Support from colleagues or anti-trust trap?

Supply associations are important for the concrete and prefabricated concrete industry, whenever companies participate in a bidding or realize projects with a considerable volume. From 2015 the German federal anti-trust authority has set up constantly stricter rules for supply associations to be legal under the prohibition of cartels.

The legal frame for the foundation of supply associations is formed by the prohibition of cartels. Therefore agreements in restraint of trade are principally illegal. But agreements in restraint of trade are a subject of every supply association between competitors, as the competitors will have to agree upon their contributions to the association and upon the price set in respect of the customer.

Therefore supply associations need a legal justification. The German federal court of justice is more open-minded and accepts the formation of supply associations for economical or technical reasons, for instance because the capacities of the companies involved are restricted. On the other hand the federal anti-trust authority accepts supply associations only in cases, in which the participants are not solely able to realize the project. To justify this result the authority refers to the possibility to buy goods and services from competitors, if the own capacity is exhausted or technical defaults occur.

Special risks may realize when companies participate in a bidding. If a supply association in a bidding has proved to be not legal, the exclusion from the bidding may be the consequence. An exclusion may also be at stake, if a supply association has been formed after the period for the submission of the order or the period for the participation in the bidding has expired.

At the end of the lecture practical questions will be discussed, as for instance the requirements for a documentation of the legal justification of the supply association.