INICIO ÚLTIMO NÚMERO LAST ISSUE

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El trabajo analiza el obligatorio impulso de la economía social consagrado en el marco del vigente Derecho de la Unión Europea (UE) y nacional sobre contratación pública estratégica, así como sus problemas interpretativos y la insuficiente aplicación en la actualidad por las Administraciones y entidades públicas. Se reflexiona y discute, sobre la base de la jurisprudencia del Tribunal de Justicia de la UE, acerca de las distintas posibilidades de actuación administrativa y de colaboración público-privada para la eficaz prestación de servicios sociales a los ciudadanos, que incluyen desde la asunción pública directa a la prestación indirecta a través de las figuras contractuales o utilizando la reserva de contratos; también los acuerdos de acción concertada fuera de la legislación contractual; así como otros medios externos como la financiación de los servicios públicos o la concesión de licencias o autorizaciones.

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STRATEGIC PUBLIC PROCUREMENT AND SOCIAL ECONOMY: RELEVANT ISSUES, CURRENT POSSIBILITIES AND CHALLENGES

This paper analyzes how public sector procurement constitutes a key tool for supporting the development of the social economy and social enterprises, which currently raises significant interpretative and application challenges, as recognized by the European Commission’s Action Plan for the Social Economy 2021-2030. After studying the regulatory framework for strategic and socially responsible public procurement in international (The United Nations 2030 Agenda, among its Sustainable Development Goals, establishes, as a cross-cutting theme, the need to guarantee sustainable consumption and production patterns and promotes the efficient use of resources and improved access to basic services. This has been incorporated in Spain by the National Public Procurement Strategy, which proposes measures aimed at using the possibilities of public procurement to support social policies. To integrate the SDGs into public policies, the Government of Spain approved the “Action Plan for the Implementation of the 2030 Agenda. Towards a Spanish Sustainable Development Strategy,” which includes among its “transformative measures” aligning public procurement with the SDGs), European Union, and Spanish law, noting its lack of consolidation and reflecting on its causes, the paper examines the jurisprudential debate on the reservation of contracts to special employment centers, as a measure of positive discrimination, and its limitation to social initiative centers rather than entrepreneurial initiative centers.

It is the subject of study the scope of the Conacee ruling, in which the CJEU ruled on the requirements that may be imposed for participation in procedures for awarding reserved public contracts and the mandatory respect for the general principles of equal treatment and proportionality. Special attention is also paid to concerted action agreements for the provision of public services aimed at meeting social needs, which have been established in numerous regional legislation that allows the management of services for individuals outside the public procurement regime. The CJEU’s ASADE I and II rulings are analyzed, which establish the criteria for reviewing current regional regulations and propose how to organize the selection of social service providers, taking into account, first of all, their contractual or non-contractual nature, which is determined by the concept of “public contract,” which is autonomous from EU law, as is the notion of non-economic services of general interest. For the CJEU, the classification that Spanish law gives to concerted action agreements is irrelevant, and the fact that the contract is concluded with a non-profit entity does not exclude that entity from carrying out an economic activity within the meaning of Directive 2014/24/EU. European jurisprudence establishes that the provision of services in exchange for remuneration constitutes an economic activity. It is understood that the essential characteristic of remuneration is that it constitutes the economic consideration for the service in question, without it being necessary for it to be paid by the recipient. EU Treaty and TFEU have recognized the importance of services of general interest, true pillars of our society, and the broad discretion of national, regional, and local authorities to provide and organize them. This paper sets out the requirements and possibilities of the various options for public-private collaboration for the provision of social services, which public administrations must decide on by virtue of their power of self-organization. In this regard, they can directly assume social services or opt for indirect provision, in which case they can resort to public procurement (by entering into service contracts or service concession contracts, in which quality, not price, is the decisive factor in evaluating bids; or by applying the contract reservation) or use mechanisms outside of public procurement legislation, such as concerted action agreements, the financing of social services, or the granting of licenses or authorizations. Neither the LCSP nor regional legislation has developed a specific regime for the public procurement of social services, which could have generated greater legal certainty. In this regard, it should be noted that for contracts for social services to individuals valued below the European threshold of € 750,000, the CJEU has indicated that these are not normally of interest to providers from other Member States, so the scope for regulatory action is even greater.

Regarding the reservation of contracts, Directive 2014/24/EU and the LCSP provide for both the mandatory establishment of minimum percentages for reserving the right to participate in the award procedures for certain contracts or certain lots thereof to Special Employment Centers with social initiatives and social integration companies (AD 4 LCSP), which, according to the CJEU ruling (Conacee), could be objectively justified; and the optional reservation of certain social, cultural, and health service contracts to certain organizations, if the objective, subjective, and temporal requirements established by AD 48 LCSP are met. Regarding the possibility of developing concerted action for the provision of social services outside the LCSP, the CJEU, in its ASADE I judgment and in its ASADE II order, provides a broad interpretation of the European regulation on the matter and the leeway available to Member States to organize, as they deem most appropriate, the selection of social service providers. For the CJEU, these agreements must respect the principles of public procurement, and the exclusive use of private non-profit entities to ensure the provision of such social services may be motivated by both the principles of universality and solidarity, as well as by reasons of economic efficiency. Public administrations may also propose “open house” contracts, a possibility included in Article 11.6 of the LCSP within the excluded businesses or contracts, which requires that no economic operator be granted exclusivity over a contract, in accordance with the doctrine established by the CJEU in its Falk Pharma and Tirkonnen judgments. The paper concludes with some reflections on the long road ahead toward improved provision of social services for citizens, especially the most disadvantaged, while ensuring high quality, universality, solidarity, and equity. To achieve this, it is essential that the various development options be defined in regulations and in state and regional administrative management and practice, with the greatest legal certainty. This requires adequate public programming and planning, as well as the professionalization of public and private public procurement managers.

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Aun cuando el objetivo principal del sistema de contratación pública continúa siendo la provisión de bienes, infraestructuras y de las competencias de las administraciones públicas, ello no impide que, de manera complementaria, dicha herramienta contribuya a la consecución de otros fines o políticas de carácter innovador, medioambiental, laboral o social, no en vano la expectativa de convertirse en contratista o concesionario actúa como un incentivo relevante que puede inducir la adopción de compromisos estratégicos definidos por los poderes adjudicadores. Esta dimensión funcional de la contratación pública, que trasciende el mero criterio de la oferta económicamente más ventajosa, permite alcanzar objetivos vinculados al interés general y facilita la inclusión de nuevos actores, como las entidades de la economía social. Dada su naturaleza y principios operativos, estas organizaciones están particularmente capacitadas para desempeñar un papel activo en los procedimientos de licitación orientados a fortalecer la cohesión social, especialmente cuando su priorización en la adjudicación o ejecución contractual se enmarca en los principios de buena administración.

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TOWARDS SOCIAL SUSTAINABILITY IN PUBLIC CONTRACTS. KEYS TO IMPROVING THE SOCIAL ECONOMY

Even though, as is to be expected, the main objective of the public procurement system continues to be the provision of the goods, infrastructure, and services necessary for the development of the powers of administrative entities, there is nothing to prevent it from also serving to achieve other innovative, environmental, labor, or, in this case, social goals or policies. Under this premise, there is no doubt that the public procurement sector can channel the behavior of economic operators towards socially conscious goals. It is no coincidence that the prospect of becoming a contractor or concessionaire is a significant incentive to make solid commitments to social responsibility. This strategic dimension of public procurement opens the door to the incorporation of new actors such as social economy entities, which, due to their characteristics, can become active players in the framework of an administrative tender aimed at achieving the long-awaited social cohesion.

Several government documents address this issue. Without attempting to be exhaustive, the “Action Plan for the Implementation of the 2030 Agenda. Towards a Spanish Strategy for Sustainable Development”, in its eighth ‘transformative’ measure, introduces the objective of “aligning public procurement with the Sustainable Development Goals (SDGs)”, urging the National Public Procurement Strategy to support the SDGs. For its part, the “Plan for the Promotion of Socially Responsible Public Procurement,” approved by Order 566/2019, of May 21, which publishes the Agreement of the Council of Ministers of April 12, 2019, aims to incorporate social criteria into public procurement processes, promoting “employment opportunities, decent work, social inclusion, accessibility, design for all, fair trade, compliance with workers’ labor and social rights, and more demanding commitments in the field of social responsibility”. Also, “the Spanish Social Economy Strategy 2023-2027, in its fourth pillar (”social and territorial sustainability“), includes action line 15 (”promoting equal opportunities in groups with difficulties in accessing employment”), which includes as a specific action “promoting the incorporation of social clauses and mandatory contract reserves that allow for the hiring of companies that incorporate groups with difficulties in accessing employment in accordance with the requirements set out in public procurement regulations”.

Similarly, at European level, “the Recommendation of the Council of the European Union of November 27, 2023, on the development of framework conditions for the Social Economy,“ in its recital 20, clearly states how ”thanks to the flexibility offered by the Union’s public procurement rules and strategies, contracting authorities can use public procurement more strategically by setting innovative, environmental, and social criteria, which ultimately contributes to a more sustainable, inclusive, and competitive economy”.

