Sommario: 

1. La fattispecie. 

2. Il raggruppamento temporaneo di imprese e il suo sovradimensionamento. 

3. L’illegittimo divieto in via generale del Rti sovrabbondante e l’indagine sulla situazione di fatto e sulla causa in concreto

4. Le clausole escludenti la partecipazione di Rti sovrabbondanti secondo l’Anac e l’Agcm. 

5. Conclusioni.

Abstract:

In line with settled case law, the decision n. 3246/2017 of the Council of State recognizes that in our legal system there is no rule or principle that imposes absolute exclusion of an overabundant temporary joint venture from a tender. That said, the Court affirms the need for the “overabundance” of the temporary joint venture to be assessed on a case-by-case basis in order to verify whether its constitution was dictated by anti-competitive purposes. Only if, from an analysis of the factual situation conducted in concreto, it is established that there are sufficient indicative elements of anti-competitive purposes of the overabundant temporary joint venture, this must be excluded from the tender. The aforementioned decision was therefore the occasion to analyze, in the present comment, the temporary joint venture in its “overabundant” form, investigating the legitimacy or otherwise of its exclusion from participation in tenders. Along this study particular importance assumes the analysis in concrete of the factual situation, as it is identified as key to decide on the said legitimacy.