Our law firm has assisted the Italian company Fastweb S.p.A. in the preliminary ruling proceeding before the Court of Justice of the EU undertaken upon referral of the Italian Administrative Appellate Court (“Consiglio di Stato”). With its ruling of September 11, 2014, the Court of Justice  stated that where a public contract is awarded without prior publication of a contract notice in the Official Journal of the European Union,  the contract must not be automatically considered effective by the national court although the administrative authority has published the voluntary ex-ante transparency notice. The national court shall assess whether i) the voluntary ex-ante transparency notice clearly and unequivocally states the reasons that moved the administrative authority to consider it legitimate to award the contract without prior publication of a contract notice; and whether, ii) when the administrative authority took the decision to award the contract by means of a negotiated procedure without prior publication of a contract notice, it acted diligently and whether it could legitimately hold that the conditions laid down in Directive 2004/18 were duly met.

curia.europa.eu