CASE OF GIACOMELLI v. ITALY
(Application no. 59909/00)
2 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Giacomelli v. Italy,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 15 March 2005 and on 12 October 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
A. Ecoservizi's activities and the subsequent contentious proceedings
1. The licence for the “detoxification” of industrial waste
2. The first set of contentious proceedings
She challenged the renewal of the operating licence granted to Ecoservizi and, alleging a breach of Law no. 441/1987, argued that the alterations approved by the Regional Council entailed an increase in activity such as to necessitate a fresh licensing procedure, including an assessment of the plant's environmental impact.
Ecoservizi applied to intervene in the proceedings.
3. The second set of contentious proceedings
The court held, firstly, that the site alterations authorised by the Regional Council on 12 April 1999 in order to allow the processing of waste oils, should have been classified as substantial. Consequently, in accordance with Articles 27 and 28 of Decree no. 22/1997 (see paragraphs 62 and 63 below), the Regional Council should have suspended Ecoservizi's operations and ordered the necessary checks to be carried out before renewing the company's operating licence. The court therefore found that the Lombardy Regional Council's decision of 29 April 1999 had been unlawful.
As to the fact that the company had subsequently decided not to carry out the alterations in question, the court held that the Regional Council should in any event have carried out a thorough examination of the plant's operations and condition, as there had been a number of complaints from private individuals and public authorities about Ecoservizi's activities, giving rise to serious doubts as to their compatibility with environmental standards.
The court referred to the two environmental-impact assessment decrees (“EIA decrees”) issued by the Ministry of the Environment and, holding that the Regional Council had failed to carry out its investigative duties, ordered the suspension of Ecoservizi's operations pending the final outcome of the EIA procedure.
4. The third set of contentious proceedings
In the report the ARPA experts indicated what steps had to be taken to avoid any risk of an incident or operational fault at the plant; in addition to these, all the requirements laid down by the Regional Council in its decision of 7 November 2003 (see paragraph 49 below) had to be met.
B. Environmental-impact assessment procedures conducted by the Ministry of the Environment
On 11 May 1998 the company submitted its application to the Ministry of the Environment in accordance with section 6 of Law no. 349/1986.
Brescia District Council and the applicant took part in the procedure, together with the local authorities of Borgosatollo and Castenedolo, two villages situated within several hundred metres of the plant.
The Ministry noted that the plant was built on agricultural land, near the river Garza and a sand quarry, the exploitation of which had gradually eroded the soil. Because of the permeability of the ground in particular, there was a significant risk that the toxic chemical residue generated by the detoxification operations at the plant might contaminate the ground water, a source of drinking water for the inhabitants of the neighbouring villages.
The Ministry considered that the operation of the plant was incompatible with environmental regulations. However, Ecoservizi was allowed to continue its activities until the expiry on 29 April 2004 of the most recent operating licence granted by the Regional Council, provided that it complied with certain requirements.
The plan envisaged, among other things, making the ground surface impermeable, building soundproofing devices, raising the site's perimeter wall so as to avoid any risk of flooding, and improving the system for monitoring hazardous emissions.
“draw up a memorandum of understanding with the local authorities for monitoring the waste being treated, with a view to reducing the likelihood of an operational fault at the site ...;
ensure the buffering of the detoxification facilities ...;
close the open-top chambers used in the chemical and biological process and develop an exhaust ventilation and purification system ...;
build a mobile, soundproof structure to cover the macerator ...;
alter the internal sewerage system so as to separate atmospheric water from water produced by the facility;
set up a system for monitoring the quality and quantity of water produced by the plant that flows into the Garza ... and into public sewers;
devise and implement a plan for making the ground impermeable at the site ...;
monitor the site in order to obtain a precise assessment of the presence of any pollutants in the subsoil, the hydrogeological structure of the land and the danger levels for the nearby ground-water supplies used as drinking water ...;
... raise the facility's perimeter wall to a minimum height of 123 metres above sea level ...”
The Regional Council further directed:
“the close proximity of residential dwellings means that the plant's operations must be permanently monitored as regards the dust released into the atmosphere, VOCs (volatile organic compounds) and noise disturbance. Accordingly, a unit should be set up between the site and the dwellings to measure dust emissions and the noise generated by the facility. As regards VOC quantities, the monitoring device should be installed near the facility with the agreement of the relevant authorities;
the company should also carry out periodic reviews of noise emissions.”
The Regional Council decided that the plant's implementation of the above requirements should be verified when the time came to renew its operating licence, due to expire on 30 April 2004.
