Opinion of the Advocate General — ECLI:EU:C:2025:492
Date: 2025-06-26
Language of the case: Italian

Summary of the subject matter of the dispute and relevant findings of fact 
I.1. The subject matter of the present proceedings is the award of the 10-year 
concession for the cafeteria and catering service at the Pitti Palace and Boboli 
Gardens, which form part of the Uffizi Gallery museum complex in Florence, for 
the amount of EUR 8 892 215 plus VAT. 
I.2. Following the open electronic tendering procedure held by the contracting 
authority, the Ministero della Cultura (Italian Ministry of Culture) in partnership 
with the Uffizi Gallery, Scudieri International Srl was awarded the overall score 
of 74.97 points, consisting of 69.91 points for the technical tender and 5.062 
points for the financial tender. 
The other tenderers received lower scores, namely 65.139 points for Momento Srl, 
66.889 points for Vivenda SpA and 73.78 points for Opera Laboratori Fiorentini 
SpA, which was thus ranked second. 
I.3. Opera Laboratori Fiorentini appealed to the Tuscany Regional Administrative 
Court against the award decision of 25 November 2022 and other decisions in the 
course of the tendering procedure by an action containing five pleas in law, the 
second of which alleged infringement of Article 80 of Legislative Decree 
No 50/2016 and of Legislative Decree No 231/2001, and of Article 5k of 
Regulation (EU) 2022/576 of 8 April 2022 concerning restrictive measures in 
view of Russia’s actions destabilising the situation in Ukraine. 
The Ministry of Culture gave notice of its intention to defend the action […] 
[procedure], seeking dismissal of the action. 
A.L.E.S. – Arte Lavoro e Servizi S.p.A. gave notice of its intention to defend the 
action, pleading its lack of standing and stating that it had no involvement in the 
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tender at issue, since the procedure had been organised and managed by the 
Ministry of Culture. In the alternative, it requested that the action be dismissed. 
[…] [procedure] Scudieri International has produced documents relating to the 
nationality of Mr MT […]. 
[…] [procedure] 
I.4. By judgment No 508 published on 25 May 2023, the Regional Administrative 
Court dismissed the appeal of Opera Laboratori Fiorentini, including the plea 
alleging infringement of Article 5k of Regulation (EU) 2022/576, amending 
Regulation (EU) 833/2014, in so far as it prohibits the award and continued 
execution of public contracts and concessions with ‘a natural or legal person, 
entity or body acting on behalf or at the direction of an entity referred to in point 
(a) or (b) of this paragraph, including, where they account for more than 10% of 
the contract value, subcontractors, suppliers or entities whose capacities are being 
relied on within the meaning of the public procurement Directives’. 
The applicant had submitted that that provision was applicable to Scudieri 
International on account of the fact that two of the three members of its board of 
directors were Russian nationals; one of them, Mr MT, was also chairman of the 
board of directors and chief executive officer of the company, as well as sole 
director of Sielna SpA, a company that held 90% of the share capital of Scudieri 
International. 
According to the applicant, the prohibition was in effect at the time of 
participation in the tender, and as such was a prerequisite for participation which 
should have been verified at the time of admission to the procedure. 
The court did not share the applicant’s interpretation, finding that it would have 
the effect of an extensive application of a ban ‘aimed at preventing the award of 
contracts to companies with registered office in Russia’, whereas the successful 
tenderer Scudieri International was a company incorporated under Italian law with 
registered office in Italy and owned by Sielna, another Italian company with 
shareholders who were not Russian nationals. 
I.5. Opera Laboratori Fiorentini lodged an appeal against the judgment of the 
Regional Administrative Court before the Consiglio di Stato (Council of State, 
Italy), contesting the decision and resubmitting its original pleas in law. 
By the second plea in law, relevant to the reference for a preliminary ruling, the 
applicant criticised the decision on the interpretation of Article 5k of Regulation 
(EU) 2022/576. 
[…] [procedure] 
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I.6. The Council of State [procedure] […] held that the question on the 
interpretation of that provision of the EU regulation is objectively uncertain and 
that it is relevant for the purposes of settling the dispute […] 
[…]. [procedure] 
II. The relevance of the question on interpretation 
II.1. It has been established that, at the time of participation in the tender, Scudieri 
International had a board of directors composed of three members, two of whom 
were Russian nationals; one of them, Mr MT, chairman of the board of directors 
and chief executive officer of Scudieri, was also the sole director of the parent 
company Sielna, which held a 90% stake in Scudieri. 
