Abstract

This work studies set-aside and other potential reserve mechanisms in favor of SMEs and their compatibility with European and national legal framework and with the position taken by jurisprudence. The European legislator allows and supports mechanisms to «encourage, strengthen, facilitate» the participation of SMEs in the awarding of public contracts, while the jurisprudence invokes the principle of favor partecipationis for SMEs as a tool to ensure full competition. The picture that emerges reveals the need to overcome the SME friendly procurement mechanism by adopting positive action tools, which are now also compatible with the approach of the Italian Constitutional Court. In this perspective, the paper suggests an intervention by the ANAC Guidelines or by a revision of the Public Contracts Code.