Finally, the sentence of the Constitutional Court has arrived on the appeals filed against the establishment of the nature reserve in the marshes of south-eastern Sicily. For hunters, a door opens that seemed closed: the law establishing parks and reserves in Sicily (law 98 of 6 May 1981) was declared illegitimate in two important articles, because it differs from national law 394 in the parts in which they must be involved with local authorities. In fact, Sicilian law precedes the state one but has never been adequate. It is definitively reiterated that the environment is a matter of state competence and that regional laws must also adapt in relation to the close involvement of the municipalities affected by the projects to establish protected areas. Now the sentence returns to the TAR, which will have to issue a definitive judgment on the appeals, and everything suggests that the decree establishing the nature reserve will be declared null and void. FIdC Sicilia and the Avifauna Migratoria Office thank all the lawyers who have allowed this success. For now, a good sign; we will not fail to update on each subsequent event.
Attached is the sentence n.212 / 2014 of the Constitutional Court.
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JUDGMENT No. 212 - YEAR 2014
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President: Sabino CASSESE; Judges: Giuseppe TESAURO, Paolo Maria NAPOLITANO, Giuseppe FRIGO, Alessandro CRISCUOLO, Paolo GROSSI, Aldo CAROSI, Marta CARTABIA, Sergio MATTARELLA, Mario Rosario MORELLI, Giancarlo CORAGGIO, Giuliano AMATO,
said the following
JUDGMENT
in the judgments of constitutional legitimacy of arts. 3, paragraph 1, letter e), 6, paragraph 1, and 28, paragraphs 1 and 2, of the law of the Sicilian Region of 6 May 1981, n. 98 (Rules for the establishment in the Sicilian Region of parks and nature reserves), promoted by the Regional Administrative Court for Sicily, Catania section, with four orders dated 2 April 2013, respectively registered under nos. 154, 155, 156 and 157 of the 2013 ordinance register and published in the Official Gazette of the Republic no. 27, first special series, of the year 2013.
Given the deed of constitution of the Consortium for the protection of the Pachino tomato PGI as well as the intervention acts of the Sicilian Region;
having heard the Judge Rapporteur Paolo Grossi in the council chamber on 23 June 2014 and in the public hearing on 24 June 2014;
after hearing the lawyers Giuseppe Gambuzza for the Pachino tomato IGP protection consortium and Marina Valli for the Sicilian Region.
Felt in fact
1.– In the course of four distinct proceedings - respectively promoted by the Consortium for the protection of the Pachino tomato IGP (ron 155 of 2013), by the Municipality of Pachino (ron 154 of 2013), by CS, on his own and as legal representative of the Company agricultural fish Spatola Francesco & C. (ron 156 of 2013), and by Acqua Azzurra spa (ron 157 of 2013) against the Territorial and Environment Department of the Sicilian Region, for the cancellation of the decree of the General Manager of the Regional Department of 'Environment n. 577 of 27 July 2011, with which the nature reserve called "Pantani of south eastern Sicily" was established -, the Regional Administrative Court for Sicily, section of Catania, raised - with orders of almost identical content - the question of legitimacy constitutional art. 3, paragraph 1, letter e), 6, paragraph 1, and 28, paragraphs 1 and 2, of the law of the Sicilian Region of 6 May 1981, n. 98 (Rules for the establishment in the Sicilian Region of parks and nature reserves), for violation of art. 117, second paragraph, letter s), of the Constitution, in relation to art. 22 of the law 6 December 1991, n. 394 (Framework law on protected areas).
Recalling its own jurisprudence and the case law of the Council of State, the referring Court affirms that the private applicants are entitled to make complaints relating to the lack of participation of the Municipality in the procedure for the establishment of the regional nature reserves, as an "exponential body of the territorial community". In this regard, it is noted that the Sicilian regional law no. 98 of 1981, on the subject of forms of participation by municipalities in the establishment of parks and nature reserves, establishes the possibility of formulating "observations" in relation to the proposed regional plan for parks and nature reserves (Article 28, paragraph 1, in reference 4, paragraph 1, letter a), as well as the designation of "three experts" by the "three main associations of municipalities" (Article 3, paragraph 1, letter e), to be appointed within the Council for the protection of the natural heritage, which is responsible for preparing the regional plan of parks and nature reserves (Article 4, paragraph 1, letter a), in implementation of which the decrees establishing parks and reserves (Article 6, paragraphs 1 and 2).
