With the recent ruling no. 8343/2025, the Council of State has addressed a topic of central importance for public procurement law: the identification of the competent judge to decide on the repetition of undue payment (refund of sums paid without cause) following the cancellation of a tender and the consequent declaration of invalidity of the contract. The ruling clearly establishes that such disputes belong to the jurisdiction of the ordinary judge, marking a clear boundary with respect to administrative jurisdiction.
The case: from the cancelled race to the request for restitution
The story originates from the awarding in 2013 of a public system of bike sharing by the Municipal Company of Vicenza. After the award, the execution of the supply by the Contractor and the payment of the fee by the Contracting Authority, the Administrative Judge, upon appeal by an excluded competitor, had annulled the tender documents and declared the’ineffectiveness of the contract both in the first and second degree.
Following the judgment, the Public Administration requested the contractor company to refund of the amount paid in exchange for the supply, offering the return of the delivered materials in exchange. Given the contractor's refusal, the matter was brought before the Venice Regional Administrative Court (TAR) to determine the validity of this claim.
The civil nature of the recovery of undue payments
The Council of State accepted the objection of the lack of jurisdiction of the administrative judge, formulated by the contracting company for the first time on appeal, based on the intrinsically private nature of the action. objective undue payment pursuant to art. 2033 of the Civil Code.
According to the judges:
- The repayment of undue payments is an obligation that arises from a material fact (payment without cause) and aims to protect a patrimonial interest aimed at restoring the status quo ante;
- The declaration of invalidity of the contract acts as a "break," severing the relationship between payment and the exercise of public authority. As a result, once the contractual title has ceased to exist, the Administration no longer acts as an authority, but as a common creditor protecting its own assets.
The limits of the exclusive jurisdiction of the Administrative Judge
The ruling clarifies that the Administrative Court has exclusive jurisdiction over procurement matters (art. 133, paragraph 1, letter e, no. 1 cpa) does not include the restitution consequences. Although the Administrative Judge can declare the contract invalid, this power does not apply to requests for the restitution of payments already made, which require an independent assessment of the requirements of the civil case (such as the payment having been made, the good faith of the executor, and his relationship with the forfeited title).
Conclusions and practical implications
The stated principle is that the material activity aimed at recovering the "unduly paid" financial provision does not constitute the exercise of a public function. Therefore, the Ordinary Judge It is the only body competent for requests for the refund of sums paid in execution of public contracts declared ineffective following the cancellation of the award.
This decision guarantees a uniform regime for the recovery of undue payments, regardless of the reasons (public or civil) that led to the termination of the contractual obligation.
Our firm successfully assisted the economic operator who received a request for reimbursement from the public company on appeal, obtaining the annulment of the first-instance ruling of the Venice Regional Administrative Court (TAR), which, erroneously recognizing its jurisdiction, had ordered the economic operator to repay the amount received in 2013 for the supply.
Content by the Lawyer. Giuseppina Incorvaia
