The work examines the ongoing reconfiguration of private law within European constitutional space, as environmental and health-related conflicts increasingly test the boundaries of political discretion. Focusing on judicial interventions concerning the legal regime for industrial installations designated as being of ‘strategic national interest’ – most notably the Italian Constitutional Court’s decisions no. 85/2013 (Ilva) and no. 105/2024 (Isab), together with the Court of Justice of the European Union’s ruling in Case C-626/22 – the study reconstructs a structural tension between two models of democratic legitimation and control. The first model, endorsed by the Italian Constitutional Court, tends to centralize the balancing between competing rights within the political–administrative decision-maker and to confine judicial review to formal legality. The second model, driven by the Court of Justice and echoed in European Court of Human Rights case-law, enables a concrete assessment of risks to health and environmental integrity, which may lead to the disapplication of national measures that undermine EU protections. Against this background, the work suggests that the European approach envisages a more sophisticated checks-and-balances logic, in which private-law remedies prompt judges to ensure that restrictions of fundamental rights do not fall below the level of protection required by EU law.
Funzioni e tecniche del diritto privato nel governo dei rischi da attività inquinanti: prospettive evolutive alla luce della giurisprudenza delle Alte Corti sugli «stabilimenti di interesse strategico nazionale»
Michael William Monterossi
2025-01-01
Abstract
The work examines the ongoing reconfiguration of private law within European constitutional space, as environmental and health-related conflicts increasingly test the boundaries of political discretion. Focusing on judicial interventions concerning the legal regime for industrial installations designated as being of ‘strategic national interest’ – most notably the Italian Constitutional Court’s decisions no. 85/2013 (Ilva) and no. 105/2024 (Isab), together with the Court of Justice of the European Union’s ruling in Case C-626/22 – the study reconstructs a structural tension between two models of democratic legitimation and control. The first model, endorsed by the Italian Constitutional Court, tends to centralize the balancing between competing rights within the political–administrative decision-maker and to confine judicial review to formal legality. The second model, driven by the Court of Justice and echoed in European Court of Human Rights case-law, enables a concrete assessment of risks to health and environmental integrity, which may lead to the disapplication of national measures that undermine EU protections. Against this background, the work suggests that the European approach envisages a more sophisticated checks-and-balances logic, in which private-law remedies prompt judges to ensure that restrictions of fundamental rights do not fall below the level of protection required by EU law.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
