1 Introduction1
As argued in the Introduction to this book, the fight against climate change needs to be mainstreamed in those policies that are connected to it, such as transport, energy and water, and spatial planning, because legislation enacted in those fields may have an impact on mitigation and adaptation objectives.2 An additional reason for focusing on climate change integration in sectoral policies is that, as shown in the following, neither Italy nor Austria provide an explicit competence to legislate on climate-related issues. In contrast, these are subsumed de facto in other sectoral competences, such as the protection of the environment, water, energy matters, mobility, and land use.
This chapter discusses in section 2 the division of competences between the national and subnational levels in the sectors of environmental protection, transport, energy and water, and spatial planning, both pursuant to the Constitutions of Italy and Austria and with reference to the orientation of the Constitutional Courts of the two countries. Section 3 outlines the main strategies and legislation in the same sectors, with a view to understanding to what extent these integrate climate change in the abovementioned fields of activity. Although national strategies are not accepted sources of law in the systems analyzed, both in Italy and Austria they are usually adopted by the government to set long-term objectives that are in line with both international and EU commitments.
2
2.1 Italy
The fight against climate change constitutes a specific policy field in the mandate of the new Ministry for Ecological Transition.3 Climate change is not an explicit policy competence under article 117 of the Italian Constitution; rather, it is a policy goal and a policy framework that needs regulations by the competent policy levels in order to be fulfilled.
Italy is a regional state, encompassing ordinary and autonomous regions.4 In this framework, article 117, as reformed in 2001,5 regulates the division of legislative and administrative competences between the state and the regions and distinguishes between powers that fall within the exclusive competence of the state under article 117(2) and powers that are shared between the state and the regions under article 117(3) of the Italian Constitution (concurring legislation).
Under the Italian Constitution, these policy matters are subject to different regimes in terms of the allocation of legislative and administrative powers. On the one hand, the protection of the environment and the ecosystem is a policy area where the state exercises exclusive legislative powers (article 117(2)(s)). In line with consolidated jurisprudence of the Italian Constitutional Court, every aspect of environmental protection is included in the exclusive powers of the state, including legislation on water and air pollution.6 On the other hand, under article 117(3), “concurring legislation applies to […] land-use planning; civil ports and airports; large transport and navigation networks; […] national production, transport and distribution of energy; […] enhancement of cultural and environmental properties”. In the fields of concurring legislation, the state lays down fundamental principles, while more detailed legislation is to be adopted by regions.7 Furthermore, regions, both ordinary and autonomous, hold regional powers in the fields of mineral and thermal waters, water services, and regional and local production, transport and distribution of energy.8 In this framework,
Since the abovementioned reform of 2001, the division of competences on environmental matters has generated an increasing number of conflicts, resolved by the Constitutional Court, between the state and the regions concerning the legitimacy of legislative acts adopted to regulate the environment or aspects related to it.10 This testifies, inter alia, to the difficulties with sharply dividing competences that are closely related to or have consequences on the protection of the environment. The same considerations may also apply to the policy objective of climate change, which is embedded in the protection of the environment as well as in related policy fields.
Environmental protection as a transversal subject matter or value-matter (“materia valore”)11 has been interpreted as strictly belonging to the exclusive competence of the state, which excludes regions from legislating to protect the environment. In this sense, the Court permits an indirect intervention on environmental aspects when regions adopt legislation in the subject matters that belong to their competences and intersect with the protection of the environment. This intervention, however, is admissible only to enforce higher standards of environmental protection.12 The transversality of environmental protection, furthermore, may compress regional competences if regional
Concerning transport-related policies (concurring legislation), the Italian Constitutional Court has applied extensively the subsidiarity call doctrine.17 Unlike decisions concerning the compression of regional powers in environmental-related policies, the attraction of powers to the central level may be considered legitimate only if previously discussed with the regions concerned (vertical coordination). When necessary, horizontal coordination must be carried out among regions. Furthermore, according to the Court, local transport lies unproblematically in the residual competences of the regions and is not subject to any subsidiarity call or centralization by the State.18
Concerning energy policies, the Constitutional Court shares the same orientation on the prevalence of unitary national norms over energy-related legislative acts adopted at regional level. For instance, parameters for both the authorization of renewable energy parks and minimum distances from wind parks need to be established by national laws and cannot be derogated from
While water protection is subsumed, as reminded, under the general exclusive competence of the state on environmental protection,22 large hydroelectric plants are to be considered in the shared competence of the state and regions since they fall within the field of concurring legislation concerning national production, transport and distribution of energy. In this matter, the state shall establish the main principles in the field but cannot adopt detailed legislation. In particular, decisions concerning the duration of permits fall within the shared competence. The assignment of permits instead falls in the exclusive competence of the state regarding the protection of competition.23
Finally, in the field of spatial planning, land-use planning is a concurring policy. The constitutional reform in 2001 changed the denomination of this policy area from “urban planning” to “land-use planning”. The first issue was therefore to determine whether land-use planning included urban planning, especially in view of the fact that most regional statutes, such as those of the Autonomous Provinces of Trento and Bolzano, list urban planning among their primary competences.24 Both scholars and the Constitutional Court have concluded that urban planning is a sub-species of the genus land-use planning.25 In line with this doctrine, national legislation sets general principles in the field of land-use planning, which usually tend to erode regional powers
A final aspect related to urban planning to be mentioned here concerns building law, here intended as the field of law that regulates building standards for houses (e.g. height of buildings, building permissions, energy requirements for buildings etc.). Although not being included explicitly in the constitutional catalogues of exclusive or shared competences, building law falls within the shared competence of land-use planning, as clarified in the jurisprudence of the Italian Constitutional Court.30 Legislation in this field is subject not only to the fundamental principles established in the field of land-use planning, but also to those in the field of health protection, which is also a shared competence under article 117(3) of the Italian Constitution.31 Furthermore, building requirements affect landscape and therefore are subject to the requirements established in landscape plans, which prevail over urban plans on the basis of the prevalence of environmental powers of the state over regional powers intersecting with environmental protection.32
2.2 Austria
The way a legal system addresses a certain problem is influenced by its constitutional design. Austria is a federal state, consisting of nine Bundesländer.33
The protection of the climate or the fight against climate change is not explicitly listed as a duty of the Bund or as a policy field in the Austrian Constitution, nor does the distribution of competences mention the fight against climate change. A draft amendment to the Austrian Constitution,36 which would have introduced the fight against climate change as state aim (Staatsziel) together with a new provision on the distribution of competences in the field of climate change (with an emphasis on the reduction of emissions) as early as in 2008, was dropped.37 When a separate constitutional act, the Federal Constitutional Act on sustainability, animal protection, comprehensive environmental protection, on water and food security as well as research was introduced in 2013,38 sustainability and environmental protection were listed as state aims, but the fight against climate change was not.39 Yet, the state aims of sustainability and environmental protection are so closely linked to climate change that the latter might be considered implicitly part of the Constitution. In this sense, climate change would be a constitutionally stipulated policy field. The Act mentioned provides amongst others that all state powers are committed to the principle of sustainability in using natural resources to ensure that future generations will also benefit from optimal quality of life. Since state aims bind not only the
Although climate change has not been recognized by the Constitutional Court as such, state aims implicitly covering climate-related issues can be used to examine the constitutionality of simple laws.43 However, there are three caveats to that: first, inactivity of the legislator can only be brought before the Constitutional Court when it leads to a defective law; second, if there is no law at all, the Constitutional Court can neither be called upon nor decide ex officio.44 Third, although the Constitutional Court itself points to the possibility of examining the constitutionality of acts and administrative regulations with regard to state aims,45 there are only very few cases on that topic and up until now the Court has not declared a legal act unconstitutional because of the violation of a state aim.
