Opinion of the Advocate General — ECLI:EU:C:2020:306
Date: 2020-04-23
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-521/18 — 1 
Case C-521/18 
Summary of request for a preliminary ruling pursuant to Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
6 August 2018 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
4 July 2018 
Applicants: 
Pegaso Srl Servizi Fiduciari 
Sistemi di Sicurezza Srl 
YW 
Defendants: 
Poste Tutela SpA 
Poste Italiane SpA 
  
Subject-matter of the main proceedings 
The applicants in the main proceedings seek the annulment of the contract 
notice — issued by Poste Tutela s.p.a. and published in Gazzetta Ufficiale della 
Repubblica Italiana n. 87 del 31 luglio 2017, 5a serie speciale contratti pubblici 
(Official Journal of the Italian Republic, ‘GURI’, No 87 of 31 July 2017, 5th 
Special Series — public contracts) for establishing framework agreements in 
connection with caretaking, reception and access control services for the premises 
of Poste Italiane s.p.a. and of other companies in its group, for a period of 24-
months (with a further 12 months, in the event of contract renewal), for a total 
estimated amount of EUR 25 253 242, as well as the annulment of other related 
measures. 
EN 
SUMMARY OF REQUEST FOR A PRELIMINARY RULING — CASE C-521/18 
 
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Subject matter and legal basis of the reference for a preliminary ruling 
1 Compatibility with EU law (Directives 2014/23/EU, 2014/24/EU and 
2014/25/EU) of national legislation as set out at Article 3(1)(e) of decreto 
legislative 18 aprile 2016, n. 50, Codice dei contratti pubblici (Legislative Decree 
No 50 of 18 April 2016, Public Contracts Code) insofar as that provision is 
understood, according to the interpretation provided by the Corte di Cassazione 
(Supreme Court of Cassation, Italy) (Order No 4899/2018), which is binding in 
domestic law with regard to jurisdiction, as providing a derogation, for 
undertakings operating in the special sectors set out in Part II of the Code, from 
the general principles laid down in Article 1 and Article 3(1)(a) of the Code, 
insofar as concerns the obligation to hold competitive tendering procedures when 
the contract to be awarded does not relate to the activities which are specific to the 
special sectors. 
2 In these proceedings, the referring court must also address a twofold problem: the 
first relates to the binding force in Italian procedural law of decisions concerning 
jurisdiction given by the Supreme Court of Cassation ruling as combined 
chambers; the second relates to the potential development of Court of Justice case-
law, as certain legal entities, established as bodies governed by public law, are 
gradually turning into fully-fledged undertakings which seek to make a profit, 
bear losses, and which operate for the most part in a competitive environment (see 
recital 21 and Article 16 of Directive 2014/23/EU). 
3 With regard to the first issue, the referring court observes that the Supreme Court 
of Cassation is required to establish, in a definitive and binding manner, whether, 
under the Italian procedural system, the court seised of the case has jurisdiction to 
hear it. The Court of Justice, however, has stated a general principle whereby EU 
law precludes a national court from being bound by a domestic procedural rule 
under which it is required to abide by the findings of a higher national court, 
where it is apparent that such findings do not comply with EU law, as interpreted 
by the Court of Justice (see judgment of 20 October 2011, C-396/09, Interedil 
s.r.l., in liquidation). 
4 There is therefore the option (or the obligation, for courts of last instance) to turn 
to the Court of Justice when there is a ‘reasonable doubt’ about the correct 
application of EU law, regardless of any conflicting decision on jurisdiction by the 
Supreme Court of Cassation, or by the Consiglio di Stato (Council of State, Italy) 
sitting in plenary session — which is binding on the ordinary chambers of the 
Council of State (see, among others, Court of Justice judgments of 5 April 2016, 
C-689/13, Puligienica Facility, and of 6 October 1982, C-283/81, CILFIT, and 
also of the Corte Costituzionale (Constitutional Court) (see Court of Justice, 
judgement of 20 December 2017, C-322/16, Global Starnet). 
