- In its judgment C-810/24 of 5 February 2026, the Court of Justice of the European Union declared that the right of first refusal granted to the promoter in Italian project financing arrangements breaches EU law, as it undermines the principles of equal treatment, transparency and effective competition.
The case has direct implications for the tender for the A22 Brenner–Modena motorway concession, which was suspended by the Ministry of Transport in June 2025 pending the Court’s ruling and then reopened in November 2025 with the right of first refusal clause still included in favour of Autobrennero.
The judgment now requires a revision of the A22 tender and, more broadly, of all Italian project finance schemes structured with a similar clause, ushering in a period of uncertainty for the country’s public-private partnership framework.
On 5 February 2026, the Court of Justice of the European Union delivered its judgment in case C-810/24, stating that the right of first refusal granted to promoters in Italian project finance schemes violates EU law. The ruling stems from litigation over a concession for public toilets in Milan — Urban Vision v Comune di Milano — but, as it concerns the interpretation of EU legislation, it establishes a general legal principle applicable to all concessions structured with a similar clause.
The Court found that the right of first refusal mechanism infringes Directive 2014/23/EU on concessions and the principles of equal treatment, non-discrimination, transparency and effective competition. It also affects the freedom of establishment guaranteed by Article 49 of the Treaty on the Functioning of the European Union. The judges’ reasoning is twofold: first, the mechanism allows the promoter to amend its offer after seeing a competitor’s bid, thereby undermining the fundamental principle that bids must remain unchanged in competitive procedures; second, it discourages new entrants, who are required to compete against an operator enjoying a structural advantage.
The most immediate impact in the transport sector concerns the A22 Brenner–Modena motorway concession. The route has been managed for decades by Autobrennero, a publicly controlled company owned by regions, provinces and other local and chamber bodies. The concession was due to expire on 30 April 2014 but, in the absence of a new award, it has been extended several times through legislative measures and decrees. The resulting stalemate has lasted for more than ten years and has fuelled disputes with the European institutions.
In an attempt to close the case, the Ministry of Transport developed a project finance proposal promoted by Autobrennero itself, involving a multi-billion-euro investment plan and granting the promoter a right of first refusal. This clause became central to discussions with the European Commission and led the Ministry to suspend the tender in June 2025 by decree, freezing the procedure until 30 November 2025 or until the Court’s ruling. Faced with uncertainty over the timing of the judgment, the Ministry reopened the tender at the end of November 2025, while keeping the clause under review and acknowledging that an adverse ruling from Luxembourg could require the call for bids to be redrafted.
With the judgment of 5 February 2026, the picture is now clear. The right of first refusal mechanism as designed under Italian legislation has been declared incompatible with EU law, with direct consequences for the A22 case, where the same clause benefits Autobrennero. The Ministry will therefore have to amend the tender, at the very least to remove the right of first refusal and ensure full competition, and it cannot be ruled out that a broader redrafting may be required to align the procedure with European case law. In doing so, the Ministry must balance three objectives: reaching a definitive outcome for a concession that expired more than ten years ago, guaranteeing adequate levels of investment and maintenance along the strategic Brenner corridor, and ensuring a tender that complies with EU law and is sufficiently accessible to new operators.
However, the implications of judgment C-810/24 extend beyond the A22 case and affect the entire system of public-private partnerships and Italian project finance schemes built around the right of first refusal, a tool originally conceived as an incentive for promoters to assume project development risk. A paradigm shift is under way: contracting authorities will need to review tenders and internal rules, focusing on selection mechanisms that do not grant promoters ex post advantages capable of deterring competition. Some consumer associations have welcomed the decision, viewing the end of the right of first refusal as a means to increase competition and contain costs for users over the medium to long term. The public shareholders of Autobrennero, by contrast, are concerned about uncertainty over timing and the company’s future ownership structure.
Antonio Illariuzzi
