With judgment No. 3325 of 28 April 2026, the Italian Council of State upheld the appeal brought by a company operating a biomass plant, overturning the decision of the Regional Administrative Court of Emilia-Romagna, which had confirmed the municipal order requiring restoration of the site to its original condition, issued pursuant to Article 44(2) of Legislative Decree No. 28/2011.
The dispute arose from the failure to submit the final commissioning certificate relating to the plant built under two Simplified Authorisation Procedures (PAS). According to the authorities, such omission justified both the imposition of an administrative fine and the restoration measure.
The judgment addresses several key issues concerning the legal framework governing the PAS regime.
First, the Council of State confirms that the PAS falls within the SCIA (Certified Notice of Commencement of Activity)model. In doing so, the Council emphasises both its historical derivation from the former DIA (Declaration of Commencement of Activity) regime and the structure of administrative control, which may be exercised within thirty days following the filing of the notice. The expiry of such period does not give rise to any implied administrative authorisation; rather, it produces the typical effect associated with the SCIA regime: the private party is entitled to lawfully commence the declared activity in the absence of timely objections.
The principles affirmed by the Council of State are consistent with a series of recent rulings by Regional Administrative Courts, including:
judgment No. 495 of 30 April 2026, whereby the Regional Administrative Court of Lazio (Latina) confirmed that, once the thirty-day period has elapsed without notification of an order prohibiting the works, the activity must be deemed definitively authorised. The exercise of administrative review powers requires the existence of a specific public interest going beyond the mere restoration of legality, as well as an effective balancing of interests taking into account the private party’s legitimate expectations;
judgment No. 59 of 14 January 2026, whereby the Regional Administrative Court of Puglia (Lecce) annulled both the rejection order — issued after the expiry of the thirty-day period, when the authorisation process had already become effective — and the subsequent annulment measure adopted in the exercise of administrative review powers, without the necessary assessment of public interest and without taking into account the applicant’s business interests;
judgment No. 474 of 1 April 2026, whereby the Regional Administrative Court of Lombardy (Brescia) upheld an operator’s appeal, clarifying that the alleged lack of a qualifying requirement (i.e. the availability of the relevant areas) should have been raised within the thirty-day limitation period.
Second, the judgment clarifies that the three-year period under Article 6(6) of Legislative Decree No. 28/2011 runs from the effectiveness of the PAS and relates to the material completion of the works. Failure to comply with such deadline affects only the possibility of continuing works that have not yet been completed; it does not render unlawful works already carried out in compliance with the authorisation. This interpretation is consistent with the distinction drawn by the Plenary Assembly of the Council of State in decision No. 14/2024 between incomplete works with functional autonomy and works radically departing from the approved project.
Third, the judgment addresses Article 44(2) of Legislative Decree No. 28/2011. The Council of State held that restoration measures apply solely to the specific cases expressly set out in the provision — namely, the total absence of the PAS or non-conformity of the works — and cannot be extended by analogy. Failure to submit the commissioning certificate, while constituting a breach of the obligation under Article 6(8), cannot be equated with the absence of the authorisation nor result in its lapse, since the commissioning certificate serves a certifying function but is not constitutive in nature. This reasoning is further supported by comparison with Article 23(7) of Presidential Decree No. 380/2001, which sanctions the failure to file the commissioning certificate for works subject to the alternative SCIA procedure with an administrative fine rather than demolition.
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Once again, it is the administrative courts — and not the competent authorities — that act as “guardians” of the decarbonisation objectives underlying the regulatory framework governing renewable energy sources.
Indeed, while case law is progressively shaping a framework of legal certainty, recognising the stability of authorisations and confining the exercise of prohibitive and sanctioning powers within the limits of the law, administrative authorities continue, all too often, to adopt restrictive measures based on broad interpretations of the applicable rules, effectively hindering the development and operation of renewable energy plants.
The result is a paradox: the energy transition, which the legislator sought to promote through the simplification of authorisation procedures, ultimately relies not on administrative action, but on the corrective function of the courts.
