LA CONTRATTAZIONE ECOLOGICAMENTE CONFORMATA NELL’OTTICA DEL DIRITTO CIVILE:
brevi note 1*
Francesco Longobucco **
‘Ecological contract’ and green economy (english version)
Prof. Francesco Longobucco
Università degli Studi Roma Tre
The Private Law has a privileged eye on the Enviromental Law, as the Private Law is a whole of old instruments which must be bent to create new functions and therefore must evolve (this phenomenon is so-called ‘heterogenesis of the purposes’ of the rules contained in our Civil Code). Paradigmatic is the case of illegal discharges (cf. art. 844 C.C.).
Thus I would underline the importance of creating a framework of method to be followed in the analysis of the institutes, for those who want to cooperate in the development of Enviromental Law also on the civil point of view.
Under this point of view, for example, the Enviromental Law impacts today’s theory of property. Is the environment a classical good? It is a particular good without an owner, so that the traditional notion of property in the classical sense in no more available, while a potential ownership emerges [that, for example, of the future generations (in incertam personas)], the physicality of the traditional goods is outdated in our case, validating the idea that today goods must be considered more as interests than as res just as the ancients meant.
The Enviromental Law also impacts with the same notion of the modern contract and the negotiating activity. It becomes, for scholars, the test bench on which to sample what, by my cultural conviction, is the current crisis of the classical dichotomy between private interest and public interest, between proprietary interest and non-pecuniary interests (cf. art. 1174 C.C.). If we assume that the freedom of contract is no more a dogma and that it is instead today increasingly a synthesis of the autonomy of the parties and the heteronomy of the legislator (as autonomy of parties is no more an uncontrolled and uncontrollable power), then, the fundamental right to a healthy environment, to be realized in a pro-active way, becomes one of the limits (internal or external is a little matter) to the traditional freedom of contract. Perhaps manuals of Italian Private Law should be updated when we talk about the traditional limits to the autonomy of parties, as, in the Legal Public Italian and European order, the interest in a healthy environment, according to the ultimate protection of the person, must be certainly inserted. The interest in a healthy environment characterizes the inner ‘causa’ of the legal acts between private individuals and between private and public administrations [think, for example, of all the interesting matter of the ‘appalti verdi’ (green public contracts) or the ‘CAM clauses’ to be entered in the public contracts].
Here comes the paradigm of the ‘ecologically conformed contract’ in the new scenario of the Green Economy. This paradigm finds its base in the Art. 3 quarter of the Environmental Consolidated Law (the Italian ‘Testo Unico Ambientale’), according to which every legally relevant human activity (under the Code) must comply with the principle of sustainable development, in order to ensure that satisfaction of the needs of current generations cannot compromise the quality of life and the possibilities of future generations. Also the activity of the public administration must be aimed at allowing the best possible implementation of the principle of sustainable development, for which, in the context of the discretional comparative choice between the public and the private interests, interests to protect the environment and the cultural heritage must be object of a priority consideration.
And what about the Italian Constitution? Already the Art. 9 of the Italian Constitution (about the landscape protection) indirectly protects the interest in a healthy environment, according to the best public scholars. Then it comes into evidence the Art. 41, para 2, of the Italian Constitution (with its limits to the autonomy of parties of the safety, freedom, public utility). Thus it is not true that the protection of the environment does not exist in our Constitution, rather it exists – albeit indirectly – also considering that the Constitutional norms are directly applicable to the activity of the private parties. All of this with the implication on the level of applicable civil remedies: it is not surprising if the violation of the principle of sustainable development, as a principle of legal public order, could lead, as some scholars have claimed, to the nullity of the contract according to the Art. 1421 C.C. which can be lodged ex officio.
How then does the traditional freedom of contract could be ecologically conformed? Certainly it could be conformed through the Italian and European general fundamental Principles: think, for example, of the principle of prevention, precaution, sustainability, energy efficiency, ‘horizontal’ subsidiarity according to the Art. 118 of the Italian Constitution.
Then the ordinary rules and the subsidiary rules come to evidence with the possibility of a wide expansion of a Regional Private Law, specific for the territory, that could also conform the contractual activity.
Yet think of the hetero-introduced rules in the contractual activity (Art. 1374 C.C.): consider, for example, the various rules by the Italian Regulatory Authority for Energy and Gas which, in the context of the general phenomenon of the regulatory ‘hetero-integration’ of the contract, create a whole of secondary rules (those on the price, for example) in order to conform the autonomy of parties. Think also of the ‘autopoietic rules’ (a sort of best practices that the companies themselves have to take) which also conform the contractual regulation.
In this way the traditional freedom of contract becomes more consistent with the environmental interest. And it doesn’t matter if it’s the fifth or the sixth model of contract: the first contract of the Civil Code, then we have the labor contract, then the consumer contract, then the contract between companies, now the ecologically conformed contract. A sixth contract.
And what about the function of this new model of contract, that is the ecologically oriented contract? We can surely think of a preventive function, of a compensation function, of a punitive function, but also of an ‘heuristic and promotional’ function, as suggested by some scholars, which is to say a stimulus to develop the interpretative and applicative attitude of the Italian jurists in setting point of a paradigm (the model of the ecologically oriented contract) which, although not specifically regulated, can certainly be legitimized in the Italian and European legal system.
* Il presente contributo è destinato alla pubblicazione del Volume – edito da AmbienteDiritto Editore – di raccolta degli atti del Convegno “EMERGENZA E TUTELA AMBIENTALE”, tenutosi presso la Camera dei Deputati (Sala del Refettorio) il 18 marzo 2019.
** Professore Associato presso l’Università degli Studi Roma Tre