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Quadrimestrale dell’Istituto Internazionale di Studi Giuridici

Il paesaggio nella giurisprudenza costituzionale: esperienze comparatistiche anche alla luce della normativa dell’unione europea
The article provides an analysis of the landscape protection, first partial and then general, in the Italian constitutional history, with reference to the first laws of protection during the Kingdom of Italy and to the debate held at the Constituent Assembly, resulting in the approval of the fundamental principles in art. 9. It therefore examines the application of that protection in the case-law of the Constitutional Court in order to appreciate the degree of effectiveness both in relation to legislative production and in the resolution of conflicts between the State and the Regions, in the context of the claim of important order and management assignment of the landscape constraint.The stages in which jurisprudence has been articulated are as follows: the delimitation of the legislative powers of the State and of the Regions with a Special Statute; the transfer of administrative functions to ordinary Regions ex D.P.R. n. 616/1977 and the “interference” with the State in the protection of the landscape; the jurisprudence on c.d. Galasso Law and the “turning point” in the extension of protection ex art. 9 Cost. to the environment; the consolidation of constitutional jurisprudence on landscape and environment, indicating the landscape as “primary and absolute value”.It has therefore dealt with the study of two comparative experiences, the French one, and the case law of the Conseil Constitutionnel, in the different areas of natural and environmental protection, and the English one, with the Supreme Court case in the distinction between environment and landscape. It has been concluded that, while in the Italian system, awaiting its historical peculiarity, with important cultural, literary, philosophical and legal implications, the “landscape” assumes an identity, in comparative experiences, also in the light of the European Union law, the concept of the “environment” assumes a general and prevalent role, while landscape protection has sectoral and identifiable features with the concept of “natural beauty” and therefore of essentially territorial and morphological origin. In comparative experiences, an in-depth study is underway leading to interesting developments, but it is not yet able to reach cultural awareness that characterizes Italian doctrine and jurisprudence.
pagine: 31-66
DOI: 10.4399/97888255060374
data pubblicazione: Agosto 2017
editore: Aracne