by Franco Sicuro University of Bari)
Published on 09 March 2025
The ruling on the Priolo case (no. 105 of 2024) constitutes the first pronouncement of the judge of laws on the axiological value assumed by the new Articles 9 and 41 of the Constitution.
With the constitutional revision of 2022, the legislature elevated environmental protection to an express constitutional principle, placing it at the foundation - as a ‘fundamental principle’ - of the economic constitution itself. As an interpretative parameter of the overall constitutional framework, the fundamental principle of environmental protection cannot, in fact, but conform - in terms of dutifulness - to the entire economic-normative structure of a Republic that would like to (re)found on the environment, public and private economic activity finding in the preservation of ecological balances (ecosystems and biodiversity) not only a negative limit, but the end to which the law can direct economic production itself.
In revising Article 41(2) and (3) of the Constitution, the constitutional legislator then seemed, on the one hand, to want to realign the Italian legal system to the ambitious objectives (at least originally) incorporated in the European Green Deal and, on the other, to avert the interpretative outcome that the Constitutional Court had reached in ruling no. 85 of 2013 on the Ilva case. On that occasion, in fact, the desire to avoid the tyrannical prevalence of the right to the healthiness of the environment over the protection of employment levels had led the judge of laws to rule out the constitutional illegitimacy of the Decree-Laws adopted by the government, thereby, however, making the right to the continuity of economic production, albeit highly polluting, a de facto tyrant. This circumstance led the Court of Justice of the European Union to condemn - still in June 2024, only a few days after the publication of the ruling on the Priolo case - the Italian State and Ilva S.p.A. for not having concretely implemented the remediation plan drawn up and for the abstract nature of the procedure for issuing the Integrated Environmental Authorisation, as well as for the continuous use of emergency instruments to govern problems that are now structural.
It is in this multi-level scenario, therefore, in which environmental protection is inevitably intertwined with environmental principles and the pronouncements of the European Courts, that legislators and judges are called upon to implement, within their respective spheres of competence, the renewed Articles 9 and 41 of the Constitution. To date, however, the constitutional significance of the 2022 revision appears largely unimplemented, especially with regard to the legislative form. Still in 2024, in fact, the budget law was used to insert an amendment aimed at expanding the (already not restricted) possibilities of exercising hunting activity: and so much so, in blatant distony with the content of Article 9, paragraph 3 of the Constitution, which entrusts the protection of animals to the law - evidently not the budget law. With specific reference to Article 41 of the Constitution, then, in addition to leaving paragraph 3 on reprogramming for social and environmental purposes substantially unimplemented, in Decree-Law no. 2/2023, which gave rise to the Priolo case, the legislator has even omitted any reference to the renewed environmental limits to economic enterprise (i.e., to the new Article 41, paragraph 2 of the Constitution), demonstrating the still firm foundation of the material constitution on predominant economic-productive interests.
Until the ruling on the Priolo case, it had been above all the Council of State that had provided a constitutionally oriented interpretation of the renewed Article 41 of the Constitution, inserting it into the consolidated framework of the theory of balancing constitutional values (rectius, principles). The judges of the Palazzo Spada have in fact specified that the limits to the freedom of economic initiative cannot go beyond the strict confines of the principle of proportionality (Cons. St., sez. II, sent. 29 April 2024, n. 3915), although, ‘in dialectically juxtaposing the protection of the environment with the value of private economic initiative (art. 41 Const.)’, Constitutional Law n. 1 of 2022 marks ‘the overcoming of the balancing of opposing values under the banner of a new compositional axiology’ (sentence n. 8167 of 2024) that requires the integration of economic development with the need to preserve the environment (sentence n. 2255 of 7 March 2024).
And that a ‘new axiological value’ derives from the renewed Articles 9 and 41 of the Constitution also seems to be confirmed by the Constitutional Court's ruling no. 105 of 2024, which, at least for the time being, did not however seem to want to go beyond the formulation of a warning, addressed primarily to the legislature, so that it may give concrete and coherent implementation to the fundamental principle of environmental protection. Indeed, the law judge did not fail to emphasise that the constitutional revision of 2022 constitutes a real ‘change (...) in the very wording of the constitutional parameters on the basis of which the scrutiny’ of constitutionality must be conducted. The meaning of this ‘change’ is well represented by the explicit reference to a ‘mandate to protect the environment, understood as a unitary good, including its specific declinations represented by the protection of biodiversity and ecosystems, but recognised in an autonomous way with respect to the landscape and human health, insofar as they are naturally connected’ (cons. in dir. no. 5.1.2). The new Articles 9 and 41 of the Constitution would therefore act as the axiological matrix of a constitutional mandate that ‘explicitly binds (...) the public authorities to act with a view to its effective defence’, also acting as a ‘limit’ for all public and private activities that could cause ‘damage’ (art. 41, c. 2 Const.) to health and the environment.
