La tutela risarcitoria in materia di appalti pubblici: tra novità normative e assestamenti giurisprudenziali

In this essay, after an examination of the regulatory framework about compensation claims on public contracts (art. 124 Code of Administrative Process), we will focus on some important and recent judgments on the liability for unlawful procedures for the award of public contracts. The study outlines a particularly aggravated liability. On the one hand, the Court of Justice of the European Union clearly declares that the liability for the violation of rules on the procedures for the award of public contracts must leave out of consideration the guilt requisite, thus turning it into an objective liability. On the other hand, the Court of Cassation recognises the possibility to compensation for damages also to the enterprises to which unlawful procedures for the award of public contracts have been annulled, since the P.A. has violated the general behaviour duties, such as skilfulness, prudence, diligence, as well as correctness, advancing that in such cases the sphere of jurisdiction lies with ordinary courts. However, the legal assessment of the Supreme Court on jurisdiction cannot be shared, since – without considering the rest – it seems that an irreconcilable contrast occurs with the rules of the Code of Administrative Process on exclusive jurisdiction of the administrative courts and compensation for damage. [...]