In an informal assessment, the Netherlands Authority for Consumers and Markets (ACM) concluded that a proposed joint bid by two developers in tenders for the development of offshore wind farms does not have the object or effect of restricting competition. Although the parties concerned could, in theory, submit bids independently, competition law allows, under certain circumstances, for a joint bid that may be more competitive.
Background
On 6 October 2026, the ACM published its informal assessment of a proposed cooperation between two offshore wind farm developers. The parties involved wish to submit a joint bid for one or both of the tenders for IJmuiden Ver Gamma-A and Gamma-B. If awarded the contract, they also intend to jointly develop and operate the wind farm in question, with each party assuming equal responsibility and ownership. According to the party that requested the assessment (the applicant), by sharing financial, investment and construction risks, the parties can submit a more competitive and reliable bid and increase the likelihood of successful and timely completion.
The ACM states that it is assessing the initiative in accordance with its Policy Rule on ACM Supervision of Sustainability Agreements of 4 October 2023. For the purposes of applying the prohibition on cartels, this policy rule is aligned with the European Commission’s Guidelines on Horizontal Cooperation Agreements (the Horizontal Cooperation Guidelines).
ACM’s assessment is informal and is based on the information provided by the applicant and the expected market conditions. On that basis, ACM does not consider it plausible that the initiative is intended to, or will result in, a restriction of competition. However, this assessment does not constitute a formal decision ‘approving’ the cooperation.
Legal framework and assessment steps
A joint bid by undertakings that are actual or potential competitors must be assessed under Article 6(1) of the Dutch Competition Act (Mw) and – where trade between Member States may be appreciably affected – Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). In its Horizontal Cooperation Guidelines, the Commission discusses bidding consortia – whereby undertakings submit a joint bid in response to a call for tenders – separately in the chapter on commercialisation agreements. In doing so, it distinguishes between situations in which the undertakings concerned could each participate in the tender independently and situations in which they are only able to submit a bid jointly.
Where, without the cooperation, the undertakings would not each be able to participate in the tender independently, they are, in principle, not regarded as competitors in relation to that tender. After all, their cooperation does not in that case eliminate competition that would have existed without the cooperation. However, if they could in theory each tender separately, this does not automatically mean that a joint bid is prohibited. Even in such cases, an assessment must be made, based on the content and objectives of the agreements and their legal and economic context, as to whether the cooperation restricts competition by object or effect. In practice, this assessment can be carried out in four successive steps. The analysis must be conducted on a tender-by-tender basis and in light of the specific circumstances. For its informal assessment, the ACM assumes that the circumstances for both tenders are comparable.
Determining whether the parties are actual or potential competitors
The first question is how the parties would likely behave in the absence of the cooperation. If each of them is able and willing to submit a credible bid independently, then they are, in principle, competitors, and a joint bid may remove competitive pressure between them. However, the mere fact that the parties can formally or technically meet the tender requirements does not necessarily mean that each of them also has a realistic economic opportunity and incentive to submit a competitive bid independently. Factors such as their size and capabilities, the financial risk and the required investments, their current and foreseeable capacity, and the other projects in their portfolio may be relevant in this regard.
In this case, the developers concerned are apparently each capable, in theory, of submitting a bid independently. However, due to market conditions and the scale, costs and risks of the projects, the applicant does not expect to be able to submit a competitive bid independently. Nevertheless, the applicant asks ACM to base its assessment on potential competition.
This brings the key question into sharp focus: can a joint bid also be permissible where, in theory, the parties could each submit a bid independently? The subsequent steps show that this is indeed possible under certain circumstances.
Analysing whether the cooperation has the effect of restricting competition
The fact that the parties are competitors does not automatically mean that their joint bid is prohibited. It must first be examined whether the cooperation is, by its very nature, so harmful to competition that it falls under the prohibition on cartels for that reason alone. In this regard, it is not only the objective stated by the parties that is relevant. Consideration must also be given to the content and objectives of the agreements and to the legal and economic context in which they are made. Agreements which in reality amount to price-fixing, market or customer sharing, or a restriction of supply may, by their very nature, be restrictive of competition. This also applies to a joint tender.
In this case, the ACM does not consider a restriction by object to be plausible. In this regard, it draws particular attention to four interrelated circumstances:
- Purpose and content: the cooperation is not limited to coordinating bidding behaviour. If the contract is awarded, the parties will actually develop and manage the wind farm jointly. Sharing risks and combining complementary resources, experience and capabilities may enable a more competitive and reliable bid and better execution.
- Transparency: the joint bid is public and, according to the information provided, does not exhibit the characteristics of covert coordination or manipulation of the tender process.
- Limited scope: this concerns an ad hoc collaboration for one or two specifically defined tenders. There are no agreements regarding future tenders.
- Remaining competition: the applicant and the tendering authority expected a sufficient number of independent bids, whilst the ACM does not expect the parties to be each other’s closest competitors.
Taken together, these factors mean that, in ACM’s view, it is not plausible that the collaboration is aimed solely at eliminating a single bid. Rather, the proposed collaboration is aimed at the actual joint development and implementation of a large-scale project. This offers undertakings practical scope. However, the circumstances mentioned do not constitute an exhaustive checklist. Whether a joint bid has an anti-competitive object remains dependent on the precise arrangements and the context of the tender in question.
Assessing whether the collaboration is likely to have appreciable anti-competitive effects
This does not, however, conclude the analysis. Even a collaboration that is not intended to restrict competition may fall under the prohibition on cartels if, in practice, it is expected to have appreciable negative effects on competition. Factors relevant to this include the market position of the parties, the competitive structure, the characteristics of the tender process and the difference compared with the likely scenario without collaboration. In other words: what level of competition would likely exist without the joint bid, and how much competitive pressure remains after the cooperation?
