La natura relazionale della responsabilità «pre-provvedimentale» della Pubblica amministrazione. Autorità e affidamento

The writing is a comment on a decision of the Italian Supreme Court, in plenary session, about public authority’s precontractual liability (n. 615/2021). It follows other recent judgements, always related to an unfair behaviour of a public entity, by which the so-called culpa in contrahendo does not have extra-contractual nature anymore. It is, on the opposite, governed by the rules of breach of contract. This is since in case of an administrative procedure, as it happens in the other types of precontractual liability, the private party and the public authority are no strangers to one another, but they are linked by a specific legal relationship. And it is not an issue that there is no a contract, because “contractual” liability qualification, as many Italian and foreign authors have clarified, does not refer only to the contractual obligations, but also to any case of obligation, also the ones arise from the good faith. However, the writing points out that the involvement of a public entity makes some differences. First of all, the goal of an administrative procedure is not a contract, as it is in case of private negotiations. But above all public entities, thanks to their status, have a discretionary power related to the administrative action wider than the one of private parties. This means that this power has to be rightly used even more than between private negotiations, and the public authority precontractual liability’s does not concern the administrative action validity, but the procedure before it. It is not by a chance that in the case in front of the Court, the administrative action was not even issued. That is mainly why the authors speak of “pre-action” liability instead of precontractual one, and they highlight the peculiarity of public body’s duties of protection, relating it to damages, as well.