JUDGMENT NO. 129

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in proceedings concerning the constitutional legitimacy of Article 11 of Decree-Law No. 76 of 11 June 2024 (Urgent provisions for post-disaster reconstruction, civil protection interventions, and the holding of major international events), converted, with amendments, into Law No. 111 of 8 August 2024, brought by the Judge for Preliminary Investigations at the Ordinary Court of Milan, in the criminal proceedings against L. T. et al., by means of an order dated 5 November 2025, registered under no. 247 of the 2025 register of orders and published in the Official Gazette of the Republic, Special 1st Series, No. 52, of the year 2025.

Having regard to the appearances entered by L. T., L. O. and C. C., M. M., V. N., D. C., M. Z., and the Fondazione Milano Cortina 2026, as well as the intervention brief of the President of the Council of Ministers;

having heard Judge Rapporteur Francesco Saverio Marini at the public hearing on 23 June 2026;

having heard counsel Paola Severino and Alfonso Celotto for the Fondazione Milano Cortina 2026, Fabio Cintioli and Grazia Volo for L. O. and C. C., Salvatore La Porta for M. M., Antonio Fiorella for V. N., Riccardo Lugaro for D. C., Marco Sangalli for M. Z., Giordano Balossi for L. T., and State Attorneys Carla Colelli and Alberto Giovannini for the President of the Council of Ministers;

having deliberated in chambers on 23 June 2026.

(The Law and the Facts)

1.– By order dated 5 November 2025 (reg. ord. no. 247 of 2025), the Judge for Preliminary Investigations at the Ordinary Court of Milan raised – with reference to Articles 3, 77, 11, and 117, first paragraph, of the Constitution, the latter in relation to Article 2(1)(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, and to Articles 2, 9, 15, and 30 of the United Nations Convention against Corruption, adopted by the UN General Assembly on 31 October 2003, ratified and made enforceable by Law No. 116 of 3 August 2009 (hereinafter referred to alternatively as: the Merida Convention, the Convention, or UNCAC) – questions of constitutional legitimacy concerning Article 11 of Decree-Law No. 76 of 11 June 2024 (Urgent provisions for post-disaster reconstruction, civil protection interventions, and the holding of major international events), converted, with amendments, into Law No. 111 of 8 August 2024.

1.1.– The referring judge premised, as a matter of fact, that:

– he was seized of a request for dismissal by the public prosecutor in relation to criminal proceedings against seven suspects for the offences of bid rigging (turbata libertà degli incanti) and active bribery of a public official or a person charged with a public service;

– the alleged acts attributed to the suspects concern the award procedures of two tenders aimed at the creation of the "Digital Ecosystem” of the public body Fondazione Milano Cortina 2026 (hereinafter also: Fondazione Milano Cortina or the Foundation), which were awarded, respectively, to Vetrya spa and Deloitte Consulting Società Benefit srl;

– according to the public prosecutor, both tenders were "rigged with the collusive contribution” of individuals within the Foundation responsible for their regulation and allocation (the Chief Executive Officer of the Foundation, the Technical Director of Digital Services, and the Head of the Procurement and Facilities Area);

– with regard to the first tender, transfers of assets and promises of benefits were identified, which formed the basis for entering certain individuals in the register of suspects also for the offence of active bribery;

– the request for dismissal, as regards this latter criminal hypothesis, is justified by the public prosecutor on the grounds of the temporal collocation of the transfers, which does not allow for proof of the bribery agreement to be attained and which would also exclude the less serious criminal offence referred to in Article 2635 of the Civil Code;

– with regard to the offence referred to in Article 353 of the Criminal Code, on the other hand, the public prosecution objected, firstly, to the constitutional illegitimacy of Article 11 of Decree-Law No. 76 of 2024, as converted, with reference to Articles 3, 77, 97, 101, 102, and 112 of the Constitution, and, only in the alternative, requested dismissal on the ground that the act is no longer provided for by law as a crime;

– not deeming it possible to grant the public prosecutor’s request, the referring judge scheduled a hearing pursuant to Article 409(2) of the Code of Criminal Procedure, during which the counsel for the suspects and the victim argued for the inadmissibility and manifest infundateness of the objection of constitutional illegitimacy and insisted upon dismissal.

1.2.– This having been premised, regarding relevance, the GIP (Judge for Preliminary Investigations) observes that, according to established constitutional jurisprudence, relevance arises when the referring judge is required to apply the censured provision, even if only within their reasoning.

For this reason, the referring judge considers that the relevance of the questions of constitutional legitimacy of the censured provision – which, through an authentic interpretation provision, "excluded the Milano Cortina Foundation from public law rules” – subsists in relation to both criminal offences under investigation.

1.3.– Subsequently, the referring judge dwells on the "public nature” of the Fondazione Milano Cortina.

1.3.1.– He observes that the aforementioned Foundation was established in Milan on 9 December 2019, with the task of promoting and organizing the 2026 Winter Olympic and Paralympic Games, with particular regard to the management of competitions and the sports context.

Article 2(1) of Decree-Law No. 16 of 11 March 2020 (Urgent provisions for the organization and holding of the Milano Cortina 2026 Winter Olympic and Paralympic Games and the ATP Finals Turin 2021-2025, as well as regarding the prohibition of parasitic activities), converted, with amendments, into Law No. 31 of 8 May 2020, conferred upon the Foundation the function of "Organising Committee for the Games” (COG, COJO, or COGO) and, on 11 March 2020, the International Olympic Committee (IOC) effectively conferred such function upon it.

The subsequent paragraph 2 of Article 2 of the same Decree-Law No. 16 of 2020, as converted, specifies the purposes of the entity, which "carries out all management, organization, promotion, and communication activities for the sporting events relating to the Games, taking into account the general guidelines of the Joint Olympic Council, in compliance with the commitments assumed by Italy at the international level, in accordance with the Olympic Charter.”

The same provision specifies that the Foundation does not pursue "lucrative purposes” and operates "under a private law regime” (this latter clarification having been introduced during the conversion process).

The founders are the following public bodies: the Italian National Olympic Committee (CONI), the Italian Paralympic Committee (CIP), the Lombardy Region, the Veneto Region, the Municipality of Milan, and the Municipality of Cortina d’Ampezzo (Article 2(1) of Decree-Law No. 16 of 2020, as converted, and, to the same effect, Article 1, point 1.2. of the entity’s statutes). To these must be added, as of 17 January 2023, the Presidency of the Council of Ministers and the Autonomous Provinces of Trento and Bolzano, as a result of the amendments made to the aforementioned Article 2 by Article 34(3) of Decree-Law No. 9 August 2022, n. 115 (Urgent measures concerning energy, water emergencies, and social and industrial policies), converted, with amendments, into Law No. 142 of 21 September 2022.

From an organizational perspective, as resulting from Article 5 of the statutes, the Foundation is composed of the Board of Directors, the Management Committee (subsequently abolished by Article 34(3) of Decree-Law No. 115 of 2022, as converted), the Board of Statutory Auditors, and the statutory auditor.

Thus, by means of a "normative act,” a foundation entrusted with the organization of the Olympic and Paralympic Games was established.

Given its structural characteristics, the Fondazione Milano Cortina 2026 exhibits a "qualified contact” with public law entities, a contact which is not disproved by the reference to private law rules "made by the genetic normative act.”

The latter, by enshrining the possibility for the Foundation to act under a private law regime, merely operated in a symmetrical manner with respect to the general rules of Law No. 241 of 7 August 1990 (New rules on administrative proceedings and the right of access to administrative documents) which govern the actions of the public administration.

1.3.2.– The referring judge considers that the Foundation falls within the notion of a body governed by public law.

The GIP observes that Legislative Decree No. 36 of 31 March 2023 (Public Contracts Code, implementing Article 1 of Law No. 78 of 21 June 2022, delegating the Government in the matter of public contracts) makes the applicability of the open tender procedure conditional upon the contracting entity having the nature of a body governed by public law, as defined by Article 1(1)(e) of Annex I.1 to the Code.

This is – the referring judge explains – a notion already contemplated by Article 3 of Legislative Decree No. 50 of 18 April 2016 (Public Contracts Code), in force at the time of part of the facts underlying the proceedings, and left unchanged in the new Public Contracts Code, in force since 10 April 2023 and fully effective since 10 July 2023.

