April 02, 2025
Violetta Sefkow-Werner
The recent judgment of the European Court of Human Rights (ECtHR or the Court) in the case Cannavacciuolo and Others v. Italy of 30 January 2025 concerns a large-scale pollution phenomenon in the Italian Campania region caused by decades-long illegal and uncontrolled waste disposal by private actors and sustained by the government’s systematic failure to control and mitigate these life-endangering practices. The Court found a violation of Article 2 of the European Convention on Human Rights (ECHR) due to the authorities’ failure to take appropriate and sufficient measures to protect the lives of the applicants living in the affected area. Aside from the Court’s treatment of pollution under Article 2 ECHR while borrowing from due diligence and causality standards developed in its Article 8 ECHR case-law and the application of Article 46 ECHR (discussed here on this blog), the judgment is notable for its findings on individual victim status and representative standing post KlimaSeniorinnen, which is the topic of this blog post. The Court distinguished the Cannavacciuolo case from KlimaSeniorinnen and declared only the application by the individual applicants as admissible (by six votes to one). This technical distinction between climate change-related and environmental matters was criticized by Judges Krenc and Serghides in their respective separate opinions, as well as other academic commentators (see, e.g., here and here).
Illegal waste disposal practices started in the late 1980s and involved the dumping, burying, burning and/or uncontrolled abandonment of hazardous waste. These practices resulted in the contamination of air, soil and groundwater, e.g. with heavy metals and dioxin. This was followed by an ineffective regulatory response from the Italian government and local authorities.
Starting in 2013, a series of inter-ministerial decrees formally established the “Terra dei Fuochi” zone, eventually comprising of 90 municipalities that were considered to be affected by the waste disposal practices. The demarcation of this zone was based on multiple studies on environmental contamination levels and the health situation. The latter showed, for example, increased cancer mortality rates compared to previous years and the rest of Italy. The inhabitants of the zone, numbering almost 3 million, make up 52% of the population of the entire Campania region.
The application was brought by individuals who were either residents of areas within the Terra dei Fuochi zone, or relatives of deceased residents as well as five local environmental associations. The individual applicants and the deceased persons all suffered from severe health conditions, which manifested in various types of cancer.
The associations argued that their main goal was the protection of the environment in the affected areas. They also pointed out that their founders, administrators and members all resided in the affected municipalities. They sought to support their claim by referring to the Câmpeanu case, where Court had previously allowed exceptional representative standing for an association without power of attorney.
The Court held that the associations themselves do not qualify as direct victims. Confirming its established environmental case-law (Yusufeli, Greenpeace, Asselbourg), it stated that only natural persons can claim to be a victim of a violation of the right to life, health or physical integrity and therefore the associations could not rely on Articles 2 and 8 ECHR. Nor could the associations claim a breach of the obligation for authorities to provide information about environmental pollution or risks. Being part of Articles 2 and 8 ECHR, this could only be claimed by the ‘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 activity’ (para. 217).
Insofar as the associations claimed a violation their members’ rights, the Court found that the associations did not have standing to litigate same. Recalling its jurisprudence in Câmpeanu and KlimaSeniorinnen, it stated that it would allow representative standing only in exceptional circumstances, viz where the direct victim is unable to lodge the application themselves due to extreme vulnerability or in light of the “special considerations relating to climate change”. As the associations’ members were able to file applications in their own name, which some of them in fact did, and the Cannavacciuolo case was ‘plainly not concerned with the issue of climate change’ (para. 221), the Court concluded that there was no basis for it to accept standing of the associations to act on behalf of their members.
The government contested the existence of a proven causal link between the environmental contamination and the adverse impacts on the lives and health of the applicants. Furthermore, they argued that any individual not residing in a municipality listed in the inter-ministerial directives could not qualify as a victim of the pollution phenomenon.
The applicants relied on statistical evidence to establish a causal link. They also submitted that since the applicants who did not reside in one of the listed municipalities still lived close to them, they were in fact exposed to health hazards and thus victims. Moreover, they pointed to the difficulty in defining precise boundaries for environmental contamination as harmful substances are transferred through the soil, water and air. The third-party interveners (Client Earth) highlighted that Article 2 ECHR can be invoked in the face of a risk even when that risk has not yet materialized.
