Judgment;Summary — ECLI:EU:C:2026:69
Date: 2026-02-05
Language of the case: Italian
Court formation: Second Chamber
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-810/24 – 1 
Case C-810/24 
Request for a preliminary ruling 
Date lodged: 
26 November 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
25 November 2024 
Applicant and appellant: 
Urban Vision SpA 
Defendants and respondents: 
Comune di Milano 
A&C Network Srl 
Vox Communication s.r.l. 
  
[…] 
ITALIAN REPUBLIC 
Consiglio di Stato (Council of State, Italy) 
[…] (Fifth Chamber) 
has issued the following 
ORDER 
on appeal No […] 1799 of 2024, lodged by 
Urban Vision s.p.a. […] 
v 
EN 
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Comune di Milano, […] [parties’ representatives] 
in the presence of 
A & C Network s.r.l. Unipersonale, Vox Communication s.r.l., which have not 
entered an appearance; 
for the alteration of 
judgment No 196/2024 of the First Chamber of the Tribunale Amministrativo 
Regionale per la Lombardia (Regional Administrative Court, Lombardy, Italy), 
concerning the parties, 
[…] [standard procedural wording] 
1. The dispute relates to the procedure carried out by the Comune di Milano 
(Municipality of Milan, Italy; ‘the Municipality’), which resulted in the signing of 
a contract for the design, supply, installation, operation and maintenance of 70 
automated public toilets […]. 
2. Urban Vision s.p.a. (‘Urban Vision’) challenged Decision No 3513 of 
28 April 2023 awarding the contract to the consortium formed by the agent A&C 
Network s.r.l. and the principal Vox Communication s.r.l. (‘the consortium’) 
following the consortium’s exercise of the pre-emption right granted to it as the 
promoter of the initiative. In addition to that decision, Urban Vision challenged: 
- Article 6(e) of the public notice acknowledging receipt of a proposal; 
- Decision No 658 of 29.5.2020; 
- the pre-emption documents (note No 0197641 of 4 April 2023 and note of 
17 April 2023). 
In the same application, Urban Vision sought to have the contract declared null 
and void and, accordingly, the status quo ante restored. 
3. With judgment No 196 of 29 January 2024, the Regional Administrative 
Court, Lombardy – Milan, dismissed the action. 
4. Urban Vision brought appeal No 1799 of 2024 against that judgment. 
5. At the hearing of 26 September 2024 judgment was reserved in the case. 
I. The administrative procedure 
6. During the procedure, the Municipality: 
URBAN VISION 
 
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- with Decision No 658 of 29 May 2020, established the guidelines for the 
implementation of ‘projects and initiatives aimed at the regeneration of public 
urban spaces through the identification of technical sponsors’, outlining, in 
particular, the following procedure: publication of a notice, including following 
the submission of a proposal by a promoter, evaluation by the Municipality of 
‘consistency with the strategic objectives of the contracting authority’, the value 
of the proposals and their suitability, and subsequent tender on the basis of the 
notice, which disclosed the ‘characteristics of and services offered in the proposal 
received’ and provided for ‘the possibility for the party making the proposal to 
adjust it to match the best bid’; 
- received in March 2021 a proposal from the consortium, which it examined; 
- launched the call for tenders (Decision No 5782 of 20 July 2021); 
- published on 20 July 2021 a ‘Public Notice’ on its website calling for the 
‘submission of proposed improvements’ with respect to the proposal it had 
received, which is described in detail in the notice: the notice lays down the ‘right 
to adjust the proposal’ (Article 6(e)) for the party making the proposal, which, if 
unsuccessful, may within 15 days ‘adjust its proposal to match the one identified 
as being the best and … become the awardee itself if it undertakes to comply with 
the contractual obligations on the same terms as those offered by the [original] 
awardee’ (the pre-emption clause); 
- at the end of the procedure, awarded the contract to Urban Vision (Decision 
No 2576 of 30 March 2023); 
- by Decision No 3513 of 28 April 2023, awarded the contract to the consortium, 
which had availed itself of its pre-emption right. 
