Jacques Bellezit, University of Strasbourg (France)
Photo credit: mafe de baggis, via Wikimedia Commons
To understand the historical development of European construction, one must acknowledge the European Coal and Steel Community (ECSC). Established following the Schumann Declaration on May 9th, 1950, the ECSC marked the first attempt to create a common market for coal and steel, deemed strategic materials. This initiative aimed to not only bolster post-war reconstruction in Europe but also to curb rearmament efforts on both sides of the Rhine during the nascent Cold War.
While the ECSC is now a historical entity and the use of coal is (at least theoretically) intended to diminish under environmental agreements like the Paris Agreement, steel production continues to be a pertinent issue within EU law, particularly under Directive 2010/75/EU. This directive, issued by the European Parliament and the Council on November 24, 2010, addresses industrial emissions through integrated pollution prevention and control (the IED).
A case in point is the Italian Ilva SpA factory, which resulted in the CJEU Grand Chamber judgment of June 25, 2024, in case C‑626/22, C.Z. and Others v Ilva SpA in Amministrazione Straordinaria.
I) Case Background and Facts
Located in Taranto, Italy, the Ilva SpA steel producing plant (ISSPP) is a major steel production facility within the region. As noted by Advocate General Kokott in her Opinion, the ISSP was the largest industrial steelworks complex in Europe as of 2019, encompassing approximately 1,500 hectares and employing around 11,000 workers. It’s also important to highlight that the Italian State maintained a nearly 40% ownership stake in Ilva and exerted considerable influence over its operations.
Residents and neighbors of Taranto and neighboring areas filed a lawsuit with the Milan District Court against the ISSPP, alleging violations of their rights to health, a peaceful living environment, and a clean climate due to the plant’s activities.
Although the CJEU had not previously addressed the ISSPP prior to this case, the facility was well-known to the European Court of Human Rights (ECHR) in Strasbourg. The ECHR had previously found Italy in violation of Articles 8 (right to private life) and 13 (right to an effective remedy) of the European Convention of Human Rights in relation to its management of the ISSPP.
These condemnations stemmed from cases brought by:
161 individuals residing near the facility (Cordella and others v Italy, ECHR 01/24/2019)
39 current and former employees (Ardimento and others v Italy, ECHR 5/5/2022)
3 former employees (Briganti and others v Italy, ECHR 5/5/2022)
The applicants in these cases had experienced health issues, including cancer, linked to exposure to toxic sulfur dioxide (SO²) and PM10 particulate matter emissions from the ISSPP. These emissions had been consistently documented in numerous scientific reports from both national and international experts between 1997 and 2017.
IED Provisions and the Ilva Factory
Italy transposed the IED provisions into national law through Legislative Decree No 152 on Environmental Rules of April 3, 2006.
Following a 2012 order by the Taranto District Court to seize equipment in the ISSPP’s “hot zone” and all related materials, effectively halting production, the Italian authorities implemented a series of regulations between 2012 and 2016. This created a bespoke legal framework intended to allow the ISSPP to continue its operations:
The ISSP was categorized as a “plant or facility of strategic national importance.” This designation granted the Minister for the Environment and the Protection of the Land and Sea the authority to extend the existing operating permit for an additional 36 months while the Integrated Environmental Permit was under review.
Government-appointed “provisional administrators” were put in charge of overseeing the facility.
Deadlines for the implementation of environmental remediation plans were repeatedly postponed.
In 2016, during the process of transferring ISSPP shares to ArcelorMittal, a specific “Decree of the President of the Council of Ministers” replaced the standard Environmental Impact Assessment (EIA) process. This decree was intended to serve as the new Integrated Environmental Permit.
II) CJEU Proceedings and Preliminary Ruling
In the present CJEU case, residents and neighbors of the ISSPP filed a class-action lawsuit with the Milan District Court. The lawsuit sought an injunction against the facility’s operations, or at least portions thereof, to safeguard their rights to health, a peaceful life, and a healthy climate. They argued that these rights had been significantly and negatively impacted by the steelworks’ operations over several decades.
Following a preliminary admissibility assessment, which is outside the scope of this analysis, the CJEU received a request for a preliminary ruling on two key questions:
Does Directive 2010/75, interpreted in conjunction with Article 191 TFEU, obligate Member States to mandate a prior evaluation of the potential effects of an industrial facility’s activities on both the environment and human health? Should this evaluation be a mandatory component of the permit granting or renewal process for facilities covered under this directive?
Does Directive 2010/75 require the responsible authority to factor in all scientifically recognized harmful pollutants that an installation might emit when granting or reviewing an operating permit? Should this consideration extend beyond just those pollutants that are deemed foreseeable based on the nature of the industrial activity, encompassing pollutants identified after the initial authorization of the facility?
