With its ruling no. 867 of 4 February 2025, the Council of State returned to rule on the silence of the Ministry of Culture (MIC) in the environmental impact assessment (EIA) proceedings for the construction of an agrovoltaic plant, confirming its nature as horizontal silence of consent pursuant to art. 17-bis of Law no. 241/1990.
As is known, in EIA procedures under state jurisdiction, the Ministry of the Environment and Energy Security (MASE), as the competent authority, adopts the measure of environmental compatibility on the project after obtaining the agreement of the MiC, in accordance with the provisions of Article 25 of Legislative Decree No. 152/2006.
In particular, with reference to the PNRR projects, art. 25, paragraph 2 bis, of the Legislative Decree no. 152/2006, establishes that the PNRR-PNIEC Technical Commission expresses its opinion ‘within the term of thirty days from the conclusion of the consultation phase referred to in Article 24 and in any case within the term of one hundred and thirty days from the date of publication of the documentation referred to in Article 23, preparing the outline of the EIA measure. Within the following thirty days, the director general of the Ministry of Ecological Transition adopts the EIA measure, after obtaining the agreement of the competent director general of the Ministry of Culture within twenty days'.
In other words,the aforementioned provision outlines a procedure whereby, once the preliminary investigation phase has been completed, the PNRR-PNIEC Technical Commission renders its opinion on the environmental compatibility of the project, which is then brought to the attention of the MiC for the relative assessment. The Ministry is called upon to express its opinion within the peremptory term of twenty days from receipt of the draft measure rendered by the PNRR-PNIEC Technical Commission.
Until the recent pronouncements, it often happened that the MASE waited for several months for the expression of the MiC's consent, the lack of which led to a real deadlock in the procedure that could not be overcome except by bringing an action on the silence before the Administrative Judge.
The most recent administrative case law, starting from the interpretation of the Council of State (cf., Sec. IV, sentence no. 8610/2023) with reference to the silence of the Superintendence within the landscape compatibility procedure, has, instead, deemed applicable the institute of the silence consent between Administrations (so-called horizontal silence consent) pursuant to Article 17 bis of Law 241/1990, also in the case of a Statal EIA procedure.
Article 17 bis, in regulating the effects of inaction between public administrations, introduces the institution of horizontal silence of consent once the time limits granted by law for the issue of an opinion have elapsed. This institute, by express provision of paragraph 3, also applies in cases where sensitive interests are at stake and, therefore, in cases where the acquisition of consents, concerts or nulla osta of administrations in charge of the protection of the environment, the landscape or the cultural heritage’ is required.
Substantially, the most recent administrative case law stigmatizes the illegitimacy of opinions and technical-instructional contributions adopted in violation of peremptory terms of the law, excluding their preclusive scope with respect to the conclusion of the procedure and, on the contrary, recognising that delay as silence consent between administrations once the terms for the issue of opinions have elapsed, since the delay cannot entail an indefinite suspension of the EIA procedure in damage of the applicant.