II. The contract entered into 
7. At the end of the tender, the consortium signed the contract with the same 
characteristics as the proposal put forward by Urban Vision. 
8. According to the contract, as far as it is of interest here: 
- the consortium is to finance, supply and build 110 automated public toilets 
(ownership of which is to be transferred to the Municipality after final inspection), 
operate and service them for 24 years (for an amount of EUR 29 100 000, plus an 
additional EUR 5 000 000); 
- the Municipality guarantees the use for advertising purposes of 97 advertising 
installations for 18 years following their digital conversion, under terms 
guaranteed in a communication plan subject to a contractual obligation 
(Articles 10 and 11). 
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9. Moreover, it is apparent from the judicial investigation (Order No 1026 of 
2024), that ‘the image benefits gained through commercial promotion’, as 
calculated by the Municipality, ranged from EUR 10 352 827 to EUR 15 517 412, 
and that the communication plan included ‘the direct promotion of the sponsor’ 
and ‘advertising on behalf of third parties that this party, acting as collector, will 
display in the spaces made available’. 
III. The legal question and its relevance 
10. The legal question referred to the Court of Justice hinges on the pre-emption 
clause that has enabled the consortium to be awarded the contract. 
11. The question is relevant because the appellant, Urban Vision, challenges the 
lawfulness of the pre-emption clause in order to have the contract awarded to it, 
having submitted the best bid. 
The alleged unlawfulness can only derive from a failure to transpose EU law 
properly, given that the pre-emption right provided for by the Municipality and 
exercised by the consortium complies with Italian law as set out below. 
IV. Classification of the contract under Italian law 
12. The Chamber takes the view that, contrary to what the Municipality found, 
the contract entered into by the Municipality cannot be classified as a sponsorship. 
In a sponsorship contract, the sponsor undertakes to allocate its own resources to 
finance the service in which the contracting authority is interested, receiving in 
return an intangible benefit in terms of image (which is aleatory) ‘as a 
consequence of the communication to the public of the performance of the service’ 
(Consiglio di Stato (Council of State, Italy), Fifth Chamber, 3 October 2017, 
No 4614). 
In the contract under examination, by contrast, the consideration is ‘the financial 
return consisting of the use/exploitation of the 97 advertising installations’ with 
‘the Sponsor bearing the risk of the exploitation for advertising purposes’ 
(Article 7 of the contract). 
[…] [further contract details] 
The private operator’s interest lies […], with the contract not ruling out that that 
interest may be wholly overriding, in the exploitation of the advertising 
installations, while bearing the related risk associated with demand. 
13. Instead, the contract entered into by the Municipality and the related 
procedure fall within the scope of Article 183 of Legislative Decree No 50/2016, 
entitled ‘project finance’. 
URBAN VISION 
 
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13.1. Article 183 entails a set of procedural rules (see also the report on 
Legislative Decree No 36/2023). Those rules apply to contracts in which, as can 
be seen from the title too (see, also, the report on Legislative Decree No 36/2023 
and Decision No 10 of 23 September 2015 of ANAC (Autorità Nazionale 
Anticorruzione (National Anticorruption Authority))), a private operator finances 
a project in whole or in part, without any guarantee of recovering the investment, 
which depends on the income deriving from the exploitation of the project or the 
provision of the service. 
13.2. Under the contract in question, not only does the private operator bear the 
burden of building the automated public toilets and converting the advertising 
installations with its own resources, but it does not receive any monetary 
consideration either; instead, it can exploit the 97 advertising installations. The 
private operator therefore finances the operation, under the terms set forth in that 
Article 183. 
Accordingly, it bears the operational risk of the aforementioned project and 
management, as well as the risk associated with demand for the advertising 
installations. 
This element enables us to classify the contract. 
Indeed, a concession is characterised not only by a consideration consisting solely 
of the right to operate the installation or manage the services or by that right 
accompanied by a price, but also by the bearing, by the concessionaire, of the 
operating risk (Article 3(uu) and (vv) [of Legislative Decree No 50/2016]), 
understood as the risk associated with the operation of the installation or the 
management of the services on the demand side or on the supply side, or both, as 
when recovery of the investments made is not guaranteed (subparagraph (zz)). 
