N.1917/2009 Reg Dec.
REPUBBLICAITALIANA
IN THE NAME OF THE ITALIAN PEOPLE
The Council of State in the courts (Section Four) gives the following
DECISION
on the appeal in writing to the proposed NRG 4301/2004 da NAPOLI Roberto, rappresentato e difeso dagli avvocati Antonio Campagnola e Francesco Rossi ed elettivamente domiciliato presso il loro studio in Roma, via Lutezia 8;
contro
Presidenza del Consiglio dei Ministri, CESIS, SISDE, in persona del Presidente in carica e dei rispettivi legali rappresentanti, rappresentati e difesi dall'Avvocatura generale dello Stato presso la quale sono per legge domiciliati in Roma, Via dei Portoghesi n. 12;
per l'annullamento
della sentenza del Tribunale Amministrativo Regionale per il Lazio – Roma, sez. I , n. 7078 del 2003.
Visto il ricorso in appello;
visto l'atto di costituzione in giudizio dell’Amministrazione respondent;
considering the pleadings submitted by the parties in support of their defenses;
seen all the acts of the case;
date to read the public hearing on January 13, 2009 the report of the Armando Wells and heard, the parties, lawyers Antonio State lawyer Campagnola Ferrante;
held in fact and law considered in the following: FACT
Visto il ricorso in appello;
visto l'atto di costituzione in giudizio dell’Amministrazione respondent;
considering the pleadings submitted by the parties in support of their defenses;
seen all the acts of the case;
date to read the public hearing on January 13, 2009 the report of the Armando Wells and heard, the parties, lawyers Antonio State lawyer Campagnola Ferrante;
held in fact and law considered in the following: FACT
Today appellant on October 1, 1982 was passing by the Carabinieri, with the rank of Lieutenant, employed of SISDE - Presidency of the Council of Ministers, with classification in its role, playing for over ten years of investigations into of departments.
With Prime Minister's September 29, 1993 was transferred to other government departments, art. 6 lett. b) No DPCM 7 of 1980.
The expulsion of the appellant to that, concealed a punitive purpose, it was in fact required by a note dated 19.7.1993, the Director pro tempore of SISDE, following a negative assessment on the professional and personal qualities of Naples and not on the basis of service needs.
only after having read the acts of the Administration, which could justify a departure from the Service of Naples, he has challenged the administration to another passage from SISDE the TAR of Lazio, which judgment no 3261/1998 dismissed the appeal inadmissible for decadenziale time limit. That decision was confirmed by the Council of State Decision 2742/2000.
Subsequently, the Naples appealed to the Labour Court to obtain compensation for moral damages, to human relationships, biological, professionalism, suffered as a result dell'ingiustificato transfer.
The employment tribunal dismissed the application holding its lack of jurisdiction because the crime was perpetrated at a date before June 30, 1998, a time limit established pursuant to Legislative Decree. No 80/1998 for the passage of disputes in public employment by the administrative courts to the ordinary courts. Following the ruling
Judge of Labor today appellant relies on the same compensation claims before the TAR of Lazio, which, however, appealed the ruling here, said the appeal inadmissible on the basis of the decision of dissolving the relationship dell'inoppugnabilità employed by the SISDE proposability and not a claim for damages independently.
sentence no appeals against Napoli 7078/2003 of the TAR of Lazio, for the following reasons, which was not entrusted to the typical formulas of the administrative process.
A) TAR has made unlawful the application of the institution of administrative ruling on the false assumption that controvertesse a legitimate interest, where but the dispute was referring to a position of personal right in the management of employment in the employ of SISDE, namely, the law office that substantiates the claim not to be arbitrarily removed from office except in cases expressly provided by law, and the right to function, consisting of the right to exercise the duties related to their qualifications, without demeaning the professionalism.
Napoli have suffered an unfair abuse of those rights, at the request of removal based on alleged lack of moral and professional qualities, however, denied earlier by the commendable career and without such a negative evaluation was preceded by elements of education.
the contrary, as evident from the documents produced in the first instance, the Administration has tried to artificially justify the transfer of the appellant as a result of the investigations on the professionalism and reliability of belonging to the Services ordered by the President of the Council of Ministers response to the emergency situation has arisen in the wake of the incidents the bombs in Milan, Rome and Florence.
