Order;Information — ECLI:EU:C:2025:314
Date: 2025-04-28
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Right of establishment;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-656/24 – 1 
Case C-656/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
8 October 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
4 October 2024 
Applicants: 
U.T.G. Prefettura di Bari 
Autorità nazionale anticorruzione (ANAC) 
Defendants: 
Dmeco Engineering Srl 
Regione Puglia 
BG 
  
Subject matter of the main proceedings 
Appeal against a judgment of the Tribunale Amministrativo Regionale per la 
Puglia (Regional Administrative Court, Puglia, Italy) which set aside the order of 
3 January 2023 by which the Prefetto di Bari (Prefect of Bari, Italy) imposed the 
support and monitoring measure provided for by Italian law on the applicant at 
first instance. 
Subject matter and legal basis of the request 
Interpretation of Article 16 and Article 52 of the Charter of Fundamental Rights of 
the European Union, as well as Article 49 TFEU, to determine whether EU law 
allows a measure to be adopted concerning the management of an undertaking 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/24 
 
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awarded a public contract, such as the support and monitoring measure provided 
for by Italian law, even if that undertaking no longer has any contractual 
relationship with government bodies. 
Question referred for a preliminary ruling 
‘Do Article 16 and Article 52 of the Charter of Fundamental Rights of the 
European Union and the principles of the European Union on freedom of 
establishment and freedom to conduct a business (Article 49 TFEU) preclude an 
interpretation of national legislation, in this case Article 32(8) of decreto-legge n. 
90/2014 (Decree-Law No 90/2014), as amended by Article 12(1), Chapter 12-ter 
of decre`to-legge n. 121/2021 (Decree-Law No 121/2021), which now allows the 
support and monitoring measure to be adopted in respect of “an undertaking 
awarded a tender for the performance of public works, services or supplies”, even 
if the contract for which the tender was awarded and which gave rise to the 
adoption of the measure has been concluded and performed in full and the 
undertaking has no other existing contractual relationship with government 
bodies?’ 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, in particular Articles 16 
and 52 TFEU, in particular Article 49 
Provisions of European Union case-law relied on 
Judgment of the Court of Justice of 22 January 2013, Sky Österreich, C-283/11, 
EU:C:2013:28; 
Judgment of the General Court of 1 March 2023, Harley-Davidson Europe and 
Neovia Logistics Services International v Commission, T-324/21, EU:T:2023:101. 
Provisions of national law relied on 
Codice penale (Italian Criminal Code), in particular Article 319, on corruption due 
to an act contrary to official duties – that is to say, an offence committed by a 
public official who receives remuneration from a third party for breaching his or 
her obligations.  
Decreto-legge 24 giugno 2014, n. 90 – Misure urgenti per la semplificazione e la 
trasparenza amministrativa e per l'efficienza degli uffici giudiziari (Decree-Law 
No 90 of 24 June 2014 on urgent measures for administrative transparency and 
simplification and for the efficiency of the courts0, converted by legge 11 agosto 
2014, n. 114 (Law No 114 of 11 August 2014), as amended by decreto-legge n. 
121/2021 (Decree-Law No 121/2021), in particular Article 32, which provides as 
follows: 
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‘1. In the event that the judicial authority prosecutes the offences referred to in 
Articles 317, 318, 319, 319-bis, 319-ter, 319-quater, 320, 322, 322-bis, 346-bis, 
353 and 353-bis of the Criminal Code, or in situations that are found to be 
anomalous and in any event symptomatic of unlawful conduct or criminal events 
attributable to an undertaking awarded a public contract for the performance of 
public works, services or supplies, and to an undertaking active in the healthcare 
sector on behalf of the Servizio sanitario nazionale [(Italian National Health 
Service)] on the basis of the contractual agreements referred to in Article 8-
quinquies of decreto legislativo 30 dicembre 1992, n. 502 [(Legislative Decree 
No 502 of 30 December 1992)] or to a public works concessionaire or a general 
contractor, the President of the ANAC [(Italian National Anti-Corruption 
Authority)] shall inform the public prosecutor and, where it is established that a 
serious incident has occurred, including pursuant to Article 19(5)(a) of this decree, 
the President shall propose to the Prefect responsible for the area where the 
contracting authority is based, either: 
(a) to order the replacement, on the corporate bodies, of the person concerned 
and, if the undertaking fails to do so within the prescribed time limit, to arrange 
for the extraordinary and temporary management of the [successful] undertaking, 
limited to the performance in full of the public contract or contractual agreement 
or concession; 
(b) to directly arrange the extraordinary and temporary management of the 
[successful] undertaking, limited to the performance in full of the public contract 
or contractual agreement or concession; or 
(b-bis) to order the contracting authority to make payments to the economic 
operator, including in the cases referred to in subparagraph (a), net of the profit 
derived from the contract, quantified at 10% of the consideration, to be set aside in 
a special fund pursuant to paragraph 7. 
2. The Prefect, after verifying the conditions set out in paragraph 1 and having 
assessed the seriousness of the facts under investigation, shall instruct the 
undertaking to replace the person concerned on the corporate bodies and, if the 
undertaking fails to do so within 30 days, or in the most serious cases, shall issue 
an order appointing one or more directors within a period of 10 days … 
3. For the duration of the extraordinary and temporary management of the 
undertaking, all powers and duties of the administrative bodies of the undertaking 
shall be assigned to the directors and the powers of disposal and management of 
the owners of the undertaking shall be suspended. In the case of an undertaking 
registered as a company, the powers of the general meeting shall be suspended for 
the entire duration of the measure. 
4. The temporary and extraordinary management of the undertaking shall be 
regarded as being of public benefit for all purposes and the directors shall be liable 
for any loss of profits only in cases of wilful misconduct or gross negligence. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/24 
 
