JUDGMENT NO. 143

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

Composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has issued the following

JUDGMENT

in the constitutional legitimacy review proceedings of Article 2, paragraph 2, of the Liguria Regional Law of 7 February 2008, no. 1 (Measures for the Safeguarding and Valorization of Hotels and Provisions relating to the Discipline and Programming of Tourist-Receptive Supply in Municipal Town Planning Instruments), as substituted by Article 2, paragraph 4, of the Liguria Regional Law of 18 March 2013, no. 4, titled "Amendments and Integrations to Regional Law 7 February 2008, no. 1 (Measures for the Safeguarding and Valorization of Hotels and Provisions relating to the Discipline and Programming of Tourist-Receptive Supply in Municipal Town Planning Instruments) and Further Provisions Concerning Hotels”, promoted by the Regional Administrative Tribunal for Liguria, Second Section, in the proceedings between River Park Hotel srl and the Municipality of Ameglia, with an order of 23 January 2025, registered under no. 24 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 8, Special Series, of 2025.

Having reviewed the statement of appearance of the Municipality of Ameglia;

Having heard Judge Rapporteur Giovanni Pitruzzella in the public hearing of 9 July 2025;

Having heard the counsel Matteo Borello for the Municipality of Ameglia;

Deliberated in the Chamber of Council on 9 July 2025.

Facts Considered

1.– With the order of 23 January 2025, registered under no. 24 of the register of orders for 2025, the Regional Administrative Tribunal for Liguria, Second Section, raised a question of constitutional legitimacy concerning Article 2, paragraph 2, of Liguria Regional Law 7 February 2008, no. 1 (Measures for the Safeguarding and Valorization of Hotels and Provisions relating to the Discipline and Programming of Tourist-Receptive Supply in Municipal Town Planning Instruments), as substituted by Article 2, paragraph 4, of Liguria Regional Law 18 March 2013, no. 4, titled "Amendments and Integrations to Regional Law 7 February 2008, no. 1 (Measures for the Safeguarding and Valorization of Hotels and Provisions relating to the Discipline and Programming of Tourist-Receptive Supply in Municipal Town Planning Instruments) and Further Provisions Concerning Hotels”.

The provision is challenged for violation of Articles 3, 41, 42, second and third paragraphs, and 117, first paragraph, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights, and second paragraph, letter l), of the Constitution, insofar as it does not permit the release from the hotel designation even when the continuation of the activity is no longer compatible with the purpose typical of an enterprise, namely profit generation.

1.1.– The referring court states that it must rule on the appeal filed by River Park Hotel srl against the provision of 8 February 2024, prot. no. 2058, issued by the head of the Single Desk for Productive Activities (SUAP) of the Municipality of Ameglia, which rejected the request for release from the hotel designation of the property owned by the appellant, by applying the contested provision.

1.2.– The referring judge first alleges a conflict with Article 41 of the Constitution and asserts that such provision unreasonably and disproportionately limits free economic initiative, imposing a potentially indefinite designation even when the continuation of the activity is no longer profitable.

The regional discipline, by significantly compromising the owner's faculties, would infringe upon the exclusive legislative competence of the State in the matter of "civil law” (Article 117, second paragraph, letter l, of the Constitution).

Furthermore, the hotel constraint established by the Ligurian law would give rise to an expropriation constraint, in the absence of the guarantees established by Article 42, third paragraph, of the Constitution.

Finally, the contested discipline would introduce excessive burdens and would not reflect "a fair balance between the general interest and individual rights,” conflicting with Articles 3, 42, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the ECHR.

2.– With a document filed on 7 March 2025, the Municipality of Ameglia appeared in court and requested that the questions of constitutional legitimacy raised by the TAR Liguria be declared unfounded.

The constraint imposed by the regional discipline limits the right to property for the purpose of protecting general interests and in a proportionate manner, without resulting in an ablative measure and without interfering with the sphere of competence of the State legislator.

