Editor's note: Sara Martinetto is a research intern at
the T.M.C. Asser Institute. She has recently completed her LLM in Public
International Law at the University of Amsterdam. She holds interests in
Migration Law, Criminal Law, Human Rights and European Law, with a
special focus on their transnational dimension.
More than 11000 deaths and 25000
hospitalisations: the numbers divulged by the prosecution expert report assessing the human consequence of
the operation of Ilva industries in the Italian city of Taranto are staggering.
The environmental disaster caused by the plant brought the whole area to its
knees and, in spite of all the efforts made, is still on-going. This is the
story of a never-ending conflict. A conflict between different rights, which
need to be balanced; between public authorities, who bear responsibility for
ensuring and protecting those rights; between different normative levels and
powers, given the numerous infringement proceedings opened by the EU Commission
and the most recent claims lodged to the European Court of Human Rights
(ECtHR). In the following sections I will try to shed some light on the main
legal aspects of this tragic saga. For clarity, this article is divided in two posts:
the first deals with the national level, while the second focuses on the
supranational dimension of the case.
Factual and Legal Background
Ilva steel production has always been one of
the cornerstones of Italy’s economy. The Taranto factory is the biggest steel plant in Europe and, in 2010, it counted more
than 12.000 employees. It was a state-owned enterprise until 1995, when it was
privatised and bought by the Riva family. It also acquired its liabilities: the
negative impact of the plant on the environment had been, at the time, already
acknowledged by the Italian Government. Indeed, the government had already conducted
several investigations showing the existence of extensive air and water
pollution, which required intervention on the sewage treatment plants. In
particular, the high concentration of Dioxin was deemed to be worrisome, and
extremely harmful for human health. In 1990, the Council of Ministers issued a Declaration pursuant to law 349 of 8 July 1986, stating
that the Taranto area was “at risk of an environmental crisis”. Theoretically,
this would have led to the drafting of a depollution plan; however, no
authority meaningfully acted upon it, and the declaration was renewed in 1997.
These documents have been incorporated in 1998 in a Presidential Decree which established the allocation of public and private funding for
the clean-up for the plant.
In the meantime, an increasing environmental
awareness led to the adoption – from the 90s onwards – of several legal
instruments at the international, European and national level. Among others,
one can recall the Rio Declaration on Environment and Development of 1992, Kyoto Protocol of 1997, the Aarhus Protocol and the Aarhus Convention of 1998. Particularly, the latter triggered a proliferation of European legislative action. Among the EU
measures Council
Directive 96/61/EC is particularly important.[1] Also
known as the Integrated Pollution Prevention and Control (IPPC) Directive, it
obliged public authorities to issue an authorisation for all the activities
presenting an environmental risk. The release of such a permit is conditional
on whether BATs (Best Available Techniques) are applied. In Italy, the
Directive has been implemented only in 2005, by mean of a legislative decree; the permit released by the government
pursuant to this act is known as AIA (‘integrated environmental authorization’).
The drafting of
this new body of legislation resulted in several reforms in Italian law, such
as the adoption of the Environmental Code in 2006. However, the domestic implementation of such
instruments is lagging, and characterised by delays and misinterpretations. The
inadequacy of the legal framework in place will appear clearly in the ensuing sections,
which give an account of the many extraordinary measures taken in this case. It
will be shown how a flawed normative framework, coupled with the Italian government’s
resolution to keep the plant open and its consequent undermining of the
measures taken by the judiciary, have allowed the situation to deteriorate for
decades without ever coming close to a solution.
The Regional
Authorities
The public authorities of the Puglia Region have played a prominent role in
the Ilva case. In particular, at the end of the 90s – beginning of 2000s, the
Puglia regional authorities were invested by the government with special powers
to tackle the environmental crisis. Thereby, they concluded several Memoranda
of Understandings with the company, aimed at giving it the means to depollute
the area and to start a clean production. These agreements do not have per se
legal value, but they provide for a set of programmatic guidelines aimed at
reducing polluting emissions. Notwithstanding the multiple rehabilitation plans
drafted, the deadlines and prescriptions included in these instruments have not
been respected, making these guidelines nothing more than dead letter.