As can easily be seen, all these instruments insist on the idea of abandoning the traditional, purely budgetary view of public procurement, which is being reoriented towards an instrumental perspective of implementing public policies for the benefit of citizens. However, it is clear that this reformulation, which addresses social returns, must be accompanied by a solid and consistent legal framework that establishes the possibilities and limits, providing security.

It is true that this commitment to strategic public procurement has been expressly included in European and national regulatory design within the current public procurement model, which allows, without forgetting the principles of effectiveness and efficiency, the criterion of the cheapest economic offer to be overcome in order to consolidate the transition towards the comprehensive implementation of a powerful channel aimed at strengthening business behavior in favor of social interest. it is not surprising that those who wish to participate in public tendering procedures and ultimately be awarded contracts must comply with the conditions and requirements predefined by the contracting authorities. One of the most appropriate ways to address social issues is to encourage the award or execution of contracts to entities with greater social sensitivity.

However, despite the possibilities for shaping the business fabric that the public procurement system can adopt in favor of the social economy and the regulatory advances made in achieving this goal, the truth is that, as pointed out by multiple forums, the inclusion of social quality parameters in contractual procedures is still very limited, with price remaining the predominant, if not exclusive, criterion. Several factors contribute to this situation. Among others –and most notably– are the lack of training on regulatory changes, the limited staffing of contracting bodies, the reluctance of public managers to depart from the traditional preference for the cheapest bid, the difficult aspects of the concept of the “subject matter of the contract” that hinder future claims, the casuistry of the rulings of the competent judicial and administrative courts, and the absence of clear public policies, beyond mere programmatic formulations, that favor the social promotion of contracting.

Faced with this adverse reality, it cannot be denied that social economy entities, whose purpose is to provide social benefits to citizens, rather than providing services at the lowest price, find it difficult to compete in ordinary public procurement processes, despite the fact that they can bring very enriching added value to the process. It is not surprising that these corporations pursue “either the collective interest of their members, or the general economic or social interest, or both” (Art. 2 Law 5/2011, of March 29, on the Social Economy). Hence the interest in designing measures to prioritize such entities in the award or execution of contracts as incentives for the common good and, more specifically, for the promotion of quality employment for those who have greater difficulties in accessing paid work. This vision of public procurement as a structured framework for promoting issues of interest to all through social economy entities is in line with the principles of good governance and good administration, extending far beyond the mere provision of goods, services, or works.

From a regulatory standpoint, Law 9/2017 of November 8 on Public Sector Contracts supports social (and environmental) clauses, as they are present in all phases of contracting, both in preparation (preliminary consultations, assessment of the company’s capacity and solvency, and design of the service to be contracted through technical specifications) as well as in the award (in consideration of the “best value for money” ratio), as a possible tiebreaker criterion and an element for rejecting abnormally low bids, in the execution in the form of special conditions or in reserved contracting methods.

Far from remaining a tool for public procurement, the Administration may use the public procurement system to impose specific duties on contractors and concessionaires, introduce admission requirements, devise assessment criteria, establish conditions for contract performance, or award contracts to certain entities in which economic interests do not predominate, all with the aim of bringing horizontal policies of social interest to life.

As a particularly significant example, and with the intention of complying with the principle of “designing a more efficient, transparent, and honest public procurement system, thanks to which the best compliance with public standards is achieved, both by satisfying the needs of the contracting authorities and by improving the circumstances of access and participation in public tenders for the various operators, and, of course, through the provision of better services to users,“ Article 1.3 of Law 9/2017 provides that ”social (and environmental) criteria shall be incorporated across the board and on a mandatory basis in all public procurement, provided that they are related to the subject matter of the contract,“ in the belief that their inclusion provides greater efficiency and ”better value for money” in the contractual dynamic.
In addition, the mentioned rule also clearly states that “access to public procurement shall be facilitated for small and medium-sized enterprises, as well as (insofar as is relevant here) for social economy enterprises”.

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La contratación pública ha dejado de concebirse exclusivamente como un mecanismo de aprovisionamiento para convertirse en un instrumento estratégico capaz de orientarse hacia objetivos de interés general. Este trabajo examina la evolución del marco normativo y jurisprudencial europeo y español en materia de cláusulas sociales, identificando los principales obstáculos que dificultan su implementación efectiva –entre ellos, la interpretación restrictiva del vínculo con el objeto del contrato, la falta de uniformidad en la aplicación de la normativa y la ausencia de mecanismos de supervisión en la fase de ejecución–. Asimismo, se proponen reformas orientadas a fortalecer la dimensión social de la contratación pública en la próxima revisión de las Directivas europeas, destacando la necesidad de incorporar la obligatoriedad del cumplimiento de las normas sociales y laborales, en particular los convenios de la Organización Internacional del Trabajo, y de avanzar hacia una contratación pública ética que promueva el trabajo decente.

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SOCIAL SUSTAINABILITY IN PUBLIC PROCUREMENT: BETWEEN EUROPEAN STRATEGY AND NATIONAL PRACTISE

Public procurement has increasingly evolved from a purely administrative and economic mechanism for the acquisition of goods and services to a key strategic instrument for promoting broader public policy objectives. This article analyzes the integration of social sustainability into public procurement as part of the European and Spanish regulatory and jurisprudential framework, emphasizing its potential role in advancing decent work, social inclusion, and the achievement of the United Nations Sustainable Development Goals (SDGs) and the European Pillar of Social Rights.

The study begins by outlining the conceptual framework of «socially responsible public procurement» (SRPP), which refers to the inclusion of social considerations in public purchasing decisions to maximize the social impact of public expenditure. It encompasses a wide range of objectives –such as promoting employment opportunities for vulnerable groups, ensuring gender equality, supporting small and medium-sized enterprises, and fostering the participation of social economy entities– that transcend the traditional price-oriented view of procurement. The study distinguishes between “socially responsible procurement” and «ethical procurement», the latter being linked to compliance with international labour and human rights standards within global supply chains, as recognized by the International Labour Organization (ILO) and the United Nations.

The article highlights that, although both EU and Spanish legal frameworks–particularly the Directive 2014/24/EU and Law 9/2017 on Public Sector Contracts (LCSP)- explicitly allow and even encourage the incorporation of social clauses, their practical implementation remains limited. The EU Court of Justice has progressively recognized the admissibility of social objectives in procurement, starting from Beentjes (1988) and Nord-Pas-de-Calais (2000), to more recent rulings reinforcing that contracting authorities may adopt award criteria based on social considerations. However, despite this legal openness, most contracts across Member States continue to be awarded solely based on the lowest price.

The article identifies several obstacles to the effective implementation of SRPP. First, the lack of professionalization and specialized training among contracting authorities prevents them from adequately applying complex social criteria. Second, the persistent uncertainty and heterogeneity in the interpretation of key legal concepts –notably the link to the subject-matter of the contract– has led to judicial decisions annulling social clauses that aim to improve employment conditions or promote gender equality. Third, the absence of systematic monitoring and evaluation mechanisms undermines the credibility and effectiveness of social clauses, as contracting authorities often fail to verify whether suppliers comply with their social commitments.
Drawing from comparative European experiences and recent case law, the article explores pending issues both at the EU and Spanish levels. At the European level, it stresses the need to reinforce the so-called “horizontal social clause” in Article 18(2) of Directive 2014/24/EU, which obliges Member States to ensure that economic operators comply with social and labour obligations during contract performance. The author argues that this provision, despite being described by the Court of Justice as a “cardinal value”, lacks sufficient binding force since it does not entail mandatory exclusion of non-compliant bidders. To address this inconsistency, the paper proposes introducing an obligatory exclusion mechanism for economic operators that breach social or labour laws, thereby preventing “social dumping” and ensuring fair competition based on quality rather than cost.

Furthermore, the article underscores the importance of ensuring compliance with the fundamental ILO Conventions –particularly those relating to freedom of association, the prohibition of forced and child labour, and non-discrimination in employment– as a precondition for participation in public procurement. The inclusion of these conventions, as well as the long-neglected ILO Convention No. 94 on labour clauses in public contracts, would strengthen the EU social dimension and align procurement policy with the promotion of decent work worldwide.

At the Spanish level, the article examines three particularly contentious areas. First, the requirement of the link to the subject-matter of the contract, which continues to be interpreted restrictively by certain administrative tribunals, thereby limiting the inclusion of social award criteria. Although the LCSP no longer requires a direct link, inconsistent interpretations have led to uncertainty and risk aversion among contracting authorities. Second, the reservation of contracts for social initiative entities –specifically centros especiales de empleo de iniciativa social and empresas de inserción– has generated judicial debate regarding whether excluding other categories of employment centers violates the principles of equality and proportionality. Third, the inclusion of salary improvement clauses as social conditions or award criteria has been highly controversial. While some rulings consider them discriminatory or outside the contractual framework, others (notably, the Catalan Public Procurement Tribunal) acknowledge their potential to enhance service quality and worker stability, provided they are adequately justified and proportionate.

The article concludes by situating these issues within the forthcoming review of the EU public procurement Directives, announced for 2026 as part of the European Commission 2024–2029 policy guidelines. This revision seeks to simplify the regulatory framework, promote strategic procurement, and align public purchasing with social, environmental, and ethical objectives. The author calls for this reform to move decisively toward a fifth generation of procurement Directives that embed social responsibility as a binding element, not merely an optional one.
Finally, the study advocates for the development of robust monitoring and evaluation systems capable of measuring the real social impact of public contracts –such as employment generation, gender equality, and social inclusion– through measurable indicators. Only by combining legal reform with institutional capacity-building and transparent evaluation can public procurement become an effective driver of sustainable and inclusive development.

