Breakthrough in Italy: ESG Principles Become Fundamental Italian Constitutional Principles

On February 8, 2022, the Chamber of Deputies approved a proposed law ("Constitutional Reform" or "Reform") to include environmental, health and animal protection among the fundamental principles of the Italian Constitution, which represents a major breakthrough in Italy's implementation of the UN Sustainable Development Agenda.

The Constitutional Reform aims to amend Articles 9 and 41 of the Constitution.

Currently, Article 9 establishes that "the Republic promotes the development of culture and scientific and technical research" and "it protects the landscape and the historical and artistic heritage of the Nation." Traditionally, Italian case law has stretched the notion of "landscape" to include the environment more generally. Such a constitutional "hook" will no longer be needed because the Reform is expected to expand the scope of Article 9 by expressly including the protection of "the environment," in addition to "biodiversity and ecosystems, also in the interest of future generations.

This is a leap ahead for the Italian legal system in that it ensures unequivocal constitutional recognition to the protection not only of the environment, but also sustainability at large. Furthermore, for the first time the Italian Constitution will recognize the right and duty to assure the interest of future generations.

The Reform further aims at amending Article 9 by stipulating that "the law of the State shall regulate the ways and forms of protection of animals," without prejudice to the legislative powers granted to the specially administered Regions (Sicily, Sardinia, Aosta Valley, Trentino-South Tyrol, and Friuli Venezia Giulia), and the autonomous provinces of Trento and Bolzano. Once again for the first time, "animals" will become a priority for the Constitution.

Additionally, the Reform aims at amending Article 41, which supports and safeguards private entrepreneurship, by including "health" and "environment" as pillars of and limits to private initiatives. Consequently, the new wording of Article 41 is expected to stipulate that private enterprises "cannot be carried out in contrast with social utility or in such a way as to damage security, freedom, human dignity, health and environment." Moreover, the Reform bolsters environmental protection under Article 41 in that the law-maker will be able to pursue "environmental purposes," as well as "social purposes." As a consequence, the amended version of Article 41 may become the basis for prospective central governmental actions aimed at implementing ESG principles and policies, thereby following examples of the European Union and the United Nations.

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