Italy Public Tender 2026: CJEU Ruling for Foreign Bidders

After Case C-810/24 (Urban Vision), the promoter's right of first refusal in Italian concession and PPP tenders is gone — what foreign infrastructure bidders must know now

LANG: English (en) · AREA: Commercial Contracts & Distribution · TYPE: Case note (court decision) · MODEL: Sonnet 5 · SEO 84/100 · Flesch Reading Ease 31

ABSTRACT: On 5 February 2026 the Court of Justice of the European Union handed down its judgment in Case C-810/24 (Urban Vision), ruling that Italy's statutory right of first refusal — which allowed a project promoter to see every competitor's offer before deciding whether to match the best one — violates EU equal-treatment and freedom-of-establishment principles and must be disapplied immediately. For foreign companies pursuing Italian public infrastructure and concession contracts, the ruling removes one of the most structurally unfair features of Italian project finance law. The question now is not whether the playing field has levelled, but whether foreign bidders are ready to play.

Imagine investing six months and several hundred thousand euros in a bid for a major Italian urban infrastructure concession. Your proposal wins the technical and financial evaluation. Then, under a mechanism that no common-law system would recognise, the company that first proposed the project is allowed to read your winning bid in full — and simply adopt its terms. You lose. That was the legal reality in Italy until 5 February 2026.

What did the CJEU decide about Italy's right of first refusal in public tenders?

In its judgment of 5 February 2026, Case C-810/24 (Urban Vision), the Court of Justice of the European Union ruled clearly on the compatibility with EU law of the right of pre-emption granted to the promoter in project financing transactions governed by Italian law, concluding that the mechanism is incompatible with the EU principles applicable to concessions — in particular equal treatment, effective competition, and freedom of establishment, as inferred from the TFEU and Directive 2014/23/EU on the award of concession contracts — insofar as it allows only the promoter to modify its offer after learning of the best offer.

The case originated from a dispute over a public contract in Milan. It concerned a project for automated public facilities where a competitor had outbid the promoter, only to lose the contract when the promoter exercised the pre-emption right. The Italian Council of State (the Consiglio di Stato, Italy's supreme administrative court) asked the European Court to determine if such a "second chance" for promoters violated the core tenets of EU law.

In its reasoning, the Court held that allowing only one bidder to modify the financial terms of its offer after the deadline for submission constitutes a breach of the principle of equal treatment and results in a distortion of competition. The logic is structurally tight: a tender is only a genuine competition if every participant submits their best offer without knowing what others have offered. The promoter's pre-emption right broke that symmetry at the most decisive moment.

The provision at issue was Article 183(5) of Legislative Decree No. 50 of 18 April 2016 (the former Italian Public Contracts Code, D.Lgs. 50/2016). The same provision is mirrored in the new Public Contracts Code, Legislative Decree No. 36 of 31 March 2023 (D.Lgs. 36/2023). While the CJEU case focused on the 2016 Code, its logic applies directly to the current D.Lgs. 36/2023. The ruling therefore disapplies the pre-emption mechanism across all Italian concession and project-finance tenders currently in progress or newly launched, with no need for the Italian legislature to act first. EU primacy operates automatically.

Following this ruling, the Italian government will likely need to amend the current Public Contracts Code to remove or significantly dilute these preferential rights. Legal practitioners now anticipate a wave of litigation regarding ongoing tenders where pre-emption rights were originally advertised. Foreign bidders who were displaced by a promoter exercising pre-emption in procedures launched under D.Lgs. 36/2023 should take immediate advice on whether a challenge before the relevant Regional Administrative Court (Tribunale Amministrativo Regionale — TAR) is viable.

Unlike in most common-law jurisdictions, where a competitive tender is considered concluded once bids are evaluated and ranked, Italian project finance law had for years maintained a structural asymmetry as a deliberate policy choice: the promoter who invested intellectual and financial capital in originating the project was rewarded with a safety net that let them override the market's verdict. From the perspective of a UK contractor, a US infrastructure fund, or a Canadian pension vehicle, this was not merely unusual — it was incomprehensible. The CJEU has now aligned Italian law with what the rest of the EU, and most sophisticated legal systems globally, would regard as elementary fairness.

Does the promoter lose all advantages after the ruling?