In essence, this article contributes to the academic and policy debate by revealing the persistent gap between the European strategy for socially sustainable procurement and its limited national practice, and by proposing a coherent agenda for reform that integrates social justice, economic efficiency, and democratic governance within the evolving European public procurement model.

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La contratación pública socialmente responsable ha sido configurada por la Unión Europea como una herramienta de primer orden para coadyuvar a la ejecución de otras políticas públicas, tales como el respeto y la promoción de los derechos sociales en general y de las personas con dificultades de acceso al mercado de trabajo en particular. El objeto del presente trabajo pretende ofrecer una exposición de la doctrina emanada de los Tribunales encargados de resolver el recurso especial en materia de contratación sobre algunas cuestiones recurrentes relacionadas con la compra pública estratégica en estos sectores. Así, se abordará la doctrina de estos órganos en aspectos tales como la obligación de subrogación de los trabajadores, la reserva de contratos en favor de las entidades de la economía social, con epígrafe especial relativo a la reserva de residuos textiles instaurada por la Ley 7/2002, de 8 de abril, de residuos y suelos contaminados para una economía circular. Finalmente, también se analizará el incumplimiento de la obligación por parte de las empresas de más de cincuenta trabajadores de contar con un plan de igualdad, ofreciendo la postura de los tribunales al respecto.

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DOCTRINE OF THE CONTRACTUAL APPEALS COURTS ON SOCIALLY RESPONSIBLE STRATEGIC PUBLIC PROCUREMENT

This article aims to provide an overview of the current situation in Spain regarding strategic public procurement, from a social perspective, through an analysis of the doctrine of the courts responsible for ruling on special appeals in procurement matters (PMC).

The paper addresses a series of issues closely related to socially responsible public procurement that have given rise to various rulings by the PMC.

Some judicial rulings on this matter will also be analyzed. Among them is the recent Supreme Court ruling of October 16, 2025, which confirms the reservation of contracts in favor of special employment centers of social initiative, a long-awaited ruling.

Firstly, the issues arising from the duty of subrogation in public contracts will be discussed, with particular attention to cases affecting social economy enterprises. In this way, the unanimous doctrine of the PMC on the obligation to subrogate the workers of the previous contractor is explained, which will only arise when so provided by law or a collective bargaining agreement. Administrative clauses do not give rise to the obligation of subrogation. Particular mention will be made of the National Court ruling of March 20, 2023, which makes an exception to this rule in the case of special employment centers under Article 130.2 of the Spanish Public Procurement Law (SPPL).

We will also look at contract reservations and the problems arising from their application. Thus, AP 4 SPPL provides for the reservation of contracts—or certain lots thereof—in favor of special social initiative centers and integration companies, which has given rise to numerous conflicts, both at the European and national levels. The Court of Justice of European Union ruling of October 6, 2021 (Conacee) upheld this possibility provided that the principles of equal treatment and proportionality are respected, referring the matter back to the national court.

After several contradictory rulings, the recent Supreme Court ruling of October 16, 2025 upheld the legality of the reservation, considering it to be neither contrary to the principles of equality nor proportionality.

Among the particularities of reserved contracting, the problems arising from cases of reservation in the case of contracts for the collection, transport, and treatment of textile waste and furniture and household goods provided for in AP 19 of Law 7/2022, of April 8, on waste and contaminated soil for a circular economy, will also be discussed. There are several rulings by the PMC on this matter that will be analyzed.
Another aspect of social contracting is respect for the principle of equality between men and women. The new wording of the SPPL in Article 71 establishes that companies with 50 or more employees that do not have an equality plan registered are prohibited from contracting. Once again, the correct understanding of this provision has given rise to a considerable number of rulings by the PMC on: the need to have a registered plan; the legitimacy of trade unions to challenge a contract for this breach; the appropriate configuration of the need to have an equality plan in the specifications; or the possibility for the bidder to present self-cleaning measures.

The paper concludes with a critical review, which concludes that socially responsible procurement is advancing gradually and inexorably, perhaps not as quickly as some would like, but steadily nonetheless.

No operator involved in public procurement can be unfamiliar with the new parameters currently governing the procurement of goods and services, where exclusively economic criteria are being abandoned in favor of other criteria, such as social criteria, which may be taken into account when awarding a contract.

The PMCs are also not immune to these new postulates, as demonstrated by the various statements included in this article.

However, the path is not easy, and there are interpretative doubts that must be resolved, with the risk of creating mistrust about this new form of contracting. In this regard, it is considered that definitive rulings are necessary on some of the issues raised by the judicial bodies responsible for establishing legal doctrine.

On the other hand, in line with the approach taken by European institutions, we advocate clear regulations, resulting from agreement and accepted by all stakeholders, which would accelerate the achievement of the proposed objectives.

The revision of the Public Procurement Directives, currently on the EU’s agenda, would be a good opportunity to address and resolve the issues raised throughout this article.

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A pesar de constituir la espina dorsal de las economías nacionales, las pequeñas y medianas empresas (pymes) se encuentran infrarrepresentadas en los procedimientos de contratación pública si lo comparamos con el importante peso que tienen. Esto se debe a la existencia de diversas barreras que dificultan e incluso excluyen su participación. Ante esta situación, se han venido proponiendo y adoptando por parte de la Unión Europea y de España diversas medidas con la finalidad de promover el acceso de estas empresas en los procedimientos de licitación. Aun así, a día de hoy persisten estas dificultades para las pymes. El presente trabajo tiene como objetivo, precisamente, abordar la cuestión del acceso a la contratación pública por parte de las pymes, examinando las barreras que impiden su participación, así como las medidas que se han adoptado para superarlas o contrarrestarlas.

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SME’S ACCESS TO PUBLIC PROCUREMENT

The importance of procurement for the public sector has been demonstrated from multiple perspectives and dimensions. From a quantitative point of view, this area is characterized by its ability to mobilize vast amounts of resources. Likewise, from a qualitative or strategic perspective, public procurement has stood out for its reach into virtually all sectors of the economy, standing as a fundamental tool for implementing public policies. Precisely this latter, clearly instrumental, aspect means that public procurement, as a tool at the service of the public sector, has a clear pliable component, capable of adjusting to an infinite number of purposes: from contributing to the sustenance and functioning of the entire framework of goods and people that make up the various public administrations, to the achievement of socially desirable objectives.

Thus, this approach to public procurement, called strategic, transcends the traditional function of satisfying the public sector’s needs for goods and services. It puts the power of public purchasing at the service of other policies considered strategic, such as social policy. With this, the public contract ceases to be a purely fiscal tool and becomes a means of market intervention, guiding and strengthening business behaviours that are beneficial to the general interest. That is, it is even configured as a technique for promoting private action, especially when it incorporates environmental or social clauses.

Within this strategic vision of public procurement, a key aspect is the fostering of SME participation. SMEs constitute the backbone of national economies, not only for their weight in the country’s business sphere but also for their significant pulling capacity. Indeed, SMEs contribute notably to job creation, innovation, and productivity, among other aspects. This is why they are the main objective of government economic policies, which seek to favour the necessary conditions to stimulate their growth and exploit their potential. Some measures to achieve these goals are the creation of an adequate and stable regulatory and institutional framework, facilitating access to resources—especially financing—, the development and promotion of an entrepreneurial culture, or fostering access to markets. Precisely within this last point, the conditions for accessing public procurement stand out as a fundamental element.

The conditions under which SMEs access bidding procedures have received special attention from public authorities. In the European Union, various measures and recommendations have been proposed in recent decades to foster the participation of these companies in public procurement, especially through different soft law instruments, but also through directives. As will be seen, these proactive—and legislative—efforts are not an isolated activity limited to the specific field of procurement but are part of a broader, transversal policy aimed at promoting SMEs and the economy in general, especially since the 2008 international financial crisis. Likewise, this concern has also been reflected in various national legislations, where public authorities have incorporated several measures to foster access to public procurement, as is the case in Spain with its Public Sector Contracts Law of 2017.

This paper aims to investigate this very issue to shed light on the causes that hinder it—that is, the barriers that make it difficult (or, in some cases, even prevent) SMEs from participating in bidding procedures—as well as the remedies that are being applied and could be applied by public authorities to reverse this situation. To achieve this purpose, we will structure the work into the following parts:

In the first part, we will examine the evolution of public procurement legislation from the perspective of SMEs. It is important to note that the evolution of national legislation on public procurement has been closely linked to the development of EU law. Therefore, any analysis of the former cannot ignore or fail to reference the latter. In this sense, we will first address the main milestones that have occurred at the EU level and how it has opted in recent decades for a policy aimed at facilitating the participation of SMEs in procurement, especially since the 2008 financial crisis. We will pay special attention to the latest package of EU Directives and the main changes they have brought about concerning SMEs. After examining the above, we will move on to discuss the Spanish case—the Public Sector Contracts Law of 2017 and its main new features regarding SMEs.

