Already in the aftermath of the approval of the bill on the moratorium for new renewable energy plants (RES) in Sardinia, we had pointed out its constitutional criticality profiles for violating, among others, the prohibition on moratoria imposed by Article 20 of Legislative Decree No. 199/2021 as a fundamental principle having constitutional relevance pursuant to art. 117 of the Constitution.
Our approach was confirmed by the very recent ruling No. 28/2025, in which the Constitutional Court declared the illegitimacy of Art. 3 of Sardinian Regional Law No. 5/2024, which blocked the construction of new RES plants for 18 months.
Recognition of the primacy of state legislation over regional powers.
One of the most relevant aspects of the decision is the Court's recognition that, despite the fact that the Region of Sardinia has statutory powers in the field of landscape protection and territorial governance, they must still be exercised in compliance with the fundamental principles established by state legislation. In particular, the regulations on the identification of areas suitable for renewables introduced by Legislative Decree No. 199/2021, transposing Directive (EU) 2018/2001, represent a binding regulatory framework for special statute regions as well.
The main violations identified by the Court.
The Court identified several areas of conflict between the regional moratorium and Legislative Decree No. 199/2021, as a fundamental principle of the state, in addition to other constitutional violations:
- Violation of the ban on moratoria: Article 20, paragraph 6, of Legislative Decree No. 199/2021 expressly prohibits the introduction of moratoria or suspensions of authorization procedures for RES plants pending the identification of suitable areas. The Sardinian law, by imposing a blanket freeze on authorizations, was in direct conflict with this provision.
- Compromising national decarbonization goals: state legislation stipulates that regions must contribute to the achievement of the goals set by the National Integrated Energy and Climate Plan (NIPEC) and European energy transition obligations. By limiting the installation of new plants, the moratorium would have significantly slowed down the achievement of the regional share of renewable capacity to be developed by 2030.
- Injury to the principle of legal certainty and freedom to conduct business: the Court confirmed how the application of the moratorium even to ongoing authorization proceedings violated the principles of legal certainty and legitimate expectations, causing harm to those in the industry who had already initiated significant investments.
- Exceeding the maximum limit set by state law for the identification of suitable areas: while Art. 20(4) of Legislative Decree No. 199/2021 establishes a maximum time limit of 180 days for the approval of the regional law on suitable areas, the Sardinian moratorium extended the permit freeze to 18 months, further slowing down the energy transition process.
The open question on Regional Law No. 20/2024 on suitable areas.
The Constitutional Court's decision, in addition to reaffirming some fundamental systematic elements of the matter, expresses principles that can certainly assume relevance in the further litigation initiated, in the main by the government, against Sardinia's Regional Law No. 20/2024, which regulates the identification of areas suitable and unsuitable for the construction of RES plants.
Also under discussion are appeals before the Lazio Regional Administrative Court, some of them with the sponsorship of our firm, in which the court has been asked to raise the issue of the constitutionality of the Sardinian LR.
According to the government appeal, the Sardinian law again conflicts with Legislative Decree No. 199/2021, since, among other things:
- It drastically narrows the suitable areas, making almost all of the regional territory unsuitable for the installation of RES plants. This drastically limits the possibility of achieving the decarbonization goals set by the PNIEC (the Sardinian region, moreover, is one of those lagging furthest behind in achieving the goals set by the DM suitable areas).
- It also applies the new regulations to facilities that have already been authorized or are in the process of being authorized, generating legal uncertainty and violating the principle of legitimate expectation.
- It introduces a blanket ban on the construction of facilities in certain areas, without providing for a case-by-case assessment, contrary to constitutional jurisprudence that requires a balancing of the interests involved, even in the case of overriding unsuitability of the area.
- It violates state energy competence by exceeding the limits of regional legislative authority and interfering with national energy transition policies.
Possible reflections of the moratorium ruling on the constitutional judgment on Regional Law No. 20/2024.
The declaration of illegitimacy of the moratorium imposed by the Region of Sardinia could set a significant precedent for the evaluation of the regional law on suitable areas. If the Constitutional Court has already ruled that the region cannot introduce generalized and aprioristic restrictions on the construction of RES plants, it is plausible that it would also find unconstitutional the provisions of Law No. 20/2024 that, although from a different point of view, impose unjustifiable restrictions.
In particular, without going into detail here about the complicated constitutional issues that the regional law poses, the principle that regions cannot introduce regulations that hinder the achievement of national renewable development goals could lead to the declaration of illegitimacy of the law on suitable areas as well, especially where it indiscriminately prevents the installation of RES plants in much of the regional territory.
Then there is the critical issue of the law's non-retroactivity, which claims to explain its effects even on already authorized projects.
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The Constitutional Court's ruling No. 28/2025, therefore, in the wake of previous and well-established case law, clearly indicates to the regions which is the correct path to follow in implementing the regulations on the identification of suitable areas. The government's appeal against Sardinia's Regionale Law No. 20/2024 fits into this context, raising legal issues that have in part already been addressed by the Court.
If the Court, as all those working in the field hope and as seems likely, also as a result of the other incidental judgments that may be initiated at the initiative of the administrative judges, were to declare the law unconstitutional, a very important "systemic effect" would be determined, with relevant consequences not only for Sardinia, but for all other regions that are adopting similar approaches in the regulation of suitable areas.
The crux of the matter remains the fact that the provision for the adoption of the regional law for the definition of suitable areas implies that the only safeguard of legality is that of the Constitutional Court, and this, as is well known, results in important limitations in terms of the effective and prompt protection of rights. Leaving aside here the complex issue of the constitutionality of the state law that provided for such discipline, it is desirable that the regions comply spontaneously with constitutional principles.
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Authors of this note are Massimo Colicchia and Chiara Berra. For more information or clarification on the topics discussed in this article, please contact Massimo Colicchia
Todarello & Partners provides legal assistance on all issues related to the topics discussed in this article. The Firm's attorneys have relevant experience in the subject matter and in all areas of Administrative Law, regularly assisting some of the largest operators active in the market and representing them in court before all relevant jurisdictions.
