The Liability of Public Administration: A Special Regime between Formal Requirements and Substantial Goals

At the end of the nineteenth century, Italian courts constructed government liability in narrow terms, excluding it whenever government took acts of imperium. Article 28 of the Constitution deviates from that line of cases, because it lays down two principles: first, that the officials and employees of public bodies are directly liable for acts committed in violation of rights and, second, that in such cases civil liability extends to public bodies. Concretely, the standard governing the non-contractual liability of public bodies is influenced by the rules of the Civil Code. Liability can thus be based on the existence of a breach of existing legal rules, including procedural constraints on the exercise of administrative powers. For example, the unlawful issuing of a building permit gives rise to liability. However, when public authorities exercise real discretion, issues of liability will be treated differently. And, unlike other legal systems, such issues often fall within the competence of administrative courts.