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Questions referred for a preliminary ruling 
(1) Should the company Poste Italiane s.p.a., on the basis of characteristics set out 
above, be classified as a ‘body governed by public law’ within the meaning of 
Article 3(1)(d) of Legislative Decree No 50 of 2016 and of the relevant EU 
directives (2014/23/EU, 2014/24/EU and 2014/25/EU)? 
(2) Should that classification be extended to include the wholly owned subsidiary 
company Poste Tutela s.p.a — whose merger with Poste Italiane s.p.a is already 
under way — bearing in mind what is stated in recital 46 of Directive 2014/23/EU 
concerning controlled legal persons? (see also, in this respect, judgment of the 
Court of Justice of the European Union (Fourth Chamber) of 5 October 2017, 
Case [C-567/15]: competitive tendering requirement for companies controlled by 
public authorities; judgment No 6211 of the Council of State, Chamber VI, of 
24 November 2011.) 
(3) Are those companies, as contracting entities, required to conduct competitive 
tendering procedures only when awarding contracts in connection with activities 
carried out in the special sectors, pursuant to Directive 2014/25/EU — such 
contracting entities having to be deemed bodies governed by public law under the 
rules laid down in Part II of the Public Procurement Code — whilst, on the other 
hand, having unfettered freedom and being subject only to private-sector rules for 
contracts not connected to such sectors, bearing in mind the principles set out in 
recital 21 and Article 16 of Directive 2014/23/EU? 
(4) On the other hand, with regard to contracts considered not to be directly 
connected with the specific activities covered by the special sectors, are those 
companies, where they satisfy the requirements for being classified as bodies 
governed by public law, subject to the general Directive 2014/24/EU (and 
therefore to the rules governing competitive tendering procedures), even when 
performing primarily entrepreneurial activities under competitive market 
conditions, having developed from when they were originally established? 
(5) In any event, in the case of offices in which activities connected to the 
universal service and activities unrelated to it are both performed, may the concept 
of functionality, in connection with a service which is specifically in the public 
interest, be said to be inapplicable as regards contracts relating to ordinary and 
extraordinary maintenance, cleaning, furnishing, caretaking and storage services 
for such offices? 
(6) Finally, were the arguments of Poste Italiane s.p.a. to be endorsed, should the 
fact that a decision to organise a competitive tendering procedure has been taken 
without there being any obligation to conduct such a procedure — which is not 
subject to all the guarantees of transparency and equal treatment, as governed by 
the Public Procurement Code — and the fact that the decision is duly published 
without any further notice in that regard in the Official Journal of the Italian 
Republic and the Official Journal of the European Union, be regarded as 
SUMMARY OF REQUEST FOR A PRELIMINARY RULING — CASE C-521/18 
 
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incompatible with the established principle that the legitimate expectations of 
tenderers must be protected? 
EU law provisions relied on 
Directive 2014/23/EU of the European Parliament and of the Council of 
26 February 2014 on the award of concession contracts, and in particular recitals 
21 and 46, Article 16 
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, and 
in particular Article 7 
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, 
transport and postal services sectors and repealing Directive 2004/17/EC 
Directive 2004/17/EC of the European Parliament and of the Council of 31 March 
2004 coordinating the procurement procedures of entities operating in the water, 
energy, transport and postal services sectors 
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 
2004 on the coordination of procedures for the award of public works contracts, 
public supply contracts and public service contracts 
Commission Decision 2008/383/EC of 30 April 2008 exempting express and 
courier services in Italy from the application of Directive 2004/17/EC of the 
European Parliament and of the Council coordinating the procurement procedures 
