Former Ilva site: green light to shut down the hot zone. The judges: the right to health takes precedence over business activities

The Milan Court of Appeal’s ruling on the former Ilva plant in Taranto came earlier than expected. It had been expected at the start of next week but was instead served at 11.27 am on 11 September and is unfavourable to the company: the hot section will have to shut down by the end of October as the judges deemed it to be polluting and harmful to health. The applications for a stay of execution submitted by Ilva and Acciaierie d’Italia – the former being the owner and the latter the operator of the plants – and discussed at the hearing on 9 September have therefore been rejected. Although the composition of the panel was different, the Court of Appeal, presided over by Lorenzo Orsenigo, in a 12-page order, confirmed the ruling issued by the same Court on 27 July, when, having ordered the shutdown of the hot section, it had given Ilva and Acciaierie 90 days to comply. Those 90 days are due to expire at the end of October.

The judges’ guiding principle is that the protection of health takes precedence over the economic, employment and production aspects of the former Ilva. ‘The balance between these conflicting interests can only lead to a decision in favour of health protection, on the basis of which the suspension of production activities in the hot area was ordered’ write the judges, who also refer to the ‘repeated, recent rulings of the Constitutional Court and the Court of Cassation, particularly following the recent amendment to Article 41(2) of the Constitution, according to which private economic activity may not be carried out ‘in such a way as to cause harm to health or the environment’ in the conflict between the right to conduct business and citizens’ right to health and to compliance with the permissible limits on emissions to which they are subject’.

And even in the face of ‘the serious economic damage resulting from the disruption to the facilities, there arises – as the judges state – the need to safeguard the right to life and health – that is, values of paramount constitutional importance – in accordance with the terms deemed binding by the judgment of the CJEU’. On 24 June 2024, in fact, the European Court of Justice, ruling on the former Ilva case in response to proceedings referred by the Court of Milan – to which the citizens of Taranto had turned after bringing an injunction against the steelworks (Milan is the company’s registered office), stated that if an industrial plant is harmful to health and the environment, it must be shut down in accordance with the European directive.

With regard to the damage to the plant caused by the shutdown, the Court states that ‘the claim that the plant is beyond repair as a result of the suspension of production activities in the hot section has been contested by the citizens bringing the action, who, in their written submission, argued both that “the blast furnaces currently in operation are as old as 60 years and are constantly being patched up as best they can”, and that, according to the latest report from the regulatory authority ISPRA, it appears that, over the last few years, blast furnaces 1, 2 and 4 have been shut down on several occasions for upgrading work and then routinely restarted. To these considerations – the Court states – is added the observation made by the Public Prosecutor’s Office at the Milan Court of Appeal in its opinion, according to which the appellants’ assertion, whilst compelling, is not supported by any concrete evidence. The Public Prosecutor’s Office – the Court observes – also adds that the appellants (given the inescapable need to carry out work on the plant), have not provided any quantification, not even an approximate one, of the comparative costs of potentially bringing the facilities into line with the requirements imposed by the European Court of Justice as opposed to a complete overhaul’. In the judges’ view, the companies ‘merely assert that shutting down the plants would cause irreversible damage, but they do not demonstrate that the adaptation required by European legislation is a viable alternative, nor that it is economically sustainable’.

In any case, the Court argues, ‘regardless of any consideration as to whether the applicants are entitled to claim that the ancillary industries have suffered employment-related harm, it must also be borne in mind that for several years now there has been a debate, regarding the Ilva plant in Taranto, on how best to reconcile the right to health of citizens and the workers themselves with the protection of the jobs of staff involved in the steelworks’ operations; that the application for an injunction was brought by citizens as far back as 2021; that, in the light of European legislation and the judgment of the CJEU, the suspension of production activities in the hot section ordered by the decree does not appear to be a sudden event but, rather, a foreseeable event in respect of which the corporate responsibility of the parties involved must surely have been assessed over the years’.