3.– At the public hearing, the defense for the Municipality of Ameglia reiterated the conclusions set forth in the statement of appearance.

Legal Considerations

1.– With the order indicated in the heading (reg. ord. no. 24 of 2025), the TAR Liguria, Second Section, doubts the constitutional legitimacy of Article 2, paragraph 2, of Liguria Regional Law no. 1 of 2008, in the text substituted by Article 2, paragraph 4, of Liguria Regional Law no. 4 of 2013, with reference to Articles 3, 41, 42, second and third paragraphs, and 117, first paragraph, the latter in relation to Article 1 of the Additional Protocol to the ECHR, and second paragraph, letter l), of the Constitution, "insofar as it does not provide for the inadequacy of the receptive structure to the needs of the market as a sufficient condition for the removal of the constraint.”

1.1.– The contested provision allows owners of properties subject to the constraint of hotel use designation to submit a reasoned and documented request for release at any time, individually and/or aggregated, to the competent municipal authority, accompanied by the indication of the use designation intended to be "established.”

The release presupposes the "supervening inadequacy of the receptive structure with respect to market needs,” attributable to at least one of the following factors: "a) objective impossibility to carry out comprehensive adaptation works on the property, due to the existence of unresolvable monumental, landscape, architectural, or urban-building constraints, to the quality level of hotel standards and/or to safety regulations (such as access, escape routes, fire escapes, and the like) and/or to the elimination of architectural barriers; b) location of the structure in territorial areas unsuitable for carrying out hotel activities, with the exclusion, however, of historic areas, areas in urban settings predominantly for residential use, and properties located within 300 meters of the coast.”

1.2.– The provision under examination, firstly, imposes unreasonable and disproportionate limits on the freedom of economic initiative (Article 41 of the Constitution), preventing the entrepreneur from making fundamental organizational choices and conditioning the faculty to remove the constraint upon extremely rigid prerequisites, without any evaluation of the possible alternative uses of the property.

These limitations would also conflict with Articles 42, second paragraph, and 117, second paragraph, letter l), of the Constitution, as they would imply "a considerable compression of the enjoyment faculties of the asset” and would penetratingly conform proprietary prerogatives, violating the exclusive legislative competence of the State in the matter of "civil law.”

The regional discipline, by establishing, for an indefinite period, a constraint that is substantially expropriatory, would also violate the guarantees established by Article 42, third paragraph, of the Constitution.

Finally, the framework established by the regional legislator would exceed the limits of proportionality and reasonableness and would therefore conflict with Articles 3, 42, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the ECHR.

2.– No obstacle prevents the examination of the merits of the questions.

The referring judge has precisely described the concrete facts and adequately illustrated the reasons supporting the necessity of applying the contested provision in evaluating the legitimacy of the rejection of the release request.

Furthermore, the referring judge has not failed to explore the feasibility of an adequate interpretation and has consciously excluded it in consideration of the unequivocal textual data.

Also from the perspective of non-manifest unfoundedness, the reasoning is comprehensive and relevant regarding all the parameters invoked.

3.– The question is well-founded, with reference to Articles 3 and 41 of the Constitution.

4.– The hotel designation constraint aims to protect the tourism sector, which is strategic for the national economy and employment, and safeguards the function of essential properties for balanced market development.

This Court has attributed the original State discipline of the constraint, characterized by a succession of extensions during the post-war reconstruction period, to the programs and controls that the law determines to guide economic activity and coordinate it for social purposes, in application of Article 41, third paragraph, of the Constitution (Judgment no. 4 of 1981, paragraph 1 of the Legal Considerations).

This correlation is confirmed by Article 8, first paragraph, of Law 17 May 1983, no. 217 (Framework Law for Tourism and Interventions for the Enhancement and Qualification of the Tourist Supply), which identifies the purpose of the constraint in the conservation and protection of the receptive heritage, "as responding to purposes of public interest and social utility.”

