[ENGLISH] Tar regional court verdict against Muos.

IN THE NAME OF THE ITALIAN PEOPLE

 

The Regional Administrative Court of Sicily

(First Section)

has pronounced the present

SENTENCE

about the appeal general register’s number 1864 of 2011, propounded from:

Municipality of Niscemi, in the person of the legal representative pro tempore, represented and defended by lawyer Edoardo Nigra, with domicile in Luca Di Carlo in Palermo, in Via Morello, 40;

 

against

 

Regional Ministry of Land and Environment (Assessorato Regionale Territorio e Ambiente), Arpa Sicilia – Regional Agency Environment Protection, Regional Company State Forests, Regional Department of Agricultural and Food Resources; Ministry of Defence, represented and defended by law from State Legal Advisory Servce, with domicile in Palermo, Via Alcide De Gasperi, 81;

 

among

 

Department Of The Navy U.S.A.;

 

with the intervention of

 

ad adiuvandum:

Legambiente Sicilian Regional Committee, in the person of the President pro tempore, represented and defended by lawyers Nicola Giudice, Corrado V. Giuliano and Daniela Ciancimino, with domicile in Nicola Giudice in Palermo, Via M. D’Azzeglio, 27/C;

Presidency of the Sicilian Region, represented and defended by lawyers Paolo Chiapparone, Beatrice Fiandaca, Antonio Lazzare, Maria Mattarella, Maria Valli, with domicile in Sicilian Region Legislative and Legal Office in Palermo, via Calatanissetta, 2/E;

Filippo Arena, Sandro Rinnone, Giandomenico Militello, Antonio Rinnone and Desireè Ristagno, represented and defended by lawyers Sebastano Papandrea, Paola Ottaviano and Nicola Giudice, with domicile in Nicola Giudice in Palermo, via M. D’Azzeglio, 27/C;

Concetta Gualato, in proper and as President of Comitato Mamme No MUOS (No MUOS Mums’ Committee), Giséle Cannone, Ottaviano Evola, in proper and as legal representative of association called “Movimento No MUOS Sicilia” (“Sicily No MUOS Movement”), Guglielmo Panebianco, Sabrina D’amanti, rapresented and defended by lawyer Rossella Zizza, with domicile in Roberto De Petro in Palermo, via Celona, 19;

Municipality of Acate, in the person of Mayor pro tempore, represented and defended by lawyer Angela Bruno, with domicile in Michele Costa in Palermo, via Dante, 166;

Municipality of Ragusa, in the person of Mayor  pro tempore, represented and defended by lawyer Sergio Boncoraglio, with domicile in Elisa Gullo in Palermo, via Nicolò Turrisi, 48;

Municipality of Modica, in the person of the Mayor  pro tempore, represented and defended by lawyer Miriam Dell’Alì, with domicile in Riccardo Rotigliano in Palermo, via Cordova, 95;

-municipality of Gela, in the person of Mayor pro tempore, represented and defended by lawyer Dionisio Nastasi, domiciled in TAR Secretary.

European Citizens’ Consumers Association, represented and defended by lawyer Carmelo Giurdanella, with domicile in Carmelo Giurdanella in Palermo, via E. Notarbartolo, 5;

 

on the appeal general register’s number 808 of 2013, proposed by:

Ministry of Defence, represented and defended by law from Avvocatura District State, domiciled in Palermo, via A. De Gasperi, 81;

against

 

Sicilian Regional Government, Region of Sicily in the person of the President pro tempore, Regional Ministry of Land and Environment (Assessorato Regionale Territorio e Ambiente) – Regional Departement of Environment, represented and defended by lawyers Beatrice Fiandaca, Maria Mattarella and Marina Valli, with domicile in Legislative and Legal Office of Region of Sicily, in Palermo, via Caltanissetta 2/E;

Municipality of Niscemi, in the person of the Mayor pro tempore, represented and defended by lawyer Edoardo Nigra, with domicile in Luca Di Carlo In Palermo, via N. Morello, 40;

 

with the intervention of

 

ad opponendum:

 

Legambiente Sicilian Regional Committee, in the person of the President pro tempore, represented and defended by lawyers Nicola Giudice, Corrado V. Giuliano, Daniela Ciancimino, Antonella Bonanno, Marilena Del Vechio, with domicile in Nicola Giudice in Palermo, Via M. D’Azzeglio, 27/C;

Filippo Arena, Sandro Rinnone, Giandomenico Militello, Antonio Rinnone, Desireè Ristagno, Livio Cannizzo and Alessandro Vacirca, represented and defended by lawyer Sebastiano Papandrea, Paola Ottaviano and Nicola Giudice, with domicile in Nicola Giudice in Palermo, via M. D’Azzeglio, 27/C;

Italian Association for the  World Wide Fund For Nature – Onlus, represented and defended by lawyer Giovanni Crosta, with domicile in Giovanni Crosta in Palermo, via Houel, 5;

 

about the appeal general register’s number 950 pf 2013, proposed by:

Ministery of Defence, represented and defended by law from Avvocatura District State, domiciled in Palermo, via A. De Gasperi, 81;

 

against

 

Sicilian Regional Council, President of the Sicilian Region, General Secretary, Regional Ministry of Land and Environment – Regional Department of the Environment, represented and defended by lawyers Beatrice Fiandaca, Maria Mattarella and Marina Valli with domicile in Legislative and Legal Office of Region of Sicily in Palermo, via Caltanissetta, 2/E;

Municipality of Niscemi, in the person of the Mayor pro tempore, represented and defended by lawyer Edoardo Nigra, with domicile in Luca Di Carlo In Palermo, via N. Morello, 40;

 

with the intervention of

 

ad opponendum:

Legambiente Sicilian Regional Committee, in the person of the President pro tempore, represented and defended by lawyers Nicola Giudice, Corrado V. Giuliano, Daniela Ciancimino, Antonella Bonanno, Marilena Del Vechio, with domicile in Nicola Giudice in Palermo, Via M. D’Azzeglio, 27/C;

Filippo Arena, Sandro Rinnone, Giandomenico Militello, Antonio Rinnone, Desireè Ristagno, Livio Cannizzo and Alessandro Vacirca, represented and defended by lawyer Sebastiano Papandrea, Paola Ottaviano and Nicola Giudice, with domicile in Nicola Giudice in Palermo, via M. D’Azzeglio, 27/C;

 

about the appeal general register’s number 1825 of 2013, proposed by:

Legambiente Sicilian Regional Committee, in the person of the President pro tempore, represented and defended by lawyers Nicola Giudice, Daniela Ciancimino, Antonella Bonanno, Marilena Del Vecchio and Corrado V. Giuliano, with domicile in Nicola Giudice in Palermo, Via M. D’Azzeglio, 27/C;

 

against

 

Department of Land and Environment of the Sicilian Region, Department of Environment  C / Department of  Territory and the Environment of the Region of Sicily, Sicily Arpa Agency – Regional Agency for Environmental Protection, Department Company Regional State Forests, Regional Department of Agricultural and Food Resources,  President of the Sicilian Region, Municipality of Niscemi, all no made in court;

Ministry of Defence, represented and defended by law from Avvocatura District State, domiciled in Palermo, via A. De Gasperi, 81;

 

among

 

Departement Of The Navy U.S.A.;

 

with the intervention of

 

ad adiuvandum:

Filippo Arena, Salvatore Terranova, Fida Santa Muscia, Francesco Di Dio Cafiso, Elvira Cusa, Giuliana Reale, represented and defended by lawyers Sebastiano Papandrea, Nicola Giudice and Paola Ottaviano, with domicile in Nicola Giudice in Palermo, via M. D’Azeglio, 27/C;

 

about the appeal general register’s number 2397 of 2013, proposed by:

Association “Movimento No MUOS Sicilia” (“Sicily No MUOS Movement”), in the person of the President pro tempore, and by Guglielmo Panebianco, Giuseppe Maida e Rosario Buccheri, represented and defended by lawyers Rossella Zizza and Roberto De Petro, with domicile in Roberto De Petro in Palermo, via Celano, 19;

 

against

 

Regional Ministry of Land and Environment of the Sicilian Region – Department of Environment Ministry of Defence, represented and defended by law from District Advocacy of the State, with domicile in Palermo, via A. De Gasperi 81;

Arpa Sicilia, Department Company Regional State Forests, Regional Department of Agricultural Resources and Food, President of the Sicilian Region, Department of The Navy Usa, Municipality of Niscemi, all no made in court;

 

among

 

Legalmbiete Regional Committee Onlus, in the person of the President pro tempore, represented and defended by lawyers Nicola Giudice, Corrado V. Giuliano, Daniela Ciancimino, Antonella Bonanno and Marilena Del Vecchio, with domicile in Vicola Giudice in Palermo, via M. D’Azeglio, 27/C;

Filippo Arena, Salvatore Terranova, Fida Santa Muscia, Giuliana Reale, Francesco Di Dio Cafisio, Elvira Cusa;

 

with the intervention of

 

ad adiuvandum:

Municipality of Acate, in the person of the Mayor pro tempore, represented and defended by lawyer Rossella Zizza, with domicile in Roberto De Petro in Palermo, via Celona, 19;

Municipality of Mirabella Imbaccari, in the person of the Mayor pro tempore, represented and defended by lawyer Rossella Zizza, with domicile in Roberto De Petro in Palermo, via Celona, 19;

Municipality of Vittoria, in the person of Mayor, represented and defended by lawyer Angela Bruno, with domicile in Michele Costa in Palermo, via Dante, 166;

Municipality of Ragusa, in the person of the Mayor pro tempore, represented and defended by lawyer Sergio Boncoraglio, with domicile in Elisa Gullo in Palermo, via Nicolò Turrisi, 48;

Municipality of Gela, in the person of the Mayor pro tempore, represented and defended by lawyer Dionisio Nastasi, with domicile in Palermo in TAR Secretary

 

for the annulment

 

about the appeal n. 1864 of 2011:

– about the measure of the general director of Regional Ministry of  Land and Environment of the Sicilian Region – Department of Environment protocol n. 43182 of 28th June 2011, communicated the next 12nd July, having as object “project 002-06/1035 – installation of the communication system for mobile users, radio site U.S. Navy 41° Storm – Sigonella”, in R. N. O. Sughereta of Niscemi, with which has been authorized the execution of the work indicated by the object;

– about any other act antecedent or successive, however presupposed, connected or consequent, included: note of Servizio 1 V.A.S.-V.I.A. of Ministry of Land and Enviroment of Region of Sicily, Department of Enviroment, of 1st June 2011 protocol n. 36783; the unknown notes by Sicily Arpa n.