of entities operating in the water, energy, transport and postal services sectors 
Provisions of national law relied on 
Legge 4 agosto 2017, n. 124 — Legge annuale per il mercato e la concorrenza 
(Law No 124 of 4 August 2017 — Annual law on markets and competition) 
Decreto legislativo 18 aprile 2016, n. 50 — Attuazione delle direttive 
2014/23/UE, 2014/24/UE e 2014/25/UE sull’aggiudicazione dei contratti di 
concessione, sugli appalti pubblici e sulle procedure d’appalto degli enti erogatori 
nei settori dell’acqua, dell’energia, dei trasporti e dei servizi postali, nonché per il 
riordino della disciplina vigente in materia di contratti pubblici relativi a lavori, 
servizi e forniture (Legislative Decree No 50 of 18 April 2016 — implementing 
Directives 2014/23/EU, 2014/24/EU and 2014/25/EU on the award of concession 
contracts, on public procurement and on procurement procedures of entities 
operating in the water, energy, transport and postal services sectors, as well as for 
the revision of existing rules on public works contracts, services contracts and 
PEGASO AND SISTEMI DI SICUREZZA 
 
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supply contracts), in particular Article 3(1)(a), (d) and (e), Article 8, Articles 115 
to 121, specifically Article 120 
Decreto legislativo 12 aprile 2006, n. 163 — Codice dei contratti pubblici relativi 
a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE 
(Legislative Decree No 163 of 12 April 2006, Code on public works contracts, 
public service contracts and public supply contracts, implementing Directives 
2004/17/EC and 2004/18/EC), in particular Article 3(26), Article 3(29) and Annex 
VI F 
Decreto legislativo 22 luglio 1999, n. 261 — Attuazione della direttiva 97/67/CE 
concernente regole comuni per lo sviluppo del mercato interno dei servizi postali 
comunitari e per il miglioramento della qualità del servizio (Legislative Decree 
No 261 of 22 July 1999 — implementing Directive 97/67/EC on common rules 
for the development of the internal market of Community postal services and the 
improvement of quality of service), Article 1, Article 23(2), Article 3(12) 
Decreto legislativo 31 marzo 2011, n. 58 — Attuazione della direttiva 2008/6/CE 
che modifica la direttiva 97/67/CE, per quanto riguarda il pieno completamento 
del mercato interno dei servizi postali della Comunità (Legislative Decree No 58 
of 31 March 2011 — implementing Directive 2008/6/EC amending Directive 
97/67/EC with regard to the full accomplishment of the internal market of 
Community postal services), Article 1 
Decreto legge 1° dicembre 1993, n. 487, Trasformazione, dell’Amministrazione 
delle poste e delle telecomunicazioni in ente pubblico economico e 
riorganizzazione del Ministero (Decree-Law No 487 of 1 December 1993 — 
Conversion of the Post and Telecommunications Office into a public economic 
entity and reorganisation of the Ministry), Article 4 
Supreme Court of Cassation Order No 4899 of 1 March 2018 
Council of State Judgment No 16 of 1 August 2011, Judgments Nos 13, 14, 15 
and 16 of 2016. 
Succinct presentation of the main proceedings and main arguments of the 
parties 
5 By application No 9156/17 of 28 September 2017, the applicants contested the 
contract notice in question. As the complaints made were, prima facie, justified, 
the tender procedure was suspended by interim order on 20 October 2017. 
6 The defendants, first of all, raise a preliminary objection that the administrative 
court does not have jurisdiction. 
7 In support of that objection, the defendants observe that the tender procedure in 
question was launched by a public undertaking, within the meaning of 
SUMMARY OF REQUEST FOR A PRELIMINARY RULING — CASE C-521/18 
 
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Article 3(1)(d) of decreto legislativo 18 aprile 2016, n. 50 (‘Public Contracts 
Code’), (‘Legislative Decree No 50/2016’, the ‘Code’, or the ‘Public Procurement 
Code’), for the provision of services unconnected to those included in the special 
sectors (Article 114 et seq., and Article 120 with regard to postal services). Poste 
Tutela s.p.a. has stated that it is a wholly-owned subsidiary of Poste Italiane s.p.a., 
which in turn has the status of public undertaking, 29.26% of its share capital 
being held by the Ministero dell’Economia e delle Finanze (Ministry of Economic 
Affairs and Finance), 35% by Cassa Depositi e Prestiti and the remainder by 
private investors. 
