Conflitto di interessi ed esercizio della funzione amministrativa

[Autom. eng. transl.] The investigation into the conflict of interest and the exercise of the administrative function found a reason in the writings of the doctrine, numerous after the introduction of art. 6-bis ln 241/1990, and in the rulings of the administrative jurisprudence, significant with the passage of time and such as to allow to draw a first evolutionary line. The study and analysis of the conflict of interest were conducted with the aim of avoiding the sociological aspects of the phenomenon and any ethical or moralizing temptation, which also pervade a certain reading of the measures and instruments proper to administrative law in the prevention of maladministration. In other words, the investigation deliberately moved on the juridical level, already rich in themes and implications, and was stimulated by the emergence of a progressive deviation, in the elaboration of the different interpretations, by the size and location of the provision on the conflict of interest as referred to the exercise of the administrative function. From this point of view, the investigation gave space to profiles that did not seem to fully grasp in the arguments developed by part of the doctrine and in the motivations of some judgments of the administrative judge, first of all that of the lack of legitimacy of the official who it is in a situation of conflict of interest, even potential. Certainly debated aspects and subject of great attention in the contributions and administrative judgments on the official's conflict of interest, in particular that related to the recurring claim that the rules on the incompatibility of the official, in addition to ensuring the impartiality of the administrative action, are aimed at ensuring the prestige and image of the public administration by placing it above all suspicions, have been investigated not only in the dimension of the statement of principle, but also in the perspective of the impact on the plane of the effects of the violation of the provision on the obligation to abstain. It was natural to take another request for the investigation into the fundamental question that immediately accompanied the introduction of art. 6-bis ln 241/1990: that of the effective "usefulness", in the face of the general principles governing administrative action and the principle of impartiality in primis, of a general provision on the official's conflict of interest, especially assessed in relation to a certain lacunosity of the normative text, referred by some also to the very notion of conflict of interest. This is a question that many authors have grasped, albeit most of the time in the perspective of a general criticism regarding the appropriateness and usefulness of the changes made by the 2012 reform to the law on the proceeding. To this question we have tried to answer, in the too often underestimated perspective of the centrality, also with respect to the provision on the conflict of interests, of the administrative function, but not in a purely objective sense, due to a result or a purpose to be achieved, but in the correct perspective required by art. 6-bis ln 241/1990, that is that of the agent. A perspective in which the centrality of subjective impartiality is taken seriously, because at stake is much more an organizational burden that weighs on the bureaucratic apparatus, but the same credibility of the public administration.