Jacques Bellezit, University of Strasbourg
(France)
Photo credit: mafe de baggis, via Wikimedia Commons
If one wants to trace back the history of European construction, it
would necessarily have to mention the European Coal and Steel Community (ECSC).
Inspired by the Schumann Declaration of May 9th 1950, it was the first attempt
to put in a common market, strategic materials (coal and steel). This was done
in order not only to enhance European post-war reconstruction but also to
impede re-weaponization policies on both side of the Rhine, in the first years
of the Cold War.
If the ECSC now belongs to history, and the use of coal is (theoretically)
aimed to follow the same path under environmental treaties (such as the Paris
Agreement), steel production can always be an issue in EU aw, especially under Directive
2010/75/EU of the European Parliament and of the Council of 24 November 2010 on
industrial emissions (integrated pollution prevention and control (“The IED”).
This was the case with the Italian Ilva SpA factory, which has led to
the 25/06/2024 CJEU Grand Chamber judgment in case C‑626/22, C.Z.
and Others v Ilva SpA in Amministrazione Straordinaria.
I) Facts and background of the case
The Ilva SpA steel producing plant (ISSPP) is located in the city of
Tarantino (Italy) and is one of the major steel factories of the region : AG
Kokott recalls in her Opinion (point 49) that the ISSP “ is the largest
industrial steelworks complex in Europe, covering an area of roughly
1 500 ha and employing around 11 000 workers” in 2019. She also
reminds the reader that “the Italian State still holds almost 40% of the
shares” in Ilva and “exerts particular influence” on it (point 64 of the
Opinion).
Neighbours and residents of Tarantino and nearby cities seized the Milano
district court for violation of their right to health, their right to peace and
tranquillity in the conduct of their lives and their right to a clean climate,
due to the activities of the ISSPP.
If the ISSPP was unknown to the Kirchberg’s judges in the CJEU before
the present case, the European Court of Human Rights, on its side, was very
familiar with this facility. Indeed, the Strasbourg Court has condemned Italy for violations of articles 8
(right to private life) and 13 of the European Convention of Human Rights
(right to effective remedies) due to Italian management of the ISSPP:
– on the part of 161 neighbours of the facility (ECHR 01/24/2019 Cordella and others v Italy)
– on the part of 39 of its current or former employees (ECHR 5/5/2022 Ardimento and
others v Italy)
– on the part of 3 former employees (ECHR 5/5/2022 Briganti and
others v Italy)
All of these applicants have suffered from occupational or environment-caused
conditions (such as cancers) due to exposure to toxic rejects of SO² (Sulphur
dioxide) and PM10 particulate matter emitted by the ISSPP. These rejects
were consistently assessed during twenty years, by several scientific reports,
from both national and international specialists between 1997 and 2017 (§13 to
31 of the Cordella judgment).
IED provisions and the case of the Ilva factory
Under Italian law, the IED provisions were transposed through the Legislative
Decree No 152 on Environmental rules of 3 April 2006.
In 2012, the Taranto District Court ordered a provisional seizure “of the
equipment of the ‘hot zone’ of the Ilva plant and all Ilva’s materials” stopping
the production (Point 27 of the Ilva judgment). To counter this Order,
the Italian authorities adopted several regulations, from 2012 to 2016,
creating a tailor-made, sui generis legal regime aiming to maintain the ISSPP’s
activities (points 27 to 35 of the Ilva judgment):
– the ISSP was classified as “‘plant or facility of strategic
national importance’”, so the “Minister for the Environment and the Protection
of the Land and Sea may, when the Integrated Environmental Permit is
reconsidered, authorise the continuation of the activity in question for
36 months” under the previous permit;
– the facilities were under the control of “provisional administrators
designated by the government”;
– several deadlines for environmental rehabilitation plans of the
facilities were rescheduled;
– in 2016 and in the frame of the ISSPP’s cession of shares to
ArcelorMittal, the Environmental Impact assessment (EIA) regime was replaced by
an ad hoc “Decree of the President of the Council of Ministers, which was to be
regarded as constituting an Integrated Environmental Permit”.
II) Procedure and preliminary ruling of the CJEU
In the current CJEU case, residents and neighbours of the ISSPP seized
the Milano District Court of a class-action request for “an injunction in
respect of the operation of the installation or at least parts thereof to
protect their rights to health, to peace and tranquillity in the conduct of
their lives and to the climate. In their view, those rights have been very
seriously affected for decades by the operation of the steelworks” (point 46 of
the “Ilva” judgment).
The CJEU, after having dealt with an admissibility issue that we will
exclude from the present analysis, was sent a request for a preliminary ruling
request with 2 questions:
– Does Directive 2010/75, read in the light of Article 191 TFEU,
must be interpreted as meaning that the Member States are required to impose a
prior assessment of the effects of the activity of the installation concerned
on the environment and on human health as an integral part of the procedures
for granting or reconsidering a permit to operate such an installation under
the directive ?
– Must Directive 2010/75 be interpreted as meaning that, for the
purposes of granting or reconsidering a permit to operate an installation under
that directive, the competent authority must take into account, in addition to
the polluting substances that are foreseeable having regard to the nature and
type of industrial activity concerned, all those polluting substances which are
the subject of emissions scientifically recognized as harmful which result from
the activity of the installation concerned, including those generated by that
activity which were not assessed during the initial authorisation procedure for
that installation?