Most of the Länder have incorporated state aims regarding the prevention of climate change,46 pursuant to their constitutional autonomy.47 The
Whereas the legislative competences of the federal level are listed (mainly) in article 10 of the Federal Constitutional Law, the legislative competences of the Länder derive from a residuary clause enshrined in article 15(1) of the Federal Constitutional Law. The fact that climate change is not listed as a competence matter of the federal level does not mean that it falls into the residuary clause, and is therefore a competence of the Länder.50 Since it is a complex matter,51 it is considered a “Querschnittsmaterie” (“cross-sectional matter”) consisting of legislative competences of the federal level and of legislative competences of the Länder.52 Thus, for the analysis of the situation regarding the distribution of competences covering climate change, one has to look into the matters linked to climate change, such as environmental protection, transport, energy and water as well as spatial planning.
Environmental protection, energy, and spatial planning are themselves so-called “Querschnittsmaterien”,53 therefore partly covered by Land competences and partly covered by federal competences in legislation as well as in administration. The same holds true for “transport”: according to article 10(1) No. 9 of the Federal Constitutional Law, transport in the sense of a “traffic-system relating to the railways, aviation and shipping in so far as the last of these does not fall under article 11” and “motor traffic” (“Kraftfahrwesen”) are competences of the federal level in legislation and administration. Linked to traffic is “road law” in the sense of the regulation of highways and other roads, which is split
Regulation of water is a competence of the federal level (article 10(1) No. 10 Federal Constitutional Law). Moreover, within the field of energy, article 12(1) of the Federal Constitutional Law provides for a so-called legislation in principle (“Grundsatzgesetzgebung”) of the Bund and a competence for implementing legislation according to the principles of the Länder (“Ausführungsgesetzgebung”) regarding electricity. This means, that the Bund lays down principles of electricity law which are further developed by the Länder.55 Yet, according to article 10(1) No. 9 of the Federal Constitutional Law, the high voltage grid covering two or more Länder falls into the competence of the federal level.
The distribution of competences regarding spatial planning was already resolved in 1954 by the Constitutional Court. Since then, spatial planning is seen as a “Querschnittsmaterie”,56 partly covered by the abovementioned competences of the federal level regarding spatial planning within other competence matters, such as railways, aviation, roads of the federal level, water law, and high voltage grid, and electricity, amongst others.57 General spatial planning is instead a competence of the Länder.58
Lastly, it is worth mentioning building law, which falls into the competence of the Länder according to article 15(1) Federal Constitutional Law. This competence entails legislation regarding, e.g., building plots, the heights of buildings or how a residential building has to be constructed. The competence matter includes technical rules on materials that can be used.59 Building law is therefore relevant with regard to climate change, because building law might facilitate or hinder the use of climate-friendly materials or facilitate the expansion of renewable energy (e.g. photovoltaics on the roof).
In Austria it is possible that acts contain single constitutional provisions (competence clauses). Whenever the requirements for constitutional
According to the longstanding case law of the Constitutional Court, competence matters have to be interpreted with a special method of interpretation, the so-called “Versteinerungstheorie” (“petrification theory”).62 This means that, to identify the constitutional scope of competences, one has to look into the ordinary laws (regulating that competence matter) that were in force at the time the competence matter was enacted (usually this is 1 October 1925, when the distribution of competences entered into force).63 New developments, which would not be covered by the laws at the time the competence matter was enacted, can be part of the competence matter when they are systematically connected to the matter regulated in ordinary laws (“intrasystematische Fortentwicklung”; “intrasystematic development”).64 Constitutional jurisprudence has shown that the principle of the intrasystematic development leads to a centralization of new competence matters.65
Finally, in the constitutional jurisprudence of recent years, climate related matters regarding the distribution of competences did not arise very often.66
3
3.1 Italy
Pursuant to the Paris agreement, Italy has committed itself, jointly with the other Member States of the European Union, to both implement substantial emission reductions of greenhouse gases (ghg) of 55% by 2030 and reach carbon neutrality by 2050.67 In order to meet these mitigation standards, Italy needs to act on several fronts.
A good starting point to gain a comprehensive view of Italy’s legal framework on climate change is to consult the London School of Economics (lse) Database on Climate Change Laws of the World, which provides a list of both instruments adopted by Italy, either as result of the legislative process or as more executive acts.68 What clearly emerges from this non-exhaustive list is the close link between climate and energy policies in Italy, since most of the acts listed concern the transition to res or energy efficiency. This is illustrated both in the long-term strategies on climate and energy and in legislation on the same matters. In the following, strategies are described first since they establish the overall framework upon which legislation is built.
