Cambiamento climatico, ambiente e impresa sostenibile: un approfondimento sul caso Ilva
10.6092/issn.2421-2695/15992
L’obiettivo del presente studio è quello di riflettere sul ruolo che assumeranno nel futuro i tradizionali principi - costituzionalmente orientati - della proprietà privata, e dunque della libertà d’impresa, del lavoro e della tutela della salute nel paradigma della giusta transizione dovuta al cambiamento climatico. In un contesto caratterizzato da una crescente preoccupazione dell’opinione pubblica e quindi - e di conseguenza - delle agende politiche europee e internazionali sui temi della tutela ambientale, si cercherà di promuovere una rinnovata riflessione sulla nota giurisprudenza dell’Ilva di Taranto. Uno spunto per raggiungere l’obiettivo di questa analisi consisterà nel cercare di riaprire il dibattito sul perimetro della funzionalizzazione sociale della proprietà.
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Cambiamento climatico, ambiente e impresa sostenibile: un approfondimento sul caso Ilva
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Climate change, environment and corporate sustainability:  further insights on the Ilva case
https://labourlaw.unibo.it/article/download/15992/15109
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Climate change, environment and corporate sustainability:
            further insights on the Ilva case




                   ALESSIA CONSIGLIO
               Università Ca’ Foscari Venezia




                    vol. 8, no. 2, 2022
                       ISSN: 2421-2695
Climate change, environment and corporate sustainability:
            further insights on the Ilva case


                                                          ALESSIA CONSIGLIO
                                                Università Ca’ Foscari Venezia
                                       Dottoranda in Diritto, Mercato e Persona
                                                      alessia.consiglio@unive.it


                                  ABSTRACT

        The aim of the present study is to analyse what role will the traditional
and Italian-Constitutionally oriented principle of private property, freedom of
enterprise, labour and health protection play in the climate change just
transition. In a context characterised by a growing concern of public opinion
and thus - and consequently - of European and international political agendas
on environmental protection issues, an opportunity will be sought to promote
a renewed reflection on the well-known case-law of Ilva in Taranto. An
interesting means to achieve the objective of this research analysis will be to try
to reopen the debate on the perimeter of the social functionalisation of property.


Keywords: climate change; corporate sustainability; industrial relations.

                                https://doi.org/10.6092/issn.2421-2695/15992
                            A. CONSIGLIO, Climate change, environment and corporate sustainability


        Climate change, environment and corporate sustainability:
                    further insights on the Ilva case

SUMMARY: 1. Introduction. – 2. Anthropocene, a reflection on the climate crisis. – 3. Relations between
     human health and climate change: what role does labour law play? – 4. Is there a real separation
     between working space, ‘natural’ space and life? – 5. Introduction to the Ilva case-law. – 6. The
     action of the European Court of Human Rights. – 7. The opinion of the Court of the European
     Union. – 8. The EU Commission’s view. – 9. Final consideration.




     1. Introduction

    Environmental law researchers have spent years studying how climate change will affect
the future of human relations: climate change will impose radical changes on society and
law will need to adapt in equally radical ways(1).
    However, the current approach is mostly based on mapping existing legal taxonomies
in order to provide new insights and analysis of the role of law, but still with a traditional
approach to climate change. The legal (and labour law), ecological and environmental
discourse, in fact, have for years moved on non-communicative levels. The idea of
harmonising policies to implement the ecological transition and policies to support
employment transitions has indeed only garnered initial attention over the past few years(2).
    Indeed, there is a certain aporia in labour law studies related to climate change, as if a
strong sense of agnosticism still exists on the organic connection between environmental
impact and industrial relations: yet climate change will have, and is already having, drastic
effects on labour and labour markets worldwide. The close link between green transition and
socio-economic transition is unquestionable: promoting actions to reduce dependence on
fossil fuels and incentivising climate-neutral activities means reformulating the perimeter of
the notion of business and entrepreneurial activity in a sustainable way(3). But it also means
identifying appropriate instruments to protect workers, and in particular vulnerable groups,
in the transition era, providing them with the necessary tools to retrain their job skills and
competence to adapt them to the new imperatives of the green economy, as well as the


            (1) C. Lipsig-Mumme, Climate at work, Fernwood Publishing, 2013.
            (2) On this topic, A. Perulli – A. Lyon-Caen, Vers un droit du travail écologique, in Revue de droit du travail, vol.
Juillet-Août 2022, 91-95; F. Martelloni, I benefici condizionati come tecniche promozionali nel Green New Deal, LD, 2, 2022; S.
Buoso - A. Lassandari - F. Martelloni, Presentazione, Il tema. Lavoro e ambiente nell’Antropocene: il problema e il sistema, LD, 2,
2022, 3-6; A. Lassandari, Il lavoro nella crisi ambientale, in Lavoro e diritto, 2, 2022; G. Centamore, Una just transition per il
diritto del lavoro, LD, 2, 2022; J. Doorey, Just Transitions Law : Putting Labour Law to Work on Climate change, Journal of
Environment Law and Practice, 2017, 30, 201; F. Hendrickx, Climate change and labour law: a methological warming-up, in
Regulating for Globalizarion, Workers Kluwer, 2019; P. Tomassetti, Diritto del lavoro e ambiente, Adapt University Press.
            (3) On this important topic see C. Mio, L’azienda sostenibile, Milano, 2022; P. Tullini, La responsabilità dell’impresa,
LD, 2, 2022.

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                            A. CONSIGLIO, Climate change, environment and corporate sustainability


necessary safeguards and remedies for those who will be impacted by the various
environmental disasters taking place.
    All labour relations will in fact, none excluded, undergo a realignment according to the
different consequences that climate and pollution are bringing to society, this time
understood as «any set of individuals (humans or animals) connected by relations of various
kinds and in which forms of cooperation, collaboration, and division of tasks are
established, which ensure the survival and reproduction of the whole and its members»(4).
    First questions arise: these effects are likely to be unequally distributed globally.
Developing countries, which have contributed the least to global warming, are likely to
suffer the heaviest consequences. But even among the richest and most developed
countries, the effects of climate change on labour will be perceived unequally, among the
poorest categories of workers, or among racial and gender minorities within the same social
class.
   Moreover, what role will the traditional and Italian-Constitutionally oriented principle
of private property, freedom of enterprise, labour and health protection play in this new
economic paradigm? How does the new social enterprise fit in this crisis of law?
    Whether labour law should deal with climate impact and thus with the socio-ecological
issue, and how it can do so, is a question rarely explored in the literature on the normative
basis of labour law, its boundaries and objectives. On the other hand, nature has always
been considered outside the domain of labour law.
    Not only that, but they are also beginning to feature as major themes in several
important policy proposals on how to deal with this crisis and its unequal impacts on the
environment as well as on people and the relations - including industrial relations - that they
build.
    In this paper, therefore, I will try to dwell on the effects of this transition with respect
to the reference themes of labour law: the freedom of enterprise understood as a correlation
to private property, and the protection of employment levels. In a context characterised by
a growing concern of public opinion and thus - and consequently - of European and
international political agendas on environmental protection issues, an opportunity will be
sought to promote a renewed reflection on the well-known case-law of Ilva in Taranto(5).
    The profiles of a transition capable of cushioning the social and employment
consequences by projecting towards a climate-neutral and ethical development model, are
issues that will have to be reflected in the case law which has so far shown a social and
climatically poorly involuted balance. A balance, in other words, strongly skewed towards
the protection of freedom to engage in economic activity tout court, as opposed to the
promotion of human health (before that of workers) and environmental impact.

           (4) Treccani definition under the rubric “Società”.
           (5) On the reason why the definition of ‘case’ is adopted, see S. Laforgia, Se Taranto è l’Italia: il caso Ilva, LD,
2022, 1.