However, Naples has been removed from the office well before the completion of those investigations, however, ended with a very positive evaluation professionalism of the applicant, deemed worthy of being part of the body of safety.
It 'true that the Administration has tried to rectify the inconsistencies mentioned, including through the establishment of a Commission of Inquiry by the Ministry of Interior with the task of shedding light on the criteria used in order to carry out the removal of SISDE staff, but the work of that committee have raised the profiles of inconsistencies and contradictions, having made reference to a non-existent report on 30.6.1993.
From the nature of subjective right of the positions put forward in court, follows the error in point of law motivazione della sentenza, la quale, sul presupposto della riconducibilità dell’illecito della P.A. nella giurisdizione amministrativa, ha ritenuto applicabili le regole che sono peculiari di tale giurisdizione, cioè la necessaria impugnazione del provvedimento arrecante il danno nei termini decadenziali.
Da una lettura costituzionalmente orientata dell’art. 7 della legge n. 205/2000 discenderebbe, invece, che l’esperibilità dell’azione risarcitoria, ancorché siano decorsi i termini decadenziali e nonostante l’intervenuta inoppugnabilità del provvedimento, lungi dal determinare una situazione di incertezza, rappresenta al contrario l’unico strumento di adeguato e giusto contemperamento dell’interesse pubblico all’intangibilità dell’agire amministrativo con l’interesse del privato a non subire ingiusti sacrifici della propria sfera giuridica.
Ciò, del resto, risulterebbe confermato dalla prevalente giurisprudenza di legittimità, secondo cui resta avvalorata una connotazione della tutela risarcitoria invocabile al giudice a prescindere dall’annullamento - quale misura minore rispetto alla rimozione dell’atto - che è ben più impegnativa per l’amministrazione che non la tutela riparatoria, attesa la diversità di presupposti, e quindi la reciproca non interferenza, tra le vicende risarcitoria e demolitoria.
B) Ulteriore vizio della sentenza sarebbe costituito dall’errata premessa that the administrative decision was not challenged in time, become so undeniable, even to be considered legitimate in all respects, with the result that, even in the face of the injury suffered by the recipient of the same measure, is considered to preclude the remedies of the damages.
According to this misconception, therefore, the protection reintegratoria for damages resulting from actions taken by the PA can not be relied upon if not by way of consequential than the protection of the proceedings of its legitimacy, since the unlawful exercise of the function would affect a situation of legitimate interest and not the individual right to claim within a period of sixty days, after which the measure accused of illegality but not eliminated, now for that very intangible, can not be considered legitimate and inappropriate to base any claim. This parallelism between
administrative act conclusively and legitimate act according to the applicant would not find any legal basis, because while the inopposability detects only a procedural standpoint, on the contrary, the concept of legitimacy relates to the fact. So, while the illegitimate exercise of the function is likely to harm a situation of legitimate interest, determining ownership of shares of legitimacy, on the other lato, ben può ravvisarsi un pregiudizio a situazioni qualificabili in termini di diritto soggettivo distinte e non consequenziali all’interesse legittimo, configurandosi così una autonoma e specifica azione risarcitoria.
L’appellante aggiunge un ulteriore rilievo in ordine alla sentenza impugnata.
Condizionare il diritto al risarcimento del danno ingiusto arrecato al ricorrente dall’attività provvedimentale posta in essere dall’Amministrazione, che ha inciso sul diritto soggettivo perfetto del Napoli a non vedere compromessa e svilita la propria professionalità e la propria reputazione, al previo e non più consentito annullamento dell’atto di allontanamento, equivale a negare tutela giurisdizionale al ricorrente con conseguente violazione degli artt. 2, 24 e 111 della Costituzione.
Si è costituita la Presidenza del Consiglio dei Ministri che, con memoria, deduce l'infondatezza del gravame in fatto e diritto.
