Comments on access to judicial review in environmental matters in Italy

On the formal side, the european law was implemented by the D. Lgs. 3 aprile 2006, n. 152, who was recently updated by the D. Lgs. n. 4/ 2008.
However, the condition of implementation in Italy of european legislation in environmental matters, has to be evaluated following the features of the italian legal order, and above all:
of the italian Consitution;
of the italian system of administrative justice.

a) Italian Constitution distinguishes the legal content and the legal effects of the different public powers involved in land management: the notion of environment protection (art. 32 and art. 117), the notion of landscape preservation (art. 9 and art. 117), and the notion of city planning (art. 42).
Briefly, we could say – following the jurisprudence ot the italian constitutional Court – that pollution law concerns the protection of water, soil and air (nature protection and health), “natural beauty” law concerns aesthetic and cultural aspects, and planning law concerns urban aspects.
This is the traditional Italian theory of the “tripartition” of environmental law.
This is a cultural model; the problem is not if it is a good model: it is (and it is in the Constitution).
These matters - and their administratives powers - are not exclusive but concurrent: it means that all operations, which could have any impact on the land, have to be regulated by so many authorisations, how many are the aspects involved.
Each of these public interests is devolved upon the competence – legislative and administrative - of differents authorities: the State for the environment, the Regions and the municipalities for city planning, and the State and the Regions for landscape.
For instance, it could be useful to examine an interesting case.
A company required to the Municipality of Riomaggiore the authorisation (permissions of build) for construct some buildings in an area of the Parco delle Cinque Terre.
The Municipality allowed the project.
An environmental protection association (World Wide Fund For Nature - W.W.F.), enquires for the acts concerning the permissions given (projects, etc.).
The Municipality disallows the inquiry of the association.
The W.W.F. brings an action for annulment of the negation of information, claiming the right to environmental information, provided by the directive 2003/4/CE, and by the Italian D. Lgs. n. 195/2005.
The defendant (Comune di Riomaggiore) considers the action not grounded, because basis of the claim is not the law on nature protection, but the law on city planning, the procedure of which does not provide for a right to any information.
Directive 2003/4/CE, concerning the information of the public in environmental matters, has been implemented into national law, D.Lgs. 19.08.2005 n. 195.
The mean point of the judgment concerns the notion of “environmental information”.
The required authorisation in Italian law does not include all legal aspects of the project of building construction, but only the aspect concerning the urban regulation, i.e. if the project is comply with the city plan.
It is necessary to build, and it is also normally sufficient, but if the area interested from the project is included in a landscape plan, it’s necessary also to have another authorisation, concerning the landscape regulation.
Moreover, if the project involve environmental matters (for instance: naturalistic importance), it’s necessary to get also the environmental impact evaluation.
The Consiglio di Stato (Sentenza 14 febbraio 2003 n. 816, Comune di Riomaggiore v. W.W.F.) considered the action not grounded, because basis of the claim is not the law on nature protection, but the law on city planning, the procedure of which does not provide for a right to any information.
From the sentence it does not appear that the area is subject to an environmental restrictions (or constraints), or to a landscape plan.
Anyway, the Italian administrative Supreme court judged that the inquiry of the association doesn’t concern the environmental matter, but the planning law.
The sentence concerning this case was issued on 14th of February 2003, the same day in which the Directive 2003/4 came into force.
Anyway, even if the sentence enforced the D. Lgs. n. 39/1997 - who was repealed from the D. Lgs. n. 195/1995 – the regulation of the notion of environmental information has not changed significantly.
The point – unchanged – is the constitutional meaning of the notion of environment, in Italian law, in order to enforce the law concerning: and if this notion is comply with European notion.
The Constitutional Court, with the decisions n. 398 and n. 399 of 1 December 2006, stated that the law regulating access to the environmental information is not included in matter “protection of environment”, being a matter itself of the most general aspect of thematic of the right of access of the public to the information (data and documents) in possession of Public Administration, concerning administrative procedures.
So, the problem remains, and concerns the implementation of Directive 2003/4.

b) In Italian system of administrative justice, the first question is the scope of the review: the right to a clean environment (or to a correct environmental policy) is an individual right?
That’s because the history of the administrative jurisdiction is in the sense of the protection of individual interests.
Some acts now go into this direction.

In Italian system of administrative justice:

b.1.) each authorisation can be appealed: the appeal has not suspensive effect, but the claimant can ask to the judge a such measure, if there is the danger of a damage grave and irreparabile, and if the appeal seems - at a summary exam - grounded;

b.2.) there is a general judicial remedy in case of omission: the claimant can ask to te administrative judge to condemn the public administration to provide, and – since 2005 – he can also to determine how the public administration has to provide;

b.3.) there is a general judicial remedy for the access to the administrative documents (since 2005, it is not demanded a representation by a lawyer), but the claimant has to demonstrate to have a specific interest to the access (art. 22, l. n. 241/1990: for this general rule, a lawyer is not needed): but when the acces is required in environmental matters, he has not tho demonstrate his interest, and for the administration is compulsory to give the documents (art. 3-sexies, D. Lgs. 152/2006, added by art. 1 D. Lgs 4/2008).

In all the cases, there are two judicial instances.

Italian system of administrative justice is founded on the protection of the “legitimate interest” (or “legal interest”, which is the interest protected by the law).
It is not a full right, but it can protect directly the public interest to a good decision, and indirectly a private or individual interest to the same decision (as an useful decision), because the individual interest is protected in conjunction the public interest to a right and lawful decision.
It means that the access to administrative justice is not assured to each citizen in respect to each administrative decision, but only to the holder of a position of interest directly linked to that decision.
The national associations of environmental protection, who are present in at least five regions, can be admitted and endorsed by the Government: only these associations can appeal the administratves decisions in environmental matter (art. 18, c. 5, l. 349/1986): also the decisions issued by municipalities, districts, and regions (art. 17, c. 46, l. 127/1997).
Authorisations concerning landscape protection can be appealed by these associations, and by “any other subject private or public having an interest in that” (art. 146, c. 13, d. lgs. 42/2004): in this case, if the claimant association, after the appeal, or in second instance, decides to waive the claim, the trial continues, and this is a very importan exception to the general rule of the italian administrative jurisdiction, and above all to the principle of procedural impulse of the party.