Le condizioni dell'azione nel rito in materia di contratti pubblici

Locus standi and interest in acting in the judicial review of public contracts procedures. The essay deals with the conditions that allow applicants, in the administrative judicial review of public contracts, to obtain a ruling on the merits of their case. Italian law requires that applications against administrative deeds, including awards of public tenders, must be brought by subjects which both hold: a) legal standing, based on a specific right or legitimate interest (interesse legittimo) related to the cause and granted by law; b) interest in acting: a personal, present and concrete interest in the judicial review of the deed; he or she should gain an effective advantage from the favourable decision of the suit. If the plaintiff fails to prove one of the conditions his application will be ruled inadmissible. Recent case-law of the European Court of Justice in cases Fastweb and Puligienica overturns these requirements. The ECJ affirms that it is sufficient to embody a concrete interest that, in the case, it “cannot be ruled out” that, based on the partial annulment, the contracting authority shall rethink its decision and withdraw the entire procedure, although it has not been contested in the application. Such an interest – which can be called an instrumental interest – is hardly present or concrete and seems to be basically useless. Indeed, such a notion reveals feathered edges and is totally unfit to select between useful and useless applications, given that every application could easily fulfil the hypothetic conception of interest set by the Court. Moreover, the study proves that the instrumental interest also erase the first requirement of admissibility – the legal standing. In fact, a tenderer whose bid has been definitively excluded has no specific right regarding the tender. His position should be legally and substantially assimilated to the ordinary player’s that had not submitted a bid. Applications with no substantial right of individuals to be ensured and no practical interest of the applicant should be considered admissible only in the frame of a so called objective jurisdiction. An objective jurisdiction is set mainly to protect public interests rather than individual rights. Some authors claim that the Italian Constitution prohibits an administrative judicial review of objective content (set for public interests). Conversely, the article proves that such a jurisdiction is entirely consistent with both constitutional provisions and the Italian system of administrative justice. On the other hand, the essay focuses on the recent reform of the law of public contracts that modified the Code of administrative procedure. New article 120 of the Code provides that tenderers need to contest promptly every legal breach regarding admission to the procedure of other contestants. Shall they fail to do so, they will lose the right to challenge that part of the procedure later on. The article demonstrates that the application against other tenderers’ admission bears sufficient interest in the proceedings. The successful applicant will have less competitors in the subsequent evaluation of tenders. This mere fact increases the applicant’s chance of being awarded the contract. Such interest must be considered stronger than the instrumental interest and consistent with legislative provisions about locus standi and legal interest in acting.