Recently, the Regional Administrative Court of Calabria raised a question of constitutional legitimacy regarding one of the provisions of the so-called “interdittive antimafia” (TAR Calabria, section of Reggio Calabria, decision no. 646 issued on October 28th, 2024). In doing so, the judge highlighted a discrepancy – yet another – that characterises the complex system of the so-called “prevenzione amministrativa antimafia”, the subject of a study by the research unit of the University of Naples “Federico II” within the framework of the PRIN Borderline project.
The subject of the constitutional doubts is the provision of article 34 bis, paragraph 7, of the antimafia code, which provides for the reinstatement of the effects of the “interdittiva” after the expiry of the “controllo volontario” and, more precisely, in the period between the expiry of the clean-up measure and the re-evaluation of the mafia infiltration imposed on the Prefect by article 91, paragraph 5, of the Antimafia code.
The problem identified by the administrative judge is immediately apparent in the case that gave rise to the referral. A construction company, subject to a “interdittiva” and then admitted to “controllo volontario”, suffered the termination of a contract for a major work due to the approaching final deadline, which could no longer be extended, of the institution pursuant to article 34 bis of the antimafia code. Despite the positive outcome of the voluntary supervision, the contracting authority could only take note of the restoration of the effects of the “interdittiva”, as the Prefect had not yet carried out a negative re-evaluation of the mafia infiltration of the company.
Well, according to the regional administrative court, such a prejudicial and automatic result could not be avoided in any way, as hypothesized by the applicant, given the literal tenor of comma 7 of article 34 bis of the antimafia code. Nevertheless, also in the opinion of the referring judge, the provision of the antimafia code is incompatible with various constitutional principles.
First of all, it would violate article 3 of the Constitution by establishing unjustified differences in treatment. In fact, if someone who is the subject of an “interdittiva” can take self-protective measures, those who find themselves in the transition phase between the expiration of “controllo volontario” and the issuance of the release information could neither complain about the effects of the previous “interdittiva” (due to the judgment formed on the point), nor request admission to “controllo giudiziario” (due to the lack of the requirement of an appeal against the “interdittiva”). Furthermore, in this state of limbo, it would not even be possible to continue the execution of contracts already concluded or to obtain new promotional measures, as is the case for companies which, having not obtained the precautionary protection invoked in support of the appeal against the “interdittiva”, are admitted upon request to the “controllo volontario”.
It is precisely the absence of any means of opposing the restoration of the effects of the “interdittiva” that would also deprive the person concerned of the right to a defence, thus violating articles 24 of the Constitution and 13 of the ECHR, through article 117 of the Constitution, and would also conflict with the principles of articles 111, paragraphs 1 and 2, and 113 of the Constitution.
Article 34 bis, comma 7, of the Antimafia Code would then be difficult to reconcile with the provisions of article 97 of the Constitution on two levels. First of all, it would determine a “normative short circuit”, since it would not allow the “controllo volontario” to achieve its purpose – i.e. to reintegrate the now cleaned-up company into the legal market – but rather determine its ostracism. Secondly, it would undermine the principles of efficiency and economy, since the revival of the effects of the “interdittiva” upon expiration of “controllo giudiziario” entails the burden for contracting authorities, in the case of contracts in progress, to replace the contracting company, with inevitable delays and increased costs.
In addition, according to the Regional Administrative Court, it is clear from the above-mentioned profiles that the revival of the effects of the “interdittiva” also violates the principle of proportionality/reasonableness. In fact, the system does not feature an appropriate mechanism for the gradual restoration of the effects of the measure, nor is it mitigated by various possible solutions to overcome the damage.
In conclusion, the Administrative Tribunal proposes, as a possible solution to the doubts of constitutional legitimacy raised, the adoption of a manipulative decision of an additive nature. Such an intervention – consisting in the extension of the suspension of the effectiveness of the “interdittiva” until the definition of the updating procedure pursuant to article 91, paragraph 5, of the antimafia code – is considered admissible as representing “the only solution that allows to eliminate the identified profiles of illegality”.