Italian plans and strategies on climate change are a complex set of instruments, adopted throughout the years by many different executive authorities, mainly to respond to EU provisions that required Member States to adopt national plans to implement EU measures. Their importance lies in the long-term vision they aim to promote, which should be later enacted through the adoption of specific legislation in the field of climate change.69 Furthermore, the targets they establish usually echo EU or international mandatory standards. Some of these strategies instead limit themselves to propose policy options to achieve those standards (such as the Strategia energetica nazionale below). One of the first of such plans is the Piano nazionale di riduzione dei gas serra, adopted in 2002 (and later revised in 2007) pursuant to article 2 l. 120/2002,70 which aimed to lay down a framework for Italy to respect the emission
More recent is the Strategia italiana di lungo termine sulla riduzione delle emissioni dei gas a effetto serra,72 jointly adopted in 2021, pursuant to article 15(1) of Regulation (EU) 2018/1999,73 by the Ministry of the Environment and the Protection of Land and Sea,74 the Ministry for Economic Development, the Ministry for Infrastructures and Transport, and the Ministry for Agriculture, Food and Forestry Policies. The document lays out options for decarbonization in the major emitting policy sectors, including transport and land use with the aim of reaching carbon neutrality.75 Scenarios for decarbonization elaborated in the strategy are based inter alia on the assumption that the objectives contained in the Piano nazionale integrato per l’energia e il clima (hereinafter pniec),76 adopted in 2019 by the Ministry for Economic Development in pursuance of article 3 of Regulation (EU) 2018/1999, will be met.
The pniec builds upon the 2017 Strategia energetica nazionale77 and wishes to set standards in response to the emission reduction obligations contained in Regulation (EU) 2018/842,78 which is directly applicable in Italy. The pniec both establishes key objectives and targets for the period 2021–203079 and
With the newly adopted Piano nazionale di ripresa e resilienza (hereinafter pnrr) (2021), which aims to implement the Next Generation EU program nationally, Italy earmarks more than 31% of the total amount of funds received (about 70 billion euros) to implement the objectives of both the Proposta di piano per la transizione ecologica, described below, and the pniec in terms of emission reductions, energy efficiency, and the transition to res.85 The pnrr lays down concrete interventions in a number of sectors, including transport and energy. Huge investments are envisaged for instance for the improvement of transport by rail of both persons and goods, intermodality, and digitalization.86 Other measures concern systems to monitor territorial risks linked to climate change, air pollution, water management, and inadequate land-use and urban planning,87 the promotion of energy communities in small municipalities, the development of smart and resilient energy grids, hydrogen production and storage, as well as the removal of administrative obstacles to the diffusion of renewable energies.88 The pnrr is to be read in conjunction with a series of legislative measures that enable its concrete implementation, including d.l. 77/2021, d.l. 80/2021, d.l. 152/2021, and d.l. 36/2022, all of which have been transposed into law.
While strategies seem to converge upon the long-term objective of carbon neutrality, laws lay down specific provisions that contribute to this objective. Concerning specific legislation to contrast climate change, the main statutory acts are: (1) d.l. 111/2019 (so called Climate Act), which inter alia establishes under article 1(2) that any public administration should act in compliance with the objectives to combat climate change and air pollution; (2) D.lgs. 47/2021, which implements Directive 2018/410/EU on the emission trading market; and (3) article 50 of d.l. 76/2020, as reformed by article 17 of d.l. 77/2021, which has created a simplified environmental impact assessment procedure for projects that contribute to the enactment of pniec and pnrr.91
In the field of renewable energy promotion, D.lgs. 28/2001 and D.lgs. 199/2021 (enacting Directive 2018/2001/EU) establish a preference towards res, which is considered one of the main normative principles in this area, and as reminded, cannot be derogated by regions according to the Italian Constitutional Court. l. 53/2021 is also relevant in that it inter alia (1) delegates the government to adopt common criteria to identify suitable and unsuitable areas for the installation of res plants, and (2) promotes the development of biofuels. Areas shall then be identified by regions in accordance with national criteria. D.lgs. 387/2003, as amended, promotes electricity produced through res.
Concerning energy efficiency, the main legislative framework is constituted by D.lgs. 73/2020, which amended D.lgs. 102/2014 and implemented Directive
Legislation in the field of transport aims primarily to reduce ghg emissions, including D.lgs 187/2021 on the promotion of clean road vehicles, paragraph 1031 of budgetary l. 145/2018 on incentives to buy electric or hybrid cars, d.l. 111/219 on a program to encourage the use of electric bikes, as well as legislative measures promoting the creation of cycle lanes, and d.l. 34/2020 on disincentives to the use of private vehicles in urban areas.93 It is also worth mentioning the sectoral plan Piano strategico nazionale della mobilità sostenibile, approved through dpcm 30 April 2019.94
Finally, regarding land-use, the legislative framework on biodiversity protection may have an impact on the issue of how to use soil to limit and contain ghg emissions. L. 394/1991 on protected areas is certainly a cornerstone in this respect. Biodiversity protection however, as explained in section 2.1 above, does not fall within the subject area of land-use, but is rather considered as part of environmental protection.95 Given the broad scope of land-use as a shared policy matter, a comprehensive legislative intervention is currently lacking, although there are several draft laws currently under examination by the
3.2 Austria
Similarly to Italy, Austria has committed itself to reducing its ghg emissions significantly.97 A look into the abovementioned lse Database reveals that different overlapping strategies and laws are addressing climate change, together with more general environmental issues and energy matters. This interconnectedness seems to be coherent with the state aims presented above (“sustainability, animal protection, comprehensive environmental protection, water and food security as well as research”).