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5. The measures referred to in paragraph 2 shall be revoked and in any event 
shall cease to have effect in the event of a measure that provides for the 
confiscation, seizure or judicial administration of the undertaking in criminal 
proceedings or the application of preventive measures, or that orders the 
discontinuance of the proceedings. … 
7. During the period of application of the extraordinary and temporary 
management measure referred to in paragraph 2, payments to the undertaking 
shall be made net of the remuneration paid to the directors referred to in 
paragraph 2 and the company profit derived from the public contracts referred to 
in paragraph 1, even if estimated by the directors, or by the contracting authorities 
in the cases referred to in paragraph 1(b-bis), shall be set aside in a special fund 
and may not be distributed or subject to attachment until the criminal proceedings 
have been concluded … 
8. In the event that the investigations referred to in paragraph 1 concern 
members of corporate bodies other than those referred to in that paragraph, even 
where the contract has been concluded and performed in full, the undertaking 
shall be subjected to the support and monitoring measure. The Prefect shall 
appoint, by order issued in accordance with the procedures referred to in 
paragraph 2, one or more experts, and in any event no more than three … who 
shall have the task of supporting and monitoring the undertaking. The experts 
shall issue operational requirements to the undertaking, and to the undertakings 
that exercise control over it within the meaning of Article 2359 of the codice 
civile [(Italian Civil Code)], if involved in the investigations, as well as to the 
undertakings they control, drawn up in accordance with recognised transparency 
models and indicators, relating to the organisational aspects, the internal control 
system and the administrative and supervisory bodies. 
…’. 
The request for a preliminary ruling also contains the text of paragraph 8 of the 
abovementioned Article 32 in the version prior to the amendments introduced by 
Decree-Law No 121/2021, which stated that: 
‘In the event that the investigations referred to in paragraph 1 concern members of 
corporate bodies other than those referred to in that paragraph, even where the 
contract has been concluded and performed in full, the undertaking shall be 
subjected to the support and monitoring measure. The Prefect shall appoint, by 
order issued in accordance with the procedures referred to in paragraph 2, one or 
more experts, and in any event no more than three …, who shall have the task of 
supporting and monitoring the undertaking. The experts shall issue operational 
requirements to the undertaking, drawn up in accordance with recognised 
transparency models and indicators, relating to the organisational aspects, the 
internal control system and the administrative and supervisory bodies.’ 
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Provisions regulating the process by which the President of the ANAC issues a 
proposal for the application of extraordinary management, support and monitoring 
measures pursuant to Article 32 of Decree-Law No 90/2014, adopted by the 
President of the ANAC on 8 July 2020.  
National case-law relied on 
Judgment No 1791/2011 of the Consiglio di Stato (Council of State, Italy) 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2021, the judge in charge of preliminary investigations in Bari made an order 
for interim measures in criminal proceedings relating, in particular, to an alleged 
offence of corruption concerning the award of a public contract, in which charges 
were brought against the then representative of the respondent company (‘the 
Company’) and an employee of the Regione Puglia (Region of Puglia). 
2 In 2022, the ANAC initiated administrative proceedings in relation to the 
abovementioned order for interim measures. Following those proceedings, the 
President of the ANAC proposed to the Prefect of Bari that the support and 
monitoring measure provided for by Decree-Law No 90/2014 should be applied to 
the Company. 
3 By order of 3 January 2023, the Prefect of Bari issued the abovementioned 
support and monitoring measure against the Company for a six-month period. 
4 The Company contested the order before the Regional Administrative Court, 
which annulled the measure by judgment No 1071/1023. The Prefettura di Bari 
(Prefecture of Bari) and the ANAC lodged an appeal against the judgment before 
the referring court. 
The essential arguments of the parties in the main proceedings 
5 In its appeal before the Regional Administrative Court, the Company argued, inter 
alia, that it had no existing contractual relationship with government bodies. 
Therefore, the version in force of Article 32(8) of Decree-Law No 90/2014, as 
amended by Decree-Law No 121/2021, did not apply, on the ground that it was 
contrary to Article 16 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) and Article 49 TFEU. 
6 Specifically, Article 12 of Decree-Law No 121/2021 amended Article 32(8) of 
Decree-Law No 90/2014 in the sense that the support and monitoring measure 
may be adopted in respect of the undertaking ‘even where the public contract has 
been concluded and performed in full’. According to the Company, the 
amendment permits interference in the management of an undertaking even if that 
undertaking no longer has any contractual relationship with government bodies, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/24 
 
