MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-22

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-22 Cordella and Others v. Italy (Application No. 54414/13) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1121, DH-DD(2023)954, DH-DD(2023)36, DH-DD(2024)1219, CM/Del/Dec(2022)1436/H46-11

 

Application	Case	Judgment of	Final on	Indicator for the classification
54414/13+	CORDELLA AND OTHERS	24/01/2019	24/06/2019	Complex problem
37277/16	A.A. AND OTHERS	05/05/2022	05/05/2022
4642/17	ARDIMENTO AND OTHERS	05/05/2022	05/05/2022
48820/19	BRIGANTI AND OTHERS	05/05/2022	05/05/2022
45242/17	PERELLI AND OTHERS	05/05/2022	05/05/2022

Case description

This group of cases concerns the national authorities’ failure to take the necessary measures to ensure the protection of the applicants, local residents, from the environmental pollution emitted by a large steelwork in Taranto (ILVA), causing a serious risks to health, and the lack of effective remedies^[1] enabling them to obtain measures that would secure the depollution of the areas concerned.

In addition to failing to ensure the depollution, the government repeatedly intervened, through special legislative decrees, and ensured the steelworks’ continued operation, despite domestic court decisions finding serious risks to human health and the environment (violations of Articles 8 and 13). In the case of Cordella and Others, the Court criticised moreover the criminal immunity enjoyed at the time by the persons responsible for ensuring compliance with environmental requirements, namely the compulsory administrator and the future buyer of the company (§§ 124 and 169).

The Court underlined that it would be for the Committee of Ministers to indicate to the respondent State the measures necessary for the execution of the judgment. However, it gave a specific indication under Article 46 of the Convention that the authorities should implement as rapidly as possible the “environmental plan” adopted by the Ministry of the Environment in 2014, setting out the measures required to secure environmental and health protection (§§ 181-182).

Status of execution

The authorities provided information on 2 January 2023 (DH-DD(2023)36), 8 August 2023
(DH-DD(2023)954) and 3 October 2024 (DH-DD(2024)1121) and additional information on the payment of the just satisfaction on 22 October 2024 (DH-DD(2024)1219).

The information provided and that available in the public domain can be summarised as follows:

Individual measures

-       Payment of the just satisfaction

At its examination of the Cordella and Others case at its 1436^th meeting (June 2022) (DH), the Committee noted that the persisting delay in the payment of the sums awarded for costs and expenses appeared due to the request of the applicants’ lawyers to receive this amount directly and encouraged the authorities to keep it informed of the conclusion of this process.

Since then, four new judgments have been added to this group. The Committee received communications from the representatives of some of the applicants on 21 February 2023 (DH-DD(2023)231), 3 March 2023 (DH-DD(2023)306) and 24 April 2024 (DH-DD(2024)473).

In the case Ardimento and Others, the applicants’ representative requested the direct payment of the sums awarded by the Court for costs and expenses (5 000 EUR jointly to 39 applicants).[2] To this end, he indicated to have provided the authorities with declarations authorising the direct payment signed by 37 applicants and copy of their identification documents. The authorities requested the authentication of these signatures by a notary or other public officials.[3]  

-       Other individual measures

At its last examination of this case, in June 2022 (1436^th meeting (DH)), the Committee recalled that the additional individual measures, involving the securing of a safe environment for the applicants still living in proximity to the steelworks, are closely linked to the general measures.

General measures

1)     Previous examination by the Committee of Ministers

At its examination of the Cordella and Others case in June 2022 (1436^th meeting) (DH), the Committee noted with satisfaction the information regarding the progress achieved in 2021 in the implementation of the environmental plan adopted by the government in 2014 and invited the authorities to secure the rapid completion of the remaining works and to provide detailed updated information.

