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Italy: Constitutional Court Annuls Legislation Permitting Continuation of Activities by an Industrial Facility of National Strategic Interest

(Apr. 23, 2018) On February 7, 2018, the Italian Constitutional Court declared the unconstitutionality of several legal provisions that allowed the continuation of activities at industrial facilities considered of national strategic interest in violation of constitutionally protected workers’ rights. (Decision No. 58 of March 23, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE] [G.U.] Mar. 28, 2018, G.U. website (in Italian).)

Background of the Case

In 2015 the Public Prosecutor of the city of Taranto ordered the urgent preventive seizure of the blast furnace and industrial plant of a company because it had allegedly violated several legal provisions requiring it to adopt measures to protect its workers from incandescent materials emanating from the furnace that killed a worker. (Decision, considerations of fact, ¶ 1.2.) The defendant company challenged the Public Prosecutor’s seizure order before the Ordinary Tribunal of Taranto.  That court reviewed the dispute under Decree-Law 92 of 2015 which, among others, permitted judicial seizure orders regarding alleged crimes against worker safety in nationally strategic industries, provided for the suspension of company activity for a maximum of 12 months, and mandated that the company adopt a plan for the protection of safety at workplaces referred to in the seizure order within 30 days of its adoption. (Decree-Law No. 92 of July 4, 2015, on Urgent Measures on Waste and Integrated Environmental Authorization, as well as on the Exercise of the Activity of Industrial Companies of a National Strategic Interest art. 3, ¶¶ 1–3, G.U. July 4, 2015, G.U. website (in Italian).)

Arguments on the Constitutionality of the Challenged Legislation

The defendant industry requested that the Public Prosecutor permit the continuation of its economic activities at its facilities in accordance with the requirements established in article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.3.)  The Public Prosecutor opposed the request on various grounds, and requested that the case be sent to the Italian Constitutional Court to decide on the constitutionality of article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.4.)

Ordinary Tribunal of Taranto Raises Constitutional Concerns

The Ordinary Tribunal of Taranto through a judicial decree of July 14, 2015, raised before the Italian Constitutional Court the matter of the constitutionality of article 3 of Decree-Law No. 92 of 2015 and other relevant provisions.  (G.U. Aug. 20, 2015, G.U. website (in Italian) (Decision, holding).  It argued that article 3 of Decree-Law No. 92 of 2015 potentially violated the following principles of the Italian Constitution (COSTITUZIONE DELLA REPUBBLICA ITALIANA [CONSTITUTION OF THE ITALIAN REPUBLIC], Italian Senate website; Italy’s Constitution of 1947 with Amendments Through 2012 (CONST.), Comparative Constitutions Project website):

  • The fundamental and inviolable rights of the human person (CONST. art. 2), by allowing a company to operate facilities that are dangerous to human life and safety (Decision, considerations of fact, ¶ 1.8).
  • Equality under the law (CONST. art. 3), by creating an unjustified privilege for companies of national strategic interest, which would abide by a lower safety standard than other economic operators, causing workers to be exposed to higher risks (Decision, considerations of fact, ¶ 1.9).
  • The right to health of citizens/workers (CONST. art. 32), endangering their personal safety by failing to exercise a reasonable balance with other constitutional rights (Decision, considerations of fact, ¶ 1.11).
  • Developing private economic activity without causing damage to human safety, freedom, and dignity (CONST. art. 41, ¶ 2) by permitting the operation of a dangerous facility (Decision, considerations of fact, ¶ 1.12).
  • The obligation of the Public Prosecutor to institute criminal proceedings (CONST. art. 112), in particular because the constitutional mandate requires not only the suppression of a crime but also its prevention, which, in this case, would have required the permanency of the seizure measure (Decision, considerations of fact, ¶ 1.13).

Considerations of the Constitutional Court on the Merits of the Case

The Court ruled that in the case under review, the legislature did not respect the constitutional mandate to strike a reasonable and proportional balance of all the relevant constitutional interests converging in the case. (Decision, considerations of law, ¶ 3.2.) The Court held that article 3 of Decree-Law No. 92 of 2015 violated several constitutional guarantees, among other reasons, by requiring an exclusively unilateral plan in case of judicial seizure, by failing to establish immediate and timely actions aimed at swiftly removing the danger to the safety of workers, and by allowing economic activity to continue during the period of the seizure. (Id.)

The Court concluded that article 3 had created an unusual privilege under the Constitution for certain economic activities to the detriment of important constitutionally-protected rights, in particular, with respect to workers’ safety (Decision, considerations of law, ¶ 3.3) and declared the unconstitutionality of article 3 of Decree-Law No. 92 of 2015, and related provisions (Decision, considerations of law, ¶ 4).