Spain's National Markets and Competition Commission (CNMC) has delivered a pivotal decision in the enforcement of competition law by imposing, for the first time, a direct ban on a company's participation in public contracts due to competition law infringements, while also setting the scope and duration of the ban. The decision signals a turning point in Spain's sanctions policy and elevates regulatory risk for all companies operating in regulated markets or engaging with the public sector.
From dormant measure to effective enforcement tool
Since 2015, Spanish public procurement provisions allowed for the exclusion of companies found guilty of severe competition breaches from public procurement. The measure was subsequently enshrined within the Spanish Public Procurement Law 9/2017 (Ley 9/2017 de Contratos del Sector Público, or LCSP), which expressly includes it in article 71.1.b) by establishing that entities that have been sanctioned by final decision for serious distortion of competition cannot enter into contracts with the public sector.
Initially, the practical application of public procurement bans was limited and lacked transparency. After the CNMC's final sanctioning decision on competition infringement (primarily in relation to cartel agreements in the framework of public tenders), cases were typically referred to the State Procurement Advisory Board (Junta Consultiva de Contratación Pública), which then submitted a proposal to the Spanish Minister of Finance as to the scope and duration of the ban. The process was cumbersome, bureaucratic and generated legal uncertainty as the final decision depended on a body other than the sanctioning body; it could also take a long time – up to three years. In practice, very few cases culminated in effective enforcement of a procurement ban. In most cases, the measure was either suspended or limited to a simple notation in the Register of Tenderers. However, some regional competition authorities, such as the Catalan and Galician competition regulators, began imposing public procurement bans directly in their sanction decisions, specifying ban scope and duration themselves.
The landscape changed in June 2023, when the CNMC issued Communication 1/2023, which established that the sanctioning decision itself could determine ban scope and duration, without a need for the Ministry of Finance's involvement. The Communication establishes criteria for determining the geographical, material and temporal scope of public procurement bans, and outlines the principles of proportionality, effectiveness and deterrence. This allows for tailor-made bans reflecting the severity of an infringement, its duration, the specific market affected and the existence, or otherwise, of compliance programmes.
The Eólica del Alfoz case: a milestone in the application of public procurement bans in Spain
The CNMC's decision of 30 July 2025 marks the first application of the new principles outlined in Communication 1/2023. The case involved Eólica del Alfoz, S.L., a company in the renewable energy sector acting as Sole Node Interlocutor (Interlocutor Único de Nudo, or IUN) for access to the electricity transmission grid at the Villimar node (Burgos). In 2019, GLOBAL SHAULA, a developer of two wind farms (Las Viñas and Torresandino), filed a complaint with the CNMC alleging unjust denial of grid access at the Villimar node, managed by Eólica del Alfoz in its capacity as IUN.
Eólica del Alfoz, as IUN, had an obligation to process all applications for access to the transmission grid submitted by developers in a joint and coordinated manner. However, the CNMC found that Eólica del Alfoz deliberately hindered the processing of GLOBAL SHAULA's application, delaying its submission to Red Eléctrica de España (REE) by more than two months, while prioritising applications from companies linked to its own group. The CNMC found that Eólica del Alfoz's conduct constituted an abuse of its dominant position as an IUN, acting in a discriminatory manner and hindering a competitor's access to the transmission grid to the benefit of its own business group. The CNMC classified the conduct as a very serious infringement of article 2 of the Spanish Competition Law 15/2007, of 3 July (Ley 15/2007, de 3 de julio, de Defensa de la Competencia). As a result, the commission imposed a €958,593 fine and, more importantly, a six-month public procurement ban, applying the criteria of its Communication 1/2023.
In determining the duration and scope of the ban, the CNMC assessed, in particular, the gravity of the infringement (abuse of dominant position in a strategic market), the duration of the conduct (more than two years of active obstruction) and the effective impact on competition (exclusion of a direct competitor from access to the network). The ban applies nationwide across Spain and covers all public sector entities and affects contracts for consultancy, construction, operation, exploitation and maintenance of wind farms and their installations – in line with Eólica de Alfoz's corporate purpose and business activity. The CNMC deemed a six-month duration to be proportionate and sufficient deterrent, taking into account that the infringement, albeit serious, did not have a direct impact on a specific public tender and that the company had not provided compliance programmes or remediation measures to mitigate the sanction.
Key takeaways for operators
Public procurement bans are emerging as powerful tools in the fight against anti-competitive practices and safeguarding the integrity of public procurement processes. The CNMC and regional authorities have heightened coordination with the registers of tenderers and contracting bodies to ensure effective implementation. Recent case law has affirmed the competence of competition authorities to define the scope and duration of public procurement bans, provided that adequate justifications are given and the principle of proportionality is observed. Given this precedent, companies can now expect a more frequent and effective application of public procurement bans in the future.
This landmark decision sends a very clear message: the CNMC is prepared to use all the legal tools at its disposal to deter anti-competitive conduct, including temporary exclusion from public procurement. The ruling also demonstrates that the public procurement bans can be imposed even when an infringement has no direct impact on a public tender, but rather on access to essential infrastructure. It is also a stark reminder that robust compliance programmes can be key to avoid a ban in the event of infringement.
Ultimately, the CNMC's ruling underscores that exclusion from public procurement is no longer a theoretical threat, but a practical reality for those violating competition law. As for companies that operate in strategic sectors and that engage with the public administrations, they must ensure thorough compliance with competition law to safeguard their integrity and commercial viability.
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