2535 of 18th February 2009 and n. 9196 of 27th May 2009; the unknown opinion of the Regional Council for the protection of the natural patrimony expressed the 11th May 2011; the unknown opinion of the Forestry Authority.

 

About the appeal n. 808 of 2013:

– about the Deliberation of Sicilian Regional Council n. 61 of 5th February 2013;

– about ARTA’s note n. 15513 of 29th March 2013, with which has been annulled the authorization ex art. 5, D.P.R. n. 357/95 already given with a the note n. 36783 of 1st June 2011;

– about ARTA’s Note n. 15532 of 29th March 22013, with which has been annulled the authorization given with note n. 43182 of 28th June 2011;

– as well as, when it occurs, about ARTA’s notes n. 81/GAB of 11st January 2013 and n. 440/GAB of 11st February 2013;

– as well as, at the end, about any other act or measure presupposed, consequent or connected;

– and about the compensation for the damage, patrimonial and not, suffered by the reccurrent Administration as a consequence of accused acts or – as extreme alternative – about the liquidation of the indemnity ex art. 21-quinquies 7.8.1990, n. 241 e ss.mm.ii

 

about the appeal n. 950 of 2013:

– the deliberation of Cicilian Regional Council n. 61 of 5th February 2013;

– about ARTA’s note n. 15513 of 29th March 2013, with which has been annulled the authorization ex art. 5, D.P.R. n. 357/95 given with note n. 36783 of 1st June 2011, in substitution of the Department previously mentioned after the request of Municipality of Niscemi;

– about the ARTA’s note n. 15532 of 29th March 2013, with which has been annulled the authorization given with the note n, 43182 of 28th June 2011;

– as well as, when useful, about ARTA’s note n. 81/GAB of 11st January 2013 and about ARTA’s note n. 440/GAB of 11st February 2013;

– as well as, at the end, of any other act and measure presupposed, consequent or connected;

– and about the compensation for the damage, patrimonial and not, suffered by the reccurrent Administration as a consequence of accused acts or – as extreme alternative – about the liquidation of the indemnity ex art. 21-quinquies 7.8.1990, n. 241 e ss.mm.ii

about the appeal n. 1825 of 2013:

 

about the measure n. 32513 of 24th July 2013 signed by the General Director of the Department of the Environment of the Sicilian Regional Ministry of Land and Environment , not published, having as object “MUOS Project – Installation of communication system for mobile users, radio site U.S. Navy of Niscemi”. Revocation of precedent measures of revocation n. 15513 and n. 15532

 

about the appeal n. 2397 of 2013:

about the measure of the General Director of the Department of the Environment of the Sicilian Regional Ministry of Land and Environment of 24th July 2013, n. 32513, having as object “MUOS Project – installation of the communication system for mobile users, radio site US Navy of Niscemi. Revocation of precedent revocation measures n. 15513 and 15532” with whom has been annulled precedent measures of revocation of 29th March 2013 (of the authorizations of the execution of works of the installation of M.U.O.S.).

 

Considering the appeals and connected attachments;

 

Considering the entries of appearance in court and acts of intervention;

 

Considering defensive memories;

 

Considering all the acts of the legal cause;

 

Supervisor in the public hearing on the 25th November 2014  Dr. Caterina Criscenti and listened at lawyers for the parts;

 

Held and considered the facts and law as follows.

 

 

FACT and LAW

 

Impugned acts are connected with a long procedural affair about the authorization of the installation of the satellite system of communication MUOS, that is opportune to recall in a preliminary way.

 

  1. HINTS ABOUT MUOS SYSTEM AND NISCEMI SITE.

Satellite system of communication MUOS is connected to the realization of four satellites and four heart stations localized, respectively, in the South-West of Australia (Kojarena station, about 30 km from the city of Geraldton); in Hawaii (Wahiawa Island radio station); in the United States, Virginia (in a not specified site) and in Sicily, in a site originally localized in the Naval Air base of Sigonella and then moved in the radio station of Niscemi.

The project of Niscemi considers the execution, with Unites States founds, of this works: three parabolic antennas (called “Sistems at Objective Mobile User MUOS”), transmitting on ka-band, each of them with a diameter of 18,4 meters and high 25 meters, built on bases high 6 meters and of 112,14 mq; two coiled antennas for ultra-high frequency UHF, with a diameter of 33 cm; three constructions, with a water tank and a containment tank for diesel tank, access road, sidewalks, various support systems (lighting, video surveillance and alarm, etc).

Niscemi site where is expected MUOS is: 1) inside the B zone (since 30th December 2009 became A zone), of Riserva Naturale Orientata (RNO – Orientata Natural Reserve) called “Sughereta” founded with D. A. 475 of 25th July 1997 and administrated by FSicilian Region Forestry Authority; 2) inside an area that is liable to landscape bond, according to art. 142, co. 1, lett. f) e g) D.lgs. n. 42/04); 3) in the ecologic network “Natura 2000” (“Nature 2000”) inside a Site of Community Importance ITA050007, foundend according European Directives  92/43/CEE and 79/409/CEE.

 

  1. AUTHORIZATIONS ITER ABOUT THE INSTALLATION OF MUOS SYSTEM.

 

  1. Air Force, obtained on the 16th May 2006 the project’s approval by Sicilian Region “Comitato Misto Paritetico”, with an instance oh the 6th Agoust 2008 asked to the Municipality of Niscemi “ the performing of a procedure of check (screening) according to art. 4 D.A. 30th March 2007, because considered that the works (Installation of the System MUOS) have no impact on the SIC ITA 050 007 “Sughereta Niscemi” within which the works fall entirely”.

On the 9th September 2008 the Chief urban division of the City of Niscemi, examined project’s scripts, landscape relation and the one about impact assessment (April 2008), as well as the authorizations already given, including clearance by the Soprintendenza ai BBCCAA of Caltanissetta prot. n. 2293 of 18th June 2008 and the positive opinion of the Regional Company State Forests – Provincial Office of Caltanissetta  -prot. n. 2598 of 9th June 2008, said that works “can’t have negative effects on SIC ITA 050007 “Sughereta di Niscemi” so that this works, according to art. 4 cit, “don’t have to do the procedure about the evaluation of the effects”, according to art. 5 DPR 8th September 1997 n. 357 (c.d. VINCA); he concluded that “clearance for the execution of works” with some prescriptions and subjected to the requirements of competence of other authorities.

During the same 9th September 2008 there was in ARTA – service 6 – PPN the services conference, called with a Department note n. 65724 of 27th August 2008, in order to release the clearance about the realization of works inside the natural reserve according to art. 122 l.r. 3 May 2001, n.6 “in absence of a planning instrument in the reserved area”. The conference, in witch the Municipality of Niscemi, the Regional Inspectorate Forests, Caltanissetta UPA, the DRU – service 10, U.S. Navy and 41° Storm – Sigonella (the Superintendence was absent) taken part in, concluded with a positive result, that is the unanimous accord to the realization of the works, subject to the guidelines and conditions contained in the opinions.

Next day, with a note of 10th September 2008 n.83 the Mayor of Niscemi asked an opinion to ARPA, that with a note of the 21st November 2008 communicated that ARPA would start measurements of the electromagnetic emissions trough mobile stations placed on some houses next to the radio station.

With a note of the 12nd September 2008 the Mayor asked to the Ministry of Defence documented information about real effects of electromagnetic waves generated by the system, because the sanitary authority didn’t take part to the conference, and assuming risks also for Sigonella’s airport.

Ministry of Defence, with a note of 14th November 2008, noticed information’s request by the Municipality of Niscemi.

On the 2nd October 2008 ARTA’s service 6 asked to Municipality of Niscemi if it had considered the problem of electromagnetic emissions.

With a note of 23rd February 2009 of urban planning Chief started the procedure of review of the already given clearance, according to art. 5 DPR n.357/97.

With a determination of Niscemi’s Mayor, n. 16 of 17th March 2009, has been nominated a scientific and technical committee, composed by agronomists and botanists professionals, to evaluate the presented documentation about the project.

