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Art. 49 of the old Italian Public Procurement Code (Legislative Decree no. 163/2006) provides that “the tenderer (…) may fulfil the requirements relating to possession of economic, financial, technical and organizational capacity, or possession of a SOA (Certification Body) certificate, by relying on the capacity of another entity or the SOA certificate of another entity”.

On this issue, the Consiglio di Stato asked the European Court of Justice to establish whether or not national rules which do not allow a tenderer to replace an auxiliary undertaking where the latter has no longer the capacity to participate, thus resulting in the operator being excluded from the tendering procedure, may be considered compatible with the European law.

With Judgment of 14th September 2017 in case C-223/16, the European Court has explained that allowing a consortium of undertakings to replace a third-party undertaking which has lost a qualification that is required in order not to be excluded, would amount to a substantial change of the tender. Therefore, it has stated that the Italian legislation does not contrast with the European law.

Such conclusion is not also valid with regard to tendering procedures regulated by the new Italian Public Procurement Code (Legislative Decree no. 50/2016).