Consulta: landscape restrictions on telecommunications infrastructure cannot be ruled out
The need for administrative simplification cannot undermine protection ‘by definitively and across the board removing the restriction that serves to safeguard it’
The exemption from landscape restrictions for the construction of telecommunications installations. In Judgment No. 121, filed today, the Constitutional Court has declared Article 54-bis of Legislative Decree No. 259 of 1 August 2003 (Electronic Communications Code) to be unconstitutional, insofar as it provides that – in cases involving the installation or upgrading of telecommunications infrastructure on land subject to civic uses – the landscape restriction referred to in Article 142(1)(h) of the Code of Cultural Heritage and Landscape does not apply. The Commissioner for the liquidation of civic rights for the regions of Lazio, Umbria and Tuscany had raised doubts as to the constitutionality of this provision.
The principles at stake
The Court observed that – whilst excluding the applicability of the landscape restriction, to which areas subject to civic rights are subject by law – the contested provision established, in general and abstract terms, that the interest in the roll-out of telecommunications infrastructure takes precedence over environmental protection, which is expressed through the imposition of that very restriction. The need for administrative simplification, linked to the priority given to the roll-out of the telecommunications network, whilst they may justify the failure to provide for authorisation to change the intended use of land subject to civic rights, cannot, however, eliminate landscape protection through the definitive and blanket exclusion of the restriction designed to safeguard it.
The conflict with the Charter
The Court has in fact stated that ‘simplification cannot lead to the outright denial of any guarantee of environmental protection’. Consequently, the indiscriminate and automatic assessment that the interest in the roll-out of telecommunications networks takes precedence over the environmental and landscape requirements associated with the existence of common rights of use was deemed to be in breach of Article 9 of the Constitution.
