JUDGMENT NO. 167

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Justices: 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 proceedings concerning the constitutional legitimacy of Article 26, paragraphs 20, letter a), and 21, of the Law of the Abruzzo Region No. 4 of 25 January 2024, entitled "Financial provisions for the drafting of the 2024-2026 Financial Forecast Budget of the Abruzzo Region (Regional Stability Law 2024)”, initiated by the President of the Council of Ministers with a notice of appeal served on 25 March 2024, filed with the Registry on 26 March 2024, registered under No. 12 of the register of appeals for 2024 and published in the Official Gazette of the Republic No. 17, special series I, of the year 2024.

Having regard to the deed of constitution of the Abruzzo Region;

Having heard, at the public hearing of 24 September 2024, the Reporting Judge Antonella Sciarrone Alibrandi;

Having heard the State Attorney Gianna Galluzzo for the President of the Council of Ministers and the Attorney Stefania Valeri for the Abruzzo Region;

Having deliberated in the Council Chamber of 24 September 2024.

Facts of the Case

1.– By means of an appeal filed on 26 March 2024, registered under No. 12 of the register of appeals for 2024, the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, has challenged Article 26, paragraphs 20, letter a), and 21, of the Law of the Abruzzo Region No. 4 of 25 January 2024, entitled "Financial provisions for the drafting of the 2024-2026 Financial Forecast Budget of the Abruzzo Region (Regional Stability Law 2024)”, for violation of Article 117, third paragraph, of the Constitution.

Specifically, paragraph 20, letter a), of the challenged Article 26 amended paragraph 1 of Article 1 of the Law of the Abruzzo Region No. 10 of 18 April 2011 (Rules on building activity in the Abruzzo Region), replacing the words "as of 31.12.2021” with "as of 31.12.2022”. Following said amendment, Article 1, paragraph 1, of the Abruzzo Region Law No. 10 of 2011 now reads as follows: "[the] recovery of attics existing as of 31.12.2022 for residential purposes is permitted, subject to the issuance of a building permit for housing”.

The subsequent paragraph 21 of the same Article 26, however, intervened on Article 2, paragraph 1, letter a), of the Law of the Abruzzo Region No. 40 of 1 August 2017 (Provisions for the recovery of existing buildings. Intended uses and containment of land use, amendments to L.R. 96/2000 and further provisions), similarly replacing the words "as of 31.12.2021” with "as of 31.12.2022”. As a result, Article 2, paragraph 1, of the Abruzzo Region Law No. 40 of 2017 now provides that "[f]or the purposes of the application of this law, the following are defined: a) accessory rooms and premises: the rooms and premises existing as of 31.12.2022 […]”.

1.1.– According to the appellant, "the aforementioned provisions […] allow, within the scope of initiatives for the recovery of existing buildings, the residential use of such premises regardless of urban planning parameters and building densities”, according to a "distorting” mechanism that would allow the original construction of attics and accessories without creating urban volume, and then, precisely by virtue of the challenged provisions, allow their use for housing purposes without requiring compliance with urban planning and building parameters.

The challenged provisions would consequently violate Article 117, third paragraph, of the Constitution, due to a conflict with the fundamental principles of the matter "government of the territory”, through the violation of the interposed parameters set forth in Articles 2-bis and 14 of Presidential Decree No. 380 of 6 June 2001, containing the "Consolidated Law of the legislative and regulatory provisions in building matters (Consolidated Text A)”, in Article 41-quinquies of Law No. 1150 of 17 August 1942 (Urban Planning Law), and in the urban standards set forth in the Decree of the Minister of Public Works, in consultation with the Minister of the Interior, No. 1444 of 2 April 1968 (Mandatory limits of building density, height, distance between buildings and maximum ratios between spaces intended for residential and productive settlements and public spaces or spaces reserved for collective activities, green areas or parking to be observed for the purposes of the formation of new urban planning instruments or the revision of existing ones, pursuant to Article 17 of Law No. 765 of 6 August 1967).

According to the appeal, in light of the aforementioned provisions of the Building Consolidated Law, regions would not be permitted to introduce, by law, generalised and permanent derogations to urban planning and to the standards established by Ministerial Decree No. 1444 of 1968, save for temporary and exceptional regulations, since planning is the main venue where a synthesis of multiple interests, also of constitutional importance, pertaining to each territorial area is achieved. On the other hand, as clarified by constitutional case law, Article 41-quinquies of Law No. 1150 of 1942, in providing for the observance of mandatory limits in the formation of urban planning instruments, would presuppose the necessary existence of the system of territorial planning (Judgments No. 17 of 2023, No. 24 of 2022 and No. 219 and No. 170 of 2021 are cited in this regard). A corollary of the foregoing – it is deduced in the appeal – is that all individual transformation interventions should find a basis in a planning act and comply with its provisions.

