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Striking the Right(s) Balance: Conflicts between Human Rights and Freedom to Conduct a Business in the ILVA Case in Italy
Published online by Cambridge University Press: 20 June 2019
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Footnotes
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Maddalena Neglia, Ph.D, Head of Globalisation and Human Rights Desk at International Federation for Human Rights (FIDH). I thank the editor and reviewers, in particular Dr Carlo Maria Colombo and Sacha Feierabend for their helpful comments on a draft of this text. As ever, responsibility for the views presented rests solely with the author and does not necessarily reflect the official opinion of FIDH.
References
1 For an analysis in English of the history and impact of ILVA, see: European Parliament, ‘Fact Finding Mission to Taranto Report’ (July 2017), http://www.europarl.europa.eu/cmsdata/123280/Background%20Document%20PE571.403EN.pdf (accessed 20 August 2018). FIDH, Unione Forense per i Diritti Umani, Peacelink and HRIC, ‘The environmental disaster and human rights violations of the ILVA steel plant in Italy’ (April 2018), https://www.fidh.org/en/issues/globalisation-human-rights/business-and-human-rights/the-environmental-disaster-of-the-ilva-steel-plant-has-also-violated (accessed 25 July 2018).
2 Italian Constitutional Court, Decision no. 58/2018, 23 March 2018.
3 Ministerial Decree of 21 January 2015.
4 In particular, the Ministry of Economic Development, run by the leader of the Five Star Movement, Luigi Di Maio.
5 On 5 June 2017, the Italian Ministry of Economic Development officially assigned the plant to AM Investco Italy, a joint venture formed by Arcelor Mittal Italy Holding (51 per cent), Arcelor Mittal SA (31 per cent) and Maecegaglia Carbon Steel Spa (15 per cent), Ministero dello Sviluppo Economico, ‘Firmato il Decreto di Aggiudicazione del Complesso Industriale del Gruppo Ilva ad Am Investco Italy’ (5 June 2017), http://www.sviluppoeconomico.gov.it/index.php/it/194-comunicati-stampa/2036649-calenda-firma-il-decreto-di-aggiudicazione-del-complesso-industriale-del-gruppo-ilva-ad-am-investco-italy (accessed 27 August 2018).
6 See Ansa: ‘Might Revoke ILVA Tender Says Di Maio’ (23 August 2018), http://www.ansa.it/english/news/2018/08/23/might-revoke-ilva-tender-says-di-maio_1d25642f-5cac-4dea-8e3d-8d15c9847b16.html (accessed 15 August 2018). This was despite that the closure of the plant was one of the strongest electoral promises of the Five Star Movement: Di Francesco Nevoli, ‘La Proposta del MoVimento 5 Stelle Taranto è: Chiusura Degli Impianti Inquinanti, Reimpiego dei Lavoratori per la Decontaminazione del Territorio e Riconversione Economica. Perché l’Accordo di Programma (art. 34 T.U.E.L.)?’ (15 July 2017), https://www.movimento5stelle.it/listeciviche/liste/taranto/2017/07/post.html (accessed 20 December 2018).
7 Arcelor Mittal, ‘ArcelorMittal Completes Transaction to Acquire Ilva S.p.A. and Launches ArcelorMittal Italia’ (1 November 2018), https://corporate.arcelormittal.com/news-and-media/press-releases/2018/nov/01-11-2018a (accessed 28 December 2018).
8 Court of Taranto, Examining Judge Office, Preventive Seizure Decree, 22 May 2013, following appeal R.G.N.R. 938/2010.
9 Ibid, 3.
10 Ibid.
11 According to the chemical report supporting the judicial decision, ILVA emits substances that are harmful to the health of Taranto’s workers and inhabitants: ‘In 2010, ILVA emitted over 4,000 tons of dust, 11,000 tons of nitrogen dioxide and 11,300 tons of sulphur dioxide, 338.5 kilos of IPA, 52 grams of benzopyrene, 14.9 grams of benzo dioxins and PCDD/F. These substances are both inhaled by people in areas around ILVA and absorbed through contaminated food’. M. Sanna, R. Monegazzi, N. Santilli and R. Felici, ‘Conclusioni Perizia Chimica ILVA’ (2012), http://www.epiprev.it/materiali/2012/Taranto/Concl-perizia-chimica.pdf (accessed 20 August 2018). At the same time, the epidemiological study supporting the decision highlights mortality figures between 2004 and 2010: ‘174 deaths were caused by ILVA, 83 of which were due to the exceeding of maximum environmental dust levels (PM10). In surrounding areas, this figure reached 91’. The report also states that there is ‘strong scientific evidence concerning the link between the plant’s emissions and the rise of heart and respiratory diseases, cancer and leukaemia among inhabitants’. Italian National Institute of Health, S.E.N.T.I.E.R.I. (National Epidemiological Study of Territories and Settlements Exposed to Pollution Risks), ‘Assessment of epidemiological evidence’ (2010), http://www.epiprev.it/pubblicazione/epidemiol-prev-2010-34-5-6-suppl-3 (accessed 25 August 2018).