8 With this legal status, the defendants argue that the aforementioned company is 
subject to the rules laid down in Legislative Decree No 50/2016 only when 
operating in special sectors, but not in connection with a contract for the provision 
of services such as that to be awarded in the case at hand, which is intended for 
administrative and management offices that are predominantly concerned with 
financial transactions, and are used for other purposes only as a last resort. In this 
context, it is argued that the company has unfettered freedom to award the 
contract in question and that its decision to launch the competitive tendering 
procedure was simply a self-imposed decision –it being under no obligation to do 
so — which does not fall in any event under the jurisdiction of the administrative 
courts. 
9 In support of the objection raised, Poste Tutela s.p.a. has submitted Supreme 
Court of Cassation Order No 4899 of 1 March 2018, which states that Poste 
Italiane s.p.a. has the status of public undertaking and that the ordinary courts 
have jurisdiction in respect of a tender procedure that is unconnected with the 
activities covered by the special sector. 
10 The applicant Pegaso s.r.l. disputes these arguments, maintaining that Poste 
Italiane s.p.a. has the status of a body governed by public law, and that, by 
extension, that legal classification applies to its subsidiary, Poste Tutela s.p.a. It 
also argues that the services included in the special sectors must be regarded as 
including both those mentioned directly by the sectoral regulations and the 
complementary and functional services that are intended to ensure that it operates 
efficiently. 
11 In this context, the referring court has asked the Autorità per le Garanzie nelle 
Comunicazioni (Communications Regulatory Authority, Italy, the ‘AGCOM’) and 
the Ministero dello Sviluppo Economico (Ministry of Economic Development, the 
‘MISE’) to provide clarification on the following questions: 
(1) whether the activities carried out by Poste Italiane s.p.a., other than those 
relating to postal services, are directly exposed to competition on markets to 
which access is not limited, pursuant to Article 8 of Legislative Decree 
No 50/2016; 
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(2) whether Court of Cassation Order No 4899 of 1 March 2018 is in accordance 
with the approach taken by the Court of Justice of the European Union in its 
judgment of 10 April 2008, C-393/06, Aigner, and all EU case-law, as regards to 
the scope of the rules governing contracts in special and ordinary sectors, with 
regard in particular to the status of the entity involved, given that Article 7 of 
Directive 2014/24 (ordinary sectors) excludes ‘contracting authorities’ from the 
scope of this directive when exercising one or more of the activities included in 
the so-called ‘special sectors’; 
(3) with regard to the legal status of Poste Italiane s.p.a., whether this company 
fulfils the requirement of meeting needs in the general interest that are not 
industrial or commercial in nature, in accordance with the definition of bodies 
governed by public law set out in Article 3(1)(d) of Legislative Decree 
No 50/2016. 
12 The AGCOM and the MISE complied with the request by submitting their reports. 
Succinct presentation of the grounds for the reference for a preliminary 
ruling 
13 A question concerning jurisdiction has been raised before the referring court. The 
resolution of that question depends on the legal status of the [respondent] 
undertakings. According to the Supreme Court of Cassation, Poste Italiane s.p.a. 
and Poste Tutela s.p.a., which is wholly-owned by the former, are public 
undertakings which, as regards services not strictly connected to the special sector 
they operate in, for the purposes of Article 120 of Legislative Decree No 50/2016, 
are not subject to the rules of the Public Procurement Code. 
14 Court of Cassation Order No 4899 of 1 March 2018 sets out the following 
principles: 
(a) Poste Italiane s.p.a., while responsible for providing the ‘universal postal 
service’, currently also engages in financial activities, or in any event activities 
unrelated to the provision of mail delivery services, which is now exposed to 
competition; 
(b) Directive 18/2004/EC ‘explicitly excluded’ Poste Italiane s.p.a. from the 
categories of bodies governed by public law; Poste Italiane s.p.a. has now been 
structured as a contracting entity, within the meaning of Article 3(29), and Annex 
VI F of Legislative Decree No 163 of 2006, because it did not fulfil the 
‘requirement of meeting needs in the general interest that are not industrial or 
commercial in nature, which means that the entity concerned must be entrusted 
solely with meeting such needs and is not allowed to carry out other activities’; 
(c) Judgments Nos 13, 14, 15 and 16 of 2016 of the Consiglio di Stato (Council of 
State) sitting in plenary session, classify Poste Italiane s.p.a. as a body governed 
by public law; 
SUMMARY OF REQUEST FOR A PRELIMINARY RULING — CASE C-521/18 
 
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d) ‘Any classification of Poste Italiane S.p.A. as a body governed by public law’ 
would in any event be ‘irrelevant’, because the question whether an entity is 
subject to rules on competitive tendering procedures must be resolved in 
accordance with the provisions governing the special sectors, on the basis of Poste 
Italiane’s status as contracting entity. 
