Administrative and Ordinary Jurisdiction, Contract, public services, ordinary jurisdiction, moment of establishment of said legal relationship of common law to become the watershed between the two jurisdictions, as the first act belonging to the ordinary, within which it falls under the discipline art. 1321 c.c. and segg, Civil Cassation, Sec. Un., Judgment n. 895 of 16/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

appeal against sentence no. 5356/2015 of the COUNCIL OF STATE, filed on 25/11/2015.

BELIEVED IN FACT

The … … appealed to the T.a.r. Lombardia exposing to have participated in a race banned by … …. for contracting of n. 2 lots “for the realization of the connections of the network … … of the city of Milan”, of which it was awarded temporary because of the discount offered, although the communication of the Contracting Authority of 12.03.2015 declared the final award, but the subordinated to the verification of the requirements of the successful tenderer, as required by the lex specialis.

Activated each procedure to be able to sign the contract in the peremptory terms provided for by art. 11, paragraph 9, D.Lgvo n. 163 of 2006 and delivered as a matter of urgency, pending the expiry of the term, the contracting authority did not provide to call the contractor for the stipulation of the contract, so with notice of July 14, 2015, notified the client the dissolution from any restriction, withdrawal that was rejected by … .., with communication of 21.07.2015, considering the completion of the contract by the signing by … of the final award notice of 12.03.2015, assuming that it would have evaluated the possibility to proceed with the termination of the contract due to non-fulfillment of the successful bidder.

Against this act, as well as those presupposed and consequential, it arose, the ….., asking for the annulment, in addition to compensation for damages. Pronunciandosi nell’instaurato contradictory with the … .., that in constituting – raised the lack of jurisdiction of the g.a. – insisted in considering the agreement stipulated in the form of private writing by signing the final award notice, the address T.a.r., with a short sentence no. …. of 2015, declared inadmissible the appeal for lack of jurisdiction of the court seised, considering the jurisdiction of the ordinary judge to exist.

The sentence was appealed … … proposing again the question of the violation of art. 11, paragraphs 7 and 9, Legislative Decree n. 163 of 2006, in addition to excess power, the Council of State, in the resistance of … .., with sentence no. 5356 of 2015 rejected the appeal, stating that in this case it must be considered that the contract had been concluded in the form of private writing, a form expressly permitted by art. 11, paragraph 13, of the code of public contracts, since the contracting authority had sent to …. a note called a definitive letter of award with a series of elements concerning the essential content of the contract, returned by the applicant signed for approval and acceptance; furthermore, he noted that the report of 14.05.2015 did not show that the delivery of the works had taken place urgently and in advance of the stipulation of the contract, a circumstance which – conversely – had to be expressly indicated pursuant to the combined provisions of Arts. 153, paragraph 4, and 154, paragraph 3, of the D.P.R. n. 207 of 2010, a circumstance that therefore confirmed the thesis of the conclusion of the contract before such fulfillment.

Adverse this ruling recurs to the Supreme Court …. with a single and complex motif, to which he replies with a counter-reply …..

Near the public hearing both sides deposited illustrative memory.

CONSIDERED IN LAW

The objection of inadmissibility of the appeal raised by the … .. resistant pursuant to art. 362 c.p.c .. It should be premised that indeed the appeal in question must be considered as proposed pursuant to art. 362 of the Italian Civil Code, paragraph 1 (rule providing for the appeal for reasons relating to the jurisdiction proposed against the decisions – able to appeal or in one degree – by a special judge) and not pursuant to art. 360 c.p.c., n. 1, the law invoked by the appellant and concerning the different cases of appeal on grounds relating to the jurisdiction proposed against the judgments pronounced (able to appeal or to a single degree) by the ordinary judge. In fact, the appeal, proposed not for violation or false application of legal provisions pursuant to art. 360 c.p.c., paragraph 1, n. 1, but for reasons relating to jurisdiction, pursuant to art. 362 of the Code of Civil Procedure, should not necessarily indicate in its header the rules violated or erroneously applied by the special judge, the deduction, in the motivation part, of the principles relating to the jurisdiction of the administrative judge and the criteria of division of jurisdiction of which report misgovernment, an indication that in the species is not lacking, resulting also accompanied by the reference to regulatory sources, with indication of relevant articles, invoked in support of their thesis (see in the same sense, Cass. Section No. 9690 of 2013).

Coming to the examination of the only ground of appeal, the applicant, reaffirming the thesis already submitted to the administrative courts, in particular the grounds of appeal disregarded by the Council of State, insists that in the present case the dispute would be subtracted from the jurisdiction of the ordinary judge and would fall within the exclusive jurisdiction of the administrative judge, because involving a situation in which the final contract of the award procedure had not yet been concluded, can not be given prominence in this regard to the communication of 12.03.2015, limited only to formalize the ‘award of the tender to …, in order to which it was necessary to produce the necessary documentation (such as insurance policies) in order to be able to conclude the contract, in compliance with the provisions of the “Contract Scheme” which is part of the tender documentation. Moreover – the appellant continues – the final award announcement was subject to the positive outcome of the checks in relation to what was declared by the tenderer during the tender. The reason is manifestly unfounded, by contrasting with principles repeatedly affirmed by these Joint Sections and now consolidated, which the State Council correctly complied with in the contested judgment, and not by putting forward suitable arguments to give rise to changes in jurisprudence in this regard.

