Opinion of the Advocate General — ECLI:EU:C:2026:382
Date: 2026-05-07
Language of the case: Italian

Summary C-268/25 – 1 
Case C-268/25 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
8 April 2025 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
2 April 2025 
Applicants: 
ETS Srl 
Minnucci Associati Srl 
Mi.Cos.SpA 
Itesa Srl 
Maceg Srl 
Tekno Kons Innovation Srl 
Cartorender Srl 
Rilievi Topografici di Boninsegna G. & C. Snc 
Tecno Top Srl 
I.G. Service 
Sub-Service Srl 
Defendant: 
Rete Ferroviaria Italiana SpA 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-268/25 
 
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Subject matter of the main proceedings 
Application for annulment of the decisions excluding the applicant companies, 
grouped together as a raggruppamento temporaneo di imprese (a temporary 
grouping of undertakings; ‘RTI’) from the public procurement procedure launched 
in the railway sector by the defendant company, with the result that the contract 
was awarded to another RTI. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, interpretation is sought of Article 57 of 
Directive 2014/24/EU, of Article 80 of Directive 2014/25/EU, and of the EU law 
principle of proportionality 
Questions referred for a preliminary ruling 
‘(1) Do Article 57 of Directive 2014/24/EU, Article 80 of Directive 2014/25/EU 
and the [EU law] principle of proportionality preclude the introduction or 
interpretation of a national rule which does not allow for the exclusion or 
substitution of a principal of a grouping of undertakings which has infringed tax 
rules that have been definitively established prior to the expiry of the time limit 
for submitting the tender; in particular, by way of a provision according to which, 
in any event, the extinction, payment or commitment to pay must have taken place 
before the expiry of that time limit, even if the reason for exclusion ceased to exist 
during the tender procedure and before the adoption of the measure excluding the 
grouping; 
(2) if the first question is answered in the affirmative, do the same rules and 
principles preclude the introduction or interpretation of a national rule that does 
not allow for the exclusion or substitution of a principal of a grouping irrespective 
of the agent’s actual knowledge of the reason for the exclusion of the principal? 
(3) if the first and second questions are answered in the affirmative, do those 
same rules and principles preclude the introduction or interpretation of a national 
rule that does not allow for the exclusion or substitution of a principal where the 
reason for the exclusion of that principal came to the knowledge of the agent only 
following notification of the contracting authority’s checks? 
Provisions of EU law relied on 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC: in 
particular, Article 57. 
Directive 2014/25/EU of the European Parliament and of the Council of 
26 February 2014 on procurement by entities operating in the water, energy, 
ETS AND OTHERS 
 
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transport and postal services sectors and repealing Directive 2004/17/EC: in 
particular, Article 80. 
The operative part of the Court’s judgment of 3 June 2021, C-210/20, Rad Service 
and Others, EU:C:2021:445, is also referred to. 
Provisions of national law relied on 
Decreto legislativo 31 marzo 2023, n. 36, Codice dei contratti pubblici 
(Legislative Decree No 36 of 31 March 2023, Public Procurement Code). The 
referring court highlights the following provisions thereof. 
Article 97(1) ‘Without prejudice to the provisions of Article 96(2), (3), (4), (5) 
and (6), a grouping of undertakings shall not be excluded where one of its 
members is affected by an automatic or non-automatic ground for exclusion or 
does not meet a qualification requirement, if the conditions set out in paragraph 2 
have been fulfilled and it has complied with the following obligations: 
(a) at the time of the submission of the tender: 
(1) it informed the contracting authority of the fact that a reason for exclusion 
existed prior to the submission of the tender and that the qualification requirement 
was no longer met, as well as the entity concerned thereby; 
(2) it justified the measures taken pursuant to paragraph 2 or why it is was not 
possible to take them before that date; 
(b) it adopted and notified the measures referred to in paragraph 2 before the 
award of the contract, where the reason for exclusion arose after the tender was 
submitted or where the qualification requirement was no longer met following the 
submission of the tender’. 
Article 97(2) ‘Without prejudice to Article 96, if a member of the grouping is in 
one of the situations referred to in Articles 94 and 95 or does not meet one of the 
requirements laid down in Article 100, the grouping may demonstrate that it has 
excluded that member or substituted it by another entity meeting the necessary 
requirements, without prejudice to the unalterable nature of the substance of the 
tender submitted. If those measures are considered to be sufficient and adopted in 
good time, the grouping shall not be excluded from the tender procedure. If the 
contracting authority takes the view that the measures are untimely or insufficient, 
the economic operator shall be excluded by reasoned decision’. 
It can be inferred from Article 96(2) (relating to the grounds for the exclusion of 
an individual economic operator), referred to in Article 97 (and for that reason 
also applicable to a grouping of undertakings), that the rule in question, known as 
‘self cleaning’, does not apply because of the automatic exclusion clause in 
Article 94(6) which provides that: ‘An economic operator which has committed 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-268/25 
 
