La risarcibilità del danno da perdita di chance (Nota a Consiglio di Stato, Sez. VI, 13 settembre 2021, n. 6268)

The institution of the loss of chance, already difficult to define in terms of its existence, configurability and compensation in the context of private law, where the opposing "etiological" and "ontological" theses have established themselves, seems all the more so characterized by evident complexity and problems in the field of administrative law. Administrative jurisprudence itself has not shown a univocal interpretative direction, but over time has presented diversified solutions, oscillating between ontological and etiological theses and adopting multiple reconstructions in terms of the required proof, as well as the liquidation of the damage. The Council of State in the ruling in question, dealing with the institution of chance, denounces the confusion present on the subject in the context of administrative jurisprudence itself, generated by the undue superimposition of the aetiological and ontological reconstructive profiles and, in fact, adheres to the approach interpretative of the "ontological" chance.