L’ARTA, with a note of 16th September 2009, communicated the results of measurements of electromagnetic emissions generated by the existing antennas, referring that they have already higher values among the attention threshold required by law.

With a note of 24th September 2009 prot. n. 21159 sent to ARTA’s service 6, the Urban Division of Municipality recalled at some communications of VIA – VAS service (transmitted in 2006, 2007 and 2009) that reported a prescription by PRG (approved on 18th October 2006), according to witch for Sughereta area the Municipality should acquire until 90 days from the emission of PRG’s  Approval Decree the incidental evaluation and that in PRG incidental study is indicated the absolute ban on builing, and communicated to Municipality Administration that was necessary to see again the exam of MUOS project “both for the evaluation of art. 5 DPR 357/97, and also for the evaluation about electromagnetic waves asked and never received”.

Meanwhile, the scientific and technical committee named by Municipality, with a note of 15th October 2009, transmitted the technical relation, in witch is underlined the absolute inadequacy of the data provided in support of the project.

With a note of 22nd October 2009 the Urban planning Chief, recalling to note prot. 21159, started the procedure of revocation in self-defence of the clearance given on the 9th September 2008, asking for a new evaluation of effects.

With a note of 5th – 12nd November 2009 the American Department, having seen the beginning of the revocation procedure, confirm that the system doesn’t generate damages to health and environment.

With a note n. 45 of 19th – 20th November 2009 (renewed on 15th December 2009, prot. n. 57) the Urban planning Chief, recalling the note prt. n. 21159 of the 24th September, annulled in self-defence the clearance given on the 9th September 2008.

 

  1. With a note of 25th May 2001, after an informal request of the Department, the Municipality – Urban planning, – reiterating the determination n. 45/09 and recalled art.1, clauses 1 and 3, l.r. n. 13/07 about the intervention in stead and verified that ARTA’s Serv. VAS-VIA “is not present at services conference works of 9.9.2008” – sent to the same Department, that asked fot it before, all the documentation about the determination of incidence.

With an act on the 1st June 2011 prot. n. 36783, the Department Service 1 VAS – VIA, recalled the technical relation of appointed professionals by Municipality of Niscemi, ARP’s data, the opinion of the Department of electric engineering, the opinion of CRPPN of the 11st May 2011 – expressed in stead according to .r. n. 13/07 a positive opinion, with some prescriptions, about the evaluation of the environment incidence of the project, according to art. 5 DPR n. 357/97.

with a measure prot. n. 43182 of 28th June 2011, communicated at the Municipality on the 12nd July 2011, the Department – Service 4 – PPN authorized, according to l.r. n. 98/1981, the execution of the project, with some prescriptions.

 

  1. With a note prot. n. 81 of 11st January 2013 ARTA, with the Department of Health, asked to ISS, Ministry of Health and ENAV, for “an eminent opinion” about some problems that came out.

With a note prot. n. 82 of 11st January 2011 ARTA addressed to American Department – Sigonella’s and Naple’s sites – recalling to the opinion’s request of note prot. n. 81 and communicating the begging in self-defence of the procedure of hanging of the act of 1st and 28th June 2011.

With deliberation n. 61 of 5th February 2013 the Regional Council, “taking in count that the Regional Department of  Territory and Environment says that nowadays are lacking preliminary surveys about MUOS interferences on air navigation from or to Comiso airport, and also surveys about health protection from electromagnetic exposition and Environment protection of SIC areas”, gave proxy to Regional Department of Territory and Environment and to the General Chief of Regional Department of Environment to start immediately the procedure of  suspension of authorizations, prot. n. 36783 of 1st  June 2011 and prot. n. 43182 of 28th June 2011.

With a note prot. n. 1140 of 11st February 2013 The Council communicated at American Department – Sigonella’s and Naple’s sites -, giving credit to  deliberation n. 61 of 5th February 2013, the begging of the procedure of suspension of the two authorizations.

 

With a note ARTA – DRA – Service u. o. 1.6 Incidence Evaluation – n. 15513 of 29th March 2013, recalling the content of the deliberation of Regional Council n.61/2013, the General Chief of DRA, using of the principle of precaution, suspended the authorization ex art. 5, DPR n. 357/95, given with note n. 36783 of 1st June 2011.

 

With note ARTA – DRA – Service 4 – PPN – n. 15532 pf 29th March 2013 the General Chief of DRA, also recalling to the principle of precaution, suspendend the authorization to the installation of MUOS system given with note n. 43192 of 28th June 2011.

 

With executive measure of 24th July 2013 prot. n. 32513 – being said that on the 3rd May 2013 has been already authorized some maintenance and safety work of structure; that on the 19th July 2013 has been communicated an ISS’s study from witch is likely to think that does not exist relevant risks; not being seen has valid the principle of precaution – the General Chief of ARTA suspended the acts in self-defence (“suspension of suspensions”).

 

  1. THE PROCESS: THE FIVE APPEALS ABOUT MUOS SYSTEM

 

  1. With appeal notified on the 5th September 2011 and registeres on the 22nd September 2011 (n. 1864/11 R.G.), Municipality of Niscemi, in the person of the Mayor pro tempore, contested the note prot. n. 36783 of the 1st June 2011, with witch the General Chief of Regional Department – Service VIA – VAS, according to  prot. n. 36783, expressed in stead a positive opinion, with some prescriptions, about the evaluation of environment impact ex art. 5 DPR 357/97 about the project of the installation on MUOS system in SIC ITA 050007 “Sughereta di Niscemi”,  as well as the act prot. n. 43182 of 28th June 2011, with witch the Department – Service 4 – PPN authorized the execution of the project, with some prescriptions.

 

Against the before said acts the Municipality of Niscemi articulated the following complaints:,

  1. Excess of power for misrepresentation, lack of investigation, lack of logic, contradictory – violation art. 3 e 5 del d.p.c.m. 8.07.03 – violation art. 2 l.n. 157/1992 – violation of directive by CEE 79/409 of Berna’s Convention 19.09.79, of Washington’s Convention 3.03.73, of “Habitat’s” Directive 92/43/CEE – derived illegitimacy.

 

I.a. the contested authorizations are based on surveys made by ARPA during a period from 9th March 2009 and 9th June 2009 with mobile systems put in those houses near radio station, from witch emerges that emissions from existing systems in the Niscemi’s radio station are already near to the attention limit and, in some cases, higher than limits decided in art. 3 d.p.c.m. 8th July 2003, clauses 1 and 2; however any evaluation has been produced about emissions that will be generated from MUOS system and from its impact in a cumulative way with radio systems already existing.

 

I.b. Regional Department, in the authorization act of 28th June 2011, expressly recall ARPA’s notes of 18th February 2009 and 27th May 2009, the first one before the measurements and the second one after the period of collection of data, as well as “ the opinion about the risk of population of Niscemi written in February 2011 by the Dept. Of Electrical Engineering Electronics and Telecommunications of Engineering Faculty UNIPA”, that has not been communicated to the Municipality of Niscemi that, if it is based of ARPA’s measurements, it would be unreliable; if it is based on the survey about the environment impact done by the professional called by American Navy on “April 2008”, ii would be complained about a lot of points thanks to the survey of prof. Massimo Coraddu of National Institute of Nuclear Physics of Cagliari.

 

I.c. Regional authorization acts contested recall, moreover, the positive opinion expressed by the Regional Council about the protection of natural patrimony on the 11.2.2011 and positive opinion expressed by Company state forests, that has never been communicated to the Municipality of Niscemi and that, however, seem invalid and wrong because are based on poor data and in contrast with existing laws about protection of birds and wild birds (directive  CEE 79/409, Berna’s Convention 19.09.79; Washington’s Convention 3.03.73 – “Habitat”’s Directive 92/42/CEE – law 157/1992).

 

  1. Violation of art. 176 CEE Agreement and of the “precaution principle” – Violation of Habitat’s Directive 92/43/CEE, from another point: if it is not possible to say certainly the existence or the kind of risk, the precaution principle justifies the use of restrictive measures.

 

III.  Violation of art. 5, clauses 3, 5 and 10 and of attachment G of D.P.R. n. 357/1997 – and excess of power for misrepresentation, lack of investigation, lack of logic, contradictory – violation of art. 3 l.n. 241/90 as received from l.r. 10/1991 – illegitimacy derived from another point: Regional Department did not verified compliance of the project presented from proponents with addresses prescribed by the attachment G at  d.p.r. 357/1997  with a particular connection to electromagnetic pollution and to incident’s risks derived from used technologies; it is lacking also an evaluation about seismic risk and about effects of an eventual seism on MUOS antennas (collapse, change the pointing of the parables, etc.). Moreover the intervention in the project is in a SIC area characterized by “priority” habitat and about this intervention the Municipality of Niscemi has expressed its proper negative opinion. In this case, clause 10 of art. 5 d.p.r. 357/1997 says that the intervention can be realized just for needs connected to man’s health and for reasons connect to public security or needs of primary importance for the environment, or, after the opinion of European Commission, for other reasons connected to the public interest. Regional Department has expressed an incidence evaluation that violates this law, because do not exists this specific need, specified in the law and that permit exceptionally the execution of buildings inside SIC areas. Neither Regional Department asked for the preventive opinion to European Commission, as it is said in the cited law in case of “imperative reasons of overriding public interest”, however not clearly said by Regional Department.