In 2008, the
Puglia Council adopted Regional Law 44, also called Anti-Dioxin Law, in an
attempt to implement Council Decision 2004/259/EC.[2]
However, the Government strongly opposed the timeframe indicated in the Law for
depollution, and it ultimately managed to extend the deadline to 2010.[3] On 24
July 2012, the Region adopted a new Law to patch the situation in the Taranto
area.[4]
However, the tensions between branches of the State were already simmering. The
judiciary wanted to stop production in order to prevent the continuation of a
suspected environmental crime. While, the government was instead deeply concerned
with the detrimental effects on the economy and on employment resulting from
shutting down the plant.
The Italian court cases
The main legal
proceeding on the Ilva case started in 2010, and was dubbed by the media as “Ambiente svenduto”[5]
to stress the continuous subordination of environmental considerations in
favour of business goals. The peculiar aspect of this case lies both on the
number of indicted persons, and on the charges pressed against them. Albeit
some initial suspects have benefitted from expedite proceedings, the indictment
still includes 44 persons (one legal person and 43
natural persons). The charges do not only cover environmental crimes and crimes
against public safety, but the Prosecution made its case based on the existence
of an extensive network of corruption and abuses for the benefits of the
indicted companies. Indicted individuals range from lawyers, to experts, to
public officials, who have allegedly worked to keep the plant operational,
thereby putting their profits over the health of the local population.
Moreover, Italian
judicial authorities have initiated a series of other (smaller) proceedings
involving the managing board of Ilva, both prior and after the initiation of
this trial. For example, in 2005, Emilio Riva (the main owner of the plant) and
Luigi Capogrosso (managing director) were condemned for the emission of dangerous
substances.[6] This wrongdoing,
provided for in art. 674 Italian Penal Code, is considered a misdemeanour.
'Ambiente svenduto'
In 2010, the
Taranto Prosecutor’s Office opened an investigation on the alleged
environmental damages caused by Ilva. The pre-trial phase saw the submission as
evidence of two extensive expert reports (available here and here), documenting the high level of harmful
emissions coming from the plant, and their correlation with the health hazards experienced
by the local population. In particular, the reports show the appalling
incidence of cancers, cardiovascular and respiratory diseases among Taranto
citizens.
On 25th
July 2012, Taranto’s GIP (judge for preliminary investigations) issued a
provisory order requesting the seizure of six sectors of the plant, due to the suspected
environmental damage discovered. The seizure was taken as a precautionary
measure and had the effect of suspending the activities carried out in those
sectors. The measure was then confirmed by the Tribunale del Riesame (Review Tribunal for Precautionary Measures),
which held that the installations could be used only for the purpose of facilitating
the clean-up (see excerpts here). A few months later, the judge issued a
new seizure on some goods produced by Ilva, since they were considered the
result of illicit activity of the company. These judicial orders gave rise to
conflicted opinions in the public, the company, and other political
institutions. Indeed, the company was not the only actor to strongly oppose the
measures: workers have been deeply torn by the issue, faced with the evidence
of extensive pollution on one hand, and the fear of losing their jobs on the
other. For its part, the Government took a set of measures, which will be
discussed below, basically aimed at limiting the effects of such judicial acts,
and at keeping the plant open. These seizure orders became a core element of
contention, and made their way up to the Constitutional Court. Other seizures
were upheld by lower courts, but subsequently overruled by the Corte di Cassazione (highest Italian
court).[7] Thus,
the Ilva plant stayed up and running, notwithstanding the damning evidence
before the judges.
Beside the controversies
connected to precautionary measures, the “Ambiente
svenduto” proceeding encountered several other hindrances. After the
closure of the pre-trial phase, the file was passed on to the GUP (preliminary
hearing judge). The Corte di Cassazione
was seized again, and rejected the request to transfer the proceeding to
another city, due to the intense pressure experienced in Taranto. Moreover,
once the trial phase had started, the case was referred back to the GUP,
due a procedural error. The trial phase has at the time of writing finally started.
Nonetheless, the road to justice remains extremely lengthy and narrow. Victims
have been waiting for a final judgement – and just in first instance – for
seven years now.
The role of the
Italian government before Opinion 85/2013
As mentioned
above, the Italian government disagreed with the precautionary measures of the
GIP, claiming that the judiciary was intervening in the definition of Italian
industrial policy. Therefore, the Ministers of Environment, of Infrastructure,
of Economic Development, together with the Heads of the Region, Province and
the Mayor of Taranto signed a Memorandum of Understanding the day after the first order was issued.
The idea was to find a compromise to proceed with the remediation of the site
while safeguarding its employment level. Moreover, a couple of weeks later, the
Government issued a Decree law, devolving funds for clean-up operations
of the area.[8]
Furthermore, on 26th October, the Ministry of Environment approved
the new AIA, which would have practically allowed the
Ilva to resume production.