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                             A. CONSIGLIO, Climate change, environment and corporate sustainability


    The well-known Just Transition(6) is expected to contaminate the traditional legal
institutes (including private ones) of our legal system, but how?
    The law of the future is ambitiously required to respond to this challenge by exploring
new factual and normative boundaries. It is hoped, therefore, to enhance this intersection
between property law and the freedom to carry out an economic activity and the right to
health by exploring the interaction that this paradigm generates in labour law and its
systematics through the emblematic case of Ilva, the steel plant in Taranto. The ultimate
aim will be to outline an area of harmonisation of the traditional institutes of the Italian law
system which is necessary to provide answers to the climate crisis. An interesting means to
achieve the objective of this research analysis will be to try to reopen the debate on the
perimeter of the social functionalisation of property.
    The intention is to characterise the peculiarities, but also the problematic nature, of the
impact of the climate change on the ontology of private and labour law by proposing what,
in a paradigm of overcoming the contrapositive perspective between climate and labour,
could be a cue for a new morphology of industrial relations and the protagonists of this
immanent renewal.



     2. Anthropocene, a reflection on the climate crisis

    Before tackling any kind of labour law reflection on the climate crisis and its impact on
contemporary industrial relations, it is necessary, as a preliminary step, to carry out an
interdisciplinary reflection on the philosophical-theoretical lines of the topic of the
environment. This, in addition to its articulation, as will be seen, ‘multi-disciplinary’ and
‘interdisciplinary’, presents a relevant profile of ‘transdisciplinarity’, resulting from a variety
of scientific and socio-humanistic knowledge and ‘transculturality’ and concerning a
diversity of worldviews(7).
    It is not possible to neglect in this context an exegetical path of the theme that also
addresses the man-nature relationship as a problematic core, organised and mediated
through different and sometimes opposing worldviews. Worldviews that are often in
competition with each other because they are marked by mirror-image scale of values (think
of the different anthropocentric or biocentric approaches) and declined in a series of causal
connections that place the environment (human and natural) in balance or opposition with
science, economics, ethics, culture, and law. This, obviously, with regard to the underlying
requirement to create a common mindset for the protection of the environment itself. In

          (6)E. Morena, D. Krause, D. Stevis, Just Transitions: Social Justice in the Shift Towards a Low-Carbon World, in
London: Pluto Press, 2020, 9 ss.; B. Galgóczi, Just transition on the ground: Lessons for social dialogue, EIR, 2020, 4, 26.
         (7) L. Moccia, Comparazione giuridica come modo di studio e conoscenza del diritto: l'esempio della tutela ambientale, RTDPC,
2020, 1.

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                         A. CONSIGLIO, Climate change, environment and corporate sustainability


particular: ecosystems, the Earth system, sustainable development, environmental justice,
intergenerational solidarity, limits to growth, food security, quality of life, human rights are
themes that are necessarily affected by the (subjective) plane of investigation from which
they are read and analysed. A plane of analysis that deserves to be paced and that would
not allow, in the absence of in-depth analysis, to propose an effective reflection on the
impact of climate change on (especially) labour law.
   In order to focus on a discourse of this kind, it is necessary to start from certain
premises, in a broad sense, which are predominantly cultural, and which constitutes the
meta-legal basis of the consideration that will be advanced with this paper.
     The researcher of climate change and its effects on and in the labour market starts from
the assumption that the concept expressed by the term “environment” represents, rather
than a specific reality, the need to give a certain order to the complex and articulated reality
of human-nature relations. This implies a series of consequences, including a diversity of
connotations that, in terms of legal meaning, can be assigned to this term in the course of
time and currents of thought, technical-scientific developments and, more generally, socio-
economic transformations. Specifically: the term ‘environment’ has etymologically
presented, for years, a so-called adjectival meaning (as the present participle of the Latin
‘ambire’: ‘to go around, surround’), to indicate everything that is around something (or
someone). A definition, therefore, so generic that it has been used as a term to designate a
surrounding space, a space within which to place ‘nature’ itself(8). The environment has
been generically understood as a figurative set of things: nature and materials, spirit and
culture, in a spectrum that inevitably refers to the figure of man. In fact, over the years,
there has been a tendency to include other living beings, including human beings, within
the spatial concept of the environment, according to a concept of humanisation (or so-
called anthropomorphisation) of nature(9).
     Actually, the aforementioned definition suffers from a very specific point of view: it has
historically been expressed from the anthropocentric point of view, that of man,
protagonist and subject, at the centre of all the things around him, including, precisely, the
environment. In this perspective, the environment has traditionally been defined as a
means: the means by which and through which the subject-man is in the environment. He
makes use of the latter by shaping and modifying it according to his own needs and
utilitarian requirements, as if the environment were ex se existing and immanent, but above
all immutable.
   Since the 1960s, however, the term environment has taken on a so-called noun meaning,
thus identifying a reality that exists in itself and is self-evident: the “Earth system”. This has
come to mean the total and complete interdependence inherent in the natural world, of
which man himself is a part. A notion, therefore, that has shifted its point of view to better

       (8) P. Warde-Robin-Sörlin, The Environment. A History of the Idea, Baltimora, 2018.
       (9) C. Frugoni, Uomini e animali nel medioevo. Storie fantastiche e feroci, Bologna, 2018.

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                          A. CONSIGLIO, Climate change, environment and corporate sustainability


observe and understand the extent of the human ecological trace on nature. From a concept
of an “outskirt” conceived and idealised as a mere human offshoot, therefore, the notion
of environment was thus conceived and defined (for the first time) in so-called self-centred
terms. A new perspective, therefore, based on nature (including the human species, on a
par with other living species) as the centre of the world (the so-called biocentrism current).
    This dialectical and philosophical evolution did not, however, appear to be decisive.
The way of understanding the environmental issue as essentially centred on the human
factor, whose influence becomes dominant in a world where man, society and nature
interact and mutually condition each other, has only found a more satisfactory definition
through the theoretical and scientific deepening of the anthropocene theory.
    The term ‘anthropocene’ first appeared in 2000 in the pages of a scientific paper (the
newsletter Global Change’) of the International Geosphere and Biosphere Research
Programme (IGBP) in a short note that defined it(10). The two authors, with the explicit
intention of drawing attention from both a geological and ecological point of view to the
‘central role of humanity’ proposed «to use the term ‘anthropocene’ for the current
geological epoch»(11). The proposal, argued on the basis of a list of phenomena and data
relating to the environmental impact of human activity, had the tones of a manifesto-appeal
addressed not only to the international scientific community, but also to policy-makers and
the general public. The reference context of the anthropocene became, for the first time,
that of “global change”(12). This also included the ‘Earth system’ understood as: a ‘closed
system’, delimited in terms of available resources, consisting of a dynamic and unitary
complex of elements given by the «interaction between physical, chemical and biological
cycles on a global scale (often called biogeochemical cycles) and energy flows that provide
the necessary conditions for life on the planet»(13). The actions and repercussions generated
within the system are as important to its functioning as the external forces. Conversely,
ecological processes are also an integral part of the system’s functioning and do not
passively undergo changes in its physico-chemical component; thus «human beings, their
societies and activities are an integral component of the Earth system, and not an external
force capable of disrupting an otherwise natural system»(14). The choice of the term
Anthropocene, then, drawn on geological language to emphasise its meaning in an ‘epochal’
order of magnitude, represents and describes a phase in the Earth’s history marked by
human dominance over nature. It has been debated by the scientific community, where it

         (10) P. J. Crutzen - E. F. Stoermer, The Anthropocene, in The International Geosphere–Biosphere Programme (IGBP):
A Study of Global Change of the International Council for Science (ICSU), 2000.
         (11) P.J. Crutzen – E.F. Stoermer, op. cit.
         (12) P.J. Crutzen, Geology of mankind-The Anthropocene, Nature, 2002, 23, 415 ss.; See P. J. Crutzen: A Pioneer on
Atmospheric Chemistry and Climate Change in the Anthropocene, Nobel Laureates 50, 2016; AA.VV. The Anthropocene: Are
Humans Now Overwhelming the Great Forces of Nature?, Ambio, 36, 8, 2007, 614 ss.
         (13) P. J. Crutzen - E. F. Stoermer, op. cit.
         (14) W. Steffen - A. Sanderson, Global Change and the Earth System A Planet Under Pressure, Springer, Berlin,
Heidelberg 2005.