The legislation of the Regions, now called upon to regulate this aspect within the scope of residual regional legislative competence in tourism matters (Article 117, fourth paragraph, of the Constitution) and concurrent competence in territory governance matters (Article 117, third paragraph, of the Constitution), must be inspired by the same principles.

5.– According to the constant jurisprudence of this Court, the legislator may well impose general restrictions on the freedom of private economic initiative, provided that such limits correspond to social utility and the protection of primary values pertaining to the human person and do not result in arbitrary and incongruous measures (Judgments no. 150 of 2022, paragraph 7.2. of the Legal Considerations, no. 218 of 2021, paragraph 8.2. of the Legal Considerations, and no. 47 of 2018, paragraph 4.2. of the Legal Considerations).

6.– From this perspective, the designation constraint, precisely because of the purposes it pursues, cannot be resolved into the compulsory continuation of an economic activity, even when such activity ceases to be advantageous (Council of State, Fourth Section, Judgment 23 November 2018, no. 6626).

The objectives of safeguarding the integrity of the tourist-receptive heritage and employment levels in the sector, although prioritized by the community, cannot, therefore, "exclude any relevance to the fact that the economic-productive convenience of the hotel enterprise has ceased to exist” (Council of State, First Section, Opinion 25 March 2021, no. 475).

The State legislator, in the comprehensive discipline established by Law no. 217 of 1983, identified the equilibrium point in defining exhaustive prerequisites, linked to the proven "economic-productive inconvenience of the receptive structure” (Article 8, fifth paragraph).

Therefore, in the indispensable concrete evaluation of the justifications underlying the release request, the possible negative repercussions of continuing the hotel activity cannot fail to be weighed (Council of State, Third Section, Judgment 24 February 2025, no. 1585).

7.– The provision subject to the current constitutional legitimacy review deviates from the principles recalled.

Therefore, the challenges of the referring judge are well-founded, in suggesting "an unreasonable arrangement of opposing interests,” injurious, at the same time, to Articles 3 and 41 of the Constitution.

8.– The contested provision, while allowing the removal of the constraint in the event of "supervening inadequacy of the receptive structure with respect to market needs,” conditions it upon requirements that make its implementation difficult.

In this regard, the "objective impossibility to carry out comprehensive adaptation works on the property, due to the existence of unresolvable monumental, landscape, architectural, or urban-building constraints, to the quality level of hotel standards and/or to safety regulations (such as access, escape routes, fire escapes, and the like) and/or to the elimination of architectural barriers” (Article 2, paragraph 2, letter a, of Liguria Regional Law no. 1 of 2008) is relevant.

Alternatively, the regional legislator values the inadequacy connected with the "location of the structure in territorial areas unsuitable for carrying out hotel activities, with the exclusion, however, of historic areas, areas in urban settings predominantly for residential use, and properties located within 300 meters of the coast” (Article 2, paragraph 2, letter b, of Liguria Regional Law no. 1 of 2008).

The supervening inadequacy with respect to market needs, even when understood broadly, does not encompass all hypotheses of lacking economic-productive convenience.

Moreover, the regional discipline limits the notion of inadequacy, anchoring it to the impossibility of carrying out comprehensive adaptation works on the property. This index, however, does not exhaust the vast range of concrete situations in which the continuation of the activity is no longer convenient.

As for the case outlined in Article 2, paragraph 2, letter b), of Liguria Regional Law no. 1 of 2008, the legislator deems a large number of locations inherently suitable and confines the hypothesis of the unfavorable position of the property within narrow boundaries, difficult to empirically verify in light of the peculiar morphology of the Ligurian territory.

It is therefore easy to hypothesize situations of proven economic unsustainability of hotel activity even when the hypotheses itemized by the regional legislator cannot be invoked.

9.– The obligation to continue the activity, even when burdened by losses and exorbitant charges, prejudices the interest of the individual economic operator and brings no benefit to the community.

