The taxation of abuse in the regions with special statute according to the Constitutional Court

The jurisprudential interpretation

The word “fine” on the scope of the standard, the subject of a multi -year debate between judges, scholars and operators of the sector summarized on pages 680 and SS. of the aforementioned book, it should have been pronounced by the Council of State with the sentence of the Plenary Jet 7 September 2020, n. 17.

The latter sentence, in fact, specified that “In case of cancellation of the building permit, i defects of administrative procedures which refers to art. 38 Presidential Decree 380/01 are exclusively those concerning the form and procedure which, in the light of a concrete evaluation made by the Administration, are impossible to remove “.

So far the state rule on which point 4.3 of the sentence of the Constitutional Court n. 22/2025 in the following terms: “In the sanctioning plant of the building tu, articles 36 and 38 must therefore be read jointly, not only because, by the will of the legislator, the full payment of the pecuniary sanction envisaged by the second provision, it has the same health efficacy as the permit in amnesty as the first, but above all as expressive as the same principles. Both rules indeed, where they derogate from the ordinary regulation of the territory of the territory by introducing the hypotheses of amnesty, carry out a balance of opposing incidents in the area, suitable for guaranteeing the protection of the landscape and the environment, of primary importance for social and economic life. They therefore present one national dimension that cannot undergo regional differentiationsdeserving to be qualified as fundamental rules of economic-social reform as such suitable for binding regional and provincial primary legislative power (in an analogous sense, sentence no. 118 of 2019). In this perspective, the notion of impossibility of restoration (in its technical meaning, according to the consolidated administrative jurisprudence) and the Commissioning of the penalty to the venal value of the work illegally performed constitute fundamental criteria outlined by art. 38 Tu building. The provincial legislator is therefore not given to introduce further evaluation elements of the aforementioned impossibility, nor replace the identified measure which “Price” to be paid to maintain a property that would otherwise be demolishednor, finally, graduate the sanction according to the severity of the urban damage caused by the transformation of the territory “.

The provision of the Autonomous Province of Bolzano

In light of this reconstruction, according to what is read in the judgment of the Constitutional Court n. 22/2025, therefore, art. 94 L. prov. Bolzano n. 9/2018 went beyond the provisions of art. 38 Consolidated building text, placing themselves in contrast with the indications of the administrative jurisprudence.

In point 5.1 of this sentence, in fact, it is stated that “Art. 94 of the Prov. Bolzano n. 9 of 2018, as replaced by the contested provision, violaon the other hand, under multi -profile profiles, the outlined principles that support the reformer design of the state legislator. First of all, paragraph 1, requesting to take into consideration the need for balance with the opposing interests of safeguarding the activities legitimately carried out, introduces new evaluation elements, thus essentially admitting that the administration can operate, when identifying the sanction (real or pecuniary), a new weighting with the need for the protection of the assignment of the private individual on the goodness of the building permit, until completely exclude the reduction in pristine in the face of mild urban lesions. But, as has been said, such a need is extraneous to the internal dynamics of the aforementioned art. 38 Tu building, having already been taken into consideration upstream by the state legislator in the definition of the same case and if anything, being further detecting, downstream, only in the field of compensation of the private individual towards the Administration. Furthermore, the same provincial provision in refer to the cost of building the work instead of its venal valueit affects an essential element of the same remedy case, whose effect is produced, in fact, only with the integral payment of the financel sanction imposed. The determination of the latter, therefore, is not at all “indifferent” with respect to the frame of the limits to the primary legislative power of the autonomous province of Bolzano. This is all the more in light of the fact that the provincial legislator also introduces an even more eccentric (as much as just said) mechanism of graduation of the sanction itself (from 0.8 to 2.5 times the amount of the construction cost), according to the severity of the urban damage caused by the transformation of the territory. Finally, paragraph 2 of art. 94, where it allows the RMuoring of the pecuniary sanction (Until an amount that can be in its minimum limit equal to that envisaged for the oblation for the permission in amnesty) in consideration of the only urban compliance of the work – evidently abusive for substantial defect -, the effect of reintroducing that “sort of administrative amnesty entrusted to the assessment of the Administration” which ignores the requirement of the double conformity pursuant to art. 36 you build and that the plenary meeting with sentence no. 17 of 2020 wanted to avoid. “

Conclusions

Beyond the specific case, therefore, it cannot be excluded that the temperament of the dogma of the double compliance referred to in art. 36-bis Consolidated Construction Text, introduced by the Salva Casa, in one with the legislation of the jurisprudential amnesty or the amnesty with prescriptions, can be subjected to the possible examination of constitutionality by the administrative judges.

But maybe it’s early to make predictions.