Between public interest, environmental constraints and technical discretion, the Iropi report approved by the Government opens a new legal front on the most discussed infrastructure project of the country.
In the tutor of national and European rules, the Bridge on the Strait of Messina He returns to the center of the debate not only as a engineering challenge or object of opposing visions on the development of the South, but also as emblematic legal case of environmental derogation based on “imperative reasons of prevalent public interest”.
The recent approval, by the Council of Ministersfrom the Iropi report (Imperative Reasons of Overriding Public Interest) relating to the realization of the Stable connection between Sicily and Calabria constitutes a significant legal-administrative advancement in the long and complex procedural process which leads to the concrete implementation of this infrastructure work. The act in question does not represent, in fact, a mere formal stop, but is configured as a passage with relevant legal scopesuitable to substantially affect the relationship between infrastructure development And Environmental protectionin light of the Eurounitarian legislation and its mechanisms of transposition in the Italian system.
From the point of view legalthe concept of Dwelling it is located within the system of derogation foreseen by Directive 92/43/EEC – Note how Habitat directive – on Conservation of natural habitats and of the wild flora and fauna. This institute was implemented in Italy through the DPR n. 357/1997subsequently modified and integrated, and allows the Member States to authorize projects that negatively affect on protected areas or protected speciesexclusively in the presence of imperative reasons for significant public interestduly documented and non -erudible, which must fall into three fundamental areas: the Public health protectionthe People safety and the existence of indirect but still significant environmental benefits.
Specifically, the Report approved by the Italian government affirms the existence of imperative motivations referable to all three conditions just mentioned: public security, human health And important environmental benefits. These are elements legally qualified And substantially necessary to allow, in the framework of the Union lawthe continuation of theauthorization process of a infrastructure project which, as noted in the previous one Environmental incidence evaluation (Vinca) approved by Ministry of the Environment and Energy Safetyinvolves a significant environmental impact – and in part not mitigable – in at least three areas of High ecological fragility: i Monti Peloritanithe Costa Viola he is seabed between Punta Piece and head of the weapons.
Precisely in this context, the approval of the Iropi report implies, as a corollary legally bindingtheobligation forcompetent authority to prepare a Detailed plan of compensatory measuresaimed at mitigate, compensate and – as far as possible – neutralize negative effects of the intervention on thenatural environment. Such measures must guarantee the conservation of biodiversity and of ecosystem balanceswith particular attention to migratory corridors of the AVIFAUNA and to the endemic vegetationand represent an element essential For the purposes of legitimacy judgment of the entire procedure. It is precisely on this aspect that significant profiles of administrative liabilityas theomit, partial or Difference implementation from the compensatory measures configures not only one violation of obligations imposed by Habitat directivebut also a conduct susceptible to give rise to Responsibility for environmental damage Pursuant to the Part VI of Legislative Decree no. 152/2006. Such responsibility they can weigh both onproceeding administration both on Implementing subjectsdepending on the nature of the conventional obligations or implementation hired as part of theProgram agreement.
On the plane jurisdictionthe Iropi report it is fully unions in the face of administrative judgedespite being an expression of technical discretion. The union of the administrative judge may focus on the logic, adequacy And Completeness of the investigationon the correctness of the analysis of the less impactful alternatives and on internal consistency of the reasons given. In the absence of a adequate balance Between public interests And environmental protectionor in the presence of a apodictic motivationthe judge may cancel the act For defect in preliminary investigation or for violation of the principles of proportionality and precautionalso widely recognized by jurisprudence of the Court of Justice of the European Union. To this is added the possibility of activating a infringement procedure by the European Commissionif it is ascertained that the conditions provided for the Iropi derogation have not been satisfied, or that the compensatory measures have not actually been implemented. In serious cases, this can lead not only to one pecuniary sanctionbut also to suspension of European funds possibly involved in financing of the work.
In the continuation of theprocessthe next step required by Italian legislation It is represented by theapprovalby the Cipessof Financial economic plan and related Program agreementwhich constitutes a Administrative negotiating actface to crystallize mutual obligations and the Responsibility of the parties involved – including the Ministry of Infrastructure and TransportThe MEFthe Regions concerned, RFI, Anas and the Strait company of Messina. THE’Agreement ha binding nature and represents a decisive moment of institutional coordinationwhose correct implementation is essential to ensure the compliance with community constraintseven from the point of view ofexecution of environmental compensation measures.
Subsequently, the executive designthe final phase of the design according to the Legislative Decree no. 36/2023 (Code of public contracts)functional to the definition of each individual aspect technician, management And construction of the work. Also in this phase it remains theobligation Of fully comply with environmental and compensatory requirements provided for by Iropi reportwhich become binding clauses in the context of contractual obligations and can be the subject of monitoring And verify by the Bodies in chargeas well as disputes in case of default.
The approval of the Iropi reporttherefore, represents not only a procedural advancement towards the realization of the Bridge on the Straitbut also constitutes a real legal turning in the application of the Institutes of European Environmental Law in the infrastructure field.