The Committee further noted with interest the information showing a reduction of the environmental impact of the plant and the substantial compliance of its emissions levels for the past four years with the standards set out in national law. However, it noted with concern that according to the assessment of the Regional Environmental Agency, the functioning of the plant at the authorised level of production could still create a risk to public health and that compliance with the national legal thresholds of air pollution may not exclude this. It therefore invited the authorities to address these concerns with a comprehensive expert assessment whether, following the work carried out and foreseen under the environmental plan, the operation of the steel plant constitutes a threat to the health of local residents.

As regards the issue of an effective remedy to allow individuals to obtain preventive and remedial orders in respect of polluting industrial activity, the Committee noted with interest the information provided by the authorities that it is possible for judges to make such orders in the context of civil proceedings. It invited them to provide comprehensive information on the scope of this remedy and ascertain whether case-law developments can demonstrate that this or any other remedy can address the violation of Article 13 found in this judgment. In the absence of such developments, it called upon the authorities rapidly to take measures to fill this gap, for example by granting direct access to administrative courts to individuals seeking the adoption of depolluting measures.

2)    Implementation of the environmental plan and current impact of the operation of the steel plant on human health and the environment

The authorities highlighted that in its report of September 2023, the Italian National Institute for Environmental Protection and Research (ISPRA) indicated that all the works envisaged by the environmental plan aimed at reducing the atmospheric emissions of the plant had been completed. ISPRA continues monitoring the completion of certain residual environmental interventions concerning notably rainwater management and asbestos removal and the implementation of the interim measures adopted in this respect. Moreover, the authorities emphasised that ISPRA estimated that the full implementation of the environment plan should lead to a 40% reduction of the pollutant dust produced by the plant at a level of production of 6 million tons of steel per year.  

On 26 June 2024, the Court of Justice of the European Union (the CJEU) issued a judgment in which it held  that the relevant EU legislative framework^[4] required that any permit to operate the ex-ILVA[5] steelworks had to be  based on a comprehensive health and environmental risk assessment as a conditional requirement.^[6] This assessment must also include any new and potentially harmful emissions that were not initially addressed when the permit was granted or previously renewed. The CJEU further held that if the activity of the steelworks presented serious and significant risks to public health and the environment its operation had to be suspended. 

The authorities indicated that the process of renewal of the permit to operate the steelworks was launched in March 2023 and is ongoing. In this connection, they highlighted that a decision will be made also in the light of the assessment of the impact of the functioning of the plant on the environment and human health as requested by the above-mentioned judgment of the CJEU. In this context, they indicated that a study on the health impact of the steel works, carried out by the operator of the plant and submitted on 13 June 2024, is currently under assessment by the Ministry of Health. 

The authorities acknowledged that the health situation of the population of Taranto and neighbouring municipalities is complex[7] as confirmed by recent studies[8] and reports[9] highlighting the persistence of health concerns in the Taranto area related to mortality, hospitalisations, cancer incidence, and congenital malformations.

3)    Lack of effective remedies

The authorities provided information on existing domestic civil and administrative remedies which they consider as providing effective solutions to address the violation of Article 13 established by these judgements (for details see DH-DD(2023)36).

Following legislative amendments which entered into force in 2022, the Italian Constitution protects the environment, biodiversity, and ecosystems, recognising their importance for present and future generations (Article 9) and explicitly states that economic activities must not compromise human health or the environment (Article 41). 

In this context, the authorities indicated that when the right to health - a right of constitutional rank - is jeopardised by environmental pollution, including from industrial activities, individuals have direct access to both civil and administrative courts to obtain full compensation for   material and non-pecuniary damages as well as specific injunctive or restorative measures.

In support of their position the authorities relied on a judicial decision of the civil court of Grosseto, issued in 2019, which ordered the cessation of the activity of a waste disposal plant in the context of proceedings brought by local residents who had complained about the adverse effects of its functioning on their health.[10]

In February 2023, the Plenary of the Court of Cassation[11] emphasised that individuals may initiate proceedings before civil courts seeking compensation for damages to their health due to the public administration’s failure to implement necessary environmental protection measures.  