 

  1. Incompetence – violation of art. 1 l.r. n. 13/2007 and of art. 5 del DPR n. 357/1997: the regional law permit Department to intervene “in stead” just in case of inactivity of the Municipality and not if the local office has already expressed a negative opinion as happened in this specific case, in witch the Municipality of Niscemi had expressed a negative opinion about the acceptance of the project, annulling in self-defence the precedent positive clearance.

 

  1. violation of art. 15 l.r. n. 10/1991 as replaced by art. 4 5th April 2011 n.5 – violation art. 19 quarter l.n. 241/1990 – incompetence from another point – violation of the right procedural: art. 5 l.r. n. 10/91 regulates in Sicily the Institution of services conference and clause 2, as replaced by art. 4 l.r. n. 5/2011, provides that in case of contrast between a regional administration and a local office or local offices, the proceeding administration “… till 10 days places the decision to Regional Council”, that has to decide using the ways and the timing described in clause 3.

 

Had presented Regional Department of Territory and Environment, and the one of Agricultural and Food Resources, and the Regional Department of Company state forests, insisting on the rejection of the appeal.

 

With ordinance 12nd October 2011, n. 807, confirmed by GDA (ord. n. 51 of the 12nd January 2012), TAR rejected the interlocutory application.

 

Had presented in judgment also the Ministry od Defence and with ordinance 21st December 2012, n. 2713 TAR disposed verification, choosing as verifier the Principal of Faculty of Engineering of the University of Rome “La Sapienza” (with the possibility to delegate), to witch asked:

 

“1) witch is the real consistency and real effects of electromagnetic emissions generated by MUOS system and radio systems already existing in radio station of Niscemi?

2) this emissions are conformed to the national and regional law about the defence from electromagnetic expositions and the environmental defence of SIC area, as well as of seismic areas?”.

 

Contextually asked,  charged to Regional Department of Territory and Environment, the deposit of all procedural acts and, particularly, “of the opinions expressed by: Engineering Faculty of the University of Palermo during February 2011; Regional Council for the protection of natural patrimonial on the 11st May 2011; Company state forests, with clarifications of facts in cause”.

 

With a note  prot. n. 1660 of 21st January 2013 Regional Department of Territory and Environment transmitted all the asked documentation.

 

With an ordinance 4th March 2013 n. 495, after the request of the verifier Prof. Marcello D’Amore, the Court integrated the ordinance n. 2713/12, making clear that “the verification has to be done in contradictory with the parts and the verifier has the opportunity of accesses to all the acts of the lawsuit even if not deposited in judgement”.

 

On the 27th June 2013 the verifier deposited the relation, concluding that because a serious incompleteness both of the conformity survey of the site, with the objective of approval for electromagnetic effects on environment by MUOS system, coming from Space and Naval Warfare System Center and reported in the study of environmental incidence during April 2008, and the one made by ARPA (pages 23-4 of the relation).

 

Meanwhile, with an act deposited on the 27th March 2013 the management of Sicilian Region communicated that had began the suspension procedural of the two authorizations and,

revealing an interests conflict with the Ministry of Defence, intervened ad adiuvandum with the help of private proponents.

 

And, in fact, as said before, with a note ARTA – DRA – service u.o. 1.6 evaluation of incidence – n. 15513 of 29th March 2013, the General Chief of DRA, after the deliberation of Regional Council n.61 of the 5th February 2013, suspended the authorization ex art. 5 DPR n. 357/95 given with note  n. 36783 of 1.6.2011, recalling the principle of precaution; with a note ARTA – DRA – Service 4 – PPN – n. 15532 of the 29th March 2013 the same General Chief, with the same reason, suspended the authorization of the installation of MUOS system given with note n. 43192 of 28.6.2011.

 

  1. the deliberation of Regional Council n. 61/2013 and notes nn. 15513 and 15532 are contested by Ministry of Defence, with appeal notified on the 16th April and deposited on the 20th April 2013 (n. 808/13 R.G.) and again with notified appeal, also at the Municipality of Niscemi, the 3rd May and deposited on the 9th May 2013 (n. 950/13 R.G.).

 

In order to support its proper requests the Ministry, making clear its legitimacy to act ant the nature of the military installation of the system, deduced:

 

  1. I) ABOUT THE COUNCIL’S DELIBERATION N. 61/13 AND ABOUT ARTA’S NOTES N. 15513 AND 15532:

 

1.a) violation for a lack of and false application of art.  20, R.d.lgs. 15Th May 1946, n. 455 e art. 4 D.P. Reg. 28Th February 1979 n. 70; violation for a lack of and false application of art. 2 and 7 l.n. 10/00; incompetence; excess of authority: the deliberation n. 61/13 clearly violates the competences given to Regional Council by laws said before, macroscopically gong beyond general political and administrative competences given to the Council and is at the base of the illegitimacy of ARTA’s act here contrasted, because this ones, even if finalized to the defence of the air traffic in Comiso and of the health of Niscemi’s population, has been adopted by General Chief of ARTA that has not competence neither about air traffic, or about public health; is however invalid because ignores the existence of studies of positive sign about health and environment and the permanent closure of Comiso’s airport, after the inaugural voyage, and does not give the measure of concrete and actual public interest searched;

I.b) Incompetence: with deliberation 61/13 the Council gives joint mandate to the Assessor and General Chief for the suspension, but then acts are adopted just by the Chief, violating the joint mandate;

 

I.c) violation for false application of art. 5. D.P.R. 8.9.1997. n.357 e ss.mm.ii.; violation for false application of Directive 92/43/CEE of 21.5.1992; excess of power for misrepresentation of facts; misuse of power, clear lack of logic and wrongness of assumptions; failure to investigate; absolute lack of motivation; violation of art 3, 7, 8 and 10 of  L. 7.8.1990 n. 241: because ARTA’s note n.36783 of 1st June 2011 has been adopted in substitution of the Municipality of Niscemi, the retire act should be adopted from the subject institutionally competent, in this case the Municipality; all the motivations referred to the note said before are in reality non-existing (the airport is not active, there are a lot of positive studies about the defence of health, reasons about public interest are generic);

 

  1. II) ABOUT ARTA’S NOTE N. 82/GAB OF 11.1.13; ABOUT ARTA’S NOTE N. 440/GAB OF 11.2.13; ABOUT ARTA’S NOTE N. 81/GAB OF 11.1.13: about all of them is contested the lack of motivation.

 

The claimant Ministry asked, also, the payment of patrimonial damages and not, and, in a subordinative way, the compensation ex art. 21 quinquies l.n. 241/90.

 

Presented Municipality of Niscemi, objecting the lack of active legitimacy of Ministry of Defence and the delay of the appeal in the part in witch is contested the deliberation n. 61/13.

 

With ordinances n.1263 and 1264 of 6th June 2013 are deposited big preliminaries at the expence of the claimant Ministry, about the profile of the legitimacy to act; with ordinances n. 469 and 470 of 9th July 2013, are rejected the precautionary requests.

 

The Ministry of Defence prosed an appeal and at the Council Chamber of 25th July 2013 the CGA, considered the act of 24th July 2013, prot. n. 32513, declared that the appeals could not go on because of “supervening end the issue precautionary controversial”.

 

  1. happened, in fact, as said in the part dedicated at the procedure, that with an act of 24th July 2013 prot. n. 32513, the General Chief of ARTA, on the base of the conclusion af a study of Istituto Superiore della Sanità of the 19th July 2013, had suspended notes of 29th March 2013, prot. n. 15513 e prot. n. 15532, adopted in self-defence by the same Department.

 

The act prot. n. 32513/2013 (“suspension of suspensions” – “revoca della revoca”) was contrasted by the Regional Committee Legambiante with an act notified on the 7th October 2013 and deposited on the 8th October 2013 (ric. n. 1825/2013 R.G.) and by the Movimento No MUOS Association, with  Guglielmo Panebianco, Giuseppe Maida and Rosario Buccheri, with an act notified on the 6th November 2013 and deposited on the 20th November 2013 (ric. n. 2397/2013 R.G.).

 

Against the before said act Legambiente deduced:

 

  1. I) an issue of constitutionality about the violation of art. 80, 87 and 11 of bilateral agreements on the base of the MUOS system of Niscemi (or, to say it better, the institution of a military base that can be use only by USA with a simple agreement);

 

  1. II) the suspensions of March 2013 should be qualified more exactly as annulment (and, so, with an ex tunc effect), because are based on a lack of investigation. As a consequence, the works made medio tempore has to be considered as abusive, because without title ab origine. The suspension of July is it because of the relation of ISS. Having said this, the suspension of July cannot have any effect because reactive and it is needed to ask again clearance and opinions and call for a new services conference. Even the landscape authorization is expired not having the opportunity to use, because of many reasons, of l. n. 69/13 about abusive work;

 

III) the constitutional illegitimacy of the modification of art 146 D.lgs. n. 42/04, made from art. 39 D.l. n. 69/13;

 

  1. IV) wrong premises: the ISS’s relation is a simple scientific opinion, not binding; with it there is a minority relation by Zucchetti, Regional technical, not taken in count. By the way, from the same relation of ISS emerges important criticality and make clear that the used data came from USA Embassy. The Region did not take in count of the relation of the verifier D’Amore, already deposited in the judgement started by the Municipality of Niscemi. Nothing has been said about the possible electromagnetic effects on airport structures of Catania, Comiso and Sigonella.

