The Delegation of Administrative Functions in Environmental Matters to Municipalities

Constitutional Court, 7 October 2021, no. 189

The Italian Constitutional Court declared the constitutional illegitimacy of Article 6(2) (b) and (c) of the Lazio Region’s Law on waste management (Regional Law No. 27/1998), for violation of Article 117 of the Italian Constitution.

In particular, the abovementioned Regional Law delegated to the municipalities a number of relevant administrative functions in environmental matters – in particular, the issuing of authorisations for the construction and operation of plants involving the disposal and recovery of waste deriving from the scrapping of vehicles and the scrapping of deteriorated and obsolete machinery – whereas the ‘Environmental Code’ (Legislative Decree No. 152/2006) empowers the Regions i) to approve projects for new waste management plants, ii) to release the authorisation for modifying existing plants and carrying out waste disposal and recovery operations (Article 196) and iii) to issue the Single Environmental Authorisation for new waste disposal and recovery plants (Article 208).

The Constitutional Court upheld the illegitimacy of the regional delegation of administrative functions, based on an analysis of the constitutional provision that had been violated, i.e. Article 117 of the Italian Constitution. The constitutional legislator – through the 2001 Reform of “Title V” of the Constitution – gave the State exclusive legislative powers in environmental matters, in order to guarantee uniform protection throughout the national territory.

Therefore, only the national legislator can be responsible for organising the related administrative functions outlying a specific “order of competences” by means of the abovementioned provisions of the Environmental Code.

According to the judges, a delegation of administrative competences, which gives rise to a “competence of a derivative nature”, can be considered compliant with the law only under two conditions: i) the delegating party must be the original holder of the power and ii) the delegation must be provided for and delimited by the same legislative source that authorizes it (Council of State, Section VI, 29 November 2012, No. 6042).

These conditions are not met in the case examined by the Italian Court, since neither the Lazio Region could be said to hold the original power, nor the Constitution or the State legislation contain a specific provision allowing the Regions to reallocate the powers attributed to them.

Consequently, the ‘reallocation’ of powers carried out by the 1998 Regional Law infringes Article 117 of the Constitution, since it improperly derogates from the system of powers established by the Environment Code and definitively contradicts the ‘adequacy assessment’ carried out by the national legislator regarding the best level of administrative responsibility.

In short, the Regions cannot be granted the power to arbitrarily assign the concrete management of environmental interests to minor territorial entities, such as municipalities: this would entail a violation (albeit indirect) of the system of competences established at constitutional level.

The Court lastly underlined that the declaration of unconstitutionality has effects as of 29 April 2006, when the Environmental Code came into force. As a matter of fact, only with the aforementioned Code, the new constitutional principles of 2001 translated into a specific set of laws governing the distribution of administrative powers, “thus bringing into effect the discrepancy of the distribution of powers laid down by the previous regional legislation”.

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