JUDGMENT NO. 125

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has issued the following

JUDGMENT

in the judgment concerning the constitutional legitimacy of Article 135, paragraph 7, of the Law of the Autonomous Province of Trento of 4 March 2008, No. 1 (Urban Planning and Land Management), promoted by the Regional Administrative Court of Justice of Trentino-Alto Adige, seat of Trento, in the proceedings between F. F. and R. N. and the Municipality of Stenico and others, by order of 22 November 2023, registered under No. 13 of the register of orders 2024 and published in the Official Gazette of the Republic No. 7, first special series, of the year 2024.

Having considered the instrument of intervention of the Autonomous Province of Trento;

Having heard in the council chamber of 18 June 2024 the Judge Rapporteur Marco D'Alberti;

Deliberated in the council chamber of 18 June 2024.

Considered in Fact

1.– By order of 22 November 2023, registered under No. 13 of the register of orders 2024, the Regional Administrative Court of Justice of Trentino-Alto Adige, seat of Trento, raised questions of constitutional legitimacy of Article 135, paragraph 7, of the Law of the Autonomous Province of Trento of 4 March 2008, No. 1 (Urban Planning and Land Management), with reference to Article 3 of the Constitution and to Articles 4 and 8 of Presidential Decree No. 670 of 31 August 1972 (Approval of the consolidated text of the constitutional laws concerning the special statute for Trentino-Alto Adige).

The challenged provision allows the issuance of a building permit for regularization «when it is duly requested and conforms, at the time of submission of the application, to the urban planning regulations in force and is not in conflict with those adopted, even if the work for which it is requested has already been carried out illegally».

2.– The referring court describes the factual situation of the proceedings a quo in the following terms.

2.1.– F. F. and R. N. challenged before the TRGA of Trento a building permit for regularization issued by the Municipality of Stenico pursuant to Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, denouncing, with the first two grounds of appeal, the deficiency of the investigation due to incomplete representation of the state of the places, as well as the failure to comply with the regulations on distances.

With a third ground of appeal, the appellants contested the violation of Article 135 of the Provincial Law of Trento No. 1 of 2008, as the permit granted would have regularized an intervention in conflict with the urban planning instruments in force both at the time of the execution of the intervention itself, and at the time of submission of the regularization application (Articles 21 and 23 of the factory plan and Article 18.1 of the municipal urban plan).

2.2.– After having rejected, also as a result of the performance of a specific investigation, the first two grounds of appeal (non-definitive judgment of 13 November 2023, No. 177), the referring judge considered that the cognizance of the third and last ground presupposed the incidental ascertainment of the question of constitutional legitimacy of Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, due to conflict with the requirement of "double conformity” sanctioned by Article 36 of Presidential Decree No. 380 of 6 June 2001, containing «Consolidated Text of the legislative and regulatory provisions on construction matters. (Text A)».

2.2.1.– Regarding relevance, the order of referral highlights that the building permit for regularization was «requested and issued» on the basis of the challenged provision: on the other hand, according to the referring judge, it would not be disputed, in the case in question, that these are works that can only be regularized pursuant to Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, «the requirement of the so-called "double conformity" being absent». Furthermore, the TRGA underlines that, in the third ground of appeal, the appellants would have contested precisely «the application of the regularization mechanism» provided for by the challenged provision.

2.2.2.– As for the non-manifest groundlessness of the issue, the referring judge recalls the constitutional jurisprudence which, while having traced the discipline of the so-called ascertainment of urban planning conformity to the matter of «land management», has clarified that «it is up to the state legislator to choose on the an, when and quantum of regularization, with the regional legislator being able to intervene only with regard to the articulation and specification of these provisions» (judgment No. 232 of 2017).

In light of this, according to the TRGA, Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, would be in contrast both with Article 3 of the Constitution, «under the dual profile of violation of the principle of equality and the principle of reasonableness», and with the «combined provisions of Articles 4 and 8 of the Statute of Autonomy of the Trentino - Alto Adige/Südtirol Region, approved by Presidential Decree No. 670 of 31 August 1972»: the statute of the Trentino-Alto Adige region, in fact, would subordinate the primary legislative power in matters of «urban planning and regulatory plans» to compliance with the «principles of the legal system of the Republic», which would also include the requirement of the so-called "double conformity”.

3.– The Autonomous Province of Trento intervened in the proceedings, requesting that the questions be declared inadmissible and unfounded.

3.1.– The Province, first of all, has raised the objection of inadmissibility of the question due to contradictoriness and lack of motivation on relevance and non-manifest groundlessness.

As for the lack of relevance, in the opinion of the Autonomous Province, the referring judge would not have clarified whether the discrepancies with the urban planning instruments contested by the appellants were to be referred to «the current moment or the moment of the execution of the intervention», nor whether between these two different moments the urban planning discipline of reference has actually changed: therefore, the existence of the «factual premise that integrates the case» governed by the challenged provision would not have been demonstrated.