 

The No MUOS Association, born on the 20th January 2013, with an appeal produced with three citizens from Niscemi, articulated this reasons:

 

  1. I) a lack of advice of the beginning of the procedure: the managerial procedure of the 24th July 2013 has not been preceded by an advise of the beginning of the procedure, meanwhile suspensive procedures has been preceded by a communication note about the beginning of the procedure (note of the General Chief of the Department of Environment – ARTA prot. n. 440/Gab of 11st February 2013 and also in note prot. n. 82/Gab of 11st February 2013 of the same Chief of the communication of the begging of the suspensive procedure);

 

  1. II) wrongness of assumptions – lack of impartiality and independence of ISS because it is a government agency of the part of the Ministry: l’ISS as a government agency of the part of the Ministry, cannot be considered as a third subject and independent, right to assure an impartial analysis;

 

III) violation and false application of the principle of precaution  ex art. 174, prg. 2, of the Agreement that is the application of art. 301, co. 2, D.lgs. n. 152/06, lack of reason and contradictory with precedent determinations: the ISS’s study, on witch is based the contested act, do not permit to go further the principle of precaution at the base of the suspensions of March, and do not permit however any certain about the defence of the health of the population and the involved environment goods, both because studies and opinions expressed out of the ordinary and correct procedure finalized at the authorization of works have no values, and because it follows a work made by a group composed also by professional of Sicilian Region that had formulated critical observation in the part about electromagnetic camps that the Region, even if they where its professionals, did not take in count. To this is to add that the Region didn’t take in count of the verification of Prof. D’Amore that meanwhile has been deposited, in witch conclusions gave force to the suspension procedures of 29th March 2013;

 

  1. IV) illegitimacy of the suspension procedure, wrongness of assumptions, contradictory between more acts – violation of l.n. 36/01 and of DPCM 8th July 2003 – violation l.n. 259/03 – violation l.n. 152/06 – violation of law about technical procedure CEI 211-7 and 211-10: the contested act in based on assumptions and opinions unreliable, insufficient and partial, in clear contrast with the law and do not take in count at all of the evaluation of the electromagnetic interferences in airports and airplans;

 

  1. V) violation of art. 191 TFUE – precaution principle – violation of art. 3 d.lgs. 3Rd April 2006, n. 152 – violation of art. 1 l.n. 241/90: recognized the existence of risks for human health and for the environment of the MUOS installation, this one, because of the precaution principle, should not have been authorized;

 

  1. VI) constitutional illegitimacy and inapplicability ratione temporis at the case of art. 146, co. 4, D.lgs. n. 42/04, as modified from art 39, D.l n. 69/13: the landscape authorization of the Superintendence at Cultural and environmental Goods of Caltanissetta, given for the execution of MUOS project with act n. 2293 of 18 June 2008, was expired before the entry into force of D.l. n. 69 cit., that happened on the 22nd June 2013; at any case the new disposition in not constitutional because the violation of art 9 and 3 Cost.;

 

VII) illegitimacy ab origine of the authorizations annulled on the 29th March 2013, violation and false application of art. 146, co. 4, l.n. 42/04, as modified by D.l. n. 69/13, violation of art. 147 D.lgs. n. 42/04 and also of art. 122 ss. l.r. n. 6/01: act of 29th March 2013, that talked about a serious lack of reliable studies in the iter of the authorization, are act with an effect ex tunc, improperly qualified as suspensions; as a consequence made works are not legal and the suspension of the 24th July 2013 cannot have the restoring effect prevented by the Region. At any case, the opinion expressed out of the authorization procedure by external subjects, such as ISS and ENAV, could not cover the serious lack of legitimacy of the act of the authorizations, reason of annulment (improperly called suspension) by ARTA. Moreover was expired also the clearance gave by the Regional Company state forests of the 10th April 2008, prot. n. 2610, that had an annual validity. Are also violated art. 147 D.lgs. n. 42/02 and artt. 122 ss l.r. n. 6/01 that call for a Services conference;

 

VIII) illegitimacy unconstitutionality of bilateral agreements on the base of MUOS of Niscemi for the violation of art. 80, 87 and 11 Cost. – lack of legitimacy of the Ministry of Defence: because the agreement  signed on the 6th april 2006 for the installation of MUOS unites Italy to USA war policies and has an high impact on international politic, there should be the previous acceptance by the Parliament and the proclamation by the Head of State.

 

In both judgements, taken in count of “the complexity of the facts and the evident connection with other appeals for witch has been already fixed an hearing”, the precautionary instance were accepted with just the object of contents without the suspension of the effects of the contested act (ordd. nn. 695 e 795 del 2013).

 

  1. In all five procedures were explained a lot of intervenes both by private subjects, and by local offices and also by organizations that, with different titles, assumed to have interests.

 

Called at the public hearing on the 27th March 2014, with collegial ordinances given in all five acts, the Section asked for the acquisition of documents, giving the task to ARTA and ISS and asked at verifier, Prof. D’Amore, to express his proper deductions about ISS study recalled in note prot. n. 32513/13, object of the last two judgements.

 

The verifier deposited the integrative relation on the 12th September 2014. ISS and ARTA provided to incumbent instructors respectively on the 29th May and 14th May 2014. deposited from the parts other documents and defensive memories, the appeals were all called, discussed and put under decision at the public hearing of the 25th November 2014.

 

  1. DECISION’S REASONS.

 

  1. The reunion of appeal’s: assumptions and consequences.

First of all the College believes necessary to put together all five appeals according to art. 70 c.p.a.. as already determined by preliminary ordinances n.   695 and 795 of 2013 and as underlined by parts, they are all appeals connected each other, for those seems useful, in order to make effective the defence, an unique dissertation. They all, in fact, follow and sign the steps of the complex and irregular procedure iter about the installation of the radio communication system MUOS inside the USA base of Niscemi, resulted in the act of 24th July 2013  prot. n. 32513 by the General Chief of ARTA.

 

Because thi act is nowadays the only one that products effects, it seems logic to move from the examination of promoted appeals against this act (appeals n. 1825/2013 R.G. and n. 2397/2013 R.G., respectively by Regional Committee of Legambiente and by Movimento No MUOS Association, with Guglielmo Panebianco, Giuseppe Maida and Rosario Buccheri). This also taking in count that the Municipality of Niscemi interviewed in this to judgements, without contrasting, about the judgement n. 1864/11 R.G. made by itself, the act n. 32513 cit., an act that should have stopped the interests about the prosecution of judgements started by Ministry of Defence against the suspensions, as said in the same motivation of act n. 32513.

 

  1. The explained interventions.

 

In all five judgements have been proposed a lot of intervening acts by authorities, associations and private subjects.

 

The reunion of this five appeals elides the relevance of the issue of the eligibility of the interventions explained by the subjects that became autonomous claimants, still given that will not be taken in under examination other censures explained in the acts, worth circumvention of terms of appeal specified by the law.

 

It is important to said that had interviewed associations, private subjects and common Sicilians, about those is possible to recognize a reflected interests – depending on the case – about the removal or the maintenance of contrasted acts. It is different, on the opinion of the College, for the intervention of the Association “Cittadini Europei – Associazione dei consumatori per una società dell’informazione aperta e inclusiva”, from Catania, deposited on the 25th October 2014, that is not acceptable, because the proponent is a subject that is not competent about the interests cited in the contrasted acts ( art. 3 of Statement: “the Association has as unique aim the defence of the rights ant the interests of consumers and of information society users”).

 

– APPEALS n. 1825/2013 R.G. and n. 2397/2013 R.G. –

 

  1. Legitimacy of act.

 

The College believes that there are no doubts about the legitimacy of act of the two local associations, as well as of the three privates, resident in the Municipality of Niscemi near the area where is expected MUOS.

 

About the legitimacy of contrast the administrative acts having consequences on the environment by local associations and committee, is enough, to make it short and without any objections on this point, to recall the clear and deepened motivation od CGA, 27th September 2012, n. 811 and also the one pronounced in this section, n. 546 on the 23rd March 2011; about privates is enough the data about the closeness at the object of all the contested acts, taking in count also the communitarian principle of “big access to the justice” about environmental cases.

 

  1. Examination of reasons of appeal.

 

It is possible to go on with the combined exam of the two appeals, taking in count of the overlapping of the reasons with witch they were proposed.

  1. about the possibility of unconstitutionality of bilateral agreements at the base of MUOS installation in Niscemi for the violation of art. 80, 87 and 11 Cost. [I) Legambiente reason, VIII) No MUOS Association reason], saying before that the issue out of environmental interests for those this claimants can act, the College believes that this is not immediately relevant for the verification of legitimacy of the administrative acts in object and however is not even “not clearly founded” after what has been said by the legislative office of the Ministry of Defence in the note deposited on the 27th June 2013, after the ordinance n. 1264/13 (in the appeal n. 808/13 R.G.), and at those content recalls.

