Action brought on 9 December 2025 – European Commission v Kingdom of Spain

(Case C-802/25)

(C/2026/939)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: G. Wils and E. Sanfrutos Cano, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The Commission claims that the Court of Justice should:

Pleas in law and main arguments

In its action, the Commission puts forward twelve pleas in law, alleging failure to fulfil obligations concerning the Spanish legislation transposing Directives 2014/23/EU, 2014/24/EU and 2014/25/EU.

The first plea is based on the incorrect transposition of Articles 43, 44 and 51(1) of Directive 2014/23/EU, of Articles 72, 73 and 90(1) of Directive 2014/24/EU, and Articles 89, 90 and 106(1) of Directive 2014/25/EU, as regards the temporal scope of those provisions. Directives 2014/23/EU, 2014/24/EU and 2014/25/EU require that the rules on the modification and termination of contracts apply as from their entry into force, even to contracts awarded previously. The Commission argues in essence that the Spanish legislation limits its application to subsequent contracts, which is an incorrect transposition.

The second plea is based on the incorrect transposition of Article 38(7) of Directive 2014/23/EU, Article 57(4) of Directive 2014/24/EU and the third subparagraph of Article 80(1) of Directive 2014/25/EU, concerning optional grounds for exclusion. The Commission essentially argues that Directives 2014/23/EU, 2014/24/EU and 2014/25/EU give the contracting authorities the possibility of applying optional grounds for exclusion, and that Member States must transpose them; in doing so, they can make them mandatory, but cannot restrict their scope. However, the Spanish legislation limits those grounds for exclusion to cases involving a penalty or final administrative decision, preventing contracting authorities from excluding economic operators on the basis of any appropriate means or sufficiently plausible indications, which is an incorrect transposition of the Directives.

The third plea is based on the incorrect transposition of Article 43(2) of Directive 2014/23/EU, Article 72(2) of Directive 2014/24/EU and Article 89(2) of Directive 2014/25/EU, with regard to the modification of contracts and the dual minimum threshold. The Commission considers that the Spanish legislation does not correctly transpose those provisions in so far as it allows modifications to the contract when the value of the modification is equal to or less than the thresholds, whereas the Directives require that value to be lower.

The fourth plea is based on the incorrect transposition of Article 6(1) and (4) of Directive 2014/23/EU and Article 2(1)(1) and (4) of Directive 2014/24/EU, in relation to the definition of ‘bodies governed by public law’. The Commission essentially argues that the Spanish legislation introduces an exception not provided for in those directives for political parties, trade unions and business organisations which may be bodies governed by public law.

The fifth plea is based on the incorrect transposition of Article 2(1)(7) of Directive 2014/24/EU and Article 2(3) of Directive 2014/25/EU, concerning the definition of ‘a work’. The Commission essentially argues that the Spanish legislation unduly broadens the concept of ‘a work’ by including certain works involving the modification of land or the natural environment that do not fall within the definition set out in Directives 2014/24/EU and 2014/25/EU. Such activities should be classified as services, subject to lower thresholds, and do not appear as works in the annexes to the Directives, with the exception of drainage of agricultural or forestry land.

The sixth plea is based on the incorrect transposition of Article 14(a) of Directive 2014/23/EU and Article 30(a) of Directive 2014/25/EU, concerning contracts awarded to a joint venture or to a contracting entity forming part of a joint venture. The Commission essentially argues that the Spanish legislation incorrectly transposes the exception relating to joint ventures, since it applies the conditions required by the Directives only to contracts awarded to a joint venture, but not to contracts awarded by it.

The seventh plea is based on the incorrect transposition of Article 5(7) of Directive 2014/24/EU, concerning the calculation of the estimated value of works contracts. The Commission essentially argues that the Spanish legislation incorrectly transposes that provision, as it only includes supplies and excludes services in the calculation of the estimated value of works contracts.

The eighth plea is based on the incorrect transposition of Article 29(4) of Directive 2014/24/EU, concerning the award of the contract without negotiation in a competitive procedure with negotiation. The Commission essentially argues that Directive 2014/24/EU allows contracts to be awarded without negotiation where contracting authorities have indicated in the contract notice or in the invitation to confirm interest that they reserve that possibility. However, the Spanish legislation omits this possibility for contracting authorities.

The ninth plea is based on the failure to transpose the first subparagraph of Article 36(1) of Directive 2014/24/EU, concerning mandatory electronic catalogues.

The tenth plea is based on the failure to transpose Article 44(4)(a) of Directive 2014/25/EU, concerning periodic indicative notices as a means of calling for competition.

The eleventh plea is based on the incorrect transposition of Article 75(5) of Directive 2014/25/EU, concerning information to applicants in the context of a qualification system. The Commission argues in essence that, although that provision requires unsuccessful candidates to be informed within a maximum of 15 days of the decision, stating the reasons for the rejection, Spanish legislation does not set any time limit for communicating that decision.

The twelfth plea is based on the failure to transpose Article 46(5)(b) and (c) and Article 47(5)(b) and (c) of Directive 2014/23/EU, concerning situations in which the invalidity of the contract is not required in the situations referred to in Article 2d(1)(a) and (c) of Directive 89/665/EEC and Article 2d(1)(a) and (c) of Directive 92/13/EEC.

(1)   OJ 2014 L 94, p. 1

(2)   OJ 2014 L 94, p. 65

(3)   OJ 2014 L 94, p. 243

(4)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

(5)  Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).