La causa è passata in decisione all’udienza pubblica del 13 gennaio 2009.
With Prime Minister's September 29, 1993 was transferred to other government departments, art. 6 lett. b) No DPCM 7 of 1980.
The expulsion of the appellant to that, concealed a punitive purpose, it was in fact required by a note dated 19.7.1993, the Director pro tempore of SISDE, following a negative assessment on the professional and personal qualities of Naples and not on the basis of service needs.
only after having read the acts of the Administration, which could justify a departure from the Service of Naples, he has challenged the administration to another passage from SISDE the TAR of Lazio, which judgment no 3261/1998 dismissed the appeal inadmissible for decadenziale time limit. That decision was confirmed by the Council of State Decision 2742/2000.
Subsequently, the Naples appealed to the Labour Court to obtain compensation for moral damages, to human relationships, biological, professionalism, suffered as a result dell'ingiustificato transfer.
The employment tribunal dismissed the application holding its lack of jurisdiction because the crime was perpetrated at a date before June 30, 1998, a time limit established pursuant to Legislative Decree. No 80/1998 for the passage of disputes in public employment by the administrative courts to the ordinary courts. Following the ruling
Judge of Labor today appellant relies on the same compensation claims before the TAR of Lazio, which, however, appealed the ruling here, said the appeal inadmissible on the basis of the decision of dissolving the relationship dell'inoppugnabilità employed by the SISDE proposability and not a claim for damages independently.
sentence no appeals against Napoli 7078/2003 of the TAR of Lazio, for the following reasons, which was not entrusted to the typical formulas of the administrative process.
A) TAR has made unlawful the application of the institution of administrative ruling on the false assumption that controvertesse a legitimate interest, where but the dispute was referring to a position of personal right in the management of employment in the employ of SISDE, namely, the law office that substantiates the claim not to be arbitrarily removed from office except in cases expressly provided by law, and the right to function, consisting of the right to exercise the duties related to their qualifications, without demeaning the professionalism.
Napoli have suffered an unfair abuse of those rights, at the request of removal based on alleged lack of moral and professional qualities, however, denied earlier by the commendable career and without such a negative evaluation was preceded by elements of education.
the contrary, as evident from the documents produced in the first instance, the Administration has tried to artificially justify the transfer of the appellant as a result of the investigations on the professionalism and reliability of belonging to the Services ordered by the President of the Council of Ministers response to the emergency situation has arisen in the wake of the incidents the bombs in Milan, Rome and Florence.
However, Naples has been removed from the office well before the completion of those investigations, however, ended with a very positive evaluation professionalism of the applicant, deemed worthy of being part of the body of safety.
It 'true that the Administration has tried to rectify the inconsistencies mentioned, including through the establishment of a Commission of Inquiry by the Ministry of Interior with the task of shedding light on the criteria used in order to carry out the removal of SISDE staff, but the work of that committee have raised the profiles of inconsistencies and contradictions, having made reference to a non-existent report on 30.6.1993.
From the nature of subjective right of the positions put forward in court, follows the error in point of law motivazione della sentenza, la quale, sul presupposto della riconducibilità dell’illecito della P.A. nella giurisdizione amministrativa, ha ritenuto applicabili le regole che sono peculiari di tale giurisdizione, cioè la necessaria impugnazione del provvedimento arrecante il danno nei termini decadenziali.
Da una lettura costituzionalmente orientata dell’art. 7 della legge n. 205/2000 discenderebbe, invece, che l’esperibilità dell’azione risarcitoria, ancorché siano decorsi i termini decadenziali e nonostante l’intervenuta inoppugnabilità del provvedimento, lungi dal determinare una situazione di incertezza, rappresenta al contrario l’unico strumento di adeguato e giusto contemperamento dell’interesse pubblico all’intangibilità dell’agire amministrativo con l’interesse del privato a non subire ingiusti sacrifici della propria sfera giuridica.
