–Damiano Fuschi, Assistant Professor of Comparative Public Law, University of Milan, Italy
On February 8 2022, a reform of the first part of the Italian Constitution has been approved for the first time since 1948. The core of the reform lays on the aim of the legislator to introduce a clear and strong protection of the environment. Both for scholars and practitioners it has always been uneasy to define what the environment is, what we have to protect, in which ways we can protect it and where we can set the boundaries of this subject. The first thing to analyze is the nature of the new constitutional provisions: are we dealing with rights or principles? This theme seems to be quite out of date in Italian legal doctrine, even though it re-emerged in the debate that led to this reform. The constitutional reform was approved by the Italian Chamber of Deputies on February 8 2022, with a majority of 2/3 of its members[1].
Here the amended text, in bold the new parts:
Article 9
The Republic shall promote the development of culture and scientific and technical research.
It protects the landscape and the historical and artistic heritage of the Nation. It protects the environment, biodiversity and ecosystems, also in the interests of future generations. The law of the state regulates the ways and forms of animal protection.
Article 41
Private economic initiative is free.
It may not be carried out in conflict with social utility or in such a way as to damage security, liberty, human dignity, health and the environment.
The law determines the programmes and appropriate controls so that public and private economic activity may be directed and coordinated for social and environmental purposes.
Moreover, due to the particular asset of regional government in Italy, the amendments introduced by the approved constitutional law establish a safeguard clause for the application of the principle of animal protection in the special Statutes of the Regions of Sardinia, Sicily and Valle d’Aosta and the Provinces of Trentino-Alto Adige and Friuli Venezia Giulia.
It is important to underline that Italy, even though it has not had a clear environmental clause in the Constitution until today, has a long history of constitutional environment protection thanks to the combined provision of Articles 9 and 32. In addition, the reform of the Title V of the Constitution, occurred in 2001, introduced the word “environment” in the Italian Constitution for the first time, even though the reform regarded the division of State-region competences (Art. 117 c. S)
As we can see, the text of the amended Art. 9 refers generally to the Republic and assigns to it four new spheres of interest, i.e. the environment, the biodiversity, the ecosystem and the animal protection; these provisions will be guaranteed “in the interests of future generations”. In this part of the amendment we can find the first “shadow” of the reform: the constitutional legislator is introducing a vague and indeterminable provision. As underlined by some Deputies, this Article lacks principles for formal actions as stated in the EU legislation, in the ordinary Italian legislation and as enlightened by the Italian Constitutional Court in order to identify a clear parameter to take into actions public policy., Therefore, this can be considered one of the missed targets of the reform. Moreover, in this reform, it is hard to find provisions which clarify how the policies need to be implemented by the ordinary law and in which way those policies need to be put in action. This deficiency is both in the final text and in the preliminary discussions. The result is that we have an article with a high symbolic value lacking operative principle.
A second issue to analyze concerns the concept of “the future generations”. In the draft of the law there is a clear connection between the new article and the Article 20a of the German Constitution that includes, essentially, the concept of sustainable development as well.
The provision of the interest of future generations has been evaluated as a sufficient parameter to protect also sustainable development. In addition, we can find an implicit guarantee in Article 3 quater of the Italian Environmental Code (legislative decree 152/2006) which includes the concept of sustainable development. However, we can find opposite doctrinal positions on this theme, related to a deficit of the legal personality of the potential recipients of the norm.
The bigger shadow of amended Article 9 is in the third subparagraph, where the Constitutional norm refers directly to the ordinary law of the State. This sounds odd for at least 3 reasons: first of all, the reference to the ordinary law is misplaced; Article 9 is in the “Fundamental principle” section, and a reference to the ordinary law falls outside the topic of fundamental principles of the State. Secondly, this final formulation is the result of a political compromise. Since I had the chance to take part in one of the preliminary hearings held by the Committee on Constitutional Affairs, the provision regarding animal protection has been strongly pursued by the “5 Stars Movement” party and is based on an ideological view of the reform. This leads to the third issue: are animals outside the environment, biodiversity and ecosystem? Once it is decided that we need a clear and defined protection of the animals in the Italian Constitution, is Article 9 the right place?
Regarding the provision added in Article 41, it is possible to say that is a new source of law to limit the private economic initiative. Moreover, it makes environmental principles a Constitutionally qualified objective of the programs and controls that the law determines to direct and coordinate public and private economic activity, thus acting on the side of both law limits and guidelines for political and administrative activity. However, it is hard to imagine that environmental protection will become a higher value in the Italian constitutional jurisprudence. First of all, despite the absence of an express reference to the environment and health in the old art. 41, subparagraph 2, the constitutional jurisprudence has already been called upon to balance private economic initiative and environmental protection. What is derived from this case law – which, realistically the integration of art. 41, paragraph 2, will not change – it is that none of the rights and values at stake are absolute, not only the private economic initiative, but neither the health nor environmental protection. The parameter used by the Legislator lays on a reasonable mutual balance of the rights in conflict (see ICC decision n. 85, 2013 on the so-called ILVA case).
In conclusion, it is reasonable to say that the reform has missed some targets.
The constitutional protection of the environment in Italy is not a new subject. We have a long tradition of environmental protection covered by constitutional legitimacy. The EU-derived principles – the precautionary principle, the principle on preventive action, the principle establishing that environmental damage should, as a priority, be rectified at source and the polluter-pays principle – are an integral part of our jurisprudential and regulatory system.
A series of principles, therefore, which “already represent a parameter of constitutional legitimacy that cannot be avoided for public policies for environmental protection” (Cecchetti 2020) have been part of the Italian Constitutional since decades. These are the principles that the current constitutional revision law proposal under discussion has failed to make explicit.
Moreover, even after the constitutional amendment, the multi-dimensional nature of the environment and the attribution to the concept of individual and collective dimensions remain acquired. The new Article 9 of the Constitution, built by principles, rather than by rights alone, certainly strengthen the objective dimension of environmental protection. Which is at the basis of the duties of solidarity, rather than the rights which are anyway legitimated by the explicit reference to the interests of future generations.
However, the dichotomy between subjective law and objective principle remains inconsistent since the principle itself is also a generator of juridically significant subjective positions.
Suggested citation: Damiano Fuschi, Environmental Protection in the Italian Constitution: Lights and Shadows of the New Constitutional Reform, Int’l J. Const. L. Blog, Feb. 13, 2022, at: http://www.iconnectblog.com/2022/02/environmental-protection-in-the-italian-constitution-lights-and-shadows-of-the-new-constitutional-reform/
[1] The procedure to amend the Constitution is described by art.138 IC:
“Laws amending the Constitution and other constitutional laws shall be adopted by each House after two successive debates at intervals of not less than three months, and shall be approved by an absolute majority of the members of each House in the second voting. Said laws are submitted to a popular referendum when, within three months of their publication, such a request is made by one-fifth of the members of a House or five hundred thousand voters or five Regional Councils. The law submitted to referendum shall not be promulgated if not approved by a majority of valid votes. A referendum shall not be held if the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members”.
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