ARTICLE 41 of the Constitution
Private economic initiative is free. It may not be carried out in conflict with social utility or in such a way as to cause harm to health, the environment, safety, freedom or human dignity. The law determines the appropriate programmes and controls so that public and private economic activity may be directed and coordinated towards social and environmental ends.
ARTICLE 9 of the Constitution
The Republic promotes the development of culture and of scientific and technical research. It protects the landscape and the historical and artistic heritage of the Nation. It protects the environment, biodiversity and ecosystems, also in the interest of future generations. State law governs the ways and forms of animal protection.
In line with Europe
The approved amendment is certainly in line with European legislation. Article 37 of the Charter of Nice (Charter of Fundamental Rights of the European Union) states that ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. Likewise, Article 191 of the Treaty on the Functioning of the European Union (TFEU) defines Community policy on the environment, setting out the objectives to be achieved.
Animal protection and the reservation of law
It can safely be said that, for the first time, a reference to animals has been introduced into the Italian Constitution.
Also within Article 9, Law no. 1/2022 provides for a reservation of law, establishing that the legislator is to define the forms and ways of protection.
This too is a novelty that follows the approach of European legislation. Article 13 of the Treaty on the Functioning of the EU states: ‘[…] the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage’.
It is therefore a recognition of the dignity of animals, which are no longer regarded as mere things.
Health, environment and economic initiative
The reform also has an evident impact on private economic initiative and its limits. It must not cause harm:
- to health or the environment,
- to safety, freedom or human dignity.
Just a ‘cultural’ change? Or something more?
It has been said that the constitutional amendment could pave the way for a new relationship between public authority and the market.
In all likelihood, from this perspective, the role of the public sector in the economy is destined to regain spaces that may have been lost for some time. This began with the Green Deal, the plan devised by the European Commission in 2019 to promote massive public investment in key sectors such as energy, industrial policy and mobility, with a view to the energy transition.
Next Generation EU, the plan of over 700 million euros to rebuild Europe after Covid-19, also promotes in its general lines a greener, more digital and more resilient economy, steering in this direction the various Recovery Plans approved at national level, including our own PNRR (National Recovery and Resilience Plan).
It is even asked whether the amendment of Article 41 of the Constitution (in particular, its second paragraph) may have the capacity to legitimise a change in the purpose of the enterprise: no longer, and not only, profit maximisation, but also sustainability or corporate social responsibility.
What seems incontrovertible is that the amendment will allow the legislator to require private parties to internalise environmental needs within the context of their business purpose. And that is no small novelty.
