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The Pérez-Llorca/ICADE Chair analyzes the evolution of the contracting prohibition in Law 9/2017 on Public Sector Contracts

Pérez-Llorca and the Faculty of Law of Comillas Pontifical University (Comillas ICADE) have organized the sixth session of their joint Chair on Economics and Competition Law. In it, the speakers addressed the latest developments in the procurement prohibition of Law 9/2017, of November 8, on Public Sector Contracts (LCSP), as well as the most relevant aspects on its application and interpretation.

The seminar, moderated by Jorge Masía, Competition partner at Pérez-Llorca, included the participation of Antonio Jesús Alonso Timón, professor of Administrative Law and director of the Center for Innovation in Law at Comillas Pontifical University (CID-ICADE); Conchita Ordiz Fuertes, president of the Central Administrative Tribunal for Contractual Appeals, and Juan Jiménez-Laiglesia, partner in charge of the Competition Law area at Pérez-Llorca.

Antonio Jesús Alonso Timón explained that the efforts made by the European Union to regulate public procurement and to prevent collusive practices are due, to a large extent, to achieving transparency and efficiency in public procurement, which represents 20% of the EU GDP. Along these lines, Alonso Timón pointed out that the LCSP is committed to sharing the pie among different organizations, thus favoring their entry into the markets and also promoting the role of small and medium-sized companies. The professor gave as an example the relaxation of the classification requirements for public procurement, which is only mandatory for works contracts exceeding 500,000 euros.

In relation to the distortion of competition, Conchita Ordiz Fuertes pointed out that the LCSP is half way if it is analyzed only from the perspective of Article 71.1A and she clarified that it should be done from Article 150 of the same regulation that, after its reform by Law 31/2022, of December 23, of the General State Budget for the year 2023, developed by regulation the procedure to apply as a cause for exclusion to that company in which possible indications of collusion are appreciated.

In this line, Juan Jiménez-Laiglesia questioned whether articles 71 and 72 of the LCSP allow to clearly conclude that the National Commission of Markets and Competition (CNMC) is legally empowered to enforce the prohibition to contract. In turn, the speaker clarified that when we refer to the application of conditions of a structural or behavioral nature, we tend to associate them to business concentrations, not to collusive conduct.

In view of this ambiguous regulatory context, Jiménez-Laiglesia contemplated the possibility that the Spanish legislator might amend Law 15/2007, of July 3, 2007, on the Defense of Competition. In any case, the partner of the Firm advocated waiting for the first practical resolution of the regulation to measure its legal certainty.

After the speeches, a question-and-answer session was opened in which the speakers answered questions raised by the attendees, such as, for example, the extensions of this prohibition.


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