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which constitutes a violation of the principles of freedom to conduct a business 
and freedom of establishment enshrined in Article 16 of the Charter and Article 49 
TFEU, respectively. 
7 In the proceedings before the referring court, the Company stated in particular that 
it accepted the reasoning of judgment No 1071/1023 in so far as it showed that the 
amendment of Article 32(8) of Decree-Law No 90/2014, introduced by Decree-
Law No 121/2021, was contrary to the principle of freedom to conduct a business 
enshrined in EU law, since it allowed the Prefect to interfere in the management 
of a private undertaking, even if that undertaking no longer had any dealings with 
government bodies. 
8 In their appeal, the appellant authorities (‘the appellants’) submit, in the first 
place, that the support and monitoring measure referred to in Article 32 of Decree-
Law No 90/2014, in so far as it only involves the appointment of one or more 
experts, does not affect the management of the undertaking awarded the contract. 
The experts had to draw up operational requirements for the undertaking 
concerned, but were not responsible for its management, in whole or in part. 
9 According to the appellants, the work of such experts is intended to provide 
guidance to the governing bodies of an undertaking as regards organisational 
aspects that do not involve the performance of a specific contract. In view of the 
purpose of the support and monitoring measure, the legislature established a less 
intrusive regime for that measure than the other measures provided for in 
Article 32 of Decree-Law No 90/2014. On the one hand, the support and 
monitoring measure does not entail the suspension of the powers of the 
undertaking’s governing bodies, or the retention of the undertaking’s profits. On 
the other hand, the measure seeks to ensure that the undertaking’s organisational 
structure is compatible with the principles of legality and transparency. As a 
consequence, contrary to the abovementioned judgment No 1071/1023, that 
measure does not affect the management of an undertaking nor undermine its 
freedom of economic initiative. 
10 In the second place, the appellants submit that, contrary to the judgment under 
appeal, even prior to the amendment introduced by Decree-Law No 121/2021, 
Article 32(8) of Decree-Law No 90/2014 allowed the support and monitoring 
measure to be adopted for undertakings without existing contracts with the public 
administration.  
11 According to the appellants’ interpretation, the phrase ‘even where the public 
contract has been concluded and performed in full’, which was added by Decree-
Law No 121/2021 to Article 32(8) of Decree-Law No 90/2014, only concerns the 
contract based on which the support and monitoring measure was adopted, while 
the subjective scope of that measure is indicated by the phrase ‘an undertaking 
awarded a contract for the performance of public works, services or supplies’, 
contained in Article 32(1).  
PREFETTURA DI BARI AND ANAC 
 
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12 In the third place, the appellants consider the interpretation of Article 16 of the 
Charter adopted by the judgment under appeal to be incorrect. According to the 
appellants, the freedom to conduct a business is not an absolute right, but a right 
that may be subject to limitations necessary for compliance with EU and national 
law. 
13 In that regard, the appellants refer to the case-law of the Court of Justice, 
according to which the protection provided for in Article 16 of the Charter does 
not entail absolute freedom to conduct a business, but is guaranteed in relation to 
its social function. That freedom could thus be subject to limitations that are 
justified by objectives of general interest pursued by the European Union, 
provided that the conditions laid down in Article 52 of the Charter are met. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 In judgment No 1071/1023, the Regional Administrative Court, accepting the 
criticism expressed by the Company, determined that Article 32(8) of Decree-Law 
No 90/2014, as amended by Decree-Law No 121/2021, should be disapplied to the 
extent that it allows the support and monitoring measure to be adopted in respect 
of the undertaking, even if that undertaking does not have existing contracts with 
government bodies. 
15 According to the Regional Administrative Court, in the first place, the amendment 
to Article 32(8) of Decree-Law No 90/2014 introduced by Decree-Law 
No 121/2021 is contrary to the purpose of the support and monitoring measure, 
whose addressee is an entity which may continue to maintain legal relations with 
government bodies and potentially exercise unlawful interference in those 
relations. 
16 In the second place, the Regional Administrative Court found that the support and 
monitoring measure at issue in the main proceedings involved undue interference 
in the Company’s management. Specifically, the measure imposed conditions and 
entailed supervision, which have an impact on the management of an undertaking, 
even if its governing bodies are not deprived of their functions. This limited the 
freedom of management and economic initiative of the undertaking subjected to 
that measure. 
17 The Regional Administrative Court referred to case-law predating the amendment 
of Article 32(8) of Decree-Law No 90/2014 by Decree-Law No 121/2021, 
according to which the objective of the support and monitoring measure was to 
ensure that the situation remained entirely lawful for the duration of any 
contractual relationship with a government body.  
18 According to the Regional Administrative Court, the amendment of Article 32(8) 
of Decree-Law No 90/2014 introduced by Decree-Law No 121/2021 has instead 
extended the possibility of adopting that measure even in the absence of existing 
contracts with government bodies. That court therefore disapplied Article 32(8) of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/24 
 
