Administrative, Damages compensation – Contracts of the Public Administration – Non-contractual liability – Art. 2043 – Theory of hypothetical alternative causality – Configurability – Limits, Cons. St., sez V, 11 January 2018 n. 118, Contrast of jurisprudence – Remission to the Plenary Meeting

Compensation for damages – Contracts of the Public Administration – Compensation from loss of chance – Awarding without tender – Business in the sector – Compensation for damages – Contrast of jurisprudence – Removal at the Plenary Meeting

At the Plenary Meeting the compensation for damages in case of award of the contract without tender

With regard to civil liability, in particular regarding non-contractual liability pursuant to art. 2043 c.c., in whose paradigm the responsibility of the Public Administration for provisional illegitimacy can be classified, the c.d. hypothetical alternative causality theory is relevant only in relation to the omissive offenses, for which it is necessary to establish whether the damaging event would not have occurred if the allegedly responsible had put in place the proper conduct imposed on them; the same theory is deprived of its presupposition with respect to unlawful commissions, such as those deriving from the adoption of illegal administrative measures, in relation to which the assessment of the judge must determine whether the administrative acts constituted the cause of the alleged damage, and therefore if they constitute the unlawful act that is a source of responsibility under the general clause of art. 2043 c.c. (1).

The question whether, in the case of direct assignment, without a tender, of a contract, compensation for damages resulting from loss of chance to a competing company which would have been able to compete as an operator of the contract, should be referred to the Plenary Meeting of the Council of State. economic sector (2).

(1) He clarified the High Assembly that is according to the theory of hypothetical alternative causality where it is shown that the alleged damage would have occurred due to a causal sequence different and independent from that actually occurred, the same would not be compensable for effect of the latter.

He also pointed out that the administrative case law is constant in affirming that the claim for damages must be rejected once the legitimacy of the contested act has been ascertained, because the requirement of injustice damage is essential, essential to integrate the liability case pursuant to art. 2043 c.c .. It is inferred, on the contrary, that once the illegitimacy of the act has been ascertained, it is not possible for the administration to escape the charge of civil liability by invoking alleged provisional alternatives; even less when they can configure further reasons for the illegality of the same act. In fact, in this hypothesis there would be a split in the relationship of necessary consequentiality between the judgment of legitimacy on the administrative provision object of the application for annulment and the remedy of compensation for damages “for the detriment of legitimate interests”, whose cognition is devolved to the general jurisdiction legitimacy of the administrative judge (article 7, paragraph 4, cpa).

(2) The Plenary Assembly has clarified that on this point there is a contrast between pronunciations adhering to the theory of ontological chance and those that instead opt for the etiological chance.

According to a first guideline (section III, 9 February 2016 No. 559; V section, 1 October 2015 No. 4592) the compensation for the chance, given the non-call for tenders, is conditional on the proof of a significant degree of probability of achieving the good of life denied by the administration due to illegitimate acts.

Other decisions (Section V, 1 August 2016 No. 3450, Id April 8, 2014, No. 1672, No. 2 November 2011 No. 5837) have, instead, recognized in similar circumstances, non-call for tenders, compensation of the chance presented by the company of the sector. This is based on the observation that, in the event of failure to comply with the requirements of public evidence (or publicity and transparency), it is not possible to formulate a prognosis on the outcome of a comparative procedure that has never been carried out and that this impossibility can not be reduced to damage of the injured party from the other illegitimacy, so the chance that the same subject is the bearer must be restored in its objective consistency, regardless of the probabilistic check on the hypothetical outcome of the race.

The discriminating between the two opposing configurations focuses on the importance to be attributed to the possibility of achieving the good of illegitimately deprived life by the administration and, in particular, on the degree of statistical probability: which factor affects the quantification of the compensable damage in the first case and on the same as the compensation in the second.

In other words, within the dichotomy of compensable damages pursuant to art. 1223 cc, the theory of ontological chance configures this juridical position as an emerging damage, that is as a juridical asset already present in the patrimony of the injured party, the lesion of which determines a loss susceptible of autonomous assessment on the compensatory plan.

The etiological theory, on the other hand, intends to damage the chance as a violation of a right not yet acquired in the subject’s assets, but potentially attainable, with a high degree of probability, statistically at least 50%. It is therefore a loss of profit.

Source Administrative Justice