In the Austrian literature, climate protection law is described as aiming to protect the climate “from those anthropogenic interferences that increase the concentration of greenhouse gases in the atmosphere”,98 therefore encompassing law on air pollution, environmental energy law and environmental transport law.99 Yet, literature also points out that since climate protection law is a rather young field of law in Austria, its development is not yet concluded.100
Strategies are not a recognized source of law in Austria unless they are enacted as legal acts or administrative regulations. The adoption of the strategies mentioned is usually required by EU law or international law. Main strategies encompass the National Energy and Climate Plan as well as the Recovery and Resilience Plan. Other strategies worth mentioning are the Austrian Sustainability Strategy of the Bund101 and the Sustainability Strategy of the Bund and the Länder.102 The implementation of the UN
The Austrian National Energy and Climate Plan,104 mandatory according to Regulation (EU) 2018/1999, lays down political aims and actions targeting a reduction in ghg emissions. Amongst others, it mentions citizen participation in energy generation.105 At the core of the Austrian Recovery and Resilience Plan,106 adopted in pursuance to the EU Regulation on the resilience facility,107 lies the eco-social tax reform of February 2022.108 The reform provides for, e.g., the introduction of a price for co2 emissions (excluding only those emissions arising from res). For that purpose, the first part of the reform introduces in its article 9 the so-called “National Emission Certificate Trading Act 2022”.109
Regarding the legislative binding production, the Austrian Climate Protection Act,110 as the title suggests, directly aims to protect the climate. According to its paragraph 1, the goal of the Act is to both coordinate the implementation of effective climate protection measures and safeguard compliance with international commitments concerning ghg emission reductions. For that purpose, the Act allocates ghg emission ceilings to sectors and establishes that negotiations between the Bund and the Länder have to take place to develop measures to comply with the maximum levels in the respective sectors.111 Paragraph 7 of the same Act lays down a so-called “Climate Protection
Apart from the regulation of ghg emissions, the Austrian government has also internally transposed the Directive on the Internal Market for Electricity (imed Directive)113 and the red ii Directive114 through inter alia the Renewable Energy Expansion Act.115 It is of interest, that paragraph 91 of the latter act requires the legislator to evaluate the effectiveness of the measures adopted after a period of time (so-called evaluation clauses). It stipulates that “[t]hree years after the renewables support scheme under this Federal Act comes into force, the Federal Minister for Climate Action, Environment, Energy, Mobility, Innovation and Technology shall seek the advice of external experts to evaluate it and shall present the result of such evaluation to the National Council no later than December 2024. This evaluation and reporting exercise shall be repeated every five years thereafter […]”. Linked to the further expansion of renewable energy is also the federal Energy Efficiency Act,116 which aims to increase energy efficiency.117
The federal level has also enacted the Emission Control Act,118 which is of special relevance for the transport sector, since it stipulates that the
In the field of spatial planning, it is worth mentioning the so-called article 15 agreement between the Länder and the federal level on the reduction of emissions linked to buildings.123 An article 15 agreement is an agreement either between all or several Länder or all or several Länder and the federal level. Such agreements are only binding on the contracting parts and, therefore, to enforce their content on individuals, the Länder and the federal level need to enact a specific law.124 Furthermore, Länder have their own competences in the field of spatial planning, pursuant to which they have issued spatial planning laws.125 Seven of these laws mention the climate or the protection of the climate as a principle and/or aim.126 Similarly, the Water Law
Against this background, we can identify two general trends regarding lawmaking. First, we can see that so-called competence coverage clauses are very often used in climate-related laws.130 Such clauses lead to a (temporary) centralization of climate change law.131 Second, the complexity and insecurity regarding the measures taken leads to an increase in the use of evaluation clauses. Yet, it is unclear whether or not and what kind of consequences may follow from non-compliance.
4 Conclusion
The analysis of the national framework on transport, energy and water, and spatial planning has confirmed both the transversality of climate change and the need to integrate it into the strategies and legislative interventions that may have a bearing on mitigation (and adaptation) objectives. This integration might become more complex when, such as in the case of Italy and Austria, competences in the sectoral fields analyzed in this book are divided/shared between the national level and subnational authorities. Complexity is also linked to the fact that climate change is not intended as a comprehensive subject matter and, therefore, powers to legislate on climate-related issues are to be derived from more established competences in other policy fields.
Both in Italy and Austria, the need to respond to climate change is accelerating the centralization move already ongoing, especially in the fields of
The comparison of the constitutional framework and practice concerning the division of competences in fields related to climate change also reveals a significant difference. While in Italy constitutional litigation over the division of competences in the sectors analyzed is high, Austria does not show the same level of contestation probably because issues concerning the division of powers were settled by the Constitutional Court in the past, and a culture of cooperation has been developing for some time.
Looking at what type of measures are adopted to integrate climate change in national policies, we have observed a mix of strategic/executive measures and legislative statutes. The latter are then usually complemented by additional regulatory measures. A general reflection is that, although climate change is in some cases not explicitly mentioned in sectoral legislation, the effects of sectoral measures on the fight against climate change are discussed in strategic documents. These documents might give a sense of policy direction that is absent in ordinary legislation, but they are not a recognized source of law either in Italy or in Austria. In Austria, strategic documents on climate change seem to be less common,132 but a sense of direction could also derive from so-called constitutional “state aims”.
Furthermore, although the analysis conducted in this chapter is not sufficient to evaluate the extent to which the national legislative framework on climate change is adequate to reach the mitigation objectives agreed upon at international and European levels,133 it is evident that both in the case of Italy
Finally, the complexity of climate change law and the urgent need to act call for effective solutions that both are based on science and may quickly react to scientific developments. In Austria, some acts introduce “evaluation clauses” for that purpose. In Italy, science is integrated into national planning but ordinary legislation is still slower to react. Responses to sudden developments are usually adopted by resorting to executive-driven legislation (adoption of d.l. or D.lgs. initiated by the government). In this sense, climate change law might even structurally change the way laws are made.
In the joint elaboration of this chapter, sections 1, 2.1 and 3.1 have been written by Federica Cittadino, sections 2.2 and 3.2 by Maria Bertel, and section 4 by both. Maria Bertel wishes to thank Marlene Mlekusch for assistance with the redaction of the footnotes in sections 2.2 and 3.2.
See Introduction in this volume.
Created on 26 February 2021 (art. 2–3 d.l. 22/2021) to replace the Ministry for Environmental Protection, whose mandate previously included climate change. The CReIAMO pa initiative establishes within the mandate of the Ministry specific priorities on climate change adaptation, water resources, and sustainable mobility. See
Art. 114 and 116 of the Italian Constitution. For an account of the differences between ordinary regions and autonomous regions, see L. Antonini, Il regionalismo differenziato (Giuffré 2000); R. Bin and G. Falcon (eds.), Diritto regionale (Il Mulino 2019); M. Carli, Diritto regionale: le autonomie regionali, speciali e ordinarie (Giappichelli 2020); T. Martines, A. Morelli and A. Ruggeri, Lineamenti di diritto regionale (Giuffré 2019); S. Pajno, “Il regionalismo italiano a vent’anni dalla riforma del Titolo v: prime riflessioni”, Le Regioni, 4 (2021) 81–94; L. Vandelli (ed.), Il governo delle Regioni: sistemi politici, amministrazioni, autonomie speciali (Il Mulino 2013). See also F. Palermo and S. Parolari (eds.), Il futuro della specialità regionale alla luce della riforma costituzionale (esi 2016).