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serious infringements, definitively established, of obligations relating to the 
payment of taxes or social security contributions under Italian law or the law of 
the State in which it is established shall also be excluded. Serious infringements 
definitively established are those listed in Annex II.10. This paragraph shall not 
apply where the economic operator has fulfilled its obligations by paying or 
entering into a binding arrangement with a view to paying the taxes or social 
security contributions due, including, where applicable, any interest accrued or 
penalties, or when the tax or social security debt is in any case extinguished in 
full, provided that the extinction, payment or commitment occurred before the 
deadline for submitting the tender’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicants challenged the decision, dated 17 July 2024, by which the 
defendant company excluded them from the tender procedure on the ground that 
one of the members of the RTI, the company Sub-Service Srl, had been found to 
have infringed tax rules and had not demonstrated that it had remedied the 
irregularities in question before the expiry of the time limit for submitting tenders 
for the procurement procedure. The defendant company did not actually take into 
account the fact that the tax irregularity had in any case been remedied before the 
close of the procurement procedure, nor the fact that the agent company of the 
RTI, ETS, had in any event offered to substitute the company Sub-Service within 
the grouping. 
The essential arguments of the parties in the main proceedings 
2 The applicant companies complain that the EU rules on public procurement were, 
in their opinion, incorrectly transposed in that the contents of those rules were 
unjustifiably narrowed down by depriving the members of an RTI of the 
possibility (1) of benefiting from recognition of the fact that any irregularities 
found to have been committed by any of their members had been remedied after 
the deadline for submission of tenders but before the adoption of the measure 
excluding the persons concerned from the grouping; (2) or to be allowed to 
organise for the infringing entity to be substituted even where that replacement 
does not entail a substantial alteration of the original tender. 
3 The defendant company seeks dismissal of the action. 
4 The company Via Ingegneria Srl intervened in support of the defendant, as a 
member of the RTI which came second to the excluded RTI in the selection 
ranking. That company defends the lawfulness of the exclusion decision, arguing 
that drawing up a single European tender document containing declarations which 
proved to be false amounts to ‘grave professional misconduct’ and that the 
substitution of the company Sub-Service would have led, in any case, to a 
substantial alteration of the contents of the tender, which could not be accepted 
under the rules of the contract in question. 
ETS AND OTHERS 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
5 By the three questions referred for a preliminary ruling, which it views as essential 
in order to resolve the dispute, the referring court expresses doubts: with regard to 
the first question, concerning the compatibility with EU law of the rule – added by 
the Italian legislature in its transposition of Directive 2014/24 – that any ‘self-
cleaning’ is precluded if it has not taken place ‘before the expiry of the time limit 
for the submission of the tender’; as regards the other two questions, is it 
permissible, in the light of EU law, for that exclusion to apply regardless of when 
the agent of the RTI became aware of the existence of a reason for exclusion in 
respect of a company of the grouping bearing in mind, moreover, that, according 
to recent case-law of the Consiglio di Stato (Council of State, Italy), the reciprocal 
connection binding the members of the RTI is regarded as being so close that it 
can be categorically ruled out that any of the members of that grouping would not 
be aware of the existence of a reason for exclusion. 
6 In addition, the Italian rule at issue appears, to the referring court, to be unlikely to 
be compatible with the principle of proportionality in that one of the consequences 
of the temporal limitation introduced by the Italian legislature is that more serious 
instances of tax irregularity would not give rise to the exclusion of an RTI should 
they be remedied within the prescribed period.