The Constitutional Court in sentence no. 204 of 2004, with which he declared the Legislative Decree n. 80 of 1998, art. 33, as implemented by Law n. 2005 of 2000, art. 7, noted that the reference of the provision to a subject – that of public services – from the borders not completely delimited, and above all the reference to all the controversies that fall within this sector, makes it clear that the matter thus identified totally ignores the nature of the situations subjective involvement, rooting the exclusive jurisdiction on the purely objective data of the normal involvement in such disputes of the general public interest that is naturally present in the sector of public services: and thus overwhelming the necessary relationship of species to gender that the art. 103 of the Constitution postulates as ordinary discrimine between the jurisdictions, when it contemplates the matters subject to the exclusive jurisdiction of the administrative judge, with particular respect to those in which the public administration acts as authority.

He then specified that the necessary connection of the subjects subject to exclusive jurisdiction with the nature of subjective situations, expressed in art. 103 of the Constitution, from their particular qualification to those conferred to the general jurisdiction of legitimacy, implies that the matters entrusted to the aforementioned jurisdiction must necessarily participate in the same nature – marked by the action of the public administration as authority, against which it is granted protection of the subjective rights of the citizen before the administrative judge – of those devolved to the general jurisdiction of legitimacy.

After the declaration of partial unconstitutionality of the law, hermeneutical doubts about the possible extension of exclusive jurisdiction, which can be established or expanded, for the needs of concentration of protection, to prevent the multiplication of judgments, and in any case to guarantee fullness of protection, are no longer acceptable. to the citizen through a single judgment, only under the conditions indicated by the Consulta, that is to say the positions of subjective right asserted are placed in an area of ​​relationships in which the public administration acts through authoritative powers, or uses the faculty recognized by the law of adopt negotiating instruments instead of authorizing powers pursuant to Law n. 241 of 1990, art. 11.

This in the activity of private law occurs only in the phase of the formation of his will, as well as the choice of private contractor, which is not free, but winds through a series of procedural acts characterized by the exercise of discretionary and binding powers, which normally start with the determination to contract and end (in the works or services contract, which is of interest here) with the signing of the contract – which became necessary after the reform introduced with the DPR n. 163 of 2006 – with consequent implicit exclusion of the cognition of all the acts following its conclusion (see Cass. Section No. 1142 of 2007, Court of Cassation Section No. 9601 of 2006, Court of Cassation Section No. 4508 of 2006, Cass. Section No. 13296 of 2005).

In fact, following the multiplication of the community contracts and the influence of the relative directives, as well as the increase in increasingly specialized and complex works, the need arose to modify the previous system, inducing the contracting stations to separate the the awarding of the works from that of stipulation of the contract, identifying exclusively in it the establishment of the relationship (see Cassation Section No. 16514 of 2017, but already Cass. Section No. 5217 of 2011).

The modification of the previous system was completed only by the D.P.R. n. 163 of 2006, for which (article 11) said separation became the rule that “the final awarding is not equivalent to acceptance of the offer.

The offer of the successful bidder is irrevocable until the deadline established in paragraph 9. “The law then regulates the terms and conditions for the conclusion of the contract, and the related events, which, however, unlike those of the award, for the as a new hypothesis of exclusive jurisdiction has been introduced, they remain assigned to ordinary jurisdiction.

The exclusive jurisdiction, configured for the procedures of public evidence aimed at finding the contractor in the contracts for works, services and supplies, leads, in fact, to the identification of an area in which legitimate interests and subjective rights in correlation with one another are in the field. (Court of Justice No. 204 of 2004).

It is precisely the exercise of the authoritative power that makes it possible to configure that particular matter prefigured by the constituents in the intertwining of private rights, on the one hand, and the interests and powers of the PA, on the other (Court of First Instance no. 25516 of 2016).

In other words, it is only the part that in any case affects the exercise of administrative power that can be legitimately devolved to the exclusive jurisdiction of the TAR – State Council, where disputes should remain in the civil jurisdiction whenever there is no connection between private rights and public interests / powers, since in this second phase, although strictly connected with the previous one, and consequential to it, which begins immediately after the meeting of the will of the parties and continues with all the events in which its execution is articulated, the contracting parties – public administration and private sector – are in a joint position and their respective subjective situations are characterized by the character, respectively, of subjective rights and legal obligations according to the positions taken in concrete terms.

So it is precisely the moment of establishment of this legal relationship of common law to become the watershed between the two jurisdictions, as the first act belonging to the ordinary, in which it falls under the discipline set by art. 1321 c.c. and later; and that therefore, includes not only the positive one on the requirements (Article 1325 cc and following) and the effects (Article 1372 of the Civil Code), but also the whole spectrum of pathologies and ineffective negotiation, be they inherent to the structure of the contract, whether they are extraneous and / or occurred.

The set of principles outlined above applies to the present case, in which the action taken by the applicant company aimed at ascertaining the alleged failure to conclude the contract, based on the interpretation of the application in the light of the c.d. “substantial petitum” does not relate to the publicity phase of the tender procedure, but to the implementation phase following the award of the contract in its favor: the applicant company, in fact, claims that the contract has not been signed, although it does not dispute received from … an act, defined as a “final letter of award”, containing all the elements concerning the essential content of the contract, which was sent by the same addressee, after signing, to the sender / proposer, with the wording “acceptance” of) contract. Moreover, it must be taken into account – as explained above – that art. 11 of the D.P.R. n. 163 of 2006 establishes the principle of irrevocability of the offer of the successful tenderer until the deadline established in paragraph 9.

It follows that the question of the alleged failure to complete the contract is based on the merits of the claim proposed by the applicant company, for which the jurisdiction of the ordinary judge must be correctly identified.

The Court rejects the appeal.

Source Supreme Court of Cassation