Abstract

The Plenary Assembly of the Council of State, through judgment No. 5/2023, has identified Article 7-bis of the Code of Cultural Heritage and Landscape (Legislative Decree No. 42/2004), introduced therein by the so-called "second corrective" (Legislative Decree No. 62/2008), as the legal basis for an additional protective instrument that would allow for a "positive" land use restriction on immovable cultural property serving as an expression of collective cultural identity. This contribution aims to demonstrate how such an interpretation of Article 7-bis of the Code raises doubts regarding constitutional compatibility, as it conflicts with the prohibition on introducing "further restrictions on private property" provided for by the enabling provision (Article 10, paragraph 2, letter d), Law No. 137/2002).