The definition of public-private partnership includes that of concession: 
partnership contracts are in fact contracts for a consideration whereby the 
economic operator is entrusted with the task of building and operating an 
installation in exchange for the economic exploitation thereof, or of providing a 
service, ‘bearing the risk’ (Article 3(eee) [of Legislative Decree No 50/2016]), 
meaning construction risk, as well as availability risk or risk associated with 
demand (Article 180(3) [of Legislative Decree No 50/2016]); that definition being 
broader, especially in relation to the subject matter of the contract and the related 
risk, than that of a concession. 
The burden borne by the consortium in terms of financing the project without any 
guarantee of recovering the investment, which depends on the income from the 
exploitation of the advertising installations, constitutes a typical example of the 
bearing of risks that characterises concessions and partnerships. 
13.2. The contract under consideration can therefore be classified, also for the 
purposes of EU law (see below), as a concession, as well as a public-private 
partnership. 
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13.3. The above does not preclude the application of Article 183 […] 
[…] [alternative hypothesis rejected by the referring court] 
- Legislative Decree No 50/2016 must be interpreted in light of Directives 
2014/23/EU, 2014/24/EU and 2014/25/EU, which it implements; on the basis of 
those directives (which do not contain any reference to public-private partnership 
contracts), when deciding between a procurement contract and a concession 
contract, the contract at hand, given its subject matter and the risks borne, clearly 
falls within the scope of the latter. 
V. National legislation on the procedure followed by the Municipality 
15. The procedure followed by the Municipality complies with the procedural 
framework governed by Article 183 of Legislative Decree No 50/2016, which 
includes the pre-emption clause and which divides the procedure into three stages: 
- the first stage starts after one or more economic operators submit a proposal, 
whose compliance with the public interest is assessed ‘within the mandatory time 
limit of three months’; 
- in case of a favourable assessment, including following a positive response to 
any modifications requested by the contracting authority, the second stage is 
characterised by the inclusion of the public interest proposal in the programming; 
- the third stage provides for a call for tenders on the approved project. 
16. In accordance with Article 183(15), the notice initiating the last stage 
‘specifies that the promoter may exercise the pre-emption right and become the 
awardee’ by undertaking to guarantee the same terms as those of the best bid, and 
paying the original awardee the costs of preparing the bid. If the promoter does 
not exercise its pre-emption right, it is entitled to the reimbursement of the costs 
incurred in formulating the proposal. 
17. The procedure carried out by the Municipality complies with the 
requirements laid down in Article 183 of Legislative Decree No 50/2016 and, in 
particular, paragraph 15 thereof. 
Urban Vision submitted a proposal. 
The proposal was assessed favourably both with respect to the public purpose 
(‘the public purpose that is pursued is the provision of new Automated Toilet 
Services, as well as their management and maintenance’), and, at the end of a 
specific assessment, with regard to its ‘technical, economic and financial 
suitability’ (see, to that effect, Decision No 5782 of 2021). 
URBAN VISION 
 
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A public notice was therefore published, by which the proposal was put out to 
tender and in which it was specified that the promoter may exercise its pre-
emption right. 
At the end of the tender procedure, the promoter exercised its pre-emption right 
and was awarded the contract by matching the bid submitted by the appellant, 
which had been deemed the best bidder. 
18. The Municipality ensured even greater transparency in its procedure as it 
published a preliminary notice in which it made known its interest in receiving 
proposals for the implementation of initiatives to regenerate public spaces, 
specifying that the promoter’s competitive advantage [incomplete sentence]. 
Nor was there an issue with the comparison between the proposals submitted by 
several promoters since the consortium was the only one to submit a proposal. 
VI. The legal issue 
19. Moving on to illustrate the question, the Chamber wonders whether 
Article 183(15) of Legislative Decree No 50/2016 constitutes a proper 
transposition of EU law. 