These forms of participation would, first of all, be envisaged only with reference to the preparation of the regional plan, but not to the procedure for establishing the individual areas; moreover, they would be less guaranteed than those provided for by art. 22 of the law n. 394 of 1991, being aimed only at the formulation of proposals and observations limited to the regional plan. Therefore, it is recalled the constitutional jurisprudence that - in qualifying the aforementioned art. 22 of the law n. 394 of 1991 as an "interposed parameter" - declared the constitutional illegitimacy of regional provisions which did not provide for the participation of local authorities in the establishment or modification of protected areas (judgment no. 282 of 2000). This would demonstrate the impossibility of considering the regional discipline denounced to be integrated with the provisions dictated by the aforementioned art. 22 of the law n. 394 of 1991, as well as impracticable any adaptive interpretation.
It also refers to the constitutional jurisprudence in which it was emphasized that the matter of the "environment", despite the peculiarity of its attitude in relation to other regional interests and powers, falls within the exclusive competence of the State, pursuant to art. 117, second paragraph, letter s), of the Constitution, without the special statute for the Sicilian Region identifying a derogation from the aforementioned constitutional parameter; with the consequence that the several times mentioned art. 22 of the state law should also be considered applicable within the Sicilian Region.
2.- The Sicilian Region intervened in the judgments, asking that the question be declared inadmissible and, in any case, unfounded. As for the judgments proposed by private individuals, it is deduced that the latter, contrary to the assumption of the referring court, would not be entitled to assert complaints relating to the non-participation in the proceedings of the Municipality of residence, as an exponential body of the territorial community.
It is then noted, again on the point of admissibility, that no parameter would have been invoked and that if, from the context of the ordinance, art. 117, second paragraph, letter s), of the Constitution, would lack adequate motivation regarding the reasons for the alleged violation; Moreover, the relative application to the Sicilian Region, endowed with statutory autonomy, would not have been motivated, so that, pursuant to art. 10 of the constitutional law of 18 October 2001, n. 3 (Amendments to Title V of the second part of the Constitution), the statute of autonomy should prevail, unless the provisions of Title V of the Constitution, whose violation is assumed, do not provide a greater margin of autonomy than that assigned by the statute to the Region.
It is also noted that the question lacks the requirement of relevance, given that the referring TAR itself, in another ruling (judgment no. 492 of 1998), provided a constitutionally oriented interpretation, considering that, given the "concrete impact that the provision establishing the reserve would have had on the applicants ", the administration was obliged to carry out the obligations provided for by art. 8 and following of the regional law 30 April 1991, n. 10 (Provisions for administrative procedures, the right of access to administrative documents and the best functionality of the administrative activity), to achieve a balanced structure of the interests involved.
In the present case, the referring Court - operating, in turn, a constitutionally oriented interpretation of the denounced legislation - could have rejected the appeals, considering the issue overcome by the fact that the establishment of the nature reserve was preceded by the favorable opinion of the Regional Council for the protection of the natural heritage, made up, among others, of three experts designated by the three main associations of municipalities, whose task "is precisely to represent, within this body, the particular needs of the individual municipalities that come from time to time once affected by the measures to establish regional parks or reserves ".
3.– In the judgment referred to in ordinance no. 155 of 2013, the Consortium for the protection of the Pachino tomato PGI was formed, appellant in one of the judgments a quibus, asking to declare the constitutional illegitimacy of the denounced legislation. After an extensive narrative concerning the matter referred to in the main proceedings, the private party underlines how the discipline dictated by regional law no. 98 of 1981 provides for forms of participation of the entities involved in the process of formation of the protected areas «considerably different and less guaranteed than those contemplated by art. 22 of ln394 of 1991 ": the regional discipline would, in fact, limit itself to establishing moments of participation (observations and proposals) only with reference to the regional plan of parks and natural reserves," while no form of participation by municipalities and exponential bodies it is envisaged with reference to the procedure for establishing the individual protected areas ". This would be even more serious in the present case, since the regional plan, "established in 1991", has never been updated again, despite the fact that the contested law "provided for a five-year update".
The regional administration should therefore have verified the compatibility of the rules in question with the changed framework of state legislation (framework law no. 394 of 1991) and with the constitutional changes regarding the division of legislative competences between the State and the Regions. Both the Municipality of Pachino and the applicant Consortium had, moreover, already in 2006, highlighted to the regional administration the fact that the regional plan of parks and reserves (approved by decree of 10 June 1991, n.970) was based on maps now "obsolete", prompting a new investigation on this point. The violation of the right to participate would, therefore, compromise the interests of the local community, whose economy is strongly affected by the cultivation of tomatoes (in this regard, judgments n.282 of 2000 and n. 315 of 2010 are cited - on the subject of exclusive state competence in the field of "environment" - as well as judgments no. 193 of 2010 and no. 14 of 2012).
