Principle of protection of legitimate expectations

Following an examination of the principles governing public contracts and their hierarchy as codified in Legislative Decree 36/2023, the author focuses on the relationship between the public administration's liability and the good faith principle, examining the legal implications of the former on the latter. Specifically, it is stated that by broadening the range of legal problems that can be resolved in connection with public procurement, Article 5 c. 2 of the new Code keeps the process of "civilising" administrative law going. This procedure, however, may hit a roadblock in the form of c. 3, which designates as "culpable" the reliance that was fostered in the face of a "easily detectable" illegitimacy.

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In the context of breach of legitimate expectation, resulting from the annulment of an unlawful administrative act, the Court of Cassation settles that, as legitimate expectation is an autonomous situation protected in itself and not in its connection with the public interest, the jurisdiction of the administrative judge exists only when the cause of action concerns the methods of exercising administrative power.

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The withdrawal of unlawful acts of public administrations aids the judicial function to guarantee effet utile. It follows the functionalization of procedural autonomy to the principle of effectiveness of EU rules. This, however, cannot go against the Community principle of legal certainty and the protection of legitimate expectations. Hence, the conflict between certainty and justice must be resolved through a synthesis of the opposing interests by the application of the principle of proportionality which conforms to the principle of legality.

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