The tension with
the judiciary got further inflamed when the government issued the infamous “Rescuing Ilva” Decree, which was then converted into law 231/2012. Among other contentions raised by this act,[9] the
content of the decree appeared to be openly against the seizure disposed by the
Court. Its art. 1 provides that the plant could stay open and productive for 36
months, abiding to the prescriptions of the AIA, and in spite of the measures ordered
by the courts. It thus circumvented the prohibition to use the installations,
and assigned the management of the plant back to its owner. Albeit a seizure order
does not hold the value of res judicata,
the Decree Law possibly jeopardised legal certainty, which is of the upmost
importance when criminal law measures are involved.[10]
This led the Taranto Office of the
Prosecutor, the GIP, and the Tribunale del Riesame to file a complaint to the Constitutional
Court, which ruled on the matter in Opinion 85/2013.
The Italian Constitutional
Court and the Ilva case: Opinion 85/2013
The Constitutional
Court was seized to rule on two separate issues: on one side, the Prosecutor
alleged a conflict of attribution between State branches, on the other, the courts
challenged the conformity of the Decree Law (and of the law which converted it)
with the Italian Constitution. Though it declared inadmissible the Prosecutor’s claims, the
Court did rule on constitutionality. The claims brought by the lower courts are
complex and intertwined.[11] For
sake of clarity, they can be summarized in two main questions: did the government
strike a reasonable balance between the right to health and safe environment
and the right to work? Moreover, did the government act within its
constitutional powers or did it unduly interfere with the competence of the judiciary?[12]
In Opinion 85/2013, the Constitutional Court held that the
Decree was in compliance with the Constitution, and that the balance it struck
between different rights was not manifestly unreasonable. In particular, the
Court stated that no right in the Constitution can automatically prevail on all
others, and the same holds true for the right to a healthy environment (art. 32
Italian Constitution). The power to balance different rights
is attributed to the legislative and administrative powers (§9). Thus, the AIA
should be presumed reasonable,[13] since
it adopts measures with regard to a specific situation, within the margin of
discretion constitutionally given to the administrative power (§10.3). The
Decree merely recalls the AIA and requires its compliance, even in situations
already covered by on-going judicial proceedings.
In practice, the
consequences of this ruling by the Constitutional Court were twofold. The government
has, since then, continuously issued decrees in order to tackle the Ilva
problem; Ilva was able to remain open and to continue production.
The role of the Italian
government after Opinion 85/2013
After the
Constitutional Court ruling, the government both renewed the AIA several times, and issued another series of Decree Law,
aimed at saving and rehabilitating the plant. Among others, two interventions
are worth mentioning. First, Decree Law 1/2015, which placed Ilva in temporary
receivership. Its art. 2(6) provided, inter
alia, functional immunity from criminal proceedings of the receiver in
charge, since his duty is to implement the BAT prescribed in the new AIA. Secondly,
Decree Law 92/2015 followed a new seizure decree by the GIP
issued in the aftermath of a fatal incident in the plant. Promptly, its art. 3
extended the authorization to continue production “even if seizure measures
have been issued with regard to industrial accidents”, subject to the creation
of a depollution plan within 30 days.
This norm applies also to on-going seizures and, hence, to Ilva.[14]
Notwithstanding these efforts – and in spite of the 2015 reform of the penal code, instituting environmental crimes – there
is extensive evidence that Ilva has not stopped polluting, and
that the AIAs were not always respected.
All in all, the
analysis shows the inability of the Italian State to significantly impact on the
situation. First of all, the government was not capable of delivering
long-standing solutions which would have allowed retaining employment in the
area without putting the population at risk. Secondly, the conflict between
judicial and legislative powers, which emerged with the issuing of precautionary
measures, prevented them to jointly work toward the same goal. Thirdly, all
this factors concurred in lengthening both the administrative and judicial
proceedings, hindering the efforts for quick and effective results. As a
result, no justice has been delivered, and Taranto remains deeply at risk. In
addition to the employment challenges Ilva workers have to face, and the health
threats affecting the population, the environmental damages caused by Ilva had
extremely negative effects on other economic sectors, such as agriculture,
fisheries and tourism.[15]
The second part of this post will turn
to the (positive?) role of supranational actors in the Ilva case, assessing whether
they could contribute to a solution out of reach for the Italian
institutions.