The Court of Justice rules again on the non-compliance of a provision of the Italian Procurement Code with the EU procurement directives

Such judgment is part of a series of EU decisions and interventions that are urging Italy to conform its procurement regulations to the content of the EU directives. In particular, just a few days after the EU Commission's communication of April, confirming the decision to pursue the infringement procedure No. 2018/2273 against Italy (essentially, for not having yet removed the "cascade" subcontracting prohibition), last month the Court of Justice declared the non-compliance with the EU legislation of the Article 83, paragraph 8 of the Italian Procurement Code (“IPC” Legislative Decree No. 50 of 18 April 2016). The Court held that "Article 63 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as precluding national legislation according to which the leading company of a group of economic operators participating in a procedure for the award of a public contract must meet the requirements laid down in the contract notice and perform the services of that contract to a majority extent".

In fact, the mentioned Italian provision states that, in the event of participation in a public tender through a “Raggruppamento Temporaneo d’Impresa - RTI” (temporary grouping), the leading company must in any case possess a majority share of the requirements and perform majority of the awarded services. The purpose of the national rule is to prevent the group leader…