CJEU Preliminary Rulings
The CJEU Grand Chamber ruled that Directive 2010/75, when interpreted in light of Article 191 TFEU and Articles 35 and 37 of the Charter of Fundamental Rights of the European Union, mandates the following:
Member States are obligated to ensure that a preliminary assessment of the potential environmental and health impacts of an installation’s operations is a fundamental part of the permit granting or renewal process under this directive.
When issuing or reviewing operating permits for facilities covered by the directive, competent authorities must consider all scientifically recognized harmful pollutants that could be released from the installation. This includes not only pollutants anticipated based on the nature of the industrial activity but also those identified after the initial authorization was granted.
The directive prohibits national legislation that repeatedly extends the timeline for operators to comply with environmental and health protection measures outlined in their permits, especially when significant environmental and health risks have been identified. In cases where an installation’s operation poses such risks, the CJEU ruled that the facility’s operations must be suspended.
III) Analysis
While the Ilva Grand Chamber judgment specifically criticizes legal regimes like the one crafted for the Ilva steelworks, it also effectively broadens the scope of the IED.
The Luxembourg Court not only asserts that environmental impact assessments are an “integral part” of the permit process for facilities covered by the IED, but it also expands the scope of these assessments. They now must encompass “polluting substances which are the subject of emissions scientifically recognized as harmful which are liable to be emitted from the installation concerned,” going beyond merely foreseeable pollutants.
This expanded scope is justified by the need to protect human health and the environment, aligning with Articles 35 and 37 of the Charter of Fundamental Rights of the European Union. However, this broader mandate could place a heavier burden on national EIA authorities.
While the dangers of certain pollutants can be determined by referring to relevant international conventions or EU law (e.g., the 2001 Stockholm Convention on Persistent Organic Pollutants, implemented in the EU through Regulation (EU) 2019/1021), establishing the presence of such pollutants at a particular industrial site and their precise impact on human health can be a complex scientific and legal undertaking.
Requiring EIA authorities to assess all substances “which are liable to be emitted” significantly increases the complexity and volume of EIA documentation.
However, treaties like the Aarhus Convention on access to information, public participation in decision‐making, and access to justice in environmental matters stipulate that “environmental information shall be available to the public […] transparent and […] effectively accessible.” Reconciling this right to environmental information with the increasingly complex nature of these assessments presents a challenge, as even legal professionals and judges “cannot, on their own, assess and weigh complex scientific evidence” in environmental cases (see Point 4 of the Joint Dissenting Opinion of Judges Al-Khasawneh and Simma in the 2010 ICJ “Pulp Mills on the River Uruguay” judgment).
By creating a tailored legal framework for the Ilva factory to preserve jobs in an economically disadvantaged area, Italian authorities contributed to this intricate legal, political, and scientific situation.
How can the average citizen, the proverbial “man on the Clapham omnibus,” be expected to navigate and comprehend such complex information in a way that is both “transparent” and “effectively accessible”? This challenge is even greater for individuals directly affected by pollution-related health issues.
Described as an “ecological monster” and an “ecological bomb” by a French environmental publication, the “Ilva” case has been addressed twice by the Strasbourg Court and now by the CJEU Grand Chamber.
Will these rulings be sufficient to prevent future pollution? It’s unlikely.
Will they provide adequate redress for those harmed by the existing pollution? Definitely not.
However, the CJEU’s “Ilva” judgment sets a precedent for how the provisions of the IED must be reconciled with the EU Charter of Fundamental Rights.
This need for harmonization between human rights law and environmental law was previously acknowledged in the ECHR Grand Chamber judgment in Klima v Switzerland concerning climate change. Given the weight the CJEU places on rulings from its Strasbourg counterpart, it can no longer disregard this need for alignment.
The Ilva Judgment: A Step Toward Greater Strasbourg-Luxembourg Dialogue?
Since the 1970 CJEU judgment in Nold, the court has acknowledged 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,” particularly referencing the European Convention of Human Rights.
While the “principle of equivalence” in human rights protection between the ECHR and EU legal systems was recognized by Strasbourg judges in cases like Bosphorus Airways v Ireland and Avotins v Latvia, the CJEU has historically been hesitant to follow the Strasbourg court’s lead, aiming to preserve its own authority on matters of EU law interpretation (as seen in the 2014 CJEU Full Court Opinion 2/13).
However, in the Ilva case, the Luxembourg Court notably considers the Strasbourg Court’s prior rulings on the matter.
Could this consideration be a stepping stone toward eventual EU membership in the European Convention of Human Rights? It’s possible.
However, it’s crucial to remember that this path is no longer a straightforward “yellow brick road.” It’s now marred by the stain of the Ilva steelworks’ pollution and the sorrow of those who have suffered as a result.