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Decree-Law No 90/2014, as amended by Decree-Law No 121/2021, since it 
considered it to be contrary to the freedom to conduct a business enshrined in 
Article 16 of the Charter. 
19 The referring court accepts the points raised by the appellants and observes that 
the measures provided for in Article 32 of Decree-Law No 90/2014, including the 
support and monitoring measure, place limitations on the freedom of economic 
initiative aimed at protecting higher-ranking public interests. 
20 The referring court further notes that the administrative proceedings referred to in 
Article 32 of Decree-Law No 90/2014 may only be initiated if certain objective 
and subjective conditions are met. As far as the objective requirements are 
concerned, the court’s investigations must lead to charges of corruption relating to 
the award or performance of a public contract. As regards the subjective 
requirements, the charges must be brought against the undertaking that entered 
into the public contract with the contracting authority. 
21 Article 32 of Decree-Law No 90/2014, in accordance with the principle of 
proportionality, provided for different measures to be applied – including the 
support and monitoring measure – depending on the seriousness of the situation in 
which the undertaking found itself. The support and monitoring measure applied 
to less serious situations and was intended to ensure that the undertaking’s 
organisation was lawful by appointing experts to oversee the legality and 
transparency of that organisation. 
22 According to the referring court, that measure was less intrusive than the others 
provided for in Article 32 of Decree-Law No 90/2014, since it did not affect the 
composition and powers of the undertaking’s administrative and management 
bodies, but only imposed operational requirements designed to ensure that it 
operated on the market in compliance with the law. 
23 The referring court observes that in the version prior to the amendment introduced 
by Decree-Law No 121/2021, Article 32(8) of Decree-Law No 90/2014 linked the 
support and monitoring measure to the duration of the relevant public contract, 
since the measure was aimed at ensuring the proper management and performance 
of the contract. 
24 By contrast, in the version amended by Decree-Law No 121/2021, Article 32(8) of 
Decree-Law No 90/2014 allowed the support and monitoring measure to be 
applied even if the public contract, in relation to which that measure was to be 
adopted, had been terminated or performed in full and the undertaking had no 
other contractual relationships with government bodies. 
25 According to the referring court, the version in force of Article 32(8) of Decree-
Law No 90/2014 allowed the support and monitoring measure to be imposed even 
where the charges of corruption concerned a public contract awarded by a 
government body which had already been terminated or performed in full. That 
interpretation allows that measure to be applied even to public contracts that are 
PREFETTURA DI BARI AND ANAC 
 
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performed immediately, such as supplies, since it would be unlikely that such 
contracts were still being performed when criminal proceedings were initiated to 
investigate offences relating to the award of public contracts. 
26 The referring court points out that, even where the support and monitoring 
measure is imposed in relation to a contract in progress, it does not directly affect 
that contract, since its main aim is to facilitate a review of the undertaking’s 
organisation according to the criteria of legality and transparency. It follows that 
the adoption of that measure is not subject to the existence of a contractual 
relationship with a government body. 
27 Accordingly, the fact that the addressee of the support and monitoring measure 
does not have existing contracts with government bodies does not mean that that 
measure is contrary to the economic freedom of the undertaking, since that 
freedom includes the right to take part in the tendering procedure for new public 
contracts. Since the application of the support and monitoring measure involves 
minimal interference in the management of the undertaking, it is justified by the 
aim of protecting higher-ranking public interests. 
28 According to the referring court, Article 32(8) of Decree-Law No 90/2014, as 
amended by Decree-Law No 121/2021, is compatible with Article 16 of the 
Charter, since the adoption of the support and monitoring measure necessarily 
presupposes the existence of a contract with the public administration in relation 
to which criminal charges have been brought, even if that contract has been 
terminated or performed in full. 
29 The support and monitoring measure is consistent with the criteria of graduality 
and proportionality and is justified by the aim of protecting higher-ranking public 
interests than the freedom to conduct a business.