The second part will focus on analysing the main barriers that SMEs face in accessing public procurement. We will begin by presenting some preliminary issues whose analysis will allow us to better understand the obstacles these companies must often overcome. It should not be forgotten that not all SMEs have the same characteristics or compete in the same sectors. Likewise, not all the difficulties faced by SMEs are found within the bidding procedure itself; as will be seen, they can also be found in the very structure and characteristics of these companies. Once these issues have been clarified, we will proceed to examine the different barriers that hinder access to procurement. Although the literature has addressed this issue extensively, using different classifications, we will distinguish between those barriers that are inherent to the bidding procedure—such as contract type and design, qualification requirements, administrative burden, or insufficient information—and those that are more related to the culture of the entities that make up the public sector—for example, the risk aversion that contracting bodies may have and how this is transferred to the field of public procurement.

Finally, in the last part, we will review what we consider to be the most important measures implemented under Directive 2014/24/EU on public procurement and by the Spanish law. Among the measures contained in the latte, we have selected five that we highlight in relation to small and medium-sized enterprises: first, the “simplification of capacity and solvency requirements”; second, “the division into lots”; next, “access to subcontracting”; fourth, “the guarantee requirement”; and finally, “administrative simplification and electronic procurement.” In this review, we will place special emphasis on the division of the contract into lots, as it is the issue that has aroused the most practical interest. We also highlight two aspects that, in our opinion, require more effort: administrative simplification and digitalization. We believe that while a considerable effort has been made to support SME procurement through a variety of measures, to maximize their effectiveness, greater administrative simplification, better dissemination of information, and continuous, rigorous evaluation of their real impact would be desirable, adapting policies to the changing needs of the business fabric. The implementation of these measures, while seeking to be a significant boost for SMEs, has a mixed outcome. We also allude to the necessary reinforcements in terms of knowledge, information dissemination, and a change in the mindset and culture of all operators, without losing sight of the principles that inspire public procurement and that must always be weighed when adopting measures to promote or reinforce a specific group, especially the principles of efficiency and free competition.

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Conforme con lo previsto en las directivas comunitarias en materia de contratación pública, la LCSP contempla la reserva de contratos en favor de ciertas entidades de economía social. Su implementación, de carácter obligatorio para las Administraciones públicas, pretende favorecer la contratación de personas con dificultad para el acceso al empleo por razones de discapacidad o de vulnerabilidad social. La comprensión de su régimen jurídico exige prestar atención a la doctrina administrativa y judicial mediante la que ha sido interpretada. Con todo, no debe dejar de apuntarse la disimilitud con que ha sido establecida en la práctica, así como las dificultades para hacerla jurídicamente efectiva.

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THE RESERVATION OF CONTRACTS FOR SPECIAL EMPLOYMENT CENTERS AND INTEGRATION COMPANIES: ITS TREATMENT IN SPANISH ADMINISTRATIVE AND JUDICIAL DOCTRINE

The integration of social considerations into public procurement has led to their inclusion in various aspects of administrative procedures aimed at obtaining works, goods, and services. The procurement process no longer serves merely the internal needs of the Administration, but rather takes into account the promotion of social, environmental, and economic objectives, thus connecting this unique administrative activity with the needs of the society in which it operates.

Spanish legislation addresses this concern in aspects such as award criteria, special execution conditions, subcontracting, and tie-breaking criteria for bidders with the same score. Social concerns are particularly evident in the obligation to hire people with disabilities in certain percentages, as stipulated in the consolidated text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion, approved by Royal Legislative Decree 1/2013 of November 29, as well as in the provision for reserved contracts. This last aspect is what will occupy our attention in this article.

Among the public sector contract reservations provided for in EU directives on the matter and in Spanish legislation, the one currently regulated in the fourth additional provision of Law 9/2017, of November 8, on Public Sector Contracts, which transposes into Spanish law Directives 2014/23/EU and 2014/24/UE/EU of the European Parliament and of the Council of February 26, 2014, stands out. These reserved contracts aim to favor entities that employ individuals who face greater difficulty integrating into the labor market due to social vulnerability or disability. The introduction of measures aimed at contracting with these entities indirectly benefits the people who work for them, which is the true purpose of Directive 2014/24/UE/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as stated in recital 36 and Article 20.

The entities targeted by these reserved contracts are primarily special employment centers, social integration enterprises, and occupational workshops. A significant percentage of vulnerable people and people with disabilities work for these entities. Within special employment centers, it is worth noting the distinction between two categories: those of a business initiative and those of a social initiative. The introduction of the latter by the fourteenth additional provision of Law 9/2017 of 8 November has been one of the most significant developments in the implementation of this type of contract in Spanish legislation. Its most relevant singularity, compared to special employment centers of business initiative, lies in having been created or being controlled by non-profit entities, as well as by the duty they must assume in the sense of proceeding to the full reinvestment of their profits in favor of disabled people, either in the special employment center itself that produces them or in other different ones.

In Spain, the implementation of this reserved contract has a relatively long history, beginning with its inclusion in Law 30/2007 of October 30, on Public Sector Contracts. Subsequent reforms, particularly Law 31/2015 of September 9, which amends and updates regulations on self-employment and adopts measures to promote and encourage self-employment and the Social Economy, have brought about some substantial changes. Of particular note are the mandatory establishment of these reserved contracts by public administrations and the gradual narrowing of the range of entities that can participate in them. This last aspect has generated the most controversy, especially regarding the exclusion of social enterprises by Law 9/2017 of November 8th, a matter on which significant rulings have been issued by the administrative bodies responsible for resolving special appeals in public procurement matters and, very significantly, by the Court of Justice of the European Union and, more recently, by the Administrative Chamber of the Supreme Court.

Although the concept of reserved contracts, in its current state of regulation, simply implies the right to participate in the bidding process and, where applicable, to be awarded a contract or one of its lots, there are some other unique features that characterize its legal framework. The applicable regulations do not reveal major special features, and those that exist relate to ancillary matters such as the tender notice or the final guarantee. However, a more in-depth examination of the doctrine of administrative bodies with advisory or decision-making powers in contractual matters reveals a greater complexity in the problems arising from the application of their legal framework.

The purpose of this paper is to focus on these unique aspects in order to help identify potential areas for improvement in the current regulations governing reserved contracts. To this end, the strategy employed is to thoroughly examine the doctrine of the contracting tribunals, supplemented by some significant pronouncements from the advisory boards on public procurement. Of course, an examination of judicial doctrine, as expressed in various judgments of the administrative courts, primarily the administrative chambers of the High Courts of Justice, the National Court, and, less frequently, the Supreme Court, is also essential.

Our study also highlights the unsatisfactory conclusion reached by the excessive diversity afforded by the fourth additional provision of Law 9/2017, of November 8, which grants each Administration broad discretion in choosing the types of contracts, procedures, and percentages of its overall contracting to which the reserve may be extended. Scholarly opinion and certain administrative bodies have consistently emphasized this deficiency.

The prevailing freedom in this area calls for reflection on the possibilities for social economy entities to promote the establishment of reserves by public administrations, as well as the implementation of actions to guarantee their compliance once established. At this point, the difficulty in finding precedents for litigation seeking their establishment is striking. Everything seems to indicate that there may be some procedural impediment behind this, a situation on which this work introduces a line of research that has been scarcely or not at all addressed to date, and which will be developed in greater detail in future publications. In doing so, we manage to connect the substantive regulation of the figure in the public sector procurement regulations with the procedural legislation.

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La acción concertada es un instrumento organizativo de naturaleza no contractual para la prestación a las personas de servicios de carácter social o sanitario cuya financiación, acceso y control son de competencia de una Administración Pública. En función del modo de adjudicación -en concurrencia competitiva o mediante adjudicaciones automáticas a entidades homologadas- se diferencian los acuerdos de acción concertada de primera y segunda generación.
Hoy en día la doctrina admite de manera pacífica que los acuerdos de acción concertada de segunda generación son una modalidad no contractual para gestionar indirectamente servicios a las personas. Sin embargo, resulta controvertido el carácter no contractual de los acuerdos de acción concertada de primera generación toda vez que en ellos se produce una comparación de ofertas.
Teniendo en cuenta lo anterior, y a la luz de los últimos pronunciamientos judiciales, en el artículo se exploran las posibilidades de reorientar la acción concertada de primera generación con el fin de preservar su originaria configuración como una figura de carácter no contractual.

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THE COOPERATION WITH THE PRIVATE SECTOR REGARDING THE PROVISION OF SOCIAL SERVICES OF GENERAL INTEREST AS NON-CONTRACTUAL AGREEMENTS AT STAKE

The so-called “concerted action” is a Spanish non-contractual institution to provide services of general interest closely linked to health and social care whose financing, access, and control are the responsibility of a Public Administration. Its objective is to preserve the non-profit action in these areas given tha these entities play a social cohesion role.

The European Commission soft law and the Court of Justice of the European Union case law have settled down the basis to develop the “concerted action” by allowing exceptions and adjustments to the freedoms of establishment and provision of services, as well as to competition law.

