Judgment of the Supreme Court, February 23, 2026, (ECLI:ES:TS:2026:734)
Article(s) in Directive 2014/24/EU: Art. 12.3
Topic: called vertical cooperation based on joint control (the in-house exception).
Member State: ES
Court/rev. board: Supreme Court
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
The case concerns the interpretation of the rules governing in-house procurement (public contracts awarded under Article 12(3) of Directive 2014/24/EU, as implemented in Spain by Article 32 of Law 9/2017 of 8 November on Public Sector Contracts (LCSP). The proceedings focused on the requirement that the contracting authority exercise joint control analogous to that exercised over its own departments over the entity, and whether such control may exist where the contracting authority holds only a minority shareholding in that entity. The Supreme Court also relied on the case law of the Court of Justice of the European Union on the concept of joint analogous control in in-house awards.
2. FACTS
The Consell Comarcal de la Selva (a contracting authority) directly entrusted the provision of home-care services to SUMAR, Serveis Públics d’Acció Social de Catalunya, S.L. (a public enterprise), treating it as its own in-house entity and therefore without conducting a competitive procurement procedure.
The award was challenged by the Spanish Association of Home Care Service Providers (ASADE), which argued that SUMAR could not qualify as an in-house entity because the Consell Comarcal held only 0.52% of the company’s share capital, while the Diputació de Girona (another contracting authority) held approximately 80%. ASADE maintained that such a minority shareholding prevented the contracting authority from exercising the joint analogous control required by Article 32 LCSP.
Although the Catalan Public Procurement Review Tribunal dismissed the challenge, the High Court of Justice of Catalonia annulled the direct award, holding that the necessary degree of control did not exist. The contracting authority and SUMAR appealed to the Supreme Court.
3. JUDGMENT
The Supreme Court upheld the appeals, set aside the judgment of the High Court of Justice of Catalonia, and reaffirmed the doctrine previously established in its judgments STS 1205/2024 and STS 1547/2025.
The Court held that the mere fact that a contracting authority is a minority shareholder does not, by itself, preclude the existence of the joint analogous control required for an in-house award. The assessment must be functional rather than purely formal, focusing on whether the participating public authorities are able, acting jointly, to exercise a decisive influence over the strategic objectives and significant decisions of the entity.
Having examined SUMAR’s articles of association and governance structure, the Supreme Court found that all participating public authorities—including minority shareholders—were represented in the General Meeting, participated in the governing bodies, and were involved in defining the entity’s strategic objectives through mechanisms specifically designed to ensure joint decision-making. Consequently, the Court concluded that the requirements of Article 32 LCSP and Article 12(3) of Directive 2014/24/EU were satisfied.
The Supreme Court therefore established that minority ownership is not incompatible with joint the exercise of joint analogous control, provided that the institutional arrangements effectively enable all participating contracting authorities to exercise decisive joint influence over the in-house entity’s strategic objectives and key decisions.
