The Consiglio di Stato [highest Italian Court for administrative matters], by judgement No. 8296 of 16 October 2024, raised the issue of constitutional legitimacy in relation to Article 21-nonies, paragraph 1, of Law No. 241/1990, with regard to the part providing for a twelve-month deadline for nullification by internal review of administrative measures.
More specifically, constitutional illegitimacy allegedly arises from the conflict of the above mentioned twelve-month deadline for nullification by internal review with Articles 3, paragraph 1, 9, paragraphs 1 and 2, 97, paragraph 2 and 117, paragraph 1, of the Italian Constitution (in relation to Articles 1, points b. and d. and 5 points a. e c. of the “The Council of Europe Framework Convention on the Value of Cultural Heritage for Society" of 27 October 2005).
In particular, in the opinion of the Panel, the provision for a fixed and mandatory time limit under Article 21-nonies, paragraph 1, of Law No. 241/1990, allegedly prevents competent authorities from properly assessing “sensitive” interests such as, for example, the protection of the historical and artistic heritage. On the contrary, the provision for a “flexible deadline linked to the principle of reasonableness” might allow public authorities to adequately weigh up the interests at stake, avoiding that those of primary constitutional importance “always turn out to be mechanically recessive, as a result of the mere passage of time, with respect to the protection of a personal legal situation”.
Moreover, still according to the Panel’s interpretation, with regard to various administrative institutions, lawmakers have deemed it appropriate to establish a sui generis and temporally extended legislation to protect primary and super-individual interests. Such institutions, to give an example, stem from Article 20, paragraph 4, of Law No. 241/1990, which states that the provisions on “silence-consent” do not apply to proceedings concerning the cultural and landscape heritage; Article 19, paragraph 1, of Law No. 241/1990, which excludes from the scope of application of the SCIA (Certified Notice of Commencement of Works) the cases subject to environmental, landscape or cultural restrictions; Articles 14-bis, 14-ter and 14-quinquies of Law No. 241/1990, which establish (i) longer deadlines for the taking of decisions and for the conclusion of the works of service conferences in the cases involving administrations in charge of protecting the environment, landscape and territory and cultural heritage; (ii) as well as specific remedies against the final decision of the services conference in favour of the dissenting administrations in charge of protecting the aforesaid interests.
From a different perspective, the judges pointed out that the provision of a rigid time limit for the possibility of acting by internal review indirectly results in “the administration being prevented from using other special authoritative powers”, thus limiting the re-exercise of the administrative power resulting from the nullification of the previous measure.
We therefore await the decision of the Constitutional Court, which could call into question an important instrument of legal certainty and, as a result, trigger significant consequences for the private individuals affected by nullification by internal review.