Indeed, the pre-emption clause, though ensuring a tender is indeed held, can 
radically change its outcome if the promoter exercises that right; a party making a 
proposal that is not the awardee under the tender rules does indeed itself become 
the awardee if it adjusts its proposal to match the proposal that has been identified 
as the best one. 
Pre-emption thus has effects on the equality of treatment that is the feature of 
public tenders, calling its essence into question. 
VII. EU law: Directive 2014/23/EU 
20. Directive 2014/23/EU (‘the Directive’) is relevant here, as it concerns 
concessions, such as the contract at hand, the estimated value of which exceeds 
the threshold value indicated in Article 8 of that directive. 
For the same reasons as those already set out above, on the basis of which the 
contract entered into by the Municipality falls within the concept of concession 
contained in Legislative Decree No 50/2016, it is also included in the concept of 
concession in Article 5 of the Directive, since the former legislation lifts the 
definition from the latter, of which it constitutes the implementation. The fact that 
the subject matter of the contract is (also) the exploitation of the 97 advertising 
installations does not determine the non-applicability of the Directive, given the 
main purpose of the contract, namely the building of public toilets, in respect of 
which the exploitation of 97 advertising installations is instrumental and it does 
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not allow it to be classified either as a rental of public property (Article 10(8)(a)), 
or a unilateral concession without mutually binding obligations (recital 14), or an 
agreement in which the contracting authority limits itself to establishing ‘only 
general conditions for their use without procuring specific works or services’ 
(recital 15), or a contract that ‘is remunerated on the basis of the regulated tariffs’ 
(recital 17). 
VIII. The reasons for doubt 
21. The directive does not refer to or regulate the pre-emption clause. 
[…] The Chamber wonders about the consequences to be inferred from that 
omission. 
First of all, it wonders whether it is permissible to infer from this that the directive 
precludes the tender rules from providing for the pre-emption clause. 
22. Nevertheless, there are elements to be found in the [EU] legal system that 
might not exclude in absolute terms the admissibility of the pre-emption clause 
and justify such a doubt arising in that respect. 
23. In particular, the Directive states: 
- the ‘flexibility to define and organise the procedure leading to the choice of 
concessionaire’ (recital 68, as well as recitals 1 and 8); 
- the balance between flexibility and equal treatment, which is identified in 
transparency and the dissemination of information (recital 68); 
- the ‘basic’ information concerning the ‘nature and scope of the concession’ as 
well as the ‘limitation of the number of candidates’ (recital 68); 
- the ‘general standards’ necessary to ensure equal treatment, which ‘may refer to 
factors which are not purely economic, but influence the value of a tender from 
the point of view of the contracting authority’ so as to ‘permit it to identify an 
overall economic advantage to the contracting authority’ (recital 73); 
- the positive consideration of the inclusion in award criteria of environmental, 
social or innovation-related criteria (recital 73); 
- the relevance of not providing information in a discriminatory manner ‘which 
may give some candidates or tenderers an advantage over others’ (Article 3 in 
conjunction with Article 30) under the principle of equal treatment. 
Of particular relevance is the provision contained in Article 41(3): if the 
contracting authority receives a tender proposing an ‘innovative solution’, it ‘may, 
exceptionally, modify the ranking order of the award criteria to take into account 
that innovative solution’. In that case, it is obliged to issue a new invitation to 
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submit tenders, as ‘the modification of the ranking order shall not result in 
discrimination’. 
In this case, the balance between the contribution of the private operator and equal 
treatment lies in putting the innovative solution out to tender. 
24. The aspects subject to discretion, the relevance attributed to the 
dissemination of information on the procedure for the purpose of respecting the 
basic guarantees of equal treatment, including that which may benefit certain 
candidates, and the relevance (for the tender) attributed to innovative solutions 
render uncertain the inference that the pre-emption clause is incompatible with the 
Directive. 
25. The principle of proportionality, being a general principle, requires that the 
rules laid down by the Member States or the contracting authorities ‘must not go 
beyond what is necessary to achieve the objectives of that directive’ (CJEU, 
26 September 2024, C-403/23). 
The main objective of the EU’s public procurement rules includes ‘the opening-up 
of public procurement to undistorted competition in all the Member States’ 
(CJEU, 7 September 2021, C-927/19), which is an integral part of the internal 
market within the meaning of Article 3(3) TEU (Protocol No 27 TFEU). 
