ORDER NO. 157
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
ORDER
in the proceedings concerning the constitutional legitimacy of Articles 3, paragraph 2, letter a); 4, paragraphs 5 and 7; 5 of the Law of the Puglia Region of 12 August 2022, No. 20, concerning "Regulations for the reuse and redevelopment of buildings and amendments to Regional Law [15] November 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 an appeal notified and filed with the Registry on 18 October 2022, registered under No. 80 of the 2022 appeal register and published in the Official Gazette of the Republic No. 48, first special series, of the year 2022.
Having regard to the joinder of the Puglia Region;
Having heard, at the Chamber hearing of 18 June 2024, Judge Maria Rosaria San Giorgio, Rapporteur;
Having deliberated at the Chamber hearing of 18 June 2024.
Whereas, by appeal filed on 18 October 2022, registered under No. 80 of the 2022 appeal register, the President of the Council of Ministers, represented and defended by the Attorney General of the State, initiated, among others, challenges to the constitutional legitimacy of Articles 3, paragraph 2, letter a); 4, paragraphs 5 and 7; 5 of the Law of the Puglia Region of 12 August 2022, No. 20, concerning "Regulations for the reuse and redevelopment of buildings and amendments to Regional Law [15] November 2007, No. 33 (Recovery of attics, porches, semi-basement rooms and existing interventions and unauthorized public areas)";
Whereas Article 3, paragraph 2, letter a), of the aforementioned Puglia Regional Law No. 20 of 2022 establishes that the expansion referred to in paragraph 1 – that is, the expansion aimed at obtaining better living comfort conditions in residential and mixed-use buildings – is conditional upon satisfying the requirement of being carried out "in physical contiguity, even in elevation, to the building and in compliance with the minimum distances and maximum heights provided for by the current municipal urban planning instruments", and that, in the absence of "specific provisions in said instruments, the maximum heights and minimum distances provided for by Ministerial Decree 1444/1968 shall apply";
Whereas, in the opinion of the appellant, the unclear wording of the aforementioned provision would lead to the conclusion that cases may arise where the municipal urban planning instruments do not comply with the maximum heights and minimum distances indicated by the Decree of the Minister for Public Works, in agreement with the Minister of the Interior, of 2 April 1968, No. 1444 (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 areas for collective activities, public green spaces or parking spaces to be observed for the purpose of creating new urban planning instruments or revising existing ones, pursuant to Article 17 of Law 6 August 1967, No. 765);
Whereas, the President of the Council further observes, the provisions of the aforementioned Ministerial Decree No. 1444 of 1968, in light of the jurisprudence of this Court, are fundamental principles which may be derogated from, pursuant to Article 2-bis, paragraph 1, of Presidential Decree 6 June 2001, No. 380, concerning "Consolidated text of legislative and regulatory provisions on building matters. (Text A)", exclusively "within the framework of the definition or revision of urban planning instruments which are in any case functional to a comprehensive and unitary arrangement or of specific territorial areas";
Whereas, therefore, the provision in question would conflict with Article 117, third paragraph, of the Constitution, with reference to the subject matter of "territorial government", included among those of concurrent legislative competence;
Whereas Article 4, paragraph 5, of the same Puglia Regional Law No. 20 of 2022 provides that the reconstruction of buildings with an increase of up to 35 percent of the legitimately existing volume "shall be carried out in compliance with the maximum heights provided for by the urban planning instruments or the further conditions provided for by Article 2-bis, paragraph 1-ter, and Article 3 of Presidential Decree 380/2001", and that the "different floor-volume arrangement within the appurtenant area must be aimed at satisfying the requirements set forth in paragraph 3";
Whereas the use of the disjunctive "or" in the body of the aforementioned Article 4, paragraph 5, by placing in alternative the urban planning provisions and the "further conditions" laid down by State regulations, would lead one to believe that compliance with the latter is only required in an alternative and residual manner, again in conflict with Article 117, third paragraph, of the Constitution, with reference to the subject matter of "territorial government", due to violation of the State principle laid down in Articles 2-bis, paragraph 1-ter, and 3 of Presidential Decree No. 380 of 2001;
