Public Works Contracts: The Contracting Authority's Liability – Cassation Court Ordinance 16722/2025

Public contracts generate delicate liability issues for commissioning entities. Ordinance No. 16722 of June 23, 2025, from the Court of Cassation, presided over by L. R. and reported by P. A. P. C., clarifies the duties of the Contracting Authority, reaffirming an unavoidable principle of diligence and control. Crucial for public administrations, businesses, and citizens regarding risk management and damage prevention.

The Contracting Authority's Active Oversight Role

The Contracting Authority is not a passive player. Ordinance 16722/2025 emphasizes its active and constant oversight role, with duties mandated by law that are essential for the correct execution of works and the protection of interests. In the case of P. (represented by A. V.) versus P., the Court of Cassation reiterated the necessity of verifying these obligations to prevent third-party damages.

In public works contracts, the contracting authority is required to exercise specific powers and simultaneously fulfill specific legal obligations provided for by public law, which mandate the implementation of necessary interference, propulsion, and adequate activities, as well as continuous supervision in the execution of the work, in order to ensure the correct progress of the works and their exact execution, and therefore, implying indispensable preliminary and subsequent control of the conformity of the works themselves to the law and prescribed technical rules. (In this specific case, the Supreme Court quashed with referral the appealed judgment which had failed to verify whether – in relation to injuries sustained by a property due to a landslide event resulting from works commissioned by the public entity – any co-liability of the commissioning entity could be established, in light of the obligations incumbent upon it following the approval of the preliminary and definitive project of the work in an area subject to landslides characterized by translational and rotational movements).

The legal principle is clear: the Contracting Authority must actively supervise every phase of the work, with "preliminary," "continuous," and "subsequent" controls. The Court quashed the Court of Appeal of Reggio Calabria's judgment with referral for failing to verify the potential co-liability of the public entity. The case concerned damage to a property from a landslide event, a consequence of works commissioned by the entity in a notoriously unstable area. Approving a project in sensitive contexts imposes a heightened duty of diligence and oversight (Articles 2043 and 2055 of the Italian Civil Code).

Landslide Damage and Entity Co-Liability

Damage to the property from a landslide event, linked to public works, highlights the entity's co-liability. The judgment clarifies that the Contracting Authority has specific obligations, stemming from legislation and knowledge of the context. If a project is approved for an area at hydrogeological risk, the entity must ensure enhanced vigilance, including verification of geological studies and mitigation measures.

• Project Control: Compliance with regulations and geological specifics.
• Execution Supervision: Monitoring progress and adherence to safety regulations.
• Timely Intervention: Corrective measures in case of danger.
• Risk Assessment: Adequate evaluation, especially in complex contexts.

Jurisprudence does not allow public administrations to evade responsibility by invoking the contractor's autonomy, especially when damage arises from control deficiencies. Articles 2043 and 2055 of the Italian Civil Code are fundamental for holding the public entity co-liable if its negligence contributed to the damage.

Conclusions: Safety and Transparency in Public Contracts

Ordinance 16722/2025 is an important reminder for Contracting Authorities. The management of a public contract requires constant and proactive commitment to controls and supervision, essential for the correct execution of works, compliance with legality, and damage prevention. This implies for public entities the adoption of rigorous procedures and investment in staff training. For citizens and businesses, this ruling strengthens the possibility of obtaining justice in case of damages due to public administration negligence, consolidating the principle of compensation for damages.