Italy: The “Last Judgement” - a halt for climate litigation?

On 26^th February 2024, the Civil Court of Rome dismissed the first Italian climate litigation filed by a group of 24 NGOs and more than 200 private citizens (the “Claimants”) against the Italian State. 

The case was filed on 4^th June 2021 and was dubbed “Giudizio Universale” (in English: the Last Judgement) by the Claimants, as to emphasize the urgency of the climate crisis and to call the Italian State for action. 

The Claimants sued the Italian State, legally represented by the Bureau of the Council of Ministers, to require Italian authorities to do more to halt global climate change. More specifically, the Claimants has sought the Court of Rome to force the Italian State to adopt any necessary measures to reduce greenhouse gas emissions (GHG), setting a specific goal: a 90 percent reduction of national GHG compared to 1990 levels, by 2030. 

As for the legal grounds, the Claimants alleged a breach of their “right to the climate” and a “right to preserve liveable conditions for future generations”, therefore, primarily framing the case according to Article 2043 of the Italian Civil Code (the general extra-contractual liability rule, also known as the “neminem ledere principle”) and, secondarily, seeking the Court to force the Italian State to implement any needed regulatory policy to reach the goal, according to Article 2058 of the Italian Civil Code (compensation in specific form). 

In short, firstly, the Claimants asked the Court to review the Italian State’s climate action; secondly, they sought an amendment of the National Integrated Energy and Climate Plan (“PNIEC”), a strategic document which defines a national energy and climate policy regulated by EU Regulation 2018/1999. 

The Court of Rome dismissed both the claims as not admissible, arguing: 

1. a lack of absolute jurisdiction with reference to the possibility for the civil judge to interfere with the Italian State’s climate action: it would have breached the principle of separation of powers; 
2. a lack of relative jurisdiction with reference to the possibility for the civil judge to review the “adequacy, consistency and reasonableness” of the PNIEC within the law: the Court affirmed the Claimants should have filed a lawsuit before the administrative court rather than the civil court.

Academics who have first commented on the Court of Rome’s judgment criticized the decision for its brevity and its poor argumentative structure: after a three-year proceeding and considering the complexity and urgency of the topic at stake, academics expected the Court’s approach to be more meticulous and the arguments to be more substantiated. Critics argue that the Court of Rome’s choice not to consider the matter, deeming Italian State climate action as a topic reserved for “politics” (and, therefore, declaring the case inadmissible), appears not to be adequately motivated, especially in light of recent Supreme and Constitutional courts case law on the neminem ledere principle.

Despite this, one could argue the Court of Rome’s decision does not entirely constitute a débâcle for climate activism: here are the reasons why the Last Judgement decision has also marked some positive steps for climate action in Italy. 

Firstly, the Court of Rome acknowledged the “objective complexity and seriousness of the emergency of a planetary nature caused by anthropogenic climate change”, recognising, on one hand, that the climate crisis “is not in dispute between the parties” and, on the other hand, inclining to set off the costs of the proceedings between the parties, in lieu of applying the general losing party principle (“principio della soccombenza”). 

Secondly, the Court of Rome indicated the Administrative Court as a viable path to pursue a review of the legitimacy of the Italian state's climate action. 

Lastly, it is worth noting that the decision of the Court of Rome follows several other European Courts which have already rendered decision in similar climate litigations, showing different approaches and outcomes compared to the one at stake. 

For example, the Klimaatazaak (literally, in English: “The Climate Case”), a lawsuit filed by a group of NGOs and citizens against the Belgian State and its four regions, alleging Belgian climate inaction, is worth considering. On 30^th November 2023, the Brussels Court of Appeal not only confirmed the first instance decision in which the Belgian State and its four regions’ climate action was declared insufficient but also set specific targets to reduce greenhouse gas emissions by at least 55% by 2030. 

This case presents similarities with the Last Judgement: in both lawsuits the principle of separation of powers played a role. Initially, although declaring climate inaction, the Court of first instance of Brussels, similarly to the Court of Rome, decided not to set specific climate targets under the principle of separation of powers. This reasoning was not upheld by the Brussels Court of Appeal which stated, instead, that the power of injunction against public authorities would not violate the principle of separation of powers, provided that “On the one hand, the Court does not replace the authorities in choosing the necessary measures to reach the targets. On the other hand, the public authority retains full discretion both as regards the pursuit of a possibly more ambitious objective, and as regards the determination of the measures likely to enable its implementation”. 

To conclude, there is good reason to agree with the opinion of academics who affirmed that the Court of Rome did not live up to the expectations, not even from a strictly legal point of view. Especially considering that the Last Judgement proceeding represented the first climate litigation filed in Italy, the Court of Rome could have presented more well-founded arguments: climate change cannot be a topic dismissed in seven pages. But the path to appeal remains open!