A body governed by public law is therefore understood to be any subject, even having a corporate form, provided it has legal capacity, established to specifically meet needs in the general interest, not having an industrial or commercial character, financed for the most part by the State, by territorial public bodies, or by other bodies governed by public law, or whose management is subject to the control of the latter, or whose administrative, managerial, or supervisory board is constituted by members more than half of whom are appointed by the State, by territorial public bodies, or by other bodies governed by public law.

That is to say, those bodies which, "regardless of their formal qualification, operate according to logics different from those of a private entrepreneur.”

The GIP then proceeds to verify whether the Foundation satisfies all three of the aforementioned constitutive profiles of a body governed by public law, according to the interpretation repeatedly affirmed by the jurisprudence of legitimacy, aimed at favoring a non-formalistic but functional approach that takes account of the concrete operational modalities of the relevant entity (reference is made to the Court of Cassation, United Civil Sections, Judgment No. 8673 of 28 March 2019 and Order No. 17567 of 28 June 2019).

1.3.2.1.– The requirement of legal personality is certainly satisfied, deriving for the Foundation from its very nature, given that Article 1 of Presidential Decree No. 361 of 10 February 2000, bearing "Regulations containing rules for the simplification of procedures for the recognition of private legal persons and the approval of amendments to the memorandum of association and statutes (no. 17 of Annex 1 to Law No. 59 of 15 March 1997),” expressly causes prefectural recognition to result in registration in the register of legal persons.

1.3.2.2.– The teleological requirement is likewise satisfied.

The *judge a quo* observes that the Fondazione Milano Cortina 2026 "pursues a purpose of general interest and of public significance, being aimed at realizing an Olympic and Paralympic event guaranteed by the Italian State in compliance with the Olympic law.”

It, in particular, carries out all the management, organization, promotion, and communication activities of the sporting events relating to the Games, "taking into account the general guidelines of the Joint Olympic Council, in compliance with the commitments assumed by Italy at the international level, in accordance with the Olympic Charter” (thus Article 2(2) of Decree-Law No. 16 of 2020, as converted), and manages, through its President (appointed by the Government), relations with all other national and international institutions in compliance with the law and the statutes.

The opposing opinions of the State Attorney General’s Office invoked by the defenses would base this assumption on the "longstanding” judgment of the Regional Administrative Court for Piedmont No. 362 of 3 March 2004, which ruled on the nature of the Organising Committee for the XX Olympic Winter Games of Turin 2006 (TOROC), "excluding the pursuit by said entity of purposes of general interest, which must be defined as ‘those which have as their object needs of an equally general interest,’ i.e., ‘needs of the entire community or of a significant portion thereof, which the State considers it must provide for directly or with regard to which it intends to maintain a decisive influence.’”

That judgment – the *judge a quo* continues – was based on Community jurisprudence, which, however, in subsequent years "profoundly changed,” having specified the compatibility, for the purposes of recognizing the nature of a body governed by public law, of activities aimed at satisfying needs in the general interest with other profit-making activities on the competitive market, which could therefore be jointly carried out by the same entity (reference is made to the Judgment of the Court of Justice of the European Union, Fourth Chamber, 5 October 2017, Case C-567/15, LitSpecMet UAB).

Following this approach, therefore, in order for a body governed by public law to exist, it would be necessary that the entity does not base its main activity on criteria of efficiency, effectiveness, and profitability and that it does not assume the risks connected with the performance of such activity, which must fall upon the controlling administration (reference is made to Court of Cassation, United Civil Sections, Judgment No. 8225 of 7 April 2010).

In the present case, the Fondazione Milano Cortina pursues a general public interest, since the value of sport is recognized in the Constitution.

A first explicit reference to sport was introduced into the Constitution by Constitutional Law No. 3 of 18 October 2001 (Amendments to Title V of Part Two of the Constitution), which, in reforming Article 117 of the Constitution, attributed concurrent legislative competence in the matter of sports organization to the State and the regions.

The Fondazione Milano Cortina 2026 was therefore established to meet needs in the general interest, of a non-industrial or commercial character and, specifically, the realization of the values of sport in accordance with the Olympic Charter.

Nor, furthermore, could the existence of a contracting authority such as Società Infrastrutture Milano Cortina 2020-2026 spa (SIMICO) constitute an argument to exclude the foregoing.

This would be a certainly public company established to design and implement, as a purchasing center and contracting authority, all the activities for the realization of the works included in the "Olympic Works Plan,” aimed at the holding of the 2026 Winter Olympic and Paralympic Games, in compliance with Decree-Law No. 16 of 2020, as converted.

Pursuant to Article 3(2) of that Decree-Law, "the Company operates in consistency with the indications of the Organising Committee and with the provisions of the decree referred to in the first period, regarding the preparation of the intervention plan, compliance with the schedule, the location and the technical-functional and social characteristics of the works, the order of priority and the completion times thereof, as well as the quantification of the economic burden of each work and the relative financial coverage.”

SIMICO’s task would therefore be to build the Olympic works indicated in the plans approved by the Government, in coordination with the Foundation, with which it would operate in synergy in the pursuit of purposes attributable to the same general public interest.

1.3.2.3.– Having identified the teleological requirement of the body governed by public law in the terms set out above, the referring judge analyzes the concurrent requirement of public dominance, recalling that for its existence it is sufficient that even just one of the elements required alternatively by national and EU provisions is integrated.

First, it should be considered that the Foundation has an initial capital endowment of 100,000 euros of public origin, since it was paid by the founding public bodies, pursuant to Article 7 of the memorandum of association and Article 4 of the statutes, to allow the start of activities functional to the acquisition of its own resources through contracts and sponsorships.

Account should also be taken of the convention regulating relations between the IOC, the host cities, and CONI (Host City Contract). It contains provisions that would translate "into financial guarantees borne by the founding territorial bodies, together with the State guarantee, for the commitments undertaken” by the COGO.

The public guarantee would have the purpose of ensuring the discharge of any obligation of the COGO prior to its liquidation. This would therefore be a guarantee that goes well beyond the reinforcement of the IOC’s creditor position (as held by the TAR Piedmont in 2004 for TOROC) and realizes a true and proper modality of indirect financing of the entity.

Indeed, both the Veneto Region (by Article 4 of Veneto Region Law No. 44 of 25 November 2019, bearing "Companion law to the 2020 regional stability law”) and the Lombardy Region (by Article 4 of Lombardy Region Law No. 15 of 6 August 2019, bearing "Adjustment to the 2019-2021 budget with amendments to regional laws”) have ordered the earmarking of sums for the financing of the Olympic and Paralympic Games, respectively for 55 and 137 million euros. In the regional law of Lombardy, in relation to the title of the earmarking, it is expressly read in paragraph 5 that it is operated "in order to provide adequate guarantee for the coverage of any deficits of the organising committee” of the Games.

1.3.2.4.– Furthermore, the control of the State, public bodies, or bodies governed by public law over the management of the Foundation subsists.

Moreover, the Board of Directors would be composed of directors designated for the most part by public bodies (CONI, IOC, Autonomous Provinces of Trento and Bolzano, Municipalities of Milan and Cortina d’Ampezzo, Lombardy Region, Veneto Region, and Presidency of the Council of Ministers). Article 34 of Decree-Law No. 115 of 2022, as converted, which was followed by an amendment to the entity’s statutes, in paragraph 3, set the number of directors at fourteen and provided that the Chief Executive Officer be appointed by the Presidency of the Council of Ministers.

1.3.3.– In conclusion, the Foundation would hold the qualification of a body governed by public law and, as such, would be subject to the open tender procedure.

Therefore, the censured provision – in establishing that Article 2(2) of Decree-Law No. 16 of 2020, as converted, "is to be interpreted to mean that the activities carried out by the ‘Milano Cortina 2026’ Foundation are not governed by public law rules and that the Foundation does not hold the qualification of a body governed by public law” (paragraph 1), as well as, further, that the Foundation "operates on the market under conditions of competition and according to entrepreneurial criteria” (paragraph 2) – would bear a false authentic interpretation of the aforementioned Article 2(2), actually assuming an innovative scope with retroactive effect.

It would therefore violate Article 3 of the Constitution, by unreasonably exempting the Foundation from the application of public law rules and, in particular, from the open tender regime, as well as, correlatively, exempting those who operate for the entity from the application of incriminatory rules which (like Article 318 of the Criminal Code) presuppose the quality of public official or person charged with a public service of the active subject of the crime, or which (like Article 353 of the Criminal Code) postulate "the operability of the open tender procedure, at least in the form of the informal tender.”

