Through its Judgment No. 3465 of April 22nd, 2025, the Council of State returned to the issue of the peremptory nature of the deadlines for the conclusion of environmental impact assessment proceedings.
Particularly, the Judges once again clearly reiterated that the priority criterion governed by Article 8 of Legislative Decree 152/2006 is not suitable to derogate from the obligation to conclude EIA proceedings within the peremptory terms established by law (cf. Article 25, par. 7, Legislative Decree 152/2006 - the "Environmental Code").
The conclusions reached by the court of first instance (TAR Basilicata, Sec. I, Judgment n. 598/2024), according to which, on the contrary, the rule of peremptory deadlines should have been recessive with respect to the need to give priority to the procedures of plants with greater power, are thus fully reformed.
This ruling is in line with recent administrative case laws, which has repeatedly clarified that all EIA deadlines are peremptory (see, among others, Council of State, Sec. IV, Dec. 4, 2024, No. 9737 and Council of State, Sec. IV, Dec. 6, 2024, No. 9791).
In fact, consistent with Art. 3-bis, para. 3 of Legislative Decree 152/2006, the rules of the Environmental Code can be derogated only by express declaration by subsequent laws.
Otherwise, as noted by the Council of State, in the case at hand, the criterion of priority in the processing of applications (connected ratione temporis to the greater power to be installed) is not only not supported by any express derogation from the peremptory nature of the deadlines for the conclusion of the relevant procedures but is not even incompatible with such discipline.
As a result of the foregoing, the Council of State ordered the Ministry of Environment and Energy Security to act on the EIA petition within a period of thirty days from the communication of the judgment with the warning that in case of further inaction it will proceed with the appointment of a commissioner ad acta.
This is another important point of clarification in the context of the multifaceted environmental procedures that characterize the renewables sector and draws attention to the current delicate balance between the internal organizational complications of the competent authorities and compliance with procedural safeguards as well as the weight of litigation within these procedures.
On these aspects and on the latest pronouncements of administrative jurisprudence, on the other hand, the PNRR-PNIEC Technical Commission itself has just recently dwelt on the matter, emphasizing the need to remedy as soon as possible the now well-known organizational-administrative issues of the Ministry and pointing out that a percentage of 41.4% of the applications received to date is conditioned by the incidence of litigation in determining the order of processing (see on this point the recent report first quarter 2025 of the PNRR-PNIEC Technical Commission transmitted to MASE on April 17th, 2025).