On the reform of Title v of the Italian Costitution, see G. Avolio and F. Palermo (eds.), La riforma del titolo v, parte seconda, della Costituzione italiana: analisi ed effetti per la Provincia autonoma di Bolzano (Eurac Research 2004); G. Berti and C. De Martin (eds.), Le autonomie territoriali: dalla riforma amministrativa alla riforma costituzionale. Atti del convegno di Roma, 9 gennaio 2001 (Giuffré 2001); E. Bettinelli and F. Rigano (eds.), La riforma del Titolo v della Costituzione e la giurisprudenza costituzionale. Atti del Seminario (Pavia, 6–7 giugno 2003) (Giappichelli 2004); B. Caravita, La Costituzione dopo la riforma del Titolo v: Stato, Regioni e autonomie fra Repubblica e Unione Europea (Giappichelli 2003). A more recent constitutional reform (approved on 8 February 2022) modified artt. 9 and 41 of the Italian Constitution. Art. 9 now recognizes among Italian constitutional principles “the protection of the environment, biodiversity, and ecosystems, also in the interest of future generations”. It furthermore requires the state to adopt legislation to protect animals without prejudice to the competences of the autonomous regions. Only time will tell whether and how this article will influence the conceptualization of the environment as a policy field.
Concerning water, see Italian Constitutional Court (hereinafter in footnote Corte cost.) 32/2005, 117/2005, 246/2009, 29/2010, 142/2010, 325/2010, 128/2011, 187/2011, 62/2012, 67/2013, 228/2013, 65/2019 and 153/2019. Concerning air pollution, prevention of air pollution and air quality fall within the exclusive competence of the state on environmental protection (e.g. Corte cost. 250/2009, 141/2014). See R. Nevola, La tutela dell’ambiente, degli ecosistemi e dei beni culturali nei giudizi in via principale di legittimità costituzionale (Corte Costituzionale 2015), available at
The final part of art. 117(3) reads as follows: “In the subject matters covered by concurring legislation legislative powers are vested in the Regions, except for the determination of the fundamental principles, which are laid down in state legislation”. The translation into English of the Italian Constitution is available at
M. Alberton, Governi ambientali negli ordinamenti composti. Traiettorie italiane e spagnole tra unità e asimmetria (esi 2021), at 107. As we shall see in Chapter 3 in this volume, the Autonomous Provinces of Trento and Bolzano have exercised legislative powers in the field of environmental protection, based on some specific subject matters included in the autonomy statutes.
According to art. 116(3) of the Italian Constitution, regions would be entitled to negotiate with the state additional forms and specific conditions of autonomy in both shared and some of the exclusive powers of the state, including the protection of the environment. This provision however has not received application as yet, although many ordinary regions have tried to implement it. See M. Alberton, Governi ambientali negli ordinamenti composti, supra, at 105–112. Another relevant provision is art. 117(4) Constitution, which establishes that regions hold residual powers in matters not explicitly assigned to the state.
Ibid., at 149–150. The author highlights (at 151) that the majority of these cases were filed by the state.
Corte cost. 407/2002. Translation in English is the authors’. Other decisions confirm this point: Corte cost. 536/2002, 226/2003, 227/2003, 311/2003, 391/2005 and 63/2020. See M. Alberton, Governi ambientali negli ordinamenti composti, supra, at 196ff. See also F. Benelli, “L’ambiente tra “smaterializzazione” della materia e sussidiarietà legislativa”, Le Regioni, 1 (2004) 176–184.
Corte cost. 407/2002, 12/2009, 225/2009, 235/2011, 263/2011, 106/2012, 171/2012, 278/2912, 58/2013, 199/2014, 74/2017, 77/2017, 7/2019, 63/2020, 88/2020 and 134/2020. There are also exceptions to the possibility for the regions to adopt higher standards, when there are other interests beyond environmental protection that need to be balanced against by the state. See Corte cost. 307/2003, 116/2006, 214/2008, 61/2009, 225/2009, 247/2009, 147/2019, 178/2019 and 258/2020.
This is what scholars usually call “chiamata in sussidiarietà” (subsidiarity call), the capacity of national norms to trump regional ones, even if adopted in pursuance to regional powers, when national norms establish nationally applicable principles/norms that serve unitary principles. To understand this mechanism in theory, see e.g. F. Carinci, “Il principio di sussidiarità verticale nel sistema delle fonti”, forumcostituzionale.it, (2006). See Corte cost. 378/2007, 104/2008, 74/2017, 63/2020, 130/2020 and 240/2020. See also, M. Alberton, Governi ambientali negli ordinamenti composti, supra, at 214–215.
Corte cost. 536/2002, 222/2003, 259/2004 and 108/2005.
Corte cost. 259/2004, 214/2005 and 62/2008.
Corte cost. 329/2008, 12/2009, 61/2009 and 9/2013.
See note 13 above and report published on the Constitutional Court’s website at
See Corte cost. 52/2020. L. Magnifico, “Stato, regione o autorità di regolazione alla guida del trasporto pubblico locale?”, Osservatorio aic, 1 (2013) 1–14, at 1. See also A. Zito, “I riparti di competenze in materia di servizi pubblici locali dopo la riforma del titolo v della Costituzione”, Diritto amministrativo, 2 (2003) 385–410; G. Sciullo, “Stato, Regioni, e servizi pubblici locali nella pronuncia n. 272/2004 della Consulta”,
C. Pellegrino, “Ambiente ed energia: la Corte costituzionale conferma i suoi orientamenti e il suo ruolo di supplenza ermeneutica”, Le Regioni, 3 (2019) 843–855. R. Nevola (ed.), Giurisprudenza costituzionale dell’anno 2020 (Servizio studi Corte costituzionale 2021), at 497–504.
