Competition authorities can set out tender bans in their decisions

The Spanish Supreme Court, in its rulings no. 1665/2025, of 16 December 2025; and no. 178/2026, of 26 January 2026, has endorsed the authority of competition authorities in Spain to set out the exact scope and length of prohibitions or bans to bid in public tenders (public procurement ban) in the relevant final decisions closing an antitrust investigation.

Background

On 23 December 2019, the Catalan Competition Authority (Autoritat Catalana de la Competència, “ACCO”), in case 94/2018 - Tenders for the Meteorological Service of Catalunya, declared an antitrust infringement consisting of bid rigging in the context of bids called by the Meteorological Service of Catalonia. In its decision, in addition to the standard monetary fine, ACCO imposed a prohibition to contract with the public sector and, for the first time ever, it determined that the ban applied for 18 months (duration) and only to tenders called by the Meteorological Service of Catalonia (scope).

Up to then, the usual practice of competition authorities, and particularly of the Spanish National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia, “CNMC”), was to impose the prohibition, but refer the case to the State Public Procurement Advisory Board (Junta Consultiva de Contratación Pública del Estado, “JCCPE”) for it to set out the scope and length of the ban.

On appeal against the decision of ACCO, the High Court of Justice of Catalonia (Tribunal Superior de Justicia de Cataluña, “TSJC”) partially annulled the decision, but upheld the scope and duration of the relevant ban.

The companies lodged a cassation appeal before the Spanish Supreme Court against the judgment of the TSJC. The Supreme Court considered that the subject matter of the appeal was “to complete, qualify or specify the case law on the public procurement ban in the context of antitrust infringements, and, specifically, to determine which is actually the competent administrative authority to impose it”.

Doctrine established by the Spanish Supreme Court

In its rulings, the Supreme Court analyzed in detail Article 71.1.b) of Law 9/2017, on Public Sector Contracts (Ley de Contratos del Sector Público, “LCSP”), which foresees the imposition of tender bans to undertakings sanctioned for antitrust infringements, as well as Article 72.2 of the LCSP, setting out the relevant procedures to set the scope and duration of the tender ban in individual cases.

The Supreme Court confirmed the authority of competition authorities to impose tender bans in the context of antitrust infringements on the basis of three points: (i) the intention of the Spanish legislator; (ii) the systematic and teleological interpretation of the above-cited articles of the LCSP; and (iii) consistency of the national provisions with European Union law.

As to the first point, the Supreme Court notes that Art. 72.2 LCSP provides for two alternative avenues to determine the scope and duration of public procurement bans. Namely: (i) either in the relevant ruling or administrative decision formally declaring the relevant infringement; or (ii) by decision taken at a later stage by the head of the Ministry of Finance and Public Administration, following a proposal by the JCCPE, as mentioned above.

In the Supreme Court’s view, the aim of the statute is to establish a dual channel to set the prohibition and that the intervention of the JCCPE is ancillary to the setting of the scope and duration by the competition authority. Accordingly, the particular order in which these options appear in the legal provision do empower competition authorities to set the scope and duration of the prohibition in its own administrative fining decision; that is, competition authorities are implicitly conferred with the authority to do so.

Additionally, the Supreme Court insists on the fact that tender bans are a legal consequence derived ex lege from Art. 71.1.b) of the LSCP upon adoption of a final decision declaring an antitrust infringement. Furthermore, the Court considers that the competition authority’s power is also grounded by functional coherence, as it is the public body that conducted the investigation, analyzed the affected market and the relevant conduct, and weighed their effects on competition.

The Supreme Court also relies on the doctrine established by the Court of Justice of the European Union in case C-66/22 Infraestruturas de Portugal in connection with the interpretation of Article 57 of Directive 2014/24/EU. This doctrine aims to preserve the decision-making power of the contracting authority for excluding undertakings from specific tenders, a possibility that does not conflict with the power of national competition authorities to impose public procurement bans with a more general scope.

Finally, the Supreme Court confirms that tender bans may be imposed in the context of both serious and very serious infringements of the Spanish Competition Act.

Analysis

The confirmation of the authority by competition authorities in Spain to directly impose and set the scope and duration of tender bans may raise several legal issues and practical questions.

Prior to these rulings by the Supreme Court, the CNMC already considered that it had the power to set the scope and duration of tender bans as per its Communication 1/2023, on criteria for determining the prohibition of contracting due to distortion of competition (Communication 1/2023) where it also indicated that tender bans could be imposed against all types of anti-competitive conduct, even in cases without direct impact on public tenders, provided that they amounted to serious or very serious infringements of the LDC.

As a result, the CNMC has actually imposed tender bans in its most recent fining decisional practice: cases Eólica del Alfoz (for abuse of a dominant position, which we analyzed here), I.C.O.N. (for vertical conduct, also discussed here) and Repsol (for abuse of dominant position).

As of today, the CNMC has yet to set the scope and duration of a tender ban in a cartel investigation or in a bid-rigging case affecting public procurement, where it could be even more sensitive and complex given its impact on entities affected and the need to balance the various interests at stake.

In this respect, the debate continues in relation to the legal criteria that should govern the authority to set the scope and duration in each individual case. In this regard, there is an appeal still pending before the Supreme Court, cassation no. 2564/2023, that deals precisely with the possibility of applying by analogy the criteria for setting of fines (Art. 64 LDC) to tender bans.