It is concluded by observing that the Constitutional Court, with sentence no. 12 of 2009, ruled that, in environmental matters, the Sicilian Region has no exclusive competence: a legislative act that deals with environmental matters should, therefore, "necessarily comply with the additional sources of law living in the territory, especially if hierarchically superior ".
Considered in law
1.- The Regional Administrative Court for Sicily, section of Catania, has raised, with four orders of similar content, the question of the constitutional legitimacy of Articles 3, paragraph 1, letter e), 6, paragraph 1, and 28, paragraphs 1 and 2, of the law of the Sicilian Region of 6 May 1981, n. 98 (Rules for the establishment in the Sicilian Region of parks and nature reserves), for violation of art. 117, second paragraph, letter s), of the Constitution, in relation to art. 22 of the law 6 December 1991, n. 394 (Framework law on protected areas).
In the opinion of the referring court, the contested regional provisions would be in contrast with the aforementioned constitutional parameter, since the same - unlike the aforementioned art. 22 of Law 394 of 1991, which provides for the participation of Municipalities in the procedure for the establishment of regional protected natural areas, "through conferences for the drafting of a policy document relating to the territorial analysis of the area to be used for protection, provisional perimeter, the identification of the objectives to be pursued, the evaluation of the effects of the establishment of the protected area on the territory "- would limit themselves to establishing (in matters reserved to the State and for which a derogation from the statute of autonomy has not ), moments of participation (observations and proposals) only with reference to the regional plan of parks and nature reserves, excluding any form of participation by Municipalities and exponential bodies with reference to the procedure for establishing individual protected areas.
2.- The referral orders raise an identical question, so that the relative judgments must be brought together to be defined with a single decision.
3.- The deductions made by the defense of the Sicilian Region to request a declaration of inadmissibility of the question due to lack of motivation on the reference parameter and relevance must be preliminarily disregarded. In fact, first of all, it should be noted, with regard to the alleged failure to deduce the parameter of constitutionality, that the remittance measures, even if formally lacking the relative enunciation in part dispositive, bear, in the body of the motivation, univocal reference, also through the citation of the jurisprudence of this Court, the violation of art. 117, second paragraph, letter s), of the Constitution, expressly calling into question, as interposed legislation, the discipline dictated, as the national framework legislation of reference, by art. 22 of the law n. 394 of 1991. The objection according to which the referring court failed to justify the relevance of the question, in particular by failing to explain the reasons why it considered impracticable an adaptive interpretative solution, which would place the contested legislation in line with the state one, despite the fact that a similar interpretation had been adopted by the same Court in another dating ruling. In fact, in the referral orders, the issue was expressly addressed, reaching the reasoned and not implausible conclusion that, given the structural "self-sufficiency" of the regional regulations, regarding the participation methods of local authorities in the procedure for establishing regional nature reserves, the same "cannot be integrated in an interpretative or jurisprudential way", but must consequently be subjected to the scrutiny of constitutional legitimacy.
4.- On the merits, the question relating to articles 6, paragraph 1, and 28, paragraphs 1 and 2, are well founded. This Court has repeatedly had the opportunity to underline how the discipline of protected areas, contained in law no. 394 of 1991, falls within the exclusive competence of the State in the matter of "environmental protection" provided for by art. 117, second paragraph, letter s), of the Constitution (ex plurimis, judgments n. 263 and n. 44 of 2011). Equally consolidated is the assumption according to which the same discipline, enunciating the sector framework legislation on protected areas, dictates the fundamental principles of the matter, to which the regional legislation is called to adapt, thus also assuming the connotations of interposed legislation. (judgments no.14 of 2012, no.108 of 2005 and no.282 of 2000).
Similarly, not controversial - and not even opposed by the Sicilian Region intervening in the judgment - is the relevance that, in the context of the framework legislation mentioned above, the specific discipline assumes, aimed at regulating the forms of participation of the various subjects in the procedure for establishing protected areas: the primary prominence assumed by the voices of the socio-economic "protagonists" of a given area, especially through the related exponential bodies, is evident in order to create a functional "perimeter" project which, inevitably, it ends up involving local interests, of various and often antagonistic nature. Well, from the requested comparison between art. 22 of the aforementioned law no. 394 of 1991 and the regional provisions here under examination, there is undoubtedly a significant "deviation", in an inadmissible reductive key, as regards the level and the participatory guarantees, which no hermeneutic operation - unlike the insistence proposed by the intervening Region Sicilian - is able to fill.
The art. 22 of the state law, in fact, establishes - as "fundamental principles for the regulation of regional protected natural areas" - that, in the procedure for the establishment of the same areas, the Provinces, the mountain communities and the Municipalities are called to participate, through articulated and punctual forms, such as "conferences for the preparation of a policy document relating to the territorial analysis of the area to be used for protection, the provisional perimeter, the identification of the objectives to be pursued, the evaluation of the effects of the establishment of the protected area on the territory ". Local authorities then called upon to manage the protected area.