R. Cocciolito, “La competenza legislativa della Provincia di Trento in materia di energia alla prova degli standards minimi di tutela ambientale”, Osservatorio aic, 2 (2014) 1–3.
Corte cost. 286/2019.
Corte cost. 32/2005, 117/2005, 246/2009, 29/2010, 142/2010, 325/2010, 128/2011, 187/2011, 62/2012, 67/2013, 228/2013, 65/2019 and 153/2019.
Corte cost. 1/2008 and 155/2020.
On this point, see Chapter 3 in this volume.
See
R. Nevola (ed.), Giurisprudenza costituzionale, at 487–495.
M. Mengozzi, “Il “Governo del territorio” e la sua intersezione strutturale con la “tutela dell’ambiente”: linee di continuità e di evoluzione”, federalismi.it, 15 (2017) 2–30, at 22.
Corte cost. 367/2007.
Corte cost. 66/2018, 86/2019 and 130/2020.
Corte cost. 303/2003, 362/2003, 196/2004, 233/2015 and 125/2017.
Corte cost. 134/2014 and 54/2021.
Corte cost. 180/2008 and 54/2021.
Art. 2(2) Federal Constitutional Law, Bundes-Verfassungsgesetz – b-vg, StF: bgbl. Nr. 1/1930 (last amendment: bgbl. i 235/2021). All translations of acts, unless otherwise stated, are provided by the Austrian Legal Information System ris,
T. Öhlinger and H. Eberhard, Verfassungsrecht, 13 (facultas 2022), 26ff.
Bundes-Verfassungsgesetz – b-vg, StF: bgbl. Nr. 1/1930; the Federal Constitutional Law dates back to 1920, Bundes-Verfassungsgesetz – b-vg, StF: bgbl. Nr. 1/1920 with the distribution of competences entering into force with an amendment (Bundes-Verfassungsnovelle bgbl. Nr. 268/1925) in 1925.
Draft bill, Ministerialentwurf Bundesverfassungsgesetz, mit dem das Bundesverfassungsgesetz vom 27. November 1984 über den umfassenden Umweltschutz geändert wird, Bundesverfassungsgesetz, mit dem das Bundes-Verfassungsgesetz geändert wird, und Bundesgesetz, mit dem dem Bund und den Ländern Klimaschutzverpflichtungen zugeordnet werden (Bundesklimaschutzgesetz), 204/me xxiii. gp.
T. Habjan, “Das österreichische Klimaschutzgesetz”, in G. Kirchengast, E. Schulev-Steindl and G. Schnedl (eds.), Klimaschutzrecht zwischen Wunsch und Wirklichkeit (Böhlau Verlag 2018) 98–110, at 99ff (with further references especially in footnote 20).
Bundesverfassungsgesetz über die Nachhaltigkeit, den Tierschutz, den umfassenden Umweltschutz, die Sicherstellung der Wasser- und Lebensmittelversorgung und die Forschung, StF: bgbl. i 111/2013 (last amendment: bgbl. i Nr. 82/2019).
Own-initiative motion, Initiativantrag betreffend ein Bundesverfassungsgesetz über die Nachhaltigkeit, den Tierschutz, den umfassenden Umweltschutz, die Sicherstellung der Wasser- und Lebensmittelversorgung und die Forschung, 2316/a xxiv. gp 3 f.
T. Zahrl, “Gesellschaftliche Herausforderungen und objektives Verfassungsrecht”, in M. Becker et al. (eds.), Gesellschaftliche Herausforderungen – Öffentlich-rechtliche Möglichkeiten (Jan Sramek 2019) 35–63, at 44.
J. Egger, Untätigkeit im Öffentlichen Recht (Verlag Österreich 2020), at 89.
In this context, see the Federal Constitutional Act on sustainability, animal protection, comprehensive environmental protection, on water and food security, where all the state aims enshrined start with the following wording “The Republic of Austria (federal government, federal provinces and municipalities) …”.
See e.g. Constitutional Court 29 June 2017, VfSlg. 20.185/2017. State aims however cannot be enforced by individuals, see M. Bertel, “Staatszielbestimmungen”, in J. Breitenlechner et al. (eds.), Sicherung von Stabilität und Nachhaltigkeit durch Recht (Jan Sramek 2014) 139–159, at 148ff.
M. Holoubek, “Säumnis des Gesetzgebers”, in M. Holoubek and M. Lang (eds.), Rechtsschutz gegen staatliche Untätigkeit (Linde Verlag 2011) 247–264, at 251.
See VfSlg. 20.185/2017: „Der Verfassungsgerichtshof hat in ständiger Rechtsprechung das BVG Umweltschutz zur Prüfung von Gesetzen auf ihre Verfassungsmäßigkeit und von Verordnungen auf ihre Gesetzmäßigkeit herangezogen (see VfSlg 11.990/1989, 12.009/1989, 12.485/1990, 12.486/1990, 13.102/1992, 13.718/1994, 14.551/1996 und 19.584/2011)“.
Art. 7a(2) No. 2 and art. 7b Kärntner Landesverfassung – k-lvg, StF: lgbl. Nr. 85/1996 (last amendment: lgbl. Nr. 97/2021), art. 4 NÖ Landesverfassung 1979, StF: lgbl. 0001-0 (last amendment lgbl. Nr. 34/2021), art. 10(3) Oö. Landes-Verfassungsgesetz, StF: lgbl. Nr. 122/1991 (last amendment: lgbl. Nr. 39/2019), art. 9 Sbg Landes-Verfassungsgesetz 1999 – l-vg, StF: lgbl. Nr. 25/1999 (last amendment: bgbl. 41/2019), art. 7(3) Tiroler Landesordnung 1989, StF: lgbl. Nr. 61/1988 (last amendment: lbgl. Nr. 133/2019), art. 7 (7) Verfassungsgesetz über die Verfassung des Landes Vorarlberg, StF: lgbl. Nr. 9/1999 (last amendment: lgbl. Nr. 3/2022).
T. Öhlinger and H. Eberhard, Verfassungsrecht, 120ff. See art. 99 Federal Constitutional Law.
Constitutional Court, VfSlg. 20.185/2017.