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                            A. CONSIGLIO, Climate change, environment and corporate sustainability


has met and still meets with resistance(15), the expression has, over the years, established
itself in popular literature and in the opinion presse(16) gaining support, but also attracting
criticism(17).
     If the most superficial layer of its meaning is directly connected to the industrialisation-
induced climate change, the underlying issues concern various problematic nodes on which
the attitude of Western thought (including juridical) has been built and continues to
propagate: the opposition between nature and culture and, consequently,
anthropocentrism, ethnocentrism, androcentrism, etc. is nothing but another way of talking
about the opposition between industrialist and Fordist input, and the demands for greater
ethicality from workers’ representatives.
     What the anthropocene refers to is the possibility/need to rethink the future as such.
Taking this aspect into consideration is fundamental to reconstructing the reflective aspects
of this essay: the Anthropocene requires, first of all, thinking (and rethinking a society)
starting from the possible (and likely) end of human life on Earth caused by the actions of
man himself. The radical problematic nature of a teleology, of an essentially human end,
inscribed on the horizon of humanity, as well as the inescapable question of entropy and
its connection to capitalist industrialisation are issues that the anthropocene theory places,
for the first time, not only before the eyes of the scientific researcher, but also before the
eyes of the jurist. And it is precisely this that makes the Anthropocene a problematic and
at the same time fundamental concept: the anthropocene reveals the fallacy of
anthropocentrism, but at the same time as it attributes a direction to man towards the Earth
(and its climate crisis), it makes them more aware of how humanity and its existence depend
essentially on non-human entities, such as atmospheric agents, technologies and the
geological stratum itself, but also on the political, economic and legal directions it can take.
    If the causes of the impending catastrophe lie in a particular set of human activities, it
is evident that scholars cannot simply point to anthropos as the general ‘guilty part’ for
contaminating and poisoning the Earth. It is not just a question of ethnocentrism, albeit a
necessary correlate of anthropocentrism, and of exploitation and oppression of the living -

          (15) G. Visconti, Anthropocene: another academic invention?, Rendiconti Lincei. Scienze Fisiche e Naturali, 2014, 25, 3,
381 ss.
          (16) See the contribution made to the spread of the term, and its avowedly environmentalist content, in the
media and public opinion by the weekly magazine The Economist, which dedicated its cover story to the subject in
March 2011, with the headline: “Welcome to the Anthropocene”.
          (17) Among the critics of the Anthropocene-notion are those who, while appreciating its provocative intent
of highlighting the perverse effects of the idea of progress pursued solely in function of and for the benefit of man
(subject) as opposed to nature (object), in the belief that there are no limits to the exploitation of natural resources, let
alone the capacity of humans to use them, believe, however, that such a concept can create a distortion and
misrepresentation for a state of affairs that is attributable not to man and humanity in general and equally, but to a part
of humanity that, by its model of development, type of civilisation, and desire for domination implemented through
forms of colonisation and exploitation of large regional areas of the world, bears the greatest responsibility. So much
so as to evoke the notion of ‘Capitalocene’, much more explicit than this intention of denunciation and at the same
time of ecological alarm, for a certain state of affairs linked, precisely, to the capitalist model of socio-economic
development. V. Moore (ed.), Anthropocene or Capitalocene? Nature, History, and the Crisis of Capitalism, 2016 (ed. it.:
Antropocene o Capitalocene. Scenari di ecologia-mondo nella crisi planetaria, 2017).

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                          A. CONSIGLIO, Climate change, environment and corporate sustainability


which is why the (perhaps more convincing) term ‘capitalocene’(18) - has also been proposed
- but of redesigning the legal discourse, even before labour law, in the name of the new
acquisitions brought about by the new studies on the relationship between man, planet,
environment and climate.
     Such assessment leads to a discourse on human ends, and not only as a compensation
(i.e. the construction of an ecological and economic future that surpasses capitalism as a
social and geopolitical relationship) with respect to the defect of finality that anthropos has
always shown, but also on the need for human beings and Western reason to cease to feel
that they are the sole protagonists of planet Earth, endowed with unlimited resources.
     The need, in other and different words, that we begin to construct an ongoing process
of defining our own identity through our othernesses and that, above all, we balance
ourselves with the environmental changes taking place, and that we put in place useful and
functional actions to cope with these changes is the basis for a new reflection on labour
law.


    3. Relations between human health and climate change: what role does labour
       law play?

    A further argument for rethinking what has so far held the balance of power between
freedom of enterprise and labour protection is the relationship between human health and
climate change. That climate change due to human-caused environmental disasters have
already had and will continue to have negative effects on human health, occupational safety,
and working conditions is a fact on which both the medical-scientific and scientific-legal
communities now converge. What, on the other hand, is still missing is a common and
shared strategy on how immediate action should be reflected in practice; on how, in short,
to avoid the negative and dangerous impact on the physical health of workers, and to
protect them inside and outside the workplace.
    Therefore, highlighting how human impact on the ecosystem has already affected the
working relationship and especially the environment and workplace, demonstrating the
already huge repercussions on workers’ health, can be useful to provide a precise focus to
interpret the transition towards an ecological transition. An ecological and just transition in
which human health is not only protected tout court but marked and protected according to
climate change.




          (18) Among the critics of the antropocene concept see J. W. Moore, Anthropocene or Capitalocene? Nature, History,
and the Crisis of Capitalism, in Sociology Faculty Scholarship., 1, 2016. https://orb.binghamton.edu/sociology_fac/1

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                          A. CONSIGLIO, Climate change, environment and corporate sustainability


    Already in 2007 with the Second Working Group on the Fourth Assessment Report of
the Intergovernmental Panel on Climate Change (IPCC)(19) it was explicitly stated that
human health is intensely exposed to climate change through changing climate patterns
(pollution, temperature, precipitation, rising sea levels and more frequent extreme events)
and indirectly through alterations in ecosystems and changes in water, air and food
quality(20). Climate change has deeply altered the distribution of certain vectors of infectious
diseases(21) and the seasonal distribution of certain allergenic pollen species, leading to an
increase in heatwave-related deaths(22). Moreover, it was theorized as early as 2007, that the
impacts of climate change would affect the increase in malnutrition and related disorders,
including those related to child growth and development(23); the increase in the number of
deaths and illnesses related to heat waves, floods, storms, fires and droughts(24); on
changing certain vectors of infectious diseases(25).
    To analyse even more closely the clinical consequences of climate change on people’s
physical health, the classification proposed by the scientific community(26) with reference
to primary, secondary or tertiary areas, depending on the causal pathway through which it
occurs(27) is also of interest.
    The primary impact is often associated with direct exposure to excessive heat or risk of
injury in extreme weather conditions. Acute health effects from heat exposure stress can
lead to heat exhaustion, heat rashes (tingling), heat fatigue, heat fainting. If the body
temperature rises above 39°C the worker is at serious risk of heat stroke or collapse(28),
such as the onset of chronic illness. The scientific community has long maintained that high
temperatures and humidity can affect the body’s physiological responses to environmental
toxicants. Warm wet skin, for example, favours the absorption of chemicals.
    While these are the primary effects, no less intrusive are the so-called secondary effects
on workers’ health. These stem from alterations in the surrounding ecosystems that, in turn,
lead to a change in biological risks, such as the development of infectious, immune-allergic
and toxic diseases. Climate change and environmental disasters, for example, are expanding

