1) Council of State on the right of pre-emption and Project Financing: a procedural clarification of great practical importance

By judgment No. 3805/2026, published on 14 May 2026, the Council of State (the “CdS”), in compliance with the principle of the claim (principio della domanda), formally aligned itself with the Court of Justice of the EU (judgment of 5 February 2026, C-810/24) on the incompatibility of the right of pre-emption provided for under the Italian framework on Project Financing with the EU principles of competition and equal treatment, adding a clarification of a procedural nature but of great practical importance.

In particular, the CdS, whose subject matter of scrutiny “is […] whether, and on what terms, the ruling of the Court of Justice produces effects on the lawfulness of the challenged award decision […] as it is based on the exercise of the right of pre-emption”, held that the conflict between the right of pre-emption and EU law constitutes a ground for voidability (annullabilità) and not of nullity (nullità) of the clauses of tender notices providing for it.

This clarification is of fundamental importance in that any clause of a tender notice that still provides for the right of pre-emption does not disappear automatically, but must be independently challenged by the interested competitor.

Accordingly, where no challenge is brought, the clause providing for the right of pre-emption remains effective, the court being unable to proceed on its own motion to disapply it.

To access the decision, click here.

2) Administrative Court of Lombardia: the Teatro alla Scala foundation is an entity governed by public law and is therefore required to apply the Public Procurement Code

By judgment No. 2271/2026, published on 11 May 2026, the Administrative Court of Lombardia held that the Teatro alla Scala foundation, Milan (the “Foundation”) must be classified as an entity governed by public law, with the consequence that it is subject — when awarding contracts for works, services and supplies — to the application of the public procurement rules set out in the Public Procurement Code.

The decision under examination, on the one hand, retraces the case-law on entities governed by public law developed within the Court of Justice of the EU while, on the other hand, examines the Foundation in its entirety, taking into account all its peculiarities, ultimately concluding that these are not sufficient to demonstrate that it falls outside the classification as an entity governed by public law.

The Foundation, according to the judges, satisfies all three conditions, of EU origin, required for the classification of an entity as a body governed by public law: (a) the legal personality requirement, it being an entity endowed with legal personality under private law; (b) the requirement of dominant influence by a public entity, it being an entity subject to strict public control; (c) the teleological requirement, in that it is established to promote musical culture and thus to satisfy needs of general interest of a non-industrial and non-commercial nature.

To access the decision, click here.

3) European Commission: consultation on draft revised State aid rules for air transport

On 11 May 2026, the European Commission has launched a public consultation on the draft revised Guidelines on State aid to the air transport sector.

The draft updates the framework in force since 2014, in the light of the significant transformations undergone by the sector: from the COVID-19 pandemic to the energy crisis, through to the ambitious decarbonization objectives of the European Green Deal.

The main changes concern:

  • operating aid to regional airports:
    • it will be possible exclusively for airports with fewer than one million passengers per year;
    • for those with up to 500,000 yearly passengers, an automatic exemption is envisaged under the new General Block Exemption Regulation (expected by end 2026);
    • airports between 500,000 and one million yearly passengers may instead benefit from operating aid to airports with up to one million passengers per year during a transitional period of five years;
  • investment aid, which will be possible only for airports with up to three million passengers per year, with stricter environmental requirements for new infrastructure;
  • start-up aid to launch new routes will no longer be allowed.

Furthermore, the Commission considers that the air transport sector may benefit from specific State aid measures for decarbonisation already provided for under existing rules, such as the Guidelines on State Aid for Climate, Environmental Protection and Energy, the forthcoming new General Block Exemption Regulation and the Clean Industrial Deal State Aid Framework.

The consultation will remain open until 11 June 2026.