Administrative, Public Administration Contracts, Judicial Protection on the Request for Price Revision, Cons. St., sect. III, 22 June 2018, n. 3827
The judicial request concerning the price revision of a contract must be defined, on the procedural level, according to a biphasic type of investigation, aimed first at ascertaining the conditions for the recognition of the revisory fee – an aspect for which it is permitted the appeal judgment referred to the authoritative act of the PA and to his surrogate constituted by the silent rejection; and only at a time after the verification of the quantum debeatur, according to mechanisms specific to the protection of the positions of subjective right; it follows that any provision expressed or tacit that, by entering the first phase, expressly denies the revision or does not follow the contractor’s request, involves positions of legitimate interest and as such must be challenged in terms of the rite, regardless of the reasons on which base the denial position is assumed (1).
(1) The Section has clarified that the price revision institute acts according to a procedural model aimed at carrying out an activity of prior verification of the conditions necessary for the recognition of the revisory fee, to which the exercise of a power is subtended. technical-discretionary authoritative vis-à-vis the private contractor.
Consequently, the position of the latter is divided into the ownership of a legitimate interest with reference to the claimant and possibly in a situation of subjective right only with regard to matters involving the entity of the claim, once resolved in a positive sense the recognition of the amount of the revisable fee (Cons. St., section IV, 6 August 2014, No. 4207, id, Section V, January 24, 2013, No. 465, August 3, 2012, No. 4444; Cass.civ., SS.UU., 30 October 2014, No. 23067, No. 15 March 2011, No. 6016, Id January 12, 2011, No. 511, July 12, 2010, No. 16285).
The described procedural scheme also implies that the private contractor, in relation to the exercise of this power, can only avail itself of the remedies and typical forms of protection of legitimate interests, and therefore with instruments of an appealing nature that can be experienced in traditional decadent terms (Cons St., section III, 18 December 2015, No. 5779, January 9th 2017, No. 25).
The consistency of legitimate interest of the protected subjective situation does not change for the provision of a hypothesis of exclusive jurisdiction for matters relating to “the price revision clause and the related application provision” as well as “to the application measures of the price adjustment pursuant to ‘art. 133, paragraphs 3 and 4 “of Legislative Decree no. 163 of 2006.
It is clear, in fact, that the exclusive cognition of the administrative judge necessarily presupposes the competition for certain matters of situations of legitimate interest and of subjective right to the effects of judicial protection, which the legislator solves with the identification of the competent judge, without affects the means of protection, which can be eliminated according to the nature of the injured subjective position.
In the different case in which the contract carries a specific clause that foresees the punctual obligation of the Administration to give rise to the revision of the prices: in such hypothesis, the request submitted to the examination of the judge, resolving itself in a mere pretension of contractual fulfillment, it can not but be understood as a time to ascertain the existence of a subjective right, as such given to the knowledge of the ordinary judge (Cass.civ., SS.UU., 13 July 2015, No. 14559, id. 20 April 2017, No. 9965).
In the case, on the contrary, of denunciation of the nullity of the limitative clauses contained in the announcement and in the special conditions, which is instrumental to the exclusion of the operability of the contractual provisions, consequently access to an area marked by the exercise of public powers.
On the other hand, the nullity of the contractual clauses that exclude the revision of the fee – if it can originate the heterointegration of the competition discipline with the imperative rules violated, pursuant to articles. 1339 and 1419 cc. – does not show, however, any reflection on the characterization in terms of provisional activity that the administration is required by a review request is required to perform in the verification phase of the relevant assumptions; nor can the plan of the invalidity of the determinations made in this sense be confused with that of the powerlessness to assume them.
In other words, the administration is fully invested, in the abstract and in practice, with the power to verify the conditions of the review, so that the acts adopted by it, apart from any possible illegitimacy, can not be considered offended by any limit of nullity.
The authoritative qualification of the power to verify the conditions for the recognition of the price revision involves – in hypothesis of inert conduct of the compulsory administration – the need to make use of the remedies provided to protect the legitimate interest in the form of silence – refusal consequent to formal request (Cons. St., Section V, 24 January 2013, No. 465).
This conclusion is a consequence of the consideration that the subjective right to price revision does not derive directly from the law, but must be recognized in an administrative procedure, as is clear from the fact that art. 115 of the aforementioned Code of Contracts refers to an investigation conducted by the executives responsible for the acquisition of goods and services and, therefore, to a proceduralized activity, which can be started on the part of the party.
Source Administrative Justice