 

  1. the two claimants [II) and III) Legambiente Committee reason – VI) and VII) No Muos Association reason] that suspensions of 29th March 2013 prot. n. 15513 e prot. n. 15532 should be qualified more exactly as office’s annulments and, with effect ex tunc, with the consequence that works made in medio tempore have to be seen as abusive, because without a legitimate title ab origine. The suspension of 24th July 2013 (thus said “suspension of suspensions”) should be a real suspension because takes in count of a data that appeared suddenly, that is ISS’s relation. So, the July’s suspension should not have any reactivating effect, with the consequence that should have been given new clearances and opinions. Any way, it is missing the landscape authorization, because the one given on 2008 is irreparably expired not having the opportunity to apply, because of different reasons, art. 39 D.l. n. 69/13, that is however unconstitutional. More over the clearance given by Regional Agency of Public Forests on the 10th April 2008, prot. n. 2610, would be expired because it had an annual validity. Would be also violated norm of  art. 147 D.lgs. n. 42/02 and also artt. 122 ss l.r. n. 6/01 that call for a services conference.

 

It is thought of having to share the above mentioned total objection, which consists of more correlated profiles, which deserve to be examined in detail.

 

2.1 About the qualification of the “suspensions” ordered on the 29th March 2013.

 

Granted that the exactly qualification of an administrative measure should be done taking in count of its content and its real cause, even a part from the nomen iuris formally given by the Administration, first of all is setted that the qualifications of measures of 29th March 2013 is of office’s annulment and not of suspension.

 

  1. The two acts, consisting of the “suspension” of the authorizations given on the 1st June 2011 prot. n. 36783 according to art. 5 DPR n. 357/97 and of the “suspension” of the authorization about the installation of the system given on the 28th June 2011 prot. n. 43182, both recall the content of the Council’s deliberation n. 61/13, pointing out that “are missing preliminary surveys about MUOS’s interferences on plane navigation of Comiso’s airport and studies about the defence of health from electromagnetic exposition and about the defence of environment”; they also invoke the communitarian principle of precaution, in order to prevent prejudices at the integrity of protects areas coming from expected projects.

 

It is easy to see that it does not appeal to any of the requirements that legitimate the adoption of a suspension act according to art. 21 quinques l. 7th Agust 1990 n. 241. Nothing had came between the date of the authorization’s emission and the interview in self-defence of March 2013, no any new fact it is verified or is acquired, no any new evaluation of the original motivational stock has been done by regional administration.

 

It is true that art. 21 quinques l.n. 241 cit. – introduced in the setting of the norm about the procedure with  l. n. 15/05 and applicable in Sicily because of the dynamic recall of art. 37 l.r. n. 10/91 – had received a big notion of suspension (today, moreover, delimited by  art. 25, comma 1, lett. B-ter again), D.L. 12th September 2014, n. 133, converted, with some modifications, by L. 11st November 2014, n. 164, that excludes authorizations from the group of revocable acts for a new evaluation about original public interest). The norm disposition is inclined, in fact, enclose all the exarciting cases of ius poenitendi by the administration, providing not only the cases of withdrawal of measures to lastingly effective based on supervening grounds of public interest or to changes in the factual situation, but recognizing, in general, an administration’s power in reviewing its proper actions for reasons of expediency, because of a different renewed evaluation of original public interest.

 

However, in this case, it is out of the case of application of the norm, because it has not been reiterated and refreshed the evaluation of the situation or public interest, but  there has been just the punctual and reaffirmed verification of a original absence of procedural type (for the qualification in terms of annulment, and not of suspension, of an interview in self-defence adopted on the assumption of investigation deficiencies of an authorization, in terms, CGA, 14th May 2014, n. 282).

 

Deeply explanatory is the remark, present both in the deliberation of GIUNTA and in executive acts of repeal, about the lack of studies of health protection against exposure and electromagnetic environment: agreed that the principal appealed act is precisely the evaluation of the environmental impact assessment that was at the base of the authorization of the installation, an similar assertion – the lack of studies about health and environment – reflects a radical vice of legitimacy of the original measure, a kind of defect of investigating and not a new evaluation of public interest, that could obviously been done with the presence of complete investigator data.

 

What has been verified and that conduced to decide for the annulment of the authorization acts we are talking about, results to has been just an original “lack” of appropriate preliminary assessments, that has made not inappropriate ex post, but illegitimate at the roots the two acts according to art. 21 octies l. n. 241/90. This is a lack that – has to be underlined – has conduct ARTA’s Director to consider the authorization acts also anti communitarian, because they are against the principle of precaution of art. 191 TFUE and also for this reason illegitimate and deserving of cancellation of office.

Eventually, is no less important to see that at the base of interventions in self-protection are signalled the same lacks denounced by Niscemi Municipality in its appeal, to which the Region has  subscribed to with an intervention in adiuvandum, in which has explicitly underlined that has been noticed some investigations’ lacks in authorizing acts of 2011, pre announcing the need of an self-defence intervention.

 

  1. after all, even underlining the different effects of the two intervention typologies, a side to witch appealing had insisted, this difference can be picked better reaching a more pertinent qualification.

 

An aside of co. 1, art. 21 quinquies l.n. 241 cit. Sets that the suspension determines the unfitness of the suspended measure to produce more effects. The suspension, differently from the annulment, does not have a retroactive effect and leave the already produced effects, avoiding the production of more. This is possible because the suspended act is perfect and done, able to pursuit the public interest since the moment it has been adopted until it came the quind novi that induce to the suspension, so nothing excludes that the act maintains the already produced effects. In case of annulment, the lost of efficacy is ex tunc, because for his original inefficiency occurs to avoid to the act to modify the reality to witch it is called to affect.

 

Applying the already mentioned postulates to the story that we are dealing with, it is logic to consider as illogic any self-defence intervention, suggest by the application of the precaution’s principle – main column of European environment  laws – to avoid consequence on the integrity of the defended area, that maintains the effects produced till that moment.

Acts of 29th March 2013 on witch has intervened the suspension of 24th July 2013 were a suspension made according to a self-defence logic. This excludes the existence of a reimbursement in favour of the subjects involved by this act.

 

  • the regime of landscape authorization.
  1. enlightened that the suspensions made on March 2013 are qualified as office’s annulments, we need now to talk about another profile that concerns the regime of landscape authorization.

After having gave the general authorization on 14th June 2007, after the request made by Military Aeronautic on 14th May 2008, the Superintendence of Caltanissetta, with a note n. 2293 of 18th June 2008, authorized definitively the project according to art. 146 D. lgs. 22nd January 2004, n. 42. the Superintendence also specified that the authorization “is given in order to protect the landscape and it is valid according to art. 16 of the regulation n. 1354 of 3rd June 1940, for a period of five years. After this period, the execution of the projects have to be exposed to a new authorization”.

 

  1. it is useful say that, according to the following art 147 D.lgs. n. 42/04, for all the state’s work, the landscape authorization is given by the result of a conference of services. Comma 1 says that “whenever the request of the authorization provided by art. 146 regards works to execute by states’ administrations, also accommodation for military staff, the authorization has to be given by a conference of services called according to the in force laws about administrative procedure”.

As confirmed by a huge administrative jurisprudence, for state’s works, including those finalized to national defence, “the legislator intended to balance two fundamental constitutional values (landscape ex art. 9 Cost., and national security ex art. 52 Cost.) by the introduction of a derogatory discipline (common to all state’s works) about the normal procedural modules, but that is always subjected to the duty of landscape authorizations” (Cons. St., IV, 10th November 2005, n. 6312; II, n. 852/99 of 25th October 2000; Lecce’s Regional Administrative Court, section I, 29th September 2011, n. 1665).

After all also the military code (artt. 352 ss. D. lgs. 15th March 2010, n. 66), that extemps this kind of works to legal duty expected by town planning and building field, reaffirm that this kind of works, if are affecting on properties and areas affected by landscape protection, are subjected by D.lgs. n. 42/04.

in conclusion, it is sure that a work ordained to the military defence, because it is of the state, even if realized on areas that are in military bases or directly connected to them, if are subjected to landscape duty, is subjected to the safeguard laws and particularly to the duty to obtain the landscape authorization.

 

  1. going back to the authorization’s regime, and premised that the code about environmental goods is applicable also in Sicily, according to art. 13 l.r. 1 August 1977 n. 80 Superintendence, peripheral organs of regional division, practice the defence and security on cultural and environmental goods and promote their research and development, it has to be remembered that art. 146 D. lgs. n. 42/04, in its original version, dis not talk about the period of validity of the authorization, so assisted art. 16 R.D. 3rd June 1940, n. 1357 (Regulations for the application of L. 29th June 1939, n. 1497, about the protection of natural beauties), applicable on the base of art. 158 D.lgs. n. 42/04, that expected a five-years validity term about landscape authorization (“the authorization is valid for a period of five years, at the and of those the execution of the projected works has to be subjected to a new authorization”).

With D.lgs 26th March 2008, n. 63 (in G. U. 9th April 2008) with the integrative and corrective dispositions about the D.lgs. 22nd January 2004, n. 42, art. 146 has been totally rewritten, with the add of a last part in comma 4, that  clearly says that “The authorization is valid for a period of five years, that after the expiration calls for a new authorization for the execution of the projected works”.

With D.l. 13rd May 2011 n. 70, the word “valid” has been substituted with the word “effective”.

The law in exam has been modified by art. 39, comma 1, let. b) of the D.l. n. 69 of 21st June 2013, that has add a new part in comma 4, establishing that  “whenever work has been started diring this five years, the authorization is considered valid for all the duration of works themselves and, however, for a period not more than 12 months”.

The conversion law on 9th August 2013, n.98, has expanded the law again saying that “whenever works has been started during the five-year period, the authorization is considered valid for all the duration of the works” eliminating in this way the limit of 12 months.