Not entirely. The removal of the pre-emption right does not mean promoters lose all their advantages. The original proposer still benefits from an "informational edge", having designed the project and understood its financial complexities long before the tender starts. They are naturally better positioned to submit a highly optimised and aggressive bid from the outset. Foreign bidders should expect well-resourced Italian promoters to exploit this edge by pricing their initial bid more aggressively than before, knowing they have no second opportunity to correct it.

The practical consequence is that foreign companies now compete on documents alone — which is where preparation, local intelligence, and the right legal structure become decisive.

Can a foreign company bid for Italian public infrastructure contracts?

Yes, but the conditions differ significantly depending on whether the company is based in an EU Member State or comes from a third country.

Companies established in an EU Member State may freely participate in public procurement procedures in Italy, pursuant to the principles of free competition, equal treatment, and non-discrimination laid down by EU law and implemented in D.Lgs. 36/2023.

Article 69 of D.Lgs. 36/2023 allows non-EU economic operators to participate in public procurement procedures subject to the principle of reciprocity. This means that, in the absence of specific acts adopted by the European Union, it is for the contracting authority to assess whether economic operators from a third country that has not concluded an international agreement with the EU ensuring equal and reciprocal access to public procurement should be admitted. Companies from Government Procurement Agreement (GPA) signatories — including the United States, Canada, and Australia — can rely on GPA access rights. Post-Brexit, UK companies are now treated as third-country operators under Regulation (EU) 2022/1031 (the International Procurement Instrument), which subjects their access to reciprocity assessments. UK companies should verify their position on a contract-by-contract basis, as Italian contracting authorities retain discretion.

What is SOA certification and do UK companies need it in Italy?

SOA certification (attestazione SOA) is a mandatory accreditation issued by private, ANAC-supervised bodies called Organismi di Attestazione (SOA). It certifies a company's technical and financial capacity to execute public works contracts in Italy and is compulsory for any works contract above €150,000. Documentation proving the successful completion of past contracts — a Certificate of Execution of Works (Certificato di Esecuzione dei Lavori, or CEL) — is indeed required to obtain SOA certification.

Foreign EU companies may satisfy this requirement by submitting equivalent home-country technical qualifications, which Italian contracting authorities are bound to recognise under the principle of mutual recognition. Non-EU companies — including post-Brexit UK firms — must demonstrate equivalent capacity through documentation, subject to the contracting authority's assessment. In practice, many foreign companies bidding for large Italian infrastructure contracts solve this by partnering with a certified Italian subcontractor or by using the avvalimento mechanism, which D.Lgs. 36/2023 preserves: a bidder may borrow the technical qualifications of a third-party entity that commits to providing those resources for the project. The borrowed entity must itself be SOA-certified.

Beyond SOA, a foreign bidder must obtain an Italian tax code (codice fiscale) and, where the contract structure creates a taxable presence, an Italian VAT number (partita IVA). Social security compliance must be evidenced: Italian companies provide a DURC (a social security contribution regularity certificate); foreign companies substitute an equivalent certificate of good standing from their home authority.

How do I participate in an Italian public procurement tender from abroad?

Public procurement in Italy is primarily governed by D.Lgs. 36/2023, which entered into force on 1 July 2023 and was subsequently amended by the "Corrective Decree" (Legislative Decree No. 209 of 31 December 2024), which streamlined several procedural aspects and strengthened protections for economic operators. Since 2024, the Italian system has achieved full digitalisation, meaning all tender documents, qualification submissions, and communications pass through the ANAC-managed digital platforms. Foreign companies must register on these platforms in advance — not on the day of submission.

The practical sequence runs as follows. First, obtain a codice fiscale from the Italian Revenue Agency (Agenzia delle Entrate). Second, register on the National Public Contracts Database (Banca Dati Nazionale dei Contratti Pubblici) maintained by ANAC. Third, verify SOA equivalence or partner with a certified entity. Fourth — and this is the step most foreign bidders miss entirely — assess obligations under Regulation (EU) 2022/2560 (the Foreign Subsidies Regulation).

The Foreign Subsidies Regulation's notification obligations became applicable on 12 July 2023, filling a long-standing gap in the Union's regulatory toolkit for foreign investment. On 9 January 2026, the European Commission adopted its Guidelines on the application of certain provisions of Regulation (EU) 2022/2560, explaining how it assesses whether foreign subsidies distort the internal market, and if so, whether their potential positive effects outweigh their potential negative impacts. For public procurement, the notification threshold is triggered where the estimated contract value exceeds €250 million and the economic operator received aggregate foreign financial contributions above €4 million from any single third country in the preceding three years. Companies backed — directly or indirectly — by a sovereign wealth fund, a state-owned enterprise, or a third-country government subsidy programme must conduct this analysis before submitting their bid. Failure to notify is grounds for exclusion.

