L’ annullamento dell’aggiudicazione, in sede giurisdizionale e in autotutela, e la sorte del contratto pubblico

Abstract

The paper aims to assess the link between the invalidation of the act of award of a public procurement, by a judge or by the public administration itself applying a second degree self-defence power, and the procurement contract already signed.

As a result of an analysis of the doctrinal and case-law framework, the author suggests a text-based interpretation of the category of the ineffectiveness of the public procurement contract, pursuant to articles 121-125 of the italian administrative procedure code and according to the european Directive 66/2007/CE.

Indeed, the provisions of the european Directive 66/2007, of the Legislative Decree n. 53/2010 and of the articles 121-125 of the italian administrative procedure code, according also with the opinion of the italian State Council, underline the need of an accurate application of the ineffectiveness of the contract, as an autonomous category of the italian legal system, refusing to apply the different categories of nullity or voidability, which does not appear to fit properly in this matter .

Furthermore, it has been analyzed the particular feature of the syndicate made by the judge in order to the declare the effectiveness of the contract, concluding that it can be classified as a judgement in point of legitimacy and not in point of merit.

The paper also provides a specific consideration on the theme of the invalidation in exercise of the self-defence power by the public administration, with specific regard to the particular impact of an unilateral discretionary second-degree power on a bilateral act, such as the contract, which bonds both the public and the private parties.

The mentioned theme of the effects of the exercise of a public second degree power on the contract gives rise also to specific questions with the regard to the declaration of ineffectiveness, which, even in this case, has to be made only by the judge and not by the procuring entity, according to the recalled provisions of law.