Articles 11 and 117, first paragraph, of the Constitution would also be violated, inasmuch as the censured provision denies the character of a body governed by public law to an entity to which such qualification should instead be attributed pursuant to European Union law.

1.4.– With regard to Article 77 of the Constitution, the *judge a quo* observes that the provision is inserted "in a regulatory context pertaining to measures aimed at post-disaster reconstructions, referring to the flood events that hit the Emilia Romagna, Tuscany, and Marche regions, starting from 1 May 2023, and [to] the seismic event in Abruzzo in 2009.”

From this perspective, the introduction of urgent civil protection measures aimed at ensuring the strengthening and completion of activities connected to the flood emergency situation would be explained on the assumption of extraordinary necessity and urgency, as well as being functional to the disbursement of grants and to clarifying and ensuring the operating modalities of the entities concerned, including the special offices for post-earthquake reconstruction and the Italia Meteo Agency, in addition to strengthening the administrative capacities of some of them.

In the same decree-law – the referring judge continues – there are also special provisions referring to other calamities of the same nature that have affected different territories in previous years, such as the seismic event in Sicily in 1990, the seismic events in the Campi Flegrei area, and the meteorological events that have affected certain provinces of the Marche since 2022.

Apart from Article 12, concerning the entry into force of the decree-law, nine of the remaining eleven articles contemplate rules functional to reconstruction and recovery following natural calamities for which a state of emergency had already been declared.

Articles 10 and 11 would interrupt the "syntonic character of the provisions preceding them,” as they would introduce, respectively, security measures connected to the holding of the Summit of Heads of State and Government, which was held in Brindisi in June 2024, and the requalification of the Fondazione Milano Cortina 2026.

The fact that in the title of the decree-law there is also a reference to international events would not make the latter its main object, since the relative provisions "are distonically confined to only two of the twelve articles of which it is composed.”

Nor is the reference to the complexity of the organization activity of the Winter Olympic and Paralympic Games capable of integrating the requirement of extraordinary necessity and urgency, which is nevertheless assumed in the preamble of the decree.

The censured provision would manifestly appear extraneous to the matter governed by the other provisions contained in the decree-law, and this should be recognized as a symptomatic index of the manifest lack of the requirement of extraordinariness of the case of necessity and urgency (reference is made to the judgments of this Court no. 146 of 2024 and no. 113 of 2023).

1.5.– With reference to the Merida Convention (invoked through Article 117, first paragraph, of the Constitution), the referring judge considers that the effect of substantial depenalization of the crime of bribery operated in the present case by the impugned provision conflicts with the international obligations assumed by Italy in that regard.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office, objecting to the inadmissibility and, on the merits, the non-fundateness of the raised questions.

2.1.– Firstly, the President of the Council of Ministers observes that the Olympic Games (which "include both the so-called ‘Games of the Olympiad’ and the ‘Winter Olympic Games’”) constitute a sporting event whose calling and celebration fall within the exclusive ownership and competence of the IOC, which manages the "Olympic Movement according to the self-imposed discipline outlined in the Olympic Charter.”

The aforementioned Charter, in fact, establishes that the Olympic Games are the "exclusive property of the IOC, which owns all rights relating thereto, in particular and without limitation, all rights concerning: (i) the organisation, exploitation and marketing of the Olympic Games; (ii) the authorisation to broadcast still and moving images of the Olympic Games for media use; (iii) the recording of audiovisual recordings of the Olympic Games; and (iv) the radio and television broadcasting, transmission, retransmission, reproduction, display, dissemination, making available or any other form of communication to the public, by any means currently known or to be developed in the future, of works or signals incorporating audiovisual recordings or footage of the Olympic Games” (thus, Rule 7, paragraph 2).

Belonging solely to the IOC are "the Olympic symbol, flag, motto, anthem, identifications (including, by way of example and not limitation, ‘Olympic Games’ and ‘Games of the Olympiad’), designations, emblems, flame and torches, […] as well as any other musical work, audiovisual work or other creative work or artifact commissioned in connection with the Olympic Games by the IOC, the NOCs [National Olympic Committees] and/or the OCOGs” (Rule 7, paragraph 4).

The IOC, for its part, is an "international non-governmental organisation, not-for-profit, established as an association with legal personality, recognised by the Swiss Federal Council and of unlimited duration” (Rule 15, paragraph 1). It, therefore, as an NGO, is an entity of a private nature, which does not pursue a profit-making purpose and whose institutional purpose is to "fulfil the mission, role and responsibilities assigned to it by the Olympic Charter” (Rule 15, paragraph 3).

The Olympic Games, therefore, are a sporting event managed and organized by an international entity of a private nature, which holds exclusive ownership thereof.

The State Attorney General’s Office observes that, on a strictly legal-formal level, the regulation of the organization of the Olympic Games is, therefore, dictated, at a general level, by an act issued by a private law entity and is governed, in concrete terms, by a contract, also of a private law nature, multilateral and with a complex cause, in the national legal system "assimilable (but not reducible)” to that of the atypical trademark licensing contract.

The economic risk of organizing the event rests on the national parties, with the Olympic Charter excluding the possibility of any financial liability being assumed by the IOC, with the exception of the contribution possibly granted by it.

2.2.– This having been said, the State Attorney General’s Office objects to the inadmissibility of the questions, firstly, "due to erroneous interpretation of the legislation applicable for the purposes of relevance.”

The referring judge erroneously believes that the interpreted provision, where it provides that the Fondazione Milano Cortina 2026 is a not-for-profit entity operating under a private law regime, adds nothing to the provision referred to in Article 1(1-bis) of Law No. 241 of 1990, according to which the public administration, "in the adoption of acts of a non-authoritative nature, acts according to private law rules unless the law provides otherwise.”

Such hermeneutic option would be erroneous, firstly, because it would end up draining of any meaning the interpreted provision, which would constitute a superfluous repetition of the general discipline, thus betraying that general principle whereby an interpretation that attributes an effect to the norm must always be favored over one that excludes such effect ab initio.

It should instead be held that the interpreted provision, where it stipulates that the Foundation operates under a private law regime, intends to subject it to a discipline different from that provided generally for public administrations.

The lexical difference between the two provisions compared also points in this direction: while, in fact, Article 1(1-bis) of Law No. 241 of 1990 expressly makes the application of "private law rules” conditional upon two requirements, namely that acts of a non-authoritative nature are not at issue and that there is no special discipline (as indeed for passive public contracts), the censured provision establishes "unconditionally and without exceptions” the subjection of the entire activity of the Foundation to the private law regime.

This, moreover, in full correspondence with the self-regulation that the Foundation had given itself in its memorandum of association.

Already on the basis of the interpreted provision (which remained substantially unchanged following the amendments made by Article 34(3) of Decree-Law No. 115 of 2022, as converted), therefore, it should have been excluded that the activity of the Foundation was governed by public law rules and, in particular, by those on open tenders.

In this sense, the State Attorney General’s Office had expressed itself (at a time prior to the period in which the conduct disputed to the suspects was put in place) with the opinions of 24 June and 28 July 2020 and those of 16 February and 16 March 2021, cited by the referring judge.

The censured provision, therefore, intervened to clarify such normative meaning, both by affirming that, where the interpreted provision establishes that the Foundation operates under a private law regime, it must be understood that the activities carried out by it "are not governed by public law rules,” and by adding that the Foundation "operates on the market under conditions of competition and according to entrepreneurial criteria,” in perfect concordance with the very object of the entity, which sets itself the task of organizing a sporting event that is, in itself, a product offered on the market like any other entertainment event.

2.3.– The questions would also be inadmissible due to a lack of relevance to the extent that they address the censured provision in relation to the hypothesis of bribery, the GIP of Milan having omitted to offer the "even minimum” explanation of how they can affect, in concrete terms, the *judium a quo*, and having instead limited itself to invoking the consequences that could derive from the different qualification of the fact (as active bribery of a public official or a person charged with a public service or as private-to-private corruption).

In the present case, the public prosecutor deemed the proof regarding the *pactum sceleris* between the suspects not to have been attained and, consequently, requested the dismissal of the proceedings, since not even the less serious crime of private-to-private corruption could be integrated, so that the qualification of the agents as public officials or persons charged with a public service would be entirely irrelevant.

