Prepared by Annalisa Di Ruzza, Guido Ajello e Edoardo Ferrero
On June 9th, 2021, the Italian Senate approved the constitutional bill resulting from the unification of a series of reform initiatives. These ones were unambiguous in establishing environmental recognition in the initial part of the Constitution (bills no. 83, 212, 938, 1203, 1532, 1627, 1632 and 2160).
As noted, the environment was not planned in the original structure of the 1948 Constitution, which merely recognised and protected the landscape in Article 9. Only with the constitutional reform of 2001, the environment was recognized in the Constitution. This happened only in the list of matters of exclusive legislative competence of the State within Title V of Part II of the Constitution.
Therefore, in the current version of the Constitution, the environment is not a fundamental principle, a right or a duty of citizens. Despite this, the constitutional court has had the opportunity in recent years to clarify how the environment is a value of the Italian legislation, whose protection is also based on the obligations of membership of the European Union (see ruling no. 210 and 641 of 1987).
In this context, it is proposed to intervene on Article 9 of the Constitution, adding, in the end, the following paragraph: “[the Republic] protects the environment, biodiversity and ecosystems, also in the interest of future generations. State law regulates ways and forms of animal protection”.
Therefore, immediately after the protection of culture, research, landscape, and historical and artistic heritage, it is intended to recall the environment, also in its forms of the principle of sustainable development and animal protection. This provision undoubtedly finds an appropriate place, given that, in the past, Article 9 had been invoked several times by the interpreters to base an implicit recognition in the Constitution of the environment. In this sense we meet the doctrine formed in the early years after the Second World War (the reference is to the well know trisection of M.S. Giannini, Ambiente: saggio sui diversi suoi aspetti giuridici, in Rivista trimestrale di diritto pubblico, 1973, 15).
Sustainable development is further recognised in the proposal to amend Article 41 of Constitution. In fact, if the bill will be finally approved, it would be enriched in paragraphs 2 and 3. In particular, in paragraph 2 health and environment will be added in the list of damages which may limit the way in which the economic initiative is carried out, while in paragraph 3 environmental objective will be able to direct and coordinate public economic activity, with social objectives already provided for in the current version of the provision.
Lastly, Article 3 of the bill introduces a clause that protect the special autonomies provided by the constitutional system about the protection animal legislation.
While waiting for the end of the approval process of the constitutional bill, which Article 138 of Constitution wants to be strengthened compared to that provided for ordinary laws (in other words, two subsequent deliberations within a predefined period with qualified majorities, in addition to any referendum),it seems possible to make some initial considerations.
Firstly, it is observed that this bill contrasts with the one discussed ten years ago. In that occasion it was proposed to lighten Article 41 by stipulating that everything that is not expressly prohibited by law is allowed, without referring to the environment, seen as a possible limit to free economic initiative (in this sense the constitutional bill no. 4144 presented on 7 March 2011). The reason for this reversal is probably the changed environmental awareness and influence of European Union law, which in recent years has insisted on this direction, also allocating substantial public investment.
It could also be supported that the reform is intended to confirm the principle of the pre-eminence of environmental interests, which has been developed by a part of administrative jurisprudence (see, for example, TAR Abruzzo, Pescara, judgment of 13 February 2012, no. 73). In this sense, therefore, the new regulatory framework could be invoked by the courts to review the exercise of the discretion of the administrative authorities, within the narrow limits to which it is permitted by the principle of separation of powers.
Turning to the most practical consequences, the reform could be the starting point for a review of the procedures for authorizing economic activities, which have always been constantly aimed at opposing needs, hardly to reconcile: on one side, the requirements of administrative simplification and, on the other, those of implementation of environmental protection standards.
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PwC TLS Avvocati e Commercialisti