Today we present the latest topic touched upon by the four university studies commissioned by FAITA-Federcamping and presented in a webinar last week. University of Teramo focused on the regulatory aspects. Michela Michetti, professor of European constitutional, public and institutional law (pictured above), explained how the subject intercepts public and private interests, but also areas of state and regional competences, such as the environment, territorial government and civil law. This transversality translates into an intrinsic weakness, which derives not only from the intertwining of skills, but which also re-emerges from the screening of regional disciplines, given that each region has competence in tourism based on its specificities, giving rise to a heterogeneous and differentiated regulatory complex. We therefore need a solution that can harmonize and coordinate the levels of state, regional and local administration.
Alongside this first aspect, the research focused on some particular points: the setting up of mobile structures in open-air accommodation areas and their land registration. The first one is an insidious element, because it has not been investigated by the legal system for a long time. This complexity also derives from the fact that this case intertwines different interests and disciplines, including the landscape one. The only reference standard in the Consolidated Law (TU) on construction speaks of three legal regimes that must be considered when setting up mobile structures. This law plays a strategic role, because it is the only one existing at national level and has triggered a heated debate that has led to various judicial decisions, which, however, have not been univocal. This has generated a lot of uncertainty over time.
The latest intervention is the law 120/2020 which has better defined the issue excluding the need for any building permit, but an open question remains: the subjection to the landscape regulations, which still has not found a complete definition. Reference can be made to the jurisprudence of the Constitutional Court, which has remained unchanged and consolidated since 2012, censoring the regional disciplines that excluded landscape evaluation. The reasoning relies on the importance of the landscape which technically leads to the letter “S” of art. 117, that is to the State competence. In art. 146 of the Code of Cultural Heritage you can find the authorization that must be obtained. This is a constraint for regional disciplines, but it raises several very controversial issues that arise from a lack of harmonization between art. 3 of the TU construction and art. 146 just mentioned. In particular: must the authorization be granted for the entire accommodation facility or for every individual installation act? This aspect should be formally clarified by the legislator.
On the other hand, the unresolved issue concerns the land registration of mobile fittings, which is a procedure that should theoretically only concern real estate. The standard considered is contained in the Ministerial Decree 28/1998 which says that artifacts not permanently fixed to the ground are excluded. Here there is a lively debate, with numerous judicial decisions that have placed the emphasis on the definition of functional and income autonomy, identifying this as an element on which to base or not the land registration. However, it is a contradiction of terms. This statement can be supported by art. 3 of Ministerial Decree 28/1998, but this fairly linear interpretation obviously has not established itself in concrete reality. The choice of whether or not to land registering the mobile home therefore ends up in the local land registry, generating many uncertainties because these issues are not always unique. We therefore need a regulatory solution in which to support the irrelevance of mobile structures for land registry purposes.
The latest considerations take into account the impact of the pandemic. The regulatory measures adopted for the tourism sector have been many. “Analyzing them superficially,” says Michetti, “I caught the great absentee of this mighty machine that was set in motion: tourism. I found measures that only at times have considered it and are interventions of economic support for companies that have little to do with the sector, except for the work table where the categories and Minister Franceschini sit. Some regional disciplines have instead given more attention to open-air tourism, such as in Veneto, Lazio, Sicily and in the autonomous province of Bolzano, which have intervened a little more incisively. This leaves me thinking that it is necessary to strengthen the territories, because I believe that local governments have a strategic role in outdoor tourism“.
The other parts of this story
- FAITA-Federcamping: together with 4 universities they paint the picture of the Italian sector
- La Sapienza for FAITA: here are all the numbers of the Italian outdoor tourism sector
- The evolutionary models of the Italian open-air sector in Ca’ Foscari’s research for FAITA
- MIBACT and ENIT: institutional voices that have yet to find the right measure with respect to open-air
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