12 In Italian law, the government can issue urgent regulations without passing through Parliament when certain conditions like necessity and urgency are met (Constitution of Italy 1950, art 77). Such regulations are called Decreti legge (law-decrees) and are immediately effective as a law, but need to be ratified by the Parliament within 60 days, otherwise they expire. In this case, all the decrees have been subsequently ratified by the Parliament and became law. However, as this is a form of ‘emergency’ legislation, it should not be used to tackle systematic problems as warned several times by the Constitutional Court (most recently in the decision no. 220/2013). It is indeed up to the Constitutional Court to declare illegitimate a law that ratifies a law decree. With the present decision the Court has declared illegitimate one of these law-decrees (but the other nine are still valid) and has pointed out the irregularities of the legislative procedure. However, nothing technically prevents the government to keep issuing further law-decrees on this issue if they contain different elements.
13 Law decree no. 207/2012 of 3 December 2012 transformed in law with law no. 231/2012.
14 Italian Constitutional Court, Decision no. 85/2013, of 9 May 2013, para 104.
15 Law decrees no. 136/2013 of 10 December 2013; no. 1/2015 of 5 January 2015; no. 92/2015 of 4 July 2015; no. 98/2016 of 9 June 2016.
16 CIDU, Italian National Action Plan (1 December 2016), 5 and 17, https://cidu.esteri.it/resource/2016/12/49117_f_NAPBHRENGFINALEDEC152017.pdf (accessed 20 December 2018).
17 ECCJ, ‘A Critical Assessment of National Action Plans on Business and Human Rights’ (2017 update), available at: http://corporatejustice.org/news/2245-a-critical-assessment-of-national-action-plans-on-business-and-human-rights-2017-update (accessed 7 January 2019).
18 Constitution of Italy, 1950, Articles 2, 3, 4 and 32.
19 Despite this decision of the Constitutional Court, the plant is still able to operate due to other existent provisions that have not been challenged.
20 Marta Cartabia, ‘I principi di ragionevolezza e proporzionalità nella giurisprudenza costituzionale italiana’, Conferenza trilaterale delle Corte costituzionali italiana, portoghese e spagnola (Rome 2013), https://www.cortecostituzionale.it/documenti/convegni_seminari/RI_Cartabia_Roma2013.pdf (accessed 27 December 2018). For a general reference, see Aharon Barak, Proportionality (Cambridge, Cambridge University Press, 2012), 175–210.
21 Note 2, no. 5, 3.3.
22 European Court of Human Rights, Cordella et al v Italy (January 2019), 174.
23 Italian Constitutional Court, decision no. 85/2013, 9.
24 Ibid.
25 Constitution of Italy, 1950, Article 41. This article affirms that ‘Private economic enterprise is free. It may not be carried out against the common good or in such a manner that could damage safety, liberty and human dignity. The law shall provide for appropriate programmes and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes’.
26 Prosser, Tony, The Economic Constitution (Oxford: Oxford University Press, 2014), 7CrossRefGoogle Scholar; Cassese, Sabino, La Nuova Costituzione Economica (Bari: Editori Laterza, 2019), 5th edn.Google Scholar
27 Italian Constitutional Court, decision no. 405/1999 of 25 October 1999 and decision no. 399/1996 of 11 December 1996.
28 Conseil Constitutionnel, decision no. 2017-750 DC of 23 March 2017, 15 and 16.
29 See, for example, French law no. 2017-399 of 27 March 2017 instituting a duty of vigilance obligation on large French companies, the UK Modern Slavery Act 2015, 30 March 2015, and in general the wide debate on mandatory due diligence (e.g., European Coalition for Corporate Justice, www.corporatejustice.org) and the works of the Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights, A/HRC/RES/26/9 and subsequent academic debate, e.g., Cassel, Doug, ‘The Third Session of the UN Intergovernmental Working Group on a Business and Human Rights Treaty’ (2018) 3:2Business and Human Rights JournalCrossRefGoogle Scholar and Awori, Sanyu, Anumo, Felogene, Montes, Denisse Cordova and Hughes, Layla, ‘A Feminist Approach to the Binding Instrument on Transnational Corporations and Other Business Enterprises’ (2018) 3:2Business and Human Rights Journal.CrossRefGoogle Scholar
30 On the application of the principle of proportionality to EU contract law see, for example, Caroline Cauffman, ‘The Principle Of Proportionality And European Contract Law’, Maastricht European Private Law Institute Working Paper, 2013/5, https://www.researchgate.net/publication/254950366_The_Principle_of_Proportionality_and_European_Contract_Law (accessed 14 February 2019).
31 See, for example, the recent debate held in France around the report: Nicole Notat and Jean-Dominique Senard, Jean-Baptiste Barefty, ‘L’entreprise, objet d’intérêt collectif [the company, object of collective interest]’ (2018), http://www.ladocumentationfrancaise.fr/rapports-publics/184000133/index.shtml (accessed 23 August 2018). The report recommends that the French Civil Code be modified by inserting a specific provision stating that ‘the company needs to be managed according to its own objective, that includes societal and environmental challenges’, ibid, 6.