In addition, the appellant recalls that, where repeated extensions of provisions providing for a generalised possibility of volumetric recovery for housing purposes are established, constitutional case law (Judgments No. 147 and No. 17 of 2023 are cited) has ruled that such regulations "must necessarily be exceptional and temporary”, in order to limit the risk of an exponential increase in the number of allowable interventions, also in deviation from urban plans, "in contradiction with the objectives of containing land consumption and energy efficiency”.

2.− By means of a brief filed on 30 April 2024, the Abruzzo Region entered an appearance in the proceedings, requesting that the issue be declared, first of all, inadmissible and, subordinately, unfounded.

2.1.− The respondent has objected to the inadmissibility of the issue for lack of adequate justification, highlighting, in particular, how the mere reference to Article 14 of Presidential Decree No. 380 of 2001, relating to the case of a building permit in derogation, is not accompanied by any specific argumentation, "especially under the profile of its relevance to the principle of the non-derogability of urban planning instruments by the Regions”.

2.2.– With regard to the merits, the Abruzzo Region believes that the State’s censure stems from the erroneous assumption that the challenged legislation would allow building recovery interventions in derogation, not only to the existing urban planning instruments, but also to the different parameters of height, distance and building density established by Ministerial Decree No. 1444 of 1968.

This assumption would be entirely disproved by the regulatory framework of the two regional regulations affected by the challenged provisions – specifically, Abruzzo Region Law No. 10 of 2011 and No. 40 of 2017 – whose *ratio* would consist in promoting and consolidating the recovery of attics, rooms and accessory premises for residential purposes with the aim of rationalising and containing land consumption. In pursuing this purpose, the regional legislator would have intended to derogate "exclusively from the limits and requirements of the municipal urban planning instruments and the existing municipal building regulations”, excluding any intention to derogate from state urban standards, as would emerge from the express reference to compliance with Ministerial Decree No. 1444 of 1968 contained in paragraph 7 of Article 1 of the Abruzzo Region Law No. 10 of 2011.

According to the Region, the binding legal force recognised to the provisions of Ministerial Decree No. 1444 of 1968 with respect to the regional legislator could not also be recognised to the parameters, possibly more restrictive, fixed at the local level by the municipalities in the exercise of their planning function. In this regard, the regional defence cites the guidance of this Court, according to which the planning system does not amount to such an absolute and stringent principle as to prevent the regional law from providing for interventions in derogation of local urban planning instruments, provided that state limits on distances, landscape protection, hygiene and health are observed (Judgments No. 119 of 2020 and No. 208 of 2019 are cited).

The regional defence then argues that the Abruzzo Region Law No. 10 of 2011, following the amendments made by Article 19 of the Abruzzo Region Law No. 14 of 16 June 2020 (Accounting provisions for the management of the 2020/2022 budget, amendments and additions to regional laws and further urgent and non-deferrable provisions), now specifies, in paragraph 4-bis of Article 1, that the residential recovery of attics is permitted only in derogation of the existing and adopted "municipal urban planning instruments”, as well as the existing building regulations. The new legislation, the respondent emphasises, was introduced for the specific purpose of overcoming, through a new drafting of the provision, the issue of legitimacy raised against the previous one – as introduced by Article 10, paragraph 1, letter c), of the Law of the Abruzzo Region No. 3 of 28 January 2020, entitled "Financial provisions for the drafting of the 2020-2022 Financial Forecast Budget of the Abruzzo Region (Regional Stability Law 2020)” – by the President of the Council of Ministers, who, due to the satisfactive nature of the amendment, then partially waived the appeal then lodged, resulting in a declaration of partial cessation of the matter in dispute by this Court (Judgment No. 118 of 2021).

Moreover, the respondent recalls that the provisions of the Abruzzo Region Law No. 40 of 2017 have also been examined by this Court, which, with Judgment No. 245 of 2018, held that the issues raised with regard to Article 4, paragraph 4, of the aforementioned regional law were unfounded, according to which the recovery of rooms and accessory premises is possible "also in derogation of the limits and building requirements of the existing municipal urban planning and building instruments, or in the absence thereof”.

In light of the foregoing, the Region therefore excludes the merits of the alleged constitutional illegitimacy.

With regard to the repeated regulatory extensions of building interventions in derogation of municipal urban planning, recently stigmatised by this Court in Judgments No. 147 and No. 17 of 2023 cited in the appeal, the respondent believes that the same conclusions of constitutional illegitimacy cannot be reached for the two regional rules challenged today.

