Nuove norme in tema di procedimento amministrativo: in particolare il danno da ritardo

The work titled “new rules in proceedings issue: damage by delay (or delay damages)” analyses the law n. 241/1990 paragraph # 2 bis, listed as “consequences for the delay of the administration in conclusion of proceedings”. From the systematic point of view, the work focuses on the determination of the unjust damage and the subjective point of view of the negligence of the P.A.. In this context the main institutions regulated by the paragraph 2 of the proceedings law have been examined, or the obligation to provide for, the nature of the conclusion of proceedings’ s term, the quashing points of view of the belated act, deferring for further problems to the copious literature about the subject. It is prefixed that the prevalent tendency of the law denies the existence of a general damage by delay plea, in connection to the mere delay in the adoption of the administrative action. In other terms, the party concerned may ask for a solace only if (following an ex post assessment) it obtains a positive action and, therefore, the delay concerns, properly, an act whose, the party concerned invokes the granting. Considering that the injustice of the damage can’t be valid in case of groundlessness (non-existence) of the obligation to provide, it’s a question of radical hypothesis, for which, although the presentation of an instance, it subsists no proceedings obligation. Another constitutive element of the liability of the P.A. (subject of thorough analysis) has been the subjective point of view of the negligence. On this point the revirement of the law, which seems to desert the traditional reconstruction of a probative burden especially against (and exclusively) the private customer. In virtue of such “tradition of law”, as concerns the private customer (damaged by an illegitimate administrative action) it isn’t required a particular probative commitment to demonstrate the negligence of the P.A., because it is enough to invoke the illegitimacy of the action as a presumptive index of guilt. It will due then to the Administration to demonstrate that it has been a forgivable error, findable in cases of contrasts in law about the correct interpretation of a rule, of uncertain formulation of rules come into force worthless, of relevant complexity of the event, of determining influence about other people’s behaviours, of illegitimacy from a following declaration of unconstitutionality of the enforced rule. In conclusion, the legal forecast of the entitlement to compensation for a belated administrative act represents a positive news in the system in a more equilibrated relation between Administration and private customer. Nevertheless, the grasp of the reform doesn’t seem particularly innovative, and it doesn’t introduce interpretative rules able to support radical changes. A possible remedy could be found in the interpretation of the evolution of the law, called, during contentious, to assess the recurrence of the assumptions above-mentioned and, so, to evaluate the damage when it is unjust and identifiable as a culpable act performed by the P.A..