, automations, Montages and Services " (“AMS”).

The contract between Conal and AMS included a exclusivity clause why AMS undertook not to do any work to expand the facility, new facilities or modifications to existing Zucasa directly without the intermediation of Conal. If AMS received any inquiry or RFQ, should refer you to Conal. And AMS undertook to pay the 30% of the amounts received from Zucasa by way of damages for breach of such exclusivity clause.

When they finished the work of the first installation, Zucasa decided to develop a second phase, for which, AMS hired directly to the assembly plant amounting to € 2,135,000 plus VAT. Conal claimed his 30% plus VAT of this amount.

The Court of First Instance in Case Burgos 31 July 2015 estimated demand for "Conal" against "AMS", and stated that the defendant had breached the exclusivity pact and therefore ordered him to pay the 30% than overcharged "Zucasa", with imposition of costs. He not entered assess the possible illegality by violating the rules of competition. He considered that the exclusivity clause was covered by the principle of contractual freedom Article 1255 Civil Code.

"AMS" appealed to the Provincial Court. The section, dismissed the appeal and confirmed the judgment of first instance.

The dispute arose between the parties, arguing, essentially, whether the exclusivity clause concerned only the first phase or also to future contracts. The Court rejects the allegations of AMS.

However, He tells the defendant, that He could have defended himself using the route of the Law on Protection of Competition and requesting the annulment of the clause.
Is a clause "bid rigging" ("Bid rigging" in English): One of the potential bidders reached an agreement to refrain from making an offer based on the advantages offered by its direct competitor: Purchaser is hurt (who loses one of its potential suppliers) and market efficiency.

These agreements come prohibited by Article 1.1 Act 15/2007 Defense of Competition. And article 1.2 is said to They are automatically void agreements, decisions and recommendations, It is prohibited in paragraph 1, not they are covered by the exemptions in the Act.
Ultimately, the defendant could have saved a succulent figure, alleging the invalidity of that exclusivity clause. However, neither party referred to that fact and being in civil matters, the Court can not act on its own.

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