Council of State declares the opposition of MIBACT to two PV projects in the Lazio Region unlawful

Reference: Council of State - rulings No. 2242 and 2243 of March 28, 2022

What happened

The Council of State has issued two rulings confirming the annulment provisions contained in the two challenged rulings of the Regional Administrative Court of Lazio (TAR) (No. 6350/2021 and 6351/2021, respectively).

These last rulings had voided the measures issued by the Council of Ministers, which had accepted the opposition of the Minister for Cultural Heritage and Activities and Tourism ("MIBACT") against two single authorizations for the construction and operation of photovoltaic plants, issued by the Lazio Region for two plants with a respective nominal capacity of 150 and 90 Mwp ("Plants").

In particular, MIBACT had opposed the Council of Ministers against the authorizations (later accepted by the Council of Ministers itself by exercising a power of high administration), after expressing a negative opinion during the authorization procedures for the respective Plants.

The Council of State was therefore called upon to assess the legitimacy of the opposition proposed by MIBACT and upheld by the Council of Ministers, through two rulings whose reasons are almost identical.

Firstly, the Plants do not directly affect areas for which the Administration had positively demonstrated the imposition of landscape, archaeological, hydraulic, or forestry constraints, nor the pendency of a procedure aimed at future imposition of such a constraint. Moreover, the Plants do not directly affect protected assets or landscape assets, nor do they involve archaeological emergencies located at a legally significant distance from the plant.

In light of these aspects, the Court concludes that MIBACT does not have the power to oppose private initiatives through opposition before the Council of Ministers, unless decisions of other Administrations are deemed to be directly detrimental to assets that have already been declared, in accordance with the law, to be of environmental, landscape, or cultural interest and therefore subject to special forms of protection or legal regimes. Administrative activity must be carried out pursuing "the purposes determined by the law" (Article 1 of Law No. 241/90), and therefore the protection of specific assets is legitimate only to the extent that it has been declared "in accordance with the law."

The Council of State also notes that the Territorial Plan for Regional Planning (PTPR) admits installations of this nature in the area designated for the construction of the plant, and no impacts in terms of visibility/fertility of the soil have been identified, which should have been demonstrated by the opposing administration. Finally, MIBACT did not identify less impactful alternatives on private interests, while still preserving the public interests involved, in violation of the principle of proportionality in administrative action.

Why it matters

Through the issuance of these rulings, the Council of State points out that the power of MIBACT to oppose private initiatives through opposition before the Council of Ministers is a constrained power based on specific requirements. In particular, it is necessary for other administrations to have given a positive opinion on the projects, directly affecting assets already declared to be of public interest (environmental, landscape, cultural) in accordance with the law.

This interpretation significantly reduces the discretion in exercising MIBACT's opposition power, which must be bound to the direct injury to assets for whose protection MIBACT is responsible and cannot be based on purely apodictic reasons.

Furthermore, the Court notes that the burden of proving the actual negative impact on other involved interests (in this case, landscape protection and soil fertility) lies with the opposing administration, as well as the burden of indicating less impactful alternatives on the private interest protected by Article 41 of the Constitution, in accordance with the general principle of proportionality in administrative action.