Council of State, section VI, 18 June 2025, n. 5345, Italy
Article(s) in Directive 2014/24/EU: Art. 63, Art. 67
Topic: Award-related reliance on the capacities of other entities
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
This decision by the Italian Council of State resolves a tension in national jurisprudence over the admissibility and limits of the avvalimento premiale (award‑related reliance) when the element in question is a gender equality certification. With its decision, the Council of State emphasised that a gender equality certification is the result of a process that shapes the identity of an operator, as it is based on the organisation, processes, risks, objectives, and policies of each company. It provides a snapshot of the actual actions taken in terms of gender equality, with recognition that is unique and non-transferable, as it is closely linked to the specific context and corporate culture.
The CJEU has offered some clarifications on the rules for reliance on third party capacities, interpreting Art. 63 Directive 2014/24/EU as evolved from the old rule in Art. 48(3) Directive 2004/18/EU. In C-324/14, the contracting authority had rejected a tenders’ decision to rely on the technical capacity of a third party because ‘it took the view that the [third party]’s knowledge and experience could not be made available without the personal, actual participation of that company in the performance of the contract at issue’ (para. 25). In deciding, the CJEU emphasized that ‘a tender may not rely on the resources of other entities in order to satisfy in a purely formal manner the conditions required by the contracting authority’ (para. 38). According to certain authors, this establishes a general principle that requires a substantive assessment of the relationship between the main tenderer and third parties.[1] In particular, the CJEU held that
It is conceivable that, in specific circumstances, having regard to the nature and objectives of a particular contract, the capacities of a third party entity, which are necessary for the performance of a particular contract, cannot be transferred to the tenderer.
The Council of State’s judgment provides clarification in Italian administrative jurisprudence, aligning national interpretation of avvalimento premiale with the principles established by the CJEU. By recognising that gender equality certification can, in principle, be the object of award-related reliance, the decision promotes broader access to public procurement and supports the policy goals of inclusiveness and SME participation. However, apparently echoing the CJEU’s reasoning in C-324/14, the Council insists that such reliance must not be merely formal. The certification must be accompanied by a commitment that makes available the actual resources, organizational practices, and know-how that underpin it — consistent with the CJEU’s principle that third-party capacities must be concretely and effectively mobilised in the execution of the contract. This reflects the broader EU stance that the integrity of the procurement process depends not just on the letter of formal compliance, but on the substantive availability and transferability of the relied-upon capacities. In this way, the Council reinforces a functional reading of reliance on the capacities of others, ensuring it remains a tool for collaboration rather than a loophole for circumventing qualification criteria.
[1] A. Sanchez-Graells, ‘CJEU offers further clarification on rules for reliance on third party capacities and the possibility to impose restrictions thereof (C-324/14), How to Crack a Nut. A blog on EU economic law. Available at: https://www.howtocrackanut.com/blog/2016/4/8/cjeu-offers-further-clarification-on-rules-for-reliance-on-thid-party-capacities-c-32414
2. FACTS
In this case, the Council of State resolved a previously diverging caselaw on whether “avvalimento premiale” – that is award-related reliance on another entity’s certified qualifications – can be used for a gender equality certification under Article 46‑bis of Legislative Decree 198/2006 and Article 108(7) of the new new Italian Public Contracts Code (d.lgs. 36/2023). The new Code includes three types of reliance: traditional participatory/technical-operational, used to meet participation requirements; and award-related, intended to enhance the technical score of an offer, thereby encouraging SMEs’ participation by allowing them to borrow capabilities to gain evaluation advantage.
The Municipality of Bolzano had launched an open procedure for the provision of a replacement canteen service using electronic meal vouchers for the employees of the Municipality. The award criterion was that of the most economically advantageous tender, with a maximum of 70 points awarded for the qualitative assessment element and 30 points for the economic element. The qualitative evaluation element was then divided into various assessment criteria, among which ‘Q5_Certifications’, which concerned the ‘certification of gender equality referred to in Article 46bis of the Code of Equal Opportunities between Men and Women referred to in Legislative Decree No. 198/2006’, with two points awarded for possession of this certification. Only two operators, Endenred and 360 Welfare, submitted bids. After having verified the technical and financial bids submitted by the competitors, the contracting authority awarded Endered a total score of 96.17 and 360 Welfare a total score of 96.25. This latter was awarded 2 additional points in relation to the above-mentioned ‘Q5_Certifications’ by virtue of the bonus awarded for the gender equality certification made available by another company. Endenred challenged the award by contesting the possibility to compensate for the lack of the certification of gender equality. The first instance court annulled the award. The winning operator appealed.
3. JUDGMENT
The Council confirmed that this award-related form is valid in principle and serves EU competition and accessibility goals. In particular, gender equality certification qualifies under this mechanism. However, the Council of State stressed that the reliance contract must specify the exact human and material resources, organizational protocols, and business plans demonstrating the know‑how behind the gender equality certification. If the contract merely refers to a generic certificate without detailing concrete resources, it is null under Art. 104(1) of the new Italian Public Contracts Code. In this case, the contract failed this specificity requirement – as it lacked a clear description of what the auxiliary firm provided – and was therefore held null. The decision thus allows award-related reliance for gender equality certificates, but underscores contractual concreteness and effective resource availability to prevent its mere formalistic use.