The GIP, furthermore, did not carry out any consideration regarding the proof concerning the aforementioned constitutive element of the crime, not even for the purposes of a supplement to the investigation pursuant to Article 409(3) of the Code of Criminal Procedure.

The questions, therefore, would be merely hypothetical and therefore irrelevant, the outcome of the proceedings being incapable of being different.

2.4.– The questions would then be inadmissible with regard to both incriminatory provisions under investigation, due to the failure to consider the actual consequences that a potential declaration of constitutional illegitimacy could produce for the purposes of the judgment of guilt of the suspects.

As already highlighted, regarding the applicability to the Foundation of the discipline dictated by Legislative Decree No. 50 of 2016, in force at the time of the facts under investigation, four opinions were rendered by the State Attorney General’s Office, the first two dating back to the months of June and July 2020, i.e., at the time of the start of the entity’s activity, and the last two to the months of February and March 2021.

In those opinions, the Attorney General’s Office concluded for the exclusion of the qualification of the Foundation as a body governed by public law, with the consequent non-applicability of the contracts code to it.

The conduct forming the object of the proceedings *a quo* – the State defense continues – refers to two "‘tender’ procedures” initiated by the Foundation at a time subsequent to the drafting of the first two opinions.

For both procedures, therefore, the managers of the foundation would have acted in the belief that the foundation was not a body governed by public law and was therefore not required to follow the discipline of the public contracts code, excluding, at the same time, that they held the qualification of public officials or persons charged with a public service.

It would therefore appear that an error on an extra-criminal norm exists on the part of the suspects, which, having caused an error on the fact that integrates the crimes *de quibus*, ends up excluding their punibility pursuant to Article 47(3) of the Criminal Code.

2.5.– On the merits, all the raised questions would be unfounded.

As for the question raised with reference to Article 3 of the Constitution, the impugned norm could not be considered unreasonable when examined in light of the constitutional jurisprudence matured in relation to the legitimacy of authentic interpretation norms and the distinction between these and those which, although qualified as such, instead have an innovative content of the legal system with retroactive effect.

For the reasons already stated above, the generic assumption that the censured provision has an innovative scope would be erroneous: already the interpreted provision, in fact, excluded the nature of a body governed by public law of the Foundation. Consequently, there could be no doubts as to the authentically interpretive nature of the provision in question, which, moreover, would have proved even more necessary following the fact-finding investigation of 14 February 2025 by the National Anti-Corruption Authority (ANAC) – concerning "ANAC insights regarding the Milano-Cortina 2026 Foundation” (and originating from the ascertained absence of the "Transparent Administration” section on the website of the same Foundation) – in which, in declared contrast with the opinions rendered by the State Attorney General’s Office recalled above, it was concluded that the entity could be qualified as a body governed by public law.

2.6.– Also unfounded, according to the intervener, would be the question raised with reference to Article 77 of the Constitution, due to a lack of homogeneity of the censured provision, from which the absence of the requirement of necessity and urgency would be evident (reference is made to the judgments of this Court no. 151 of 2023 and no. 22 of 2012).

The referring judge would have failed to consider that the management of calamities and that of so-called major events has long been treated uniformly, on a legal level, in our legal system, both having been attributed to the competence of the civil protection department (by Decree-Law No. 343 of 7 September 2001, bearing "Urgent provisions to ensure the operational coordination of structures responsible for civil protection activities and to improve logistic structures in the civil defense sector,” converted, with amendments, into Law No. 401 of 9 November 2011, in "combined provisions” with Law No. 225 of 24 February 1992, bearing "Establishment of the National Civil Protection Service”).

The "conceptual and disciplinary proximity” between the management of major events and calamities was, therefore, even recognized by law until shortly before the very adoption of Decree-Law No. 76 of 2024, so that it would seem "very arduous” to exclude it for the purposes of evaluating the requirement of homogeneity in the context of emergency decrees.

On the other hand, the GIP of Milan omitted to recall the premises justifying the adoption of the emergency measure by the Government, which are well outlined in the preamble of the same decree-law.

This would be even more valid if one considers that among the provisions relating to international major events not only does the censured provision fall, but also the preceding Article 10, entitled "Urgent provisions for the enhancement of security measures connected to the holding of the G7 Summit in Brindisi,” as well as the subsequent Article 11-bis, inserted during the conversion process, which contains "Urgent provisions for international major sporting events,” thus revealing the common purpose that binds all the provisions inserted in the decree-law, first, and in the conversion law, afterwards.

The censured provision would thus appear inserted in a "regulatory vehicle aimed” at the better organization of the resources and capabilities of the State machinery in the face of unpredictable events, such as calamitous ones, and pressing ones, such as the organization of the Winter Olympic Games.

2.7.– Equally unfounded would be the questions raised with reference to Articles 11 and 117, first paragraph, of the Constitution, by which the *judge a quo* denounces the violation of supranational obligations, stemming both from EU public procurement rules, which define the notion of a body governed by public law, and from the Merida Convention, which enshrines the obligation to criminalize bribery conduct.

2.7.1.– Contrary to what is argued in the referral order, the definition of a body governed by public law, of direct EU derivation, although progressively specified by the Court of Justice, would have remained unchanged in its fundamental core: this would exclude, specifically, that the considerations made by the TAR Piedmont in judgment no. 362 of 2004 regarding TOROC "should have subsequently been the subject of rethinking due to some unspecified change in jurisprudence regarding the matter.”

The definition in question can be found today in Directive 2014/24/EU, which is based on the jurisprudence of the Court of Justice and whose recital no. 10 specifies that, in the light of such jurisprudence, "a body which operates in normal market conditions, aims to make a profit and bears the losses resulting from the exercise of its activity” and therefore "should not be considered as being a ‘body governed by public law’, since it is reasonable to suppose that it has been set up to attain or been given the task of attaining needs of an general interest that have an industrial or commercial character.”

2.7.2.– According to the State Attorney General’s Office, the occurrence of the requirement of legal personality is not debatable, nor is that of public dominance, at least at the time when the conduct of the suspects was carried out, given that (at that time) certainly the majority of the members of the Board of Directors were appointed by the State, regional or local authorities, or other bodies governed by public law, as had already been noted by the same Attorney General’s Office in the first opinion of June 2020.

However, it should be specified how the further conditions (albeit alternative) necessary to integrate the aforementioned requirement of public dominance did not occur.

The finding that the financing of the Foundation by public bodies is majority-based is actually an undemonstrated assertion.

2.7.3.– The assumption relating to the subsistence of the teleological requirement would also be erroneous. Contrary to what was done by the GIP of Milan, the analysis of such requirement should necessarily confront, first, with the notion of "needs in the general interest” and, only at a later stage and in case of a positive finding, with the nature of the activity carried out by the entity.

2.7.4.– Finally, the question raised with reference to Article 117, first paragraph, of the Constitution, in relation to the obligation to criminalize bribery stemming from the Merida Convention, would be unfounded.

Should the Foundation not be a body governed by public law, any corrupt conduct eventually put in place by the suspects would not in any case be exempt from punishment, since Article 2635 of the Civil Code sanctions private-to-private corruption, thereby ensuring compliance with Article 21 of the aforementioned Convention, which leaves it to individual States to evaluate the opportunity of introducing such a criminal type.

This would also ensure compliance with Article 15 of UNCAC, given that it does indeed enshrine the obligation to criminalize the corruption of national public officials, but does not define its concrete sanctioning modalities.

In any case, it would be at least doubtful whether a violation of supranational legislation can be professed, in the abstract, in a case, like the present one, in which the incriminatory provision is in no way affected (unlike the case of abuse of office, dealt with in judgment no. 95 of 2025 of this Court), but exclusively an extra-criminal norm, which assumes relevance in the *judicium a quo* only "indirectly and incidentally.”

3.– By brief filed on 9 January 2026, M. M. entered an appearance in the proceedings, at the time of the facts games technology director of the Foundation, investigated in the proceedings *a quo* in relation to the criminal hypothesis referred to in Articles 110 and 353 of the Criminal Code, objecting to the inadmissibility and non-fundateness of the raised questions, according to argumentative trajectories that repeat part of those followed by the intervener.

