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 25^th 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 26^th 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. 

[1] The content was later codified in Directive 2008/1/EC of 15 January 2008, and it has now been included in Directive 2010/75/EU of 24 November 2010.

[2] The Decision implemented the Aarhus Protocol in EU law

[3] G. Caforio, L’Ilva Di Taranto Tra Interessi Industriali E Politiche Ambientali, Thesis, University of Perugia, 2012, 65

[4] It established a new depollution plan and coordinated several Government agencies for the appraisal of the epidemiological effects of the emissions.

[5] Namely, “Sold-off environment”

[6] Cass. Pen., sez. 3, n. 38936/2005

[7] Cass. Sez. III, 27427 of 20 June 2013; Cass., sez. VI, 3635 of 21 January 2014

[8] A Decree law is an act issued by the Government, which has the same legal stand as a law approved by Parliament. Pursuant to art. 77 of the Italian Constitution, the Government exercises this power just in case of extreme need and urgency. The act needs to then be converted by the Parliament into an ordinary law. In spite of the requirements of extreme need and urgency, it is common practice of Governments to make use of Decree laws, some of which have been into force for decades.

[9] As its nature of “Specific legislative act”; see, among others, Italian Constitutional Court 143/1989, 346/1991, 492/1995, 267/2007, 241/2008 e 137/2009 and CJEU, Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, Boxus et al., 18 October 2011

[10] G. Arcorzo, Note critiche sul “decreto legge ad Ilvam”, tra legislazione provvedimentale, riserva di funzione giurisdizionale e dovere di repressione e prevenzione dei reati, 20 December 2012; A. Sperti, Alcune riflessioni sui profili costituzionali del decreto Ilva, 17 December 2012

[11] The nature of the claims raised is extremely convoluted, as they range from the actual division of competence between different branches of Government to the nature of preventive precautionary measures. On this point see D. Pulitanò, Fra Giustizia Penale E Gestione Amministrativa: Riflessioni A Margine Del Caso Ilva, 22 February 2013

[12] A. Morelli, Il decreto Ilva: un drammatico bilanciamento tra principi costituzionali, 12 December 2012

[13]As recalled by the Court (§12.6) the problem of attribution of powers in the judgement at hand lies in the problematic aspect of preventive precautionary measures. When issuing a precautionary measure, the judge is called on providing a preventive balance to stop the effects of the crime to take place. However, the discretion of the legislative power to strike a new balance remains unchanged.  R. Bin, Giurisdizione o amministrazione, chi deve prevenire i reati ambientali? Nota alla sentenza "Ilva", 2013; V. Onida, Un Conflitto Fra Poteri Sotto La Veste Di Questione Di Costituzionalità: Amministrazione E Giurisdizione Per La Tutela Dell’ambiente. Nota A Corte Costituzionale, Sentenza N. 85 Del 2013, 2013

[14] It is controversial whether the arguments of Opinion 85/2013 would hold here, since accidents in the workplace are regulated by parliamentary laws, and not by administrative acts. Indeed a new complaint has been lodged to the Constitutional Court by the GIP. See S. Zirulia, In Vigore Un Nuovo Decreto 'Salva Ilva' (E Anche Fincantieri), 2015

[15] European Parliament, The Ilva Industrial Site in Taranto, Envi Committee, 7