Ciò, del resto, risulterebbe confermato dalla prevalente giurisprudenza di legittimità, secondo cui resta avvalorata una connotazione della tutela risarcitoria invocabile al giudice a prescindere dall’annullamento - quale misura minore rispetto alla rimozione dell’atto - che è ben più impegnativa per l’amministrazione che non la tutela riparatoria, attesa la diversità di presupposti, e quindi la reciproca non interferenza, tra le vicende risarcitoria e demolitoria.
B) Ulteriore vizio della sentenza sarebbe costituito dall’errata premessa that the administrative decision was not challenged in time, become so undeniable, even to be considered legitimate in all respects, with the result that, even in the face of the injury suffered by the recipient of the same measure, is considered to preclude the remedies of the damages.
According to this misconception, therefore, the protection reintegratoria for damages resulting from actions taken by the PA can not be relied upon if not by way of consequential than the protection of the proceedings of its legitimacy, since the unlawful exercise of the function would affect a situation of legitimate interest and not the individual right to claim within a period of sixty days, after which the measure accused of illegality but not eliminated, now for that very intangible, can not be considered legitimate and inappropriate to base any claim. This parallelism between
administrative act conclusively and legitimate act according to the applicant would not find any legal basis, because while the inopposability detects only a procedural standpoint, on the contrary, the concept of legitimacy relates to the fact. So, while the illegitimate exercise of the function is likely to harm a situation of legitimate interest, determining ownership of shares of legitimacy, on the other lato, ben può ravvisarsi un pregiudizio a situazioni qualificabili in termini di diritto soggettivo distinte e non consequenziali all’interesse legittimo, configurandosi così una autonoma e specifica azione risarcitoria.
L’appellante aggiunge un ulteriore rilievo in ordine alla sentenza impugnata.
Condizionare il diritto al risarcimento del danno ingiusto arrecato al ricorrente dall’attività provvedimentale posta in essere dall’Amministrazione, che ha inciso sul diritto soggettivo perfetto del Napoli a non vedere compromessa e svilita la propria professionalità e la propria reputazione, al previo e non più consentito annullamento dell’atto di allontanamento, equivale a negare tutela giurisdizionale al ricorrente con conseguente violazione degli artt. 2, 24 e 111 della Costituzione.
Si è costituita la Presidenza del Consiglio dei Ministri che, con memoria, deduce l'infondatezza del gravame in fatto e diritto.
La causa è passata in decisione all’udienza pubblica del 13 gennaio 2009.
D I R I T T O
1 - Come già esposto in fatto, con la sentenza appellata il TAR Lazio ha dichiarato inammissibile la domanda di risarcimento del danno causato, a detta dell’appellante, alla propria sfera professionale, all’immagine nella vita di relazione ed alla sfera biologica, dal provvedimento del Presidente del Consiglio dei Ministri, su proposta del direttore del SISDE del 29.10.1993, transfer to another State Administration for official purposes. This, as the claimant introduced a judicial review which affects the legality of the determination to settle the relationship of employment with the same information service, trade union, as it involves the question of the legality of the act, because that was unacceptable ' now precluded investigation after the TAR, and the first Council of State, then, respectively, by judgments nos. 3261/1998 and 2742/2000 had declared inadmissible impugnatorio against the act of transfer to another administration taken on 29.10.1993, thus became final.
2 - The appeal is unfounded. The point of law
priority put forward before the Board is to assess the fairness of the sentence, where it has made use of the preliminary decision of the administrative institution.
The Board does not believe it, that he should depart from the principle of the existence of so-called ruling administration, said from meeting of the Plenary Council of State (State cons., Ad. Plen. No 12/2007) and by its own recent precedents specific ( Cons. State, VI, February 3, 2009. No. 587, June 19, 2008 No 3059) with which this Council in relation to contrary rulings by the Supreme Court (Court of Cassation, sez. a., 13 June 2006 No 13 659 and n . 13,660), has pointed out that the application of the principle of ruling does not order a foreclosure case to consider the merits of the claim for damages, but results in a negative outcome on the merits of the action for damages.
