Unified contribution and grounds for exclusion: preliminary ruling referred by the Council of State to the Court of Justice

By Order no. 758 of 29 January 2026, the Council of State, Section III, referred to the Court of Justice of the European Union (CJEU) several preliminary questions concerning the automatic exclusion of an economic operator for a serious breach of its obligations to pay taxes, duties or social security contributions.

The questions arose in proceedings brought by the second-ranked bidder in a service contract, seeking the annulment of the award granted to an economic operator who, at the time of submitting its tender, had failed to pay a tax debt arising from non-compliance with a payment request for the unified contribution, due for the lodging of an appeal before the Council of State, together with the related penalties.

The successful tenderer argued before the court that: i) the certifications issued by the Revenue Agency confirmed that the economic operator was compliant with its tax obligations; ii) any irregularities in payments did not fall within any of the exclusion grounds provided for by the Public Contracts Code then in force (Legislative Decree 50/2016); iii) the exclusion measure would in any event be disproportionate, given that the contract was worth €10 million, whereas the alleged tax debt amounted to only €18,000. ​In the alternative, with reference to the exclusion rules provided for in Article 80(4) of Legislative Decree 50/2016, the successful tenderer raised:

• two aspects of constitutional illegitimacy, arguing that the provision – by establishing a threshold of seriousness for definitively established tax violations – infringes the principles of reasonableness and proportionality under Articles 3, 41 and 97 of the Constitution; ​
• six aspects of illegality due to incompatibility with European legislation for: 1) contravention of the principles of reasonableness and proportionality of the threshold of seriousness ex lege; 2) it is contrary to the principles of reasonableness, proportionality, transparency, legitimate expectations and legal certainty of the (case law) extension of the cause for automatic exclusion for tax irregularities even in the event of non-payment or late payment of a 'unified contribution' or related 'penalties'; 3) Contrary to the principles of reasonableness and proportionality of the grounds for exclusion in view of the 'contingent' nature of the penalty and the fact that the request for payment cannot be considered, in this regard, as an 'administrative decision with definitive and binding effect'; 4) Contrary to the principles of reasonableness and proportionality of the grounds for exclusion, as the person liable for the unified contribution must be identified as the 'losing party' in the proceedings to which it refers; 5) conflict with Article 57(2), last paragraph, of Directive 2014/24/EU, as the grounds for exclusion cannot be applied to an economic operator who has complied with the obligation to pay the penalty (self-cleaning); 6) conflict with the principles of reasonableness and proportionality of the grounds for exclusion due to the absence of absolute discretion.
  
  

The Council of State initially referred the matter to the Constitutional Court, which declared them unfounded; it then referred the latter to the Court of Justice of the European Union.

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The preliminary ruling referred to the Court of Justice of the European Union

Following the Constitutional Court’s judgment, the case was resumed before the Council of State, where the successful tenderer resubmitted the preliminary questions concerning EU compatibility, and the Council of State decided to suspend the proceedings and refer the matter to the Court of Justice of the European Union.

In the referral order, the Council of State divided the issues into two blocks: i) a first block concerning the extension of the mechanism for excluding economic operators who fail to comply with the obligation to pay the unified contribution and the related penalties from public tenders (issues referred to in points 2), 3) and 4); ii) a second block concerning the reasonableness and proportionality of the threshold of seriousness ex lege and the preclusion of self-cleaning once the deadline for participation in the tender procedure has expired (issues referred to in nos. 1) and 5).

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The unified contribution and related penalties

With regard to the applicability of the exclusion ground for failure to pay the unified contribution, four issues were raised:

1. the nature of the unified contribution and related penalties;
2. whether or not the Revenue Agency's certifications are sufficient to prove compliance under Article 80(4) of Legislative Decree 50/2016;
3. the nature of the request for payment of the unified contribution;
4. whether the fact that the successful tenderer won the case in which the unified contribution has not been paid exempts the latter from liability.
   
   

As will be seen below, the Council of State adopted a critical position on all the issues included in the first block.
Article 80(4) of Legislative Decree 50/2016 provides that "an economic operator shall be excluded from participating in a procurement procedure if it has committed serious violations, definitively established, with regard to its obligations relating to the payment of taxes and social security contributions, according to Italian law or the law of the State in which it is established".

In the case at stake, the successful tenderer failed to pay the unified contribution and related penalties before submitting its application to participate, while attaching a certificate from the Revenue Agency stating that it had no outstanding tax liabilities.

Therefore, in response to the action seeking annulment of the award on the basis of Article 80, paragraph 4, of Legislative Decree 50/2016, it requested the Council of State to assess whether EU law precludes an interpretation under which failure to pay the unified contribution — even if not recorded by the Revenue Agency — constitutes a violation triggering automatic exclusion.

On this point, the Council of State noted that the provision of a form of compulsory contribution "to meet the needs of the functioning of the judicial system falls entirely within the discretionary choices of the fiscal policy of the Member States" (CJEU, 3 March 2020, C-75/2018) and that the unified contribution is fiscal in nature, as already stated by the Plenary Session No. 7/2024.