The two companies are both governed by Italian law with registered office in 
Italy; none of the shareholders are Russian nationals. 
II.2. The applicant Opera Laboratori Fiorentini, ranked second, submits that 
Scudieri International, the successful tenderer, should have been excluded from 
the tender, since Article 5k of Regulation (EU) 2022/576 prohibits the award of 
contracts to economic operators acting ‘on behalf or at the direction’ of a Russian 
national and, in the present case, the successful tenderer is ‘at the direction’ of a 
Russian ‘entity’, namely the chairman of the board of directors and chief 
executive officer. 
II.3. The plea is relevant because […][,] if upheld, the contested award decision 
would have to be set aside and the tender would have to be awarded to the 
applicant, Opera Laboratori Fiorentini. 
III. Relevant provisions of [European Union] law and national law 
III.1. Article 215 TFEU provides: ‘1. Where a decision, adopted in accordance 
with Chapter 2 of Title V of the Treaty on European Union, provides for the 
interruption or reduction, in part or completely, of economic and financial 
relations with one or more third countries, the Council, acting by a qualified 
majority on a joint proposal from the High Representative of the Union for 
Foreign Affairs and Security Policy and the Commission, shall adopt the 
necessary measures. It shall inform the European Parliament thereof. 
2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty 
on European Union so provides, the Council may adopt restrictive measures under 
the procedure referred to in paragraph 1 against natural or legal persons and 
groups or non-State entities. 
3. The acts referred to in this Article shall include necessary provisions on legal 
safeguards.’ 
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Article 288 TFEU provides: ‘A regulation shall have general application. It shall 
be binding in its entirety and directly applicable in all Member States.’ 
Recital 3 of Regulation (EU) 2022/576 recalls that Decision (CFSP) 2022/578 
extended ‘the list of controlled items which might contribute to Russia’s military 
and technological enhancement or the development of its defence and security 
sector’ and recital 4 specifies that it prohibited ‘the award and continued execution 
of public contracts and concessions with Russian nationals and entities or bodies 
established in Russia’. 
Article 5k of Regulation (EU) No 833/2014 concerning restrictive measures in 
view of Russia's actions destabilising the situation in Ukraine, inserted by 
Regulation (EU) 2022/576, provides: 
‘It shall be prohibited to award or continue the execution of any public or 
concession contract falling within the scope of the public procurement Directives, 
as well as Article 10, paragraphs 1, 3, 6(a) to 6(e), 8, 9 and 10, Articles 11, 12, 13 
and 14 of Directive 2014/23/EU, Article 7 and 8, Article 10 (b) to (f) and (h) to (j) 
of Directive 2014/24/EU, Article 18, Article 21 (b) to (e) and (g) to (i), Articles 29 
and 30 of Directive 2014/25/EU and Article 13 (a) to (d), (f) to (h) and (j) of 
Directive 2009/81/EC, to or with: 
(a) a Russian national, or a natural or legal person, entity or body established in 
Russia; 
(b) a legal person, entity or body whose proprietary rights are directly or indirectly 
owned for more than 50% by an entity referred to in point (a) of this paragraph; 
or (c) a natural or legal person, entity or body acting on behalf or at the direction 
of an entity referred to in point (a) or (b) of this paragraph, including, where they 
account for more than 10% of the contract value, subcontractors, suppliers or 
entities whose capacities are being relied on within the meaning of the public 
procurement Directives.’ 
III.2. With regard to the administration of public limited companies (società per 
azioni), Article 2380a of the codice civile (Italian Civil Code) provides that ‘the 
undertaking shall be managed in accordance with the provisions of the second 
paragraph of Article 2086 and is the sole responsibility of the directors, who shall 
carry out the necessary operations to give effect to the corporate purpose. The 
establishment of the structures referred to in the second paragraph of Article 2086 
shall be the sole responsibility of the directors. 
2. The administration of the company may also be entrusted to non-members. 
3. When the administration is entrusted to several persons, they shall form the 
board of directors. 
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4. If the articles of association do not specify the number of directors, but only 
stipulate a maximum and minimum number, the decision shall lie with the general 
meeting. 