After a bit, with art. 3 quarter of l. 7th October 2013, n.112, a conversion of D.l. 8th August 2013, n.91, is expected again that “works that has been started during the five years of validity of the authorizations can be concluded until and not more the year after the deadline of the five-year period itself”, but contextually it has been add to art. 30, comma 3 D.l. 21st June 2013, n. 69, converted, with modifications, by l. 9th Augusto 2013, n.98, this period: “is also extended of three years the deadline of landscape authorizations from the starting validity of this conversion law”.

To complete, we have to has that with the recent D.l. 31st May 2014, n.83, has been put in comma 4 a period added to the precedent, that says: “the validity deadline of the authorization starts from the the day in witch the building title acquires efficacy for the realization of the intervention, unless the late about the release and so the validity of the authorization is due to the interested person”.

 

  1. from the law reconstruction that has been made it is understandable that the authorization, adopted on 18th June 2008, has been given under the validity of D.lgs 63/08 (applicable also to the given procedures about the landscape authorization that on 31st December 2008 has not been concluded: vd. Art. 159, as modified from D.lgs 63 already cited) and expired on 17th June 2013.

on 22nd June 2013, the day of the starting validity of D.l. n. 69/13, the authorization was already expired, because it had finished its five-years period of validity from his creation and, so, the new disposition was not applicable to it (with the consequence irrelevance of constitution doubts proposed by recurrent).

As jurisprudence confirms, “under the discipline of both r.d. n. 1357 of 1940 and art. 146 of D.lg. n. 42 of 2004, the landscape authorization has a validity of five years. If works are not finished during this period it is necessary a new control about the intervention on the environment in witch this works are collocated” (Con. St. VI, 4th Decembre 2012, n. 6216; Regional Administrative Court of Reggio Calabria, 7th June 2013, n. 397; Regional Administrative Court of Bari, III, 25th May 2011, n. 784).

 

  1. the validity of D.l. n. 69/13 for the authorization can be locked to the deadline of 30th June 2008, a the in witch the authorizations has arrived to Sigonella’s Military Aeronautic (according to the stamp prot. n. 1583), or to the period of suspension for the effect of non precise preventive dictum of Regional Administrative Court, according to witch the thesis expressed by Defence Minister in the memory deposed on 17th September 2013 in the recur n. 1864/11 R.G.

The comment is not to share completely, having said that measures that limit privates’ sphere are valid just after the communication (art. 21 bis l.n. 241/90) and, so, the authorization, because it is an extending act, has no any receptor nature and it is valid from it’s use.

Any way, the thesis of the Minister is doubtless to reject even taking in mind the specific nature and function of the landscape nulla osta: the validity of five years is made on a view that protect the landscape, in order to assure to the administration called to defence it the possibility to express a new ant autonomous evaluation about the compatibility of the work not yet started or finished, in order to always defend landscape interests, so what reveals is the deadline of the five years and the date of the release (Cass. Pen. 7th August 2007, n. 32200; Regional Administrative Court of Cagliari, II, 15th Jannuary 2012, n.33). With the same login, moreover, “in every administration that in specialized in the release oth the landscape authorization is instituted a list of authorization already release, updated at least every 30 days and can be consulted, even by network, in witch is written the date of release of each authorization, with a synthetic note about the object” (art. 146, comma 13).

the end of the authorization after five years produces the end ex lege, total and automatic, of its effects, without any obstacle, like the factum principis or causes of major force, including the sequestration’s acts (cfr. Cons. St. VI 20th December 2012, n. 6576; Regional Administrative Court of Sardegna, II, n. 33/13 cit. Regional Administrative Court of Salerno, II, 25th March 2010, n. 2351; Regional Administrative Court of Veneto, II, 16th November 1998, n. 2072).

Landscape authorization released fro Superintendence of Caltanissetta war, so, expired from 17th June 2013.

 

  • the nulla osta released by Regional Agency of public Forests.

With act of 1oth April 2008, prot. n. 2610 the Regional Agency of public Forests, office that is in charge to manage the natural reserve “Sughereta”, released his nulla osta, with witch started the conference of services ex art. 122 l.r. n. 6/01 (that involved also a representative fro Caltanissetta’s UPA, that expressed a positive vote), but the validity of nulla osta was clearly limited to 12 months from the release, so it was also expired so, for this reason, the suspension would only have a reinstatement effect.

The College observes that, from one side, the annual limit is linked to the begging of works, so the comment is unfounded, but from the other side, the note 2610, even if recalled a lot of times in authorization’s acts, has another object. The note does not refer directly to the installation of MUOS system, but to a “project of a new installation for the mitigation or erosive problems and the protection of fires in the area where are US Navy radio stations, in zone “B” of R.N.O. Sughereta of Niscemi and SIC ITA 05007”.

remembered that the same note by Defence Minister n. 8994 of 31st October 2006, with witch the aim was to approve the proposal of intervention in exam, recognize that it is necessary to acquire the authorization by the Regional Agency of Public Forests, on the specific project MUOS results just the verbal of inspection made on 6th June 2008 by Caltanissetta’s UPA, transmitted with a positive evaluation with the release of the nulla osta with note of 9th June 2008, directed to Agency Department Public Forests (that will receive it just on 4th July 2008); the final positive opinion of gesture office has been given during the services conference from the delegated Chief, after the acquisition of the before said verbal, but without a prevision of terms.

 

  • Conclusions

From what has been exposed fin here it derived, from one side, that works made, after the office’s annulment with retroactive effect on linked authorizations’ acts, had lost their legitimate title, so the suspension given on 24th July 2013, without a new edition of the procedure, cannot have any reactivation and revival effect of the authorizations released on 2011, that at that point were eliminated from the law’s world. This because the defect can not be saved by a second grade act, also because it lacked of a valid landscape authorization, because the old one was expired after five years.

It has to be add also that, always in line with proceduring profiles and with adapted aims of the eventual other administrative action that:

  • the office that has to manage the reserve has to take in count of the new zoning of the area about the natural reserve (with act of 30th December 2009 in G.U. n. 14 of 26th March 2012, the area has been classified “A” zone);
  • landscape authorization has to follow the special discipline of art. 147 (has NoMuos Movement has already signalled), because it is about works aimed to military defence, as said in art. 122 l.r. n. 6/01, as said in Cric. Reg. 26th November 2004 n. 4 (recalled also by WWF);
  • in any case, VINCA, an evaluation procedure with precautionary character to witch has to be subjected a planning or projecting intervention that interests the territory of sites as Rete Natura 200, as site of Importanza Comunitaria (SIC – Communitarian Importance) and Zone di Protezione Speciale (ZPS – Special Protection Zones), according to the premises of DA 30th March 2007, has to be “preliminary to any authorization’s or concession’s procedure about the realization of a plan/project/intervention and constitute a sufficient preliminary for the release of successive authorizations, nulla osta, opinions and other similar acts, that have to be acquire in order to realize and exercise the work or the intervention”.

 

  1. it is useful to analyse, synthetically, also the fourth reason of the appeal of Legambiente Association (corresponding to reasons II), III), IV) and V) of the appeal by No Muos) with witch complains that the act of 24th July 2013 is based however on wrong and deficient premises.

Also this has to be take in count, both as a consequence of what has been said till now, and also because of other aspects that are not linked with the qualification of the acts adopted on March 2013.

We need to get back to measure prot. 32513 of 24th July 2013.

The reason on witch is based the so called “suspension of suspensions” is this: having said that the suspension of the authorization’s measure was mostly reasoned by the absence of a study released by a public agency of national relevance and that the chosen agency is ISS (Istituto Superiore della Sanità – Sanity Superior Institute); having seen that the study made by ISS concludes saying that the limits imposed by Italian law on the respect of human health by electromagnetic fields are respected and predicting , at this conditions, just unimportant risks: kept for guaranteed that there are not any base for the application of the self-defence principle, all the suspension acts already emitted have to be annulled.

According to this judge, do exist some contradictory vices between facts, some errors about the premise and some errors on the motivation.

If the original authorization’s procedure, closed in 2011, resulted incomplete because the lack of studies about health, environment and air traffic (until that moment not considered), and for this reason it was annulled, there is no doubt that it needed to provide an integration over all this profiles and in the procedure, starting from a new VINCA, with the call of a regular services’ conference extended to all the subjects involved in public interests, and it was not enough the opinion of an external scientific agency, given by a technical ministry agency. It needed not a new self-defence intervention, but a new procedure of first grade.

But there is more. The incompetence of this study, asked to overcome the incompetence of the Department, and also the Regional incompetence, emerges also from the contents plan.

ISS’s study is a document not shared by all the professionals called to compose the group of work and – most important – it results not shared by components chosen by Sicilian Region, Dott. Mario Palermo and Prof. Massimo Zucchetti.

Both experts, with an autonomous relation attached to ISS’s one, enlightened that are still opened the predictive evaluations in the near field, about those also ISS’s relation says that it is a really huge field because of the antennas dimensions (pg. 20 ISS’ relation) and that do not exist specific information about it (pg. 18), and that ISS’s relation has not studied properly the real impact on human health.

With a not on 12nd July 2013, to the State’s Under-secretary at Presidence of Council, at Minister of Health and at President of Sicilian Region, ISS’s President sent the final relation, enlightening that for the part about the evaluation of electromagnetic field professors chosen by Region had written an autonomous relation.