A. Gamper, “Artikel 7 Ziele und Grundsätze des staatlichen Handelns”, in P. Bußjäger, A. Gamper and C. Ranacher (eds.), Tiroler Landesverfassungsrecht (Verlag Österreich 2020) 110–132, paras. 19–20.
Similar, but with regard to environmental protection G. Schnedl, Umweltrecht (facultas 2020), at 108.
P. Pernthaler, Österreichisches Bundesstaatsrecht (Verlag Österreich 2004), at 338.
T. Öhlinger and H. Eberhard, Verfassungsrecht, at 138.
G. Schnedl, Umweltrecht, at 108 (environmental protection), 255 (energy) and 263 (spatial planning).
Ibid., at 250 and art. 10(1) No. 9, art. 15(1) Federal Constitutional Law.
T. Öhlinger and H. Eberhard, Verfassungsrecht, at 126ff.
Constitutional Court VfSlg. 2674/1954.
G. Schnedl, Umweltrecht, supra, at 263.
Art. 15(1) Federal Constitutional Law.
D. Jahnel, “Baurecht”, in S. Bachmann et al. (eds.), Besonderes Verwaltungsrecht (Verlag Österreich 2022) 565–597, at 592ff.
Art. 44(2) Federal Constitutional Law.
Erneuerbaren-Ausbau-Gesetz – eag, StF: bgbl. i Nr. 150/2021 (last amendment: bgbl. i Nr. 13/2022).
T. Öhlinger and H. Eberhard, Verfassungsrecht, at 138ff.
P. Pernthaler, Österreichisches Bundesstaatsrecht, at 332ff.
Ibid., at 333ff.
Ibid., at 334 and A. Gamper, “Kompetenzgerichtsbarkeit und Kompetenzinterpretation in Österreich”, in A. Gamper et al. (eds.), Föderale Kompetenzverteilung in Europa (Nomos 2016) 575–606, at 593ff.
See e.g. Constitutional Court VfSlg. 20.390/2020 (amongst others clarifying the consequences of a competence covering clause on administration), VfSlg. 20.185/2017 (regarding the scope of Länder state aims) or VfSlg. 17.160/2004 (obtaining bids for balancing energy or determining prices for balancing energy does not fall within the competence matter “stock market”).
See Chapter 1 in this volume; Servizio studi della Camera dei deputati, Dossier sui cambiamenti climatici (Camera dei deputati 2002), available at
See
The Italian National Adaptation Strategy will not be analyzed since adaptation to climate change goes beyond the scope of this book.
See cipe (Intergovernmental Committee for Economic Planning) resolution of 19 December 2002, available at
See Chapter 1 in this volume.
Italian long-term strategy on the reduction of emissions from ghg. See Servizio studi della Camera dei deputati, Dossier sui cambiamenti climatici, supra.
Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (ec) No. 663/2009 and (ec) No. 715/2009 of the European Parliament and of the Council, Directives 94/22/ec, 98/70/ec, 2009/31/ec, 2009/73/ec, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/ec and (EU) 2015/652 and repealing Regulation (EU) No. 525/2013 of the European Parliament and of the Council.
See note 3 above.
Carbon neutrality is defined in the Strategy as a condition where residual ghg emissions are compensated through co2 absorption, geological storage, and reuse.
Integrated national and climate plan. The pniec is available at
National energy strategy, adopted jointly by the Ministry for Economic Development and the Ministry for the Environment and the Protection of Land and Sea (now Ministry for Ecological Transition). For a summary of this strategy, see
See Chapter 1 in this volume.
A comprehensive overview of these objectives can be found in Documentazione per l’esame di Atti del Governo, Promozione dell’uso dell’energia da fonti rinnovabili: Atto del Governo 292 (Senato della Repubblica e Camera dei Deputati 2021), available at
pniec, at 57 and 65.
Ibid., at 83. Measures to ensure low emission mobility are listed at 163–171, while energy efficiency in the mobility sector is discussed at 180–89.
Ibid., at 131.
Ibid., at 141 and 143.
Ibid., at 146–147.
Servizio studi della Camera dei deputati, Dossier sui cambiamenti climatici, supra.
pnrr, at 167ff.
Ibid., at 211ff.
Ibid., at 249ff.
Proposed plan for ecological transition. Governmental Act No. 297, available at
Interministerial Committee for Ecological Transition.
Important laws that provide for specific financial resources are described in Servizio studi della Camera dei deputati, Dossier sui cambiamenti climatici, supra.
Servizio studi della Camera dei deputati, Dossier su risparmio ed efficienza energetica (Camera dei deputati 2022), available at
Servizio studi della Camera dei deputati, Dossier sulla mobilità sostenibile (Camera dei deputati 2021), available at
See Chapter 4 in this volume.
For this reason, the legislative framework on biodiversity protection is not analyzed in this chapter. See C. Baseggio, “Competenze statali, regionali e locali in tema di aree naturali protette nella giurisprudenza della Corte costituzionale e nella recente legislazione regionale”, Istituzioni del federalismo, 5 (2007) 513–546; M. Mancini, “La disciplina degli istituti di protezione della fauna selvatica e della biodiversità, nel quadro del riparto delle competenze tra Stato e Regioni”, Ricerche giuridiche, 6 (2017) 23–54; thematic sheet of Camera dei deputati at
See M. Munafò (ed.), “Consumo di suolo dinamiche territoriali e servizi ecosistemici”, Report snpa 22/21, (2021), available at
See section 3.1. above.
G. Schnedl, Umweltrecht, 225; own translation.
Ibid., at 226.
Ibid., at 226.
Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft, Die österreichische Strategie zur Nachhaltigen Entwicklung (2002), available at
Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft, Österreichische Strategie Nachhaltige Entwicklung (ÖSTRAT) – ein Handlungsrahmen für Bund und Länder (2010), available at
Bundesministerium für Nachhaltigkeit und Tourismus, SDG-Aktionsplan 2019 + (2019), available at
Federal Ministry for Sustainability and Tourism Austria, Integrated National Energy and Climate Plan for Austria (2019), available at
G. Schnedl, Umweltrecht, at 148.
Bundesministerium für Finanzen, Österreichischer Aufbau- und Resilienzplan 2020–2026 (2021), 13, available at
Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, oj L 57, 18.2.2021, 17–75.