The Court denied victim status for those individuals who resided outside the listed municipalities. It considered ‘that the domestic authorities were undoubtedly in possession of relevant evidence and information which led them to single out the municipalities in question and it is not for the Court to call into question such an assessment, which the authorities were better places to make’ (para. 247). Thus, although the Court acknowledged the presumptive foundations and non-exhaustive character of the list, it showed maximum deference to the government’s assessment. Likewise, while taking note of the cross-bordering nature of air and water pollution, it found ‘that it does not have sufficient evidence at its disposal to enable it to conclude that the applicants concerned lived … in areas affected by the pollution phenomenon at issue in the present case’ (para. 248).
With regard to the remaining applicants, the Court dismissed the government’s objections regarding the non-exhaustion of domestic remedies because no effective remedy was available to the applicants to provide redress. Nine of the remaining applications were then declared inadmissible for failure to comply with the six-month time-limit.
In the context of its assessment of the applicant associations’ standing, the Court distinguished between environmental matters, such as those raised in the Cannavacciuolo case, and climate matters, as raised in the KlimaSeniorinnen case. This sharp distinction was criticised by Judges Krenc and Serghides in their respective separate opinions as artificial and counterproductive.
Judge Krenc pointed to the similarity of climate change and environmental harm, arguing that there was similar uncertainty and imprecision attached to the effects large-scale pollution in terms of geographical scope, affected persons and timescale. He also referred to the ‘triple global crisis’ that encompasses climate change alongside with pollution and loss of biodiversity, which suggests that a uniform approach should be taken in to address all three issues. Judge Krenc agreed with the majority decision to deny standing in Cannavacciuolo because, unlike in KlimaSeniorinnen, the individual applicants were able to lodge their own application – notably because the Court did not require them to show a direct link between individual harm and exposure to pollution whereas in KlimaSeniorinnen, it applied a much stricter victim status test. While agreeing with the decision in its result, he criticized the overall approach taken by the majority. He argued that expanding access to court for NGOs would improve the effectiveness of legal action, enhance environmental justice, and take heed of the Court’s subsidiarity in cases where the national authorities have granted standing to the association. Moreover, he advocated for the establishment of clear and consistent guidelines as opposed to the existing case-by-case approach.
In Judge Serghides’ view, the Cannavacciuolo case is not a traditional environmental case but has ‘special features’ that justified applying the KlimaSeniorinnen standingcriteria. Considering that the pollution was large-scale, had diffuse and long-term (potentially multigenerational) effects, and by employing the wording of the KlimaSeniorinnen judgment, he argued that the Terra dei Fuochi phenomenon too raised issues of intergenerational burden-sharing, affected vulnerable groups the most, featured emissions that produce various and far-reaching cross-border harmful consequences through a complex chain of effects similar to GHG emissions, and was a polycentric issue.
As the separate opinions point out, on a more abstract level, there are indeed parallels between climate change and pollution cases. The judgment does not explore this further. The Court’s broad-brush distinction between ‘climate’ and ‘environment’ could be seen as an attempt to provide a clear – albeit not cogent – answer and end to the debate. The reliance on environmental rights and jurisprudence to address climate change shows that both fields are intertwined. Moreover, when establishing its standing test in KlimaSeniorinnen, the Court itself drew upon the rationale of the Aarhus Convention, which applies to environmental matters. Thus, if an environmental treaty is relevant for the interpretation of standing in climate cases, why should this not apply vice versa? Although the Court stated that it would not formally and directly apply the Aarhus Convention (perhaps merely for jurisdictional reasons, see here), it itself linked environmental matters (Aarhus Convention) and climate change (KlimaSeniorinnen).
Both the Cannavacciuolo and the KlimaSeniorinnen case have a complex factual background, which makes it difficult for individuals to lodge an application. This was emphasized not only by the third-party interveners (para. 214) but also becomes apparent from the first part of the judgment, which presents a comprehensive set of facts spanning over a long period of time and involving multiple studies and expert knowledge furnished by the respondent State. Moreover, the Court’s reasoning regarding the violation of Article 2 ECHR acknowledges the particularity of the case. There, the Court noted that, unlike other environmental cases, there was no single, identified, circumscribed source of pollution, and that the case concerned a ‘particularly complex and widespread form of pollution’ (para. 384). The Court also referred to the Italian Senate’s report according to which the Terra dei Fuochi phenomenon was characterized by the ‘multiplicity of sources of pollution which are very different as to their type, their geographical extension, the pollutants released, the ways in which individuals came into contact with them, and their environmental impact’ (para. 384). These considerations led to Court to lower the causation requirements (in line with KlimaSeniorinnen) but did not play a role in terms of access to court through representative standing. As argued here, with reference to both KlimaSeniorinnen and the African Court of Human and Peoples’ Rights’ case-law, it is time for the ECtHR to depart from its individualistic perspective on victim status when it comes to large-scale pollution cases.