According to the Abruzzo Region, in fact, the derogating scope of the regional regulations under consideration would be limited to a shorter period of time (five years) than that, much more extensive (thirteen years) and censured by this Court, of the Apulian and Sicilian regulations, and it could therefore "be considered that the characteristics of temporariness and exceptionality that legitimise the derogation from the principle of urban planning are in force [for the case under examination]”.

Notwithstanding the above, the respondent believes that the challenged provisions should be assessed in light of the political, social and legal context in which they have developed, as part of a regional policy of containing land consumption to be implemented through the enhancement of activities for the recovery of existing buildings and a more effective reuse of existing volumes, which would be expressed in the very recent Abruzzo Region Law No. 58 of 20 December 2023 (New urban planning law on land use management) which, by introducing a new model of urban development based on containing land consumption, discourages new construction in favour of measures for the recovery, redevelopment and regeneration of existing buildings.

Furthermore – the Abruzzo Region still believes – the recovery interventions of attics and accessory premises would be in line with the greater favour shown by the state legislator for the recovery of existing buildings, through the provision of tax incentives, such as the superbonus, pursuant to Article 119 of Decree-Law No. 34 of 19 May 2020 (Urgent measures on health, support for employment and the economy, as well as social policies related to the epidemiological emergency from COVID-19), converted, with amendments, into Law No. 77 of 17 July 2020, the ecobonuses and the earthquake bonus, regulated, respectively, by Articles 14 and 16 of Decree-Law No. 63 of 4 June 2013 (Urgent provisions for the transposition of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010, on the energy performance of buildings for the definition of infringement procedures initiated by the European Commission, as well as other provisions on social cohesion), converted, with amendments, into Law No. 90 of 3 August 2013. The challenged provisions would also be consistent with the legislative evolution undergone by the concept of "building restructuring”, since Article 3, paragraph 1, letter d), Building Consolidated Law, as amended by Article 10, paragraph 1, letter b), No. 2, of Decree-Law No. 76 of 16 July 2020 (Urgent measures for simplification and digital innovation), converted, with amendments, into Law No. 120 of 11 September 2020, now includes – with regard to areas subject to protection, historical centres, areas of historical and architectural interest – also interventions for demolition and reconstruction of existing buildings with different shapes, different elevations, different footprints and differences in planivolumetric and typological characteristics.

For the respondent, the regional rule, through the extension of the deadline for the existence of the building to be recovered to 31 December 2022, would aim to exploit for housing purposes those "technical” volumes of demolished and reconstructed buildings, which have come into existence only recently as a result of the new definition of "building restructuring” and which, in the absence of the extension, would remain excluded from the derogation, even though they are buildings "in the abstract” dating back to an earlier period.

Furthermore, according to the respondent, the extensions under dispute would also allow buildings damaged by the seismic events of 2009 and 2016, which are outside the scope of the provision for the recovery of attics due to their being subject to the post-earthquake reconstruction plan as "new buildings”, to take advantage of the measure for the residential recovery of technical volumes.

Finally, the Abruzzo Region indicates two provisions of two regional laws – respectively Article 63 of the Lombardy Region Law No. 12 of 11 March 2005, entitled "Law for the government of the territory” and Article 6 of the Piedmont Region Law No. 16 of 4 October 2018, entitled "Measures for the reuse, redevelopment of buildings and urban regeneration” – which, although they have stabilised and made permanent the volumetric recovery of attics, have remained immune from government censure.

3.– Pursuant to Article 10, paragraph 3, of the Supplementary Rules for Proceedings before the Constitutional Court, a question was finally formulated to the parties, who answered it during the public hearing, insisting, at the end of their speeches, on the acceptance of the conclusions formulated in their respective briefs.

Findings of Law

1.– By means of the appeal indicated in the headnote, the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, has challenged Article 26, paragraphs 20, letter a), and 21, of the Abruzzo Region Law No. 4 of 2024, for violation of Article 117, third paragraph, of the Constitution.

The aforementioned regional provisions have, in particular, replaced the deadline of 31 December 2021, contained both in Article 1, paragraph 1, of the Abruzzo Region Law No. 10 of 2011, and in Article 2, paragraph 1, letter a), of the Abruzzo Region Law No. 40 of 2017, with that of 31 December 2022.

