Code of Public Contracts, Project financing, Elimination of the entire procedure and claims for damages, Council of State in court, Section Fifth, Judgment of 18 January 2017, no. 207

Judgment of the State Council issued for reform of the judgment of T.A.R. Campania Naples Section I, no. 3347/2015, concerning compensation for damages resulting from the elimination of the whole project financing procedure.
With regard to project financing, it is recalled by the case law of the Council of State: once public property has been declared a public works proposal and therefore identifed as a private promoter, the Administration is not obliged to undertake the ‘reliance on the relative concession, since:
(a) that choice constitutes a typical and prevalent manifestation of administrative discretion involving extensive assessments of the existence of a public interest in the realization of the work, which can not be made compulsory in the context of the legality of is held in an administrative court (State Secretary, III, March 20, 2014, No. 1365, also see Cons. State, III, 4026, July 30, 2013, May 28, 2013, No. 2838, May 6, 2013, No. 2418);
(b) the advantageous position gained by the public interest declaration occurs only within the tender once the decision to entrust the concession has been taken (No State, V, 21 June 2016, No 4177).
As to the civil liability claimed, it follows that even after the public interest statement of the work did not constitute a distinct, special and autonomous pre-contractual relationship, concerned by pre-contractual liability, that the administration then proceeded to finance the procedure of the project. The administrative assessment of the ongoing relevance of the public interest to the realization of the work continues to be immanent. It is in fact to consider, up to date, the actuality and convenience of the realization, without conditioning, even from any previous and informal contacts, aimed at the elaboration of “proposals for the execution of public works or works of public utility” by the promoter (Article 153 of Legislative Decree No. 163 of 2006).
It also follows that in the elaboration and consequent presentation of the project and accessories there is, on the part of the promoter, an awareness of the risk that the proposed will not be considered in accordance with the public interest and therefore indeed to be realized (see Cons. State, III, March 20, 2014, No. 1365, cit.).
In the present case, the appellants did not even formally obtain the position of a financial promoter, remaining only potential competitors in relation to the third stage of the custody procedure, and the two prime companies in the private bid were admitted together with the fnancial promoter. Therefore, the position of the financial promoter can not be equated to them, since they are merely competing.
Moreover, consistent with non-contested measures, they can not validly demonstrate that the third stage would certainly have seen them as winners because of the lack of subjective requirements for all other participants in the third stage of the procedure.
In this regard, it should be recalled that the jurisprudence of this State Council has stated that the p. it can not be ordered to compensate for damages even for pre-contractual liability, as no violation of the duty of negotiating fairness is attributed to the Administration’s conduct in the event that it has never given rise to the slightest reliance on the consolidation of a pre-contractual position to the typical one of the promoter (Cons. State, III, March 20, 2014, No. 1365, cit.).

Administrative Justice Source