1) The ruling and the principle of law set forth.
In its ruling of 5 February 2026 (Case C-810/24), the Court of Justice of the European Union decided against the right of pre-emption in the context of the Italian project financing mechanism, imposing the non-application of said mechanism in Public-Private Partnership procedures.
More specifically, the CJEU found said mechanism, provided for by the Italian law on public procurement, which allows the promoter of the project who was ultimately not awarded the contract at the end of the tender procedure, to obtain the contract by adapting its proposal to the conditions of the best bid, to be incompatible with the EU legislation and principles.
The ruling directly concerns the provisions of the previous Article 183, paragraph 15, Legislative Decree 50/2016 (the former Code of public contracts), which gave the promoter the above-mentioned right of pre-emption, with the related obligation to reimburse, within the percentage limit thereby provided for, the expenses incurred by the original successful bidder.
The actual scope of the ruling, however, does not only involve the prior Code of public contracts: in fact, its impacts are disruptive with regard to the current legislative framework, as a pre-emption mechanism is still provided for – in a comparable manner – by the current Article 193, paragraph 12, of Legislative Decree 36/2023.
2) Reasons for the decision: ex post modification of the bid and distortion of competition.
On the merits, the Court of Justice identified the critical issue in the effects that the pre-emption mechanism has on competition. In fact, the right given to the promoter to adjust its bid ex post to the ranking already established gives it an advantage without providing for any counter-balancing measure to the other bidders, allowing it to intervene on its proposal when the outcome of the competition has already emerged, in violation of the principle of equal treatment between participants, which requires all of them to have the same opportunities when formulating their bids. Conversely, allowing a single operator to “optimize” its bid ex post (i.e. after gaining full knowledge of the conditions of the winner) irreparably collides with the principle of fair competition.
At the same time, the Court also highlighted the possible dissuasive effect on participation (the so-called “barrier to entry”), especially for operators established in Member States that are not their States of incorporation, since the uncertainty introduced by the pre-emption mechanism affects the predictability of the outcome of the procedure and, therefore, the interest in participating in it. Furthermore, the principle of transparency, according to the CJEU, requires that the rules be clear and the results definitive. Pre-emption, on the other hand, introduces a phase of uncertainty that undermines the final nature and legal certainty of the award decision.
According to the CJEU, the criticisms of the regulatory framework for project financing remain valid even with the provision that allows the original successful tenderer to obtain the reimbursement of the expenses linked to the tender procedure and the initial project creation, as this is an economic corrective measure that does not eliminate the competitive asymmetry caused by the ex post remodulation allowed only to the promoter.
3) The European context and the intervention of the Corrective Mechanism.
The issue, however, arose in a context in which guarantees of compliance with the principles of impartiality and transparency in relation to national project finance regulations were already subject to attention at European level.
In fact, in a letter of formal notice dated 8 October 2025, the Commission had initiated the relevant infringement procedure, pointing out persistent instances of non-compliance of the Italian legislative framework with the EU directives on public procurement, with specific regard, among other things, to the pre-emption mechanism.
Indeed, with the entry into force of Legislative Decree 209/2024 (the so-called “Correttivo Appalti”, which amended the Code of public contracts, Legislative Decree 36/2023), the promoter’s proposal was subject to a special publicity regime, opening a period for the submission of alternative or competing proposals: the ruling, however, – by fundamentally affecting the pre-emption mechanism and calling into question its compatibility with EU law – makes this intervention, regardless of its relevance from a procedural point of view, nevertheless insufficient in itself to ‘save’ the mechanism.
4) Conclusions.
Following the ruling in question, it will also be necessary to consider the non-application of the provision currently contained in Article 193, paragraph 12, of Legislative Decree 36/2023, as it reproduces the pre-emption mechanism declared incompatible with EU law in the ruling.
In this respect, it is also worth noting that the earliest domestic decisions have already begun to extend the implications of the CJEU’s ruling to the corresponding provisions of the new Public Contracts Code. In particular, in Advisory Opinions Nos. 14/2026 and 15/2026, delivered on 26 February 2026, the Emilia-Romagna Regional Court of Auditors stated that, although the CJEU judgment formally concerned Legislative Decree No. 50/2016, the incompatibility identified by the Court stems from fundamental EU principles governing concessions that apply in the same way under Legislative Decree No. 36/2023.
On an operational level, this requires Public administrations and economic operators to assess the structure of ongoing and future procedures with caution, including the high risk of litigation and the (in)stability of the award outcome.
What remains to be seen is whether, and on what terms, the legislator intends to introduce alternative methods aiming at promoting private initiative mechanisms, as it is pivotal for the Italian State to utilize legislative levers to mobilize privately owned assets, as the economic interest in the investment in public infrastructures and services will play a crucial role in the future development of the Nation.
Edited by: The Administrative Law Team