Provvedimenti di autorizzazione e di diniego al subappalto Brevi riflessioni sul relativo riparto di giurisdizione

Abstract

The subject of this study is the division of jurisdiction between the ordinary judge and the administrative judge (henceforth G.O. and G.A.) with reference to the subcontracting authorization provisions.
According to the consolidated orientation of the G.A., for everything concerning the execution phase of the contract, the jurisdiction should have been that of the G.O. In line with this orientation, the Lombardy- Brescia Tar, section II, with sentence of 11.19.2021 n. 975, had denied its jurisdiction in relation to an appeal against the refusal of the subcontracting authorization provision, despite the fact that the contract holder had proceeded to subcontract following the outcome of the matured silent assent on the authorization request.

The Council of State, during the appeal, pronounces itself in such a way as to overturn the peaceful and constant orientation by operating an 'extrapolation', from the execution phase of the contract, of the typically administrative activity of exercising the authorization power. In the case of exercise of power, the jurisdiction can only be that of the G.A..