Administrative, Contract, Jurisdiction, Compensation for damages, Pre-contractual liability, Tar Milano section III, 12 October 2018 n. 2267

Of the bidder who involved the contracting authority in unnecessary negotiations, Jurisdiction ordinary judge, pre-contractual liability of the bidder

Liability pursuant to articles 1337, 1338, 2043 c.c.

The claim for damages filed by the Administration, claiming the pre-contractual responsibility of the private for the damages suffered as a consequence of the involvement in negotiations proved useless – having participated in a tender without checking, as well as elements that had already to be known or knowable, the possibility of contractually engaging – falls outside the jurisdiction of the court seised, falling within that of the ordinary judge (1).

(1) It has clarified the Tar that the attraction of the compensation protection before the administrative judge can occur only if the damage suffered by the person acting against the public administration is immediate and direct consequence of the deduced illegitimacy of the provision that challenged (Cass. civ., SU, ordd No. 17586 of 4 September 2015, 12799 of 22 May 2017, 1654 of 23 January 2018).

With the recent ordinance of the Civil Sections of September 24, 2018, n. 22435, then, the Supreme Court reiterated that “it is outside the administrative jurisdiction if a complex case is raised in which the issue of a favorable provision, which is subsequently annulled as illegitimate, is configured only as one of the assumptions of the compensation action that is also based on the ability of the measure to determine the entrustment of the interested party and the damage of his assets resulting from this assignment and the subsequent fall in the favorable provision “.

Of particular importance is the further observation, carried out in the order 242435, regarding the matters attributed to the exclusive jurisdiction of the GA, with respect to which it is stated that “the line of discrimine remains between compensatory actions dependent on the illegitimacy of the act and actions for damages deriving from the assignment deriving from the behavior of the public administration, while it remains irrelevant whether such behavior is more or less directly connected to the exercise of the activity belonging to the sector of exclusive competence.

In the second case, the injured party denounces not the injury of his legitimate pretension interest but rather that of his patrimonial integrity derived from the blameless entrustment on the legitimacy of the favorable attribution, then declined.

It is therefore emphasized in this hypothesis not only the injured situation, which however refers to a subjective right and not to a legitimate interest, but also the very nature of the harmful behavior that does not consist so much and exclusively in the illegitimacy of the action of the p.a. but rather in the violation of the general principle of neminem laedere “.

Even earlier, in relation to specific cases, such as the one in question, on a claim for damages made by the Administration against a private individual as pre-contractual responsibility, based on the breach of obligations of good faith and correctness and on the absence of a provision to be enforced, the Supreme Court had affirmed its attraction in the jurisdiction of the AGO (Court of Cassation, S.U., 4 July 2017, No. 16419).

In a similar sense, moreover, the administrative jurisprudence was also expressed on the assumption that the exclusive administrative jurisdiction, as clarified by the Constitutional Court in sentence no. 204/2004, finds “its limitation and its justification in situations characterized by the exercise of a public power in which the intertwining of legitimate interests and subjective rights makes it difficult to identify the competent jurisdictional plexus from time to time”, so ‘Administration’ claims to be damaged by a behavior carried out by private individuals, without any inherent in a public power “the jurisdiction in favor of the ordinary judge must be declined (Tar Toscana, section I, 12 May 2011, No. 818).

Source Administrative Justice