An assessment of “concerted action” acts in Spain reveals two patrons of agreements. The first-generation model -implemented in the Regions of Aragon, Asturias, the Balearic and Canarian Islands, Catalonia, Castilla-La Mancha, Madrid, Murcia, La Rioja and Valencian Community- is characterised by a two-stage process of bidding tenders between previously approved entities. The second-generation model, on the other hand, does not require competitive bidding given that agreements shall be signed with all entities that have passed the approval process. This is the case in the Basque Country and Spanish State Administration.

Although “concerted action” is considered as a non-contractual institution by law, in the absence of a definitive ruling by the Supreme Court, the High Courts of Justice of Aragon and Valencian Community have already ruled that first-generation agreements worth more than €750,000 are contractual in nature.

These statement from the courts, however, contradicts the original meaning of “concerted action” agreements. To maintain its essence, the purpose of this paper is to redefine “concerted action” agreements framework as an institution to provide services of general interest in cooperation with the non-profit sector and to make a legislative proposal in that regard. To this end, it would be necessary to enable patients and users to access to non-profit entities services without the need for referral by the Administration. In this way, “concerted action” agreements would be no longer a public-private partnership, would lose its contractual nature, and would become into a public financial compensation.

Furthermore, “concerted action” agreements do not seek to replace the management of social services under public-private partnerships, but rather to complement it. Its aim is to strengthen the non-profit sector without the need to turn its performance into a public utility.

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Esta investigación aborda la contratación pública desde la especialidad que comporta encuadrar a las cooperativas y sociedades laborales y participadas en el marco de la economía social, teniendo en cuenta: por un lado, su especial regulación en la adquisición y pérdida de la condición de miembro, en el caso de las cooperativas, y en la adquisición y transmisión de las acciones y participaciones, respecto de las sociedades laborales y participadas; y por otro, la figura del socio, que participa el reparto de los beneficios sociales, así como en la dirección y propiedad de la sociedad.
Este estudio, además, aproxima a los tipos sociales caracterizados por su concepto y principios orientativos directamente vinculados a los valores de la economía social. Con ello, las sociedades cooperativas, las sociedades anónimas laborales y las sociedades de responsabilidad limitada laboral, además de las llamadas por el legislador sociedades participadas, quedan sujetas a una regulación específica y particularmente ligada a una variedad de textos normativos de pertinente aplicación, entre ellos los reguladores de contratación pública. Ésta, desde la Ley de contratos del sector público de 2017, muestra cierta sensibilidad con las entidades de la economía social, fomentando su inclusión en el tráfico de las Administraciones públicas, particularmente mediante las reservas de participación.

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PUBLIC PROCUREMENT OF SOCIAL ECONOMY ENTERPRISES: SPECIAL REFERENCE TO COOPERATIVES AND WORKERS’ AND PARTNERSHIP COMPANIES

This work contributes to the world of legal research with a critical and systematic reinterpretation of cooperatives, worker-owned and shareholding companies in the context of public procurement, proposing their recognition as social economy entities beyond their legal form. The research offers an integrative interpretation of various regulatory bodies—the Public sector contracs law (LFSC) and Cooperatives law (CL), and Worked-own (LWOC), Sharehonding (LSC) and Capital companies laws (LCC)—and proposes a functional fit for reserved contracts, representing an original contribution to the doctrinal debate on the social economy and public economic law. Furthermore, it incorporates an analysis of recent national and European jurisprudence, reinforcing its value as a reference tool for legal practitioners, researchers, and public officials.

This article analyzes the role of cooperatives and of worker-owned and shareholding companies in the field of public procurement, framing them within the ecosystem of the social economy. It is based on the premise that these corporate entities, although they seek to make a profit incorporate principles and values specific to the social economy, such as democratic participation, the primacy of labor over capital, and an orientation toward the general interest. This dual nature—commercial and social—makes them hybrid entities that require specific legal treatment, especially regarding their access to public contracts.

The study focuses on the analysis of Law 9/2017 on Public Sector Contracts (LPSC), which transposes Directives 2014/23/EU and 2014/24/EU into Spanish law. Within this framework, the two regulatory avenues that allow the reservation of public contracts to entities with social purposes are examined: the Fourth Additional Provision (AD), which limits the reservation to Special Employment Centers with Social Initiatives and Integration Enterprises, and the Forty-Eighth Additional Provision, which opens the possibility of reserving social, cultural, and health service contracts to entities that meet certain functional requirements, without requiring a specific legal form. In addition, it comments other reservations such as the Nineteenth Additional Provision of Law 7/2022 on waste and contaminated soils for circular economy (LWCS) and the Article111 of Legislative Decree 1/2015, which approves the consolidated text of the Law on cooperatives of the Valencian Community (LCVC).

The article argues that, although the cooperatives, the employee-owned and shareholding companies do not easily fit into the 4th D LPSP and 19th AD LWCS—as their primary purpose is not a social interest purpose—they could access reserved contracts through AD 48 LPSC and Article 111 LCVC , provided they comply with the guiding principles of the social economy. This interpretation is supported by the fact that these companies promote employee participation in the ownership and management of the company, reinvest profits, and foster social cohesion and equal opportunities.

From a regulatory perspective, the article systematically analyzes the LFS), LC, WOCL, CL, LWOC, LSC and LCC, highlighting the need for an integrated interpretation to ensure the legal certainty of these entities in their contractual operations. The article also addresses the legal value of the principles of the social economy, highlighting that, although the Social economy law defines them as “guiding,” compliance with them is essential for an entity to be considered part of this sector. These principles include the primacy of people over capital, democratic management, internal and societal solidarity, and sustainability. It warns, however, that the lack of hierarchical and regulatory specification of these principles can generate legal uncertainty, particularly in the field of public procurement.

At the jurisprudential level, the Court of Justice of the European Union (CJEU) judgments of October 6, 2021 (Case C-598/19) and Of July 14, 2022 (Case C.436/20) an order of March 31, 2023 (Case-676/20), which interprets articles 20 and 77 of Directive 2014/24/EU, are analyzed. In Conacee judgement he Court admits that Member States may establish additional requirements for access to reserved contracts, provided they respect the principles of equality and proportionality. This ruling reinforces the idea that public procurement can and should be used as an instrument of social policy, allowing for the inclusion of entities, such as worker-owned companies, that contribute to the integration of vulnerable groups. In ASADE judgement and order the Court also allows Member States to create other reservations amongst article 77 of Directive 2014/24/UE.

It also examines relevant rulings from the Spanish Supreme Court and High Courts of Justice of Catalonia and Basque Country, which have upheld reservation clauses in favor of special employment centers with social initiatives, excluding those with entrepreneurial initiatives. These rulings confirm that national regulations can establish stricter criteria than those provided for in the Directive, provided they are duly justified. Complementarily analyses the Valencian and Aragonese High Court of Justice regarding “concerted action”, an Spanisch non-contractual institution, that apparently oppose to.

The article concludes that cooperatives and worker-owned and shareholding companies, due to their legal structure and alignment with the values of the social economy, should be recognized as legitimate operators in public procurement, both under open competition conditions and within the framework of reserved contracts. Their effective inclusion in these procedures requires, however, a flexible and targeted interpretation of the regulations, as well as oversight mechanisms that guarantee the authenticity of their participatory nature.
Ultimately, the article asserts the role of public procurement as a lever for social transformation, capable of promoting more inclusive, equitable, and sustainable business models. By placing workers at the centre of the business structure, worker-owned and shareholding companies offer a real alternative to the traditional capitalist model, contributing to the construction of a more humane and supportive economy.

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Las Directivas de contratación de 2014 permiten que los servicios a las personas se instrumenten a través bien de fórmulas contractuales, bien mediante mecanismos de financiación o concesión de licencias o autorizaciones a los operadores económicos que reúnan las condiciones fijadas por el poder adjudicador. Desde su competencia en materia de servicios sociales, las CCAA han articulado mecanismos de dispar naturaleza y régimen jurídico que han dado lugar a conflictos jurídicos de importante calado. El análisis normativo y la jurisprudencia comunitaria resultante de los procesos obliga a un examen actualizado de tales instrumentos, señaladamente aquellos que, bajo el concepto de concierto social, tratan de reservar a entidades sin ánimo de lucro la prestación de determinados servicios sociales. Todo ello sin perder de vista el interés público dirigido a la prestación de mejores servicios para las personas.

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LEGAL INSTRUMENTS FOR THE INDIRECT MANAGEMENT OF PERSONAL SERVICES, WITH PARTICULAR EMPHASIS ON SOCIAL CONCERT: INSIGHTS FROM LEGISLATION AND CASE LAW

This paper addresses the so-called “services for individuals,” a category that remains insufficiently defined and raises significant legal challenges concerning the instruments employed for their provision. Directive 2014/24/EU assumes that such services have limited cross-border interest and establishes: (a) for the application of the Directive to social services and certain specific services listed in Annex XIV, a higher financial threshold (€750,000) than that applicable to other social services; (b) once this threshold is exceeded, the applicable regime (Articles 74 to 77 of Directive 2014/24/EU) is more flexible, merely specifying certain publicity rules, award principles, and the possibility of reserving these contracts for certain entities (subjecting them to a strict regime).

Notwithstanding the above, Member States are granted broad discretion to choose the most appropriate means for delivering these services. In this regard, the Directive contemplates both direct management (i.e., using their own personnel and resources) and indirect management systems. Within the latter, contractual arrangements may be employed (service contracts, service concessions, or, where applicable, mixed contracts), but also non-contractual instruments, among which the “social agreement” or “concerted action” (both terms appear in regional regulations) are included. The way this latter option has been regulated has generated significant legal disputes, the resolution of which still leaves certain uncertainties.

