Consiglio di Stato, sez. V, 3 December 2025, n. 9510, Italy
Article(s) in Directive 2014/24/EU: Article 18, par. 2
Topic: art. 11 d.lgs. n. 36 del 2023
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
The significance of this ruling (which, moreover, follows chronologically and logically from No. 2605 of 2025, which, however, focuses on other aspects relating to employment protection in national collective agreements) is evident from the explanation of the importance of determining the collective agreement so that the costs generated by the protections contained therein are made explicit. For this reason, the national collective agreement is one of the essential elements of the offer.
A further element is that this ruling can be placed in a broader context of interpretation and clarification of social and environmental requirements in public procurement, as the issue of the essential elements of the tender had already been addressed in terms of the environmental sustainability of products and services, with ruling Cons. di Stato – sez. III, del 2/11/2023 no. 9398, which defined the minimum environmental criteria (CAM) operating in Italian legislation as essential elements of the tender. In this context, paragraph 2 of Article 18 of the 2014/24/EU Directive has to be read with considering 37 and 39, since the former one clarifies that the discipline has to be applied to both Member States and contracting authorities[1] and the latter explicitly affirms that Noncompliance with the relevant obligations could be considered to be grave misconduct on the part of the economic operator concerned, liable to exclusion of that economic operator from the procedure for the award of a public contract[2]. This aspect is important in the selected Italian case, as the judgment reports the procedural steps which, according to the appellant, the contracting authority should have carried out to verify the regularity and validity of the bid. Before proceeding with the award or allocation, contracting authorities and granting bodies shall obtain a declaration in which the selected economic operator undertakes to apply the national and regional collective agreement indicated in the performance of the services covered by the contract for its entire duration, or a declaration of equivalence of protection. In the latter case, the declaration shall also be verified in accordance with the procedures set out in Article 110 in accordance with Annex I.01 of the Italian legislative decree 36/2023., in order to not unduly advantage the economic operator who was initially awarded the contract.
Any different collective agreement that is intended to be applied, in compliance with the principle of equivalence of protection for workers, is in line with the criterion of social utility referred to in Article 41 of the Italian Constitution, according to which economic initiative, although free, must not conflict with the protection of health, the environment, safety, freedom and human dignity[3].
In light of this context, it seems appropriate to gradually connect the rulings that define the essential elements of tenders in public procurement, as this allows us to identify in practical terms what is an expression of the principles contained in the directives, bringing social and environmental sustainability in this sector into line with the system.
[1] C. R. Hamer and M. Andhov, ‘Article 18, Public Procurement Principles, p. 199’, in European Public Procurement: Commentary on Directive 2014/24/EU, edited by R. Caranta and A. Sanchez-Graells Cheltenham; Northampton: Edward Elgar, 2021
[2] Commentario al nuovo Codice dei contratti pubblici, edited by G. F. Cartei, D. Iaria, Napoli: Editoriale Scientifica, 2023, p. 151.
[3] Codice dei contratti pubblici, annotato articolo per articolo, d.lgs. 31 marzo 2023 n. 36: (aggiornato al D.lg.s 31 dicembre 2024, n. 209, Decreto correttivo), edited by C. Contessa, P. Del Vecchio, G. Amisano, L. Carbone, Napoli, Editoriale scientifica, 2025, ed. 2, vol. 1, p. 48.
2. FACTS
An open procedure call for tenders, published on 13 May 2024, made by the contracting authority Autostrade per l’Italia s.p.a. – ASPI was launched for the signing of a framework agreement for the award of maintenance works on road markings and tunnel piers along the entire motorway network under the jurisdiction of Sections II, III, IV, V, VII, VIII and IX of ASPI. There were eight lots to be awarded with the criterion of the most economically advantageous offer. They were identified on the basis of the best price-quality ratio, pursuant to Article 108 of Legislative Decree No. 36 of 2023.
