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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.

Author

Roberto Cursano has been a lawyer in Baker McKenzie since September 2007. He focuses on healthcare law and compliance, and assists in tender procedures, the negotiation of public contracts and litigation before administrative courts. Mr. Cursano is a former administrative officer in the Italian Ministry of Health and helps clients work closely with the Italian Public Administration. He is admitted to the bar before the Italian Supreme Court and the Council of State. As well as training and tutoring in the master’s degree program on clinical trials of pharmaceutical products at the University of Rome Sapienza, Mr. Cursano regularly publishes articles and scientific contributions. He also frequently hosts and participates in seminars and presentations on pharmaceutical and administrative law matters.

Author

Riccardo Ovidi is an Associate in Baker McKenzie Rome office.