Participation of Related Undertakings in the Same Tendering Procedure: Is the Principle of Competition Infringed? (C-144/17 Lloyd’s of London v Arpacal)

Abstract

On February 8, 2018, the European Court of Justice (“ECJ”) delivered its judgment on whether the principles of transparency, equal treatment and non-discrimination preclude national legislation which allows the simultaneous participation in the same tendering procedure of several syndicates of Lloyd’s of London, whose tenders are signed by a single person. The case is interesting primarily because of its practical implications for contracting authorities that have an interest in excluding candidates or tenderers in case of potential intra-group collusion. In other words, this case will have an impact on the exposure of contracting authorities to bid rigging, which is a very deliberate breach of the law that involves the overpaying of tax payers’ funds and raises prices artificially between 6 and 48 per cent above the competitive level.1 Additionally, the Lloyd’s of London v Arpacal judgment clarifies whether the participation of related undertakings in a common tendering procedure for the award of a public contract is a reason or not for their automatic exclusion from the call for tenders.