It follows that the claim for compensation arising from the contested decision is not (or belatedly contested, as in this case) is acceptable, but it's unfounded because the lack of appeal of the source of the damage that can act operate in a prescriptive rule dictating the case, allowing the production of its effects and requiring compliance with associates and thus prevents the damage that might be considered unfair or unlawful conduct of the Administration in the enforcement of the final.
The principle of the ruling is not based, therefore, the administrative judge of the impossibility to exercise the power of non-application, but the impossibility for any court to determine as a preliminary issue without force of res judicata and the illegality of the act, which constitutive element of the case of tort liability ex art. 2043. Civ., in essence, if the finding is precluded in the main street in compensatory damages in the trial because no experiments, or may not experience (as a result of res judicata, revocation, etc..), the specific remedies under the law to challenge the law in accordance with the same situation, the claim for damages must be rejected on the merits because the production of the damage done is unlikely to be qualified tort (see, Cass. Civ., II, 27 March 2003 No 4538).
The administrative ruling is therefore closely linked to the principle of legal certainty in public law, whose garrison is placed on short-term decadenziale of appeal of administrative decisions.
does not appear to endorse the opposite view, that the word decadenziale is irrelevant to the damages, it is a deadline in a short time to ensure the certainty of the inviolability provvedimentale the case, while the adjustment of interests would not be questioned only by an action for damages, in which the verification of the legality of the act is made in passing.
In fact, the overall structure of interest regulated by an act is not contested is also part of the economic component, which affects the damages and also in the presence of a judge's decision finding of a measure for the sole purpose examination of a claim for damages, the obligation to comply with court should imply the annulment of the illegitimate considered, resulting in avoidance of the term decadenziale.
Compared to the requirements of legal certainty in public law, where the short-term appeal is functional, compatibility is a difficult situation in which the private sector after remaining silent (in the sense that it had challenged the decision) after ' issuance of an administrative act which affects them adversely in the courts in the broader limitation period of five years, asking for damages.
objection that it is the same situation envisaged by art. 2043 cc interprivatistici relations, it can be replicated, showing that even in relation to the exercise of power in private law relationships and the disputing GO to the front of administrative acts, in many cases it is preferred that need for certainty with the imposition of time within which decadenziali right to challenge the compliance with certain legal situations, which will expire also precludes an action for damages is not allowed to ask for compensation damages for being unlawfully subjected to administrative sanction by an order of injunction was not challenged within the meaning of l. 689/81, the dismissed employee can not choose to opt for compensation, without challenging the termination as prescribed by l. 604/66; can not be claimed for damages in the absence of further appeal of condominium or corporate resolutions, which have been the source of the damage (for the latter see the art. 2377, paragraph 6, DC).
Moreover, Article. 7, third paragraph, of Law Tar provides that "The Regional Administrative Court, within its jurisdiction, he also knows all the issues relating to possible damages, including reinstatement specific performance, and other consequential economic rights.
Paragraph 5 of 'Art. 35 of Legislative Decree no. No 80/98 states that "are hereby repealed Article 13 of Law 19 February 1992, No 142, and any other rules should be devolved to an ordinary judge of disputes on compensation for damage resulting in the annulment of administrative acts. "
In both provisions the legislature, while not directly addressing the issue, described the issues related damages to an illegal measure, issues such as "consequential damages" from the cancellation of the latter, implicitly recognizing that compensation assumes not merely incidental finding of the act, but its cancellation.
The provision implies, namely, that, as noted above, the objective element in this case the offense is not the unlawful administrative act, but the official act canceled.
should finally be noted that the application of the principle of so-called administrative ruling does not restrict the courts. From
rulings of the Constitutional Court show that the compensation is an instrument of protection further than the classic demolition (and / or compliance), to be used to bring justice to the citizen against the government (Constitutional Court No 204 / 2004, No 191/2006).
The administrative measure infringes a substantial interest may be attacked on a impugnatoria for its demolition, and "consequential" damages by way, for its detrimental effects, becoming, in 'one and the other case, the question of its legitimacy, in the judgments of the Constitutional Court, there is no trace of any suspicion of unconstitutionality of such a design and, indeed, it seems easy to infer the contrary (see Cons. Member, Ad. plen. No 12/2007). Moreover, in those cases mentioned earlier in which the private law context of the exercise of powers is subject to terms decadenziali, the ordinary court has ever raised the issue of the constitutionality of the foreclosure action for damages even in cases where no objections in terms of decline.
