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In brief

With judgment No. 8126 of 17 December 2020, the Council of State ruled on the legitimacy of an agreement between a public research institution and a private company, entered into without a public call for tenders, whereby the former received COVID-19 serological and molecular tests prototypes to be used in the context of its research activities and undertook to provide the company with the relevant results so that the latter could use them to obtain the CE mark.

In this regard, the administrative judge clarified that the subject of the above-mentioned agreement is the collaboration between a public research institution and a private operator for the assessment and development of a product, which, as such, falls within the institutional purposes of scientific research of the same public institution.

In particular, the judge held that it is normal that, in the context of such an agreement, a public research institution may use its specific skills to validate the private operator’s product, and thus support the transfer of research results to the industry sector, without breaching the principles of competition nor providing any specific benefit to a private operator. In particular, the judge remarked that the assessment and possible development of a private research project does not prevent the public institution from selecting other scientific projects developed by other private operators, since research is by definition “open”. In light of this, the judge confirmed the absence of pro-competitive reasons requiring a public call for tenders.


Roberto Cursano is a counsel in Baker Mckenzie since 2007 in Rome, Italy office. His practice focus more in pharmaceutical and healthcare law matters and compliance, and assists in tender procedures, the negotiation of public contracts and litigation before administrative courts.


Riccardo Ovidi is an associate in Baker McKenzie's Rome office.