La Corte di Giustizia ascrive gli illeciti antitrust nella categoria dei gravi illeciti professionali nonostante le ‘ritrosie’ manifestate da una parte della giurisprudenza amministrativa

According to an important case-law of the Consiglio di Stato, the national laws, transposing Directive EU 2004/18, did not allow a broad interpretation of the provision regarding the concept of ‘grave professional misconduct’ – proven by any means which the contracting authorities can demonstrate – in order to encompass the commission of an infringement of the competition rules, in particular where that infringement is penalised by a fine. Even after the transposition of Directives EU 2014/23-24-25 into national law (see article 80, par. 5, decree legislative no. 50/2016), a significant part of the case-law and academic scholars have kept denying that the finding of infringement of the competition rules, even when that infringement is penalised by a fine, ought to be considered a reason of exclusion from procurement procedures, on the grounds of a formalistic approach. However, after some recent judgements of the European Court of Justice no doubt can be raised about the fact that even in the Italian legal system the finding of an infringement of competition rules, where that infringement is penalised by a fine imposed by the Authority Antitrust, ought to be considered a reason of exclusion from procurement procedures. In 2019 the Italian legislator added paragraph 10-bis to article 80 of the Legislative Decree no. 50/2016; that legislative change, however, seems to raise the question of whether the domestic law complies with European law.