Giandomenico Comporti

The Liability of the Public Administration between Negligence and Damages: The Difficult Search for a Filter

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The work focuses on different approaches to the containment of claims for compensation for damages, following the developments in administrative law. The idea is not new: already in the latter half of the 1980s civil law experts were asking themselves about the future of civil liability after a period of incessant broadening of the sphere of damages subject to claims for compensation. But the matter is treated systematically, which is to say as an invitation to the doctrine to assume the role of 'director' of the scene to make it understood to the judge what are the logical procedures to be followed, and what are the necessary pauses for ensuring the certainty of law. The significance attributed to the same idea by public law idea appears different, where jurisprudence is mainly committed to limiting rulings against public administrations. Here containment appears understood not as an operation of theoretical organization of the problems underlying practical cases, but merely as an accountancy practice aimed at cutting potential costs born by the public treasury. In this sense the analysis highlights how the administrative judge is inclined to utilize liability as a residual and subsidiary protective technique to be resorted to only in the event of failure of the (reinvigorated) release potentialities proper to the traditional action of annulment, the transitory effects of which go so far as to touch on matters of negotiation, as in the case of public contracts/franchises.

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