L’esclusione dalla gara ai sensi dell’art. 80, comma 5, lett. c) del Codice dei contratti pubblici tra legalità e discrezionalità (osservazioni a margine di T.A.R. Campania, Napoli, sez. I, 11 aprile 2018, n. 2390)

Abstract

Is it possible exclude a competitor who is not definitively sentenced from a tender? To answer this question, we will start from the comment of a recent sentence, in which the administrative judge takes a position on the jurisprudential dispute concerning the list of art. 80, paragraph 5, lett. c), d.lgs. n. 50/2016, giving some interesting ideas to answer this question. Starting from this decision, we will briefly review the evolution of legislation and jurisprudence on the matter, focusing on the recently solution adopted by the Court of Justice of the European Union.

Despite the intervention of the European judge, some questions concerning the general theory of law remain open. 

The attribution of a creative role to jurisprudence on the identification of additional situations, is a further expression of the crisis of the principle of legality in Administrative Law? Faced with a clear conflict between the principle of legality and that of administrative discretion, which of the two principles should prevail and what could be the remedies that could be adopted to ensure the best balance?