3.1.– The party observes that, by autonomous choice of the founders, the COGO assumed, from the very beginning, the legal form of a private law foundation, and such choice is the direct consequence of the nature of the contractual relations with the IOC (which has a private nature), on the basis of which the Foundation organizes the Winter Olympic Games and, above all, of the clearly entrepreneurial nature of the activities it is called upon to carry out and from which it derives the bulk of its revenues.

3.2.– The private party adds that the Foundation cannot be considered a body governed by public law due to the absence, at least, of its teleological element.

In this regard, it should be underlined how the current public contracts code has modified the textual wording relating to this element: while the 2016 code required that the body governed be public law be "established specifically to meet needs in the general interest, not having an industrial or commercial character,” the current one speaks of a subject "established specifically to meet needs in the general interest, through the performance of an activity not having an industrial or commercial character.”

As underlined in the report to the public contracts code, the different wording of the requirement responds to the need to adapt it to the most recent orientations of the jurisprudence of the Court of Justice, thus referring the character of non-commerciality or non-industriality to the activity carried out and no longer to the need satisfied.

In this way, greater emphasis would be placed on the modalities of performance of the entity’s activity, and public law qualification must be excluded where the entity carries out its activity – even if responding to a general interest – with an entrepreneurial method, moving on the market with the typical autonomy of the private operator.

3.3.– That having been stated, the referring judge’s reading would be erroneous, as he finds the teleological element on the basis of the findings that the Foundation operates in the field of sporting events and sport has explicit constitutional recognition.

Although this latter finding is undeniable, it is not sufficient to conclude that all subjects operating "(even broadly)” in the sports sector acquire public law qualification.

Secondly, the referring judge glimpses an activity of general interest also in the fact that the organization of the Winter Olympics will allow "the improvement of sports infrastructure and places of sports gathering.” However, the *judge a quo* forgets that such infrastructure is built not by the Foundation, but by SIMICO, which is an in-house company and, therefore, subject to open tender procedures.

The GIP of Milan, in essence, confuses activities of "general interest” with those that have an "impact and/or general fallout”: while the former are aimed at satisfying a primary need of the community by providing a public service, the latter objectively have beneficial fallbacks for the community, but are not aimed at that.

The Olympic Games would have an objectively general relevance, because they "engage the international reputation of Italy,” and this would justify the legislative intervention of the Government.

However, this would not be sufficient to transform the Foundation into a body governed by public law. Not every time the legislature intervenes "for the ‘good of Italy’” do the activities it affects become of general interest, integrating a public service.

3.4.– According to the party, the referring judge asked this Court to endorse his interpretation concerning the nature of the Foundation as a body governed by public law, an interpretation contrary to that provided by the legislature with the censured provision. For this reason, the raised questions of constitutional legitimacy would be inadmissible.

3.5.– The questions would also be inadmissible due to a lack of relevance, the *judge a quo* having omitted to explain why the proceedings cannot be decided independently of the questions of constitutional legitimacy.

Moreover, the referring judge could not have provided such motivation, since, even in the event of a declaration of constitutional illegitimacy of the censured provision, he would still have to apply the interpreted provision – which is not the object of the constitutional incident – in the absence of which, in any case, the Foundation would not operate under a private law regime.

3.6.– The question raised with reference to Article 3 of the Constitution would be unfounded, given the genuinely interpretive nature of the censured provision.

3.7.– The deduced censure of violation of Article 77 of the Constitution would also be unfounded.

Decree-Law No. 76 of 2024, as converted, as made explicit by its title, deals not only with calamitous events, but also with the holding of major international events, such as the G7 in Brindisi.

The measures of the decree would pertain to "three areas (post-disaster; civil protection and major international events)” and would be united "by the same ratio which is given by the need that the Government had at that time to face three types of emergency.” The urgency to intervene would then be evident, given the real risk that "the inauguration” of the Games would "not be reached in time.”

3.8.– Lastly, the question raised with reference to Article 117, first paragraph, of the Constitution would likewise be unfounded, because the censured provision merely provided the authentic interpretation of a previous provision and did not "deny” the three requirements, "of European-Union derivation, required to acquire the aforementioned public qualification,” nor did it affect the criminal offense of bribery, "let alone weakening it.”

4.– By brief filed on 9 January 2026, L. O. and C. C. entered an appearance in the proceedings, also investigated in the proceedings *a quo* in relation to the criminal hypothesis referred to in Articles 110 and 353 of the Criminal Code, objecting to the non-fundateness of the raised questions, in this case too according to argumentative trajectories that repeat part of the arguments set forth by the intervener.

The parties add that the explanatory report to Decree-Law No. 76 of 2024 highlights how the legal nature of the Foundation had been examined "in four distinct opinions rendered by the State Attorney General’s Office, which have been able to clarify unequivocally – with reference to various operational aspects (from the non-application of the contracts code to the regime of guarantees or compensation and the management of funds) and also through the analysis of jurisprudence – how the Foundation cannot be qualified either as a body governed by public law or as a contracting entity or subject, it being a subject endowed with private law legal personality, which operates and acts under a private law regime in the performance of activities of management, organization, promotion, and communication of sporting events, operating on the market according to entrepreneurial logics and not for purposes of general interest, having a non-industrial or commercial character.”

The same report also indicates that "the Attorney General’s Office correctly valued the circumstance that the Foundation carries out typically commercial activity, of communication and promotion of the Olympic event on the market of sponsorships and television rights, while the activity of realization of the works necessary for the holding of the Games is entrusted to another subject – namely the company ‘Infrastrutture Milano Cortina 2020-2026 S.p.A.’”

Legislative intervention nevertheless proved necessary because ANAC, unlike the State Attorney General’s Office, had deemed the Foundation qualified as a body governed by public law, finding the existence of the teleological requirement in it, given that it had been "established for the main purpose of pursuing a task co-essential to the institutional mission” of the founders and, therefore, "aimed at realizing a public interest of general scope.”

5.– By brief filed on 12 January 2026, the victim Fondazione Milano Cortina 2026 entered an appearance in the proceedings, objecting to the manifest infundateness of all the raised questions.

5.1.– As for the question raised with reference to Article 3 of the Constitution, the referral order would start from an erroneous premise, namely that Article 11 of Decree-Law No. 76 of 2024, as converted, is an innovative rule and not one of authentic interpretation. On the contrary, the intervention of the legislature proved necessary to resolve a situation of interpretive uncertainty, fully falling within the canons of legitimacy of authentic interpretation laws traced by constitutional jurisprudence.

5.1.1.– According to the party, the logical-argumentative flaw vitiating the entire referral order would stem from the incorrect qualification of the legal nature of the Foundation.

Had the referring judge correctly reconstructed this nature in terms of a private entity operating in a competitive regime, there would have been "ab initio no need for any investigation either in relation to the actual existence of the recalled crimes or regarding the normative intervention.”

Pursuant to the "founding law” of the Foundation and, precisely, Article 2(2) of Decree-Law No. 16 of 2020, as converted, it operates "under a private law regime” and not public law, also because activities of public significance concerning the realization of infrastructural works necessary for the holding of the Games were reserved to another company (Infrastrutture Milano Cortina 2020-2026 spa).

Furthermore, the memorandum of association of the Foundation specifies, in Article 3, that it does not pursue "a need in the general interest,” and this is also reiterated in Article 3.1 of the statutes, where the COGO is expressly configured as a private law Foundation that does not pursue a profit-making purpose.

The statutes list among the competences of the Foundation operations functional to the planning, realization, and enhancement of the Milano Cortina 2026 Olympic and Paralympic Games, such as the preparation of management structures necessary for the reception of the Olympic staff, the sale of tickets and all exploitation rights of the Olympic event, and all activities directly or indirectly connected with the sole objective of the entity.

Within the scope of its competences, moreover, the Foundation can perform all acts and operations connected – even accessorily – to its institutional purposes, including commercial and complementary activities of a financial, patrimonial, movable, or immovable nature, deemed necessary or useful for the purpose pursued by the entity; it can also participate in entities having similar or akin purposes, as well as develop any form of creativity and connected work, including the power to carry out publishing activities.

At the regulatory level, Article 34(3) of Decree-Law No. 115 of 2022, as converted, would then come into play, which made some variations to the governance of the Foundation, confirming that it, "not-for-profit and operating under a private law regime,” "carries out all the management, organization, promotion, and communication activities of the sporting events relating to the Games.”

From these regulatory premises the inevitable consequence of a subjective qualification in private law terms of the exponents of the Foundation would derive.

