Council of State, section V, 20 marzo 2025, n. 2291, Italy
Article(s) in Directive 2014/24/EU: Art. 19(2)
Topic: Business unit transfer during tender stage; Consortium participation
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
This ruling is significant because it clarifies the legal treatment of stable consortia and their executing members in public procurement. The Council of State confirmed that the consortium itself, rather than its individual executing members, is the tender participant. It allows consortia to adapt internal structures – such as replacing executing members due to business reorganizations – without automatic exclusion, provided such changes are not aimed at circumventing qualification requirements. This promotes flexibility and legal certainty for consortia in public tenders while safeguarding the integrity of procurement procedures against abuse.
The topic tackled in this dispute was in part already addressed also by the CJEU, particularly in relation to the change of a consortium’s structure during a procurement procedure. In C-396/14 (MT Højgaard and Züblin), the Court had accepted certain changes in the composition of tendering consortia after the submission of the tender. In particular, the Court ruled that a sole remaining member of a consortium is allowed to continue a public procurement procedure independently after the consortium dissolves – provided that it still meets all tender requirements and no disadvantage is caused to other bidders.
The tension of the case at stake lies between, on the one hand, allowing for flexibility to economic operators while, on the other, ensuring that their identity aligns with the requirements of the procurement. This case exemplifies the Italian Council of State’s pragmatic approach to public procurement, echoing the reasoning of the CJEU in promoting a balanced interpretation of consortium identity and structural flexibility. By focusing on the intent to circumvent procurement rules as the decisive factor, the judgment ensures that legitimate business reorganizations—such as acquisitions or internal restructuring—do not automatically result in exclusion from public tenders.
2. FACTS
The case involves the award of a contract for daytime and nighttime armed security and surveillance services at the ISPRA headquarters in Rome. The contract was awarded to a consortium led by a certain company, while the appellant (Cosmopol) came in second. After the award, a business unit of one of the winning consortium’s executing members (Servizi Fiduciari Soc. Coop.) was acquired by a third company. The contracting authority allowed the consortium to correct the award by substituting the executing member.
In its first ground of appeal, the appellant argued that after the executing consortium member’s business unit was acquired by another company, the awarded consortium should have been excluded for losing its qualification requirements. Instead, the contracting authority allowed the consortium to correct the award, which the appellant claimed was against procurement laws and case law. The appellant also stressed that this executing member was crucial since it was responsible for providing security services that the lead company itself was not qualified to perform, and that this gap couldn’t be fixed by the later business acquisition.
The first-instance court rejected these claims on the basis that the competitor in the tender was the consortium as a whole, not the single company forming the consortium where the change occurred. In fact, it found that the corporate change was only an internal restructuring within the lead company of the consortium, not the consortium itself, thus not triggering exclusion under Article 48 of the former Italian Public Contracts Code (Temporary associations and ordinary consortia of economic operators). The Court also noted that the appellant had not shown that the change aimed to circumvent procurement rules, and that accepting the appellant’s argument would unjustly restrict the natural business operations of companies participating in public tenders.
3. JUDGMENT
The Council of State dismissed the appeal, clarifying that under Article 48(7bis) of the Italian Public Contracts Code, the participant in a tender is the consortium as a whole – not the individual executing members, even if it’s a temporary partnership with other companies. The Council thus clarified that stable consortia can replace designated executing members during the tender process, provided that it is not done to circumvent qualification requirements. In this case, although the lead company lacked the qualification and relied on Servizi Fiduciari, the latter’s business unit transfer was for business purposes, not to evade procurement rules, so no unlawful circumvention was found.
