On 30 January 2025, the Court delivered a long-awaited judgment in the case of Cannavacciuolo and Others v. Italy (earlier known as Di Caprio and Others v. Italy).
This case concerns decade-long, large-scale pollution caused by illegal dumping, burying and uncontrolled abandonment of waste, often conducted by criminal organised groups, in parts of the Campania region, called ‘Terra dei Fuochi’ – the land of fires. The area is home to about 2,9 million people.
In contrast with the Court’s earlier cases on the waste problems of the region (Di Sarno and Others v. Italy and Locascia and Others v. Italy), this case is not about the failure of the Italian authorities to ensure waste collection, treatment, and disposal, but to react to the ongoing pollution phenomenon caused by large-scale illicit waste disposal.
Cannavacciuolo and Others has been referred to as ground-breaking. It is a lengthy judgment. This blog post argues that three aspects of it are worthy of particular attention: (I) The restricted locus standi of associations and excluded victim status of individuals not living in areas outside certain administrative areas. (II) The Court applies and finds a violation, for the first time, of the right to life under Article 2 with respect to large-scale environmental pollution. The Court established an ‘imminent risk’ to life without the need for the applicants to prove that they individually had been subject to the pollution and developed health issues caused by it. (III) The Court, for the first time, used the pilot judgment procedure in an environmental case.
I. Restricted Locus Standi of Associations and Victim Status of Individuals
The first central matter in Cannavacciuolo and Others is that it establishes that the Court’s lenient requirements of standing for associations in the context of climate change are applicable only in this strictly defined area (para. 220). It thus confirmed Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.) (para. 41), and Verein KlimaSeniorinnen Schweiz and Others v. Switzerland’s reference to the more lenient criteria applying only in the ‘specific context’ of climate change (para. 499).
This confirms the Court’s long-standing case law on the restricted standing of associations. For reasons of docket control, the Court may not be easily convinced to lax its admissibility criteria. Over the years, the Court has struggled to keep up with the influx of applications.
Yet, as noted by judge Krenc in his concurring opinion, it is difficult to see how the substantive arguments that justified the broadening of the requirements of locus standi for associations in a climate change context could not apply to the situation of complex environmental harm in terms of wide-scale pollution with diffuse effects (para. 6 of the opinion). In KlimaSeniorinnen, the Court referred to the global and complex nature of climate change, that intergenerational burden-sharing may come into question, and that litigation may require significant resources, the outcome affecting many (paras. 489 and 497). The Court also referred to the urgency, severity, and grave risk of irreversibility of climate change (para. 499). These justifications often also apply in the context of severe and diffuse environmental pollution. In short, Cannavacciuolo and Others indicates that the Court’s sui generis singling out of climate change cases in terms of more relaxed criteria for standing can be artificial.
What is more, many of the justifications used in KlimaSeniorinnen for broadening the standing of associations did not particularly concern climate change but environmental matters generally. In KlimaSeniorinnen, the Court relied on the Aarhus Convention, which concerns environmental matters, CJEU case law on the implementation of the Aarhus Convention, and a comparative overview of the role and position of legal standing of non-governmental organisations in environmental matters in Council of Europe Member States (para. 491). These legal materials concern the standing of associations in environmental matters, not only climate change.
It is also notable that the Court only allowed victim status to those individual applicants who resided in administrative areas designated as polluted by the authorities (para. 248). This was so despite the complexity and geographically far-reaching impacts that environmental pollution may have, and the substantive findings that the authorities had not sufficiently investigated those impacts (paras 405, 410-411). It demonstrates how much of the Court’s argumentation in environmental matters can rely on the establishment of facts on the domestic level. Restricting access to court based on administrative areas alone also seems hard to reconcile with the nature of large-scale environmental pollution, the Aarhus Convention, and the IACtHR’s opinion on transboundary harm.
II. Application of the Right to Life in a Case Concerning Large-Scale Environmental Pollution
The second main aspect of the case is that the Court, for the first time, applied positive obligations under the right to life in a case on large-scale environmental pollution. This calls for particular attention to the justifications for applying Article 2. The Court applied the requirement of a ‘real and imminent’ risk to life for the positive obligations to be triggered, the term ‘real’ corresponding to ‘the existence of a serious, genuine and sufficiently ascertainable threat to life’, and ‘imminence’ entailing an element of material and temporal proximity (para. 377, see also KlimaSeniorinnen, para. 513).