5. The board of directors shall choose the chairman from among its members, if 
the chairman is not appointed by the general meeting.’ 
Articles 2475 and 2475a of the Italian Civil Code apply to limited liability 
companies (società a responsabilità limitata) such as Scudieri International. 
Those provisions state, inter alia, that directors have sole responsibility for 
management of the structures referred to in the second paragraph of Article 2086 
and that directors are responsible for the administration and general representation 
of the company. 
In relation to the direction and coordination of capital companies, Article 2497 of 
the Italian Civil Code also provides as follows: 
‘1. Companies or entities that, in exercising the activity of direction and 
coordination of companies, act in their own or others’ business interests contrary 
to the principles of sound corporate and business management of those companies, 
shall be directly liable to their shareholders for the loss of profitability and value 
of the shareholding, and to the creditors of the company for the damage caused to 
the integrity of the company’s assets. There shall be no liability in the absence of 
any damage in the light of the overall result of the direction and coordination 
activity or if the damage is fully rectified, including as a result of actions taken for 
that purpose. 
2. Any person who participated in the harmful event and any person who 
knowingly benefited therefrom, to the extent that they procured an advantage, 
shall be jointly and severally liable. 
3. Shareholders and creditors of the company may only take action against the 
company or entity that exercises the direction and coordination activity if their 
claims have not been satisfied by the company subject to the direction and 
coordination activity. 
4. In the event that a company subject to direction and coordination by another 
company is wound up by a court or placed in compulsory or special 
administration, the action available to its creditors shall be taken by the insolvency 
administrator, liquidator or special commissioner.’ 
For the direction and coordination of companies, the presumption of Article 2497e 
of the Italian Civil Code applies, according to which ‘for the purposes of this 
section, it is presumed, unless there is evidence to the contrary, that the direction 
and coordination of companies is carried out by the company or entity required to 
consolidate their financial statements or that otherwise controls them within the 
meaning of Article 2359 of the Italian Civil Code’. 
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IV. The different interpretations 
IV.1. According to the successful tenderer, the purpose of Regulation 2022/576 is 
to prevent the financing of Russia’s war. It thus concerns the entity awarded the 
public contract, or the actual recipient of the award. 
To that end, it draws a parallel with EU rules on the screening of foreign direct 
investments (FDI), which takes into account the foreign investor. Recital 10 of 
Regulation (EU) 2019/452 provides that ‘Member States that have a screening 
mechanism in place should provide for the necessary measures, in compliance 
with Union law, to prevent circumvention of their screening mechanisms and 
screening decisions. This should cover investments from within the Union by 
means of artificial arrangements that do not reflect economic reality and 
circumvent the screening mechanisms and screening decisions, where the investor 
is ultimately owned or controlled by a natural person or an undertaking of a third 
country. This is without prejudice to the freedom of establishment and the free 
movement of capital enshrined in the TFEU.’ 
Therefore, it is not the directors’ nationality but the shareholders’ nationality that 
counts. 
In support of its interpretation, Scudieri International recalls the guidance 
provided by the Commission in the ‘Commission Consolidated FAQs on the 
implementation of Council Regulation No 833/2014 and Council Regulation 
No 269/2014’. It points out that on 22 June 2022 (last updated on 31 October 
2023), the Commission published the official document (Commission 
Consolidated FAQs), […] which on page 290 of the pdf file contains the 
following guidance on interpretation for a case that it claims is identical to the 
present case. 
Specifically: 
‘36. Is a company established in Germany with a managing director of Russian 
nationality and German residence excluded from the award or the fulfilment of 
public contracts if the threshold value is reached? 
Last update: 23 May 2022  
No, it is not excluded on the basis of the Sanctions Regulation since the contract is 
signed with the company which is established in Germany and not with its 
managing director.’ 
It submits that the interpretation provided by the Commission is in line with the 
recommendations of the Council of the European Union (updated on 27 June 
2022) on the effective implementation of the restrictive measures adopted under 
the CFSP. 
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It emphasises that Regulation (EU) 2022/576 was adopted within the framework 
of Decision (CFSP) 2022/578 of 8 April 2022 amending Decision 2014/512/CFSP 
concerning restrictive measures in view of Russia’s actions destabilising the 
situation in Ukraine. 