In accordance with the direction the plenary session of the State Council shall, therefore, considered that the failure to timely appeal an administrative decision prevents illegal to consider the conduct of the PA and to obtain damages arising from that same act.
By applying this principle to the case, should be rejected (in substance) the claim for damages filed by the applicant at first instance.
3 - no different conclusion is reached even if it wants regardless of the administrative ruling, given that the 'action for damages is unfounded in practice.
And, indeed, be excluded that the legal situation triggered by the disputed administrative act may qualify as non-compliance with laws and establish the right to damages under Article 2043.
The investigation on the existence of the first in a logical and legal elements of the crime according to article 2043 Civil Code., Namely the assessment of the legality of an administrative act, clearly leads to negative results.
In this regard, aside the finding that the current appellant has not repeated here the specific objections to that decision at first instance, for which of them would be precluded any examination, is the decisive consideration that the disputed transfer is turning away from complaints put forward by today appellant and the original applicant.
As you know, the discipline of the equipment responsible for the security of the state must first comply with the fundamental and essential principle of confidentiality, can be deduced from the entire system of law contenuta nella legge n. 801 del 1977 e che è alla base della stessa costituzione del Comitato parlamentare di controllo, al quale soltanto il Presidente del Consiglio dei ministri e il Comitato interministeriale per le informazioni la sicurezza sono tenuti, ai sensi dell'articolo 11 della legge citata, a fornire informazioni, per altro limitatamente alle linee essenziali delle strutture e dell'attività svolta. Ora, proprio ai fini di consentire una piena assunzione di responsabilità per l'attività svolta dagli apparati preposti alla sicurezza dello Stato da parte del livello dirigenziale e del livello politico (Presidenza del Consiglio dei ministri, Comitato interministeriale, Comitato parlamentare di controllo), indispensabile contrappeso del principle of confidentiality in order to safeguard the constitutional principles of sound administration and impartially and in accordance with the relevant directive issued by the President of the Council of Ministers on July 30, 1985, pursuant to Article 1 of law No. 801 of 1977, the regulatory provisions governing the employment of staff of information must be interpreted and applied consistently with the trust and precarious nature essentially the same report, which may be unilaterally terminated by either party, respectively, at the request or initiative of its own motion, in order to facilitate the necessary rotations. From this point of the paragraph is justified 2 of Article 6 of the regulation adopted by Prime Ministerial Decree No. 7 of 1980, applicable to transfers of personnel employed directly by virtue of the reference in the article 9, that the return in the administrations of origin and transfer to another State Administration of staff of office information can be arranged for needs of service provision is largely discretionary, stating only that the order was adopted for this purpose.
4 - In conclusion, the appeal must be dismissed. The costs of the degree may be compensated for the right reasons ABSENCE
2 - The appeal is unfounded. The point of law
priority put forward before the Board is to assess the fairness of the sentence, where it has made use of the preliminary decision of the administrative institution.
The Board does not believe it, that he should depart from the principle of the existence of so-called ruling administration, said from meeting of the Plenary Council of State (State cons., Ad. Plen. No 12/2007) and by its own recent precedents specific ( Cons. State, VI, February 3, 2009. No. 587, June 19, 2008 No 3059) with which this Council in relation to contrary rulings by the Supreme Court (Court of Cassation, sez. a., 13 June 2006 No 13 659 and n . 13,660), has pointed out that the application of the principle of ruling does not order a foreclosure case to consider the merits of the claim for damages, but results in a negative outcome on the merits of the action for damages.
It follows that the claim for compensation arising from the contested decision is not (or belatedly contested, as in this case) is acceptable, but it's unfounded because the lack of appeal of the source of the damage that can act operate in a prescriptive rule dictating the case, allowing the production of its effects and requiring compliance with associates and thus prevents the damage that might be considered unfair or unlawful conduct of the Administration in the enforcement of the final.
