Italian court decision on renewables: final measure must be adopted within the deadlines set by the Consolidated Environment Act

The Lazio Regional Administrative Court, in judgment no. 1503 of 24 May 2024, has clarified that the public administration is obliged to adopt the final express measure, authorising – or otherwise -  the renewable energy source plants (RES), of the proceedings in compliance with the peremptory terms provided for by the Consolidated Environmental Law Act.

Failing that, the private claimants concerned may bring an action pursuant to articles 31 and 117 of the Code of Public Procurement to obtain an order that the public administration (PA) issue the final measure within a time limit to be set.

This action may also be exercised when the PA has adopted infra-procedural acts,. –which are insufficient for the purposes of constituting action on the part of the P.A., as they do not conclude the procedure. 

The case 

The judgment upheld an appeal filed by an economic operator against the Lazio Region's inertia in a procedure aimed at issuing the PAUR  regional authorisation (Provvedimento Autorizzativo Unico Regionale, pursuant to article 27-bis of the Consolidated Environmental Act) for the construction of an agri-voltaic plant and related connection works.

The region had not yet finalised the proceedings, despite the fact that more than two years had elapsed since the submission of the application and several months since the issue of an injunction was issued to reactivate the proceedings following interruptions due to discussions with the Ministry.

The PA defended itself by arguing that it had held the first session of the Steering Committee Conference and convened what theoretically should have been the final session. 

The decision

The Regional Administrative Tribunal rejected the region's objections, pointing out that the holding of the first session of the Services Conference and the convening of its final session were not acts capable of interrupting or excluding the PA's inertia.

Moreover, it noted that the documents of the case and, in particular, the minutes of the first meeting of the Steering Committee Conference, showed a substantial refusal by the PA  to carry out the assessments within its competence, in violation of the principle of good administrative action under article 97 of the Constitution.

Consequently, the administrative judge ordered the region to adopt the final express measure within the 90-day deadline, at the same time appointing a commissioner ad acta in the event that the deadline is not met. 

The rationale of the decision

The principles underlying the ruling are:

• an action against silence may be brought whenever the breach of an obligation of the PA to act is at issue, irrespective of the discretionary content or otherwise of the measure to be issued;
• the obligation to issue a decision may derive either from a rule of law or from the principles of administrative action, if reasons of justice and substantive fairness require the adoption of a measure;
• inaction on the part of the PA, which does not conclude the procedure within the prescribed peremptory time limit, remains punishable even in the case of the completion of preliminary activities and the adoption of infra-procedural acts.
   

In light of these principles, the judgment reaffirmed the PA's duty to conclude proceedings with an express measure in compliance with the terms qualified as peremptory by the Consolidated Environment Act. These include, in addition to those provided for the PAUR, also those relating to the Environmental Impact Assessment (EIA), and those referred to in articles 27 and 27-ter.

Osborne Clarke comment

The excessive slowness of administrative procedures for the authorisation of RES plants is a well-known problem in Italy.
The percentage of proceedings blocked pending settlement is very high (reaching 90% in the case of wind farms) and their average duration exceeds two years.

This situation is detrimental to entrepreneurs, who find themselves in a protracted state of uncertainty and not infrequently obtain authorisations for outdated projects. In addition, it makes the energy transition goals set by EU legislation difficult to achieve.

Hence the relevance of this judgment, which has the merit of highlighting the role of the judge in examining the situation and reviewing cases where an appeal has been made against a procedural silence. The judge should identify cases in which the PA only apparently pursues the proceedings and, in reality, engages in activities circumventing its obligation to timely  provide, and in fact fails to grant or refuse the final authorisation within the given deadlines.

In this way, taking legal action against a PA's silence could be a useful tool for entrepreneurs in the fight against the lengthy authorisation procedures for RES plants.