Sul parere precontenzioso dell'Autorità Nazionale Anticorruzione (ANAC). Una suggestione per un nuovo modello processuale? Un sistema di A.D.R per il contenzioso in materia di appalto pubblico? O una fattispecie di dubbia costituzionalità?

Abstract

The pre-litigation legal opinion by ANAC doesn’t elude a careful reflection on its compatibility with Constitution. Is ANAC even a new and other judge? The role assigned to the Authority, from art. 211, 1 comma, d. lgs. n. 50/16, is a role of an Authority that is just judicial, not of an Anti-corruption Authority. The legal opinion is expression of a new power of Anti-corruption Authority that is seriously careful to constitutional constructs of legal system, violating principle of separation of powers, that represents, surely, an historical and undeniable need of our State, as well as the constitutional precept of art. 102, that prohibits the institution of new judges or other special judges. The prospective of a dangerous implement of corrosive activities of constitutional guarantees, involves the need to propose an immediate intervent to resolve this confusion of roles. It is proposed the abduction of this system from ANAC and the creation of an ad hoc ADR stuff, for conflicts born from procedures of public procurement to control and prevent (the pathology) and the growth af a dispute that would have a strong economic and social impact in distribution and creation of equity and work system.