Just over a year ago, the Piedmont Regional Council passed a law 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 ruled that the preference for Free Software is legitimate and complies with the principle of freedom of competition.
The reasoning given by the Constitutional Court is interesting:
The Court 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”. Furthermore, 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'.
As the Italian Associaation for Free Software notes:
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'.
This is an important result, and not just for Italy: it establishes a line of reasoning that could be applied in other jurisdictions.
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