Civil Law OF THE ADMINISTRATIVE ACTION

Academic Year 2025/2026 - Teacher: CLAUDIA BENANTI

Expected Learning Outcomes

At the end of the course, students will be able to:

understand and critically analyse the role of private law within the organisation and activities of public administrations, with particular reference to the exercise of private autonomy by public entities;
identify and apply the main private-law concepts relevant to administrative action (contracts, civil liability, obligations, good faith, legitimate expectations, contractual autonomy);
distinguish between authoritative and consensual models of administrative action and assess their legal and economic implications;
evaluate the civil liability regimes applicable to public administrations and private actors involved in administrative activities;
interpret legislation and case law at national and European level concerning the interaction between private law and public administration;
apply theoretical knowledge to practical cases involving public contracts, public-private partnerships, pre-contractual liability and protection of legitimate expectations;
develop independent critical judgement regarding the ongoing transformation of public administration characterised by the increasing use of private-law instruments;
employ specialised legal terminology appropriate for professional contexts within public administration and legal advisory practice.

Course Structure

Teaching is carried out through lectures aimed at providing a systematic framework of the legal concepts addressed and at fostering a critical analysis of the main theoretical and practical issues.

Lectures will be supplemented by guided discussions of significant case law and specialised scholarly contributions, in order to develop students’ ability to apply private-law categories to administrative activity.

Active student participation will be encouraged through classroom discussions designed to enhance legal reasoning skills and the ability to establish systematic connections among the topics covered.

Supporting materials (case law, academic articles and summary outlines) will be made available through the University’s online learning platform.

Required Prerequisites

For successful attendance of the course, knowledge of the main institutions of private law is required, with particular reference to general contract theory, the law of obligations and civil liability, as a prerequisite for a full understanding of the private-law aspects of administrative activity.

No formal prerequisites are required; however, prior completion of coursework in private law is strongly recommended.

Attendance of Lessons

Attendance is not mandatory; however, it is strongly recommended in view of the systematic structure of the course and the in-depth analysis of case law and scholarly materials.

Active participation in class facilitates the understanding of more complex issues and contributes to the development of critical analysis and legal reasoning skills. Attendance is particularly recommended for students who intend to take the mid-term examination.

Detailed Course Content

The course examines the transformation of administrative action through the lens of private-law categories, highlighting how contemporary public administration increasingly operates through contractual instruments, consensual models and liability regimes traditionally belonging to private law.

The course offers a private-law reinterpretation of administrative activity, focusing on the role of private autonomy, civil liability and restitutionary remedies in regulating relationships between public administrations and citizens. Particular attention will be devoted to the analysis of significant case law and specialised scholarly contributions.

1. Public Administration between Authority and Private Autonomy

Applicability of private-law rules to public entities; legal nature of public bodies; extension of private autonomy to public administration; bodies governed by public law and public undertakings; overcoming the traditional divide between public law and private law; consensual models of administrative action; administrative agreements, substitutive and determinative agreements; voluntary transfer agreements; distinction between public procurement contracts and concessions; concessions over public assets; public services, with particular reference to digital public services.

2. Circulation of Public Assets and Private-Law Techniques of Territorial Governance

Expropriation for public purposes and protection of property rights; acquisitive occupation and its jurisprudential evolution; pre-emption rights concerning cultural heritage assets; transferable development rights; destination constraints under Article 2645-ter of the Italian Civil Code; civic uses (overview); limitations on the assignment of claims against public administrations and set-off.

3. The Contract as an Instrument of Administrative Action

Pre-contractual liability of public administrations; form requirements of public contracts; derivative invalidity; contract interpretation and the prevalence of so-called objective interpretative criteria; performance of contractual obligations and protection of the private contractor; specific performance of the obligation to give consent; specific restoration under Article 2058 of the Italian Civil Code; possessory remedies against public administrations.

4. Civil Remedies and Liability of Public Administration

Unjust enrichment and unjustified enrichment within public administration; off-balance-sheet public debts; special regimes of non-contractual liability applicable to public entities; environmental damage liability and the restorative function of compensation; the “polluter pays” principle; medical liability within public healthcare institutions; workplace harassment (mobbing) in public employment; civil liability as a governance tool for administrative activity.

5. Future Perspectives

Privatisation of administrative instruments; consensual and digital administration; protection of collective interests; the role of civil law in regulating contemporary public administrations.

Textbook Information

Learning Assessment

Learning Assessment Procedures

The final assessment consists of an oral examination aimed at verifying the acquisition of theoretical knowledge, critical analytical skills, the ability to discuss relevant case law, and the appropriate use of specialised legal terminology.

During the teaching break, students may take an optional mid-term examination, which will be conducted orally and will cover part of the syllabus. The grade obtained in the mid-term examination will contribute to the final grade, provided that the final examination is taken within the year 2026.

The evaluation will take into account the student’s mastery of the subject matter, the ability to establish systematic connections between the legal concepts examined, the capacity to apply private-law categories to the analysis of administrative activity, and the ability to critically discuss the relevant case law.

Examples of frequently asked questions and / or exercises

Applicability of private law to public administration and limits of public entities’ private autonomy.
Difference between public procurement contracts and concessions and the role of contracts in administrative activity.
Pre-contractual liability of public administrations.
Expropriation, acquisitive occupation and protection of property rights.
Unjust enrichment within public administration.
Environmental damage and the restorative function of compensation.
Civil liability of public administration.

Degree Course in

Public Administration Management