Franco Pellizzer Edoardo Caruso

Protection of culture and ecological transition in indirect cultural constraint: an (only) occasional pair. Some reflections in the margin of Cons. Stato, sez. VI, n. 8167/2022



The essay draws on judgment no. 8167/2022, with which the Council of State has censured the exercise by the Superintendence of the so-called “indirect restrictionµ power ex article 45 of the Code of Cultural Heritage and Landscape.According to the judges, the Administration, by prohibiting the construction of two wind turbines, adopted a "totalizing" approach, not "integrated" and "dialectical" with respect to the environmental interest to ecological transition. The Authors share the decision of the Council of State; nonetheless they highlight several problematic issues on the general implications that some scholars attribute to this ruling, which has been praised for marking a renewed balance between the environment and cultural heritage. To this purpose, they proceed with a preliminary analysis of the nature and function of the measure of indirect cultural restriction, as well as of the most recent trends that characterize the discretion review, with particular attention to the proportionality test.


  • indirect cultural restriction
  • ecological transition
  • proportionality test
  • discretion review


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