Regarding the motivation on non-manifest groundlessness, it was instead objected that the referring TRGA would have referred to the constitutional jurisprudence concerning legislative interventions of regions with ordinary status and not of regions with special status.

3.2.– On the merits, the Province points out that the challenged provision would be attributable to its primary legislative competence in matters of «urban planning and regulatory plans» (Article 8, number 5, statute of the Trentino-Alto Adige region). This primary competence, according to the intervening party, «necessarily implies the possibility [...] of providing for differentiated disciplines aimed at adapting the institutions of the state system to the reality of the provincial context in compliance with the principles of the legal system of the Republic» (the judgments of this Court No. 196 of 2004 and No. 418 of 1995 are cited).

In light of this, through Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, the hypotheses of building abuses characterized by a minor gravity would have been regulated, as they conflict with the urban planning discipline only at the time of the execution of the work, while ensuring the deterrent effectiveness of pecuniary sanctions (for which an increase of twenty percent is provided).

According to the Province, the challenged provision, allowing the preservation of the abusive work that conforms, «on the assumption that it does not entail an alteration of the orderly arrangement of the territory resulting from the current planning, should not be seen as an extensive interpretation of the discipline currently contained in Article 36 of the consolidated text on construction up to including cases in which there is no double conformity, but as the discipline of a different case which, consistently with the principles of the system, legitimizes only for the future (unlike the regularization permit which regularizes now for then) and only with administrative effects, the presence of works which, once demolished, could be rebuilt identically».

On the other hand, according to the intervening party, it would only be the «much greater seriousness of the problem of illegal construction in other regions of Italy (up to 50.4 illegal constructions for every 100 authorized)» that has made it necessary to provide at state level «particularly severe instruments of contrast and prevention», including the introduction of the «requirement of double conformity and the related absolute presumption of illegitimacy of the regularizing urban planning». But in a context, such as the provincial one, where illegal construction would have maintained «contained» dimensions, it would be reasonable and appropriate to «maintain a regime of only administrative regularization, in addition to the mechanism of regularization based on the assumption of double urban planning conformity».

In light of all this, Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, would ensure the reasonable balance between the different interests at stake, in compliance with the principles of suitability, necessity and proportionality.

Considered in Law

1.– With the order indicated in the heading (r. o. No. 13 of 2024), the TRGA of Trento raised, with reference to Article 3 of the Constitution and to Articles 4 and 8 of the statute of the Trentino-Alto Adige region, questions of constitutional legitimacy of Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008, where it provides that the regularization permit can be issued «when it is duly requested and conforms, at the time of submission of the application, to the urban planning regulations in force and is not in conflict with those adopted, even if the work for which it is requested has already been carried out illegally».

In the opinion of the referring court, the challenged provision, allowing the issuance of the regularization permit even in the absence of conformity with the urban planning regulations in force at the time of execution of the building intervention (so-called "double conformity”), would violate Article 3 of the Constitution, under the dual profile of the infringement of the principle of equality and the principle of reasonableness, and Articles 4 and 8 of the statute of the Trentino-Alto Adige region, in the part in which they subordinate the exercise of the legislative power of the Autonomous Provinces of Trento and Bolzano in matters of «urban planning and regulatory plans» to compliance with the «principles of the legal system of the Republic», which would include the requirement of the so-called "double conformity” prescribed by Article 36 of the consolidated text on construction.

2.– The provincial defense has raised the objection of inadmissibility of the questions of constitutional legitimacy, due to lack of motivation on relevance and non-manifest groundlessness.

The objections are unfounded.

2.1.– According to the constant constitutional jurisprudence, «the assessment of the judge a quo on relevance exceeds the admissibility check when "the referring court illustrates in a not implausible way 'the reasons that justify the application of the challenged provision and determine the prejudiciality of the raised question with respect to the definition of the main proceedings' (ex plurimis, judgment No. 105 of 2018)" (judgment No. 85 of 2020)» (judgment No. 151 of 2023).

In the case in question, the motivation of the referring judge on the relevance of the question amply exceeds such a check of non-implausibility.

As emerges from the order of referral, in fact, the appellants have contested – in the third and last ground of appeal – the violation, by the challenged provision, of the challenged provincial provision, complaining about the conflict between the regularization permit and some provisions of the municipal urban planning discipline. Therefore, the provision in question, in addition to having constituted the premise for the issuance of the regularization permit, was also the subject of a specific censure by the appellants, who contested its application by the administration: which appears sufficient to demonstrate the certain relevance of the question of constitutional legitimacy for the purposes of the definition of the proceedings a quo.

2.2.– As for the alleged lack of motivation on the non-manifest groundlessness, it should be emphasized that – contrary to what is maintained by the intervening Province – the order of referral has made adequate reference to the main orientations of the constitutional jurisprudence relating to the requirement of the so-called "double conformity”, also recalling those pronouncements that have dealt with regularization legislations adopted by regions with special status (judgment No. 232 of 2017).

