ORDER NO. 156
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 rendered the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 2, paragraphs 1, 2, 3, 5, 6, and 8, of Puglia Regional Law No. 20 of August 12, 2022, concerning "Rules for the reuse and requalification of buildings and amendments to Regional Law November 15, 2007, No. 33 (Recovery of attics, porches, semi-basement rooms and existing interventions and unauthorized public areas)," initiated by the President of the Council of Ministers, with appeal notified and filed with the Registry on October 18, 2022, registered under No. 80 of the 2022 appeals register and published in the Official Gazette of the Republic No. 48, first special series, of the year 2022.
Having seen the constitution of the Puglia Region;
having heard, at the chamber hearing of June 18, 2024, the Reporting Judge Filippo Patroni Griffi;
having deliberated at the chamber hearing of June 18, 2024.
Considering that, by appeal filed on October 18, 2022, and registered under No. 80 of the 2022 appeals register, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, initiated, among others, questions of constitutional legitimacy of Article 2, paragraphs 1, 2, 3, 5, 6, and 8, of Puglia Regional Law No. 20 of August 12, 2022, concerning "Rules for the reuse and requalification of buildings and amendments to Regional Law November 15, 2007, No. 33 (Recovery of attics, porches, semi-basement rooms and existing interventions and unauthorized public areas)";
that Chapter I of this Regional Law, in order to promote the reuse and requalification of the building heritage, regulates interventions for the restructuring of existing buildings with their expansion or demolition and reconstruction, involving or not a change of use;
that Article 2 entrusts municipalities with the identification of built-up areas where the aforementioned works are permitted and, in doing so, regulates the procedure for adopting a specific council resolution, also laying down certain rules on the content and limits of the deliberative act, as well as a closure provision for the hypothesis in which this is not adopted;
that the President of the Council of Ministers presents multiple profiles of constitutional illegitimacy of this regulatory framework;
that, firstly, paragraph 1 – insofar as it considers that manufacturing programs, in addition to urban planning instruments, are suitable for identifying homogeneous zones B and C, within the perimeter of which the aforementioned municipal act may permit the interventions in question – would violate Article 117, third paragraph, of the Constitution in the matter of "territorial government," in relation to the fundamental principles set forth in Article 9, paragraphs 1 and 2, of Presidential Decree No. 380 of June 6, 2001, containing the "Consolidated text of legislative and regulatory provisions on building matters. (Text A)";
that, secondly, paragraph 2 – insofar as it would exempt the aforementioned municipal resolution from the verification of compatibility with the landscape plan – would conflict with Articles 9 and 117, second paragraph, letter s), of the Constitution, in relation to Articles 143, paragraph 9, and 145, paragraphs 4 and 5, of Legislative Decree No. 42 of January 22, 2004 (Code of cultural and landscape heritage, pursuant to Article 10 of Law No. 137 of July 6, 2002);
that, thirdly, paragraph 3 – insofar as it provides that the council act in question may permit, under certain conditions, significant volumetric expansions for residential buildings located in rural contexts – would be detrimental to Article 117, third paragraph, of the Constitution in the matter of "territorial government," in relation to the fundamental principle of the non-derogability of building density limits established by Article 41-quinquies, paragraphs eight and nine, of Law No. 1150 of August 17, 1942 (Urban Planning Law) and by Ministerial Decree No. 1444 of April 2, 1968 (Non-derogable limits of building density, height, distance between buildings and maximum ratios between areas intended for residential and productive settlements and public or reserved spaces for collective activities, public green spaces or parking areas to be observed for the purpose of forming new urban planning instruments or revising existing ones, pursuant to Article 17 of Law No. 765 of August 6, 1967);
that, fourthly, the combined provisions of paragraphs 5 and 6 – insofar as they stipulate that the maximum percentages of volumetric increases permitted by Puglia Regional Law No. 20 of 2022 are calculated on the total existing volume, including volumes subject to building amnesty, as well as those "actually existing for which legitimate status is recognized pursuant to Article 9 bis of Presidential Decree No. 380/2001" – would violate Article 117, third paragraph, of the Constitution, in the matter of "territorial government," due to conflict with the fundamental principles deriving from Article 41-quinquies, paragraphs eight and nine, of Law No. 1150 of 1942 and Articles 2-bis and 14 of the building consolidated text;
