Potere di riesame ed attività negoziale della p.a. La difficile convivenza tra autotutela interna ed esterna nei contratti pubblici

Abstract

This thesis is determined to analyse relationships between administrative self-protection and agreement activity of p.a., giving act of a deep evolution. It has interested both phenomena. Topic is not new about the doctrinal and law debate, but it becomes following some normative reforms during these next years. They activate a tension between appearing institutes to distinct sector of the ordinance and ruled from different reasons, modifying separately the discipline of self-protection and public agreements. By a side, the self-protection places, typical expression of authoritative and unilateral powers, attributed to p.a. in force of its peculiar administrative procedure; by the other side, the agreement stands out. It is a paradigmatic model of interest management on equal relationship base and consensual too. The dialogue between two institutes is difficult and eclectic and it is perfectively on the hybridism that implies the modern administrative right: this last registers a tendency to the progressive “contractualisation”, always changing more and more some civil instruments for the persecution of public interest. The tendency is clearly expressed by art. 1 paragraph 1 bis 1.n. 241/90. It legitimates and incentivizes p.a. negotiable activities, promoting the substitution of authoritative measure with conventional particular cases, where it is possible. (art. 11 l.n. 241/90). The problem here posed, concerns the definition of position concretively taken on p.a. in negotiable dynamic, owing itself to establish if the dismantlement of the publicist role can be said whole, or if vice versa, some faculties and some authoritative powers endure also after stipulation of the agreement. Among these, it is fundamental to understand if the Administration maintains its own power of reviewed on the framework of ruled interests from the agreement or, at the opposite, if negotiable agreement marks the definitive sunset of self-protection faculty. These lasts, on his side, suffer a bipartition at the moment that it approaches to the agreement, having to be distinguished between indoor and outdoor protection to him: in those faculties of private nature, the first category gets back. They are exceptionally attributed to the law or to the title to one of contractors and, they do not represent some prerogatives reserved only to p.a.; at the second those publicist immanent powers belong to the administrative function. Generally they compete to the Administration (artt. 21 quinquies e 21 nonies l. n. 241/90). Faculties of private self-protection persist certainly also after the stipulation of the agreement, founding on itself as some forms of reaction to the non-fulfilment or to other diseases. On the contrary, it asks if the Administration could continue to practice his own powers of current affairs publicist self-protection to remedy to a framework. It becomes contrasting with public interest, or if otherwise, the faculty of revocation and cancelled of office result to be absorbed from negotiable stipulation. The sensation is that at the moment when the administrative action draws up through some civil models, it cannot be considered to apply the private discipline slavishly, because p.a. never denies his whole authority, justified by pursued interests. It re-emerges with variable intensity, determining a series of peculiarity and some prerogatives which make the Administration an “atypical “contractor. However, the answer cannot be univocal and general, waited the heterogeneity of negotiable activity of p.a.: in fact, public agreements pull out in some categories of “agreements of public right” (or “to public object”), some “agreements of special right”, some “agreements of common right”. The classification describes a growing dismissing of authoritative role of p.a.. It becomes maximum for agreements of common right, where the public contractor acts in conditions of substantial equality with private. For this typology of agreements, there is no doubt on the fact that they do not remain some spaces for a self-protection of publicist type, since it treats conventions held by a private pure logic. At the opposite, the administrative self-protection stays exercisable against some agreements of public right. They participate to the same publicist nature of measure. They substitute or integrate (as some forms here confirmed by prevailing law that assimilates the withdrawal of the art. 11 paragraph 4 l. N. 241/90 to the revocation ex art. 21 quinquies l. n. 241/90). Many perplexities arise instead in relation with agreements of special right, where some moments of a public power exercise discern without that the whole negotiable dynamic permeates. It remains ruled from the private discipline. First of all, public procurements get back in this category. It is a sector where it warns this tension between public interest of p.a. to the re-exam of the relationship and that private for the indissolubility of constraint with a major concern. Signally, it treats to establish if the procuring entity could be free from a contrasting agreement with public interests using the authoritative instruments of self-protection, or if it is obliged to exercise the faculty of withdrawal, expressively previewed by the law and by the agreement. The qualifier problem poses also ex post, because from the renewal of dissolution act to the public or private sphere descends a different system of legitimacy conditions, as well as a different allotment of jurisdiction. The examination leaves from a common normative date, represented by the art. 32 paragraph 8 d.lgs. n.50/2016 (that, in an equal part, reproduces the previously art. 11 paragraph 7 d.lgs. n. 163/2006), where expressively it saves powers of self-protection also after the definitive award in implementation, then to proceed separately in relation to the circumstances of withdrawal and cancelation of office. The diversity of supposition between two forms of public self-protection excludes an unitary solution, waited also the different relation with the institute of cancelation, re-known in favour of p.a. by the old art. 134 d.lgs. n. 163/2006 (and today by the art. 109 of Procurement Code). This norm founds a power of indoor self-protection to the agreement of contract, which owns itself in terms of speciality being re-known only in favour of the Administration and with different characteristics from the cancelation in contracts of common right, regulated by civil code. The cancelation ex art. 134 d.lgs. n. 163/2006 (now art. 109 Procurement Code), detaches infect from the model of civil code and it is retouched in a sense the most favourable to the Administration, lightening the economic burden for its exercise: the indemnity for stopping profit is forfeited just to the maximum of ten per cent of not followed tasks, and the commiseration of emerging damage is limited to the value of useful materials existing in the building site, without considering that the payment of these done works. The exercise of the faculty of cancelation is on course, preventing the obligation of notice to the contractor, in a place of absence about each procedural guarantee in the art. 1671 c.c. Here is well that