Pursuant to Article 357 of the Criminal Code, in fact, public officials are, "for the purposes of criminal law,” "those who exercise a legislative, judicial, or administrative public function” (paragraph 1); and the "administrative public function” – or the type of public function recalled by the Public Prosecutor’s Office of Milan in the present case – is that "governed by public law rules and authoritative acts,” as well as "characterized by the formation and manifestation of the will of the public administration or by its unfolding by means of authoritative or certifying powers” (paragraph 2).

The activities of the Foundation, therefore, could not be traced back to the public function, since they, by express provision of law and according to the defining criterion of the discipline adopted by Article 357 of the Criminal Code, are governed by private law rules and not public law rules.

The Foundation, on the other hand, operates on the basis of a license acquired on a private contractual basis from the IOC, which is also a private non-governmental organization and which allows it to use the so-called Olympic properties in its commercial activities (i.e., the Olympic symbol, flag, motto, emblems, anthem, identifying expressions of the Games, designations, and flames, as defined by the Olympic Charter).

Such conclusion would not vary if, instead of taking into consideration the defining criterion adopted by Article 357 of the Criminal Code – i.e., the objective criterion, consisting of the reference to the activity carried out by the public official – the subjective criterion were used (although the latter is patently disregarded by the text of Article 357 of the Criminal Code itself), concerning the reference to the subject at whose premises the activity takes place.

On a subjective level, the Foundation could not be traced back to the category of bodies governed by public law, for the reasons highlighted in the opinions acquired by the Foundation and issued by the State Attorney General’s Office on 24 June and 28 July 2020, 16 February and 16 March 2021, which highlight how – compared to the three fundamental requirements jointly required of a body governed by public law – the Foundation was not established "specifically to meet needs in the general interest, having a non-industrial or commercial character.”

It, in fact, "does not receive public funding, its Assets (excluding the initial endowment) being constituted by contributions, payments, revenues, and considerations deriving from the promotion of the event (Article 4 of the statutes); the purpose of the Foundation is exclusively the organization of a single event, namely the 2026 Olympic and Paralympic Games, an activity that cannot be considered functional to the satisfaction of a need of a general character; in this activity it acts, at least in part, in competition with the organizers of other sporting events of equal relevance and offers a ‘product’ on the market of sponsorships and television rights” (reference is made in particular to the opinion of 24 June 2020).

Despite the "consolidated orientation” expressed by the State Attorney General’s Office, ANAC had deemed it appropriate, in April 2024, to initiate a fact-finding proceeding aimed at re-examining the correct legal configuration of the Foundation, "thus highlighting the terrain of profound hermeneutic uncertainty.” The outcome of such proceeding was the transmission, in February 2025, of a fact-finding investigation entitled "ANAC insights regarding the Milano Cortina 2026 Foundation,” with which the aforementioned authority qualified the Foundation as a body governed by public law, deeming the teleological requirement and that of dominant public influence satisfied (with the consequent application of obligations in matters of administrative transparency and public procurement discipline).

The described hermeneutic contrast had, therefore, generated a situation of objective uncertainty of the law, which risked paralyzing the activity of the Foundation, called upon to organize an event of international relevance with unpostponable deadlines.

5.1.2.– In this scenario fits the censured provision, which, precisely to dispel application doubts on the legal qualification of the Foundation, affirmed, in the first paragraph, that Article 2(2) of Decree-Law No. 16 of 2020, as converted, "is to be interpreted to mean that the activities carried out by the ‘Milano Cortina 2026’ Foundation are not governed by public law rules and that the Foundation does not hold the qualification of a body governed by public law”; and, in the second paragraph, that it "operates on the market under conditions of competition and according to entrepreneurial criteria.”

The legislative intervention would be fully legitimate and even "duty-bound” to guarantee the principle of legal certainty.

According to the jurisprudence of this Court, the authentic interpretation provision would be that which expresses, in substance, a meaning belonging to those attributable to the interpreted provision according to ordinary criteria of legal interpretation. Otherwise, where the provision attributes a new meaning to the interpreted provision, not falling among those already extractable from the original text of the provision itself, it would be innovative with retroactive effect.

That having been stated, in the present case, Article 11 of Decree-Law No. 76 of 2024, as converted, having intervened in a regulatory context characterized by evident margins of application uncertainty, could in no way be "qualified as a manifestation of an illegitimate use of the hermeneutic instrument of authentic interpretation.”

For the purposes of qualifying the Foundation as a body governed by public law, the necessary teleological requirement is lacking, since, as correctly highlighted by the State Attorney General’s Office in its opinions, the Foundation was established for the organization of a single sporting event and operates in a competitive context, procuring its resources predominantly through negotiation and promotional activities (sponsorships, ticket sales, exploitation rights, et cetera).

As for the Merida Convention, the censured provision merely delimits the subjective scope of application of criminal norms that presuppose the qualification of public official (Article 357 of the Criminal Code) or person charged with a public service (Article 358 of the Criminal Code).

If, as the legislature has clarified from the outset, the personnel of the Foundation do not hold such qualification, there would be no violation of international obligations, which require the sanctioning of the corruption of public officials, whose notion is left to the definition of individual national legal systems.

Moreover, in line with international obligations, the Italian legal system also provides for and punishes private-to-private corruption, and therefore the private law qualification of the exponents of the Foundation does not exclude *ab initio* the possibility of criminalizing corrupt acts (not surprisingly, the Foundation filed a specific criminal complaint in the criminal proceedings *a quo* for private-to-private corruption in relation to the facts under investigation).

6.– By separate briefs filed on 12 January 2026, through different counsel, other suspects in the proceedings *a quo* also entered an appearance (M. Z., L. T., V. N., investigated in relation to the criminal hypotheses referred to in Articles 110, 319, 320, 321, and 353 of the Criminal Code; and D. C., investigated, in his capacity as Procurement Department Director of the Foundation, in relation to the criminal hypothesis referred to in Articles 110 and 353 of the Criminal Code), objecting to the inadmissibility and non-fundateness of the raised questions, once again according to argumentative trajectories that repeat part of the arguments set forth by the State Attorney General’s Office and the other previously appearing parties.

6.1.– To these arguments the parties added the following considerations.

6.1.1. – According to M. Z. and L. T., the qualification of the Foundation as a public body should be disowned on the basis of the same considerations that the United Criminal Sections of the Court of Cassation formulated with reference to the autonomous body Milan International Fair with judgment No. 97 of 4 April 2000, it being a subject that, while pursuing purposes of general interest, without speculative purposes and with the interference of the public administration, operates in the sector of production or exchange of goods and services through an entrepreneurial-type organization and against fees aimed at cost recovery.

6.1.2.– V. N., regarding the absence of the teleological element in the Foundation, highlighted that the pursuit of a general interest is not sufficient for the configuration of the nature of a body governed by public law. Even private law subjects, in fact, could set themselves objectives of general valence.

6.1.3.– D. C. objected to the inadmissibility of the questions under various profiles.

The questions would be inadmissible, firstly, "with respect to the crime of bribery,” due to a lack of relevance, by reason of the non-existence of the fact, the public prosecutor having deemed the nexus between the benefits promised or granted and the contrary act identified in the rigging of the tender unproven.

Furthermore, the referring judge’s reconstruction is fallacious because it fails to consider that with respect to bid rigging, even if the public nature of the body were recognized, a constitutive element of the crime would in any case be missing, "namely a ‘tender’ subsumable under the provision referred to in Article 353 of the Criminal Code.”

The jurisprudence of legitimacy, in fact, considers the crime in question configurable where the public administration proceeds to identify the contractor by means of a "tender,” whatever the *nomen iuris* adopted and even in the absence of formalities, provided that there is, however, a competition among applicants, which takes place on the basis of the prior indication and publication of selection criteria and the presentation of offers. Conversely, the crime would not occur where the public administration remains free to choose according to criteria of convenience and opportunity proper to private bargaining (reference is made to Court of Cassation, Sixth Criminal Section, Judgments 1 July-18 July 2024, No. 29214; 24 May-25 July 2023, No. 32319; 23 March-12 May 2022, No. 18977).

This latter would be the case at hand, in which the "private consultation” initiated by the Foundation "had the primary purpose of carrying out a market analysis and, at the same time, implementing a so-called ‘pricing strategy,’ or understanding what the price established by the market could be for the services subject to contract” (i.e., the supply contract for the "Digital Platform”).