While the Court was restrictive concerning the associations’ standing to bring the complaint, it adopted a more generous precautionary approach with regard to individual victim status and the violation of Article 2 ECHR. Considering that the applicants had lived in the affected areas for an extended period of time with constant exposure to the pollution, the Court did not require them to prove a link between the exposure and a specific negative consequence thereof (para. 390). It deemed general causation between the pollution phenomenon and an increased risk of life-threatening illnesses or death to be sufficient. It also found the risk to be ‘sufficiently serious, genuine and ascertainable’ and ‘imminent’ in the sense of the KlimaSeniorinnen standard (para. 390).
While this made it relatively easy for the individual applicants to pass the admissibility hurdle, there is one caveat the Court issued to narrow down the pool of possible victims: the list of municipalities the government declared as being affected by the pollution phenomenon. In simple words: if an individual was a resident in one of the listed municipalities, they qualified as a direct victim. This list essentially performed a gatekeeping function. This could be seen as problematic in two aspects. First, the list was known to be non-exhaustive and did not exclude the possibility of bordering municipalities being exposed to the same risks. The Court also did not seem to mind that the list was based on presumptions. Second, the Court’s strong deference to the national authorities’ assessment of the facts – albeit not unfamiliar – in this case concerns an essential part of the determination of victim status. As pointed out here, this complete reliance on the government’s list is particularly irritating considering that the judgment held the authorities responsible for failing to adequately investigate the territorial impacts of the pollution.
The Cannavacciuolo case is a complex and large-scale pollution case that the Court decided to solve based on its established environmental case-law. It rejected applying the KlimaSeniorinnen standing test despite the parallels between both cases and issues raised therein as highlighted by the two separate opinions. In turn, it adopted a more generous approach in terms of existence of a real and imminent risk as well as causation under Article 2 ECHR, based on which it accepted the individual applicants as victims.
Looking at the Court’s decisions in Cannavacciuolo and KlimaSeniorinnen through the lens of access to court, it appears as if the Court treats environmental cases as raising traditional individual concerns that can only be brought to the Court by individuals, whereas climate change is a general concern that can (or should) be raised by NGOs. For the reasons discussed above and submitted by Judges Krenc and Serghides, this distinction according to subject matter is flawed because it overlooks the fact that the complaint and nature of the violation can differ depending on whether it is raised by an individual or an association: an individual application is likely to address a very specific – plainly individual – concern whereas an NGO will be more likely to focus more on the general, systematic aspect of a violation. In the Cannavacciuolo case, the individuals’ applications concerned specific health impairments whereas associations’ applications addressed the issue in a more general manner by denouncing the pollution and systemic failure of the authorities. Interestingly though, the Court’s assessment of Article 2 ECHR did not focus on the specific individuals and their concrete health impairments but built on the general risk of harm to human life caused by the pollution and the government’s failure to act upon it. This more abstract standard of review in the merits thus resembles the one applied in KlimaSeniorinnen, although both judgments differ in terms of procedural avenues granted to the applicants. From a pragmatic perspective, as it is known from the Court, this might be of limited relevance but raises coherency issues in terms of access to court.
Another manifestation of pragmatism is the Court not letting go of its exceptional case-by-case approach towards allowing representative standing. In Cannavacciuolo, the Court stated that it ‘cannot discern any other “special considerations” (see [KlimaSeniorinnen, para. 475]) or “exceptional circumstances” (see [Câmpeanu, para. 112]) which would lead it to grant standing to the applicant associations to act on behalf of their members, the alleged direct victims, without a specific authority to do so’ (para. 212). The judgment does not provide any guidelines of what would qualify as special circumstances (see also criticism by Judge Krenc in para. 15 of his separate opinion). While the preservation of flexibility and leeway in decision-making might appear favourable at first sight – at least from the Court’s perspective – the Court also risks becoming entangled in its own contradictions.
In conclusion, the Cannavacciuolo judgment reinforces the singularity of the KlimaSeniorinnen judgment and mostly remains within the Court’s familiar topoi. It is nevertheless noteworthy as an example of finding a large-scale violation and for the critical arguments raised in the separate opinions
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