that, finally, paragraph 8 – which establishes that, in the absence of adoption of the general act identifying the areas referred to in Article 2, paragraph 2, the building intervention may "be proposed by the individual owner with an expert report certified by a professional following a municipal council resolution" and, therefore, with individual consent, outside a framework of urban and landscape planning relating to the territorial context – would be discordant, on several grounds, with Articles 9 and 117, first paragraph, of the Constitution, the latter in relation to the European Landscape Convention, with Article 117, second paragraph, letter s), of the Constitution, in relation to Articles 135, 143, and 145 of the cultural heritage code, as well as with the principle of loyal collaboration and, furthermore, with Article 117, third paragraph, of the Constitution, in the matter of "territorial government," in relation to the principles of urban planning and the exceptionality of its derogations, set forth in Article 41-quinquies, paragraphs eight and nine, of Law No. 1150 of 1942, the agreement between the State and the regions of April 1, 2009 (Agreement, pursuant to Article 8, paragraph 6, of Law No. 131 of June 5, 2003, between the State, regions and local authorities, on the act concerning measures to relaunch the economy through building activity), Article 11 of Legislative Decree No. 112 of June 25, 2008 (Urgent provisions for economic development, simplification, competitiveness, stabilization of public finances and tax equalization), converted, with amendments, into Law No. 133 of August 6, 2008, and Article 5 of Legislative Decree No. 70 of May 13, 2011 (European Semester - First urgent provisions for the economy), converted, with amendments, into Law No. 106 of July 12, 2011;
that, with a document filed on November 14, 2022, the Puglia Region constituted itself as a party to the proceedings, raising objections of inadmissibility and lack of merit of the questions of constitutional legitimacy of Article 2, paragraphs 1, 2, 3, 5, 6, and 8, of Puglia Regional Law No. 20 of 2022;
that, with a memorandum filed on May 27, 2024, shortly before the public hearing scheduled for June 18, 2024, the respondent reported on the adoption of Puglia Regional Law No. 36 of December 19, 2023, concerning "Regional rules governing building restructuring interventions pursuant to Article 3, paragraph 1, letter d), of Presidential Decree No. 380 of June 6, 2001 (Consolidated text of legislative and regulatory provisions on building matters) and other provisions," whose Article 8, paragraph 1, provided that "[c]hapter I [in which the challenged Article 2, paragraphs 1, 2, 3, 5, 6, and 8, is included] and Articles 11 and 14 of Regional Law No. 20 of August 12, 2022 [...] are repealed";
that, following this latest legislative intervention, upon a conforming resolution of the Council of Ministers of May 29, 2024, the President of the Council of Ministers, on June 5, 2024, filed a document withdrawing the entire appeal, "as the interest" in pursuing it has ceased, due to the repeal of all the challenged provisions and it not appearing that these provisions have "been applied in the meantime";
that, on June 12, 2024, upon a conforming resolution of the Regional Government rendered on June 11, 2024, the Puglia Region filed a document accepting the aforementioned withdrawal of the appeal;
that, following the withdrawal of the appellant, the President of this Court, by decree of June 12, 2024, scheduled the hearing of the appeal for the chamber hearing of June 18, 2024.
Considering that the President of the Council of Ministers has withdrawn the entire appeal indicated in the heading, following a resolution of the Council of Ministers;
that the withdrawal has been accepted by the Puglia Region;
that the withdrawal of the appeal, accepted by the constituted opposing party, determines, pursuant to Article 25 of the Supplementary Rules for proceedings before the Constitutional Court, the extinction of the proceedings.
Having seen Article 26, second paragraph, of Law No. 87 of March 11, 1953, and Articles 24, paragraph 1, and 25 of the Supplementary Rules for proceedings before the Constitutional Court.
for these reasons
THE CONSTITUTIONAL COURT
declares the proceedings extinct.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on June 18, 2024.
Signed:
Augusto Antonio BARBERA, President
Filippo PATRONI GRIFFI, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on August 2, 2024