The CJEU preliminary rulings
The CJEU Grand Chamber rules that the IED Directive « read
in the light of Article 191 TFEU and Articles 35 and 37 of the
Charter of Fundamental Rights of the European Union » must be interpreted as meaning that:
– Member States are required to provide that the prior assessment of the
effects of the activity of the installation concerned on the environment and on
human health must be an integral part of the procedures for granting or
reconsidering a permit to operate such an installation under that directive;
– for the purposes of granting or reconsidering a permit to operate an
installation under that directive, the competent authority must take into
account, in addition to the polluting substances that are foreseeable having regard
to the nature and type of industrial activity concerned, all those polluting
substances which are the subject of emissions scientifically recognised as
harmful which are liable to be emitted from the installation concerned,
including those generated by that activity which were not assessed during the
initial authorisation procedure for that installation;
– it precludes national legislation under which the period granted to the
operator of an installation to comply with the measures for the protection of
the environment and human health provided for in the permit to operate that
installation has been repeatedly extended, whereas serious and significant
risks to the integrity of the environment and human health have been identified.
Where the activity of the installation concerned presents such risks, […] in
any event, that the operation of that installation be suspended.
III) Analysis
If the Ilva Grand Chamber judgment condemns specific regimes
such as the one tailor-made for the case’s steelworks activities, it
nevertheless extends in a pretorian way, the field of the IED.
The Luxembourg Court does not only states that environmental impact assessments
are an “integral part of the procedures” of granting or re-considering permits
for IED’s facilities, but also extends the frames of the these assessments by
including “polluting substances which are the subject of emissions
scientifically recognized as harmful which are liable to be emitted from the
installation concerned” and not only foreseeable ones.
This extension is motivated by the protection of health and
environmental, in accordance with Articles 35 and 37 of the Charter of
Fundamental Rights of the European Union; but it might put a burden on national
EIA authorities.
If the hazards of polluting substances can be determined especially in regard
to relevant ban-conventions or EU Law (ex the 2001 Stockholm Convention on
Persistent Organic Pollutants, enforced in EU law by Regulation (EU) 2019/1021
of the European Parliament and of the Council of 20 June 2019 on persistent
organic pollutants (recast)), the presence of such polluting substances on a
designated industrial site as well the impact of this presence on human health,
might be a scientific and legal challenge.
So as EIA authorities are now required to examine substances “which are liable
to be emitted”, it would expand the weight and the complexity of EIA documents.
Meanwhile, treaties such as the Aarhus
Convention on access to information, public participation in decision‐making
and access to justice in environmental matters require “environmental
information [to be] available to the public […] transparent and […]
effectively accessible” (Article 5§2 of the Aarhus Convention). Conciliating
the right to environmental information with the complexity of the matter is a
conundrum, as even lawyers and judges are “unable to, on their own, to assess and weigh complex scientific
evidence” in environmental matters (cf. Point 4 of the Joint dissenting opinion
of Judges AL-KHASAWNEH and SIMMA under
the 2010 ICJ “Pulp Mills on the
River Uruguay” judgment).
The Italian authorities, by organizing an ad hoc legal regime for the Ilva
factories, have also contributed to create this legal, political and scientific
muddle, even if it was in order to keep jobs in an economically stricken area.
How would it be possible for the common man, the one the Clapham omnibus, to
deal with such information in a “transparent” and “effectively accessible”
manner? Especially if this man suffers from pollution-induced conditions.
The “Ilva” case is, according to a French
ecologist newspaper, “an ecological monster [or] […] an ecological bomb”,
dealt twice by the Strasbourg Court and now by the CJEU Grand Chamber.
Would it be sufficient to avoid further pollution? Probably not.
Would it be enough to relieve the victims of such pollution? Certainly not.
However, with the “Ilva” judgment, the CJEU gives an example of the way
IED’s provisions have to be conciliated with the EU Charter of Fundamental
Rights.
Such conciliation between Human Rights law and Environmental law was previously
established by the ECHR’s Grand Chamber “Klima v Switzerland”
judgment (in the field of climate change) and the CJEU cannot not ignore such
conciliation anymore due to the authority it grants to its Strasbourg counterpart.
The Ilva judgment, a step closer in Strasbourg-Luxembourg
dialogue?
Indeed, since 1970 and the CJEU “Nold”
judgment, the Court recognizes that “international treaties for the protection
of human rights on which the Member States have collaborated or of which they
are signatories, can supply guidelines”, and chiefly the European Convention of
Human Rights.
If the “principle of equivalence” in protection of human rights between the
ECHR and EU legal systems was recognized by Strasbourg judges (in cases “Bosphorus Airways v Ireland”
and “Avotins v Latvia”),
the CJEU was more reluctant to follow its Strasbourg counterpart, wanting to
preserve its authority over EU Law interpretation (cf. the CJEU
Full Court Opinion 2/13 of 2014).
However, in the present case, the Luxembourg Court takes into
consideration the previous cases by the Strasbourg Court rendered on the “Ilva”
issue.
Might this consideration be a paving stone to the road leading to a EU
membership of the European Convention of Human rights? Maybe.
But one has to never forget that is road is not a “yellow brick road”
any more, as some of its cobbles are now tainted by the “Ilva” steelworks’
polluting substances, and dampened by the tears of the victims.