The root of the problem lies in Law 9/2017 of 8 November on Public Sector Contracts, which transposed the EU procurement directives (fourth-generation directives) into Spanish law. The reasons are manifold: (a) despite the law’s detailed nature, the opportunity to regulate the flexible regime permitted by Articles 74 to 77 of the Directive was missed. Some of its provisions were incorporated, but only partially and incompletely. This circumstance has created a gap which, combined with other provisions of the law, has fostered confusion regarding the rules applicable to certain social service contracts; (b) Additional Provision 49 of the LCSP expressly provides that Autonomous Communities, within their sphere of competence, may legislate “by establishing non-contractual instruments for the provision of public services aimed at meeting social needs.” This provision is consistent with the exclusion in Article 11.6 LCSP, which removes from public procurement rules “the provision of social services by private entities, provided that such provision does not require the conclusion of public contracts, though, among other means, the simple financing of these services or the granting of licenses or authorizations to all entities that meet the conditions previously set by the contracting authority, without limits or quotas, and provided that such a system ensures sufficient publicity and complies with the principles of transparency and non-discrimination.”

These elements explain the existence of regional laws and decrees regulating social agreements as a means of providing certain services for individuals, albeit with notable differences in various aspects: the object of the provision, beneficiary entities, funding… but above all, differences in key aspects such as the conceptualization and determination of the legal nature of this instrument. This latter point is particularly sensitive because, while some regulations conceive social agreements as non-contractual organizational instruments, others classify them as public contracts, and still others avoid taking a position, limiting themselves to a mere description of the figure.

Two regional regulations have been the subject of preliminary questions referred by Spanish courts to the Court of Justice of the European Union, resolved by the judgment of 14 July 2022 (Asade I) and the order of 31 March 2023 (Asade II). In these rulings, the CJEU acknowledges that the Directive does not preclude the possibility of reserving the conclusion of service provision agreements to non-profit private entities in exchange for reimbursement of the costs incurred by such entities. In any case, for this to be permissible, it is necessary: (a) that the legal and contractual framework in which the activity is carried out contributes to the social purpose and the objectives of solidarity and budgetary efficiency that justify such provision; and (b) that the principles of publicity, competition, and transparency are respected.

Following these decisions, both Spanish courts and certain procurement review bodies have resolved disputes in line with EU case law, albeit introducing significant nuances and considerations, which are analysed in this paper.

Furthermore, the resolution of these conflicts highlights certain inconsistencies or issues that remain inadequately addressed. In this regard, the paper argues for an integrative interpretation that takes into account: (a) the new strategic paradigm that should guide public procurement—namely, procurement as a means of socio-economic intervention aimed not only at supply but also at achieving public policies of a social, environmental, and innovative nature, which thus far have yielded modest results; (b) the advisability of Public Administrations, in their discretionary choice of means for providing services to individuals, being guided by the principle of good administration; and (c) the need to avoid the expansive force of public contracts to the detriment of mechanisms that prioritize solidarity and public-private collaboration from perspectives unrelated to market logic. In short, an approach focused on individuals, characteristic of the Social Economy.

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Con este artículo se pretende conocer las características y el peso de la contratación pública de empresas de economía social por parte del Gobierno de las Islas Baleares, específicamente en los ejercicios comprendidos entre 2018 y 2024, ambos inclusive. En primer lugar, se hace referencia a las oportunidades que ofrece la legislación sobre contratación pública a la hora de contratar particularmente con empresas de economía social; después, se repasan las políticas de fomento de la economía social que se han venido aplicando en los últimos años desde el Gobierno de las Islas Baleares. La parte central del artículo sirve para analizar con detalle los datos de contratación de empresas de economía social por parte de esta administración autonómica.

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PUBLIC PRODUREMENT OF SOCIAL ECONOMY COMPANIES BY THE GOVERNMENT OF THE BALEARIC ISLANDS (2018-2024)

This article aims to understand the characteristics and impact of public procurement of social economy enterprises by the Government of the Balearic Islands, specifically for the years 2018 to 2024, inclusive. The main business forms of the social economy are: cooperatives, worker-owned companies, mutual societies, special employment centers, integration companies, fishermen’s guilds, associations, and foundations (Serrano, 2019). Article 5 of Law 5/2011, of March 29, on the Social Economy, states that “the social economy includes cooperatives, mutual societies, foundations and associations that carry out economic activity, worker-owned companies, social integration enterprises, special employment centers, fishermen’s guilds, agricultural transformation companies, and unique entities created by specific regulations governed by the principles established in the preceding article” (Law 5/2011, on the Social Economy). This article addresses these enterprises. Furthermore, it aims to evaluate the legal effectiveness of public procurement instruments as policies for promoting the regional social economy.

The starting hypothesis of this article is that the percentage of public procurement of social economy enterprises will be below the 4.2% estimated in 2021, which was the proportion of this business model in the Gross Domestic Product (GDP) of the Balearic Islands. This is the view of the Spanish Business Confederation of the Social Economy (CEPES) in its 2023 Analysis of the socio-economic impact of the values ​​and principles of the social economy in Spain. This is also below the 5% target established in the now-defunct Master Plan for the Social Economy of the Balearic Islands 2018-2022. The assumption is that the percentages corresponding to imports (in euros) will be lower than those obtained with respect to the number of contracts.

The first part of the article addresses the opportunities offered by legislation on public procurement of social economy enterprises. Secondly, it reviews the social economy promotion policies implemented in recent years by the Government of the Balearic Islands. The main part of the article provides a detailed analysis of the procurement data for different types of social economy enterprises by this regional administration. It also lists the main specific social economy enterprises with the highest levels of procurement by the Government of the Balearic Islands.

According to the Economic and Social Council of the Balearic Islands (CES), the social and solidarity economy is a type of economic activity that, in the context of the Balearic Islands, has a greater qualitative than quantitative impact, despite the increase in recent years in both the number and scope of initiatives, under different legal forms and in different productive sectors. In recent years, the growth of the social economy in the Balearic Islands has been slight but sustained, although it remains outside the objectives set out in the defunct Master Plan for the Social Economy of the Balearic Islands 2018-2022, which proposed that 5% of the autonomous community’s GDP be generated through social economy formulas, as explained above.

The results obtained in this article indicate that the percentages of public contracts awarded to social economy companies by the Government of the Balearic Islands are low, both in terms of amount and number of contracts, compared to the total public contracts of the Balearic regional administration. Specifically, the evolution of contracts awarded to social economy companies by the Government of the Balearic Islands between 2018 and 2024 was as follows: 169 contracts in 2018, 142 in 2019, 115 in 2020, 100 in 2021, 165 in 2022, 147 in 2023, and 200 in 2024 (a total of 1,038 contracts). Regarding the total amounts of contracts, they were: 6,075,908.78 euros in 2018, 8,852,416.01 euros in 2019, 8,265,781.93 euros in 2020, 26,193,573.37 euros in 2021, 19,177,851.63 euros in 2022, 16,310,011.45 euros in 2023 and 15,378,297.64 euros in 2024. The year with the highest proportion of contracts in relation to the total public procurement of the Balearic Government is 2021, with 4.10% (in terms of total amount). This is the only figure that comes close to the 4.20% we referred to in the article’s introduction. As hypothesized at the beginning of this article, the figures are below this 4.20% (weight of the Balearic Islands’ social economy in 2021) and 5% (the target for the Balearic Islands’ social economy weight at the end of the year, which was set as the horizon and objective to be achieved in the defunct Master Plan for the Social Economy of the Balearic Islands 2018-2022). The initial hypothesis, therefore, is confirmed after a detailed study of the years between 2018 and 2024 regarding public procurement of social economy companies.

If we look at the type of contracts awarded to social economy companies in the period analyzed, the most common is, by far, the service contract, with a total of 883 contracts out of a total of 1,038. If we look, meanwhile, at the procedure for contracts awarded to social economy companies in the same period (2018-2024), we see that the most common is the minor contract (436 contracts), followed by the open contract (317 contracts). Next, we find the negotiated contract without publicity (116), the simplified open contract (108), and the one derived from a framework agreement (59).

Regarding the average amount of contracts awarded to social economy companies, its evolution between 2018 and 2024 was as follows: 35,952.12 euros in 2018, 62,340.96 euros in 2019, 71,876.36 euros in 2020, 261,935.73 euros in 2021, 116,229.40 euros in 2022, 110,952.46 euros in 2023 and 76,891.49 euros in 2024. In the different years analyzed, the overall average amount per contract is clearly higher than that calculated only for social economy companies, with the exception of 2021, due to a very large award to a foundation.
In conclusion, it can be stated that there is still a long way to go in the public procurement of social economy enterprises by the regional administration of the Balearic Islands. This article reviews the current regulations surrounding public procurement, including important tools such as the reserve of contracts, which allows for prioritizing social economy initiatives, although it is not used as frequently as necessary to promote this type of business. Reference has also been made to the policies developed in recent years by the Balearic Government, which, as explained, are poorly funded and their results are modest. This limited resource requirement for promoting the development of social economy business models means that the percentages of contracts and amounts, as a percentage of total public procurement, are below the targets set by the Balearic Government itself (5%) or the weight of the social economy in the autonomous community’s GDP (around 4.2%).