The principle of the ruling is not based, therefore, the administrative judge of the impossibility to exercise the power of non-application, but the impossibility for any court to determine as a preliminary issue without force of res judicata and the illegality of the act, which constitutive element of the case of tort liability ex art. 2043. Civ., in essence, if the finding is precluded in the main street in compensatory damages in the trial because no experiments, or may not experience (as a result of res judicata, revocation, etc..), the specific remedies under the law to challenge the law in accordance with the same situation, the claim for damages must be rejected on the merits because the production of the damage done is unlikely to be qualified tort (see, Cass. Civ., II, 27 March 2003 No 4538).
The administrative ruling is therefore closely linked to the principle of legal certainty in public law, whose garrison is placed on short-term decadenziale of appeal of administrative decisions.
does not appear to endorse the opposite view, that the word decadenziale is irrelevant to the damages, it is a deadline in a short time to ensure the certainty of the inviolability provvedimentale the case, while the adjustment of interests would not be questioned only by an action for damages, in which the verification of the legality of the act is made in passing.
In fact, the overall structure of interest regulated by an act is not contested is also part of the economic component, which affects the damages and also in the presence of a judge's decision finding of a measure for the sole purpose examination of a claim for damages, the obligation to comply with court should imply the annulment of the illegitimate considered, resulting in avoidance of the term decadenziale.
Compared to the requirements of legal certainty in public law, where the short-term appeal is functional, compatibility is a difficult situation in which the private sector after remaining silent (in the sense that it had challenged the decision) after ' issuance of an administrative act which affects them adversely in the courts in the broader limitation period of five years, asking for damages.
objection that it is the same situation envisaged by art. 2043 cc interprivatistici relations, it can be replicated, showing that even in relation to the exercise of power in private law relationships and the disputing GO to the front of administrative acts, in many cases it is preferred that need for certainty with the imposition of time within which decadenziali right to challenge the compliance with certain legal situations, which will expire also precludes an action for damages is not allowed to ask for compensation damages for being unlawfully subjected to administrative sanction by an order of injunction was not challenged within the meaning of l. 689/81, the dismissed employee can not choose to opt for compensation, without challenging the termination as prescribed by l. 604/66; can not be claimed for damages in the absence of further appeal of condominium or corporate resolutions, which have been the source of the damage (for the latter see the art. 2377, paragraph 6, DC).
Moreover, Article. 7, third paragraph, of Law Tar provides that "The Regional Administrative Court, within its jurisdiction, he also knows all the issues relating to possible damages, including reinstatement specific performance, and other consequential economic rights.
Paragraph 5 of 'Art. 35 of Legislative Decree no. No 80/98 states that "are hereby repealed Article 13 of Law 19 February 1992, No 142, and any other rules should be devolved to an ordinary judge of disputes on compensation for damage resulting in the annulment of administrative acts. "
In both provisions the legislature, while not directly addressing the issue, described the issues related damages to an illegal measure, issues such as "consequential damages" from the cancellation of the latter, implicitly recognizing that compensation assumes not merely incidental finding of the act, but its cancellation.
The provision implies, namely, that, as noted above, the objective element in this case the offense is not the unlawful administrative act, but the official act canceled.
should finally be noted that the application of the principle of so-called administrative ruling does not restrict the courts. From
rulings of the Constitutional Court show that the compensation is an instrument of protection further than the classic demolition (and / or compliance), to be used to bring justice to the citizen against the government (Constitutional Court No 204 / 2004, No 191/2006).
The administrative measure infringes a substantial interest may be attacked on a impugnatoria for its demolition, and "consequential" damages by way, for its detrimental effects, becoming, in 'one and the other case, the question of its legitimacy, in the judgments of the Constitutional Court, there is no trace of any suspicion of unconstitutionality of such a design and, indeed, it seems easy to infer the contrary (see Cons. Member, Ad. plen. No 12/2007). Moreover, in those cases mentioned earlier in which the private law context of the exercise of powers is subject to terms decadenziali, the ordinary court has ever raised the issue of the constitutionality of the foreclosure action for damages even in cases where no objections in terms of decline.
