The different EU and national vision: the ban on cascading subcontracting falls down

Both the 2004 and 2014 directives, as interpreted by the CJEU, have never provided for limits to subcontracting.

On the contrary, domestic legislation has always had a more negative view of the institute, conditioned by a legacy that views subcontracting in unfavourable terms, such as the need for strict control of the management of the contract by the contracting authority; the possibility that subcontracting could turn into a way of circumventing the rules on public evidence; and fears of possible infiltration by organised crime. In the new procurement code, there is finally a change of course: Legislative Decree 36/2023 repealed the general ban on cascade subcontracting, i.e. the veto on the subcontracting of services already subcontracted. It therefore stands as a pro-competitive institution, in accordance with the principles in force in the field of European Union-style tendering procedures, responding to the principle of maximum participation in tenders by companies. On the other hand, subcontracting fulfils (or, perhaps, has always fulfilled) a function that in some respects is similar to that of outsourcing and the R.T.I., allowing, like the latter, the participation in the execution of the contract of entities that would not in themselves have the requisites or the means for the execution of the contract (and even beforehand for participation in the tender), in a competitive perspective and with the ultimate objective of expanding the number of companies potentially participating in public tenders. For further elaboration:Art. 105, paragraph 19, Legislative Decree 50/2016;Art.119, Legislative Decree 36/2023.