TRIESTE – The Court of Justice of the European Union has ruled that a right of first refusal in motorway concession tenders is incompatible with EU law.
The decision has a direct impact on the procedure for the renewal of the Brennero A22 motorway concession, calling into question the structure of the tender prepared by the Italian Ministry of Infrastructure and Transport (MIT).
According to the Luxembourg judges, allowing the outgoing promoter to match the best offer submitted by a competitor distorts competitive comparison between operators and breaches the principles of equal treatment and transparency. In practice, such a mechanism discourages participation by new players and reduces the effective contestability of the concession.
The ruling stems from litigation over an Italian public concession, but it has general scope and also applies to the A22 case. In the call for tenders prepared by the MIT, a right of first refusal had in fact been provided in favour of the current concessionaire, Autobrennero S.p.A., a publicly controlled company whose concession expired years ago and is currently operating under an extension regime.
The European judgment now puts the entire procedure at risk. The Ministry will have to choose whether to amend the call by removing the right of first refusal, or to cancel and reissue the tender, with an inevitable lengthening of timelines. This is a delicate step, also given the strategic value of the Brenner corridor for flows between Italy and Central Europe.
The repercussions are not only legal. Around the A22 concession revolve investments, dividends and financial flows involving local authorities and chambers of commerce along the route, with potential effects on local budgets. Not by chance, the Court’s decision was immediately watched closely by the shareholder entities and welcomed by consumer associations, which had long challenged the legitimacy of the right of first refusal.
