Judgment of the Supreme Court, Third Chamber, Administrative-Contentious No. 50/2026, of January 26, rec. 20/2023

The Supreme Court judgment No. 50/2026, of January 26, resolves the appeal filed by Adasa Sistemas, S.A.U. against the judgment of the High Court of Justice of Catalonia of September 28, 2022. The core of the debate focuses on determining which administrative authority has the competence to decide and specify the prohibition of contracting when there is a definitive sanction for distortion of competition.

1. Background

The Catalan Competition Authority declared the existence of a unique and continuous infringement consisting of collusive agreements to allocate the market in various public contracts related to radars and meteorological stations of the Meteorological Service of Catalonia. As a result, it imposed a financial penalty on Adasa and a prohibition on contracting for 18 months, limited to certain contracts of the SMC. The High Inspection of Justice of Catalonia reduced the fine to €140,067, but maintained the prohibition on contracting.

2. Issue of interest for cassation

The Supreme Court considers that there is an objective interest in clarifying the jurisprudence regarding the prohibition of contracting in the field of competition law and, specifically, in determining, from the perspective of Article 53 of the Competition Defense Law and Article 72.2 of the Public Sector Contracts Law, which administrative authority is competent to impose and define this prohibition.

3. Doctrine of the Supreme Court

The Supreme Court declares that the prohibition on contracting provided for in Article 71.1b of the LCSP is not an autonomous sanction, but a consequence ex lege arising from the definitive imposition of a sanction for distortion of competition. The High Inspection states that Article 72 of the LCSP establishes a two-level system: as a general rule, the administrative authority that imposes the sanction can resolve on the scope and duration of the prohibition in the same sanctioning resolution; only subsidiarily, when there is no such resolution, is the specific procedure assigned to the Ministry of Finance applicable.

The judgment considers that this regime is compatible with Directive 2014/24/EU and with the jurisprudence of the Court of Justice of the European Union, as it preserves the contracting authority's ability to assess the prohibition of contracting in each specific procedure, without attributing to the competition authority an exclusive automatic exclusion power.

4. Aspect of interest for companies contracting with the public sector

The judgment No. 50/2026 of the Supreme Court consolidates the doctrine that both state and regional competition authorities are empowered to determine in their own sanctioning resolutions the scope and duration of the prohibition on contracting due to distortion of competition, and the procedure provided for in Article 72.3 of the LCSP remains a subsidiary mechanism. The judgment reinforces legal certainty and coherence between competition law and public procurement.

This possibility may lead to a declaration of a greater number of prohibitions on contracting, as competition authorities now have their own jurisdiction in this matter, without the need to refer the case to another administrative body for processing.

Informative note written by Jorge González, partner of Public and Regulatory Law at ECIJA Madrid.