Ökosoziales Steuerreformgesetz 2022 Teil i, bgbl. i Nr. 10/2022, Ökosoziales Steuerreformgesetz 2022 Teil iii, bgbl. i Nr. 12/2022, Klimabonusgesetz, bgbl. i Nr. 11/2022.
Nationales Emissionszertifikatehandelsgesetz 2022 – nehg 2022, StF: bgbl. i Nr. 10/2022; own translation.
Klimaschutzgesetz – ksg, StF: bgbl. i Nr. 106/11 (last amendment: bgbl. i Nr. 58/2017); own translation. Yet annual limits for GHG emissions have been set only until 2020.
Para. 3 Climate Protection Act.
See para. 29 Finanzausgleichsgesetz 2017 – fag 2017, StF: bgbl. i Nr. 116/2016 (last amendment: bgbl. i Nr. 10/2022), which prescribes that the cost for buying emission certificates is divided between the federal level (80 %) and the Länder (20%).
Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU, oj L 158, 14.6.2019, 125–199.
Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources, oj L 328, 21.12.2018, 82–209.
Erneuerbaren-Ausbau-Gesetz – eag, StF: bgbl. i Nr. 150/2021 (last amendment: bgbl. i Nr. 13/2022).
Bundes-Energieeffizienzgesetz – EEffG, StF: bgbl. i Nr. 72/2014 (last amendment: bgbl. i Nr. 68/2020).
See e.g. para. 4 Bundes-Energieeffizienzgesetz.
Immissionsschutzgesetz – Luft, ig-l, StF: bgbl. i Nr. 115/1997 (last amendment: bgbl. i Nr. 115/1997); own translation.
President of the Land.
Para. 10 Immissionsschutzgesetz – Luft. See e.g. the administrative regulation Verordnung des Landeshauptmannes vom 27. Oktober 2010, mit der auf der A 12 Inntal Autobahn ein Nachtfahrverbot für Schwerfahrzeuge erlassen wird, StF: lgbl. Nr. 64/2010 (last amendment: lgbl. Nr. 141/2021).
Para. 14 Immissionsschutzgesetz – Luft.
This goes back to jurisprudence of the ejc, C-404/13 – ClientEarth, ecli:eu:c:2014:2382. The Austrian Administrative High Court (Verwaltungsgerichtshof) follows the ecjs jurisprudence, see e.g. VwGH 28.5.2015, Z1 Ro 2014/07/0096-8.
Vereinbarung gemäß Art. 15a b-vg zwischen dem Bund und den Ländern über Maßnahmen im Gebäudesektor zum Zweck der Reduktion des Ausstoßes an Treibhausgasen, StF: bgbl. ii Nr. 251/2009 (amendment: bgbl. ii Nr. 213/2017).
T. Öhlinger and H. Eberhard, Verfassungsrecht, 153ff.
Burgenländisches Raumplanungsgesetz 2019 – Bgld. rpg 2019, StF: lgbl. Nr. 49/2019 (last amendment: lgbl. Nr. 95/2021); Kärntner Raumordnungsgesetz 2021 – k-rog 2021, StF: lgbl. Nr. 59/2021; NÖ Raumordnungsgesetz 2014 – nö rog 2014, StF: lgbl. Nr. 3/2015 (last amendment: lgbl. Nr. 97/2020); Oö. Raumordnungsgesetz 1994 – Oö. rog 1994, StF: lgbl. Nr. 114/1993 (last amendment: lgbl. Nr. 125/2020); Salzburger Raumordnungsgesetz 2009 – rog 2009, StF: lgbl. Nr. 30/2009 (last amendment: lgbl. Nr. 62/2021); Steiermärkisches Raumordnungsgesetz 2010 – StROG, StF: lgbl. Nr. 49/2010 (last amendment: lgbl. Nr. 15/2022); Tiroler Raumordnungsgesetz 2016 – trog 2016, StF: lgbl. Nr. 101/2016 (last amendment: lgbl. Nr. 167/2021); Vorarlberger Raumplanungsgesetz – rpg, StF: lgbl. Nr. 39/1996 (last amendment: lgbl. Nr. 4/2022); Bauordnung für Wien – BO für Wien, StF: lgbl. Nr. 11/1930 (last amendment: lgbl. Nr. 70/2021).
Para. 1(2) No. 3 lit. b) Burgenländisches Raumplanungsgesetz 2019; para. 1(2) No. 1 lit. b) NÖ Raumordnungsgesetz 2014; Para. 2(1) No. 1 Oö. Raumordnungsgesetz 1994; para. 1(2) No. 4 Bauordnung für Wien; para. 2 para. 2 No. 4 Salzburger Raumordnungsgesetz 2009; para. 3(2) No. 2 lit. i) Steiermärkisches Raumordnungsgesetz 2010; para. 1(2) lit. l) No. 3 Tiroler Raumordnungsgesetz 2016.
Wasserrechtsgesetz 1959 – wrg. 1959, StF: bgbl. Nr. 215/1959 (last amendment: bgbl. i Nr. 73/2018).
Para. 55i Wasserrechtsgesetz 1959.
Umweltförderungsgesetz – ufg, StF: bgbl. Nr. 185/1993 (last amendment: bgbl. i Nr. 26/2022); own translation.
See e.g. para. 1 Elektrizitätswirtschafts- und -organisationsgesetz 2010 – Elwog 2010, StF: bgbl. i Nr. 110/2010 (last amendment: bgbl. i Nr. 7/2022); para. 1 Erneuerbaren-Ausbau-Gesetz – eag, StF: bgbl. i Nr. 150/2021 (last amendment: bgbl. i Nr. 13/2022).
See, in detail, S. Neudorfer, “Kompetenzdeckungsklauseln außerhalb des b-vg Österreichische Provisorienkultur oder sinnvoller Pragmatismus?”, in S. Schmid et al. (eds.), Auf dem Weg zum hypermodernen Rechtsstaat? (Jan Sramek 2011) 111–150, especially at 143.
Since these strategic documents are not published in the official database of Austrian laws, they are also less accessible.
On this point, it is interesting to note that a case was filed in Italy in June 2021 (also known as Giudizio universale/The last judgment), where petitioners seek a declaration that the government’s action on climate change is insufficient to reduce ghg emissions to a level that may sufficiently limit the effects of climate change. See