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El Proyecto de Ley integral de impulso de la economía social trata de procurar y mantener el avance de las sociedades cooperativas y que sus principios y valores sigan mejorando en eficacia y productividad. Ello implica, entre otros aspectos, la adaptación de su funcionamiento a las nuevas formas de comunicación y participación basadas en las tecnologías emergentes. Así, en el presente estudio se proponen las reformas necesarias de la reglamentación aplicable a las entidades cooperativas para actualizarla, esencialmente, en cuanto al funcionamiento de sus órganos sociales y en lo que respecta al ejercicio de los derechos de las personas socias que forman parte de ellas.

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DIGITIZATION OF COOPERATIVE SOCIETIES ACCORDING TO THE DRAFT COMPREHENSIVE BILL TO PROMOTE THE SOCIAL ECONOMY

The Council of Ministers has approved the Comprehensive Bill to Promote the Social Economy and the Council of Ministers Agreement of April 11, 2023, which approves the Spanish Social Economy Strategy 2023-2027. In this work, we are particularly interested in the necessary reforms that the Draft Law incorporates into cooperative regulations to bring them up to date with the electronic and technological environment. In particular, it includes a series of formal requirements that, directly or indirectly, involve the use and implementation of emerging technologies in these social economy entities. We refer, among other provisions, to the creation (voluntary or mandatory) of a corporate website and the content to be published on it, the use of electronic communications as a mechanism for communication between the cooperative and its members, the announcement of the General Assembly and the exercise of the right of attendance, participation, and voting by members, aspects of the functioning of the Governing Council, and access to cooperative registers.

Therefore, the adaptation of cooperative societies to electronic technologies will affect not only the mechanisms of information and participation and the functioning of their corporate bodies, but also the exercise of members’ rights by digital or telematic means, as we will have occasion to analyze in this study. However, it should be noted from the outset that some of the general aspects covered by the draft law in this area have already been addressed in the most recent regional cooperative regulations. We refer to the Balearic, Madrid, Basque, and Canary Islands regulations. They have even been included in other previously approved regulations (such as the laws of Extremadura, Andalusia, and Catalonia), which followed the content of the regulations governing capital companies.

The technical formalities involved in the cooperative implementation of technologies, specifically as instruments of transparency and information, are based on the security and guarantee of electronic communications exchanged and, in turn, on the willingness of members to use electronic means to receive or request the relevant information and exercise their corporate rights. These aspects allow us to observe and clarify the regulator’s intention to include new technologies in the corporate practice of cooperatives. However, it should also be interpreted as a mechanism for increasing transparency and improving the functioning of these social economy companies and, in turn, a guarantee of the exercise of certain rights of the members. In this regard, adapting the internal functioning of cooperatives to current forms of communication and participation based on electronic technology is an appropriate mechanism for exercising the right to information and the right to attend and participate in decision-making in corporate bodies.

In this context, we begin with a legal assessment of the amendments that the Bill introduces to Law 27/1999, of July 16, on Cooperatives. Firstly, cooperatives made up of five hundred or more members are required to create and register a corporate website with a minimum amount of content in the corresponding registry. At the same time, members must be guaranteed accessibility and transparency of the information provided. The creation of this website will be optional for other cooperatives. The conceptual definition of a web page or electronic page allows us to state that it is a set of information from a website that is displayed on a screen and may include text, audiovisual content, and links to other pages. The terminological scope of this concept requires a specific interpretation to differentiate between a simple web page belonging to an entity with a commercial purpose and a corporate web page. Only in relation to the latter is compliance with the minimum functions set out in the regulation required. That is, the necessary agreement approved by the General Assembly and recorded in the corresponding Register and its official publication, so that the content provided for therein produces the appropriate legal effects. The establishment of a corporate website and the use of electronic and technological resources in cooperative societies can be understood as tools that provide clarity and adequate information and communication to members and third parties. Specifically, we refer to the information that cooperatives must include and maintain on their corporate website and the announcement of the General Assembly meeting. In other words, this information must be provided through media that ensure its effective dissemination and free access. The duty (or possibility) of creating a corporate website is to provide a portal for general information and, at the same time, to diversify content that may be of interest only to members. But this also facilitates and improves the exercise of members’ rights in cooperatives, which are: the right to information, the right to participate in corporate bodies, the holding of fully remote meetings, and the possibility of voting remotely. These elements promote the corporate image of the cooperative society.

The reforms introduced by the bill to implement electronic or telematic means in cooperative societies are appropriate in their approach. However, the provisions of the Comprehensive Bill to Promote the Social Economy have not provided for a uniform approach to the establishment of a corporate website for cooperatives and the content and functionalities that may be enabled.

On the other hand, the regulatory reform provides for the incorporation of technology in the convening and holding of the General Assembly and the governing body of the cooperative society. The Assembly may be in person, entirely telematic, or mixed (using telematic means partially). The type of Assembly chosen will be included as minimum content in the call for the meeting. When the Assembly is held entirely or partially online, the announcement of the call for the meeting must also include information on the procedures for registering and drawing up the list of attendees and exercising rights, and the minutes must indicate how the meeting was conducted. The means by which the Assembly can be convened are also expanded.

In short, although we will have to wait for the proposed regulatory changes to be approved and implemented in order to make a correct interpretation, a uniform system for the use of emerging technologies in this sector must be established. And compliance with basic security and guarantee requirements in the use of electronic and telematic means must be ensured.

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Las comunidades energéticas se han constituido como una herramienta clave en el nuevo modelo de transición energética impulsado por la Unión Europea (UE), democratizando la producción de energía renovable, permitiendo a ciudadanos, pymes y autoridades locales convertirse en prosumidores. La UE ha definido dos figuras fundamentales, las comunidades de energía renovable y las comunidades ciudadanas de energía. A nivel nacional, su incorporación ha tenido un escaso desarrollo. El régimen fiscal aplicable en España a estas entidades depende de varios factores, atendiendo a su modelo de consumo y producción, y a la personalidad jurídica que adquieran. A nivel estatal, les podrá afectar el Impuesto Especial sobre la Electricidad, el Impuesto sobre la Producción de Energía Eléctrica y el IVA. A través del presente trabajo se analizan los recientes avances normativos en los modelos de transición e independencia energética propuestos por la UE como camino hacia su empoderamiento, el régimen jurídico de las comunidades energéticas, las implicaciones fiscales derivadas del autoconsumo y de la producción energética, y su viabilidad como entidades del Tercer Sector.

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ENERGY COMMUNITIES. LEGAL FRAMEWORK, TAX REGIME AND CONSOLIDATION AS THIRD SECTOR ENTITIES

This paper examines the legal and fiscal framework of energy communities, placing them within the energy transition process promoted by the European Union and highlighting their potential for integration into the Third Sector. It is based on the premise that energy communities are a key element in democratising the production and consumption of renewable energy, encouraging the direct participation of citizens, small businesses and local authorities in the generation of clean energy and the reduction of carbon emissions.

From a European perspective, these figures are part of the objectives of the European Green Deal (2019) and the Fit for 55 package (2021), which set the horizon for achieving climate neutrality by 2050. In this context, citizen participation is an essential element in achieving a just energy transition. Directives (EU) 2018/2001 and 2019/944 incorporated for the first time the notions of Renewable Energy Communities (REC) and Citizen Energy Communities (CEC), respectively, giving these structures formal legal recognition. Both respond to the same principle: the collective organisation of energy activities under participatory, non-profit legal forms oriented towards social and environmental benefits.

Despite regulatory recognition, the development of energy communities in Spain has been limited. Their incorporation came about through Royal Decree-Law 23/2020, which amended Law 24/2013 on the Electricity Sector, but regulations specifying how they operate are still lacking. According to data from the Institute for Energy Diversification and Saving (IDAE), updated in 2025, there are 146 registered energy communities, with more than 116,000 members, most of which are constituted as cooperatives or associations. This incipient progress contrasts with the consolidation of the model in other European countries, where the regulatory framework and tax incentives have favoured more solid growth.

The energy context in the European Union is characterised by the need to reduce dependence on fossil fuels and to promote renewable sources. Initiatives such as REPowerEU and Regulation 2024/1735 promote decarbonisation and the expansion of clean technologies such as solar, wind and green hydrogen. Similarly, Directive 2024/1275 reinforces energy efficiency and building renovation, highlighting the importance of citizen participation and local authorities. These measures, together with electrification and self-consumption strategies, consolidate the framework in which energy communities can play a decisive role.

At the doctrinal level, energy communities represent new forms of organisation that promote the decentralisation of electricity production, consumer empowerment and distributed generation. The Renewable Energy Community, regulated by Directive 2018/2001, is defined as a legal entity based on open and voluntary participation, controlled by members who are close to the generation projects, with the aim of generating environmental, economic and social benefits for the local area. The Citizen Energy Community, covered by Directive 2019/944, shares this philosophy, although it does not limit its activity to renewable sources or require territorial proximity. It may also carry out complementary activities such as distribution, storage or recharging of electric vehicles.

