New communication from the CNMC on the prohibition to contract with the public sector for false competition
On 30th June 2023, CNMC Communication 1/2023 of 13th June was published in the Official State Gazette (BOE), which allows all interested parties to know the general criteria that this authority will take into account to determine, in each case, the specific scope and duration of the prohibition to contract with the public sector derived from infringements of the antitrust regulations ("the Communication").
The Public Sector Contracts Law 9/2017 ("LCSP") establishes in its article 71.1.b) that those persons sanctioned for serious (or very serious, it should be understood) infringements in matters of false competition may not contract with public sector entities.
Until now, the CNMC limited itself to transferring its sanctioning resolutions to the State Public Procurement Advisory Board so that it could determine, where appropriate, the specific scope and duration of the prohibition in a separate procedure. To this date, the aforementioned body has not specified the conditions of the said prohibition to contract, while awaiting the judicial firmness of several sanctioning resolutions that have been transferred to it by the CNMC in recent years.
However, the CNMC has decided to take a step forward with its latest Communication and announces that it will begin to expressly state in its own decisions the specific scope and duration of the prohibition to enter into contracts derived from infringements of Law 15/2007 on the Defence of Competition ("LDC"), as it considers itself to be the best positioned authority in this respect.
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