From agriculture, the lawyers:“Article 5 is in conflict with the Constitution and European legislation”

The Tonucci & Partners firm raises the alarm on the measure passed by Parliament on May 15th

ROME – “The restrictions imposed by article 5 of the Agriculture decree law (number 63/2024) will significantly slow down the growth rate of photovoltaics in Italy, preventing the use of agricultural land – even those that are unusable, disused or abandoned – for the installation of photovoltaic systems”.The lawyers Stefano Lucarini and Teresa Di Mario, of the Tonucci & Partners firm, energy experts, raise the alarm by claiming that the measure passed by Parliament on May 15th “is in conflict with articles 41 and 117 of the Italian Constitution and with European legislation”.If it were to be applied, this rule "would reduce the capacity to generate renewable energy, compromising the achievement of national and European objectives - argue the lawyers - And then, the die is clearly cast:Unfortunately, it will be necessary to crowd the courtrooms again to make clear the illogicality of this ban."

In particular, article 41 of the Constitution "in fact guarantees - Lucarini and Di Mario recall - freedom of private economic initiative, dramatically limited by the law in question, which imposes disproportionate and unreasonable constraints on the freedom of economic initiative in the renewable energy sector, as well as a limitation and restriction, even with respect to the free availability of property rights".Likewise, the rule of the Agriculture Decree "it also seems to conflict with the provisions of article 117 of the Constitution which defines the legislative competences between the State and the Regions - the two lawyers point out - The limitations imposed by article 5 will end up interfering with regional competences in the field of territorial planning and rural development, configuring a potential violation of the principle of loyal collaboration between the State and Regions".

The lawyers of the Tonucci & Partners firm underline that "the Constitutional Court has already intervened several times to reiterate that the limitations on the installation of renewable energy systems must be justified by concrete and adequate environmental and landscape reasons, not abstract and generalized, and, in any case, such limitations must respect the principle of proportionality and reasonableness".Furthermore, "we cannot ignore the clear contrast of the ban introduced by the Agriculture Decree with the provisions of the Red II Directive, the subsequent Red III Directive and the RePowerEu plan which aim to make the Union independent from Russian fossil fuels well before 2030, establishing binding objectives for the member states - explain the lawyers.In this sense, article 5 of the Agriculture decree is in conflict, among other things, with the principle of proportionality, as provided for in article 15 of the Red II Directive".This principle requires Member States to ensure that national rules on authorization procedures "are proportionate and necessary and contribute to the implementation of the principle that gives priority to energy efficiency".

“The Court of Justice of the European Union (Cgue) has repeatedly reiterated the importance of the principle of proportionality in the energy policies of the Member States - specify Lucarini and Di Mario - stating that national measures that hinder the installation of systems for production of renewable energy must be justified by imperative, concrete reasons of general interest and must be proportionate with respect to the objectives pursued".“There is therefore no doubt that article 5 of decree number 63 of 2024 presents clear profiles of constitutional illegitimacy and in contrast with European legislation - conclude the lawyers - critical issues which, evidently, were not clearly evident to the legislator during the conversion and which, consequently, will have to be asserted by the operators, called upon to defend, once again, what should be obvious".