Consiglio di Stato, sez. V, 5 December 2025, n. 9599, Italy
Article(s) in Directive 2014/24/EU: Art. 19, para. 2, Art. 63, para. 2
Topic: Service Contracts – Temporary Association – Participation Requirements – Discretion of the Contracting Authority
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
In order to understand the reasoning of the Council of State, Article 68 of the new Italian Public Contracts Code should be understood within a broader normative framework. This framework does not originate with the new Italian Public Contracts Code but is rooted in the previous regulatory regime of 2016 and in EU law.
Notably, the principle requiring a strict correspondence between qualification requirements and execution shares has traditionally been limited to works contracts. In contrast, for service and supply contracts, the definition of participation requirements has historically been left to the discretion of the contracting authority and the tender documents.[1] This distinction has not been altered by the entry into force of the new Code.
An important role in this respect is played by Delegation Law No. 78 of 2022, which required the delegated legislator (the Government), when reforming the Italian Public Contracts discipline, to act in a spirit of continuity and simplification of the system for qualifying economic operators. From this perspective, an interpretation of Article 68 that would newly introduce, for service contracts, a prohibition on the cumulative fulfilment of requirements within a temporary association would exceed the limits of the legislative delegation.
Similarly, the reference made in Article 68(11) to Annex II.12 (Qualification system and requirements for work executors) cannot be understood as a general extension to services of rules specifically designed for works contracts. That Annex governs qualification in a structurally different context, where the performance is divisible into autonomous categories and individual works. By contrast, in service and supply contracts, performance is generally unitary in nature. For this reason, the Council of State reaffirmed that Article 68(11) did not introduce a general, mandatory presumption of correspondence between quotas and qualifications in service contracts absent a clear tender documentation.
In addition, the Italian Anti-Corruption Agency (ANAC) had previously issued an Opinion[2] on the quantitative limits on participation in temporary associations and their compatibility with EU law, underscoring the broader public procurement and EU law context:
- ANAC stated that ‘modifications or quantitative limits on participation by temporary associations that impose general organisational constraints in themselves incompatible with EU procurement law are not permissible’, reaffirming that temporary associations’ member participation and internal quota allocation must respect qualification limits but cannot be generally constrained in a way that would unduly restrict participation;
- ANAC opinion highlights the need for coherence between declared requirements and the roles assumed within the temporary association, to ensure transparency and correctness in procurement procedures, while warning against rules that effectively undermine the principle of open competition.
Finally, it should be recalled that Directive 2014/24/EU adopts a qualitative and flexible approach to the participation of temporary associations. In particular, Article 63 of Directive 2014/24/EU expressly allows economic operators to rely on the capacities of other entities, and does not require mechanical proportionality between share of contract performance and independent qualification levels of individual members.
From this perspective as well, the notion of a general and mandatory rule requiring correspondence between execution shares and qualification requirements appears difficult to reconcile with the EU legal framework, which seeks to encourage competition and avoid unjustified barriers to participation by small and medium enterprises. This reading also aligns with ANAC’s emphasis that overly quantitative organizational constraints are incompatible with the broader EU procurement regime.
Against this background, the Council of State restores Article 68 of the Code to its function: a systemic provision that preserves the regulatory discretion of contracting authorities and does not introduce automatic mechanisms capable of unduly restricting, as a general rule, participation in temporary associations in service and supply contracts.
The Council of State proceeds from the premise that, where the applicable national and EU legal framework does not provide – at least in service contracts – for a general rule requiring correspondence between execution shares and qualification requirements, such a rule cannot be introduced by judicial interpretation, nor through the supplementation of the tender documentation. From this perspective, the reference to Annex II.12 contained in Article 68(11) cannot be attributed the scope assigned to it by the court of first instance: that Annex regulates a qualification system designed for public works contracts, which is based on the divisibility of the performance into autonomous components. Automatically transposing that logic to service contracts would disregard the different nature of the performance, which in services and supplies is, as a rule, unitary.
Once the existence of a mandatory rule imposing correspondence between execution shares and qualification requirements is excluded, the very premise for supplementing the tender rules falls away. Where, as in the case at hand, the tender documents expressly provides that technical and professional capacity requirements must be met by the grouping as a whole, the court cannot replace that regulatory choice with a different rule based on an extensive interpretation of Article 68. This conclusion is further reinforced by EU law. Directive 2014/24/EU allows contracting authorities to identify, on a case-by-case basis, specific essential tasks that must be performed directly by a particular member of the grouping. Precisely because this choice is reserved to the contracting authority, it cannot be supplanted by the court through the automatic application of a constraint that the tender documents did not establish.
[1] ‘RTI, requisiti e appalti di servizi: interviene il Consiglio di Stato’, in Lavori Pubblici, https://www.lavoripubblici.it/news/rti-requisiti-servizi-eterointegrazione-lex-specialis-consiglio-stato-9599-2025-37150 accessed 7 Jan 2026.
[2] Italian Anti-Corruption Agency (ANAC), ‘Parere funzione consultiva n. 21 del 21 maggio 2025’, 2025, available at: https://www.anticorruzione.it/-/news.04.06.2025.rti#p1.
2. FACTS
The dispute originated from an open European tender launched by the Italian Ministry of Infrastructure and Transport for the provision of support services for the monitoring and management of complex IT contracts. Several temporary associations participated. The contract was awarded to the first-ranking bidder, a temporary association, composed of Creasys S.r.l. as lead contractor and Information Services Group Italia S.p.A. as member.
The second-ranking bidder, Studi Tecnologie e Sistemi S.r.l., challenged the award. At first instance, in addition to objections relating to certain aspects of the technical offer, a specific challenge was raised concerning the participation requirements of the temporary association. In particular, the applicant alleged that one of the members of the grouping had failed to demonstrate possession of the technical and professional requirements in a proportion corresponding to the share of services it had undertaken to perform.
This was alleged to constitute a breach of Art. 68(11) of the New Italian Public Contracts Code, which – according to the appellant – should be regarded as a mandatory provision capable of supplementing the tender rules. The provision governs the participation of temporary associations, the allocation of contractual performances, and the verification of participation requirements, and rules that:
- Temporary associations and ordinary consortia of economic operators are admitted to the tender if the entrepreneurs or other groupings participating therein, or the consortia entrepreneurs, collectively possess the requirements concerning economic and financial capacity and technical and professional ability, without prejudice to the requirement that the performing member holds the qualifications prescribed for the part of the contract it has undertaken to execute pursuant to paragraph 2. The provisions contained in Annex II.12 apply insofar as they are compatible.
The Regional Administrative Court upheld this argument, holding that Article 68(11) requires – also in service contracts – a necessary correspondence between qualification requirements and execution shares. On this basis, the Court concluded that it would have been necessary to supplement the tender rules to include this rule, despite the fact that the tender specifications expressly provided that the participation requirements had to be met by the grouping as a whole.
This line of reasoning and, more broadly, the interpretation of the scope of Article 68 under the new Public Contracts Code was brought before the Council of State.
3. JUDGMENT
After a long examination of EU and domestic public procurement relevant laws (discussed in the Comment below), the Council of State ruled that in the absence of a clear provision in the tender rules, Article 68 of the Public Contracts Code does not permit the imposition, in service contracts, of a requirement that execution shares correspond to qualification requirements.
For contracting authorities, this interpretation confirms the possibility of tailoring participation requirements to the specific characteristics of the contract. For economic operators, it prevents expansive readings of the Code that risk leading to unnecessary exclusions. The judgment thus restores Article 68 to its natural boundaries, through an interpretation that reaffirms the central role of carefully designed tender.