The inadmissibility of the questions is also objected to because the censured provision, even if declared constitutionally illegitimate, would find application in the present case as a favorable extra-criminal norm.

6.1.4.– On the merits of the questions, the teleological element of the body governed by public law should be excluded because the activity of the Foundation is not directed to a general interest, not concerning in any way "the preparation of athletes for participation in the Olympic Games, nor, more generally, any of the activities directly connected to sporting practice,” but only the organization of the event, which the public can attend upon payment of tickets.

7.– In the imminence of the public hearing, the parties filed briefs, insisting on the conclusions already submitted.

(The Law)

8.– By order of 5 November 2025 (reg. ord. no. 247 of 2025), the GIP of the Court of Milan raised – with reference to Articles 3, 77, 11, and 117, first paragraph, of the Constitution, the latter in relation to Article 2(1)(4) of Directive 2014/24/EU and Articles 2, 9, 15, and 30 of the Merida Convention – questions of constitutional legitimacy concerning Article 11 of Decree-Law No. 76 of 2024, as converted.

9.– The referring judge deals with criminal proceedings in which, among others, certain employees of the Fondazione Milano Cortina 2026 are investigated, i.e., the entity upon which Decree-Law No. 16 of 2020, as converted, conferred the task of carrying out, with regard to the 2026 Winter Olympics and Paralympics, "all management, organization, promotion, and communication activities […], taking into account the general guidelines of the Joint Olympic Council, in compliance with the commitments assumed by Italy at the international level” (Article 2(2)).

In particular, the Public Prosecutor’s Office of Milan initiated a preliminary investigation, hypothesizing the commission, by such persons, of the crimes of active bribery (Article 318 of the Criminal Code) and bid rigging (Article 353 of the Criminal Code), with reference to procedures carried out on the market to procure services for the Foundation from third-party bidders.

The investigations were carried out on the assumption, necessary for the abstract configuration of the hypothesized crimes, that the Foundation was a body governed by public law, as such subject to the obligation to call open tender procedures and that, consequently, its employees assumed the status of public official or person charged with a public service in such activity.

During the criminal proceedings, however, the censured Article 11 of Decree-Law No. 76 of 2024, as converted, supervened, which, declaring to authentically interpret Article 2(2) of Decree-Law No. 16 of 2020, as converted, established, in paragraph 1, that "the activities carried out by the ‘Milano Cortina 2026’ Foundation are not governed by public law rules and that the Foundation does not hold the qualification of a body governed by public law.”

At this point, the PM objected to the constitutional illegitimacy of such provision, which, with an innovative scope, would have exempted the Foundation from the regime proper to bodies governed by public law, limited to the criminal hypothesis concerning bid rigging, while concluding for dismissal as regards the crime of bribery, deeming the proof of the bribery agreement unattainable.

The referring judge, in the chambers hearing pursuant to Article 409(2) of the Code of Criminal Procedure, deemed the present questions of constitutional legitimacy relevant and not manifestly unfounded with regard to both criminal hypotheses.

10.– The *judge a quo*, in particular, observes that the disputed conduct was committed while Article 2(2) of Decree-Law No. 16 of 2020, as converted, was in force, according to which the Foundation "operates under a private law regime.”

In the referring judge’s opinion, such provision does not preclude attributing the qualification of a body governed by public law to the Foundation, since it is compatible with the private nature of a subject. On the contrary, it was the censured provision, in establishing that the Foundation is not a body governed by public law, that exempted its acts from the public tender regime, thus sealing the fate of the criminal proceedings.

On the basis of this premise, the GIP doubts the constitutional legitimacy of Article 11 of Decree-Law No. 76 of 2024, as converted, under various profiles: with reference to Article 3 of the Constitution, due to the falsely interpretive, but actually innovative, character of the provision; with reference to Article 77 of the Constitution, because such provision has a heterogeneous character with respect to the content of the decree-law in which it is inserted; with reference to Articles 11 and 117, first paragraph, of the Constitution, because the censured norm denies the character of a body governed by public law to the Foundation in conflict with the aforementioned Directive 2014/24/EU, which contains the definition thereof; with reference to Article 117, first paragraph, of the Constitution, inasmuch as the legislature illegitimately circumscribed, with regard to the Foundation, the scope of application of the recalled Merida Convention, bearing obligations to criminalize bribery.

11.– The State Attorney General’s Office and the parties that appeared in the incidental proceedings raised numerous exceptions of inadmissibility: firstly because the censured provision and the one subject to authentic interpretation would have the same meaning, with the consequence that the *judge a quo*, even should the illegitimacy of the former be declared, would in any case be bound to apply an identical norm. In any case, the questions would be inadmissible as regards the part referring to the crime of bribery, since the PM had requested dismissal because the fact does not exist, and as regards the part referring to the crime of bid rigging, since the Foundation did not call any public tender. The parties also object to the inadmissibility of the questions because their potential acceptance could not produce any effect in the proceedings *a quo* to the detriment of the suspects, who must be kept shielded from criminal effects *in malam partem*, and who, in any case, acted in the legitimate belief that the Foundation was not a body governed by public law. Finally, in the opinion of some parties, the referring judge asks this Court for a mere interpretive endorsement and formulated the questions in generic terms, also omitting to describe the legal type with regard to the specific conduct attributed to each individual suspect.

12.– The censures are inadmissible because they are based on an erroneous reconstruction of the regulatory framework which results in an erroneous or incomplete identification of the object of the questions, with the effect that even in the event of acceptance, this Court’s ruling would be *inutiliter data*.

12.1.– As seen, the referring judge proceeds from the conviction that the censured provision, i.e., the 2024 authentic interpretation norm, has an opposite content to that of 2020 which it declares to interpret. While, in fact, the latter would allow the interpreter to qualify the Foundation as a body governed by public law, the subsequent 2024 provision expressly excludes that the entity can assume such legal qualification.

It must be specified that, in light of this premise, the referring judge cannot be reproached for not having censured Article 2(2) of Decree-Law No. 16 of 2020, as converted, as some parties to the incidental proceedings would wish, on the assumption that such norm has the same meaning as the censured one. The *judge a quo* proceeds, in fact, from an opposite perspective and would have fallen into an evident contradiction had he decided thus: in his opinion, the provisions in question are entirely divergent, so there was no reason to doubt the constitutional legitimacy of Article 2(2) of Decree-Law No. 16 of 2020, as converted.

However, it is precisely this perspective that turns out to be erroneous.

12.2.– It must be premised, first of all, that for the purposes of evaluating the admissibility of the questions, exclusively relevant is the interpretation of the provision subject to authentic interpretation, i.e., the aforementioned Article 2(2) of Decree-Law No. 16 of 2020, and not also the compatibility of such provision, as correctly interpreted, with European Union law, an aspect that pertains to the merits of the question.

12.3.– Moving on to the interpretation of the aforementioned Article 2(2), it establishes, as already stated, that the Fondazione Milano Cortina 2026, a not-for-profit private subject (a qualification, moreover, undisputed since its original constitution by notarized deed on 9 December 2019, which was then followed by the legislative recognition brought by Decree-Law No. 16 of 2020, as converted), "operates under a private law regime.” Such provision was inserted into the body of the provision during the conversion of the decree-law containing it, and subsequently reproduced by Article 34(3) of Decree-Law No. 115 of 2022, as converted, which replaced the text of Article 2 recalled above.

The examination of the parliamentary preparatory works unequivocally shows that the purpose of the amendment was to make the operation of the Foundation easy and swift, exempting it from the open tender regime of bids that it would have had to call to procure goods and services on the market. A purpose, therefore, originated solely from the assumption that the entity could not be considered a body governed by public law, given that, in such case, the obligation of the tender would have been inescapable.

In particular, during the session of 15 April 2020 in the Chamber of Deputies, Honorable Giorgetti, in illustrating the reasons that, in his opinion, mobilized "all of us […] to define the organising committee as a private law foundation,” connected such regulatory choice with the purpose of allowing it to "act in a lean manner, not being subordinated to all the procedures typical of the public administration” (Chamber of Deputies, 17th Legislature, session of Wednesday 15 April 2020, Discussion on general lines – A.C. 2434-A, shorthand report no. 326). It is therefore precisely in this direction, antithetical to the nature of a body governed by public law of the entity, that the parliamentary interventions on the point must be read, including that of 15 April 2020 by Honorable De Menech, rapporteur of the conversion bill (A.C. 2434-A), according to whom, "[b]y incorporating indications from the opposition, the private law nature of the Foundation was emphasized” (again, shorthand report no. 326).