From this perspective, restrictions on economic freedom are permissible if they 
serve the purpose of achieving competition (for the market). 
In that regard, it should be noted that pre-emption is an expression of 
entrepreneurial freedom, which amounts to a fundamental freedom under 
Article 15 of the Charter of Nice, and of the market. In the market, to which the 
directive applies, an advantage is in any case ensured, at least for a certain period 
of time, when an innovative solution is brought forward. 
Moreover, given that the assessment of proportionality postulates a comparison 
between opposing interests (CJEU, 27 January 1987, C-45/1985), it must likewise 
be noted that the valorisation of initiatives from the private sector serves the 
purpose of good administration (Article 41 Nice Charter) and the principle of 
efficiency and sound financial management (Article 310(5) TFEU), in the sense 
that it directs administrative activities towards sectors and activities that private 
operators consider worthy of protection, ensuring savings in terms of time and 
resources for those administrative activities. 
26. The freedom of establishment and the freedom to provide services under 
Articles 49 and 56 TFEU, respectively, are also relevant. This is true not only in 
the event the directive is not deemed applicable but also because of the incisive 
effects of pre-emption on equal treatment and on the very essence of public 
tenders – effects which call into question the principles in the name of which the 
directive requires equal treatment – and because of the lack of a specific provision 
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referring to it within the directive, all of which may justify scrutiny of the pre-
emption right also in the light of those higher ranking principles. 
A national regulation, notwithstanding its restrictive effects on the freedom of 
establishment and the freedom to provide services, may be justified if it meets 
overriding requirements in the general interest, provided that interest is not 
already protected by other rules, is suitable for securing the attainment of the 
objective pursued and does not go beyond what is necessary to attain it (CJEU, 
22 November 2018, C-625/17 and 15 September 2011, C-347/09). 
Pre-emption, by fostering private sector proposals vis-à-vis public activities, 
constitutes an implementation of the principle of horizontal subsidiarity 
(Article 118 of the Constitution), is gives expression to a mode of cooperation that 
can make the achievement of public interests more effective in terms of time and 
resources, and can foster an advancement of the contracting authority through the 
acquisition of new knowledge typical of the private sector (in line with the 
principles of impartiality and good performance set out by Article 97 of the 
Constitution), as well as constituting a stimulus for enterprise. 
Nonetheless, it might not be suitable for the purpose of achieving the objective 
pursued and, in any event, it might not be proportionate. Indeed, it is possible to 
imagine systems that, while rewarding initiative, nevertheless produce less 
incisive effects for the tender (without necessarily ensuring the outcome). By way 
of example, one can imagine that it may be possible to valorise the promoter’s 
initiative by awarding additional points, or by using flexible processes: 
competitive dialogue and the competitive procedure with negotiation are useful 
precisely in cases where contracting authorities are not in a position to 
predetermine how to meet their needs or assess what the market can offer in terms 
of technical, financial or legal solutions. 
27. Lastly, it should be noted that, although, as mentioned, the exploitation of 
the 97 advertising installations does not constitute the characteristic service under 
the contract at hand, reference is nevertheless made (also) to the principles 
inferable from Article 12 of Directive 2006/123/EC, applicable to concessions of 
public property aimed at the exercise of an economic activity if such property is 
scarce (CJEU, 14 July 2016, C-458/14 and C-67/15). 
Article 12 does not contain an absolute prohibition on the introduction of pre-
emption relating to services in the internal market, but it does prevent, in the event 
of scarcity of a resource, award systems based on non-competitive methods, while 
still allowing Member States to take account of ‘overriding reasons relating to the 
public interest, in conformity with Community law’, with the consequences 
outlined above. 
