L’esecuzione dei contratti pubblici, tra responsabilità dell’amministrazione e questioni di giurisdizione

Abstract

The article undertakes an examination of the performance stage of public contracts, bringing to light a number of structural shortcomings. It proceeds from the premise that this phase is characterised by a substantial curtailment of contractual autonomy, owing to the administration’s exercise of unilateral prerogatives. Against this backdrop, the essay emphasises the inherent difficulty of subjecting the entirety of the relevant discipline to the Civil Code framework—an operation that has significant repercussions for the allocation of jurisdiction and that gives rise to substantial interpretative uncertainties concerning the identification of the court competent to adjudicate such disputes. This issue intersects with the question of the public administration’s liability during the performance of the contract, which again renders problematic the delineation of jurisdictional boundaries. Accordingly, albeit de iure condendo, it may be appropriate to consider extending the administrative courts exclusive jurisdiction to cover the performance stage of public contracts as well, thereby ensuring more straightforward access to judicial protection.