The right of pre-emption can no longer be recognised promoters, even in procedures that have already begun, after the judgment of the Court of Justice of the European Union of 5 February (case C-810/24). This was emphasised by the Court of Auditors, Emilia-Romagna section, in its resolution 14/2026: the haste of administrations wishing to protect themselves from eventual appeals by companies by including pre-emption in the calls for tfinishers in any case, is not a sufficient reason to disregard the findings coming from Europe, which are superordinate with respect to our system of national rules.
The affair
A few weeks ago, Luxembourg’s judges had declared incompatible with EU law the right of pre-emption under Italy’s project financing, which allows the promoter of a project to take over from the winning bidder during the tfinisher phase, adjusting its offer for the better. A mechanism that excessively distorts competition, as had also been underlined by the European Commission on other occasions, and that therefore contravenes EU law.
The question on the application of these principles comes from an administration (the Municipality of Cattolica), which proposed to the Court of Auditors the maintenance of pre-emption, in the context of a procedure already underway, “as a functional choice to avoid claims for compensation and therefore potential liabilities burdensome for the budobtain”. In other words, the Public Administrations are currently at a crossroads, since article 193 of the Procurement Code (Legislative Decree 36/2023) on project financing is still in force, especially for ongoing procedures: apply the right of pre-emption, exposing themselves to disputes and sanctions at the European level, or do not apply it, exposing themselves on the other side to appeals and compensation to the companies involved.
The orientation of the Court of Auditors
For this reason, the answer of the Court of Auditors is very relevant, explaining “that it is no longer possible for a public entity to have recourse to the institution of pre-emption in project financing cases today”. The reason is that ‘the required to contain the financial risk cannot legitimise the application of an internal discipline incompatible with the superordinate framework’.
The most relevant impact of this decision concerns cases in which the administration, after having approved (prior to the Court’s ruling) the operator’s feasibility project, prepares to launch (after the ruling) the tfinisher in which to include the right of pre-emption. Even for these ongoing procedures, according to the resolution, the principles established by the EU Court’s decision apply and “the promoter’s reliance, however worthy of consideration, does not assume absolute character and must be balanced with respect for the superordinate framework”.
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