Having examined the two decisions and the abovementioned recitals 3 and 4 of 
Regulation (EU) 576/2022, Scudieri International, having confirmed the purpose 
of the sanctions relating to public contracts to prevent the financing of Russia’s 
war and invasion, concludes that Article 5k must be interpreted as preventing 
public contracts from being awarded to Russian-owned companies. It is 
immaterial who manages the company, provided the company is not Russian-
owned. 
That finding is confirmed by the French and German versions of the provision, as 
well as the Italian version, which refers to the ‘direction’ (‘direzione’) of the 
company, since in Italian company law directors do not direct the company but 
manage it. 
The concept of ‘gestione’ (management) contrasts with that of ‘direzione’, as 
demonstrated by the fact that the term ‘direzione’ is only found in Article 2497 of 
the Italian Civil Code. That provision lays down rules in the event that a person 
(‘company or entity’) carries out ‘the activity of direction and coordination of 
companies’, distinguishing it from the management activity per se. 
IV.1.1. A similar interpretation is adopted by the Avvocatura Generale dello Stato 
(Italian State Legal Advisory Service), in defence of the contracting authority, the 
Ministry of Culture and Uffizi Gallery. 
In addition to Article 2497 of the Italian Civil Code, reference is made to 
Article 2497e of the Italian Civil Code, to reiterate that the direction and 
coordination activity is the one presumed to be carried out by the parent company 
vis-à-vis its subsidiary, whereas the directors are responsible for the management 
of the company. 
To illustrate the concept of ‘direction’, reference is made to judgment No 15276 
of 1 June 2021 of the Corte di Cassazione (Supreme Court of Cassation, Italy), the 
grounds of which refer extensively to Article 2497 of the Italian Civil Code. 
According to the contracting authorities, point (c) of Article 5k of the regulation 
also refers to the concept of ‘direction’, coinciding with that referred to in the 
Italian Civil Code and in national case-law. That finding is supported by the 
wording of the regulatory provision, which equates the company acting ‘on 
behalf’ of another natural or legal person to a company acting ‘at the direction’ of 
another entity. It is also confirmed in the systemic reading of the provision, which 
is intended to prevent public contracts from being awarded to companies that by 
virtue of their corporate structure (point (b)) or owing to other constraints (point 
(c)) are under the dominant influence of Russian ‘entities’. 
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According to that interpretation, the reference to a ‘natural person’ in point (c), in 
so far as it refers to point (a), is understood by the State Legal Advisory Service as 
referring to the holding company or natural person involved in the direction of the 
company, as defined above. 
In the light of the foregoing: 
- it is material that neither of the two Russian nationals who make up the board of 
directors of Scudieri International – Messrs MT and HK – are shareholders of the 
holding company that controls the company or hold shares in the company; 
- conversely, it is immaterial that Mr MT is a director of the parent company 
Sielna, since the director of the parent company is not involved in the ‘direction’ 
of the subsidiary, given that the power of direction and coordination of that 
company lies solely with the parent company. 
III.2. Opera Laboratori Fiorentini differs in its interpretation of point (c) of 
Article 5k of the regulation, with reference to the preceding point (a). 
Opera Laboratori Fiorentini recalls Article 215 TFEU in order to affirm that the 
contested provision relies on a broad scope of interpretation, so as not to be 
limited by quirks of individual legal systems – the aim being to suspend, in whole 
or in part, economic and financial relations with Russia. 
The broad scope of the provision is inferred from point (a), where the subjective 
scope refers to ‘a Russian national, or a natural or legal person, entity or body 
established in Russia’, so that the prohibition on awarding or executing contracts 
is not precluded during transposition in the individual Member States by the 
variety of legal entities recognised in national legal systems. 
By the same logic, the applicant contends that the objective scope of the provision 
has been identified. Indeed, to ensure the uniform effectiveness of the sanction in 
all EU Member States pursuant to Article 29 TEU, that scope is defined in such a 
way as to encompass a wide range of criteria covering relationships, situations and 
status, according to which the abovementioned persons are prohibited from 
participating in selection procedures and entering into contracts on the basis of the 
place of establishment (in Russia) (point (a)); the situation as regards proprietary 
rights (point (b)); and the fact of acting ‘on behalf or at the direction of’ an entity 
(point (c)). 
It follows that the spirit and purpose of the provision – and of point (c) in 
particular – should also be interpreted in the light of the systemic placement of 
point (c) relative to points (a) and (b), which would otherwise duplicate the first 
two points. 
The basic position of Opera Laboratori Fiorentini is that the term ‘direction’ can 
only refer to the power of direction, control, supervision, administration or 
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management, and thus any de facto influence exercised by a Russian 
‘entity’/person (natural person, legal person, entity or body). 
In its opinion, this interpretation is in line with the general and abstract scope of 
the regulation, as characterised in the context of the sources of EU law, so as to 
determine subjective legal situations for persons governed by private law both in 
horizontal relationships and in relationships with the institutions of the Member 
States and the EU. The direct applicability of the regulation is also inferred from 
its mandatory nature, without the need for internal adaptation, and by its full 
applicability. 
Hence the finding that the term ‘direction’ in point (c) of Article 5k cannot be 
interpreted restrictively according to the guidance taken from the national 
legislation as ‘direction and coordination’ under Article 2497 of the Italian Civil 
Code, this being an instrument of national law. In any event, the national rule is 
inapplicable since it concerns cases of liability, whereas the EU regulatory 
provision relates to a ban, which goes far beyond the concept of companies and 
relationships of control between companies, as confirmed by the fact that 
Article 5k makes no mention of the word ‘company’, but instead uses the 
abovementioned terms, so as to broaden the subjective scope. 
The alternative interpretation is based on the erroneous assumption that the 
regulation must be interpreted in the light of the national rule governed by civil 
law, contrary to the principle of direct application of the regulation to the Member 
States. 
The applicant adds that, even if the other party’s restrictive approach were to be 
followed by making the concept of ‘direction’ referred to in the regulation 
coincide with that of ‘direction and coordination’ under national law, it is actually 
judgment No 15276/2021 of the Supreme Court of Cassation, cited by the State 
Legal Advisory Service, that establishes the role of ownership within the context 
of the powers of direction and coordination, that role being exercised through the 
right to vote at the general meeting, thus emphasising the aspect of management 
or administration of the company. The applicant submits that this is decisive in the 
present case, given that the sole director of the parent company, which holds a 
90% stake in its subsidiary, is a Russian national.  
V. Wording of the question and stay of the proceedings 
V.1. The opposing positions of the parties explain the underlying reasons for the 
two possible interpretations of Article 5k(c), regarding the concept of ‘direction’ 
in relation to the preceding points (a) and (b). 
In that regard, casting further doubt on the interpretation, it should be noted that, 
while it is assumed that the successful tenderer Scudieri International falls within 
the concept of ‘legal person’ referred to in the first part of point (c), it is not clear 
whether the ‘direction’ referred to in the second part is material only if exercised 
by an ‘entity’ other than a natural person who has Russian nationality or if the 
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expression (‘entity’) is used in point (c) to cover the entire range of persons 
referred to in the preceding points (a) and (b). 
The interpretation is objectively uncertain and, since it concerns an essential 
question on which – given the new rule introduced by Regulation 2022/576 – 
there is no case-law of the Court of Justice allowing the disputed point of law to 
be resolved, clarification must be sought. 
We therefore refer the following question to the Court of Justice for a preliminary 
ruling pursuant to Article 267 TFEU, relevant to the decision to be given in the 
main proceedings: 
‘Must Article 5k(c) of Regulation (EU) 833/2014, introduced by Regulation (EU) 
2022/576, concerning restrictive measures in view of Russia’s actions 
destabilising the situation in Ukraine, in so far as it prohibits the award and 
continued execution of public contracts and concessions to or with ‘a natural or 
legal person, entity or body acting on behalf or at the direction of an entity 
referred to in point (a) or (b) of this paragraph, including, where they account for 
more than 10% of the contract value, subcontractors, suppliers or entities whose 
capacities are being relied on within the meaning of the public procurement 
Directives’, be interpreted as meaning that the prohibition applies to a company 
incorporated under Italian law with registered office in Italy, owned by an Italian 
company and with shareholders who are natural persons and who are not Russian 
nationals, but of which two of the three members of the board of directors are 
Russian nationals and one of whom, the chairman and chief executive officer, is 
also the sole director of the parent company which holds a 90% stake in that 
company?’ 
[…] [stay of proceedings, reservation of costs, instructions to the registry and 
request for anonymisation] 
[…] Rome […] 25 January 2024 […]