3.– On the merits, the questions are well-founded for violation of Articles 4 and 8 of the statute of the Trentino-Alto Adige region.

3.1.– This Court has for some time considered it necessary, for the purposes of the "regularization" of the works carried out in the absence of or in discrepancy with the building permit, «the absolute respect of the relative prescriptions "during the entire period of time between the execution of the work and the submission of the application" (most recently, judgments No. 24 of 2022, No. 77 of 2021, No. 68 of 2018 and No. 232 of 2017), with the consequence that only formal abuses are regularizable (works carried out in the absence of, or in discrepancy with, the building permit), which do not cause urban-building damage» (thus, most recently, judgment No. 93 of 2023).

In this perspective, it has been clarified that the principle of the so-called "double conformity”, «in delimiting the presuppositions and limits of the regularization, plays a crucial role in the building discipline and, as it can be traced back to the fundamental norms of economic-social reform», also binds the legislative power of regions with special autonomy to which is recognized, at the statutory level, a primary competence in urban planning (judgment No. 24 of 2022; in the same sense, judgment No. 232 of 2017).

3.2. The Autonomous Province of Trento is the holder of a primary legislative competence in matters of «urban planning and regulatory plans» (Article 8, number 5, statute of the Trentino-Alto Adige region), which must be exercised – pursuant to Article 4 of the same statute – in harmony with «the principles of the legal system of the Republic» and in compliance with «the fundamental rules of the economic and social reforms of the Republic» (see judgment No. 231 of 1993).

3.3.– Article 135 of the Provincial Law of Trento No. 1 of 2008 has introduced – in addition to a provision on the ascertainment of conformity consistent with Article 36 of the consolidated text on construction (Article 135, paragraph 1) – also a discipline which, unlike what is provided for at state level, allows the issuance of building permits for regularization for works that conform «at the time of submission of the application, to the urban planning regulations in force and are not in conflict with those adopted» (Article 135, paragraph 7). In essence, in the provincial territory it was admitted – in a generalized way – the possibility of regularizing, on an administrative level, works that, at the time of their execution, were in conflict with the urban planning instruments in force at that time, upon payment of a pecuniary penalty increased by 20 percent.

Such a discipline, by derogating from the requirement of the so-called "double conformity”, is in clear contrast with a fundamental norm of economic and social reform of the Republic, such as that contained in Article 36 of the consolidated text on construction, which, in paragraph 1, allows the issuance of the regularization permit «if the intervention is in accordance with the urban planning and building discipline in force both at the time of its execution and at the time of submission of the application».

This provision aims to ensure throughout the national territory the uniformity of the requirements and conditions under which building abuses can be brought back to legitimacy: this, to protect the effectiveness of the urban planning and building discipline and, therefore, independently of the concrete extension of the phenomenon of illegal construction in the individual territorial contexts. Therefore, the fact that, in the provincial territory, illegal construction would be of «contained» dimensions, especially if compared with other regional realities, cannot be of any relevance for the purposes of the concrete application of the requirement of the so-called "double conformity”.

3.4.– Nor does the supervening entry into force of Article 1 of the decree-law of 29 May 2024, No. 69 (Urgent provisions on building and urban planning simplification), the conversion of which, moreover, is still pending, affect the issue in question. Even if we do not want to consider, in fact, that this intervention did not intend to overcome the requirement of the so-called "double conformity”, but limited its scope of application to the most serious building abuses, it is absorbent the observation that the referring judge deduces the violation of a fundamental rule of the matter that conditions the provision of the provincial law in question, with respect to which the aforementioned decree-law has supervened, so that it does not apply to the case submitted to the attention of the referring court, which therefore does not have to apply it.

It should be reiterated, in any case, that it is up to the State – both in the definition of the fundamental principles of the matter «land management», and in the adoption of the fundamental norms of economic-social reform – the task of establishing, to protect the effectiveness of the urban planning and building discipline throughout the national territory, the cases in which the requirement of the so-called "double conformity” must find necessary application for the purposes of the issuance of the regularization permit, as well as the cases in which limitations to its concrete operability can be admitted.

It follows that the regions with ordinary status, as well as the regions with special status, must conform to this state discipline in the exercise of their respective legislative competences: this does not occur in relation to the challenged provincial provision, which generally derogates from the requirement of the so-called "double conformity”.

Therefore, the constitutional illegitimacy of Article 135, paragraph 7, of the Provincial Law of Trento No. 1 of 2008 must be declared for contrast with Articles 4 and 8 of the statute of the Trentino-Alto Adige region.

4.– The questions raised in reference to Article 3 of the Constitution are absorbed.

For These Reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 135, paragraph 7, of the Law of the Autonomous Province of Trento of 4 March 2008, No. 1 (Urban Planning and Land Management).

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 18 June 2024.

Signed:

Augusto Antonio BARBERA, President

Marco D'ALBERTI, Drafter

Valeria EMMA, Registrar

Filed in the Registry on 15 July 2024