Decision of the Higher Court of Justice of Galicia, March 10th, 2023, (Roj: STSJ GAL 1418/2023 – ECLI:ES:TSJGAL:2023:1418), Spain
Article(s) in Directive 2014/24/EU: Art. 18; Art. 57(4)(d)
Topic: Principle of competition
Member State: Spain
Court/rev. board: Higher Court of Justice of Galicia
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Principle of competition mentioned in Art. 18. of Directive 2014/24/EU is declared applicable to public procurement in Spain by Arts. 1, 132 or 150 of the Law 9/2017, of November 8, on Public Sector Contracts (hereinafter, LCSP). Moreover, the content of Art. 57 of Directive 2014/24/EU is implemented by Art. 71 of LCSP.
2. FACTS
The Judgment of the Superior Court of Justice of Galicia upholds an appeal filed by a transport company against a decision of the Competition Authority of Galicia that did not open a procedure to investigate or analyze an alleged collusion in a contracting procedure. The judgement orders the Regional Competition Authority to investigate whether, in the bidding for twenty-nine road passenger transport concessions, two companies competed in a joint venture when they could compete independently, there being reasonable evidence of the existence of a collusive agreement between them.
3. JUDGMENT
The Court severely criticizes the attitude of the regional competition authority on deciding to close the file without analyzing the evidence presented. The Court holds that the work of the Regional Competition Authority was insufficient by failing to investigate the issues raised by the complaints. It considers that the Regional Competition Authority kept the file open for one year and nine months, and, ultimately, filed the case without carrying out any diligence, such as dawn raids that it engaged in even at the private homes of the managers.
The Court argues that the fact that two companies competed in a joint venture only for five out of the twenty-nine lots into which the concession contract was divided into (four of them the most important ones) and without competing separately for any of the other twenty-four lots, is not justified according to the rules of logic and the guidelines of experience, as a “chance” (case); but it must be considered as a “causality” (cause) of a prior collusive agreement. The Court also stated that there is a well-founded suspicion or rational evidence of a collusive agreement in the shape of market sharing.
Due to the foregoing, it upholds the appeal and orders the Regional Competition Authority to open a disciplinary file against the two companies for strong and steady evidence of collusion (market sharing).
