Landmark Ruling Shifts Responsibility for Environmental Criteria in Public Contracts
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New guidance from Italy’s Council of State places the onus on economic operators to immediately challenge tender notices lacking clear Minimum Environmental Criteria (CAM), signaling a major shift in public procurement law.
A recent decision by the Council of State, Section V, on February 4, 2026, case number 919, is reshaping the landscape of public tendering, particularly concerning the integration of environmental sustainability standards. The ruling reinforces a growing body of jurisprudence established in 2025 regarding the omission or improper inclusion of Minimum Environmental Criteria (CAM) in tender documentation. This development places a significant new burden on companies bidding on public contracts.
The case originated from a concession for road restoration and cleaning following accidents in the Province of Siena. A second-place bidder contested the process, arguing that the tender law failed to fully implement the CAMs applicable to the cleaning and sweeping sector, as outlined in D.M. 23/06/2022. Previously, the Regional Administrative Court (TAR) suggested a challenge could be filed after the outcome of the tender. However, the Council of State overturned this perspective, asserting that a complete lack of CAMs constitutes a “severe deficiency” in essential supply data.
This deficiency, the Council stated, triggers an immediate obligation for economic operators to appeal the tender notice – or risk having their challenge deemed inadmissible. “The total omission of CAMs in the lex specialis integrates a severe deficiency on essential supply data,” a senior official explained.
Three Key Scenarios Outlined in Ruling 6651/2025
The Council of State’s decision draws heavily from ruling 6651/2025, which established three distinct scenarios regarding CAM inclusion:
- Total Failure to Indicate CAMs: A complete absence of CAMs in project and tender documentation invariably creates a “serious deficiency” in essential data, necessitating an immediate challenge to the tender notice.
- Mere Reference to CAM Decrees: Simply referencing the decree adopting the CAMs may be insufficient, depending on the specific service, work, or supply and the contract’s objectives. This can also result in a deficiency in essential data.
- Faulty CAM Indication: If the indicated CAMs are non-compliant with the relevant adoption decree, a case-by-case investigation is required. A challenge is mandatory only if the economic operator can demonstrate the clauses effectively prevent meaningful participation in the tender – for example, by imposing incomprehensible or disproportionate burdens.
According to the ruling, a complete absence of CAMs renders offer formulation impossible, thus justifying an immediate challenge. Conversely, if CAMs are included incorrectly or incompletely, a challenge is still permissible, but not necessarily required, unless the formulation of an offer is demonstrably impossible.
CAMs: No Longer Ancillary, But Integral
The ruling fundamentally reclassifies CAMs, defining them not as secondary considerations, but as core environmental requirements impacting the entire project lifecycle – from design to execution. This operational shift compels contracting authorities to translate CAMs into concrete execution rules, requirements, and criteria. They must avoid vague references and, at a minimum, clarify relevant operational standards and testing procedures. Furthermore, authorities must clearly distinguish between mandatory minimum requirements and optional “rewards” to avoid incentivizing compliance with already-required standards.
Economic operators now bear the responsibility for proactively verifying the presence and correct implementation of minimum environmental criteria and are obligated to immediately challenge any deficiencies.
For further guidance on navigating these evolving regulations, resources like the guide to Minimum Environmental Criteria in public works available at https://biblus.acca.it/?post_type=elb_entry&p=335304 can prove invaluable.
This landmark decision signals a heightened focus on environmental sustainability in Italian public procurement, demanding greater diligence from both contracting authorities and economic operators alike.
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