News article 3 mins read

Statement on Italian litigation concerning mutual recognition under the EA MLA

UKAS has received notice of its successful intervention in proceedings before the Italian Council of State concerning the continuing validity of UKAS-accredited certifications under the EA MLA following the UK’s withdrawal from the European Union.[1]

This case concerned UKAS’s opposition (“Opposizione di terzo“) to the 21 April 2023 judgment of the Italian Council of State (see our statement on the judgment) and an intervention ad adiuvandum in the appeal proceedings started by an Italian construction company (“Maiorana Costruzioni“) against the decision of 12 July 2023 of the first instance Italian administrative court (“TAR Lazio“) , both of which related to the validity of certifications provided by Conformity Assessment Bodies (“CABs“) accredited by UKAS and relied upon in the context of a public procurement process in Italy.

The Court found in favour of Maiorana Costruzioni, supported by UKAS’s intervention and annulled the prior decision of TAR Lazio. The Council of State is expected to deliver its decision on UKAS’s opposition to the 21 April 2023 decision in due course. However, in view of this decision, the outcome of these proceedings will be irrelevant to the subject matter at issue.

The judgment confirmed the position as UKAS always understood it to be, namely, that UKAS has equivalence with the National Accreditation Bodies of EU member states on account of UKAS’s status as a signatory of the EA MLA and successful completion of the “peer evaluation” process under EU Regulation 765/2008.

The decision of the Court therefore means that, in the context of public procurement in Italy:

  1. The UK’s withdrawal from the European Union has no impact on the validity of certificates issued by CABs accredited by UKAS; and
  2. Certifications issued by CABs that are accredited by UKAS are equivalent to certifications issued by CABs accredited by the National Accreditation Bodies of EU Member States.

The Council of State confirmed that this position was consistent with Article 87 of the Italian Public Procurement Code which was in force until March 31, 2023 and equivalence could be accepted on this basis.

Going forward, it is expected that, also as a result of the Council of State decision, the position in Italy will be further clarified by the introduction of the new Italian Public Procurement Code on April 1, 2023, including Article 100 and Annex II.12 which confirm the equivalence of certifications issued by UKAS-accredited Conformity Assessment Bodies for use in public procurement processes in Italy.[2]

The Council of State did not consider it necessary to remit the case to ECJ (as requested by UKAS, in case there were doubts on the interpretation of Regulation 765/2008) since “the correct interpretation of Union law is so clear that it leaves no room for reasonable doubt”.

For these reasons, it is expected that the issue in Italy should not arise again and certificates issued by UKAS-accredited Conformity Assessment Bodies should be recognised in the context of public procurement going forward.

UKAS’s position regarding the validity of UKAS accreditation in the European Union post-Brexit under the EA MLA remains as set out (here).


[1] The European Co-Operation for Accreditation Multilateral Agreement.

[2] In addition to Annex II.8, Annex II.12 (article 4) and Annex II.7 (article 35).