1) Italian Constitutional Court: the exclusion of in-house companies from the derogation from the in peius revision of incentive tariffs for electricity produced from solar sources is lawful

By judgment No. 103/2026 of 17 June 2026, the Italian Constitutional Court ruled on the constitutional legitimacy of Article 22-bis of Decree-Law No. 133/2014, which provides for the non-applicability, exclusively in favour of photovoltaic installations built by local authorities or schools, of the rules on the in peius revision of incentive tariffs recognised for electricity produced from solar sources under Article 26 of Decree-Law No. 91/2014.

The Council of State had raised the question of constitutional legitimacy, considering that the exclusion violated the principles of equality and sound performance of the public administration set out under Articles 3 and 97 of the Constitution, in so far as it does not include, among the beneficiaries of the derogation from the revision, also plants whose responsible entities are in-house companies established by local authorities, in the light of the institutional and functional proximity between such companies and local authorities and the substantial correspondence of the interests pursued by both.

The Constitutional Court declared the questions unfounded. While acknowledging the existence of areas in which the legislature chose to subject in-house companies to the public law regime, it reaffirmed that the latter retain a distinct legal personality of a private law nature and cannot be automatically equated to public entities in every sector of the legal order. The derogation provided by the legislature constitutes an exception to the general framework and may be limited to local authorities and schools alone without violating the principle of equality.

The Constitutional Court also noted that in-house companies may operate, within certain limits, also on the market and are subject to competition and State aid rules, elements that justify their differentiated treatment. Accordingly, the legislative choice not to extend the favorable regime to them is neither unreasonable nor detrimental to the principle of sound performance of the administration.

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2) Administrative Court of Lazio: on the unlawfulness of immediately excluding clauses in a tender notice

By judgment No. 10469/2026, published on 8 June 2026, the Administrative Court of Lazio (“TAR Lazio”) addressed the question of the immediate challengeability of clauses contained in public tender notices and clarified when they may be considered immediately excluding, in particular with reference to provisions of the lex specialis of the tender held to be unlawful as restrictive of participation in the procedure.

The TAR Lazio reaffirmed the principle that a tender notice may be challenged immediately only where it contains clauses that objectively and manifestly prevent a normal tenderer from submitting an offer or render participation in the tender impossible. A relevant element in excluding the existence of that precondition is the fact that other economic operators are taking part in the same procedure. According to the TAR judges, that circumstance demonstrates the absence of an effective bar to participation on the part of the appellant economic operator.

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