         (19) IPCC Fourth Assessment Report (AR4), Contribution of Working Group II to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change, “Climate Change 2007: Impacts, Adaptation and Vulnerability”,
Cambridge, 2007.
         (20) Ibidem, 407.
         (21) Ibidem, 403.
         (22) Ibidem, 396.
         (23) Ibidem, 396 - 407.
         (24) Ibidem, 407.
         (25) Ibidem.
         (26) Una Guida Per I Sindacati Adattamento ai cambiamenti climatici e mondo del lavoro, Project co-ordinated by the
ETUC.
         (27) The Climate Jobs Campaign at www.globalclimatejobs.org/wp-content/uploads/2017/10/Empregos-
para-o-Clima-relatório-completo.pdf
         (28) In this regard, it is worth noting the recent case of Syracuse, where in the summer of 2021 an unusual
heat record was recorded with 48.8 degrees, a temperature never reached in Europe and two-tenths of a degree higher
than the previous record of Catenanuova in the province of Enna set in 1999 with 48.5 degrees.

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                          A. CONSIGLIO, Climate change, environment and corporate sustainability


the range of disease vectors (think ticks and mosquitoes) as well as increasing allergy
factors(29). With regard to tertiary effects, these result from the disruption of social, political
and economic systems, which in turn lead to disorder or even violence.
    Finally, it is also worth noting a range of so-called ‘further effects’ and impacts on
human health which, although not a direct and explicit consequence of climate change, are
easily associated with and causally attributable to the physical and chemical processes of
our economy still predominantly based on fossil fuels(30). They include increased health
risks from higher levels of air pollution (in many cases from the combustion of fossil fuels)
and increased exposure to UV radiation caused by ozone depletion.
    Furthermore, although it is currently very difficult to assess how many deaths are linked,
the impact of climate change on human health is already visible in Europe(31). According
to the 2019 Lancet Countdown report on health and climate change, if international actors
do not agree to effectively decrease global warming in a timely manner and take appropriate
and adequate measures to do so, some 350 million Europeans could be exposed to extreme
weather conditions each year by the end of the century (compared to 25 million in the early
2000s).
    All of the above is likely to affect (and, as we shall see below in the Ilva-case, has already
affected) working conditions permanently and dramatically. The disruptive effects on
labour relations and the repercussions of these years of wicked pollution have decisively
highlighted the trend towards an increase in the frequency of various types of accidents at
work (think of the potential increase, due to the so-called ‘drop in vigilance’, of risks of
inhalation of harmful substances, of stumbling, bumping or other disturbance of
movement, falling from heights; risks related to falling objects, mechanical handling, etc.).
   Thus, the assessment of the impact of climate change on labour relations will have to
involve an appropriate reorganisation of work in the knowledge that inadequate
organisation of work can also escalate the situation.
    It goes without saying that the evaluation of possible preventive measures including a
different organisation of work cycles, investment in appropriate equipment and technology
by the appropriate entrepreneurial force, and compliance with statutory emission and
leakage quotas appear to be extremely relevant in the current panorama(32).

          (29) Una Guida Per I Sindacati Adattamento ai cambiamenti climatici e mondo del lavoro, cit.
          (30) Ibidem.
          (31) In fact, according to experts, the 2003 heat wave killed 70,000 people within the European Union and
20,000 in France only. A trend that only seems destined to get worse in the future.
          (32) Interesting is the response of the main Italian trade unions (CGIL, CISL and UIL) to the ETUC's 2020
questionnaire published at www.etuc.org/en/adaptation-climate-change: «Possible examples are those working
exposed to high temperatures at roadwork sites laying asphalt, bricklayers engaged in roof insulation, when pouring
concrete or erecting scaffolding. Sectors exposed to heat stress include transport, in addition to agriculture. Here the
risk factors, rather than work organization, are related to the obsolescence of cars and brakes. Buses and subways are
often not equipped with air conditioning even when the windows are locked. The working conditions of drivers are
severely affected, as are those of travelers in these temperatures. In addition, driving a train under thermal stress puts

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     In the continuation of this paper, then, we will analyse a specific case-law in which
environmental degradation has already caused clear negative impacts on employment and
labour productivity, with the sad prediction that these impacts will become even more
pronounced in the coming years in the absence of any real legal elaboration on the subject.
In fact, it is not possible to construct a human health debate, before occupational health,
without talking about the effects that climate will have on it, and it is not possible to address
climate change without opening a debate on the implications that this will have on human
health, and therefore on workers.
     But what balance, or ‘hierarchy’ of values, will have to be found for this environmental
review?
     Climate change cannot simply be seen as an environmental issue linked only to various
forms of development: it necessarily (and increasingly) affects the health and well-being of
all populations; hence, the need to place health at the centre of countries’ political agenda(33)
as central to the labour law issue of sustainable development and employment protectional.



     4. Is there a real separation between working space, ‘natural’ space and life?

    In an attempt to bring the worker as a person back at the centre of legal reflection on
climate change(34), further inspiration can come from overcoming the strict distinction
between the working space, the natural space and living space.
     On several occasions highlighted by the International Labour Organisation, the
protection of workers’ health and safety and the protection of the natural environment -
intrinsically linked - have taken on an emerging role in international and national legislation
over the years, especially with a view to sustainable development. Moreover, the call for a
systemic reassessment of environmental issues has become even more necessary because
in modern, complex and integrated societies, it makes less and less sense to strictly
distinguish living spaces from working spaces, and the health of workers from that of
citizens(35).

the safety of passengers at risk: under such conditions, drivers' attention and concentration thresholds are severely
tested».
          (33) It is the WHO itself that makes it clear that, in terms of sustainable development, many individual policies
and choices have the potential to reduce greenhouse gas emissions while providing important benefits to human health:
«[a]ctions such as shifting to cleaner energy sources, facilitating safe public and active transport, and making more
sustainable dietary choices, bring important health gains to communities and individuals» WHO, Protecting Health from
Climate Change. Connecting Science, Policy and People, Ginevra, 2009, 26.
          (34) P. Perlingieri, Stagioni del diritto civile. A colloquio con Rino Sica e Pasquale Stanzione, ESI, 2021.
          (35) P. Pascucci, La salvaguardia dell’occupazione nel decreto “salva Ilva”. Diritto alla salute vs diritto al lavoro?, DLM.,
2013, 3, 671-688, 673; R. Del Punta, Tutela della sicurezza sul lavoro e questione ambientale, DRI, 1999, 151-160; P. Tullini, I
dilemmi del caso Ilva e i tormenti del giuslavorista, Ius17, 2012, 3, 163-169. On the Ilva-case law in Taranto and the labour-
environment conflict, see. S. Laforgia, Diritti fondamentali dei lavoratori e tecniche di tutela. Discorso sulla dignità sociale, ESI,

