The environmental protection in the EU and in Italy

In the third millennium, adequate environmental protection is essential: in fact, supranational charters and national constitutions present fundamental principles and useful rules, even if not always effectively implemented.

In the Italian legal system, now, there is not a precise definition of "environment": if, on the one hand, the Constitution does not prescribe direct protection, on the other hand, in the Constitution, thanks to an easy interpretation “It is possible to trace some articles which establish a form of indirect protection. In fact, article 9 of the Constitution states that «The Republic protects the landscape and the historical and artistic heritage of the Nation», while article 117 II paragraph of the Constitution states that «The State has exclusive legislation in the following areas: [...] protection of the environment, the ecosystem and cultural heritage».

Undoubtedly, in today’s legal-political context, opened to interaction with different systems and no longer restricted in the purely national context, it would be wrong to stop at the Italian constitutional rules without analyzing at least the rules of the Treaties at the base of the European Union - and the sources which are assimilated to them, such as the Charter of Nice, the Treaty on European Union (T.EU) and the Treaty on the Functioning of the European Union (T.F.EU).

The Union’s environmental policy is a competence shared with the Member States (art. 4 TEU) and based on several principles, listed in art.191, par.2 TFEU, including: precautionary principle and preventive action, principle of correction, Priority should be given to the source of the damage caused to the environment and to the "polluter pays" principle. These principles, among other things, take up those developed at international level and set out in the Rio Declaration (1992) on the environment and development. More specifically, the precautionary principle is a means of risk management, which has to be used when there is scientific uncertainty about a danger to the environment or health arising from a specific decision. This could be done, for example, in the event that there is no scientific evidence that a product is harmless and, to avoid risks, a decision is taken to block its sale - always in a non-discriminatory and proportionate manner; while the "polluter pays" principle, embodied in the Environmental Liability Directive, is intended to prevent or repair environmental damage. Furthermore, art. 191 TFEU also lays down specific objectives, such as the protection and improvement of the environment, the protection of human health, the prudent use of natural resources and the promotion of international environmental measures, especially against climate change. Finally, the Charter of Nice - Charter of Fundamental Rights of the Union, in art.37 states, "A high level of environmental protection and the improvement of its quality must be integrated into Union policies and guaranteed in accordance with the principle of sustainable development."

Returning to the national legal system and wanting to deepen the question, the Court of Cassation stated that «(environment is) the context of natural resources and the most significant works of man» (sent. n. 9727/1993) and that has distinguished between the environment as it results from the landscaping discipline, the environment taken into account by the standards for protection against aggressive factors (protection of soil, air, water, etc.), and again, environment as an object of urban planning and protection of the territory».

What standards guarantee environmental protection? First, the "special laws" - made specifically for the protection of a resource - that generally prescribe a pecuniary or prison sentence for violators; secondly, certain codicistic rules traceable in the Penal Code and in the Civil Code, which pursue, as their ultimate aim, the protection of human interests, and therefore only indirectly of the environmental resources available to man.

In Italy, even if in 1966 a law against atmospheric pollution was introduced (said “antismog”, n.615/1966), the first law to protect the environment is the “Merli law”, for the protection of water (n.319/1976). This legislation introduced certain provisions, which were then updated over the years, concerning discharges of all water and sewerage. The following year, another law provided that wildlife was unavailable to the State, therefore subject to State and inalienable protection. Subsequently, the law n.431/1985 (Galasso law) placed under protection some landscapes and environmental assets. Law n. 349/1986 establishes the Ministry of the Environment, and identifies three fundamental principles: the damage caused to the environment affects the whole community, for which the State (or other territorial public bodies) is obliged to impose compensation from the polluter; environmental organizations and every citizen may denounce acts which harm the environment; the construction of any public work can be allowed only after having assessed the "environmental impact", that is the compatibility of the work with the surrounding environment, analyzed with technical expertise.

Articolo a cura di: Elenio Bolognese