Judgment TAR Puglia, Bari, Sec. III, 21.4.2022, no. 543. Simplified Enabling Procedure and obligation to proceed.

Link to the judjment

https://www.giustizia-amministrativa.it/portale/pages/istituzionale/visualizza/?nodeRef=&schema=tar_ba&nrg=202101344&nomeFile=202200543_01.html&subDir=Provvedimenti

In response to the application aimed at obtaining through P.A.S. – Simplified enabling procedure pursuant to Article 6 of Legislative Decree no. 28 of 2011 the necessary authorization title for the construction of a biomethane production plant, the Municipal Administration that does not take steps either to challenge within the terms the existence of the legal requirements to resort to this procedure, or to call the Conference of Services necessary to achieve the authorization and authorization acts or other necessary acts of consent, gives rise to a hypothesis of silence default against which an appeal may be lodged pursuant to Articles 31 and 117 of the Code of Administrative Procedure.

As stated by the Apulia-Bari Regional Administrative Court, in fact, “the appeal against the silence (Articles 31 and 117 of the Code of the Administrative Process) is connoted as a declaratory process aimed at ascertaining the violation of the Administration’s obligation to provide for a private party’s request, configuring a case of inaction censurable every time the P. A. contravenes a specific obligation to make an express decision, deriving from a rule of law, regulation or administrative act, or from the guiding principles of administrative action when, in particular cases, reasons of justice and equity require the adoption of a measure. In the case under consideration, the obligation to provide derives from the current regulations set forth in Article 6 of Legislative Decree No. 28 of 2011 and Article 6 of Regional Law No. 25/2012.”