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     One of the so-called ‘meta-principles’ derived from Framework EU Directive 89/391
is precisely that of the organic connection between the protection of the external
environment and the protection of the internal environment. In this perspective, it becomes
necessary to clarify within which perimeter the scholar moves when he speaks of ‘working
area’, ‘natural area’ and living area.
     From the tout court definition of environment, in fact, we derive a highly general and
generalist concept that is difficult to perimeter, but in which everyone - including workers
- is strongly concealed. But if we isolate one of the many semantic variants of the general
concept of ‘enviroment’, and start speaking about ‘natural environment’, a more circumscribed,
and perhaps even more uncontaminated, sphere than the living environment itself begins
to appear in our perception. And so the question is: how does the working environment fit
into this context? In fact, if we refer to something that has nothing to do with the
environment, understood as the natural environment, such as the ‘working environment’, then
a confusion of definition begins to spread, which is still struggling to be completely
resolved.
    The hypothesis of a reciprocal unrelatedness between the terms, a hypothesis that will
not be pursued here, is visibly based on an almost ‘ontological’ distinction between the
external environment considered and the internal one, represented in the circumstance by
the workplace (which almost always, but not necessarily - think of the pandemic experience
- is located in the company). What the most recent literature has arrived at is that this
distinction where one intends to derive from it a strong thematic delimitation and not a
mere descriptive utility(36), cannot at all appear satisfactory and is certainly not exhaustive.
    If, in fact, historically the external environment has been the privileged object of
environmental law, overcoming this classification in the field of labour law is useful and
effective in the overcoming of this categorisation in the field of labour law is useful and
effective in overcoming a sort of hypostatisation of the difference between environments.
This is first and foremost a logical-linguistic reason: as mentioned, the word ‘environment’
is etymologically descended from the Latin word ambire, and thus refers to everything that,
being external to man, surrounds him and consequently influences his life(37), it suffers
therefore from a decisively anthropocentric defining vision.
   Yet, the internal environment appears as a portion of the external environment. A
portion within which man, as a worker, is subjected to a spatio-temporal concentration of
potential harmful effects that would generally be more widespread in the external



Napoli, 2018, 114 ss.; A. Vallebona, L’Ilva e la Cina, MGL, 2012 10, 740; ID., Contro l’incertezza diabolica: l’Ilva e Carl
Schmitt, MGL, 2013, 1-2, 20; ID., Per l’Ilva non basta neppure la Corte costituzionale, MGL, 2013, 7, 495.
            (36) R. Del Punta, Tutela della sicurezza sul lavoro e questione ambientale, DRI, 1999, 2, 151.
            (37) M. Cappello, Spunti linguistici su ambiente interno ed esterno nel Trattato Ce, in L.S. Olschki (a cura di), Ambiente
e diritto, 1999.

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environment. Hence, the relationship between the work environment and the general
environment appears rather as one of continence.
    The enviromental right as a fundamental human right, assumes the connection between
protecting the quality of the environment and the quality of life, with the individual (and
the worker) as the focus of legal protection. From these bases(38), we will try to analyse the
reasoning already developed by literature according to which it is necessary to enhance the
cognitive and ethical foundations of the disciplines we are trying to place in a unitary vision,
to enhance the vision of the natural environment as the only human environment, inclusive
and uniquely understood with the working environment, and the living environment. These
environments are under severe stress nowadays, as far as will be discussed, based on climate
change.
    In this perspective, Italian labour law has seen workers subject to differentiated
protection(n, which has allowed the law of the working environment to begin to develop,
albeit with difficulty, much earlier than in other areas(39).
    It is no coincidence that the concept of protection of the working environment as a
unitary referent of protection is the result of an extension of the more traditional protection
of the worker’s health and safety: if on the one hand the employee represents a socially
defined subject, it «entered as a party to an anomalous and unbalanced contract such as the
work lease contract (...) but left (...) as a person, i.e. as the holder of absolute rights that
escape the logic of the balancing of interests proper to negotiated exchange»(40).
   From this perspective, the right to health under Article 32 of the Italian Constitution
acquires a certain value in the interpretative construction of a right to the environment(41).
     Hence, it is necessary to reconstitute the rift between freedom of enterprise and
ecological culture, with a view to overcoming the anthropocentric vision, towards a more
all-encompassing protection of industrial relations with respect to climate change, where
the consideration of the relationship between the protection of the working environment
and the protection of the environment tout court can be overcome in the light of a single
environment, namely that of human ‘life’, today strongly endangered by entrepreneurial
action not always attentive to sustainable development.
     While this limitation of perspective was once facilitated by legislation, the field of which
was mostly delimited, in pure Fordist style, by the physical boundaries of the enterprise, the




           (38) R. Del Punta, Tutela della sicurezza sul lavoro e questione ambientale, cit.
           (39) M. Franco, Diritto alla salute e responsabilità civile del datore di lavoro, Milano, 1995; L. Galantino, La sicurezza
del lavoro, Milano, II, 1996; G. Loy (a cura di), La tutela della salute negli ambienti di lavoro, Milano, 1988; A. Maresca,
Ambiente di lavoro e protezione comunitaria, Milano, 1997; L. Montuschi, Diritto alla salute ed organizzazione del lavoro, Milano,
1986, III ed.
           (40) R. Del Punta, op. cit.
           (41) M. Cappello, op. cit.

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complex balancing act between right to work, right to health/environment(42) and freedom
of enterprise can only lead to the unitary conception of a single environment in which life,
work, and nature must be analysed as a whole in order to be protected.
    In this regard, the Ilva-case, for Italy, has raised many emblematic aspects of such
methodological inconsistency due to the dramatic events of the steel plants in question.
This is because of the difficulty of reconciling a community’s expectation of a dignified and
free existence through work, with that, no less important, of living in a healthy environment
and, therefore, the very existence of its members. The juxtaposition between work and the
environment, felt especially in terms of the right to health, and due, in large part, to the lack
of adequate investment in infrastructure that could have limited pollution levels, has raised
a series of delicate legal questions, which have been the subject of rulings not only by the
Italian ordinary courts, but also by the Italian Constitutional Court and the European Court
of Human Rights(43).



    5. Introduction to the Ilva case-law

    The Ilva case-law is particularly significant because it represents one of the first cases
that challenged the Italian Constitutional Court on the perimeter of social rights in the event
of a conflict between the exercise of those rights and other rights of equal standing, such
as health and freedom of enterprise. It is interesting, moreover, for the opinion that was
given of this balancing act by the European Court of Human Rights. This concerned the
strategic production of steel by Europe’s most important steel plant, posing a major
problem over the years with regard to environmental pollution: Ilva has caused a clear
corrosion in the health of the city’s inhabitants.
    The (criticised and not permanent) resolution of this case-law took into account the
coexistence of three distinct rights: the right to work, exercised by the employees of the
steelworks; the right to health, which concerns all the citizens of Taranto; and the freedom
of public and private economic activity. In this context, as will be seen below, stricter limits
were required in order to protect the right to health, without, however, causing the
economic freedom of enterprise to be affected.
    To resolve the case, the Court thus compared Article 32 of the Italian Constitution,
which defines the right to fundamental health, and Article 41 of the Italian Constitution,
which provides that economic initiative may be exercised in compliance with fundamental
rights. On the basis of this comparison, the Court affirmed that the censured discipline had
to be analysed by means of a so-called reasonable balance between the right to health and

         (42) The Constitutional Court has ruled on this issue in Judgment No. 85/2013; European Court of Human
Rights, Section One, Cordella and Others v Italy Judgment, 24 January 2019.
         (43) S. Buoso, Principio di prevenzione e sicurezza sul lavoro, Torino, 2020.

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the right to work. As a result, all the fundamental rights protected by the Italian Constitution
had to be in a mutually complementary relationship and, therefore, there can be no cases
in which one prevails over another.
    The exercise of rights, an expression of a person’s dignity, cannot be subject to any
hierarchical or overriding relationship, the Italia Constitutional Court concluded. This is
because the Italian Constitution requires a continuous and reciprocal balancing of principles
and fundamental rights: the balance must be assessed according to criteria of
proportionality and reasonableness such that none of the fundamental rights can be
sacrificed or diminished.



