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.  

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:

  1. whether, without the cooperation, they are actual or potential competitors;
  2. whether an independent bid is not merely a theoretical but also a realistic and competitive option;
  3. what the precise content, objective and scope of the cooperation are;
  4. what competition would likely exist without the cooperation;
  5. which relevant market definitions and market positions are plausible;
  6. whether sufficient independent competitive pressure and bids remain; and
  7. 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.  

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