On 12 July 2023, the Council of State (the highest administrative court in Italy) issued its decision No. 6826/2023 concerning the onerous nature of the pooling contract regarding the pre-requisites for participating in the tender. The judgment states that the nullity of the contract cannot be inferred from the lack of a predetermined compensation. Instead, what is essential to verify is the existence of the actual element of interest underlying the pooling contract. In other words, to ascertain whether the negotiation transaction entails the possession of the pre-requisites that the tenderer lacks, to guarantee the reliability of the successful tenderer in respect of the contracting authority as to the proper performance of the contract. Thus, the nullity of the pooling contract due to the absence of the onerous nature requirement may only be declared when there are no practical grounds to justify the existence of the contract, or any interest worthy of protection underlying it can be discerned. In other words, the fundamental requirement that guarantees the validity of a pooling contract is not a specific compensation to be agreed by the pooler and the tenderer, but rather any sort of economic interest that ensures respective performance by the parties. This interpretation by the recurring case law was fully confirmed and transposed into Article 104.1 of the new Code of Public Contracts (Legislative Decree No. 36/2023) which states that: "the contract of availment is normally onerous in nature, unless it also responds to an interest of the auxiliary undertaking, and may be concluded regardless of the legal nature of the links between the parties".
Originally published July 2023.
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