Consiglio di Stato, section V, 14 May 2026, no. 3805
Article(s) in Directive 2014/24/EU: art. 3 and art. 41, art. 30, recital 68
Topic: project financing and right of pre-emption after the Court of Justice judgement, consistency between the claims made and the court's ruling
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
art. 183 d.lgs. n. 50/2016, art. 193 d.gls. 36/2023
2. FACTS
The dispute concerns the procedure -in the broader context of the guidelines for the implementation of projects and initiatives of public spaces regeneration – conducted by the Municipality of Milan, which concluded with the signing of a contract for the design, supply, installation, operation and maintenance of 70 automated public toilets with the consortium comprising Digital Vox s.r.l. and VoxCommunication s.r.l.
Urban Vision s.p.a., second in the ranking, challenged the award decision and other related documents, inparticular the consortium’s exercise of the right of Promoter’s Right of pre-emption, which exists under Italian law. This right was granted to the consortium on the grounds that it had initiated the project.
The court of first instance dismissed the appeal. Urban Vision then lodged an appeal with the Court of second instance that stayed the proceedings, referring the following question to the Court of Justice: “Do the principles of freedom of establishment and freedom to provide services (Articles 49 and 56 TFEU) and Directive No. 2014/23/EU preclude the national rules on pre-emption contained in Article 183(15) of Legislative Decree No 50/2016?’.
The Court of Justice of the European Union, Second Chamber, delivered its judgment on 5 February 2026 in Case C-810/24.
At the hearing on 7 May 2026, the case was reserved for judgment.
3. JUDGMENT
The judgment was delivered following a reference for a preliminary ruling under Article 267 TFEU. The Court of Justice of the European Union ruled that a Member State may not grant the promoter of a project finance procedure a right of pre-emption which enables it, in the event that the contract in question was not initially awarded to them, to align their tender with that of the initially selected successful tenderer and thereby secure the award of that contract, provided that they reimburse the costs incurred by the initial successful tenderer. This kind of right infringes the principle of equal treatment (Article 3 of Directive 2014/23/EU), the principle of effective competition (Article 41 of Directive 2014/23/EU) and is contrary to the freedom of establishment (Article 49 TFEU). In particular, the principle of equal treatment requires that tenderers be on an equal footing both when preparing their tenders and when those tenders are evaluated by the contracting authority.
The effects of the Court of Justice’s ruling on the present case through procedural channels. The Urban Vision focuses on the incompatibility of the right of pre-emption clause with EU law and the consequent unlawfulness of the award decision: the tender documents have been challenged solely insofar as they provided for the right of pre-emption. The other tender documents, such as Decision No. 2576 of 30 March 2023 approving the tender documents, and the other parts of the contested measures – such as the section setting out the procedure and assigning a specific role to the promoter and their proposal – were not, however, contested and have therefore become final. The Court then proceeded to align itself with another principle established by the Court of Justice: to prevent procedural aspects relating to the conditions for bringing appeals from limiting the exercise of the rights conferred by the EU legal order on a Union citizen adversely affected by a decision of such an authority excluding them from a tender procedure (CJEU, Section III, 15 September 2016, C-439/14 and Grand Chamber, 7 November 2021, C-927/19, ECJ, Section VI, 27 February 2003, C-327/00).
The Council of State sets aside Article 183(15) of Legislative Decree No 50 of 2016, upholds the claim, annuls the award decision and orders Urban Vision S.p.A. to take over the contract already concluded with the consortium.
Comment:
The significance of this judgement lies in the fact that, through the preliminary ruling referred to the Court of Justice, an answer has been provided to a question that has been outstanding for years, namely whether or not the right of pre-emption is compatible with European law. The principles of competition, equal treatment and non-discrimination are, in fact, not satisfied in a situation where the exercise of the right of pre-emption results in a breach of equal treatment, as the promoter is able to take over the successful tenderer’s bid, with the sole obligation to reimburse them for the costs actually incurred in preparing the bid. Furthermore, this possibility acts as a disincentive to competitors, who invest resources knowing that the promoter can simply match their bid and win.
The procedural aspects highlighted enable us to discern the differences between European and Italian law in defining the consistency between the claims made and the court’s ruling as a principle, and subsequently to emphasise the primacy of the effective result over procedural mechanisms, in line with EU principles. In fact, as explained in this judgment[1], «The principle of the claim and the principle of correspondence between the claim and the judgement are, first and foremost, characteristic of the Italian rules governing administrative proceedings, which are based on the principle of party disposition. […] Administrative proceedings are therefore adversarial proceedings, governed, as a general rule, by the principle of the claim, as the “exclusive power of the party to determine its own material interest” is recognised through the request for judicial protection. […] Administrative jurisdiction is therefore not a jurisdiction based on objective law (Full Court Decision No. 5 of 27 April 2015), consistent with the meaning given to the principle of the claim in the wording of Article 24(1) of the Constitution, which refers to this principle whilst acknowledging the distinction between the two subjective legal positions of the subjective right and the legitimate interest as prerequisites for the exercise of the right to judicial protection, understood as a fundamental principle constituting the constitutional public order (Constitutional Court, 22 October 2014, No. 238)». EU law does not preclude the application of the principle of the claim: «The Court of Justice, whilst leaving it to the discretion of the Member States to lay down the specific conditions “under which such remedies may be exercised”, has repeatedly emphasised that those procedures “must not jeopardise the effectiveness of Directives 89/665 and 92/13, the aim of which is to ensure that unlawful decisions by contracting authorities may be the subject of an effective and, as far as possible, rapid remedy” (ECJ, Third Chamber, 15 September 2016, C-439/14 and Grand Chamber, 7 November 2021, C-927/19).Consequently, the Court of Justice’s procedural approach is, in any event, based on the lodging of an appeal, which must be guaranteed to have a practical effect». As seen, the procedural rule laid down by the Court of Justice is based on the abstract possibility of re-launching the tender procedure, whereas Italian procedural logic relies on a more practical and concrete approach.
[1] See pages 10-13
