Eligible areas and PV-plants: TAR partially annuls the Decree on Eligible Areas and calls in the Constitutional Court

These decisions confirmed the criticism expressed by operators in the renewable energy sector since the enactment of the regulations now under review. In particular, the TAR highlighted the contrast of the Decree on Eligible Areas and the Agriculture Decree-Law with the EU principles that pursue the goal of increasing renewable energy production. For example, the excessive regulatory power given to the Regions, the absence of fundamental principles to guide the Regions, and the lack of safeguard measures for ongoing projects were censured.  

The TAR rulings are calling into question the legislature and the executive, which - within a 60-day deadline - will have to revise the regulations to ensure the compliance to constitutional principles and the needs of the renewable energy sector, all with a simultaneous referral to the Constitutional Court for further evaluation.

In particular, in its ruling no. 9155/2025 published on 13 May 2025, the TAR of Rome mainly pointed out three profiles of illegitimacy of the Decree on Eligible Areas.

Under the first profile, the Roman Court annulled Article 7, paragraph 3, in the part in which the Regions were granted the power to establish "a buffer zone from the perimeter of the protected property of differentiated width depending on the type of plant, proportionate to the property to be protected, up to a maximum of 7 km". In the opinion of the Court, the indefiniteness of the quantitative restriction with reference to the buffer zone from the protected property (up to 7 km) would confer regulatory power on the Regions well beyond the legislative delegation. On this point, such provision would enable the Regions to provide for wider buffer zones than those already identified, for example, for wind and photovoltaic plants in Article 20, paragraph 8, letter c-quater of Legislative Decree 199/2021.

That being said, a second profile of illegitimacy of the administrative choices under the Ministerial Decree lies in the absence of the fundamental principles to guide the regional legislature in the exercise of its powers and of any detailed self-executing provisions. 

Here the Court, starting from the principle of proportionality and homogeneity that must oversee the regulations on the development of FER plants, and without prejudice to Article 117 of the Italian Constitution on the concurrent legislation between the State and the Regions on the subjects of energy production, distribution and transport, has essentially ordered the Ministry of the Environment and Energy Security (Ministero dell’Ambiente e della Sicurezza Energetica - “MASE”) to introduce specific and punctual technical criteria of objective nature inherent to the protection of the environment, landscape and cultural heritage, suitable for guiding the Regions in the exercise of their powers. 

The absence of homogeneous principles and guiding criteria for the Regions constitutes a flaw that violates not only the aforementioned constitutional provision but also the legislative delegation by integrating a lack of homogeneity that could rise different and distinct applications of the regulation of eligible and not eligible areas in the various Regions. 

In addition, the TAR also declared the illegitimacy of the Ministerial Decree on Eligible Areas under a third profile, namely the absence of transitional regulations to safeguard the authorisation procedures of FER plants in progress.

According to the TAR, the Ministerial Decree on Eligible Areas does not provide for any safeguard measures for the initiatives in progress, limiting itself to attributing to the Regions the mere possibility of saving the eligible areas referred to in Article 20, paragraph 8, of Legislative Decree 199/2021 in force at the date of entry into force of the Ministerial Decree on Eligible Areas.

The TAR notes that the absence of a safeguard measure for such initiatives does not ensure the maintenance of the qualification of eligible areas made in the meantime by the law.

Also in this respect, the Ministerial Decree on Eligible Areas will therefore have to be revised.

However, the Regional Administrative Court's setbacks did not focus exclusively on the Ministerial Decree on Eligible Areas.

With the various rulings and orders published on 13 May 2025, the TAR of Rome also issued a ruling on the well-known Law Decree no. 63/2024 (so-called Agricolture Law-Decree) which, it should be noted, had banned the installation of ground-mounted photovoltaic systems in areas classified as agricultural. On this point the Court also upheld, inter alia, the issues of constitutional legitimacy with reference to Article 20 paragraph 1-bis of Legislative Decree 199/2021 as introduced by Article 5 of said Decree-Law No. 63/2024.

According to the TAR, the indiscriminate subtraction of a large part of national territory from the use of photovoltaic technology presents several critical profiles and conflicts with both European Unionlaw and Constitutional principles. 

The provision would in fact conflict with the principle of maximum deployment of FER installations "Member States should limit the exclusion zones in which renewable energy cannot be developed ('exclusion zones') to the minimum necessary (see Commission Recommendation (EU) 2024/1343 of 13.5.2024)”.

The provision of Article 5 of Decree-Law No. 63/2024, on the other hand, have the exact opposite effect, placing a prohibition that maximises the exclusion zones, which is not based on concrete data and certainly does not meet the objective of maximising the availability of space for the development of renewable energy projects.

The imposition of a blanket ban appears unreasonable and disproportionate and would conflict the principles of reasonableness and proportionality in Article 41 of the Italian Constitution as well as the principle of policy integration in Article 11 of the Treaty on the Functioning of the European Union.

Furthermore, the ban would conflict with Article 9 of the Italian Constitution, which protects the environment, biodiversity and ecosystems “also in the future generations' interest”.

The TAR therefore declared the questions of constitutionality not manifestly unfounded, suspending the proceedings and transmitting the documents to the Constitutional Court for incidental review.

In conclusion, if on the one hand the TAR has given the ministerial administrations a deadline of 60 days to comply with the decision and, therefore, to make the prescribed changes to the Ministerial Decree on Eligible Areas, subject to the right to appeal before the Council of State, on the other hand, it will be necessary to wait no less than 9 months for the Constitutional Court to rule on the constitutionality of the Ministerial Decree on Agriculture.

The TAR rulings represent a positive step for renewable energy operators, as they will lead to changes in the current overly restrictive regulations, favouring the development of renewable energy plant projects in compliance with European regulations.​