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With Judgment delivered in case C-223/16, the European Court of Justice has stated that the provisions of the old Italian Public Procurement Code (Legislative Decree no. 163/2006) do not allow the replacement of an auxiliary undertaking which has lost the necessary requirements. Its consortium is then to be excluded from the tendering procedure.

So, the European Court has explained that articles 47 and 48 of Directive 2004/18/CE, do not preclude national legislation which excludes from a procedure an economic operator which had relied on the capacity of an auxiliary undertaking, where the latter has lost the required qualifications after the submission of the tender.

Instead, the new Public Procurement Code (Legislative Decree no. 50/2016) is not contrary to the said replacement, but it will not be applicable in those cases which are still regulated by the provisions of the old Code.