The Ministry noted, firstly, that Ecoservizi processed 27% of the waste generated in northern Italy and 23% nationwide. It subsequently stated that the requirements laid down by the Regional Council should significantly improve the conditions for operating and monitoring the plant and expressed an opinion in favour of Ecoservizi's continued operation of the plant, provided that it complied with those requirements.
C. Complaints about Ecoservizi's activities, and inspections by the relevant authorities
During the same inspection the experts observed that a number of containers intended for toxic waste were present on the site without having been neutralised after use. In a note dated 27 April 1995 the ASL instructed the company to move the containers in order to avoid any risk of contaminating the ground, particularly as the surface had not been made impermeable. It appears from the report that the ASL lodged a complaint with the appropriate judicial authorities.
II. RELEVANT DOMESTIC LAW
“must be submitted, prior to its approval, to the Ministry of the Environment, the Ministry of Cultural and Environmental Heritage and the authorities of the region concerned, for an environmental-impact assessment ('EIA'). The application must state the location of the installation and give details of the liquid and solid waste and the pollutants and noise disturbance which it will generate. It must also outline the measures intended to prevent environmental damage and the environmental protection and monitoring arrangements. Notice of the application shall be published at the applicant's expense in the newspaper with the largest circulation in the region concerned and in a national newspaper.
The Ministry of the Environment shall, together with the Ministry of Cultural and Environmental Heritage, after consulting the authorities of the region concerned, give a decision within ninety days as to the project's compatibility with environmental regulations.
Where the Ministry of the Environment observes any conduct that is contrary to the decision on compatibility with environmental regulations or is likely to endanger the environmental and ecological balance, it shall order the suspension of operations and shall refer the matter to the Council of Ministers.”
“facilities for the treatment of toxic and harmful waste by means of a ... chemical process”.
Article 27 of the Decree governs the licensing of waste-treatment facilities. The regional council conducts a preliminary examination of proposed new facilities for the treatment and storage of urban, special, toxic and harmful waste by means of consultations (conferenze) in which representatives of the region and the other local authorities concerned take part.
If the planned facility examined by the regional council has to undergo a prior environmental-impact assessment within the meaning of Law no. 349/1986, the licensing procedure is suspended pending the decision by the Ministry of the Environment.
Where it emerges from inspections of the site that the conditions laid down by the authorities are not being met, the operation of the facility is suspended for up to twelve months. Subsequently, if the facility's operations have not been brought into line with the requirements set out in the licence, the licence is revoked (Article 28 of Decree no. 22/1997).
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties' submissions
1. The applicant
2. The Government
The Government asserted that the administrative decisions in which Ecoservizi had been granted operating licences had been taken in accordance with the law and had pursued the aims of protecting public health and preserving the region's economic well-being. The company, they pointed out, processed almost all of the region's industrial waste, thereby ensuring the development of the region's industry and protecting the community's health.
They pointed out, firstly, that on 23 July 2004 the Lombardy Regional Administrative Court, after considering all the relevant evidence in the case, had dismissed an application by the applicant for a stay of execution of the most recent decision to grant Ecoservizi an operating licence. They further noted that the most recent EIA procedure had ended on 28 April 2004 with a positive assessment by the Ministry of the Environment.
This proved that the relevant authorities had assessed the plant's operations as a whole and, while ordering the company to comply with certain requirements, had found that they were compatible with environmental regulations and did not entail a danger to human health.
B. The Court's assessment
It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the treatment of industrial waste in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community.
It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available (see Hatton and Others, cited above, § 104). However, this does not mean that the authorities can take decisions only if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided.
83. A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals' rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others, cited above, § 128). The importance of public access to the conclusions of such studies and to information enabling members of the public to assess the danger to which they are exposed is beyond question (see, mutatis mutandis, Guerra and Others, cited above, p. 223, § 60, and McGinley and Egan v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, p. 1362, § 97). Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process (see, mutatis mutandis, Hatton and Others, cited above, § 128, and Taşkın and Others, cited above, §§ 118-19).
In accordance with the legislation in force, the plant's operation should have been suspended so that the company could bring it into line with environmental-protection regulations and hence obtain a positive assessment from the Ministry of the Environment.
However, the administrative authorities did not at any time order the closure of the facility.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
She added that she was prepared to forgo part of the sums claimed if Ecoservizi's operations were immediately stopped or if the facility was moved to another site.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage;
(ii) EUR 8,598 (eight thousand five hundred and ninety-eight euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in French, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič