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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

The Court of Cassation (judgment no. 15023 of 4 June 2025) recently ruled on the abuse of economic dependence in a franchising agreement. This is one of the first rulings by the Supreme Court on this issue, confirming a prevailing trend in case law on the matter. The relevant legal reference is Article 9 of Law 192/1998 on subcontracting, which is also applied by analogy to franchising, which provides: 1. It is prohibited for one or more undertakings to abuse the state of economic dependence of a client or supplier. Such dependence exists when an undertaking causes an excessive imbalance of rights and obligations in commercial relations. Assessment includes evaluating the abused party's ability to find satisfactory market alternatives. Abuse may also consist of refusing to sell or purchase, imposing unjustifiably onerous or discriminatory contractual conditions, or arbitrarily terminating existing commercial relationships. Any agreement that results in the abuse of economic dependence is null and void. The facts underlying the judgment in question stemmed from a franchise agreement relating to the opening and management of a coffee shop, which provided that the franchisee could withdraw from the agreement to avoid automatic renewal only if two conditions were met (purchase of a minimum quantity of coffee and termination of the lease of the commercial property where the business was carried out). The Court of Treviso, in its ruling no. 711/2021, had declared the aforementioned clause null and void, considering that the restrictions imposed on the franchisee to prevent automatic renewal constituted an abuse of its economic dependence on the franchisor and led to an unjustified imbalance between the parties. The Court of Appeal of Venice, in its ruling no. 1730/2021, upheld the first instance decision, with similar reasoning, considering that the elements of 'economic dependence' existed in the case in question (albeit generically and by analogy). The Court's ruling overturned the decision of the Venice Court of Appeal, considering that the latter had not actually verified the existence of the first condition, namely 'economic dependence'. The reasoning is interesting, revealing the liberal inspiration of the judge. In fact, the Court, referring to its own precedent (Cass. 1184/2020), reiterates the strict criteria for the application of Article 9 of Law 192/1998 on the abuse of economic dependence. Since this regulation affects contractual autonomy and goes beyond the principle of entrepreneurial self-responsibility, also taking into account the constitutional principle of freedom of economic initiative, the judge must assess all the factual and legal elements with particular rigour, without substituting his own assessment for that of the parties. In order to establish abuse, two distinct conditions must be met. Firstly, the existence of economic dependence does not coincide with a simple contractual imbalance, which is considered normal, but requires an 'excessive' imbalance in rights and obligations and the effective lack of economic alternatives on the market for the weaker party. Secondly, there must be arbitrary conduct contrary to good faith on the part of the dominant undertaking, i.e. vexatious behaviour aimed at obtaining advantages in addition to those deriving from the legitimate exercise of negotiating autonomy. Not every situation of dependence is prohibited, but only those that are abusively exploited. The burden of proof of the existence of a situation of dependence lies with the party invoking it. In the specific case, the Court criticises the appeal judgment for not having adequately verified the existence of economic dependence at the time of the conclusion of the contract and, indeed, for having reversed the reasoning, in that the lack of real economic alternatives on the market for the franchisee was considered a consequence of the alleged abuse, rather than a prerequisite for economic dependence. The Court of Appeal had, in fact, limited itself to referring to the assessments of the court of first instance, inferring dependence solely from the text of the contract. The Supreme Court therefore quashed the decision and referred it back to the Court of Appeal so that the new judge could ascertain whether, at the time of signing, the contractor was really without economic alternatives and forced to accept excessively unbalanced clauses. In fact, the ruling of the Court of Cassation is in line with the prevailing opinion among local courts, according to which the franchisee, at the time of signing, is not normally without economic alternatives and retains the freedom to accept or reject contractual conditions, even if they are unbalanced, which may be considered inherent in the type of activity to be undertaken, with the consequent exclusion of economic dependence in the absence of the strict conditions required by law. Edited by: Marco Durante

