EUPillar ITT20141023 Cass. (Plenary Session), order n. 22554/2014 (BI)

Summary

With regard to jurisdiction over an action brought before the Regional Administrative Court (Tribunale Amministrativo Regionale) by two Italian financial institutes against a municipality, with which they entered in a series of interest rate swaps, for the annulment of the deliberations with which said municipality annulled “in self-protection” (which affords to the public administration the power to re-examine the legality of its own acts with a view to validating, amending, or annulling them) the administrative decisions which activated the process that led to the conclusion of said investment contracts, which contain a jurisdiction clause in favour of the courts of the United Kingdom, it is first necessary to assess the grounds that assign jurisdiction to, respectively, the judiciary and the administrative courts. Such assessment entails the preliminary exact identification of the claim (petitum), which is to be identified not so much and not only on the basis of the concrete decision that is sought from the court, but rather also and mainly on the basis of the cause of action (causa petendi), i.e. of the inherent nature of the right invoked and identified by the court with regard to the facts alleged and to the underlying legal relationship. In case of “self-protection” measures adopted against administrative preparatory acts that led to the conclusion of contracts with private parties, the administrative judge has the power to decide of the legality of said acts solely provided that they were actually preparatory to the ensuing negotiation, and it lacks such power if – to the contrary – the dispute concerns defects in the contract. In the case at hand, the administrative judge does not have jurisdiction because the facts indicate that the acts performed by the municipality in the negotiation phase and in the conclusion of the contracts are to be characterized as private in nature (iure privatorum): in fact, no inherently administrative preparatory activity was involved in the formation of the will of the municipality. Accordingly, Article 23 of Regulation (EC) No. 44/2001 of 22 December 2000 (as the dispute concerns civil and commercial matters) – according to which if the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, such jurisdiction is exclusive – is applicable.