Administrative, Cultural, landscape and environmental heritage, Superintendency, Landscape authorization, Silence assent, Council State, Sec. IV, 02 October 2023 Judgment no. 8610

On the applicability of silent consent referred to in art. 17-bis l. n. 241 of 1990 also to the opinion given by the Superintendence

Section IV highlighted that:

a) the institution of horizontal silence assent is also applicable to the opinion of the Superintendence;

b) the opinion of the Superintendence given late in the context of a services conference is tamquam non esset;

c) the text of the law, especially when formulated through the so-called technique for analytical cases, provides the measure of judicial discretion; it, as has been authoritatively observed, represents the fixed point from which it is necessary to move on in the interpretative activity and to which it is necessary to return (after the combined use of all the other canons of interpretation);

d) the judge cannot be considered to have the power to decide a dispute submitted to him by directly applying a constitutional principle (so-called unmittelbare drittwirkung), even when there is no gap (i.e. when there is an applicable law as appropriate, unless this legislation is formulated through recourse to a general principle or clause);

e) the art. 17-bis is intended to apply only to proceedings characterized by a multi-structured decision-making phase and, therefore, in cases in which the act to be acquired, beyond the nomen iuris, has co-decisional value and not also in cases in which a the administration has a merely formal role (as in the case of the Single Desk which simply collects and transmits the request to the single deciding Administration);

f) the legislator, through the simplification institutions referred to in articles. 14-bis) and 17-bis) attempted to reach a delicate point of balance between the protection of sensitive interests and the equally felt need to guarantee a response (positive or negative) within reasonable terms to the economic operator, who, otherwise, he would remain exposed to the risk of bureaucratic omission. The protection of landscape value, in fact, attributes to the guardianship authority not only rights but also “duties and responsibilities”. In this composite framework, the competence of the Superintendence remains guaranteed albeit within the stringent deadlines within which it must exercise its function. Nonetheless, in case of failure to activate within the deadlines, the possibility of the Superintendence to be able to act in self-defense according to the principle of contrarius actus remains unchanged;

g) the definitive overcoming of the interpretative direction contrary to the application of silent horizontal consent to the landscape opinion was formally sanctioned by the introduction of the art. 2, paragraph 8-bis, of law no. 241 of 1990. The letter of this provision, expressly referring to the cases of silence arising during a services conference pursuant to art. 14-bis and within the scope of the institution referred to in art. 17-bis, is unequivocal in affirming the principle (which does not allow exceptions) according to which late determinations are irrelevant as they have no effects towards the competent authority, and not only have no binding character (1).

(1) There are no precedents in these exact terms.

In the present case, the section rejected the appeal proposed by the Ministry against the first instance sentence, which had accepted the appeal proposed by the private party. According to the State Attorney’s Office, art. 17-bisdella l. n. 241 of 1990, relating to silent endo-procedural consent, applies only to horizontal relationships between administrations and not also to the procedure for issuing the landscape authorization, which instead would be characterized as a mono-structured procedure, in which the will of one party prevails single public administration; with the consequence that the late opinion of the Superintendency would not be tamquam non esset and the municipality would still have to take it into account for the purposes of determining the issue of the landscape authorization.

The section, while recalling the orientation according to which the silent consent referred to in art. 17-bis would not be applicable to the opinion given by the Superintendency at the time of issuing the landscape authorization (it would be, according to this reconstruction, a devolutional silence, incompatible with silent consent) believes it is necessary to adhere to the opposite orientation, given that the opinion of the Superintendency is “an expression of active co-management of the landscape constraint”, to which art. 17-bis, unlike the consultative opinions to which the devolutional silence referred to in the articles applies. 16 and 17 of the law. n. 241 of 1990.

It follows that the late opinion is irrelevant. According to the section, the legislator, through the simplification institutions referred to in the articles. 14-bis) and 17-bis) attempted to reach a delicate point of balance between the protection of sensitive interests and the equally felt need to guarantee a response (positive or negative) within reasonable terms to the economic operator, who, otherwise, he would remain exposed to the risk of bureaucratic omission. The protection of landscape value, in fact, attributes to the guardianship authority not only rights but also “duties and responsibilities”. In this composite framework, the competence of the Superintendence remains guaranteed albeit within the stringent deadlines within which it must exercise its function. Nonetheless, in the event of failure to activate within the deadlines, the Superintendence remains entitled to act in self-defense according to the principle of contrarius actus.

Source Administrative Justice