The Court considered that there was ‘ample evidence in the case file suggesting that the national authorities knew about the existence’ of the activities of illegal dumping and burying of hazardous waste at least from the early 1990s, and the illegal combustion at least since 2004 (para. 387). The authorities had also been aware of rising cancer and mortality rates, and the information had raised ‘credible prima facie concerns about serious, potentially life‑threatening health implications for the affected citizens’ (para. 388, compare and contrast Di Sarno and Others, para. 108). The Court accepted ‘the existence of a “sufficiently serious, genuine and ascertainable” risk to life to engage Article 2 of the Convention and trigger a duty to act on the authorities’ part’. The risk was ‘imminent’, given ‘the applicants’ residence, over a considerable period of time, in municipalities identified by the State authorities as being affected by the pollution phenomenon at issue, which had been ongoing, omnipresent and unavoidable for decades’ (para. 390). The Court in this way, for the first time, applied and accepted the existence of a ‘real and imminent’ risk to life which originated from pollution and did not have to manifest itself in life-threatening conditions of the applicants. The actual imminence of death for each individual may thus have been rather remote. (See, similarly, KlimaSeniorinnen under Article 8 with respect to climate change, para. 437, and for criticism and case law indicating a more demanding standard of imminence, judge Eicke’s dissenting opinion, para. 60).
Individuals affected by environmental pollution face many challenges when seeking redress before courts. One is the establishment of causal links between pollution and health impacts. Importantly, in Cannavacciuolo and Others, the Court did ‘not consider it necessary or appropriate to require that the applicants demonstrate a proven link between the exposure to an identifiable type of pollution or even harmful substance and the onset of a specific life-threatening illness or death as a result of it’ (para. 390). The Court further held that ‘given that the general risk had been known for a long time […] the fact that there was no scientific certainty about the precise effects the pollution may have had on the health of a particular applicant cannot negate the existence of a protective duty’ (para. 391). The Court thus explicitly dealt with and rejected a need to show exposure to pollution or causal links between the pollution and individual health problems of the applicants. In this respect, the Court emphasised the need for Convention rights to be effective.
This is an important statement. It contrasts with other cases involving the applicability of Article 2 in relation to environmental pollution. In Brincat and Others v. Malta, the Court had held that although all but one of the applicants had health complications related to the exposure to asbestos, they had not been diagnosed with malignant mesothelioma. Further, it could ‘neither be said that their conditions constitute an inevitable precursor to the diagnosis of that disease, nor that their current conditions are of a life-threatening nature’. On these grounds, Article 2 did not apply ratione persone to many of the applicants (para. 84). Similarly, in L.C.B. v. the United Kingdom, the Court was not satisfied that there was a causal link between the exposure of a father to radiation and a child subsequently developed leukemia (para. 39). In Budayeva and Others v. Russia, the Court similarly referred to a causal link between the serious administrative flaws and the death of the applicants’ relative (para. 158).
The positive obligations under Articles 2 and 8 are often overlapping in environmental cases. The question of causation is often an issue before the Court in environmental cases also under Article 8. Generally speaking, the Court holds that when applicants submit that pollution negatively affects their health, they must present evidence of their illness and the causal link between it and the impugned pollution (for instance, Fägerskiöld v. Sweden (dec.)).
In some more recent environmental cases involving Article 8, the Court has made a less demanding assessment of causation, but has still often accorded it importance. The Court has held that although it could not ‘be said, owing to the lack of medical evidence, that the pollution from the waste management crisis necessarily caused damage to the applicants’ health’, the available evidence made it clear that the extensive exposure to waste made the applicants more vulnerable to various illnesses (Locascia and Others, para. 130; see also Kotov and Others v. Russia, para. 107). In Tătar v. Romania, the Court also held that the applicants had not proven a causal link between the exposure to sodium cyanide and asthma. Yet, the existence of a serious and substantial health risk raised a positive obligation for the state to adopt reasonable and adequate measures capable of protecting the right to respect for private life and home and more generally, to enjoy a healthy and protected environment (para 107, see also Fadeyeva v. Russia, para. 92).
