With sentence no. 483 of 2024, the Lombardy Regional Administrative Court (Section Four) annulled the rejection provision relating to the request for a building permit for a property to be used as a place of worship for an Islamic association. The reasons that led the administrative judges to lean towards the annulment concern both the urban planning regulations regarding religious buildings and the increasingly complex issue relating to the qualification of religious bodies.

The case

The Municipality of Cantù, with the provision prot.n. 16165 of 1 April 2021, rejected the request for a building permit for "completion of industrial warehouse with change of intended use" aimed at using the property as a place of worship, presented in 2014 by the Islamic Cultural Association "Assalam". Among the reasons given by the municipal administration for the rejection decision is the absence of one of the subjective requirements required by Lombardy Regional Law n. 12 of 2005, for the opening or construction of buildings intended for worship. The Islamic Cultural Association "Assalam", in fact, would not fall within the scope of application of the art. 70, paragraphs 1, 2, 2-bis, in the part which provides that "the creation of equipment of common interest intended for religious services" must be carried out "by the institutionally competent bodies in matters of worship of the Catholic Church" (paragraph 1), by "bodies of other religious confessions with which the State has already approved by law the relevant agreement pursuant to Article 8, third paragraph, of the Constitution" (paragraph 2) or in any case by "bodies of other religious confessions" (paragraph 2-bis).

In other words, in the administrative provision the nature of "religious body" or in any case of "body of a religious denomination" is denied to the Islamic Association, thus making it impossible to stipulate an agreement for urban planning purposes with the Municipality concerned (paragraph 2-ter) and therefore to proceed with the construction of a place of worship.

The intervention of the Constitutional Court on art. 70 of the Regional Lombard law

The regulation of religious equipment in the Lombardy Region has been subject to numerous changes over the years. The Lombard law of 3 February 2015, n. 2 modified law no. 12 of 2005 (Law for the governance of the territory) innovating the principles regarding religious buildings. This legislation, unlike the previous one, has been the subject of complex constitutional compatibility judgments, which have declared its illegitimacy on several points.

The art. 70, in its original version, provided that the creation of equipment of common interest intended for religious services could also be carried out by bodies of other religious confessions (other than Catholic and non-Catholic ones with an agreement), provided that [the religious confession] had the following requirements (art. 70, paragraph 2- bis ): the widespread, organized and consistent presence at a territorial level and a significant settlement within the municipality in which the interventions are carried out (a) and that the relevant statutes express the religious nature of their institutional purposes and respect for the principles and values of the Constitution (b). The assessment of the existence of these requirements was left to the mandatory and preventive, albeit non-binding, opinion of a regional council (art. 70, paragraph 2- quater ).

Sentence no. 63 of 24 March 2016 of the Constitutional Court declared the illegitimacy of this part of the provision since "the regional legislation on religious buildings finds its reason and justification - specific to urban planning matters - in the need to ensure development balanced and harmonious living centers and in the implementation of services of public interest in their broadest sense, which therefore also includes religious services' (sentence no. 195 of 1993). Within these limits, only the regulation of religious buildings remains within the scope of regional competences.

However, the regional legislator, within a law on territorial governance, is not permitted to introduce provisions that hinder or compromise freedom of religion, for example by providing for differentiated conditions for access to the division of places of worship. Since the availability of dedicated places is an essential condition for the effective exercise of freedom of religion, this type of regulatory intervention would exceed regional competences, because it would end up interfering with the implementation of freedom of religion, guaranteed by articles. 8, first paragraph, and 19 of the Constitution, conditioning their effective exercise".

Regional legislation cannot therefore hinder or limit, through special burdens, the exercise of rights connected to religious freedom. In light of the ruling of the Constitutional Court, it follows that the only subjective requirement necessary for the construction of a place of worship, subject to the stipulation of an urban planning agreement with the Municipality concerned, is that of being "an institution of a religious denomination".

Sentence no. 483 of 2024 of the lombardy regional administrative court

According to the Lombardy regional administrative court, the Municipality of Cantù would have denied, without giving any reason, the nature of "body of a religious denomination" to the Islamic Association, effectively preventing it from accessing the tools provided by the urban planning legislation for the opening and construction of one's own place of worship. The local administration would therefore have violated the right to associate (art. 18 of the Constitution) and the freedom of worship (art. 19 of the Constitution), the exercise of which finds an essential condition in the availability of dedicated places. It is possible to recognise, in the case in question , also a violation of the prohibition of discrimination against religious bodies provided for by the art. 20 of the Constitutional Charter. The most recent readings of the constitutional provision suggest that these guarantees must be extended to all entities (all-encompassing expression) to which religious confessions can give rise and to those social formations, even if independent of them, but having religious or cult purposes. Constitutional protection must also apply to social formations of religious inspiration which have not yet or which, probably, due to the absence of the required requirements, will not obtain state recognition.

The regional law, following the ruling of unconstitutionality, does not provide any objective criteria to be able to qualify the bodies of non-Catholic religious denominations without an agreement, nor can any discretionary assessment on the part of the administration be considered admissible. The constitutional provision must help the interpreter in identifying the scope of application of the provision and, in particular, the concept of "functional ecclesiasticism", aimed at a general protection of organizational forms influenced by the religious factor, regardless of the structure hired.

In light of the above and from the combined reading of the articles. 18, 19 and 20 of the Constitution, it is possible to believe that within the scope of application of the art. 70, paragraph 2-bis of the Lombard regional law must include all those social formations which, regardless of the structure adopted, concretely pursue religious and cult purposes, and therefore also Islamic cultural associations.

Ludovica Decimo