Consortia and Competition Law

The European Commission’s draft revision of the horizontal cooperation guidance published on March 1, 2022, for the first time includes a specific section on the assessment of consortia agreements. Up to now, there has been very limited guidance in case law and in the existing horizontal cooperation guidelines. The article examines the role of consortia in procurement processes (tenders) and in M&A and discusses their assessment under EU competition law, looking at the limited guidance provided by case law and the new draft guidelines. It concludes with practical tips on issues to consider when assessing consortia collaborations. 

By Kyriakos Fountoukakos & Kian O’Connell^[1]

I. INTRODUCTION

Consortia are a regular feature of bidding markets and in mergers and acquisitions (“M&A”). Companies often get together and form a consortium to bid on a particular tender because they have complementary skills or wish to share the risk of a very large project. Companies also often get together to form consortia to bid in M&A situations and own the acquired assets jointly or split the assets post-acquisition.

Even though the EU has for a long time issued guidance on collaboration agreements between competitors, the guidance on collaboration in the context of consortium agreements was minimal: a couple of sentences in the horizontal cooperation guidance.^[2]

Now, for the first time, the EU has published significant new (still draft) guidance on con