L’informativa antimafia dopo Corte cost. n. 180 del 2022: un’indagine in prospettiva costituzionale degli itinerari di riforma e della giurisprudenza amministrativa

The essay addresses the problematic knot underlying the anti-mafia interdiction measures and their “connections” with the discipline of the “anti-mafia code” from a constitutional perspective: the need that those measure do not harm in a disproportionate way Constitutional freedoms and do not endanger deeply the functioning of the economic system. The A. considers the analysis of the itineraries of constitutional jurisprudence of which, in particular Constitutional Court Nos. 57 of 2020 and 180 of 2022 constitute the latest landfalls. Both from the constitutional jurisprudence examined and the fundamental elements of the amendments to the regulation of disclosure adopted at the end of 2021, it emerges the need to adapt, to the greatest extent possible, the limitations to the Constitutional freedom of art. 41.1 Cost. to the specific conditions of the recipient enterprise, so as to achieve the goal of eliminating infiltration or conditioning with the least possible harm to the enterprise itself and to the economic system as a whole. The analysis is conducted in the light of the recent legislative changes that were somewhat needed due to the evolution of administrative jurisprudence and of the warnings of the constitutional Court. The antimafia information is clearly put into context within a system of other measures that can anticipate or replace it. This means that this measure would be adopted in context and in connection with other measures regulated by the anti-mafia code, having regard to the seriousness of the infiltration and the specificity of the space-time context in which it takes place. The underlying thesis is that this, after all, is nothing more than an application of the virtues to be derived from Article 3 of the Constitution, as much with respect to the indication to treat equal situations equally and different situations differently. Measures limiting constitutionally guaranteed freedoms can be regulated and enforced if and to the extent necessary to contrast organized crime, thus in compliance with the principles of reasonableness and proportionality in a material sphere in which the legislative options to counter the criminal emergency intercept the freedoms most directly harmed by the economic consequences of the post-pandemic emergency.