In accordance with the direction the plenary session of the State Council shall, therefore, considered that the failure to timely appeal an administrative decision prevents illegal to consider the conduct of the PA and to obtain damages arising from that same act.
By applying this principle to the case, should be rejected (in substance) the claim for damages filed by the applicant at first instance.
3 - no different conclusion is reached even if it wants regardless of the administrative ruling, given that the 'action for damages is unfounded in practice.
And, indeed, be excluded that the legal situation triggered by the disputed administrative act may qualify as non-compliance with laws and establish the right to damages under Article 2043.
The investigation on the existence of the first in a logical and legal elements of the crime according to article 2043 Civil Code., Namely the assessment of the legality of an administrative act, clearly leads to negative results.
In this regard, aside the finding that the current appellant has not repeated here the specific objections to that decision at first instance, for which of them would be precluded any examination, is the decisive consideration that the disputed transfer is turning away from complaints put forward by today appellant and the original applicant.
As you know, the discipline of the equipment responsible for the security of the state must first comply with the fundamental and essential principle of confidentiality, can be deduced from the entire system of law contenuta nella legge n. 801 del 1977 e che è alla base della stessa costituzione del Comitato parlamentare di controllo, al quale soltanto il Presidente del Consiglio dei ministri e il Comitato interministeriale per le informazioni la sicurezza sono tenuti, ai sensi dell'articolo 11 della legge citata, a fornire informazioni, per altro limitatamente alle linee essenziali delle strutture e dell'attività svolta. Ora, proprio ai fini di consentire una piena assunzione di responsabilità per l'attività svolta dagli apparati preposti alla sicurezza dello Stato da parte del livello dirigenziale e del livello politico (Presidenza del Consiglio dei ministri, Comitato interministeriale, Comitato parlamentare di controllo), indispensabile contrappeso del principle of confidentiality in order to safeguard the constitutional principles of sound administration and impartially and in accordance with the relevant directive issued by the President of the Council of Ministers on July 30, 1985, pursuant to Article 1 of law No. 801 of 1977, the regulatory provisions governing the employment of staff of information must be interpreted and applied consistently with the trust and precarious nature essentially the same report, which may be unilaterally terminated by either party, respectively, at the request or initiative of its own motion, in order to facilitate the necessary rotations. From this point of the paragraph is justified 2 of Article 6 of the regulation adopted by Prime Ministerial Decree No. 7 of 1980, applicable to transfers of personnel employed directly by virtue of the reference in the article 9, that the return in the administrations of origin and transfer to another State Administration of staff of office information can be arranged for needs of service provision is largely discretionary, stating only that the order was adopted for this purpose.
4 - In conclusion, the appeal must be dismissed. The costs of the degree may be compensated for the right reasons ABSENCE
PQM
The Council of State in the courts (Section Fourth), finally saying the appeal mentioned in the headnote, rejects it.
grade offset expenses. Sort
that this decision is made by the administration.
Decided in Rome, January 13, 2009, the Council of State in the courts (Section IV), meeting in the Council Chamber, with the intervention of the judiciary:
Constantine SALVATORE - acting President
MARUOTTI Louis - Director Armando
WELLS - Director, ext.
Anna Leon - Director
MOLLICA Bruno - Director of the author
THE ACTING PRESIDENT
Armando Salvatore Costantino Pozzi
Deposited in the Office 31/3/2009.
grade offset expenses. Sort
that this decision is made by the administration.
Decided in Rome, January 13, 2009, the Council of State in the courts (Section IV), meeting in the Council Chamber, with the intervention of the judiciary:
Constantine SALVATORE - acting President
MARUOTTI Louis - Director Armando
WELLS - Director, ext.
Anna Leon - Director
MOLLICA Bruno - Director of the author
THE ACTING PRESIDENT
Armando Salvatore Costantino Pozzi
Deposited in the Office 31/3/2009.
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