Admittedly, as the first commentators of the judgment pointed out, the aforementioned arguments on the overall significance of the 2022 constitutional revision, as well as the extensive reference to the principle of effective citizen participation in the decision-making process in environmental matters enshrined in European norms and the Aarhus Convention, would in fact appear to have no impact on the operative part of the judgment. If this is true, it must nevertheless be pointed out that, in recalling - rather unexpectedly - a terminology typical of Latin American constitutionalism (where, for years now, there has been an attempt to reason around the existence of an ecological mandate) within a legal-constitutional system anchored to the principle of the freedom of the parliamentary mandate (Art. 67 Const.), affirming - as the judge of laws does - that public institutions are bound to implement a mandate to protect the environment appears to be a firm and explicit reminder to the legislator not to degrade the Constitution to a mere political programme, as well as not to reduce the ‘interest of future generations’ to a mere style formula.
The centrality of the principles of representative democracy has, however, led the Constitutional Court to refrain from censuring in full the provisions subject to its review, in line with the established constitutional jurisprudence on respect for the sphere of attribution of the parliamentary body. This appears in decidedly stricter terms compared to what happens in contemporary European constitutional realities, in which, without questioning the theory of the division of powers, the courts (including constitutional courts) have not failed to censure government-legislator policies that are misaligned with respect to the objectives of combating climate change and the principle of ‘non-regression’ in environmental protection.
Lastly, then, resolving the case Verein KlimaSeniorinnen Schweiz and others v Switzerland (Case No. 53600/20), the European Court of Human Rights first remarked that ‘the intervention of the courts’ cannot ‘replace or substitute the action of the legislative and executive powers’, and then emphasised that ‘in any event, democracy cannot be reduced to the will of the majority of the electorate and the elected representatives, in defiance of the principle of rule of law’ (§ 412).Therefore, in a complementary position with respect to the democratic-representative process, national and supranational legal bodies have the task - the Strasbourg Court continues - of ensuring the necessary ‘legal requirements’.
And so much so, since when political discretion affects the actual enjoyment of conventional rights, there is no longer ‘only a question of policy, but also a question of law affecting the interpretation and application of the Convention’ (§ 450).
The failure to censure the balancing act carried out by the Government by means of an inter-ministerial decree led the Syracuse Magistrate's Court to disapply that political-administrative act, refusing to grant authorisation.
In turn, the Government then activated the ‘emergency brake’ by appealing to the Court of Rome, which, moreover, once again raised a question of constitutionality on jurisdictional grounds, thus hinting at lengthy proceedings that - just as happened in the Ilva case - could compromise environmental balances without, however, adequately protecting the quality of life and health of citizen-workers.
The major perplexities raised by the first pronouncement of the Consulta on the new axiological value of Articles 9 and 41 of the Constitution thus concern:
I) the risk of excessively limiting the operational possibilities of the judicial bodies, reducing them to mere enforcers of the will of the political majority; II) disregarding the pronouncements of the Edu Court and the CJEU on the inadequacy of the procedure for issuing the AIA, which the Constitutional Court once again considered a parameter of legitimacy of the balancing carried out by the legislature government; III) consequently, continue to separate environmental protection and health protection, which are defined as differentiated interests despite the interpretative virtues disclosed by the One Health principle and the same arguments of the CJEU in the Ilva case, aimed at incorporating the assessment of health damage within those of environmental damage IV) reducing the new Fundamental Principle of environmental protection to a value, thereby de facto downsizing the normativity inscribed in the amendment to the Fundamental Principles of the Republic and relaunching a value-based perspective that, in the end, substantially ends up legitimising the ever-prevalence of economic-productive interests.
The implementation of the Fundamental Principle of environmental protection is, therefore, the primary duty of all the organs that make up the Republic, understood not only as a State-order (pursuant to Article 114 of the Constitution) but in the multiplicity of subjects that interpret the Constitution and guarantee its concrete application in the multiplicity of ‘cases’ that constantly question the effectiveness and validity of the rules that govern the republican ‘environment’.