L'onere di immediata impugnazione della lex specialis di gara violativa dei Criteri Ambientali Minimi

This article examines significant judgments of the Council of State concerning breaches of the rules on Minimum Environmental Criteria (CAM) in project and tender documentation, as well as the implications of such defects for judicial protection. The Court clarifies that not every infringement of Article 57(2) of the Italian Public Contracts Code automatically gives rise to an obligation to bring an immediate challenge against the lex specialis. Such an obligation arises only where the defect creates in an informational deficiency capable of affecting the economic operator’s ability to submit an informed tender, thereby effectively precluding meaningful participation in the procedure. Building on this premise, the article demonstrates how the solutions endorsed by the Court enable a coherent reconstruction of the relationship between breaches of CAM requirements and the procedural framework governing their challenge, thereby offering an interpretative lens capable of reconciling divergent strands of case law. The resulting approach aligns with the axiological framework of the new Code, in which the principle of “result”, read in conjunction with the principles of good faith and the protection of legitimate expectations, contributes to shaping a model that enhances the responsibility of tenderers, already at the outset of the procedure, to activate, in a timely manner, remedies directed at achieving the intended outcome of the procurement process.