Subject of the Dispute and Regulatory Context
The dispute concerns the legitimacy of the decree issued by the Ministry of Infrastructure and Transport (MIT) on 4 April 2022, which recorded the percentage price variations for 56 construction materials relating to the second half of 2021, for the purposes of recognizing the compensation owed to contractors.
The compensation mechanism was introduced on an extraordinary basis by Article 1-septies of Decree-Law No. 73 of 25 May 2021, to address the exceptional price increases that occurred during 2021. The provision requires the Ministry to record variations exceeding 8%, and on that basis, contracting authorities must compensate contractors for the additional costs incurred in performing ongoing contracts.
A.N.C.E. (the National Association of Building Contractors) challenged the decree, contesting the findings relating to 14 materials and arguing that the percentage increases identified by the Ministry were unreasonable and significantly lower than those actually recorded on the market. The objections focused in particular on the methodology used by the MIT for collecting, revising, and aggregating the data.
The Judicial Proceedings and the Council of State’s Decision
At first instance, the Lazio Regional Administrative Court (TAR Lazio) had rejected the appeal, holding that the Ministry’s investigation, conducted in accordance with the “Guidelines for Surveying Construction Material Prices” of 14 January 2022, had been thorough and rigorous. The court of first instance had also held that the choice of methodology fell within the administration’s technical discretion.
The Council of State overturned the first-instance judgment, upholding A.N.C.E.’s appeal. The decision is based primarily on the findings of the technical verification ordered during the proceedings and entrusted to the Rector of the Politecnico di Milano.
According to the Council of State, the ministerial Guidelines are not unlawful in themselves; rather, the defect lies in their incorrect application. The judgment identifies a flaw in the investigative process that led to the adoption of the challenged decree. As stated verbatim in the reasoning:
«The Guidelines are not unlawful, but the investigation carried out by the Ministry is flawed, as held by the verifier […]».
The technical verification revealed three main critical issues, which were accepted by the panel. First, the process used to construct the data sample has aspects that undermine its full statistical reliability. Second, the methodology adopted to exclude anomalous data (outliers), specifically the application of the standard deviation method, is not adequately justified or sufficiently transparent. Finally, very significant discrepancies emerged (in some cases exceeding 35 percentage points) between the data provided by the Interregional Public Works Offices (Provveditorati Interregionali) and that provided by Unioncamere, without the Ministry having put in place adequate corrective mechanisms.
According to the Council of State, this widespread and substantial misalignment points to anomalies in the collection and processing of the data, which would have required a more rigorous investigation.
Effects of the Judgment
The Council of State therefore upheld A.N.C.E.’s appeal and, reversing the first-instance judgment, upheld the original claim, ordering the partial annulment of the ministerial decree of 4 April 2022 limited to the 13 contested construction materials.
The Ministry of Infrastructure and Transport must therefore carry out a new survey for the materials concerned, ensuring the statistical reliability of the method and overcoming the critical issues identified by the verification.
Finally, the panel clarified that the compensation mechanism is intended to reimburse the contractor for the additional costs actually incurred and cannot result in unjust enrichment: compensation may therefore never exceed the expense actually borne by the company.