The unequivocal character of the findings of the parliamentary preparatory works assumes significant valence in reconstructing the intention of the legislature, pursuant to Article 12 of the Provisions on the Law in General (Prelegge). An intention that finds confirmation both in the historical context in which the parliamentary amendment was approved and – and this is what matters most – in the purposes that the norm expressly pursues and that determine its objective prescriptive scope. For the first profile, the provision can only be read in light of the experience lived in our legal system with the preceding 2006 Winter Olympics. On that occasion, in fact, a foundation was established (TOROC) which did not have the characteristics of a body governed by public law and which was considered as such by administrative jurisprudence.

As for the second aspect, the norm expressly aims to satisfy the need to ensure full compliance with the commitments assumed by Italy at the international level, guaranteeing the implementation of the directives of the International Olympic Committee as well as compliance with the Olympic Charter and the principles contained therein, among which is that of the autonomy of the sports legal system. All needs that emerge explicitly from Article 2(2) of Decree-Law No. 16 of 2020, as converted, and that contribute to determining the exact interpretation of the provision, contained in the same paragraph, relating to the nature of the Foundation’s acts.

Already on the basis of these considerations, it can be noted that the qualification of the Foundation as a private law subject – in itself not decisive for the purposes of attributing the category of bodies governed by public law – is, in this case, specifically connected to the legal nature of the acts it performs, of which the legislature wanted to deny the inherence to public law.

12.4.– The argument supported in the referral order does not convince to the contrary, according to which the 2020 legislature, in providing that the Foundation operates under a private law regime, merely replicated the rule expressed in general terms by Article 1(1-bis) of Law No. 241 of 1990, according to which "[t]he public administration, in the adoption of acts of a non-authoritative nature, acts according to private law rules unless the law provides otherwise.” A rule, it is added, which clearly does not preclude attributing the quality of a body governed by public law.

Of the two provisions compared, both the purpose and the scope of application are different. With the one inserted in the body of the law on administrative proceedings, it is abstractly admitted that the public administration, in spaces that do not imply the exercise of authoritative powers, can act *iure privatorum*, unless the law prohibits it; with the censured one, which responds to the need to prescribe the operating modalities of a specific entity, it is instead provided that the Foundation operates on the basis of common law, without leaving room for an alternative.

More specifically, Article 1(1-bis) of Law No. 241 of 1990 expresses the traditional principle of administrative law whereby the public administration, in general terms, enjoys private law capacity and regulates its non-authoritative acts by channeling them into common law forms, albeit with the very broad exception constituted by cases where the law provides to the contrary. This is, therefore, a provision directed at the entire bulk of the public administration, specifying its operating modalities in general terms (authorized in private law forms for non-authoritative acts), while maintaining that, from time to time, the law may establish different ones.

With Article 2(2) of Decree-Law No. 16 of 2020, as converted, instead, the actions of a public administration are not governed, given that, peacefully, the Foundation is not one, and it is therefore (as a common law subject and not as regulated by Article 1(1-bis) of Law No. 241 of 1990) physiologically destined to act *iure privatorum*. Nor does the norm just cited have the function (proper, instead, of Article 1(1-bis) of Law No. 241 of 1990) of introducing a maximum criterion, the validity of which must, however, be verified from time to time in light of individual legislative provisions. On the contrary, Article 2(2) of Decree-Law No. 16 of 2020, as converted, fulfills the task, consonant with a legislative recognition intervention of a legal subject, of indicating, with reference to a specific and particular case, as well as in a prescriptive and mandatory form, what operating modalities are permitted to the Foundation, and which consequently must be considered precluded.

In imposing, therefore, that the Foundation act "under a private law regime” (with a provision that otherwise would have been entirely superfluous given the legal nature of the entity), the legislature, following up on the will emerged during the parliamentary preparatory works, did not limit itself to establishing the private nature of the Foundation, but objectively excluded that it can operate with public law acts. And this precisely in order to allow it faster action in the tender sector, exempting it from open tender procedures.

12.5.– It is not hereby intended to deny that the circumstance that the Foundation is a private law subject is in itself entirely neutral, as regards the attribution of the quality of a body governed by public law, pursuant to Article 2(4) of Directive 2014/24/EU and Article 1(1)(e)(1) of Annex I.1 of Legislative Decree No. 36 of 2023. These norms are limited, in fact, to requiring, for this profile, that the body have "legal personality,” possibly also of common law, and this Court has already recognized "at the legislative level the compatibility of the notion of a body governed by public law with the private legal form of the entity” (judgment no. 153 of 2011).

It is not, in other words, doubtful that even a private legal person can and must subject itself to public tender regulations when calling tenders, whenever the regulatory prerequisites exist in order to recognize its character as a body governed by public law.

However, it is precisely starting from this assumption that already the 2020 legislature and, even more explicitly, the 2024 one, evidently on the basis of the idea (the legitimacy of which is not currently under discussion) that the Foundation did not fall within this latter notion, wanted to dispel any doubt. In restricting the actions of the Foundation to the private law regime, Article 2(2) of Decree-Law No. 16 of 2020, as converted, cannot therefore have had any other meaning than excluding the nature of a body governed by public law of the entity, with the consequent inapplicability of public law forms.

12.6.– It follows that the censured Article 11 of Decree-Law No. 76 of 2024, as converted, where, in paragraph 1, it interpreted the first norm to mean that the activities of the Foundation "are not governed by public law rules” and that "the Foundation does not hold the qualification of a body governed by public law,” merely reinforces the meaning already integrally proper to Article 2(2) of Decree-Law No. 16 of 2020, as converted, in the face of circumstances that had called it into question, such as the ANAC fact-finding proceeding initiated in 2024, the object of which concerns precisely the nature of the Foundation as a body governed by public law, and such as the very initiative of the Public Prosecutor’s Office of Milan, from which the proceedings *a quo* originated.

Nor would there have been any way to "bend” in an interpretive way, whether constitutionally or EU-law oriented, Article 2(2) of Decree-Law No. 16 of 2020, as converted, to a different meaning, in the face of the unequivocal wording of the norm, as read in the regulatory context in which it is inserted.

13.– The erroneousness of the interpretive premise, on the basis of which the referring judge conferred normative meaning to the interpreted provision, entails, in the present case, the inadmissibility of all the raised questions.

Even should this Court declare the constitutional illegitimacy of the censured provision, the referring judge would equally have to apply a norm of identical scope, namely Article 2(2) of Decree-Law No. 16 of 2020, as converted.

Furthermore, once the erroneous interpretive premise is identified and it is thus clarified that the censured provision has the same meaning as the one subject to authentic interpretation, the reasoning path to be followed for the purposes of the decision would not change significantly either (*ex plurimis*, judgments no. 158 of 2025, no. 135 of 2024, and no. 164 of 2023). In any case, the *judge a quo* could not fail to consider that the conduct ascribed to the investigated persons was committed while regulations excluding recourse to public tenders were in force.

14.– Ultimately, all the censures of constitutional legitimacy raised are inadmissible because they are based on an erroneous reconstruction of the regulatory framework which results in an erroneous or incomplete identification of the object of the questions, with absorption of the further exceptions of inadmissibility proposed by the parties.

on those grounds

THE CONSTITUTIONAL COURT

declares inadmissible the questions of constitutional legitimacy concerning Article 11 of Decree-Law No. 76 of 11 June 2024 (Urgent provisions for post-disaster reconstruction, civil protection interventions, and the holding of major international events), converted, with amendments, into Law No. 111 of 8 August 2024, raised, with reference to Articles 3, 77, 11, and 117, first paragraph, of the Constitution, the latter in relation to Article 2(1)(4) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, and to Articles 2, 9, 15, and 30 of the United Nations Convention against Corruption, adopted by the UN General Assembly on 31 October 2003, ratified and made enforceable by Law No. 116 of 3 August 2009, by the Judge for Preliminary Investigations at the Ordinary Court of Milan, by means of the order indicated in the headnote.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 23 June 2026.

Signed:

Giovanni AMOROSO, President

Francesco Saverio MARINI, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on 16 July 2026

 

The anonymized version conforms in its text to the original