With a note  of 18th July 2013 the Chief of Office of President of Region  transmitted to ARTA, to Legal and Legislative Office and to General Chief of Environment Department the final report by the study group, and also the copy of the relation made by the experts nominated by the Region, those that attached to the note of 12nd July 2013.

The measure examined do not take in count of this dissents, and it just synthetically recall the conclusion of ISS’s relation.

Ad enlightened, with a deep analysis, by Prof. Marcello D’Amore, verifier nominated by this Court in the appeal proposed by Niscemi’s Municipality and then recalled with ordinance n. 1025 of 26th April 2014 with the specific aim to integrate the precedent verification, extending it to the study made by ISS, the critical observations made by the two experts are shareable and however ISS based itself on simplified procedures of calculation that do not give acceptable indications on the point of the worst case. The verifier concludes saying that “problems related to the map pf the electromagnetic field made by MUOS satellite parabolas aligned, and not aligned and in particular near the ground-level, the level of electromagnetic camp made by NRTF antennas in the brief and long period, possible effects caused by the interaction of aircrafts with MUOS emissions are treated respectively by ISS, ISPRA and ENAV in a not exhaustive manner and so susceptible of new other deserved deeper analysis”.

As a consequence the evaluation put at the base of the suspension of the 24th July 2013 bases on erroneous and incomplete assumptions, that are not solved neither by the punctual observation made by court of claims on 14th and 15th October 2014 (counter deductions ISPRA, ISS and ENAV deposited in appeals promoted by Minister), that are unrelated with the procedure about witch, all the surveys have to be conduced.

 

  • APPEALS N. 808/13 and N. 850/13 AND APPEAL N. 1864/11 R.G. –
  1. Overlooking each preliminary or ritual question, consideration made till here justifies the rejection of the appeals proposed by Defence Minister.

First of all, it has to be rejected the validity on witch is denounced the incompetence: the acts, according to the principles of self-defence, had been rightly used by the same authority that had adopted the measures posed on nothing in the respect of its competences.

Then, recalled the nature of the office’s annulment of the imputed acts, it has to be remembered that they have been deliberated because of the lack of some preliminary surveys about MUOS interferences on the aircraft navigation form Comiso’s airport.

It is known that, and emerge also from the acts, Comiso’s airport has not been closed after the inauguration, as the Ministery says, the opinions made by ENAV in the pursuit of the procedure iter (even using methods stigmatized before), in witch there are some strumental procedures of flights interested by MUOS bundle, opinion these extended also to the airport of Sigonella and Fontanarossa, lonely confirm the instructor lack, of witch also the verifier of the relation talked about, recalling also a declaration made by dott. Bufo of EVAN during a session made on 5th February 2013 (see relation – pg. 21).

The consistency of the date, with the communitarian nature of the procedure, make unnecessary every other deep analysis over the reasons of public interests about the annulment in self-defence. It is also irrelevant in this case the recalling to “imperative reasons of rilevant public interest” that should be at the base of the realization of the work and of witch at comma 9 of art. 5 DPR 357/97, established that of this special type does not result any application in the course of the first grade VINCA’s procedure.

Because the “suspensions” contested by Ministery are based on a lot of reasons, each of them is able to support the enacting part of the contested acts, the subsistence of one of this make unharmed the articulated censures.

  1. About the appeal made by the Municipality of Niscemi against the two authorizations acts of 2011, as it has been anticipated, this can not go ahead because the omitted challenging of the act of 24th July 2013. however, the annulment of this act, because the reception of appeals n. 1825/2013 and 2397/2013 R.G. And the rejection of those proposed by Defence Ministry, producing as an effect the validity of the acts made in self-defence the 24th March 2013, deprives the Municipality in going ahead with this appeal.

 

  1. CONCLUSIONS AND REGIME ABOUT PRECESSUALS EXPENDITURES

1, Because of what has been already said before, and absorbed all the other reasons, accepts appeals n. 1825/13 R.G. And n. 2397/13 R.G. And for effect annuls the act of the General Chief of the Department of the Environment and the Department of the Territory and of the Environment of Sicily Region of 24th July 2013, n. 32513; rejects appeals n. 808/13 and 950/13 R.G. And declares not able to go ahead procedure n. 1864/11 R.G.

The complexity and peculiarity of the examined affair justifies, according to College, the integral compensation of the expenditures between all the parts involved, with the exception of the reimbursement (already done with D.P. n. 1060/13 and to pay off for those regarding the integrative survey disposed with act of 16th April 2014) to Ing. D’Amore, that is to account definitively to the Presidency of Sicily Region and the Department of Territory and Environment, in solid.

 

  1. About the requests made by the Sicilian regional Committee of Legambiente (request nn. 17, 26 and 60/13, respectively of 28th February, 29th April and 8th October 2013), since the proper commission, after having disposed the request for the first two, has not take any decision, about them has to decide the judge.

2.1. the Association, registered, with effective date from 4th February 2008, to the unique Civil Registry of ONLUS, and for it its President, Domenica Fontana, has products, to complete the request for support by State, a self-certification in witch has declared the absence an income made by commercial activities or enterprise or capital; that it is a non-profit activity and it has not had any economic activity in the precedent two-year period the appeal; that the balance of the association is totally of € 172.177,59 for 2012 and there are some amounts that come from public money transfers in order to carry on some activities related to specific projects of the association and more consistent amounts, equal and more than the half, “that come from donations, contributes and private membership recruitments, also those designated exclusively to the management costs and all the other activities made by the association”.

There are attached to this request also the Statute of the association and come accounting documents, from witch (for what interests us) is noticeable that: the patrimonial state at 31.12.2012, that the Association has a consistent property patrimony; from the balance sheep 2012, that had a positive management results equal to € 11.986,11, as enlightened also in the integrative note (pg. 1 and 3).

2.2. on the base of the before said elements, College believe that the requests have to be rejected.

Art. 119 D.P.R. 30th May 2002, n.115 establishes that “ the expected treatment for the Italian citizen is assured, also to the foreigner regularly staying on national territory at the momenti of the rise of the rapport or of the fact that is the object of the process and for the country-less, and also for non-profit associations that do not do economic activity”.

Being non-profit association or not doing economic activities as association are both necessary conditions to be admitted to the patronage of State, as the same asking association made on its request, but they are not enough.

The recalled law do not permit in fact the admission tout court of all the ONLUS to the free patronage, but it has to be red ant interpreted with the other dispositions of the same field and, so, the sense of the treatment to witch the citizen, physical person, is due to is extended also to non-profit association that do not exercise economic activities, but they have to re-enter in income parameters of art. 76 D.P.R. n. 115 of 2002, applicable to all the hypothesis of patronage (in this way Regional Administrative Court of Firenze, I, 12nd March 2012, n. 491; Id, II, 1st April 2011, n. 569) and at the time of the presentation of the request were fixed € 10.766,33.

All this elements make the College decide that the Sicilian Regional Committee do not enter in this parameters, having take in count the fact that the taxable income relevant fot the concession of the benefit, contrary to what is affirmed from the President of the Committee, is not only the one derived from the commercial activity or enterprise or capital, that subsists ex art. 10, comma 1, lett e) D.lgs 4th December 1997, n. 460 the duty to use the profit or the management surplus for the realization of institutional activities and of thise dirctly connected, between witch, according to art 2 of the Statute, there is the utilization for “processional instruments like the presentation of appeals, denounces and actions, the constitution of civil part in a penal process, the intervention in civil, administrative and countable judgements”.

2.3 to this has to be added that: 1) the requests do not have the formal declaration of “responsibility to communicate, until the process is not definitive, the relevan variation on the income, verified on the precedent year, till 30 days from the deadline in one year, fron the date of presentation of the request or the eventual precedent communication of variation”, that art. 79. comma 1., lett d) DPR n. 115/02 asks a penalty of inadmissibility; 2) the defence in judgment of the Committee has been assumed, both unitary and not, from 5 legals, while just one of them – Nicola Giudice – has been indicated as the defender put in the list.

 

P.Q.M.

 

The Regional Administrative Court of Sicily (First Section)

 

definitively pronouncing on the appeals, as proposed in epigraph, previously united, decides:

 

accepts appeals n. 1825/13 R.G. And n. 2397/13 R.G. And as a consequence annuls the act of the General Chief of the Department of Territory and Environment of Sicily Region of 24th July 2013, prot. n. 32513;

 

rejects appeals n. 808/13 R.G. And n. 950/13 R.G.;

 

declares non-procedable appeal n. 1864/11 R.G.;

 

declares inadmissible the intervention of Consumers Association – European Citizens;

 

reimburse the payments between all the included parts, excepting for the recompense to give to the verificator, Ing. Massimo D’Amore, that are totally in count of the Presidence of Sicilian Region, Regional Council and Department of Territory and Environment, in solid;

 

rejects the request nn. 17/13, 26/13 and 60/13 with witch Legambiente – Regional Sicilian Committee asked for the patronage.

 

Orders that the present will be executed by administrative authority.

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So decided in Palermo in council chambers on 25th November 2015 and 22nd January 2015, with the intervention of magistrates:

 

Caterina Criscenti, FF President, Extensor

 

Maria Cappellano, First Referent

 

Luca Lamberti, Referent

 

THE PRESIDENT, EXTENSOR

 

 

 

 

 

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