   6. The Ilva case-law from an Italian perspective

    The Ilva case-law is undoubtedly the most plastic example of what happens when the
case-law configures the relationship between the right to property (and the freedom of
economic initiative correlated to it) without taking into account the reflections that have
been made so far and that, instead, following this essay, hopefully appear to be highly
topical.
    At the same time, it also suggests a possible new argument: the giving of a new meaning
to the social function and general interest associated with the right to property, which
should constitute both its purpose and its limit. This, as we have seen, in a panorama that
strongly adds a new variable: the environmental and ecological impact that the balancing
act between property, enterprise, and the general interest, has on the individual.
    The Ilva story has its origins in the industrialisation process of Italy in the last century,
of which the steel plant was a protagonist for years. Born from the ‘merger’ of the main
companies operating in the Italian steel sector in the early 20th century, Ilva established
itself over the years as one of the steel companies with the largest production potential in
Europe, but also as «the single-core model of economic development, conceived exclusively
in function of the steel industry, which ignores the territory, wild urbanisation and social
implosion, urban planning, the potential of agriculture and the high potential for economic
development, the interests of small and medium-sized enterprises, the fate of thousands of
construction workers involved in the expansion work and who would have to suffer, once
construction was finished, the phenomenon of back unemployment»(44).
    In the 2000s, EU legislation, inspired by a logic of 'sustainable development', and the
growing public awareness of environmental issues brought about a change in the balance
within and around the problem of the harmfulness of dioxin and benzo(a)pyrene emissions
into the atmosphere from the factories specially in Taranto. But with the order of July 26,
2012 that the situation arises forcefully in the Italian legal landscape: the company founder,

       (44) S. Laforgia, Se Taranto è l’Italia: il caso Ilva, cit.

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the plant manager and an area manager were investigated by the Taranto Public
Prosecutor’s Office on charges of culpable and intentional disaster, poisoning of foodstuffs,
intentional failure to take precautions against accidents at work, aggravated damage to
public property etc.
    The injunction, however, did not stop the activity under dispute and from July 27, 2012
Ilva continued his production in disregard of the orders contained in the injunction which,
moreover, was confirmed by a further measure of November 26, 2012, ordering the seizure
of six of Ilva’s premises. In particular, Judge Todisco grounded her sentence with the
observation that Ilva’s situation «requires the immediate application, for the due protection
of goods of a constitutional rank that do not allow for any compromise, settlement or
compression of any kind, such as health and human life, of preventive seizure”. Not only
“the impressive dispersion of noxious substances in the urbanised and non-urbanised
environment has caused and continues to cause not only a serious danger to (public)
health”, but “even a very serious damage to the same, damage that resulted illness and
death”. “This is an environmental disaster clearly understood as an event of damage and
danger to public safety capable of affecting an indeterminate number of persons». Thus,
the Judge, set up a realistic hypothesis of the closure of the steelworks with the consequent
loss of a large number of jobs. The complexity of the situation led to the Government’s
intervention, which a few months later issued Law Decree no. 207/2012 (converted into
Law no. 231/2012) providing that in plants recognised as being of national strategic interest
with more than 200 employees (as was the case with Ilva), business activities could continue
for a period not exceeding 36 months, when indispensable to safeguard employment and
production, even in the event of judicial seizure of the plants. The response was not long
in coming: the judge for preliminary investigations in Taranto raised the issue of the
constitutionality of the provisions of Law Decree no. 207/2012 (Articles 1 and Articles 3)
containing such measures, claiming that they were constitutionally unlawful in many
respects and in particular with reference to Article 32 of the Italian Constitution (protection
of health as the right to a healthy environment).
    The outcome of this referral, however, is so far known: the Italian Constitutional Court,
however, in its decision no. 85 of 2013, deemed the question partly inadmissible and partly
unfounded, denying the existence of an unlawful compression of the right to health, on the
basis of the argument that there can be no hierarchy between fundamental rights, but rather
a balancing of them. In particular, the Italian Constitutional Court held that Law Decree
no. 207/2012 had carried out a reasonable balancing act, guaranteeing the protection of
employment in the sense of maintaining employment levels and freedom of economic
initiative and subordinating (with a view to the realisation of the right to health as the right
to a healthy environment) the steel mill's industrial activity to the stricter limits contained
in the last environmental authorisation issued to it.



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    This, however, turned out to be one of many chapters in the Ilva case-law(45) which
certainly did not end here(46). Today, ten years later, it is still the subject of copious case-
law. However, the aforementioned Constitutional ruling is emblematic in many respects:
on the one hand, it effectively demonstrates the dynamism between the industrial context,
the economic crisis and the freedom of private economic initiative, with respect to the
protection of labour (understood as the maintenance of employment levels) in a perspective
of balancing other rights such as, for example, the right to health in a scenario that,
however, reflects the problematic nature of climate change (in this case, clearly unbalanced
towards the protection of the freedom of enterprise with respect to the right to health).
    On the other hand, it is emblematic because in the entire case-law lies the debate on the
boundary and limits of the so-called ‘social role’ and ‘functional scope’ of notion of Italian
property and the general interest and the peculiar shaping it has received in this judgment.
This must put in relation to objective needs of an economic nature that in a specific
historical-economic context have been assumed as priorities. In addition, and in particular,
it opens up deep considerations concerning what peculiar elastic modelling scholars will be
willing to give in the light of the climate change we are witnessing, to the protection of the

          (45) As of November 2018, the steel plant was acquired by the ArcelorMittal Group and ArcelorMittal Italia;
however, for simplification, the name Ilva is still used to refer to the company, and the expression “Salva-Ilva”
provisions is used below.
          (46) A few years later the issue returned to the Constitutional Court: Judgment No. 182/2017 rejected the
question of constitutional lawfulness concerning Article 1(1)(b) of Decree-Law No. 98 of June 9, 2016, converted,
with amendments, by Law No. 151 of August 1, 2016.
          In the applicant's view, that choice would lead to the infringement of Article 117(3) and (4) and Article 118(1)
and (2) of the Italian Constitution, as well as the principle of loyal cooperation: in particular, the competing regional
competence in the field of health protection, the regional competence in the field of productive activity and the
principle of subsidiarity would be infringed. Moreover, there would be unreasonable discrimination between the Plan
concerning the Ilva Taranto plant and the procedure provided for in Article 1, paragraph 7, of Law Decree no. 61/2013
for all the other Plans. Reconstructing the regulatory framework of reference, the Court observes that the legislative
interventions concerning Ilva are united by the same ratio, consisting in the pursuit of a balance between the national
interest in the continuation of the activity of an industrial plant of a strategic nature, the maintenance of employment
levels and the interest in ensuring that the production activity continues in respect of the surrounding environment
and the health of individuals. The purpose of the censured provision is to accelerate the transfer to third parties of the
business activities of the Ilva group under extraordinary administration. In spite of this overriding purpose, Article 1(1)
of Law Decree no. 98/2016 is concerned with preparing various instruments for the involvement of the affected
Region, in compliance with the principle of loyal cooperation: the new procedure for identifying the successful bidder
provides that the evaluation of requests for amendments or additions to the Plan is entrusted to a committee of experts,
which may avail itself of the 'other administrations concerned'; the application for authorization submitted by the
successful bidder is made available on the website of the Ministry for the Environment and the Protection of Land
and Sea, for the purpose of acquiring any observations, submitted, if necessary, by the Region itself the amendments
and additions must in any event ensure standards of environmental protection consistent with the provisions of the
2014 Plan, which had been adopted after obtaining the opinion of the Region; at the Presidency of the Council of
Ministers, a coordination between the Region of Apulia, the competent Ministries and the Municipalities concerned is
established, charged with facilitating the exchange of information in relation to the implementation of the Plan. With
regard to the discrimination - denounced as unreasonable - between the Ilva Plan and other similar Plans, the Court
starts from the premise that laws-measures, per se, are not incompatible with the constitutional order. In this case, the
difference in treatment does not appear to be unreasonably contradictory or constitutionally unlawful in view of Ilva’s
nature as a company of strategic national interest, of the repercussions of the events that have affected the Taranto
plant on the employment, environmental, health and economic levels and of the need to finalize «the procedures for
the transfer to third parties of the business activities of the Ilva group under extraordinary administration»; «all elements
that denote the need to intervene urgently in matters of public interest, with ad hoc measures».