The Latin maxim nemo iudex in causa sua — no one may be a judge in their own case — captures the structural objection to the pre-emption right with precision. Allowing the promoter to sit as arbiter of its own competitive position, reviewing rivals' bids before deciding whether to override them, offended that principle at a systemic level. The CJEU has now applied it where Italian law failed to do so.

As the legal philosopher Ronald Dworkin observed, legal integrity requires that the principles a legal system applies to one party must be applied consistently to all. Italy's pre-emption regime gave one party a structural privilege that no principle of integrity could justify. Its removal does not merely benefit foreign bidders — it restores the legitimacy of the entire procedure.

The window of opportunity is real but narrow. Tenders already advertised under D.Lgs. 36/2023 with pre-emption provisions in their documentation are now legally vulnerable. Any contracting authority that proceeds to apply a pre-emption mechanism is acting in breach of EU law. A foreign bidder who wins the technical ranking and is then displaced by a promoter invoking the old mechanism should lodge an immediate challenge before the competent TAR, citing the CJEU's judgment of 5 February 2026 in Case C-810/24 and the direct-effect supremacy of Directive 2014/23/EU. Time limits in Italian administrative proceedings are strict: the standard term for challenging a public procurement decision is thirty days from notification or full knowledge of the act.

Image prompt: A wide-angle view of a large Italian public construction site at dawn — scaffolding surrounds a historic municipal building undergoing renovation, with several hard-hatted workers from visibly diverse international backgrounds reviewing engineering blueprints spread across a site table. The colour palette is cool blue-grey morning light contrasted with warm amber site lamps. The mood is purposeful and competitive, evoking access and opportunity. No courtrooms, no scales, no gavels.

Image file: italy-public-tender-foreign-bidder-cjeu-2026-cover

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AUTHORITY 1: Court of Justice of the European Union, Second Chamber, judgment of 5 February 2026, Case C-810/24 (Urban Vision SpA v Comune di Milano and Digital Vox Srl).
REFERENCES: Full — case number, date, chamber, parties, subject-matter confirmed.
EXISTS? YES — confirmed on EUR-Lex at the URL above.
CONTENT MATCHES what I wrote? YES — incompatibility of promoter's pre-emption right with Directive 2014/23/EU and TFEU Arts. 49 and 56 (freedom of establishment and freedom to provide services); breach of equal treatment; referral by Council of State.

AUTHORITY 2: Council of State (<i>Consiglio di Stato</i>), Fifth Chamber, Order No. 9449 of 25 November 2024 — preliminary reference in C-810/24.
REFERENCES: Full — chamber, order number, date confirmed via Lipani source.
EXISTS? YES — confirmed by Lipani Legal & Tax (specialist Italian public law firm) and consistent with EUR-Lex docket.
CONTENT MATCHES? YES — the referral court and its question (compatibility of Art. 183(5) with EU law) match the CJEU's subject-matter description.

AUTHORITY 3: Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market (Foreign Subsidies Regulation).
REFERENCES: Full official title and number cited.
EXISTS? YES — confirmed on EUR-Lex official text and European Commission competition policy pages.
CONTENT MATCHES? YES — notification obligations for public procurement, applicable from 12 July 2023; €250 million contract threshold; three-year foreign financial contribution lookback; all confirmed by primary source.

AUTHORITY 4 (supporting): Legislative Decree No. 36 of 31 March 2023 (D.Lgs. 36/2023), current Italian Public Contracts Code — Article 69 (non-EU operators).
REFERENCES: Full decree number and date.
EXISTS? YES — confirmed across multiple sources including Chambers 2026, DLA Piper, and Arnone & Sicomo.
CONTENT MATCHES? YES — reciprocity principle for non-EU operators, SOA certification requirement, ANAC digital platform obligations all confirmed.

AUTHORITY 5 (supporting): Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, Article 3(1) (equal treatment) and Article 41(1) (effective competition).
REFERENCES: Full directive number, date, and specific articles.
EXISTS? YES — confirmed as the operative