On 18 February 2026, the Council of Ministers approved the so-called “Energy Bills Decree”, which is part of a transformation of the national electricity system that seeks to combine consumer protection with industrial competitiveness and energy security, further influencing energy costs. The regulations relating to data centres were particularly eagerly awaited: the heterogeneity of the parties involved in the authorisation procedures, in addition to the lack of consistency in the regulatory framework, had hitherto led to serious obstacles to the development of data centres in Italy. Furthermore, from a forward-looking perspective, it is necessary to take into account the impact of data centres on electricity grids, given the enormous amount of energy that their operation will consume. The Energy Bills Decree now paves the way for definitive regulation of the sector. The preamble to the Decree refers to the European regulatory framework and, in particular, 'Delegated Regulation (EU) 2024/1364 of the European Commission of 14 March 2024 on the first phase of the establishment of a common Union classification system for data centres', which highlights the coordination between national and European regulations on data centres. Furthermore, the Decree refers to 'the extraordinary need and urgency to introduce measures aimed at promoting the resolution of the virtual saturation of electricity networks and the integration of data processing centres into the electricity system', thus clarifying that the regulatory intervention is intended to address the growing impact of digital infrastructure on the electricity grid. It is in this context that Article 8 of the Decree, dedicated to the authorisation profile of data centres, is introduced. The aforementioned provision stipulates that authorisation for the construction and expansion of data centres, as well as for the related user connection networks, of any voltage, is now granted through a single procedure by the authority competent to issue the integrated environmental authorisation (AIA). For projects already submitted to regional or provincial AIA procedures, the power to issue the authorisation will not be delegated to sub-provincial authorities. These provisions suggest that the decision to concentrate authorisation powers in this area in the hands of the AIA authority responds to the need to ensure a qualified technical assessment that avoids fragmenting the decision-making process, which, as we have seen, has been one of the main critical issues for the development of data centres to date. In order to obtain the single authorisation, the applicant is required to attach to the application all the documentation and project plans required by the specific sector regulations for the issue of authorisations, agreements, licences, opinions, concerted actions, clearances and approvals, including those necessary for integrated environmental authorisation, environmental impact assessment, landscape or cultural authorisation, water use and atmospheric emissions. In the case of projects subject to environmental impact assessment ('EIA'), the application must also contain a public notice certifying the submission of the application, indicating any consent required. This establishes a model in which the competent authority coordinates all the necessary assessments within a single procedure. The Decree also sets a specific time limit for the conclusion of the single procedure. In fact, this procedure shall not exceed ten months from the verification of the completeness of the documentation, while the deadlines for environmental impact assessments are halved. The ten-month deadline may be extended only in exceptional circumstances and in any case for a maximum of three months, depending on the nature, complexity, location or scope of the project. Authorisation is granted following an (asynchronous) service conference attended by all the competent authorities, including those responsible for environmental protection, landscape, cultural heritage, health and public safety. However, if the project is declared to be of national strategic interest, the single authorisation, which replaces any other necessary title, is granted in a single procedure under the jurisdiction of the Government's Special Commissioner for the implementation of investment programmes of national strategic interest. With regard to the connection of data centres to the electricity grid, for projects requiring a connection with a voltage exceeding 220 kV and which, as of the date of entry into force of the Decree, have already obtained the necessary permits, including environmental measures, the authority responsible for authorising the connection works is identified as the region concerned, or, in the case of works extending across several regions, the competent authority is the region in which the majority of the works are to be carried out.. The Decree therefore introduces an authorisation framework that establishes clear deadlines for the completion of the procedure and concentrates the relevant assessments within a limited decision-making body. The challenge of this Decree and, in general, of all the legislation that will regulate data centres, is and will remain that of ensuring their integration into the national electricity system, which is subject to structural constraints and must safeguard the security and sustainability of the grid. Edited by: The Energy & Environmental Law Team

