The problem of liability models: considerations on the nature of damages for injury to legitimate interests

Abstract

The affirmation of compensation for damages for injury to legitimate interests and the subsequent attribution of the power of condemnation to the administrative judge have posed the problem of identifying the liability model to be applied in the case of unlawful action by public authorities. On the one hand, Article 30 c.p.a. establishes some of the essential elements of the case, but without providing, like the Civil Code, an organic system of protection. On the other hand, the ambiguous interventions of jurisprudence, while being aware of the diversity of the legal situations of legitimate interest and subjective right, seem to anchor the discipline of administrative law to that of extra-contractual tort. Therefore, it will be intended to analyze benefits and problematic issues related to the use of civil-law-derived liability models (extra-contractual and contractual, the latter also mitigated in light of the theory of qualified social contact) in order to assess the possibility of an autonomous public law liability.