In its Rule 9 submission of 24 October 2024, the NGO StraLi for Strategic Litigationcontends that a general remedy should be introduced to address the violation of Article 13. In its view, none of the remedies indicated by the authorities can guarantee redress in case of environmental damage. Specifically, as concerns the possibility to bring administrative proceedings, the NGO highlights that strict deadlines apply which are unsuitable to environmental cases in which damage can arise after a long time and, moreover, these actions cannot be brought against private individuals or companies (see DH-DD(2024)1284).

4)    Criminal immunity granted to those responsible for the steelworks’ continued operation

Law decree No. 2/2023 of 5 January 2023 established an immunity from criminal prosecution for whoever acts to implement legal provisions authorising the continuation of the activity of an industrial plant of national strategic interest such as the ex-ILVA steelworks, insofar as their actions are in accordance with those provisions.^[12]

The representative of some of the applicants, contends that the 2023 legislative provisions can also limit the effect of courts decisions to suspend the activity of the steelworks or seize part of it, insofar as it envisages that in such cases the judge must ensure the continuity of the operation of the plant entrusting it to an independent third party (for more details see DH-DD(2023)306).[13]

Analysis of the Secretariat

Individual measures:

In Ardimento and Others, the authorities could be invited to pay to the representative of the applicants the sum awarded by the Court for costs and expenses in respect of those applicants who provided to this end a signed agreement and copy of a valid identification document. In the circumstances referred to by the authorities and the applicants’ representative, a public official authentication of the applicants’ signatures appears excessive (in similar circumstances, the authorities do not appear to have requested such authentication in Cordella and Others case).[14] The authorities should keep the Committee informed about the conclusion of this process and the payment of the just satisfaction in Cordella and Others.

The case of A.A. and Others, in which no award of just satisfaction was made by the Court, concerns the same violations with respect to the operation of the same plant as in the remaining cases and therefore require the same measures to remedy the shortcomings identified by the Court. The Committee could decide to close the supervision of this case, without prejudice to its continuing examination of the general measures concerning the steelworks in question within the context of the remaining cases of this group.

General measures:

1)     As regards the implementation of the environmental plan and the current impact of the operation of the plant on human health and the environment

The information provided indicates that in September 2023 almost all the works envisaged by the environmental plan had been carried out. Significant measures were implemented to reduce air pollution emissions, including the installation of advanced filtration systems and other technologies designed to lower particulate matter and toxic emissions. This is a positive development which can be noted with satisfaction as it confirmed the determination of the authorities in addressing a crucial issue in the execution of these judgments. 

However, some relevant works were still ongoing (e.g. removal of the asbestos) even after the expiration of the deadline established for the implementation of the plan (23 August 2023).^[15] The authorities could therefore be invited to rapidly complete these works and provide updated information on the progress achieved in view of a comprehensive assessment of this issue.

At this stage of the execution process and in line with the latest decisions in this case, it is crucial for the authorities to demonstrate that following the interventions carried out and those still ongoing to reduce the emissions produced by the steelworks, its functioning no longer poses risks to human health. Against this background, it is noted with regret that the authorities have not provided the comprehensive expert assessment requested by the Committee of Ministers to evaluate this issue. This being said, the process of renewal of the authorisation to operate the ex-ILVA steelworks is ongoing and provides an appropriate setting for carrying out the assessment requested by the Committee. It is also noted, in this context, that in line with the Court’s judgments and the Committee’s previous decisions, the CJEU has recently underlined that the renewal of the permit to operate the ex-ILVA steelworks must be conditional to the ascertained compatibility of its functioning with the protection of human health, or else the operation of the plant must be suspended. ^[16]

It is therefore positive that the authorities indicated that this assessment will be central to their decision on whether the permit to operate the plant can be renewed, especially since it appears that under the special regulations applicable to the ex-ILVA steelworks, such an assessment does not form an integral part of the procedures for granting or reconsidering the permit for its operation. In respect of this latter issue, it is important that the authorities indicate how they will ensure that the same approach is followed for future renewals of the permit to operate, bearing in mind that such permits have limited duration.    

