52 - The Cannavacciuolo v Italy case – the role…

On 30 January 2025 the European Court of Human Rights handed down judgment in Cannavacciuolo v Italy (51567/14).

The case has received a lot of attention given the finding of a breach of Article 2 – the right to life – in relation to environmental pollution issues.

The case concerned dumping, burying or burning of waste on private land, in parts of the Campania region known as the Terra dei Fuochi. This had been going on since the 1980s. It was often carried out by organised criminal groups (see para. 38 referring to “[p]art of the waste was transported to Campania from the industrialized areas of the north of Italy by the so-called Ecomafia” and para. 300 reporting that “national and district Anti-mafia Directorates had been aware of the illegal practices since at least 1993”). Increased rates of cancer and pollution of groundwater had been recorded in the area.

In terms of the Aarhus Convention this came in to play in several ways.

First, in examining international law and practice the Court referred to Aarhus in the context of environmental information:

“2. Collection and dissemination of environmental information

181. The United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) was adopted on 25 June 1998 and came into force on 30 October 2001. Italy ratified the Convention on 13 June 2001. The Preamble to the text recognises that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself.

182. Article 5 § 1 (c) of the Aarhus Convention requires each Party to ensure that “in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected””

Second, the Court noted that Client Earth were given leave to intervene and argued:

“366. …. that collecting information about environmental pollution was the first, essential, step to protect life and the health of a population effectively. Once this information had been collected, it had to be made available to the public. The intervener submitted that a State’s obligation to collect and disseminate information applied continuously, and independently of a specific decision-making procedure. If environmentally harmful conduct was being carried out without official authorisation, as in the present case, a State’s positive obligation to monitor the situation and provide the population with information related to the protection of their health acquired even greater significance. It drew the Court’s attention to Article 5 § 1 (c) of the Aarhus Convention (see paragraph 182 above).

367. The third-party intervener further submitted that such an obligation not only required dissemination of the information held by a public authority, but also required the authorities to collect information proactively. It pointed out that, according to the Aarhus Convention Implementation Guide, active collection and dissemination of information implied a sense of urgency that certain types of information should reach the public. While the basic obligation was to make environmental information available “progressively”, the Aarhus Convention imposed a clear obligation to “disseminate immediately and without delay” all information “which could enable the

public to take measures to prevent or mitigate harm arising” from “any imminent threat to human health or the environment”, whether it was caused by human activities or due to natural causes. This provision sought to ensure that individuals were informed of any risks to their health arising from polluting activities, so they could take the necessary precautions and/or apply to the relevant authorities for urgent measures.”

Third, while a number of individual applicants succeeded before the Court a number of environmental associations unsuccessfully sought to contend that they could claim victim status and hence locus standi. The Court rejected this:

“(iii) The Court’s assessment

…

216. The Court considers that, in assessing whether the applicant associations may be considered victims of an alleged violation of the

Convention, weight must be attached to the nature of the Convention right at stake and the manner in which it has been invoked by the applicant associations in question (see, mutatis, mutandis, Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği, cited above, § 41). In this regard, it notes that the rights at stake are Articles 2 and 8, and that an infringement of these rights allegedly arises, according to the manner in which the complaints have been formulated, from a failure by the State to take steps to protect the life and health of the associations’ members. As regards Article 2, the Court has held that such a right is, by its nature, not susceptible of being exercised by an association, but only by its members (see Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği, cited above, § 41, and the refences cited therein). The Court has also found that it would be inconceivable that physical integrity, susceptible to be enjoyed by human beings, could be attributed to a legal person (see Identoba and Others v. Georgia, no. 73235/12, § 45, 12 May 2015). The Court has further pointed out that an association is in principle not in a position to rely on health considerations to allege a violation of Article 8 (see Greenpeace E.V. and Others v. Germany (dec.), no. 18215/06, 12 May 2009). It has also found that an association could not claim to have victim status in respect of a complaint raised under Article 8 where the alleged infringement of the right resulted from nuisances or problems which can be encountered only by natural persons (see Asselbourg and Others v. Luxembourg (dec.), no. 29121/95, ECHR 1999‐VI). As the infringement alleged in the present case under Article 8 essentially overlaps with the one complained of under Article 2, and stems from a danger to health on account of exposure to a pollution phenomenon, which can only affect natural persons, the Court considers that the applicant associations cannot be considered as having been “directly affected” by the alleged violations.

217. As to the complaint concerning the provision of information by the authorities, the Court notes at the outset that the applicant associations’ complaint does not concern an alleged failure to grant them access to existing information, a positive obligation that the Court has, under certain conditions, recognised to exist and for which associations were considered as victims in their own right (see, for example, and from the perspective of Article 10, Association Burestop 55 and Others v. France, nos. 56176/18 and 5 others, § 83, 1 July 2021 and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 149-156, 8 November 2016). Rather, the complaint hinges on the alleged failure by the authorities to provide, proprio motu, information concerning the risks to their members’ health in connection with the pollution phenomenon at issue. In this respect, the Court has recognised, in a number of cases concerning dangerous activities, the existence of a positive obligation to provide information as part of preventive measures under the substantive aspect of Articles 2 and 8 (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-90, ECHR 2004-XII; Tătar v. Romania, no. 67021/01, § 88, 27 January 2009); and, by implication, Guerra and Others v. Italy, 19 February 1998, §§ 57-60, Reports of Judgments and Decisions 1998-I). It has done so, however, with respect to physical persons living in proximity of dangerous activities, with a view to enabling such individuals to assess the risks to their lives, health and physical integrity stemming from exposure to such activities, and to make choices accordingly. Against this background, in the Court’s view it would be, once again (see paragraph 216 above), the associations’ individual members, as physical persons, who would be directly affected by the impugned omission to provide information complained of (see, mutatis mutandis, Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği, cited above, § 43).”

The Court acknowledged (see para. 218) that “the applicant associations’ submissions regarding the role they played in denouncing the pollution phenomenon at issue before the governmental and judicial authorities, and also in denouncing the State authorities’ failure to protect the lives of their members and the Campania Region’s population” but rejected them having locus standi.

This blog post was written by James Maurici KC.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.