Urban planning has seen a significant paradigm shift in recent years. From a public function limited to the regulation of building volumes, it has become an overall “territorial management”, in which local communities have assumed a new centrality. This has led to the need for decision-making processes to be guided by the concerned population, in order to direct public authorities in a self-represented development direction. A requirement that clashes with a legal system that considers public participation exclusively in the form of ex post observations about already taken decisions. This gave the opportunity to experiment new spontaneous forms of participation, which in some cases have found acceptance in urban planning laws. Participation has thus become an ex ante constraint for the public decision maker. The contribution aims to make a survey of the most interesting experiments that can be identified in the European legal area, in order to draw useful “de jure condendo” hints.
In the nineties, legal scholars have argued that allowing a broad participation in the regulatory procedures undertaken by independent authorities could have compensated their lack of democratic representativeness and legitimation : the legislator followed suit, by widening the application of the participatory rights beyond the scope of what the Italian procedures act prescribes (art. 13 l. 241/ 1990). The analysis of the relevant case-law however shows that participation is still only seen as a tool to acquiring a broader knowledge of the subject matter, while its role in settling conflicts between interests, using different knowledges in a collaborative manner, is largely ignored. Furthermore, Italian administrative courts tend to exclude those who participate in defense of general interests from the judicial process, arguing their lack of standing, therefore strongly reducing the scope and impact of participatory rights.
In this paper I identify, in the tools of participatory democracy, a suitable solution for the resolution of administrative conflicts, in systems characterized by a strong crisis in the political-electoral circuit and, in general, by the lack of trust in democratic institutions which are no longer adequate to solve the challenges of modernity. Therefore, the traditional procedural instruments of weighting among the interests are no longer adequate, especially in environmental matters, where the evaluations entrusted to the P.A. are not eligible as neutral instruments, but determine relationships characterized by the information asymmetry. In such a context the key word is participatory democracy, as evidenced by the international and EU guidelines. France has been a pioneer in participatory matters; Italy, on the other hand, is a country with a weak participatory culture. I will analyze the flaws of the new Italian-style public debate by comparing it with the French model.
In this paper I will follow the evolution of the principle of participatory democracy. Indeed, especially in the last decades, more and more attention has been paid to ensure the adoption of instruments of participatory democracy, first of all by supranational provisions – international and EU. Thus, the Rio De Janeiro Declaration provided for the states’ duty to encourage the participation of interested citizens, at different levels, in decision-making procedures; thus, the Aarhus Convention established the criteria concerning the modalities and timing, in observance of which the participatory processes must be implemented. Although the EU emphasized its favor towards an expansion of participatory dynamics both with reference to general policies and, more specifically, with reference to environmental policies, it merely states the principle, but does not specify the implementation models for the principle itself.