Jurisdiction of the Ordinary Judge in Disputes Between Public Bodies: Analysis of Order No. 15911 of 2024
The recent Order No. 15911 of June 6, 2024, offers an important reflection on jurisdiction in the public sector, clearly establishing that disputes between public bodies concerning the return of real estate granted under a loan-for-use agreement must be handled by the ordinary judge. This decision, issued by President D'Ascola Pasquale and rapporteur Giusti Alberto, emphasizes the contractual nature of the loan-for-use relationship, decoupling it from administrative concession measures.
The Regulatory and Jurisprudential Context
The legal issue raised by the order falls within the scope of relations between public bodies, which often manage real estate similarly to private entities. Italian jurisprudence has repeatedly addressed this issue, highlighting how loan-for-use, governed by Article 1803 of the Civil Code, constitutes an equal footing contract, regardless of the nature of the entities involved.
- Law of March 20, 1865, No. 2248, Art. 2
- Law of December 6, 1971, No. 1034, Art. 5
- Civil Code, Art. 1803
The Principle of Ordinary Jurisdiction
Dispute between public bodies - Claim for the return of real estate granted under a loan-for-use agreement - Concessional relationship - Configurability - Exclusion - Consequences - Jurisdiction of the ordinary judge - Devolution - Nature of the contracting parties - Irrelevance - Factual situation. A dispute concerning the claim for the return of a property, which is part of the available assets of a public body and has been granted under a loan-for-use agreement to another public body, is devolved to the jurisdiction of the ordinary judge because it derives from an equal footing contractual relationship, not from an administrative measure granting the property, and the legal nature of the contracting parties is irrelevant. (Principle affirmed with reference to the claim for termination of the loan-for-use agreement and for the return of the property, brought by the owner, the National Body for Cellulose and Paper, against the borrower, the Ministry of University and Research).
This legal maxim highlights how the jurisdiction of the ordinary judge is relevant in cases of disputes arising from loan-for-use agreements. The importance of this principle lies in the fact that the contractual nature of the relationship between the parties must not be confused with the public nature of the entities involved.
Conclusions
Order No. 15911 of 2024 represents a significant step in clarifying jurisdiction regarding loan-for-use agreements between public bodies. It reaffirms the centrality of the contract and its application even in the context of relationships between public entities. The decision to devolve the dispute to the ordinary judge offers greater legal certainty and protection of the rights of the parties involved, ensuring an equal footing and contractual approach that reflects the fundamental principles of civil law.
