Dialettica tra autorità amministrativa e soggetti privati nella prevenzione dell'infiltrazione criminale nel tessuto economico

The research carried out moves from the analysis of the controversial system of administrative measures for the prevention of criminal infiltration into the economic fabric, with the aim of sketching the margins of a possible balance between the opposing needs underlying the matter that could be in harmony with the constitutional spirit. The framework within which the research is developed is marked by the dialectic between the exercise of authoritative public power – placed to safeguard the economic public order – and the protection of the individual legal sphere, with particular reference to the freedom of economic initiative. The structure of the thesis, in a systematic and comparative logic, follows the dichotomy between measures that are the expression of a traditional conception of prevention, understood as “economic neutralization” and measures that, on the other hand, move away from the afflictive paradigm opening up evolutionary scenarios based on cooperation between administrative authority and private subjects. The first chapter is devoted to enucleating the elements of dystonia of the system of preventive measures with respect to the constitutional architecture. Through a historical interpretation, the reasons underlying the longevity of the prevention system are examined emphasizing how, despite the evident heterogeneity of the historical-political phases of the Italian state, it has retained a role that appears to be de facto indispensable. Then, in a diachronic perspective, the persistent criticalities are highlighted, despite the efforts to harmonize with constitutional guarantees made, in recent developments, also driven by the Strasbourg jurisprudence. In the second chapter, premised interpretative coordinates relating to the notion of public economic order, preventive measures having a significant afflictive capacity are examined. In particular, the Anti-Mafia Interdiction (Art. 84 et seq. of the Anti-Mafia Code), the instruments of the White List and Legality Protocols, and the Temporary and Extraordinary Management of the enterprise (Art. 32 Decree Law No. 90 of 2014). These are mechanisms for compressing the agility in the market of those economic actors who, in the light of merely probabilistic assessments, are considered bearers of illicit interests or means of their infiltration into the economic fabric. On this point, the argumentative development of the discussion is focused on the similarities, differences and forms of coordination between the aforementioned institutions, as well as on the application limits and guarantee mechanisms for screening their suitability to preserve the essential core of individual economic freedoms. In the third chapter, the examination focused on forms of prevention centered on cooperation between administrative authorities and private economic actors. In particular, the first part of the chapter is devoted to Judicial Control (art. 34 bis) Collaborative Prevention (art. 94 bis) and Support and Monitoring measures, governed by art. 32 paragraph 8 of Decree-Law No. 90 of 2014, measures permeated by a common “therapeutic” or “rescue” logic of the enterprise vulnerable to criminal interference. The instruments in question are analyzed through comparison with preventive measures of afflictive nature and, therefore, with regard to the “mitigating” capacity with respect to the onerous effects of the latter. The centrality of this function to the constitutional resilience of the system and, in view of this, the desirability of an expansive interpretation that can enhance the constitutional principles of solidarity and proportionality is emphasized. In the remainder of the discussion, conducting a cross-cutting examination of the aforementioned measures, the issue of their systematic coherence and coordination is addressed with specific reference to their application prerequisites and prescriptive content. In the final part of the thesis, the reasoning on non-afflictive forms of prevention is completed with some notations on the principle of horizontal subsidiarity. In this regard, it is argued that horizontal subsidiarity can be declined as a theoretical background for greater inclusion of private individuals in the activity of general interest (traditionally in the prerogative of the state) of preventing criminal proliferation in the economic fabric. Inclusion that is achieved through the empowerment of economic operators and the reward enhancement of virtuous business conduct favored also through reward mechanisms related to the granting of the legality rating. From these considerations, the conclusions reached by the research are in the direction of the need to decline prevention activity according to a paradigm that is not bent on the afflictive one, but oriented toward autonomous - primarily “curative” - purposes, reducing, in this way, the most invasive forms of authoritative intervention in the private legal sphere to extrema ratio.