10.– The unreasonableness of the framework thus conceived is also apparent from a different angle.

By relegating the change of hotel designation to marginal hypotheses, the contested discipline nullifies the evaluation of continuing economic-productive convenience, which is coessential to the freedom protected by Article 41 of the Constitution, and prevents the administration from assessing any alternative uses of the constrained property, even when they are more advantageous and responsive to social utility.

Furthermore, a constraint configured in overly restrictive terms risks frustrating the purposes that justify its introduction and producing antithetical consequences, diverting entrepreneurs from the tourist-receptive market and dispersing that asset of values that a rational expansion of tourism aggregates and reinforces.

11.– The limitations established by the regional legislator finally contravene the standard of the "least restrictive means,” which requires preferring, among all measures, those suitable for determining the least sacrifice of opposing interests.

A designation constraint, conceived as tending towards immutability, does not affect circumscribed and secondary aspects of the freedom of private economic initiative, but sacrifices its essential core, as it precludes the entrepreneur from the faculty to adopt qualifying organizational choices.

By disregarding appropriate relevance to the supervening economic-productive unsustainability, the discipline under review proves disproportionate compared to the objective of ensuring the efficiency of the tourism market and safeguarding all interests, employment and cultural, that revolve around it.

It should be noted, in this regard, that the reference to economic-productive inconvenience does not justify any entrepreneurial choice, but serves as a rigorous selective parameter, which must be evaluated objectively, with reference to the effective economic potential of the enterprise and the characteristics of the reality in which it operates.

The regional legislator, moreover, already surrounds the faculty to request the removal of the constraint with precautions.

On the one hand, the evaluation of the specific use designation intended for the property is unavoidable, and in this context, the safeguarding of the paramount interests of environmental protection and orderly territory governance is also relevant.

On the other hand, the release is matched by the restitution of any benefits received (Article 6, paragraph 1, of Liguria Regional Law no. 1 of 2008).

The regional law, therefore, already provides the necessary remedies to curb improper use of the faculty to release the constraint, contrary to the purposes of general interest.

From this perspective, the irrelevance of supervening economic-productive unsustainability, in the broad range of hypotheses that fall outside the cases typified by the regional legislator, clashes with the principle of proportionality and diminishes that concrete and punctual assessment which the Fundamental Charter deems indispensable for a designation constraint that is particularly incisive.

12.– The constitutional illegitimacy of Article 2, paragraph 2, of Liguria Regional Law no. 1 of 2008, in the text substituted by Article 2, paragraph 4, of Liguria Regional Law no. 4 of 2013, must therefore be declared, insofar as it does not allow the owners of properties subject to a specific constraint of hotel use designation to submit a reasoned and documented request for release, accompanied by the specification of the intended use to be established, in the event of proven economic-productive inconvenience of the receptive structure.

13.– The examination of the remaining challenges is absorbed.

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 2, paragraph 2, of the Law of the Liguria Region of 7 February 2008, no. 1 (Measures for the Safeguarding and Valorization of Hotels and Provisions relating to the Discipline and Programming of Tourist-Receptive Supply in Municipal Town Planning Instruments), as substituted by Article 2, paragraph 4, of the Law of the Liguria Region of 18 March 2013, no. 4, titled "Amendments and Integrations to Regional Law 7 February 2008, no. 1 (Measures for the Safeguarding and Valorization of Hotels and Provisions relating to the Discipline and Programming of Tourist-Receptive Supply in Municipal Town Planning Instruments) and Further Provisions Concerning Hotels”, insofar as it does not allow the owners of properties subject to a specific constraint of hotel use designation to submit a reasoned and documented request for release, accompanied by the specification of the intended use to be established, in the event of proven economic-productive inconvenience of the receptive structure.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 9 July 2025.

Signed:

Giovanni AMOROSO, President

Giovanni PITRUZZELLA, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on 7 October 2025