In Spanish law, Law 24/2013 on the Electricity Sector distinguishes between the two figures, incorporating Articles 6 j) and 6 k), and Articles 12 bis and 12 ter. However, it should be noted that the transposition has been incomplete and lacks regulations detailing the rights and obligations of these entities. There are inconsistencies with Royal Decree 244/2019, especially with regard to the maximum distances allowed for shared self-consumption (2 km compared to the 5 km provided for by law). Despite these shortcomings, the new Integrated National Energy and Climate Plan (2023-2030) considers energy communities to be agents of economic revitalisation in rural areas and instruments for reducing energy poverty, reinforcing their social and territorial dimension.

The article provides a detailed analysis of energy self-consumption, regulated in Article 9 of the Electricity Sector Law, which is defined as the consumption of energy generated by facilities close to the points of consumption. Two types are distinguished: self-consumption without surpluses, when the energy is not fed into the grid, and self-consumption with surpluses, which allows the injection of surplus energy. The latter can be carried out with compensation, when the surplus energy is deducted from the bill, or without compensation, in which case an actual sale of energy takes place. Collective self-consumption, typical of energy communities, promotes cooperation and efficiency in local production.

In terms of taxation, the study analyses three main tax figures. The Special Tax on Electricity (IEE), regulated by Law 38/1992, taxes electricity supply and self-consumption at a rate of 5.112 %, although it provides for significant exemptions for renewable installations of less than 50 MW and for self-consumption with surpluses covered by compensation. The Tax on the Value of Electricity Production (IVPEE), created by Law 15/2012, imposes a 7 % tax on income from electricity production incorporated into the system. Although its legality was confirmed by the CJEU ruling of 3 March 2021 (C-220/19), legal doctrine considers it an obstacle to clean energy due to its revenue-raising nature. This tax does not apply to self-consumption or to production intended for internal consumption. Finally, Value Added Tax (VAT), in accordance with Law 37/1992, affects energy supplies when there is financial compensation. Self-consumption with compensation is not subject to VAT, while in the sale of surpluses, the community acquires the status of entrepreneur or professional, having to charge the tax and being able to deduct the amounts paid.

Energy communities can be fully integrated into the Third Sector, as they share the principles of democratic participation, social purpose and non-profit status. Their natural legal form would be a cooperative or association, due to their ability to combine environmental sustainability, territorial cohesion and social benefits. In addition, they can contribute to revitalising rural areas, promoting energy equality and generating resilient local economies. However, their consolidation requires a more precise legal framework, stable tax incentives and effective coordination between public administrations and local entities.

It is concluded that energy communities constitute a new paradigm of energy governance, in which citizens move from being passive consumers to becoming energy producers and managers. This model, aligned with European decarbonisation objectives, democratises access to energy and encourages social innovation. However, Spain needs to make progress in regulatory clarity and tax simplification to ensure its expansion and sustainability. Only through a favourable legal and tax environment will it be possible for these entities to consolidate their role within the energy system and the third sector, contributing decisively to the transition towards a more just, participatory and sustainable economy.

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La Ley 16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal incorpora varias medidas orientadas a fomentar el tejido productivo de la economía social. Se trata de la primera ocasión en la que este tipo de políticas se insertan en la normativa concursal, por lo que nos encontramos ante un nuevo hito en la constante evolución del Derecho de insolvencia que está llamado a crear un área de intersección entre las instituciones concursales (específicamente las relativas a la transmisión de unidades productivas) y las reglas de la economía social con las que confluyen. Las medidas introducidas consisten en priorizar las ofertas de adquisición de la empresa (o de la unidad productiva) presentadas por trabajadores organizados en una sociedad cooperativa, laboral o participada. Y el objetivo de este trabajo es analizar, desde una perspectiva jurídico-mercantil, las normas que establecen dicha preferencia en el marco del concurso de acreedores.

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COMPANY ACQUISITION OFFERS SUBMITTED BY WORKERS ORGANISED IN SOCIAL ECONOMY SCHEMES: PRIORITY INSOLVENCY REGIME

Law 16/2022, of 5 September, reforming the revised text of the Insolvency Law, contains several measures aimed at promoting the social economy, specifically seeking to promote the transfer of the company (or production unit) to the employees of the insolvent company who are interested in taking over the business. The measures included in Royal Legislative Decree 1/2020, of 5 May, approving the revised text of the Insolvency Law, consist of giving priority to offers to acquire the company (or production unit) submitted by workers organised in a cooperative, a labour company or an employee-participated company (Articles 219.2 and 224 bis, paragraphs 3 and 6 LC). Furthermore, a new case for the capitalisation of unemployment benefits is introduced in Law 5/2011, of 29 March, on the Social Economy, with the aim of financing the acquisition of the company by the workers in the context of insolvency proceedings (Article 10 bis).

The measures mentioned above are part of a new wave of public policies to promote the social economy adopted by a large number of countries in our region in recent years. These policies are supported by the institutions of the European Union and have been implemented in a context of profound economic, political and social change, with the aim of addressing the main contemporary challenges (such as the climate crisis, growing inequalities in certain indicators, the increase in armed conflicts and the fiscal crisis of the State), as it is considered that the social economy can play a key role in consolidating the European social pillar, thus contributing to achieving a more inclusive and sustainable growth model.

One of the pillars of these new policies is to promote the transfer of “conventional” businesses to their employees or the conversion of commercial companies into social economy models; this is known as employee buyouts or worker buyouts. In this regard, the EU has stated in several resolutions and reports the need to facilitate the transfer of companies to employees, both in cases of economic crisis and in cases of lack of successors due to the retirement of the employer. The measures introduced by Law 16/2022 are in line with this, as they aim to take advantage of the debtor’s insolvency to enable its workers to acquire the company (or the production unit) and take over the economic activity through a newly created social economy company.

It should be noted that the transfer of businesses to employees has traditionally been contemplated and promoted in Spanish legislation, although with different means and intensity depending on the context. In neighbouring countries, this movement has happened to varying degrees, although the measures adopted in Italy and France tend to stand out. Outside Europe, the effectiveness of the measures adopted in Argentina is often noted.
In any case, this is the first time that measures to promote the social economy have been included in insolvency legislation, marking a new point of reference in the ongoing evolution of this legal field, which is set to create an area of intersection between insolvency institutions (specifically those relating to the transfer of production units) and the rules and principles of the social economy with which they converge. This is the field in which our work is situated, analysing, from a legal perspective, the rules that give priority to bids for the acquisition of the company (or the production unit) submitted by workers organised in a cooperative, a labour company or an employee-participated company.

In order to achieve the proposed objectives, this paper begins with an analysis of the reasons given for introducing the rules of preference and priority into the insolvency regime for the transfer of productive units. In this regard, the advantages of social economy enterprises in preserving employment in times of crisis are examined, as are the references in Directive 2019/1023 on restructuring and insolvency to the social costs of insolvency, and the content of social economy promotion plans (at both European and national level) relating to the transfer of businesses to their employees.

The following four sections examine the most relevant aspects of these rules. First, their objective scope of application is defined, with the aim of identifying the cases of transfer of the insolvent company’s business in which these rules will apply. In this regard, the legislator opted to include two rules in two different channels of transfer of the company, one as an appendix to the preference rule applicable to insolvency auctions (Art. 219.2 LC) and the other in the regime for filing for insolvency with the submission of an offer to acquire a production unit (Art. 224 bis, 3 and 6 LC).

Afterwards, the subjective scope of application of the rules of preference and priority is determined. Thus, the subjects who may submit a priority bid are worker: those natural persons who perform work subject to the Workers’ Statute. Furthermore, this is a case of plural legitimacy, as this type of bid must be made by several employees linked to the debtor.

The work continues with an analysis of the content that such offers and proposals must include, given that, in addition to the general requirements, they must incorporate certain specific elements that condition access to prioritisation. Offers and acquisition proposals submitted by employees under Articles 219.2 and 224 bis, 3 LC must comply with the general requirements set out in the insolvency regulations, for example, they must be submitted within the established deadlines (see Articles 217 and 224 bis, 2 LC), be binding (Article 224 bis, 1 LC) and incorporate the minimum content established in Article 218 LC. In addition, it follows from Articles 219.2 and 224 bis, 3 and 6 LC that the bid submitted by the employees must include, as a requirement for its prioritisation, a commitment to set up a cooperative, a labour company or an employee-participated company.

The last section (divided into two subsections) focuses on the scope of the rules of preference and priority in the process of selecting the winning bid, which is the responsibility of the insolvency judge. With regard to insolvency auctions, bids submitted by employees will be given priority when their overall economic impact on the interests of the insolvency proceedings is equivalent to the highest bid submitted by another party.

On the other hand, Article 224 bis, 6 LC incorporates a rule of absolute priority for the acquisition proposal submitted by the employees, which means that the judge must approve it in preference to any other proposal submitted, provided that it has an impact on the interests of the insolvency proceedings that is equal to or greater than the best bid submitted by another party and meets the established requirements. And in this case too, the priority rule will apply when the workers’ proposal is equivalent to the highest bid submitted by another party. It should be noted that it will be sufficient for the workers to achieve this equivalence through the process of improving the proposals regulated by the first paragraph of Article 224 bis, 6 LC (if it was not initially achieved).