15 The Supreme Court of Cassation’s arguments, in particular those set out under (b) 
and (d) above, seem to be in conflict with the judgment of the Court of Justice of 
10 April 2008, C-393/06, Ing. Aigner, which reaches the opposite conclusions, as 
summarised below: 
(I) Directive 2004/17/EC (now 2014/25/EU) regulates procurement by entities 
operating in the so-called ‘special sectors’ (water, energy, transport and postal 
services sectors), in which the ‘contracting entities’ are not limited to the 
‘contracting authorities’ (as now defined by Article 3(1)(a) of Legislative Decree 
No 50/2016), but may also be ‘public undertakings’, or ‘undertakings enjoying 
special or exclusive rights granted by a competent authority of the Member State’, 
insofar as such entities are engaged in one of the activities covered by that sector. 
The provisions of this directive are to be interpreted restrictively, and therefore 
only with regard to contracts connected to the sector concerned, the ‘contagion 
theory’ referred to in the judgment of 15 January 1998, C-44/96, Mannesmann 
thus being abandoned (see also, to that effect, judgment of 16 June 2005, [joined 
cases] C-462/03 and C-463/03, Strabag and Kostmann). 
(II) As regards bodies governed by public law (as defined by Directives 
2014/24/EU and 2014/25/EU, and as transposed in Article 3(1)(d) of Legislative 
Decree No 50/2016), the interpretation, instead, should not be restrictive, but 
functional, and therefore based on ascertaining whether the entity was established 
for the purpose of meeting needs in the general interest ‘that are not industrial or 
commercial in nature’. In that regard, according to the Ing. Aigner judgment, ‘ [i]t 
is immaterial that such needs are also met or can be met by private undertakings. 
It is important that they should be needs which, for reasons in the general interest, 
the State or a regional authority generally chooses to meet itself or over which it 
wishes to retain a decisive influence. (...) It must be borne in mind that it is 
immaterial whether, in addition to its duty to meet needs in the general interest, an 
entity is free to carry out other profit-making activities, provided that it continues 
to attend to the needs which it is specifically required to meet. The proportion of 
[profit-making] activities actually pursued by that entity as part of its activities as 
a whole is also irrelevant for its classification as a body governed by public law’. 
(III) Directive 2004/18/EC, which has now been replaced, without amendments, 
by Directive 2014/24/EU, is applicable to contracts awarded by bodies governed 
by public law falling outside the scope of the special sectors, in which such bodies 
nonetheless operate, and which remain subject to the specific rules laid down in 
that regard in respect of activities directly connected to those sectors. Indeed, the 
Ing. Aigner judgement of the Court of Justice cited above reaches the following 
conclusion: ‘All contracts awarded by an entity which is a body governed by 
PEGASO AND SISTEMI DI SICUREZZA 
 
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public law, within the meaning of Directive 2004/17 or Directive 2004/18, which 
relate to activities carried out by that entity in one or more of the sectors listed in 
Articles 3 to 7 of Directive 2004/17 must be subject to the procedures laid down 
in that directive. However, all other contracts awarded by such an entity in 
connection with the exercise of other activities are covered by the procedures laid 
down in Directive 2004/18. Each of these two directives applies without 
distinction between the activities carried out by that entity to accomplish its task 
of meeting needs in the general interest and activities which it carries out under 
competitive conditions, and even where there is an accounting system intended to 
make a clear internal separation between those activities in order to avoid cross 
financing between those sectors’. 
