Telecommunications infrastructure does not take precedence over environmental restrictions

The need to implementtelecoms infrastructure cannot always be considered prevalent over environmental protection. A provision that automatically overrides landscape restrictions is therefore incompatible with the Constitution. This is affirmed by Judgment No. 121 of the Constitutional Court, which declared Article 54-bis of Legislative Decree 25/2003 to be unconstitutional.

The legislation under challenge (also known as the Electronic Communications Code) stipulates that, in cases involving the installation of telecommunications infrastructure ‘and the implementation of initiatives aimed at enhancing infrastructure and ensuring the functioning of networks and the operation and continuity of telecommunications services”, the landscape restrictions applicable to areas subject to civic rights do not apply. Indeed, Article 142 of the Cultural Heritage Code designates these areas as being of landscape interest. It should be noted that civic rights are rights of use to which a community is entitled in a specific area, such as grazing, hunting or sowing.

According to the Constitutional Court, civic rights are of ‘strategic importance’ in terms of ‘environmental protection’. Now, the judges state, by excluding the applicability of the landscape restriction, the contested provision “has established, in general and abstract terms, the primacy of the interest in the expansion of telecommunications infrastructure over that of 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, ‘may justify’ other measures such as ‘the omission of the requirement for authorisation to change the intended use of property subject to civic rights’, but - the judgement continues - “cannot entirely eliminate the protection of the landscape through the definitive and generalised exclusion of the restriction necessary for its protection’. Cultural and landscape restrictions ‘require specific assessments, linked to the individual territorial context and left to the discretion of the authorities responsible for ensuring their observance’.

In other words, simplification – the decision concludes – ‘cannot lead to the fundamental denial of any guarantee of environmental protection. The search for an appropriate balance and the resolution of any potential conflict between the protection of the landscape and the environment and other interests of a general nature must be achieved through the procedural process and in accordance with the principle of proportionality’. This therefore conflicts with Article 9 of the Constitution, which protects the environmental heritage. In this context, ‘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 civic uses’ is not permitted.