Consequently, the Court held that interpreting the non-payment of the unified contribution as falling within Article 80(4) is not contrary to EU law.

The same conclusion applies to ancillary obligations – those including penalties for failure to pay or late payment of the tax – which also have a fiscal nature and fall within the procedural autonomy of the each State.

The Council of State rejected the argument concerning proof of compliance, as the certification issued by the Revenue Agency only covers taxes administered by the Agency itself (Plenary Session No. 7/2024).

The unified contribution is managed by the judicial office of the magistrate where the document to which the payment or supplement relates is filed, so that any failure to pay it cannot be detected by the Revenue Agency.
In view of this, the payment request sent by the Judicial Office must be considered, to all purposes, as a tax assessment notice and as an act imposing the corresponding penalty.

Since the successful tenderer did not challenge that notice, the assessment of the economic operator's non-compliance became final and therefore constituted a serious violation within the meaning of Article 80(4) of Legislative Decree 50/2016.

Finally, the Council of State clarified that, for the purpose of ascertaining the violation of the tax law, the fact that the successful bidder won the case in which it failed to pay the unified contribution and the related penalties is irrelevant.
In fact, according to the appeal judge, once the judgment has become final, the burden of paying the unified contribution to the losing party merely serves to reallocate the economic burden and therefore does not change the passive subjectivity of the tax relationship.

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The reasonableness and proportionality of the threshold of seriousness ex lege

As anticipated, the first question in the second block was examined unfavourably by the Constitutional Court but, according to the Council of State, the mechanism that determines the severity threshold for tax irregularities with automatic exclusionary effect referred to in Article 80, paragraph 4, first and second sentences, of Legislative Decree 50/2016, conflicts with the principle of proportionality, which requires referral to the Court of Justice of the European Union.

In particular, the appeal judge noted a conflict between national and EU legislation, as the former provides for the automatic exclusion of operators who have failed to pay taxes or duties exceeding €5,000.00, regardless of the contract value.

The principle of proportionality requires the legislator and the public administration to adopt measures that are appropriate and necessary, i.e. aimed at achieving the intended objective, while causing the least sacrifice to conflicting interests.

In the case at hand, the rule pursues two objectives: on the one hand, the pursuit of the integrity and reliability of the economic operator with whom the Administration contracts, and, on the other hand, the pursuit of tax compliance.
In order to pursue the first objective, the European legislator has directed the transposition of the legislation into national law, providing that, in accordance with the principle of proportionality, "in cases where exclusion would be clearly disproportionate, in particular where only minor amounts of taxes or social security contributions are unpaid", the economic operator shall not be automatically excluded (Article 57(3) of Directive 24/2014/EU).

On this point, the Council of State stated that, in order to comply with this provision, "small amounts of taxes" should not be assessed only in absolute terms, but also in relative terms (as provided for by the national legislator for optional exclusion, where it provided that the violation must be measured against the contract value).

Furthermore, the Council stated that the compensation mechanism referred to in Article 48 bis of Presidential Decree No. 602 of 1973 is unsuitable for determining the seriousness of the violation, since, following the full contractual performance of the public contract, it would satisfy the tax claim in full, including surcharges and additional charges, at the time of termination.

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The preclusion of self-cleaning

The second question in the second block also raised interpretative concerns regarding the interaction between EU law and national legislation before the Council of State.
Specifically, according to the Court, the national legislator had introduced a provision that was unreasonably stricter than EU law.

In fact, Article 57(2), last paragraph, of Directive 24/2014/EU stipulates that the grounds for automatic exclusion "shall no longer apply when the economic operator has fulfilled its obligations by paying or making a binding commitment to pay the taxes or social security contributions due, including any interest or fines", without any time limit.

On the other hand, the 2016 Public Contracts Code requires that the payment, commitment or settlement of tax or social security debts must take place "before the deadline for the submission of applications" (Article 80 (4), last paragraph, of Legislative Decree 50/2016) (1).

Accordingly, the Council of State asked the Court of Justice to clarify whether the European Directive allows economic operators to extend self-cleaning, i.e. tax regularisation, up to the time of award and to justify the circumstances leading to non-compliance in the proceedings with the contracting authority.

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Conclusions
Although the issues raised relate to Article 80(4) of Legislative Decree 50/2016, which is no longer applicable except for contracts awarded while the provision was in force, the Court of Justice’s decision is likely to have effects that go beyond the scope of the “old” Code.

Indeed, the Code published in 2023 contains the same provision, so that any criticism of the fixed thresholds for determining the seriousness of the infringement or the self-cleaning limit at the time of submission of the application to participate could also impact the current system.

Avv. Alessandra Eusebio
Avv. Cristina Bassani

(1) The same provision has been reproduced in the new Public Contracts Code, and doubts have also been raised about the compatibility of this provision with European law.