While it is true that the outcome of a tendering procedure can only be appealed by the economic operator who has taken part in it, this general rule can be derogated from if the economic operator directly challenges the clauses of the tender notice, assuming that they are immediately exclusionary.

The immediate exclusionary nature for the purposes of the immediate appeal has been reasonably identified in all those hypotheses that have in common the fact that they macroscopically prevent, or make it extremely and unnecessarily difficult for an economic operator to formulate a correct, adequate and informed offer, thus representing a concrete and effective infringement of the legitimate interest of the company to compete with other economic operators for the award of a public tender.

Where the invitation to tender is so uncertain that it is not possible to make an informed offer, there is a right and interest in the appeal by the economic operator who did not take part in the tendering procedure.