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A landmark decision of the Italian Constitutional Court: granting preference to free software is lawful

[IT] [EN] [FR] [ES]

Just over a year ago, the Piedmont Regional Council passed a law1 which states: "... the Region, in the process of choosing computer programs to acquire, prefers free software and programs whose source code can be inspected by the licensee" (Article 6, paragraph 2).

This choice was welcomed with enthusiasm by Free Software supporters and civil society, while the Presidency of the Italian Council of Minister contested this law, by referring to the Constitutional Court in order to declare it unlawful.

On March the 23rd, 2010, the Court ruled2 that the preference for Free Software is legitimate and complies with the principle of freedom of competition.

The Region3 points out: "It is not understandable how the the choice of a Public institution with regard to a feature, and not a product ... can be deemed as a breach of antitrust law”. Later on4, the Court clarifies that “The concepts of Free Software and software whose code can be inspected do not refer to a particular technology, brand or product, but they rather express a legal feature".

In short, according to the Court, favoring Free Software does not infringe freedom of competition, since software freedom is a general legal feature, and not a technological aspect connected to a specific product or brand. This ruling demonstrates the weakness of the arguments of those who, until now, have opposed the adoption of rules aimed at promoting and favoring Free Software arguing that they conflict with the principle of "technological neutrality".

Assoli

Associazione per il Software Libero (Assoli) is a non-profit organization established in the year 2000 to promote freedom in the use of computer programs and to defend the rights of Free Software users.
To achieve its goals, the Association promotes the development and use of Free Software in the Public Administration, schools, public and private companies, and in all domains of society.
In recent years the Association has performed some campaigns as well as legal proceedings, and it has interacted with the Public Administration to promote public policies in favour of Free Software.

Contacts
web: http://www.softwarelibero.it
email: info@softwarelibero.it
Phone: (+39) 06 99291342
Fax: (+39) 06 83391642

Notes

  1. Law of the Piedmont Region n. 9 of the 26th of March 2009 (in Italian)
  2. Judgement of the Italian Constitutional Court n. 122 of the 23rd of March 2010 (in Italian)
  3. Corrected deleting the word "Court" and adding the word "Region"
  4. Corrected deleting the word "Furthermore" and adding the words "Later on"