Aarhus Committee: Italy under scrutiny on access to environmental justice

On 16 September 2023, the Aarhus Convention Compliance Committee invited the Italian Government to submit its written observations on the communication from the public lodged by S&P on behalf of an Italian environmental association and determined to be admissible on a preliminary basis by decision of 16 June 2023.

The association is represented before the Compliance Committee by Professor Andrea Saccucci, Partner, and Cecilia De Marziis ph.d., Associate. The communication has been prepared with the assistance of the Human Rights Legal Clinic of the University of Turin under the supervision of Professor Andrea Spagnolo.

The communication raises important aspects of non-compliance with the third pillar of the Aarhus Convention concerning access to justice.

Notably, the communicant contends that Italy does not comply with its international obligations under Articles 2, 3 and 9 of the Convention because it does not have in place a clear, transparent and consistent framework for ensuring access to justice to unregistered environmental associations in review procedures under Article 9.

As is well known, the Italian legal order provides for a “dual-track system” for the attribution of legal standing to environmental associations to have access to review procedures concerning acts and omissions by private persons and public authorities in environmental matters. On the one hand, legal standing is granted ex lege to entities included in a list approved by decree of the Ministry of the Environment. On the other hand, administrative courts may grant such standing to unregistered environmental associations on a case-by-case basis, provided that they are effectively representative.

The criteria that an association must fulfil to qualify as “effectively representative” are not established by the law. In the absence of any legal directions, administrative courts are granted a wide margin of discretion in deciding whether unregistered associations may have access to justice.

The practice of the administrative courts in this respect does not fulfil any of the conditions laid down by the Committee for compliance with Article 9 of the Convention.

First, the criteria for standing are not “clearly defined” in the jurisprudence. Indeed, the conditions that unregistered environmental associations must fulfill for each of the case-law requirements to be satisfied are laid down differently from one judgment to another. Moreover, the level of scrutiny as well as the parameters applied by administrative courts to ascertain whether the conditions for legal standing are met in the concrete case are variable.

As a result, the requirements for access to review procedures in environmental matters remain ambiguous and unclear and unregistered associations are exposed to unacceptable uncertainty as to whether the conditions for standing will be deemed to be met in practice.

Second, administrative courts are inclined to adopt an overly narrow interpretation of the right of access to justice of unregistered associations, which is not compatible with Article 9 of the Convention.

Notably, administrative courts often move from the assumption that legal standing of environmental associations not included in the list established under law no. 349/1986 should be the “exception”, which runs counter the Committee’s well-settled case-law that such legal standing should instead be “presumed”. This practice is clearly inconsistent with the objective of giving the public “wide access to justice within the scope of the Convention” and qualifies as unreasonably exclusionary.

Third, the above circumstances put an excessive burden on unregistered environmental associations on account of the impossibility to predict beforehand whether they will be granted access to justice to challenge an illegitimate act. Moreover, such uncertainty and the overly restrictive practice of the administrative courts may have a significant deterrent effect on claimants seeking access to justice under the Convention.

Pursuant to para. 23 of the Annex to Decision I/7 of the Meeting of the Parties, the Government will have until 24 February 2024 to submit to the Committee any written explanations or statements clarifying the matters referred to in the communication and describing any response that may have been made in the meantime.

S&P provides legal representation in cases concerning the protection of the environment and the right of access to justice before the Aarhus Committee and other international bodies. For additional information or enquires, send an email to: studio@saccuccipartners.com.

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