As a result of this amendment, Article 1, paragraph 1, of the Abruzzo Region Law No. 10 of 2011 reads as follows: "[the] recovery of attics existing as of 31.12.2022 for residential purposes is permitted, subject to the issuance of a building permit for housing”; while Article 2, paragraph 1, letter a), of the Abruzzo Region Law No. 40 of 2017 reads "[f]or the purposes of the application of this law, the following are defined: a) accessory rooms and premises: the rooms and premises existing as of 31.12.2022 […]”.

1.1.– According to the appellant, the challenged provisions would violate Article 117, third paragraph, of the Constitution, due to a conflict with the fundamental principles of the matter "government of the territory” through the violation of the interposed parameters set forth in Articles 2-bis and 14 Building Consolidated Law, in Article 41-quinquies of the Urban Planning Law and in the urban standards set forth in Ministerial Decree No. 1444 of 1968, in that they would allow the generalised possibility of recovery of existing buildings "regardless of urban planning parameters and building densities”.

2.– The Abruzzo Region, which entered an appearance in the proceedings, has preliminarily objected to the inadmissibility of the issue for lack of adequate justification.

On this point, it should be specified that, although the Region has expressed itself in terms of a single issue, in reality, two distinct issues of constitutional legitimacy have been raised in this appeal, one concerning paragraph 20, letter a) of Article 26 of the Abruzzo Region Law No. 4 of 2024 and the other paragraph 21 of the same article.

With reference to both issues, the objection is well-founded.

According to the settled case law of this Court, "the need for adequate justification as the basis for the challenge arises in even more rigorous terms in proceedings brought by way of a principal action than in those brought by way of an incidental action” (Judgment No. 20 of 2021; similarly, Judgments No. 123 of 2024 and No. 170 of 2021). Therefore, the appellant has the burden not only to identify the challenged provisions and the constitutional parameters that are alleged to be violated, but also to attach, in support of the issues raised, a justification that is not merely assertive, sufficiently clear and complete (among many, Judgments No. 142, No. 141 and No. 133 of 2024).

The President of the Council of Ministers has not fulfilled this burden of justification.

The State's appeal, in fact, while identifying the challenged provisions and the constitutional and interposed parameters for which a violation is complained of, nevertheless lacks a clear indication of the reasons for the alleged conflict, with only the content of some of this Court's precedents and the principles affirmed therein being cited, without any examination of the damaging scope of the challenged provisions and the reasons for the conflict with the evoked parameters.

More precisely, the challenge concerns two regional provisions that extend the deadline – which has already been extended several times – set in the context of two other regulations of the Abruzzo Region, concerning the recovery of attics and buildings. However, neither the challenged provisions nor those directly affected by them contain even the slightest reference to the alleged derogation from the instruments and urban standards; a derogation that is, in fact, provided for in other and different articles of the two Abruzzo regional laws, No. 11 of 2010 and No. 40 of 2017, with which the appellant fails to compare.

The Government merely states apodictically that the challenged provisions "allow, within the scope of initiatives for the recovery of existing buildings, the residential use of such premises regardless of urban planning parameters and building densities”. Without giving an account of the regulatory basis for this assumption, through a reconstruction of the regulatory framework in which the challenged provisions are inserted, the appellant contests that "[t]his distorting mechanism allows, first of all, the construction of attics and accessories without urban volume being added, except then, by virtue of rules such as the one under examination, their use for housing purposes, without requiring compliance with urban planning and building parameters”. There is therefore a complete lack of an argumentation on the merits, albeit succinct, in support of the alleged derogation from urban standards, all the more so in light of the overall regional regulatory system.

Furthermore, with specific reference to the one-year extension of the deadline contemplated in previous provisions that already allowed the described recovery interventions, the appellant only mentions this in the concluding part of the appeal, by referring to this Court’s Judgments No. 147 and No. 17 of 2023, without, however, adequately explaining the reasons why the principles expressed therein can also be applied to the examination of the rules that are the subject of the present proceedings.

The aforementioned lack of justification therefore renders the issues raised inadmissible.

for these reasons

THE CONSTITUTIONAL COURT

declares inadmissible the issues of constitutional legitimacy of Article 26, paragraphs 20, letter a), and 21, of the Law of the Abruzzo Region No. 4 of 25 January 2024, entitled "Financial provisions for the drafting of the 2024-2026 Financial Forecast Budget of the Abruzzo Region (Regional Stability Law 2024)”, raised, in reference to Article 117, third paragraph, of the Constitution, by the President of the Council of Ministers with the appeal indicated in the headnote.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 24 September 2024.

Signed:

Augusto Antonio BARBERA, President

Antonella SCIARRONE ALIBRANDI, Reporting Judge

Roberto MILANA, Director of the Registry

Filed with the Registry on 24 October 2024