In Cannavacciuolo and Others, the Court explicitly refused to adopt the logic of proving a link between the pollution and deteriorated health conditions of the applicants. It accepted the existence of a ‘real and imminent’ risk to life that triggered the applicability of Article 2. For the first time in the Court’s jurisprudential practice, such a risk originated from exposure to pollution that did not have to be proven for each individual, or to manifest itself in life-threatening conditions of the applicants.
As to the ensuing substantive assessment, the following points are notable. The Court generally offers discretion with respect to positive obligations in this types of matters. The starting point is that ‘the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation’ (para. 381, 396). Yet, the Court held that the authorities were obliged to:
· comprehensively assess the pollution phenomenon by identifying the affected areas and the nature and extent of the contamination;
· take action in order to manage any revealed risk;
· investigate the impacts of the pollution on the health of individuals living in affected areas;
· take action to combat the illegal dumping, burying and incineration of waste; and
· provide individuals living in the affected areas with timely information enabling them to assess the risks to their health and lives (para. 395).
The Court reviewed and found insufficient the measures taken by the authorities as to the management of risks (paras 412-423), investigation of health impacts (paras 424-430), to combat the illegal dumping, burying and incineration of waste (para. 431), monitoring by law-enforcement bodies (paras. 432-434), criminal investigations and judicial proceedings (paras 435-447), waste cycle management (para. 448-453), and the provision of information (paras 454-458).
The Court emphasised that the delay by the authorities was unacceptable (paras. 460-462). Overall, it had not been established that the state had done all that could have been required of it to protect the applicants’ lives (para. 465). The Court found a failure of the State to fulfil its positive obligations due to the lack of a systematic, coordinated, and comprehensive response to the problem (paras. 396-468).
III. The Use of a Pilot Judgment Procedure
The third central element is that the Court applied the pilot judgment procedure in the context of environmental harm. It gave detailed indications of measures to be implemented by the Italian authorities within two years, including i) a comprehensive, and coordinated strategy to deal with the problem, comprising clear timeframes for its implementation and the required resources (paras. 494-498); ii) an independent monitoring mechanism (para. 499); and iii) a public platform with all relevant information on the problem (para. 500).
This breaks new ground and can emphasise the gravity of the subject matter. After its introduction, the Court has used the pilot judgment procedure relatively sparingly. Pilot judgments have mainly concerned excessive length of proceedings, prolonged enforcement of court decisions and lack of enforcement in national judicial systems, restitution or compensation schemes for lost property in a transition context, and inhuman and/or degrading detention. The Court has also applied the pilot judgment procedure to voting rights, and concerning the protection of the rule of law (the Registry’s factsheet). The use of a pilot judgment procedure in an environmental pollution case is unprecedented.
The pilot judgment procedure allowed the Court to indicate in a somewhat more detailed way the required general measures needed to remedy the pollution problem. Questions of remedies have been considered a big challenge of the Court especially in environmental matters such as climate change. The extent and generality of remedial obligations can have particular importance in this context (Auz). Yet, the Court is often limiting itself to declaratory findings with a possible ordering of just satisfaction. The Court’s traditional approach to remedies and the implementation of its judgments is, indeed, that ‘its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment’ (Marckx v. Belgium, para. 58; for instance Varga and Others v. Hungary, para. 101).
Over the last decades, the Court’s practice has been undergoing changes towards a less declaratory approach (Keller and Marti, Colandrea, Leach, Sicilianos). The Court has generally indicated the need for remedial action, such as cleaning up of the territory, in environmental cases (Cordella and Others v. Italy, para. 182).
Yet, it has until Cavannacciuolo and Others refused to apply the pilot judgment procedure in environmental cases. In Cordella and Others v. Italy, it referred to the technical complexity of the measures necessary for the decontamination of the area concerned, which falls within the competence of the domestic authorities (para. 180). In KlimaSeniorinnen the Court similarly held that due to the ‘complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment’ (para. 657).
The Court established a number of measures to be taken by the respondent government. In this way, Cannavacciuolo and Others shows that the pilot procedure’s extension ‘beyond the sole interests of the individual applicant’ can involve concerns rather directly related to the environment despite human rights law’s emphasis on the harm to individuals caused by environmental problems (Redgewell; see for instance Kyratos v. Greece, para. 52). The Court for instance explicitly referred to the importance of ‘decontamination of areas affected by the environmental pollution at issue’, and rendering contaminated areas safe (para. 498).
