The Primacy of EU Competition Law in Public Tenders

1. The Facts

   The matter stems from a series of concessions concerning the management of local infrastructure. According to reports by trade publications such as Lavori Pubblici and Italia Appalti, several companies participating in project financing tenders challenged the final award decisions.

   The core issue was the exercise of the right of preemption by the promoter: an operator who, despite submitting an offer inferior to that of the winning bidder, was allowed to match the best tender and secure the contract.

   The litigation progressed from the regional administrative courts up to the Council of State. Given its EU relevance, the issue reached the European Court of Justice, leading to a definitive ruling that declared the Italian provision incompatible with the principles of freedom of establishment and freedom to provide services.

2. 

   The Legal Framework

   At the heart of the dispute is Art. 183, paragraph 15, of Legislative Decree 50/2016 (2016 Procurement Code), which allowed the promoter to take over the award within 15 days of notification of the tender outcome.

   This domestic provision conflicts directly with Art. 49 (Freedom of establishment) and Art. 56 (Freedom to provide services) of the TFEU, as well as with Directive 2014/23/EU on the award of concession contracts.

   The underlying rationale of EU regulations is to ensure that every economic operator within the Union can compete on equal terms, preventing the proposer's technical advantage from turning into an exclusionary privilege that discourages participation by cross-border competitors.

3. Case Law Orientations

   Supreme national and EU case law have clarified that the right of preemption cannot operate automatically or without strict justification based on the public interest. The courts have emphasized that such an automatic mechanism irrevocably distorts *par condicio*.

   The settled jurisprudence now requires contracting authorities and national judges to disapply the domestic 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 competitors from submitting improved bids, knowing that the promoter could appropriate the benefit of their design and financial effort.

5. Analysis drafted and verified with edit.legal

   To verify the provisions cited in this article, we used edit.legal. Test our legal AI on official sources and apply it to your own matters.

   Try edit.legal AI

8. What it Teaches Professionals

   1. Constant scrutiny of EU law compatibility: Practitioners must continuously verify whether provisions of the Procurement Code comply with EU treaties, as disapplication occurs directly before administrative courts without requiring a constitutional challenge.

   2. Risk assessment for promoters: Legal counsel advising private promoters must highlight that preemption rights no longer constitute a safe shield, making it imperative to submit highly competitive offers from the outset.

   3. Drafting compliant tender notices: Contracting authorities should structure project financing tenders by removing automatic advantages or disproportionate privileges to avoid 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

Editorial oversight: Avv. Federico Papa·ICAMUpdated 14 May 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction