INDUSTRIES, PUBLIC PROCUREMENT | EU Law Precludes the Use of Promoter Pre-emption Rights in Project Financing Procedures

On 26 February 2026, the Regional Control Section of the Court of Auditors for Emilia-Romagna (Corte dei conti) adopted Resolution No. 15/2026/PAR, addressing the issue of pre-emption rights in project financing operations promoted by private economic operators, as governed by Article 193 of Legislative Decree No. 36 of 31 March 2023 (Public Procurement Code). The opinion recalls that, in its judgment of 5 February 2026 (Case C-810/24), the Court of Justice of the European Union held that the recognition of a pre-emption right in favour of the promoter—allowing it to match the successful tenderer’s offer and thereby secure the award of the contract—is incompatible with EU law. According to the Court, such a mechanism infringes the principle of equal treatment among economic operators and constitutes an unjustified restriction on the freedom of establishment. In light of these principles, the Court of Auditors concludes that public administrations may no longer have recourse to pre-emption rights in the context of project financing procedures.

Newsletter n. 116 – March 2026