Administrative, Non-contractual Liability of the Administration, Council of State, Section VII, Judgment n. 3094 of 03/27/2023
Civil liability – Damages in administrative matters – Compensation for damages – Prerequisites
The liability of the public administration for the illegitimate exercise of the public law function is of a non-contractual nature, since it cannot, in fact, be configured as a mandatory relationship in the context of an administrative procedure because:
in the administrative procedure, unlike the compulsory relationship, there are two active situations, i.e. the power of the public administration and the legitimate interest of the private individual;
the relationship between the parties is not equal, but one of supremacy of the administration.
Compensation can be recognized if the illegitimate exercise of administrative power has harmed an asset in the life of the private individual, which the latter would have been entitled to maintain or obtain, according to the dichotomy of legitimate opposition and claim interests and in the light of their substantive dimension. (1)
Civil liability – Damages in administrative matters – Compensation for damages – Conditions – Proof burden on the injured party
It is therefore up to the injured party to provide proof of all the constituent elements of the compensation case to the court, having to prove:
on an objective level, the presence of an illegitimate provision causing unjust damage, with the need to distinguish the harmful event, deriving from the conduct, which coincides with the injury or compromise of a qualified and differentiated interest, worthy of protection in the life of report, and the consequent pecuniary or non-pecuniary damage arising, susceptible to reparation by way of compensation;
on a subjective level, the integration of the coefficient of guilt, with the clarification that the unjustified or illegitimate inaction of the administration or the delayed exercise of the administrative function do not integrate the fault of the Administration.
(1) Conforming precedents: Ad. plen., 23 April 2021, no. 7; Cons. State, section V, 31 July 2012, n. 4337; T.a.r. for Lazio, section III, Judgment n. 11808/2014; T.a.r. for Campania, section III, 2 March 2018, n. 1350; T.a.r. for Campania, section I, 25 September 2017 no. 4483; Ad. plen., 3 December 2008, n. 13; Cons. State, section II, 20 May 2019, no. 3217; Cons. State, section IV, 27 April 2021, no. 3398; Cons. State, section IV, 2 March 2020, n. 1496, idem section IV, 6 July 2020, n. 4338; idem, section IV, 27 February 2020, n. 1437.
Different precedents: Cons. State, section VI, 4 July 2012, n. 3897; Cons. State, section VI, 30 December 2014, n. 6421; Cons. State, section VI, 14 March 2005, no. 1047; Cons. State, section VI, 10 December 2015, n. 5611; T.a.r. for Lombardy, section II, 5 March 2018, no. 617; T.a.r. for Lombardy, section III, 6 April 2016 n. 650.
Source Administrative Justice
