The case, explained
The Primacy of EU Law on Competition in Public Tenders
6 min read · Updated May 2026 · Editorial oversight: Avv. Federico Papa
The entry into force of Legislative Decree No. 36/2023 consolidates a jurisprudential path that began years ago, marking the definitive end of automatic mechanisms in Italian project financing. In accordance with the rulings of the Court of Justice of the European Union and recent orientations of the higher courts, the conflict between domestic legislation and European treaties has mandated the immediate disapplication of national rules granting disproportionate advantages to promoters of public initiatives. Through a reconstruction of the facts and legal analysis, this article illustrates how the principle of equal treatment prevails over the economic expectations of individual operators, examining real events before presenting a pedagogical twin case to help clarify the practical application of this delicate balance between private investment and free competition.
In brief
This analysis examines the disapplication of Article 183, paragraph 15, of Legislative Decree No. 50/2016 concerning the promoter's right of preemption in project financing. Case law, adopting CJEU principles, has established that this right distorts competition. The article explores the consequences for contracting authorities and remedies for second-placed bidders, offering a practical guide for administrative law practitioners.
The Fact
The matter stems from a series of concessions for the management of local infrastructure. According to reports in industry press, several companies participating in project financing tenders challenged the final awards.
The core issue was the promoter's exercise of the right of preemption: an operator who, despite submitting an offer inferior to that of the winning bidder, could match the successful bid and secure the contract.
The dispute moved from the regional administrative courts of first instance up to the Council of State. Given its EU law relevance, the issue was referred to the European Court of Justice, leading to a definitive ruling declaring the Italian provision incompatible with the principles of freedom of establishment and freedom to provide services.
The Rules in Play
At the center of the dispute lies Article 183, paragraph 15, of Legislative Decree No. 50/2016 (the 2016 Public Procurement Code), which allowed the promoter to step into the award within 15 days of notification of the tender outcome.
This domestic provision conflicts with Article 49 TFEU (Freedom of establishment) and Article 56 TFEU (Freedom to provide services), as well as Directive 2014/23/EU on concessions.
The purpose of European rules is to ensure that every economic operator in the Union can compete on equal terms, preventing the proposer's technical advantage from turning into an exclusionary privilege that discourages participation by other international competitors.
What Jurisprudence Says
National and EU case law has clarified that the right of preemption cannot operate automatically or without adequate justification based on the general interest. The courts have emphasized that such a mechanism fundamentally distorts *par condicio* among bidders.
The settled legal position now requires the public administration to disapply the national provision conflicting with EU law, establishing that competition for the market must prevail over protecting the individual proposer's expectations.
In the absence of exceptional and proportionate grounds, the preemption mechanism discourages potential competitors from submitting improved bids, knowing that the promoter could simply match and appropriate those terms.
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What it Teaches Professionals
1. Verification of EU law: Practitioners must continuously assess whether provisions of the Public Procurement Code comply with EU law, as disapplication of conflicting domestic rules can occur without prior reference to the Constitutional Court.
2. Risk assessment for promoters: Legal advisors assisting promoters must clarify that preemption is no longer an untouchable safeguard, making it essential to submit a competitive offer from the very beginning.
3. Drafting tender documents: Contracting authorities should structure project financing procedures by eliminating automatic advantages, thereby avoiding paralyzing litigation that halts public works for years.
References: Art. 183 D.Lgs. 50/2016Art. 49 TFUEArt. 56 TFUEDirettiva 2014/23/UEArt. 193 D.Lgs. 36/2023
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Frequently asked questions
What happens if a tender notice still provides for automatic preemption?
According to current case law, such a clause is unlawful due to conflict with EU law and can be challenged by competitors or directly disapplied by the contracting authority and the administrative judge.
Is the promoter entitled to compensation if they lose the preemption right?
The promoter is generally entitled only to reimbursement of documented design costs within statutory limits, whereas no damages are due for the missed award if the tender was conducted in accordance with competitive principles.
Does the statute of limitations affect these appeals?
In administrative proceedings, strict statutory deadlines apply: appeals against tender notices or award decisions must be filed within the 30-day deadline under penalty of forfeiture (Article 120 of the Code of Administrative Procedure).
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