Silvia Lucantoni Introduction In employment relationships with cross-border elements, EU legislation identifies, as a general criterion for determining the applicable social security legislation, the place where the work is actually carried out. This general rule is derogated from in certain specific situations that justify recourse to alternative connecting factors. Among these, Article 13 of Regulation (EC) No 883/2004 identifies the situation in which an employed or self-employed person habitually pursues an activity in two or more Member States. In such a case, the social security legislation of the worker’s State of residence applies if the worker pursues a substantial part of his or her activity in that State or if the worker is employed by several employers whose registered offices or places of business are located in different Member States. If the worker does not pursue a substantial part of his or her activity in the State of residence, the worker is subject to the social security legislation of the State in which the employer has its registered office or place of business or, in the case of a self-employed person, where the centre of interests of the activity is located. Substantial part of the activity: what does it mean? Guidance on what is meant by a “substantial part of the activity” and when this requirement is met is provided by Implementing Regulation (EC) No 987/2009, in particular Article 14(8), which states: “For the purposes of the application of Article 13(1) and (2) of the basic Regulation, a ‘substantial part of employed or self-employed activity’ pursued in a Member State shall mean a quantitatively substantial part of all the activities of the employed or self-employed person pursued there, without this necessarily being the major part of those activities. To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall be taken into account: (a) in the case of an employed activity, the working time and/or the remuneration; and (b) in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income. In the framework of an overall assessment, a share of less than 25 % in respect of the criteria mentioned above shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State”. With judgment KN of 4 September 2025, Case C‑203/24, the Court of Justice of the European Union addressed the question of whether the indicative criteria referred to in the EU provision should be regarded as exhaustive or whether other criteria not expressly provided for by EU law may also be taken into account. The question was referred to the Court by the Dutch referring court, in light of the Dutch language version of the Regulation, whose wording includes the term “also” in relation to the criteria indicated by the provision (“The assessment of whether a substantial part of the activities is pursued in a Member State is also based on the following indicative criteria …”). According to the Dutch referring court, the use of the adverb “also” and the adjective “indicative”, referring to the criteria to be taken into account, would suggest that, within an overall assessment of the worker’s situation, other circumstances beyond those expressly listed by the Implementing Regulation could also be considered. Indeed, the observations of the Dutch court are not without merit. Beyond the word “also”, which does not appear in all language versions of the Implementing Regulation, the expression “indicative criteria” undoubtedly evokes the revealing or symptomatic nature of the listed criteria, but not necessarily their exclusivity. Moreover, the Administrative Commission for the Coordination of Social Security Systems itself, in its Practical Guide on “Applicable legislation”, has provided an interpretation aligned with that suggested by the Dutch court: “Working time and/or remuneration must be taken into account obligatorily, but this does not preclude other criteria from also being taken into account. It is for the competent institutions to take account of all relevant criteria and, before deciding on the applicable legislation, to carry out an overall assessment of the person’s situation”. The Court of Justice, however, opted for a strict interpretation, expressly aimed at ensuring legal certainty and the principle of the uniqueness of the applicable legislation. After clarifying that the wording used in one of the language versions of a provision of EU law is not binding — since such provisions must be interpreted in the light of the general scheme and objectives of the legislation of which they form part — the Court reiterated that Article 14(8) of the Implementing Regulation operates within a derogatory framework of the general rule on applicable legislation (lex loci laboris). Its purpose is to avoid the complications that might arise from applying the general rule to situations involving activities pursued in two or more Member States. Within this framework, the derogating provisions seek to ensure that workers who pursue activities in two or more Member States are subject to the legislation of a single Member State and, to that end, lay down connecting factors that take into account the objective situation of those workers in order to facilitate free movement. In case of employed activity, those connecting factors are the criteria relating to working time and/or remuneration. Court of Justice excludes the possibility of taking other criteria into account and emphasises that the fact that the assessment must be carried out “within the framework of an overall assessment of the situation of the worker concerned” does not mean that additional criteria may be added to those listed by the provision, but rather that all employed activities carried out by the same worker must be considered as a whole. Pursuant to Article 14(8) of Regulation No 987/2009, where working time and/or remuneration in the Member State of residence do not reach 25% threshold, it cannot be said that a substantial part of the activity is pursued in that State. Allowing otherwise would “disregard the derogatory nature of the connecting factors laid down” by Articles 12 and 14 of Regulation No 883/2004 and would give rise to “uncertainty as to the application of the conflict-of-law rules” set out in Title II of Regulation No 883/2004, “to the detriment of the simplicity that those rules are intended to establish with regard to the