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environment and human health in the balancing act with private property. This balancing
act has so far seen the perimeter of environmental impact and health far too sacrificed.
    But also, and in particular, it opens up in depth thoughts on what peculiar elastic
modelling scholars will be willing to give, in the light of the climate change we are
witnessing, to the protection of the environment and human health in the balancing act
with private property, a balancing act that has so far seen the perimeter of environmental
and health impacts sacrificed far too much.
    The Italian legal system has actually developed a property right based on securing
benefits for its owner, but it has also aimed at providing benefits to the community as a
whole. In other words, the ‘social function’ (see Article 42 Const.1) owns the ratio,
therefore, of balancing the interests of the individual with those of the community. This
social function, while notoriously never remaining a theoretical statement of principle, has
historically been concretized through the compression or extension of the boundaries of
the interest, when public and when private, as well as of the obligations borne by the owner
even before social rights, such as, moreover, the right to health, declined in its meaning of
the right to a healthy environment(47), albeit in the absence of an ad hoc conventional
provision(48). A protection, however, that if so far has proved weak, will certainly in the
future be considered insufficient if limited -as it has been so far- to the liberal side of such
rights. And finally, the Constitutional Court’s ruling is emblematic (and interesting?)
multilevel case-law ramifications that have occurred since the ruling involving the Court of
the European Union and the European Court of Human Rights.


     7. The action of the European Court of Human Rights

   Italy’s problematic handling of the conflict between social and environmental rights in
the Ilva case-law has also been confirmed by the European Court of Human Rights
(ECHR) rulings(49). The Italian State (50) has indeed been repeatedly sentenced for its
absolute inability to identify and put in place appropriate solutions to guarantee an adequate
and effective protection of health and environment, thereby maybe also preserving the

          (47) The ECHR seem to treat the right to a healthy environment as a physiological extension of the right to
health, on this topic see M. Luciani, Salute I) Diritto alla salute – diritto costituzionale, in Enciclopedia giuridica, Rome, 1991,
XXVII, which says that «la protezione costituzionale del diritto all’ambiente, allora si ricollega direttamente ed
immediatamente alla protezione costituzionale del diritto alla salute come diritto alla propria integrità psico –fisica della
quale rappresenta il prolungamento e la naturale evoluzione». In another sense, in favour of classifying the right to a
healthy environment as an autonomous right see A. Boyle, Human Rights and the Environment: Where Next?, EJIL, 2012,
III, 626 ss.; G. Escobar Roca, Nuevos derechos y garantias de los derechos, Madrid, 2018, 127 ss.
          (48) In particular, on the protection of social rights in the European Court, and contextually on its insufficiency
see. A. Guazzarotti, Giurisprudenza Cedu e giurisprudenza costituzionale sui diritti sociali a confronto, Rivista del Gruppo di Pisa,
2012, III; C. Salazar, I diritti sociali nel difficile dialogo tra le Corti, Nuovo dir. amm., 2016, IV, 3 ss.
          (49) Cordella and others v. Italia, January 24, 2019, r. nn. 54414/13 and 54264/15.
          (50) ECHR January 24, 2019 (Appeals Nos. 54414/13 and 54264/15): the judgment is available at
http://hudoc.echr.coe.int/eng?i=001-192164. For reference, S. Zirulia, Ambiente e diritti umani nella sentenza della Corte
di Strasburgo sul caso Ilva, DPContemp, 2019, 19.

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interests of the workers and of the company. In particular, with the Cordella case-law, the
ECHR intervened in the Ilva case-law, recognizing the violation of the right to privacy and
the right to an effective remedy of the inhabitants of the areas surrounding the plants of
the well-known steel mill. All this, taking into account on the one hand the epidemiological
evidence on the health situation of exposed populations, and on the other hand the so-
called “salva-Ilva” provisions adopted since 2012.
    However, the Cordella ruling is not the only ruling of the ECHR. ECHR First Chamber,
condemned Italy for violating Articles 8 and 13 of the ECHR with a ruling on May 5, 2022.
The appellants, residents of Taranto and employees of the company, complained that the
Italian State had allegedly failed to take legal and regulatory measures to protect their health
and the environment and failed to provide them with information on pollution and related
health risks. Again, the ECHR confirmed the persistence of violations and omissions in
terms of health protection and environmental restoration.
    In particular, the ECHR found neither new facts nor arguments in relation to the
evidence found in the Cordella ruling such as to persuade it to change its conclusions.
According to ECHR’s, the stalemate in which the Italian authorities find themselves in the
management of the environmental issue in relation to the production activities of the
Taranto steel plant persists, as does the same situation of serious environmental pollution
such as to endanger not only the health of the appellants but more generally that of the
entire population residing in the risk areas.
    The ECHR also stated that the procedure for implementing the above-mentioned
Cordella ruling is still pending before the Committee of Ministers of the Council of Europe,
which, at its 1398th meeting (DH March 9-11, 2021), complained about the lack of
information from the Italian Government concerning the implementation of the
environmental plan, an element considered essential by the European Court in order for
the steel plant to operate without endangering health.
    Finally, the Court reiterated the urgency of adopting the remedial measures and
implementing the environmental plan approved by the national authorities in order to
safeguard the environment and the health of citizens.



   8. The opinion of the European Union Court

   Also according to the Court of the European Union, Italy has failed to comply with
Directive 2008/1/EC concerning integrated pollution prevention and control (IPPC
Directive), which requires industrial facilities with a high polluting potential to obtain an




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Integrated Environmental Authorization(51) (so-called “AIA”), Directive 89/391/EC on
safety and health at work(52) and Directive 2004/35/EC on environmental liability, which
is based on the ‘polluter pays’ principle, which provides for a liability presumption for the
operator in the event of accidents in certain dangerous activities such as steel
production(53).
    Furthermore, according to the EU Court, member states should also have issued the
AIAs and provided an updated census of all at-risky plants by October 30, 2007, whereas
Italy, with Law Decree no. 180/2007, extended the deadline for bringing existing plants
into compliance with the IPPC Directive until March 31, 2008, transmitting the required
data not until late October 2009 and, with Law Decree no. 155/2010, postponed the entry
into force of the emission limit values until 2012 (i.e. the ‘Salva-Ilva’ provisions)(54).
    The situation was even strengthened by a note from the Ministry of the Environment
dated April 14, 2009, reporting to the EU Commission the lack of data on the
authorizations granted on national territory due to the delayed updates by the Regions,
whereas, by law, the competence for issuing AIAs pertained exclusively to the Ministry
itself(55).
    That resulted once again in the European Union Court’s ruling against Italy for non-
compliance with the IPPC Directive(56).
    On October 26, 2012, the Italian government, in ordering the commissioner’s
receivership of Ilva, which was already in distress, granted the resumption of operations
and the issuing of the AIA until March 2014. Also acting on the same ‘lifeline’ was the
Decree no. 92/2015, which is now declared unconstitutional(57), which ordered an ex lege
suspension of the execution of the seizure of the Taranto plant, making express reference
to Law Decree no. 207/2012 (converted into Law no. 231/2012), concerning urgent
health/environmental provisions in strategic industrial plants. The same (desperate)
initiative also obtained the support of the EU Commission, which approved the financing


