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A judgment of the Regional Administrative Court of Lazio, n. 04215/2020, refers to a lawsuit initiated by a plaintiff through her lawyers with whom she challenged the final classification of the contest for the permanent hiring of teaching staff in first and second grade secondary schools, issued with the Decree of the Director General of School Personnel no. in the part in which the reservation title N (Civil Disability), declared in the application form, was not evaluated. Two questions of common interest are addressed, how the reserve title should be considered in the ranking and where the final ranking should be questioned.
How should the reservation title be considered?
The administrative judges confirm the univocal orientation expressed by the jurisprudence of the Court of Cassation (see Cass. Civ., SS. UU., 4.8.2010, n.18048; 11.1.2007, n.307; 21.2.2002, n.2514 ; 27.2.2002, no. 2954; 24.4.2002, no. 6041; 26.6.2002, no. 9332; 29.9.2003, no. 14529), which indicates that “the claim to contract under the as invalid civil does not intend to modify the order of the classification of the competition now defined, but rather it aims to enforce a right of priority with respect to the order sanctioned by the classification itself which, therefore, remains unchanged, is now in the field of management deeds and the private law capacity of the public administration in accordance with Legislative Decree No. 30 March 2001, No. 165, art. 5, paragraph 2, delegated to the ordinary jurisdiction “.
In the case of a final classification, who is the jurisdiction?
“The United Sections declared that”the identification of the jurisdiction is determined by the subject of the request, who must be identified on the basis not of the criterion of “perspective”, but rather of the substantial “petitum”, which can be determined by investigating the actual nature of the dispute in relation to characteristics of the particular relationship affirmed in the court, so that the jurisdiction of the ordinary judge, with respect to a request made by the individual against the AP, cannot be excluded simply by the fact that the request itself contains the request for cancellation of a administrative act, provided that, if this request is linked to the protection of a subjective right position, that competence must also be affirmed, without prejudice to the power of the ordinary judge to foresee only the non-application of the administrative act in the specific case, by be detrimental to said subjective right “ (Civil cassation section one, May 28, 2007, n. 12348 that recalls the cassation, first section. May 15, 2003 n. 7507, which declared the jurisdiction of the ordinary judge, in the event that with the judicial request was substantially complaining, the omitted assignment of a reserved position is introduced and, therefore, a litigation is introduced over the right to stipulate the employment contract with the administration) “. With the approval of the ranking, the judges continue,” for what Therefore, the area reserved for administrative procedures and the authoritarian activity of the Administration is exhausted, assuming a phase in which the Administration’s behavior must go back to the private sector, “he said. of the negotiating power of the Palestinian Authority as an employer , to be evaluated in accordance with the civil principles on breach of obligations (see Cass. Civ., SS. UU., 6.7.2006, n. 15342) “.
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