- T.A.R. Molise
ADMINISTRATIVE CONTRACTS - LONG-TERM CONTRACTS - CONSTRUCTION CONTRACT - BETWEEN AN ITALIAN COMPANY AND AN ITALIAN LOCAL AUTHORITY - USE OF UNIDROIT PRINCIPLES AS A MEANS OF INTERPRETING APPLICABLE DOMESTIC LAW (ITALIAN LAW)
DUTY TO RENEGOTIATE IN GOOD FAITH - APPLICABLE ALSO TO PUBLIC AUTHORITY - WHENEVER A CHANGE IN THE FACTUAL CIRCUMSTANCES RENDERS THE CONTRACT UNBALANCED - REFERENCE TO UNIDROIT PRINCIPLES TOGETHER WITH PRINCIPLES OF EUROPEAN CONTRACT LAW AND GANDOLFI CONTRACT CODE
Claimant, an Italian company, presented a development plan approved by Defendant, the Municipality of Campobasso. A dispute arose between the parties in relation to the payment of concession fees. In particular, after the conclusion of the construction agreement with Defendant, the Claimant for economic reasons had renounced to build part of the works planned and had offered the Defendant to transfer part of the building area to the Municipality in exchange for the deduction of part of the building permit fees. The Defendant refused the proposal and after a while ordered Claimant to pay the total building permit fees. In turn Claimant lodged an administrative appeal contesting the Defendant's right to request such sums.
The Court ruled in favour of the Claimant, stating that Defendant was required to evaluate the offer to transfer the building area in partial deduction of the total building permit fees due from the Claimant and to justify any refusal of the proposal. In affirming this, the Court referred to the general principle of good faith and to a more specific duty to renegotiate the contract in good faith whenever this is made necessary by a change in the factual circumstances which renders the original agreement unbalanced. In supporting the existence of this latter principle also in the Italian legal system, the Court generally referred to the UNIDROIT Principles, together with Principles of European Contract Law and the Gandolfi Contract Code.