application of connecting factors based on the objective situation of the worker concerned”. As regards the guidance provided by the “Practical Guide” drafted and approved by the Administrative Commission for the Coordination of Social Security Systems, the Court highlights, on the one hand, that such a document is, by its nature, devoid of binding legal force and, on the other hand, that, even according to the Guide itself, the criteria of working time and remuneration must obligatorily be applied. It follows, according to the Court, that those criteria cannot, in any event, be offset or replaced by unspecified alternative criteria. The relevant time period Article 14(10) of Regulation No 987/2009 provides that, for the purposes of determining whether a substantial part of the activity is pursued in a Member State, the “situation projected over the following twelve calendar months” shall be considered. On this point too, the above-mentioned Practical Guide showed interpretative openness: “Past activity may also constitute a reliable indicator of future conduct. Therefore, where it is not possible to base a decision on the expected working arrangements or duty rosters, it will be reasonable to take into account the situation over the previous 12 months and use it to assess the substantial activity. If a company has been recently set up, the assessment may be based on an appropriate shorter period”. Once again Court of Justice didn’t endorse such openness in the judgment under examination. The Court specified that although “the starting point of the twelve-month period to be taken into account is not expressly specified, it is nevertheless clear” from the literal wording of the provision that “it refers to the twelve months following, since no provision of that regulation refers to the past situation of the worker concerned”. Considering that paragraphs 8 and 10 of Article 14 of Regulation No 987/2009 refer to “cases in which a worker pursues an activity in two or more Member States”, it must be concluded that “the dies a quo must be the start of the pursuit of the activity in two or more Member States”. It follows that, in order to assess whether a worker pursues a substantial part of his or her activity in the Member State of residence, only the situation projected over the following twelve calendar months shall be taken into account. Conclusions The “indicative criteria” set out in Article 14 of Implementing Regulation (EC) No 987/2009 to Regulation (EC) No 883/2004 must be interpreted as exhaustive criteria, the fulfilment of which is necessary and mandatory for the purposes of determining whether the share of activity pursued in the Member State of residence is below or above the 25% threshold. Other criteria cannot be taken into account, either in addition to or as an alternative to those provided for by EU law, in order to ensure legal certainty and the principle of the uniqueness of the applicable social security legislation, within the derogatory framework in which the provisions at issue operate.

Two major Italian companies—one providing blockchain services and belonging to a listed group, and a luxury automotive manufacturer, also listed—have launched an innovative project by developing a digital token that grants the exclusive right to participate in a digital car auction. The token will be part of a digital wallet developed within a blockchain-based infrastructure, can be managed through the automotive manufacturer’s app, and the purchase of the ownership right will be secured through highly advanced security and encryption protocols. The token issuance was carried out in accordance with Regulation (EU) 2023/1114 (Markets in Crypto-Assets Regulation, or MiCA), which governs crypto-asset markets with the aim of mitigating the risks that an uncontrolled development of such products could pose to the proper functioning of the payments system. MiCA introduces a harmonized framework within the European Union for the issuance, public offering, and admission to trading of certain crypto-assets, as well as for the provision of services related to specific types of crypto-assets, such as: Electronic money tokens (EMTs), defined as crypto-assets intended to maintain a stable value by referencing a single official currency; Asset-referenced tokens (ARTs), defined as crypto-assets that are not EMTs and that aim to maintain a stable value by referencing another value, a right, or a combination thereof, including one or more official currencies; Crypto-assets "other than" EMTs and ARTs, a category encompassing all crypto-assets that do not fall within the first two definitions. The token described appears to fall within this third category, as it grants a right to participate in the auction and, as such, provides a genuine service. The trust placed in the use of blockchain as a tool capable of ensuring the secure acquisition of ownership rights through simple and safe steps—expressed by a historic luxury automotive group—highlights the importance of innovation, even when linked to the specific context of an auction. From this perspective, the entire luxury industry may evaluate whether to replicate the use of blockchain. More generally, the progressive development of regulatory frameworks, including in Italy—such as the recent supervisory provisions issued by the Bank of Italy concerning EMTs and ARTs—will increasingly encourage the adoption and dissemination of similar structures, providing greater legal certainty in the use of crypto-assets. By Alessandra Caldera - lawyer with more than 15 years of experience in the regulatory and finance field.