           (51) According to the IPPC Directive, AIA authorizations can only be granted if certain environmental
conditions are met, such as that the applicant companies are responsible for preventing and reducing pollution and
managing waste in accordance with the best available techniques.
           (52) G.U. L 183, May 29, 1989.
           (53) In particular, Directive 2004/35/EC provides, for the dangerous activities listed in Annex III, including
steel production, for a type of strict liability, whereby only proof of a causal link between the activity and the damage
is sufficient, without investigation of culpability in each individual case.
           (54) Under pressure from the European Commission, Italy transmitted the data, which reported that as of
October 30, 2009, 1,204 out of 5,669 operating plants had AIA procedures underway.
           (55) Other delays were also found in the Ines (National Inventory of Emissions and their Sources) and E-
PRTR (European Pollutant Release and Transfer Register) registers, which are required by the IPPC Directive to
census pollutant emissions from industrial facilities. Also in this area, Italy was late in its transmission of its data, stalled
as of 2006, and in updating the national register, stalled as of 2008.
           (56) For these reasons, the ruling states, «Italy, by failing to take the necessary measures to ensure that the
competent authorities monitor, through authorizations issued under the IPPC directive, or through updated review of
requirements, that existing installations are operating in accordance with the requirements imposed by the EU, has
failed to fulfill its obligations under the directive».
           (57) Constitutional Court, ruling no. 58/2018.

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of EUR 400 million by the European Investment Bank (EIB) between 2010 and 2012,
trusting, above all, in positive effects on international competitiveness and employment.


    9. The EU Commission’s view

    Since 2013, several claims have been brought before the authorities (judicial and
otherwise) by citizens as well as by NGOs about the polluting fumes from the Taranto steel
plant. Claims have also been addressed to the EU Commission which, on September 26,
2013, sent Italy a letter of formal notice inviting it to comply with the new Directive
2010/75/EU on industrial emissions and large combustion plants (IED Directive),
replacing the IPPC Directive, which should have been transposed by the Member States by
January 7, 2013(58).
    Clinical tests, carried out on behalf of the EU Commission, have in fact revealed heavy
pollution of the air, water and soil, due to Ilva’s activities, affecting both the industrial area
of the steel plant and the adjacent residential areas of the city of Taranto and, in particular,
the city district of Tamburi(59). In addition to the failure to transpose the FDI Directive
within the prescribed deadlines, the EU Commission also noted the lack of inspection and
action by the Italian authorities on the proper functioning of the Ilva plant.
    On October 16, 2014 the EU Commission, not having received positive responses to
the first warnings, then sent the Italian government a reasoned opinion(60), with which it
reported the following infringements: failure to reduce emission levels generated by
steelmaking processes; insufficient monitoring of soil and waste water; inadequate
management of by-products and waste; and, above all, failure to comply with the conditions
laid down for AIAs by the IED Directive.



    10. Final consideration

    The social division of labour has experienced seismic restructuring several times in its
historical course. It has shown, in other words, that it can still be more than receptive to
the material and empirical conditions in which it is placed. Why is this not happening with
climate change?


           (58) Directive 2010/75/EU is intended to pursue the process of reducing emissions from industrial
installations, and is a recast of 7 Directives, including the IPPC Directive and a number of sectoral Directives, such as
the one on large combustion plants, waste incineration, activities using organic solvents, and titanium dioxide
production.
           (59) On the recommendation of EU Environment Commissioner Potočnik, the EU Commission noted the
failure to reduce the high levels of uninspected emissions generated during the steel production process.
           (60) Official invitation from the EU Commission, addressed to the Member States, to comply with EU law,
subject, in the event of failure, to refer the matter to the EU Court.

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    The relationship between health and climate change, and the (necessary) reformulation
of what are work environments as generally understood environments, clearly brings out
the “crisis of values” in reference to the Ilva case-law. The matter that ‘invested’ the Italian
Constitutional Court with the aforementioned ruling no. 85/2013 seems to suggest the
doubt that the right to health, although fundamental, can be balanced with the right to
property (and the freedom of economic initiative related to it), thus approaching economic
and rational readings of the Italian legal system that are perhaps, in addition to being rigid,
extremely anachronistic.
    Here then is Prof. Perlingieri’s hope «of the need to promote not only adequate levels
of economic production, as much as and above all respect for life and the natural
environment»(61).
And from this perspective, the delimitation to be given to the notion of the “social function
of property” is certainly one of the key issues in accessing a discussion of balancing values
marked by the necessary prerogative of sustainable development. The debate around the
social function of property arises related to a legal consciousness and a conception of the
state/market relationship that are now behind us, and yet the idea that the social function
represents today the essential junction in the search for a new eco-sustainable labor law
seems rather urgent. In fact, the formula of the social function is far from being a dead
letter, its flexible perimeter has all the properties to be used in different contexts to serve
different political plans: the vicissitude of the transformation of the social function in
contemporary times takes place in a context marked by the profound change in the
relationship between state and market, between public and private.
    In fact, much literature has noted the malleability and resilience of labor and civil law
principles in our, as in other, systems by going to the roots of the subject. However, it is
impossible not to notice that the protection of climate and the impact of the climate crisis
on labor has always been among the most sacrificed issues in the labor law landscape. This
is a paradox, given that labor law was born precisely as a result of concerns for the health
and safety of the most vulnerable groups of workers.
    The present issue has shown itself on the legal level, until recent times, with purely
publicist profiles, such that scholars approach the topic of health, environment and climate
with such a generalist or scientific focus that, years later, it is difficult to trace the distance
of theoretical depth between the studies that have progressed over the years and labor law,
which has remained physiologically behind. Over the years, certainly, the European
scholarly community has developed on various guidelines (mostly guaranteeing health, on
the workers side, and guaranteeing freedom of economic initiative, on the employers side)
that have triggered a certainly positive normative evolution, but what has lagged behind,
unfortunately, is the development of a unified private and labor law thought. It is in this
and more advanced area that discussions have begun, albeit still from an anthropocentric

       (61) P. Perlingieri, Stagioni del diritto civile, cit.

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perspective, of a more all-encompassing environmental and labor protection. However, the
connection between industrial relations and labor and climate protection tout court (or
external, from the view of the enterprise) has been culturally and normatively very weak, if
not contradictory.
    In recent years, on the other hand, heavy pollution has lit several sparks in the labor law
debate that, while still at an early stage, have in fact begun to detect the indissoluble
interconnection between climatic agents, doing business, and the parts of industrial relations.
    It will therefore be required, however problematic, to promote a cross-sectional study
of the institutes: whereby the formalization of values such as the elaboration of common
standards, rules and principles will take on particular importance when faced with identical
or similar problems.
    It will be even more required, however problematic, to validate a cross-disciplinary
study, in relation to the natural and legal sciences: as a type of law with a high rate of
dependence on technological innovations and social transformations, constantly expanding
into the future. Not only in terms of prevention, as much as in response to challenges and,
in any case, to new needs dictated by changing traditional realities and balances.
    «As a consequence of a (near) reversal of the human-nature relationship; as a result of
which man, once exposed to risks and dangers from nature, has become, with his
Promethean ability to subjugate the planet, a source of increasing risks and dangers to
nature»(62).
    The reconnection and convergence between these two elements, can only take place
through a new polychromatic view of the change taking place. Climate changing, in fact,
will be addressed as an index of the genesis of an unprecedented labour relationship
connected to the territory as a dimension of the new geography of industrial relations.
Which will make it possible to reach the area of harmonization between the two aspects,
sides of the same coin.
   Then, it will be possible both to rethink the work environment, no longer solipsistic
understood, but set in a scenario where everything is environment, and everything is
synergistically affected by climate change.




       (62) L. Moccia, op. cit.

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