Bundeskartellamt has no serious objections to consortium for the construction of corvettes
The Bundeskartellamt will not initiate a proceeding to examine whether the planned participation of German Naval Yards Kiel GmbH ("GNYK") in the consortium ARGE K130 violates the German and European prohibition of cartels. ARGE K130 is a consortium of the companies Thyssen Krupp Marine Systems GmbH and Fr. Lürssen Werft GmbH & Co. KG. This consortium was already commissioned in 2001 with the construction and supply of five corvettes of the type K130 for the German Federal Armed Forces. The Armed Forces now intend to commission the same consortium with the construction and supply of five more corvettes of the same type.
According to a decision of the 1st Public Procurement Tribunal at the Bundeskartellamt of 15 May 2017, the planned award to ARGE K130 did not comply with public procurement provisions. Apart from ARGE K130 no other companies were invited to participate in the award procedure (see press release of 18 May 2017).
The Public Procurement Tribunal's decision is not final because it was immediately appealed to the Düsseldorf Higher Regional Court.
The examination under competition law of a cooperation between market participants differs from the review procedures of the Public Procurement Tribunals. In the case at hand, the examination under competition law has to determine whether the planned participation of GNYK in the K130 consortium violates the German and European ban on cartels. The competent decision division in this case is the 9th Decision Division which is responsible for ship building.
All the companies participating in the award have presented the planned agreement in detail to the Bundeskartellamt. After a preliminary assessment the authority concluded that the planned participation of GNYK in the consortium, as far as it is indeed subject to the prohibition of cartels, could meet the legal requirements for an exemption from the prohibition. The individual reasons for this conclusion will not be revealed on account of the confidentiality requirements in the sector affected.
Andreas Mundt, President of the Bundeskartellamt:
"The envisaged cooperation in this case has a number of special features. Ultimately, there were no indications of a serious violation of the ban on cartels."
As regards their future cooperation within the ARGE K130, the participating companies are obliged to assess for themselves whether their conduct is in line with the provisions on cartel prohibition. The Bundeskartellamt's decision not to take up the case as it presents itself now has no binding effect for the assessment of future conduct by the parties.