the cancelation ex art. 134 d.lgs n. 163/2006 represents a perfect hybrid between the private right of the art. 1671 c.c., and public power of the art. 21 quinquies l.n. 241/90. Respect to revocation, cancelation presents certainly simplified to procedural level, not being brought with some participative guarantees. They fascinate the self-protection procedure, but it is more demanding under the economic profile, since the compensation ex art. 21 quinquies has limited to the only emerging damage and it does not cover either its loss of profit in a flat-rate way. For this reason, it has to recognise to the p.a the power to exercise the revocation of award and it means, of fact, to offer it a more convenient way to dissolve itself by the agreement, carrying a major vulnus to the private expectancies. Nevertheless, the administrative law has preached longer the stay of revocation power for the adjudication also after the stipulation of the agreement, so considering a not removed faculty from the prevention of withdrawal right. Otherwise, the ordinary law is always posed in a not favourable way to the admission of a power of revocation able to influence on this stipulated agreement, reiterating the clear separation between two phases where the negotiable activity of p.a. unravels. The agreement represents the point of no return of publicist agere of Administration , and, once lasted, it points irretrievable the entrance in a phase dominated by private rules, where the authoritative self-protection cannot find its space. Plenary Assembly, intervened with sentence of 20th June 2014 n. 14, collocates only in part on this trail, declaring that once intervened the stipulation of the agreement for the confidence of procurement of public works, the Administration cannot exercise power of revocation having to operate with the exercise of right of revocation. The solution of Plenary Assembly profiles of strict visions referring exclusively to the agreements of procurements in works, without losing the position on a wider relationship between publicist self-protection and agreement; the dichotomy between revocation and cancelation is solved on the base of a mere competition appearing of laws. It looks to prevail special dispositions of the art. 134 d.lgs.n. 163/2006, mentioned for only procurements of works. It is because it cannot extend the expressed principle to other typologies of public agreements. The partiality of furnished answer from the Plenary Assembly is so surpassed by the legislator that, in the new art. 109 d.lgs. n. 50/2016, extends the discipline on the revocation also to agreements of services and deliveries. Well it sounds to have been able to draw the conclusion that p.a., after the stipulation of each agreement of public procurement, to manage some possible timings and to dissolve from the contractual link become inappropriate. It could not exercise power of revocation ex art. 21 quinquies l. n. 241/90, but it is obliged to action the cancelation of the art. 109 of Public Procurements Code. To similar conclusions it cannot achieve in relation to the cancellation of office. The cancelation ex art. 21 nonies l.n. 241/90 in fact does not vehicle a valuation of inopportunity of the recalled act, but it tends to remedy the illegitimacy of the same, removing him from the ordinance. Behind, there is not a factor of occurred inconvenience, but the stigmatisation of original opposition of the act respect to public interests, and it justifies his retroactive effect. The link that the annulment presents with the exigencies of legality of administrative action has made that the doctrine and law would see to it with less perplexity respect to revocation, also if it was near the contractual phenomena. This is why the prevalent orienting, humiliated also to the same Plenary Assembly in sentence n. 14 of 20th June 2014, retains that general power of office cancelling could be exercised legitimately also with reference to the administrative acts constituting the prerequisite of an agreement about private right, stipulated successively to the same, considered that, in this case self protection has for object not the agreement but some measures adopted during the course of prodrome procedural passage to the relative stipulation. Instead, posed problem concerns fates of agreement, from the moment that d.lgs. n. 53/2010 has introduced a calibrated discipline only the hypothesis of law cancelling. Some orientations try to extend the pathology of “soft ineffectiveness” also to the agreement after the cancellation in self-protection of award; others, propose again the theory of invalidity derived to short-living effect, considering the agreement automatically dissolved after the determination in self-protection of p.a. It is an approach that does not convince of all, giving the opportunity to the adjudicating entity a power of unilateral incision on the agreement wider than that re-known at the same administrative judge. It is collided with the exigencies of maintaining about relationship. They are subtended to the reform in 2010. It appears so preferable to qualify again the auto- cancellation of the adjudication to the case of a contractual pathology. It should be known by the natural judge of agreement according to the scheme of distribution tracked from the ordinary law. Sharing how it is expressed by Unit Sections of 14th May 2015 n. 9861, it cannot deny that cancelling in self-protection always represents a fact concerning the expense of an authoritative power, even if the accident on an intermediate relationship from the agreement; it follows the opportunity to entrench the law nearby the administrative judge, because this coming in relief is not an eventual vice of the agreement, known by the ordinary judge, but a profile of illegitimacy that infects the publicist procedure just at the beginning. To a normative level, the cancelling of office strengthens, for some characteristics, by d.lgs. n. 50/2016, that to the art. 211 paragraph 2. It covers a power of ANAC recommendation, appropriate to urge self-protection by adjudicating station. It is a power sui generis, or a new form of outdoor self-protection to the agreement and heteronymous, it is more attributable to the function of control than to the typical activity of re-exam. In the opposite sense, so, it registers a parallel legislative violation of the institute in its general discipline ex art. 21 nonies l.n. 241/90, all portended to limit it. In fact, l.n. 124/2015, for the first time introduced a precise term, equal to eighteen months, for the exercise of office cancelling that affects on some attributive acts of advantages for private, between them the adjudication can be considered. Furthermore, the art. 1 paragraph 136 of l.n. 311/2004 was abolished and it was disciplined the denying of acts. They affect on negotiable facts. It represented the keystone to admit the later self-protection, other than the stipulation of the agreement. The scenery of relationships between publicist self-protection presents, definitively, full of contradictions and in a continue changing; the efforts of law to give equilibration and coherence to the system risk to be continuously undermined by rhapsodically interventions of legislator. They make the furnished solutions inevitably precarious. [edited by author]