Osservazioni a margine della giurisprudenza nuova in materia di responsabilità civile della pubblica amministrazione

Subject matter of the present study is the responsibility of public administration with regard to private citizens, whose intent of obtaining an authorization or concession from State or other public entities has been frustrated by them through an act contrary to law. Similarly the question regards cases in which an individual right has been restricted or subtracted to a citizen by an illegitimate public provision. Before 1999 courts did not recognize recovery to the party suffering damages. After a decision of the Cassation in that year, case law has changed and damages have been awarded according to the following principle: damage should be consequence of an infringement of a legitimate interest as well as violation of a concrete “good of life". Subsequent decisions tried to single out what this “good of life” is like. The analysis provided for in the present study clarifies that it is nothing else than damages, the true loss consequential to violation of the legitimate interest, that has always constituted a necessary element in cases of tortious liability. The study deals also with the question of nature of liability, namely whether it is contractual or extracontractual. Finally it faces the problem of whether avoidance of the illegitimate act be or not a precondition of the action.