For commercialisation agreements between competitors, the Horizontal Cooperation Guidelines specify a joint market share threshold of 15 per cent. Below this threshold, anti-competitive effects are, in principle, not considered likely. As bidding consortia are dealt with separately in this chapter, this threshold may also serve as a relevant point of reference in the case of a joint tender. However, the threshold is not a general safe harbour. It does not apply where the cooperation has an anti-competitive effect, nor does it replace the specific assessment of the tender in question, the position of the parties and the likely scenario in the absence of the cooperation. Furthermore, a market share can only be meaningfully determined once the relevant product and geographic market has been defined. According to the (recently revised) European Commission Notice on the definition of the relevant market, the purpose of this definition is to identify the actual and immediate competitive pressure on undertakings. In this regard, demand-side and, where relevant, supply-side substitution are central.
In this informal assessment, the ACM has not conducted its own detailed market research and does not consider a precise market definition to be necessary for its conclusion. In this regard, it refers to the other circumstances of the case and to the uncertainties inherent in the bidding process and the assessment of possible consequences. On the basis of the information provided to it, ACM sees no indications in this case of appreciable anti-competitive effects. However, undertakings cannot infer from this that market definition can generally be omitted in the case of joint bids. They will have to substantiate for themselves, on the basis of the available data, which market or markets are plausible, what positions they occupy within them, which other bidders may exert competitive pressure, and how competition would likely develop in the absence of the cooperation.
Only in the event of a restriction: assessment against the exception
As the ACM considers neither a restriction by object nor appreciable anti-competitive effects to be plausible, it does not specifically address the question of whether this cooperation meets the conditions for an individual exemption from the prohibition on cartels (Article 6(3) of the Competition Act and Article 101(3) of the TFEU). After all, this is only relevant if the cooperation falls, in principle, under the prohibition on cartels. The undertakings concerned must then demonstrate that the cooperation yields objective efficiency gains, is indispensable to achieving those gains, affords customers a fair share of the benefits, and does not afford the possibility of eliminating competition in respect of a substantial part of the products concerned. Incidentally, the ACM does provide some guidance that can be used if it is necessary to rely on an individual exemption.
Additional points for consideration
Exchange of information
A joint bid may require the exchange of competitively sensitive information. According to the Horizontal Cooperation Guidelines and ACM’s assessment, such information exchange must be limited to what is objectively necessary and proportionate for the preparation and execution of the joint bid. It is therefore advisable to clearly set out in advance what information may be shared, by whom and for what purpose. Depending on the circumstances, an information protocol or a ‘clean team’ may be used for this purpose. This can also help prevent a party that withdraws from the cooperation from having received information that could influence its subsequent market behaviour or an independent bid.
Merger control
The assessment under the prohibition of cartels is separate from the question of whether the cooperation constitutes a merger at any given time. Under European and Dutch competition rules, a jointly controlled undertaking constitutes a merger where it performs, on a lasting basis, all the functions of an autonomous economic entity. Factors relevant to this include a lasting operational character, its own day-to-day management, and sufficient resources, staff and assets. The point at which these conditions are met may shift in the case of a tender arrangement. As long as a decision by a third party that is essential for the commencement of business activities – such as the award of a public contract – is still pending, it remains unclear whether the joint venture will actually become operational. According to the European Commission’s Consolidated Notice on Jurisdictional Issues, a joint venture cannot yet be regarded as performing its economic functions on a lasting basis at that stage. This may change as soon as the contract is awarded to the joint venture. The uncertainty regarding the joint venture becoming operational is then removed, and a concentration may arise at that point.
It must then be assessed separately whether the applicable European and Dutch turnover thresholds are exceeded and whether notification under merger control is required. In practical terms, this means that the parties must not only assess compliance with the prohibition on cartels before submitting the joint bid, but must also reassess, either prior to or immediately after the contract is awarded, whether the operational structure now constitutes a full-function joint venture and falls under merger control. If the joint venture remains non-full-function even after the contract has been awarded – for example, because it serves solely a supporting role in relation to the activities of the parent companies – then it does not, as such, fall under merger control, and Article 101 TFEU or Article 6 of the Competition Act respectively remains the relevant framework for assessment.
Implications for practice
The informal assessment sends a practical and positive signal: even where, in theory, undertakings could each tender independently, a joint bid may be permissible under competition law. The fact that the parties can formally participate separately is therefore not necessarily the end of the analysis. For this to be the case, the cooperation must go beyond simply eliminating a separate bid. Key factors include whether the parties actually integrate resources, capabilities and risks, whether the cooperation is limited to the tender in question, and whether sufficient independent competitive pressure and bids remain.
The assessment thus provides useful starting points, but no general safe harbour for bidding consortia. The analysis remains factual, forward-looking and tender-specific. Undertakings would therefore be well advised to establish in advance and in writing:
- whether, without the cooperation, they are actual or potential competitors;
- whether an independent bid is not merely a theoretical but also a realistic and competitive option;
- what the precise content, objective and scope of the cooperation are;
- what competition would likely exist without the cooperation;
- which relevant market definitions and market positions are plausible;
- whether sufficient independent competitive pressure and bids remain; and
- what safeguards are required for the exchange of competitively sensitive information.
Upon award of the contract, a timely reassessment must also be carried out to determine whether the implementation structure constitutes a full-function joint venture from that point onwards and, if the applicable turnover thresholds are exceeded, whether it results in a notifiable concentration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
