30th of March 2010 – BFPs Legal Affairs comments on part of the Constitutional Courts judgment
On March 26th, the Constitutional Court released the judgment and the reasons of the long-awaited opinion regarding the appeal wanted by the Prime Minister against the Apulian Region for the constitutional illegitimacy of some articles of the Regional Law of October 21st 2008, nr. 31 Rules in terms of energy production from renewable sources, reduction of pollutants and environment.
Field experts were especially anxious to know about the legitimacy of art. 3 of the above RL 31/2008. Such a rule, according to which the power limit of the renewable-source plants is risen from 20 KV to 1 MW and can be authorized just by a Notice of Activity Commencement instead of the Single Regional Authorization (or an authorization issued by any delegated provinces) was, according to the Government, inconsistent with the provisions of the State Regulation, that is article 12, paragraph 5 of the Law Decree 387/2003 (Enforcement of the directive 2001/77/CE regarding the electricity produced by renewable sources within the electricity domestic market)
According to this, the detection of the main generation capacity limits and characteristics of the sites for which the same Notice of commencement is valid is carried out by decree of the Ministry for the Economic Development together with the Ministry for Environment and Protection of Territory and Sea in accordance with the Joint Conference thus resulting reserved from a state jurisdiction point of view.
The Court declared the issue illegitimate as the Apulian Regional Law infringes the State/Region legal jurisdiction pursuant to art. 117. The Court established that regarding the hypothesis of enforcement of the simplified procedure of the Notice Commencement instead of the Single Authorization, the exercise of the State Principle legislation has to be recognized in terms of domestic energy production, transport and distribution after asking the State to intervene for reasons of uniformity, for administrative tasks related to domestic energy problems (judgment nr. 383 of 2005).
Which are the real effects of declaring this rule unconstitutional?
From a legal point of view, the administrative provisions issued according to a rule declared unconstitutional are illegitimate ab origine because of the retroactive effect related to the prevalence of the constitutionally protected interests, for which the Administration has the right to cancel them for self-protection (see State Council, judgment 3458/2006).
In the event of the Notice of Commencement, the power of the Administration to intervene, thirty days after checking the existence of the notice requirements (State Council, judgment nr. 717/2009), is particularly strong compared to the individual legal situations.
Such an intervention power which can be exercised only if the requirements for the exercise of self-defence are there and as a consequence, after assessing and adequately considering the conflicting interests and in presence of the main reasons of public interest (arts. 21 quinquies and nonies l. 241/1990) requires the Administration to adopt provisions preventing the activity and removing the medio-tempore effects occurred.
The Municipalities receiving the Notices of Commencement may decide to intervene with provisions aimed at preventing the works from being carried out or carried on or at preventing the production activity and at removing the effects produced, while obviously taking into account the every single specific situation.
The construction work illegitimacy of the plants could also be ordered by third parties having interest before the Regional Administration Courts or by extraordinary appeal to the Head of the State whereas the terms provided for such defence are not past due.
Though long-awaited, the constitutionality issue risks having negative effects on the confidence about the certainty of rules and stability of the regulation which are essential for those who decide to make investments in this field and has chosen the Apulian Region as the easiest place in terms of administrative requirements to realize investments.