It then establishes paragraph 2 of the same article - as a further sign of the importance attached to the level and forms of participation of local communities - which, without prejudice to the respective competences for the Regions with special statute and for the Autonomous Provinces of Trento and of Bolzano, "the participation of local authorities in the establishment and management of protected areas and the publicity of documents relating to the establishment of the protected area and the definition of the park plan constitute fundamental principles of economic and social reform".
The censored art. 6 of the regional law in question, on the other hand, limits itself, in paragraph 1, to establishing that, in implementation of the regional plan of parks and natural reserves, as per art. 5 of the same law, parks and reserves are established by decree of the Regional Councilor for the territory and the environment, subject to the opinion of the Regional Council. The instituting decrees - points out the following paragraph 3 - "will contain the definitive delimitation of the individual reserves, the identification of the assignee and the establishment of the obligations of the same, in relation to the technical indications established by the Regional Council for the realization of the institutional purposes of the reserves same. These decrees will enclose the regulation with which the methods of use and the prohibitions to be observed are established ".
Only art. 28, which establishes, in paragraph 2, that, within thirty days of the publication, among other things, of the proposed regional plan for parks and nature reserves, prepared by the Regional Council for the protection of the natural heritage, in accordance with art. 4, paragraph 1, letter a), "private individuals, entities, trade unions, cooperatives, social organizations may submit observations on which the proposing body or office must justifiably deduce and which must be the subject of a motivated resolution by the body in charge the approval of the aforementioned instruments at the same time as the approval itself ".
Obviously, in both cases described, these are far less guaranteed provisions than the state ones regarding the participation of local territorial bodies in the procedure for establishing regional protected natural areas: the only and limited "consultative" segment is foreseen , in fact, generically and without distinction, in favor of subjective figures without any "individualizing" characterization and with reference to the mere faculty of "submitting observations"; not, however, in relation to the provision establishing a specific protected area, but only to the publication of the proposed regional plan for parks and natural reserves. Not without highlighting how no participatory emphasis is then assigned to local authorities in terms of area management. The provisions in question here, therefore, failing to ensure, in particular to the Municipalities, the possibility of representing on the procedural level, according to the appropriate forms, the multiple interests of the relative communities, are in contrast with the parameters mentioned and must be declared, in part here, constitutionally illegitimate.
5.- The reasons for constitutional illegitimacy just set out in relation to arts. 6, paragraph 1, and 28, paragraphs 1 and 2, of the regional law in question, do not apply to the rule referred to in the denounced art. 3, paragraph 1, letter e). In attributing to the "three main associations of municipalities" the power to designate "three experts" as members of an eminently technical-professional body, such as the aforementioned Regional Council for the protection of natural heritage (in which participation, among the others, of "an expert designated by the Union of Provinces of Italy (UPI)", of university professors proposed by the "universities of the island", of experts proposed "by the regional section of the National Institute of Urban Planning and by the Institute Volcanology International Council of the National Research Council "or designated by a series of bodies and associations in the sector, all" chosen from people of high and experienced competence in the field of nature and environmental protection ", according to the express provision of which in paragraph 2 of the same art.3), the aforementioned provision denounced ensures, albeit in a variously indirect form, a minimum level of participation also of the entities premises compliant or not incompatible with the principles set out in the aforementioned state legislation.
for these reasons
THE CONSTITUTIONAL COURT
gathered the judgments,
1) declares the constitutional illegitimacy of articles 6, paragraph 1, and 28, paragraphs 1 and 2, of the law of the Sicilian Region of 6 May 1981, n. 98 (Rules for the establishment in the Sicilian Region of parks and nature reserves), in the part in which they establish forms of participation of local authorities in the procedure for establishing regional protected natural areas other than those provided for by art. 22 of the law 6 December 1991, n. 394 (Framework law on protected areas);
2) declares unfounded the question of constitutional legitimacy of art. 3, paragraph 1, letter e), of the law of the Sicilian Region of 6 May 1981, n. 98 (Rules for the establishment in the Sicilian Region of parks and nature reserves), raised, with reference to art. 117, second paragraph, letter s), of the Constitution, by the Regional Administrative Court for Sicily, Catania section, with the order in the epigraph.
So decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, on 9 July 2014.
Signed:
Sabino CASSESE, President
Paolo GROSSI, Editor
Gabriella MELATTI, Chancellor
Filed in the Registry on 18 July 2014.
The Director of the Chancellery
Signed by: Gabriella MELATTI
"
Federcaccia Bird Migration Office
( 22 July 2014 )
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