16 Accordingly, Directive 2004/18/EC (now 2014/24/EU), which covers ordinary 
sectors, is applicable to all bodies governed by public law, even when they are 
operating in special sectors, where the purpose of the activities to be performed 
under the contract is unrelated to those sectors. 
17 According to the referring court, therefore, under no circumstances can 
administrative courts be denied jurisdiction over matters relating to procurement 
by bodies governed by public law, jurisdiction that is applicable in connection 
with public procurement procedures both in the ordinary and special sectors. 
18 The legal classification of Poste Italiane s.p.a. and of that company’s subsidiary, 
Poste Tutela s.p.a., as bodies governed by public law cannot therefore be deemed 
‘irrelevant’, as stated by the Supreme Court of Cassation. 
19 The referring court also points out that the Court of Cassation’s arguments 
referred to in paragraph 14(b) above, are not supported by legislative provisions. 
While it is true that, under Directive 2004/18/EC (now 2014/24/EU), contracting 
entities include contracting authorities, which in turn include bodies governed by 
public law, as defined in Article 3(1)(d) of Legislative Decree No 50/2016, this 
simply means that contracting entities also include bodies governed by public law, 
without being ‘excluded’ as a matter of course from the category of contracting 
authorities, as referred to in Article 3(1)(a) of Legislative Decree No 50/2016, 
which are indisputably subject to the provisions of the Public Procurement Code 
for ordinary sectors. Moreover, the classification of contracting entities as defined 
in Article 3(29) of Legislative Decree No 163 of 2006 (now Article 3(1)(e) of 
Legislative Decree No 50/2016) does not constitute a derogation, but simply 
provides for a broader spectrum of entities involved in special sectors, whereas 
Annex VI to Legislative Decree No 163 of 2006 contains only a non-exhaustive 
list of entities entrusted with tasks in the special sectors. Therefore, no relevance 
attaches to the fact that Poste Italiane is mentioned as a contracting entity in that 
context as regards derogations. 
20 The requirements for bodies governed by public law are as follows: 
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(1) they must be established for the specific purpose of meeting needs in the 
general interest that are not industrial or commercial in nature; 
2)  they must have legal personality (whether they are public or private bodies); 
3)  they must be financed, for the most part, by the State, regional or local 
authorities, or other bodies governed by public law, or be subject to management 
supervision by those bodies, or have an administrative, managerial or supervisory 
body, more than half of whose members are appointed by the State, regional or 
local authorities or by other bodies governed by public law. 
21 With regard to ‘contracting entities’, these may be ‘contracting authorities’, as 
specified above, or public undertakings which carry out one of the activities 
referred to in Articles 115 to 121 of the Public Procurement Code, or which — 
though not falling within those categories — carry out the activities specified in 
the aforementioned legal provisions ‘on the basis of special or exclusive rights 
granted by a competent authority’. Pursuant to Article 120 of the aforementioned 
code, these activities include postal services, as well as other services, under the 
terms laid down by Article 8 of Legislative Decree No 50/2016. 
22 According to the referring court, the classification of Poste Italiane S.p.A. as a 
body governed by public law appears irrefutable. This company, in fact, took over 
from the pre-existing central administration, which was established after Italy’s 
unification, in order to make the service more efficient. Currently, whilst also 
operating under competitive market conditions in the financial, insurance and 
mobile phone sectors, Poste Italiane s.p.a. still holds the concession for the 
universal postal service, which, with state disbursements partially covering the 
costs, entails the mandatory provision of essential services for the delivery to all 
Italian municipalities of letters and parcels at a controlled price, as demonstrated 
by the infringement proceedings which the European Commission has indicated it 
intends to launch in connection with the decision to no longer deliver mail to 
4 000 municipalities on the ground that such service is deemed unprofitable. It 
must necessarily be concluded therefore that this company, which has legal 
personality, has been established to meet general interests that are not industrial or 
commercial in nature, and are directly linked to the freedom of correspondence 
and of all other forms of communication (requirements for bodies governed by 
public law, as indicated in subparagraphs 1 and 2 of paragraph 20 above). 
