The Fourth Section of the Litigation-Administrative Chamber of the Superior Court of Justice of the Valencian Community (TSJCV) has confirmed the penalty of 16,801 euros imposed on Comunicació dels Ports, a producer linked to Francis Puig, brother of the ‘president’ of the Generalitat , Ximo Puig, to constitute a cartel that agreed prices with three other companies in the framework of a public tender for the contracting of the correspondent service in ‘A Punt’.
In this way, the court confirms the resolution of the Competition Commission of the Valencian Community, which sanctioned the company for a very serious infringement of article 1 of the Law for the Defense of Competition, constituting a cartel, for falsifying the competition.
The Commission also sanctioned Canal Maestrat y Kriol, owned by the Adell Bover brothers, with 26,103 euros, and another company with 3,337 euros, in the framework of a contest of the Societat Anonymous de Mitjans de Comunicació de la Comunitat Valenciana (SAMC) of the service of audiovisual resources that provide image resource services with ENG equipment –correspondents in certain areas of the Community–. It was the chain that brought the facts to the attention of the administration.
The room, which imposes the costs on the appellant, considers it proven that the four companies on file used four types or models of offers with “identical prices” in the four concepts of preferences that were used for the award and that are repeated in the different lots to which they attended.
The “coordinated” use of these four types or models of offer responds to a distribution system by which the four companies on file rotate in the 1st, 2nd, 3rd and 4th positions in lots 1, 2 and 3″, says the room .
In addition, it stresses that, according to the legislation, “the existence of this type of agreement is enough to presume its harmfulness for competition without the need to wait for its results or damages (…), its potentiality being enough to cause them since the unlawfulness comes from the restrictive purpose of the alleged conduct, even when the award has not been obtained or has been withdrawn”, as was the case of Comunicació dels Ports.
In this line, it considers that the agreements between the companies filed in the tender to which they participated “represents a false conduct of pretending that we are in the presence of companies that are competitors among themselves and with the rest of the competitors, pretending that they compete in the tender when in reality such a situation does not occur, when they have agreed on identical prices, the purpose of which is a strategy to present themselves as bidders in the largest possible number of lots in the contract but without competing on prices, which are identical”, which constitutes a very serious infringement .
The Chamber rejects that in this case the company has been denied its right to use the legally pertinent evidence and likewise denies that the decision now confirmed is based on evidence obtained illegally. In this regard, it points out that both the inspection carried out and the order of May 2019 of the Contentious-Administrative Court number 1 of Castellón that authorized it were not appealed in due time and form, so they are firm.
Along these lines, it underlines that there is “sufficient justification” and the justification for the entry and search is “sufficiently reasoned”; He considers that sufficient proof of charge and defense was carried out without causing “any type of defenselessness” and that there is “excess proof” about the exchange of information “with anti-competitive content” between the companies participating in the tender.
Thus, it cites the contacts between the partners of the commercial companies that result from the conversations by means of whatsapps transcribed in the appealed resolution that reveal that the companies “had information prior to the publication of the tender that was going to be held and of the terms in which it was going to be launched”.
As a consequence of all the investigative actions carried out and despite the award of lot 1 to the company, it finally withdrew from the tender while Canal Maestrat S.L. and Kriol Productions S.L. they were excluded for violating principles contained in the Public Sector Contracts Law.
For the Chamber, it is a “serious” indication of the responsibility of the plaintiff “that she has renounced the award after having obtained it.” “No explanation of that resignation has been given. And it is not well understood that it was done if it really was defended that it was a clean tender and with all the requirements and guarantees of the procedure by which it governed,” says the court.
Given the indications, the Chamber “comes to the conviction that the resignation occurs in order to avoid greater evils and serious complications, opting for this solution as a lesser evil in order to dilute its responsibility in the facts.”
Therefore, taking into account the unique nature of the infringement, the affected market and the nature of the damages and taking into account the “deterrent element” of the sanction, the court considers the already imposed fine of 16,801.7 euros appropriate.
For the court, “undoubtedly the penalizing reproach in this file must be effectively dissuasive, although the principle of proportionality requires that the sanction not be located in the upper section of the scale, and that the corresponding upward or downward adjustments to do in the phase of determining the sanctions has to attend to the singular conduct of the company”.