As far as this proceeding is concerned, lot 6 concerned maintenance work on the sections of the DT7 Pescara section, for a total tender amount of €15,910,000.00 (of which €3,660,000.00 was for safety costs), including labour costs. According to the appellant MFR Segnaletica s.r.l., second in the ranking, given the wording of the declaration on the national collective labour agreement applied and the failure to indicate the impact of overheads on the contract price, the contracting authority should have submitted the winning temporary consortium’s bid for verification of its suitability. The Administrative Court (TAR Lazio), in its judgment no. 7201 of 2025, dismissed the appeal. In fact, the Court of First Instance noted that it was entirely irrelevant that the successful tenderer, RTI Infravie, had, on the one hand, declared its commitment to apply the national collective labour agreement (CCNL) of the sector of construction provided for by the lex specialis , and, on the other hand, had prepared the bid, in relation to labour costs, on the basis of another CCNL: the fact that the Infravie temporary association of companies had not indicated the total amount of overheads could not lead to its exclusion from the tender, as the only requirement under the lex specialis was to indicate safety costs, a requirement that the appellant had clearly fulfilled.
The company MFR Segnaletica s.r.l., on its own behalf and as the parent company of the temporary consortium being formed with Erreci Segnaletica s.r.l.u. and Effetre Costruzioni s.r.l., challenged the above ruling, proposing the appeal to the Council of State, requesting that the claims made at first instance be upheld and that the framework agreement entered into be declared ineffective, with consequent takeover.
The company Cicas s.r.l., on its own behalf and as principal of the temporary association of companies with Infravie s.r.l., appeared in court to contest the appeal, requesting that it be dismissed. Infravie s.r.l. defended itself, concluding that the appeal should be dismissed. Autostrade per l’Italia s.p.a. appeared in court, requesting that the appeal be dismissed. The case was taken under advisement on 18 September 2025.
3. JUDGMENT
With the first ground, the appellant company claims that the contested judgment is erroneous insofar as the Court of First Instance rejected the first ground of the original appeal, which ‘criticised the ambiguous wording of the tender due to the asymmetry found between the national collective labour agreement (CCNL) to be applied during the execution phase and the information provided in the labour cost table’ which refers to a different one. The company argues that it is not possible to understand on the basis of which CCNL was used to verify the minimum wages. The Council of State considers these observations to be well-founded: the Italian Public Contracts Code establishes two possibilities for the economic operator when submitting a bid, namely to apply the CCNL identified by the contracting authority, or to apply a different CCNL, but proving that the latter offers guarantees equivalent to those indicated by the contracting authority. According to the third paragraph of Article 11 paragraph 4, of Legislative Decree No. 36 of 2023, in the tender notice, the contracting authority indicates the collective agreement applicable to the employees working on the contract, but this preliminary indication is not entirely binding on economic operators, who may indicate in their bid the different collective agreement they apply, provided that it is able to guarantee employees the same protections as that indicated by the contracting authority, and in any case without prejudice to the consistency of the collective agreement chosen by the company with the subject matter of the activity entrusted by the contracting authority.
With regard to lot 6, the successful temporary consortium made different statements, initially claiming to apply the national collective labour agreement for the metalworking industry and then subsequently undertaking to apply the national collective labour agreement for the construction industry, i.e. the one indicated in the tender law, without providing a statement certifying the substantial identity of the contents of the two agreements. The ambiguity of the tender must not be referred to the formal data, but to the absence of that element necessary to ensure that there is no difference in practice between the national collective labour agreements declared in the tender and in their actual application. In the absence of a declaration of equivalence pursuant to Article 11, paragraph 4, of Legislative Decree No. 36 of 2023, the economic operator has in fact proposed an “alternative” bid conditional on the future and uncertain event of the award of the contract. As a consequence, it obtains an effective advantage over the other participants in the tender. The Council of State therefore upheld the appeal, pointing out that the CCNL actually applied is an essential element of the bid (Council of State, No. 2605 of 2025), as it naturally affects the determination of labour costs and, therefore, the content of the bid: the application of one collective agreement rather than another has a direct effect on the labour costs indicated in the bid.
