*Written by Silvia Zanini, post-doctoral researcher and ICALP member
After years of proposals, parliamentary discussions and debates, on 8 February 2022 the Chamber of Deputies finally approved, with 468 votes in favour, one against and six abstentions, the reform bill that amends Articles 9 and 41 of the Constitution, to protect the environment, biodiversity, animals and ecosystems, also in the interest of future generations.
In short, here is how the two articles of the Constitution are amended:
Article 9. The reform introduces the third paragraph. Therefore, the new text of the provision reads as follows (author's translation):
"The Republic promotes the development of culture and scientific and technical research.
It protects the landscape and the historical and artistic heritage of the Nation.
It protects the environment, biodiversity and ecosystems, also in the interest of future generations. State law shall regulate the ways and forms of animal protection".
The environment is expressly considered as a constitutionally protected primary value whose protection is addressed to posterity, i.e. to future generations. This latter formulation is absolutely innovative for the Italian constitutional text.
The fundamental reference to future generations, or rather, to their interests, confers a spectrum of state responsibility that will be the subject of interpretation and discussion (as happened at the time for other European constitutional provisions of similar scope, such as the German constitution (Grundgesetz), which in art. 20a links the constitutional protection of animals to future generations) and at the same time significantly strengthens one of the cardinal principles of environmental law: sustainable development.
This is a concept defined by the World Commission on the Environment in the Brundtland Report of 1987, according to which sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
It is also very interesting to note that, for the first time, animals are expressly mentioned in the Italian Constitution: the protection of all animals is elevated to constitutional status, since the text does not express any specifications or restrictions. On this point, there is a reservation of the law, stipulating that the legislator shall define the forms and methods of protection.
This is an important novelty that follows the orientation of European legislation, and specifically Article 13 of the TFEU according to which "the Union and the Member States shall, since animals are sentient beings, pay full regard to the needs of animals, while respecting administrative and legislative measures of the Member States relating in particular to religious rites, cultural traditions and regional heritage".
Article 41. The reform adds to the original text of the provision the words in bold (author's translation):
"Private economic initiative shall be free. It may not be carried out in conflict with social utility or in such a way as to damage health, the environment, security, freedom or human dignity. The law determines the programmes and appropriate controls so that public and private economic activity can be directed and coordinated for social and environmental purposes."
A few words that change the hierarchy of the assets to be protected. In fact, the reform not only introduces two new limits (health and environment) with respect to those already in place within which private economic initiative can take place, but puts them before them, establishing a new hierarchical order capable of restoring the balance between environmental protection and economic development, which until now has always tended to favour the latter.
Moreover, the allocation and coordination of public and private economic activity is not only for social purposes but, from now on, also for environmental purposes.
We are therefore faced with a reform that is undoubtedly historic, not only because for the first time since the Constitution came into force (1948) its first part, dedicated to the fundamental principles of the nation, has been amended, but also and above all because, finally, express recognition has been given to the environmental issue, making it an inviolable right of the individual and the community.
This is a fundamental step that will have to inspire future legislative choices and to which current legislation will necessarily have to adapt in order to define an organic and innovative regulatory system to protect natural capital in the direction of environmental sustainability, innovation and ecological transition.