In the light of the above, it remains crucial that the authorities carry out an independent, comprehensive and updated study of the impact of the current functioning of the ex-ILVA steelworks on human health and the environment. Bearing in mind also the conclusion of the CJEU, this study, which should involve the participation of the health sector, should consider all polluting harmful substances emitted from the steelworks in every medium (e.g. air, water, ground), including those not assessed during the initial authorisation procedure. In this context it is highlighted that the study carried out by the operator of the plant and submitted to the Ministry of Health in June 2024, referred to by the authorities, lack the required independence and thus cannot per se replace an independent assessment of the current impact of the plant.

Considering that several applicants in the most recent cases of this group were employees of the ex-ILVA steelworks when the Court issued these judgments, it is important that the study also include an assessment of the risks that the current functioning of the plant pose for the health of its employees.

2)     As regards the lack of effective remedies

It is recalled that in these cases, the Court found a violation of Article 13 as the authorities did not provide any judicial decisions showing the existence in the Italian legal system of an effective remedy allowing the applicants to obtain the adoption of measures to clean up the areas affected by the harmful emissions from the steel plant.

The authorities argued that that the existing civil and administrative judicial avenues are sufficient and effective to achieve this result. They should therefore demonstrate their effectiveness through judicial decisions reflecting the adoption of relevant measures by domestic courts.

The information provided by the authorities confirms that, as noted by the Court in these cases, the current legislative framework does not provide for direct access by individuals to the administrative courts to seek the adoption of depollution measures in cases of environmental damage.^[17]

However, the authorities have shown that when an alleged breach of the constitutional right to health is at stake, also as a result of pollution from industrial activities, individuals can initiate proceedings before civil courts to seek protection. In this context, developments in the case-law of the Court of Cassation have established that environmental health concerns related to pollution are primarily a matter of fundamental rights, thus grounding jurisdiction in the ordinary court system.

However, the scope and the nature of the measures that these courts can adopt in response to such actions remain uncertain. The first-instance decision of the civil court of Grosseto referred to by the authorities, is interesting in so far as it indicates that civil proceedings may lead to the cessation or regulation of polluting industrial activities which harm human health. However, this decision alone, which is not final and does not reflect the adoption of measures to depollute the areas concerned, does not allow to conclude that civil proceedings are effective to address the violation of Article 13 in these cases.

It is also observed that proceedings concerning the impact of the polluting emissions generated by ex-ILVA steelworks on the plaintiffs’ health are currently pending before the Milan District Court.^[18] These proceedings are of interest as they appear to confirm the jurisdiction of civil courts to hear relevant complaints and could become representative, once finalised, of the measures that these courts can adopt in response to them.

The authorities should therefore provide information on the developments in both sets of proceedings described above, combined with additional examples of judicial decisions reflecting the adoption of relevant measures in the context of civil proceedings or any other existing remedy they consider effective.

It is finally highlighted that in the absence of clear and decisive case-law reflecting the effectiveness of these existing remedies, the authorities should address without further delay the violation of Article 13, including through the adoption of appropriate legislative measures (e.g. to grant direct access to individuals to administrative jurisdiction to seek the adoption of decontamination measures).

3)     As regards the criminal immunity granted to those responsible for the steelworks’ continued operation

To address this issue, on 30 April 2019, the authorities adopted Law Decree No. 34 which abolished the criminal and administrative immunity for those responsible for the implementation of the environmental plan and the Committee noted with satisfaction this development.^[19]

It is therefore a matter of concern that legislation adopted in 2023 established a criminal immunity for, in essence, those in charge of managing the plant. This shield from prosecution appears to be even more far-reaching than the one criticised by the Court in Cordella and Others in so far as it does not envisage a time-limit, covers a wide range of activities performed to ensure the continuation of the functioning of the plant and benefit a broad category of subjects.

Against this background, the Committee may wish to call on the authorities to provide their assessment of this reform and ensure compliance with the Court’s findings on this issue. They could also be invited to address the concerns of the representative of some of the applicants with regard to this legislation.

Financing assured: YES