Whereas Article 4, paragraph 7, of the challenged Regional Law provides that, in order to ensure a more adequate levelling and uniformity of heights and in cases where the urban planning instrument prescribes a maximum height lower than that allowed for adjoining areas with different urban planning designations, "for reconstruction works it is permitted to use the higher value of the maximum heights provided for the areas contiguous to that appurtenant to the building to be demolished";
Whereas, according to the appellant, this provision would conflict with Article 117, third paragraph, of the Constitution, by providing for an upward levelling of the height limits established by the municipal urban planning instruments for the different zones of the territory, according to a general and abstract regulation that disregards the examination of individual contexts, without reference therefore to the homogeneous territorial zones in the consideration of which urban planning is articulated in compliance with Article 8 of Ministerial Decree No. 1444 of 1968 and in accordance with the fundamental principle established in urban planning matters in Article 41-quinquies, paragraphs eight and nine, of Law 17 August 1942, No. 1150 (Urban Planning Law);
Whereas, lastly, the legitimacy of Article 5, concerning demolition and reconstruction works, is challenged for violation of Article 117, second paragraph, letter s), and third paragraph, of the Constitution, and in particular, paragraph 3 of that article, insofar as – in establishing that "[...] the increase in the zone building index resulting from such reconstruction does not constitute a variation to the provisions of the municipal urban planning plan" – it would lay down, for such works, a general and abstract rule derogating from municipal urban planning, without taking into account the specificity of the individual contexts in which building density limits are established by municipal instruments, pursuant to Article 7 of the aforementioned Ministerial Decree No. 1444 of 1968, in accordance with the fundamental principle set forth in Article 41-quinquies, paragraphs eight and nine, of Law No. 1150 of 1942; and, further, by excluding the need for a specific variation to the urban planning instrument to modify the aforementioned limits, it would not only potentially lead to exceeding the parameters of the aforementioned Ministerial Decree No. 1444, but would also exclude the conformity check phase with the landscape plan, consequently violating, as intermediary regulations, Articles 135, 143 and 145, in particular with regard to paragraph 4, of Legislative Decree 22 January 2004, No. 42 (Code of cultural and landscape heritage, pursuant to Article 10 of Law 6 July 2002, No. 137);
Whereas, by document filed on 14 November 2022, the Puglia Region joined the proceedings, arguing that the appeal was inadmissible and unfounded;
Whereas, by defence memorandum filed on 27 May 2024, in view of the public hearing scheduled for 18 June 2024, the respondent acknowledged the adoption of Law of the Puglia Region of 19 December 2023, No. 36, concerning "Regional regulations for building restructuring works pursuant to Article 3, paragraph 1, letter d, of Presidential Decree 6 June 2001, No. 380 (Consolidated text of legislative and regulatory provisions on building matters) and other provisions", Article 8, paragraph 1, of which established that "[t]he Chapter I [in which the challenged Articles 3, paragraph 2, letter a); 4, paragraphs 5 and 7; 5 are included] and Articles 11 and 14 of Regional Law 12 August 2022, No. 20 [...], are hereby repealed";
Whereas, following this latest legislative intervention, pursuant to a decision of the Council of Ministers of 29 May 2024, the President of the Council of Ministers, on 5 June 2024, filed a document withdrawing the entire appeal, "as the interest" in pursuing it has lapsed, due to the repeal of all the challenged provisions and as it did not appear that these provisions "had been applied" in the meantime;
Whereas, on 12 June 2024, pursuant to a decision of the Regional Government made on 11 June 2024, the Puglia Region filed a document accepting the aforementioned withdrawal of the appeal;
Whereas, following the withdrawal of the appellant, the President of this Court, by decree of 12 June 2024, scheduled the hearing of the appeal to the Chamber hearing of 18 June 2024.
Considering that the President of the Council of Ministers has withdrawn the entire appeal indicated above, following a decision of the Council of Ministers;
Considering that the withdrawal has been accepted by the Puglia Region;
Considering that the withdrawal of the appeal, accepted by the constituted respondent, determines, pursuant to Article 25 of the Supplementary Rules for proceedings before the Constitutional Court, the extinction of the proceedings.
Having regard to Article 26, second paragraph, of Law 11 March 1953, No. 87, 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 18 June 2024.
Signed:
Augusto Antonio BARBERA, President
Maria Rosaria SAN GIORGIO, Rapporteur
Roberto MILANA, Registrar
Filed with the Registry on 2 August 2024