Videolotteries, No compensation for damage even if the municipal distance meter was illegitimate
The illegality of a measure does not involve, by itself, any compensation for damages to the holder of the substantial position since, to this end, it is also necessary to verify whether the injury has affected the good of life connected to the injured interest
The Regional Administrative Court for Emilia Romagna - Second Section, with a recent sentence, rejected the appeal lodged by a public gaming company against the Municipality of Bologna, in which it was asked for the sentence to pay compensation for the damage caused by the illegal exercise administrative activity concerning the introduction of the minimum distance of 1,000 meters for the new VLT rooms. The aforementioned illegitimacy, as it's well known, was ascertained by the Council of State, which, with sentence no. 578/2016, on the assumption that "the power to limit the distribution of gaming halls on the territory through the imposition of minimum distances with respect to the so-called sensitive places, could also be attributed to the power of local authorities in matters of territorial planning and governance , with respect to which the Constitution and the ordinary law confer the relative functions on the Municipality", established that "the identification of a distance, rather than another, derives instead from the exercise of an administrative discretion, which carries out the weighting with the opposing interests in carrying out lawful gaming and betting activities, in light of the rules of adequacy and proportionality" and which, in particular,"responds to a need for reasonableness which, following an assessment of the behavior of the most vulnerable subjects and the incidence of the phenomenon of ludopathies in a given context, is established by law one far fixed minimum, presumably suitable to ensure a deterrent effect, protecting the patrons of the so-called sensitive sites". The Emilian Administrative Court, however, with the sentence in question, while adhering to the principle sanctioned by the aforementioned sentence of the Council of State, reiterated that "the judicial annulment of the administrative provision for formal defects, among which we can include not only the lack of motivation, but also and above all the defects of the procedure, does not in itself bring about any ascertainment with regard to the right of life involved in the expired provision ope iudicis, and therefore cannot constitute the prerequisite for the acceptance of the request for compensation of the damage". For the Emilian judges, therefore, confirming the consolidated jurisprudence on the matter (Council of State, section IV - 3/1/2020 no. 61; Council of State, section II - 20/12/2019 no. 8624; TAR Campania Naples, section VIII - 16/12/2020 n. 6153), "the responsibility of the Public Administration does not automatically result from the annulment of the administrative provision or from the ascertainment of its illegality in the judiciary (or of extraordinary appeal or self-defense) , but it is necessary to prove that the guilty administrative conduct resulted, according to a judgment of causal regularity, a prejudice directly referable to the assumption or execution of the determination contra ius detrimental to the good of life due to the applicant". The Compensation for damage, in fact , continue the administrative judges, "it is not an automatic and constant consequence of the judicial annulment of an administrative measure, but requires the verification of all the requirements of the offense (conduct a, fault, causation, harmful event) and, in the case of a request for compensation for damage resulting from the infringement of a legitimate claim, is subject to the demonstration, according to a prognostic judgment, that the measure would have been issued in the absence of the illegitimate act of the administration". Ultimately, in order for the liability of the public administration to be configured as an illegitimate provision, it is necessary to have all the constituent elements of this possible liability, namely: a) the objective element; b) the subjective element; c) the material or structural causal link; d) unjust damage, understood as an infringement of the position of legitimate interest and, in matters of exclusive jurisdiction, of subjective right: in terms of consequences and, therefore, of the methods of determining the damage, the harmful fact, as identified above, must be connected, with a link of legal or functional causality, with the prejudices suffered by the injured party (see ex multis: TAR Veneto, section II - 23/9/2020 n. 847, which refers to the Council of State, section III - 29/1/2020 n. 732).