28. In view of the above, it should be noted that the Italian rules on pre-emption 
contained in Article 183(15) of Legislative Decree No 50/2016, although it 
rewards, and therefore fosters, the initiative of a private operator that bears the 
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burden of formulating a proposal without being able to know in advance the risks 
and the outcome thereof, nevertheless: 
- guarantees the award of the contract to the promoter, even if the best bid was 
submitted by another candidate; 
- therefore, does not necessarily reward the entity which submitted the bid that is 
deemed preferable by the contracting authority, given that it would not be 
necessary to exercise pre-emption otherwise; 
- does not delimit the scope of application of the pre-emption right by requiring 
that the subject matter of the contract under tender must have characteristics 
intended to limit its use which are not limited to a type of financing or compliance 
with the public interest; 
- does not presuppose that the proposal is innovative, in terms of the intrinsic 
characteristic of the subject matter of the proposal or the novel nature thereof with 
respect to the previous activity carried out by the contracting authority; 
- does not require initial transparency as to the privileged position of the promoter 
(even though, in the case at hand, this was indeed ensured by the Municipality), 
given that pre-emption was disclosed when the call for tenders was opened 
following the submission of the proposal, whereas the privileged position arose 
from conduct prior to such communication; 
- lacks guarantees and procedural rules if more than one promoter submit a 
proposal (a circumstance that does not occur in the case at hand but is indicative 
of the rules applicable to pre-emption). 
29. In view of the foregoing, the Chamber considers that it has reason to doubt 
that the principles of freedom of establishment and freedom to provide services, 
and the Directive, interpreted in the light of the principles of proportionality, good 
administration and efficiency, as well as Article 12 of Directive No 2006/123/EC, 
if deemed applicable, preclude the pre-emption clause contained in 
Article 183(15) of Legislative Decree No 50/2016. 
30. Therefore, the Chamber, in the absence of a rule expressly governing or 
expressly prohibiting the pre-emption clause, deems that the prerequisites of the 
obligation to make a reference are met, also in view of the fact that the Court of 
Justice has not specifically ruled on this point. In 2008, although the Court 
answered positively a question concerning pre-emption in relation to the principle 
of equal treatment, it stated that the principles of freedom of establishment and 
freedom to provide services ‘do not lay down a general obligation of equal 
treatment but contain … a prohibition on discrimination on the basis of 
nationality’, adding the key consideration that ‘the Commission does not give any 
particulars regarding the existence of such discrimination’ (CJEU, 21 February 
2008, C-412/04). 
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31. For the purpose of the reference for a preliminary ruling, given that ‘the 
provisions of the FEU Treaty on the freedom of establishment, the freedom to 
provide services and the free movement of capital do not apply to a situation 
which is confined in all respects within a single Member State’, it is noted that this 
is one of the situations contemplated in paragraphs 50 to 53 of the judgment of 
15 November 2016 (CJEU, 15 November 2016, C-268/15) given that, though the 
elements in the main proceedings are circumscribed within a single Member State, 
it cannot be ruled out that citizens established in other Member States are 
interested in making use of fundamental freedoms in order to exercise activities on 
the territory of the Member State which enacted the national legislation at issue. 
Therefore, this may produce effects which are not limited to that Member State. 
IX. The question 
32. In view of all the foregoing, the Chamber asks the Court of Justice of the 
European Union to give a preliminary ruling, pursuant to Article 267 TFEU, on 
the following question: ‘Do the principles of freedom of establishment and 
freedom to provide services laid down in Articles 49 and 56 TFEU, as well as 
Directive 2014/23/EU, interpreted in the light of the principles of proportionality, 
good administration and efficiency, and Article 12 of Directive 2006/123/EC – in 
the event that the Court considers it to be applicable – [preclude] the national 
rules on pre-emption contained in Article 183(15) of Legislative Decree 
No 50/2016?’ 
33. […] 
34. […] [transmission of documents] 
FOR THESE REASONS 
The Consiglio di Stato (Council of State) […] (Fifth Chamber) […] refers the 
question set out in paragraph [32] of the grounds to the Court of Justice of the 
European Union for a preliminary ruling and […] stays the proceedings. 
[…] [transmission of documents] 
Thus decided in Rome […] on 26 September 2024 […]