23 As regards the requirement set out in subparagraph 3 of paragraph 20 above, it 
should be noted that the majority shareholding of Poste Italiane s.p.a. is held by 
the Ministry of Economic Affairs, which appoints the Board of Directors, and that 
Poste Italiane s.p.a. is subject to the oversight and supervision of the Ministry of 
Economic Development and the Corte dei Conti (Court of Auditors, Italy); its 
Board of Auditors is made up of three regular members and three substitutes, all 
of whom are appointed by the aforementioned authorities. AGCOM, moreover, is 
tasked with adopting regulatory measures concerning the quality and features of 
PEGASO AND SISTEMI DI SICUREZZA 
 
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the universal service, which is governed by a programme contract under which the 
postal services operator’s counterparty is the Ministry of Economic Development. 
24 The cornerstone of a body governed by public law is the importance of the general 
interests pursued, which, even if the operation yields profits, cannot be devoid of 
administrative oversight as to whether quality of service targets are attained. It is 
in fact the duty of administrative authorities to actively look after the interests of 
the general public which the State considers are represented by services to be 
rendered to citizens; these services, therefore, must satisfy the criteria of 
impartiality, sound administration and transparency, even when they are entrusted 
to entities which lie outside the administrative machinery proper. 
25 Therefore, in terms of the status of the entity, there is sufficient evidence for it to 
be possible to classify the company Poste Italiane as a body governed by public 
law, within the meaning of Article 3(1)(d) of Legislative Decree No 50/2016, a 
view which is also endorsed by the Council of State’s case-law. 
26 The above considerations are confirmed by the reports of the Ministry of 
Economic Development and AGCOM. Moreover, Commission Decision 
[2008/383] of 30 April 2008 exempted Poste Italiane’s domestic and international 
express and courier services from procurement procedure requirements, while 
Decision 2010/12/EU of 5 January 2010 exempted the financial services managed 
by BancoPosta (collection of savings, lending on behalf of banks and other 
accredited financial intermediaries, investment and supplementary pensions 
services, payment and money transfer services) from the application of Directive 
2004/17/EC on special sectors. 
27 As indicated in particular by AGCOM, however, the fact that the entity operates 
under competitive market conditions is merely one indicator suggesting that the 
requirement of meeting needs in the general interest is not met. In order for it to 
be said that this requirement is not in any way satisfied, purely financial aims also 
need to be pursued, with business risks being fully borne; that is not the case with 
the universal postal service, which has been entrusted to Poste Italiane s.p.a. until 
30 April 2026 under Article 23(2) of Legislative Decree No 261 of 1999. 
Article 3(12) of that decree provides that the costs of the provision of the universal 
service are to be financed via transfers charged to the State budget. Consequently, 
the business risk is greatly reduced. 
28 Taking into account the aforementioned Commission Decision [2008/383], an 
outline has been given of the scope of the sectors in which Poste Italiane may 
operate in accordance with rules derogating from the general rules in force 
regarding public procurement, including for the purpose of Art. 14(2) of the 
Public Procurement Code. In connection with these general rules, the contagion 
theory has been hitherto deemed superseded with regard to public undertakings, 
but not with regard to bodies governed by public law, the latter being obliged — 
when operating in special sectors — to follow the relevant rules only for activities 
that are instrumental to those sectors, but they are not exempted from the rules 
SUMMARY OF REQUEST FOR A PRELIMINARY RULING — CASE C-521/18 
 
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regulating ordinary sectors for all other activities because of important matters of 
interest for the general public that are nevertheless entrusted to them. 
29 It is therefore necessary to ascertain whether the principles set out in the Aigner 
judgment may be superseded in view of the predominance of the interests of an 
industrial and commercial nature over the interests of the general public, which 
justified the original establishment of the body governed by public law, or 
whether the reference to that institution — formally referred to in 
Article 3(1)(d)(1) of Legislative Decree No 50/2016 — should be regarded as 
indicating that those principles cannot be superseded, even for undertakings which 
operate under fully competitive market conditions.