From a comparative perspective, the established general measures were not particularly intrusive. The Human Rights Committee (Portillo Cáceres v. Paraguay, and Benito Oliveira et al. v. Paraguay) and the Inter-American Court of Human Rights (La Oroya Community v. Peru, Kaliña and Lokono Peoples v. Suriname, see also Perez-Leon-Acevedo) have required significantly more intrusive remedies. There are many possible explanations for the existing variations in remedial intrusiveness between human rights bodies. The Court’s use of a pilot judgment for such developments may provide some support for the explanation that the remedial aspect of the Court’s case law is developing where ‘legal stock’ for indicating general measures to implement the case law may be somewhat more abundant: it took place under Article 46 rather than under Article 41.
Further, the general measures indicated may be ‘compensating’ for the lack of broad individual access to the Court while emphasising subsidiarity and the management of its own docket. In Cannavacciuolo and Others, the measures indicated include, among other things, ‘measures aimed at identifying the areas affected by illegal waste disposal practices and assessing the nature and extent of their contamination’ (para 495), and ‘measures concerning the assessment of affected sites beyond those located within agricultural land are carried out in a comprehensive and coordinated manner’ (para. 496). The absence of such assessments was precisely what led to some of the individual applicants losing victim status ratione personae (para. 248-249).
Finally, the use of a pilot judgment procedure in Cannavacciuolo and Others may provide new insights into what an underlying systemic or structural problem triggering the application of Article 46 may be. The Court held that the violation originated in a widespread, large-scale pollution phenomenon carried out over decades in a way often described as ‘systematic’ and that there had been a systemic failure to correspond adequately, in terms of timeliness and measures taken, to this pollution (para. 490).
It is notable that the systemic problem identified was related to insufficiency and belatedness in the domestic authorities’ response to the problem, but not to an ineffective implementation of earlier judgments. One of the aims of the pilot judgment procedure is to facilitate the effective implementation of the Court’s judgments (Suljagić v. Bosnia and Herzegovina, para. 61; Olaru and Others v. Moldova, para. 50). Many pilot judgments reflect an existing difficulty or unwillingness to adjust domestic practices in response to the Court’s adjudication (Greens and M.T. v. the United Kingdom; Burdov v. Russia (No. 2), para. 134; W.D. v. Belgium, paras 161-162; Torreggiani and Others v. Italy, para. 88; Neshkov and Others v. Bulgaria, para. 268). Although an inactivity in the response to the Court’s judgments has not always been underlying the application of a pilot judgment procedure (for instance, Kurić and Others v. Slovenia, paras. 410-411), the Court in most pilot judgments refers to the fact that it already has found violations of the Convention in numerous similar applications, or even a second set of violations with respect to the same applicants (Broniowski v. Poland, para. 189; Burdov v. Russia (No. 2), para. 133; Rumpf v. Germany, para. 53; Wałęsa v. Poland, para 319-320). In Cannavacciuolo and Others, the prior involvement of the Convention control machinery was not part of identifying the systemic problem.
Conclusion
Cannavacciuolo and Others is a rich judgment still to be analysed in more detail. Yet, this post has argued that three aspects of are worthy of particular attention. First, the Court was not willing to apply more lenient requirements of standing for associations, indicating a certain artificiality in KlimaSeniorinnen’s justifications for singling out climate change matters in this respect. It also restricted the victim status of individuals not living outside certain administrative areas, even though the authorities were at fault for not thoroughly assessing the territorial impacts of the pollution.
Second, for the first time, the Court applied positive obligations under the right to life in a case on large-scale environmental pollution. The Court found an imminent risk to life without the need for the applicants to prove that they individually had been subject to the pollution and developed health issues caused by it. While it may potentially allow for a rather far-fetched ‘imminence’ of the actual threat to the life of the applicants, it provides an important answer to the practical challenges in seeking redress before courts in environmental matters.
Third, the pilot judgment procedure was, for the first time, applied in an environmental case. This allowed the Court to indicate in a somewhat more detailed way the required general measures needed to remedy the pollution problem. It may be a small step towards further attention to the environment in a system which primarily emphasises the harm caused to individuals.
In this way, the case significantly contributes to the Court’s judicial practice in environmental matters.
