Stop the decisions of the Regions that block applications for authorizations for photovoltaic systems in unsuitable areas: any generalized ban is illegitimate because it does not take into account the relevant national legislation, which defines as suitable areas simply those for which an accelerated authorization process can be used, but not the only usable areas.
With these reasons the Constitutional Court, with sentence 144 of 23 July (downloadable at the end of the article)declared the constitutional illegitimacy of the art. 1, paragraph 1, letter. b) of the law of the Sardinia Region 31/2025. The law blocked the issuing of authorizations and the presentation of new requests for plants located outside the suitable areas, postponing the possibility to a subsequent regional administrative act, leaving even the projects already presented in limbo. With this latest decision, the Council has reiterated a key principle already stated last year and therefore applicable to all Regions, without the possibility of introducing surreptitious bans or imposing other administrative constraints.
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The Sardinian law and the blocking of FER requests
The ruling arises from the appeal promoted by the President of the Council of Ministers against the changes made by the Sardinia Region to regional law 20/2024. The contested provision established that, pending the issuance of a specific regional implementing regulation, the process of all pending authorization requests was suspended and that the sending of new applications for RES plants located in unsuitable areas was prohibited (except for energy communities and self-consumption).
The Constitutional Court struck down the law, highlighting three aspects of substantial illegitimacy: invasion of competences and violation of the Special Statute; violation of the principle of reasonableness (Article 3 of the Constitution); infringement of the freedom of economic initiative (Art. 41 Constitution).
No to the invasion of skills
First of all, the Consulta noted that the concurrent competence of the Sardinia Region regarding the production and distribution of electricity (art. 4, letter e, Special Statute) is in any case subject to compliance with the fundamental principles of the State. The ex lege halting of the administrative process openly contrasts with this provision.
As for the violation of the principle of reasonableness (Article 3 of the Constitution), the judges point out that the blocking mechanism operated in an automatic and generalized manner. A discipline that proves to be intrinsically unreasonable, as it leads to equating objectively heterogeneous situations, affecting indiscriminately both proceedings in the initial phase and those already initiated or close to completion, without any gradualness or case-by-case evaluation of the state of the art and the investments made.
Finally, as regards the violation of the freedom of economic initiative (Article 41 of the Constitution), according to the judges of the Consulta, subordinating the entire business activity to a future and uncertain event (the issuing of the regional regulation) constitutes a disproportionate compression of the freedom of private economic initiative in a strategic sector. The time of bureaucracy cannot translate into an indefinite paralysis of the market.
Areas suitable as an accelerator, not as the only usable location
In the sentence the judges also recall previous decisions along this same line and in particular sentences 28/2025 and 184/2025. The latter clarified in detail the correct technical interpretation of the locations, which is based on the authorization regimes and not on the exclusivity of the territories or usable locations. In practice the division works like this:
- Suitable Areas: the qualification should be understood solely as a simplification tool, guaranteeing quicker and more streamlined examination procedures for the projects located there.
- Non-Suitable Areas: areas not included in the suitability perimeters remain fully accessible to proponents. The projects presented in these areas must be examined through the ordinary authorization procedures, concretely verifying their compatibility with environmental, landscape and territorial protections without any prior entry barrier.
In fact, with this new stop to the Sardinian legislation, the judges of Palazzo della Consulta send an unequivocal message to all the Regions: territorial planning is a right of local authorities, but the surreptitious moratoriums and general blocks of applications violate the national implementation decrees (Legislative Decree 199/2021) and the principle of maximum diffusion of RES.
FER and powers of local authorities: summary table
Based on the principles reaffirmed by Sentence no. 144/2026, here is the map of the real powers of local authorities regarding RES:
|
What the Regions CANNOT do |
What the Regions can do |
|---|---|
|
Arrange generalized moratoriums: introduce automatic suspensions of authorization procedures pending secondary acts. |
Planning the territory: identifying and delimiting suitable and unsuitable areas through territorial governance tools. |
|
Place absolute and a priori bans: consider unsuitable areas as total exclusion zones for any RES plant. |
Apply ordinary procedures: evaluate projects in unsuitable areas through case-by-case investigations and environmental opinions. |
|
Block ongoing processes: apply it ius superveniens stopping the process of requests close to completion. |
Simplify administrative regimes: introduce accelerated procedures and preferential lanes within suitable areas only. |
|
Prevent access to the market: limit the submission of new applications by conditioning them to arbitrary deadlines. |
Protect primary constraints: assert landscape, cultural and environmental protection reasons in compliance with Art. 9 of the Constitution. |
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