1 Introduction
In the mid-1970s, Europe was in the grips of a wave of severe industrial disasters. In 1975, an explosion at a chemical plant in Beek, the Netherlands, killed 14 people working at the site. One year later, a cloud of highly toxic dioxin escaped from a plant near the Italian town of Seveso, just outside Milan. Together with accidents at chemical plants near Flixborough (UK) in 1974 and Manfredonia (Italy) in 1976, these disasters had a profound impact on the way in which Europeans engaged with industrial hazards and chemical pollution in their living environment. The Seveso disaster in particular became a highly mediatised, transnational event, placing industrial safety and chemical pollution firmly on the agenda – not just of the labour movement, but of Europe’s burgeoning environmentalist movement as well.Footnote 1 The disasters also prompted the European Community (EC) to intervene in the regulation of industrial safety, resulting in the first of a series of so-called Seveso directives in 1982.Footnote 2 At a time when the EC committed itself to working towards a more democratic ‘people’s Europe’, these directives sought to directly address the concerns that citizens living near industrial sites had about their safety.Footnote 3
Thinking about the European Union’s (EU) constitutional legal order today is inextricably tied up with questions about the democratic legitimation of European integration.Footnote 4 Political scientists, historians and socio-legal scholars alike have called into question the promise of European law as an emancipatory force for citizens, what has been called ‘empowerment-through-law’.Footnote 5 At the same time, the actual democratic potential of legal mobilisation is contested at best, as much of the mobilisation of European law ‘from below’ has been found to be either mediated by a relatively small group of ‘Euro-lawyers’ committed to the idea of ‘integration-through-law’, or limited to those already powerful in terms of resources.Footnote 6 Therefore, scholars have called for more fine-grained analyses of what we understand by legal mobilisation and how it evolved in the context of the EU legal order.Footnote 7
Remarkably, such studies on EU legal mobilisation typically focus on (landmark) preliminary references and do not take infringement cases into consideration. The European Commission taking a Member State to court, after all, stands out as an institutional affair, and has therefore first and foremost been considered in terms of the Commission’s willingness and ability to fulfil its role as ‘guardian of the Treaties’.Footnote 8 In doing so, these analyses neglect an important fact that earlier research has already established, however: a large share of the infringement cases brought by the Commission against Member States can be traced back to complaints made by societal actors.Footnote 9 Considering that the majority of court cases that the European Court of Justice (ECJ) dealt with up until the 1990s were infringements, this suggests that a historically important route of societal empowerment has thus far hardly received scholarly attention.Footnote 10
In seeking to correct this oversight, this article explores the potential of studying ‘mobilisation through infringement’. It does so by zooming in on the opportunities for societal empowerment that the 1982 Seveso directive offered, whether these opportunities were used or not. Aimed at ‘preventing major accidents and limiting their consequences for man and the environment’, the directive prepared for the type of industrial disasters that had occurred in the mid-1970s.Footnote 11 Subsequent disasters in Bhopal, India (1984), Chernobyl (1986) and Basel (1986) meant, even though they took place outside the EC, that the issue of industrial safety stayed on political agendas throughout the 1980s. Within the EC, moreover, Member States reported no fewer than 26 major industrial accidents to the Commission between 1984 and 1988.Footnote 12
Given the political salience of this subject and the societal impact that industrial disasters had, one would perhaps expect to find traces of societal mobilisation in the records of the ECJ. They do not, however, in the conventional sense of social groups and individuals enforcing the safeguards offered by the directive by taking states or industries to court.Footnote 13 Instead, conflicts over compliance with the Seveso directive in the 1980s were played out through infringement proceedings. Two such procedures filed by the European Commission ended up before the ECJ: the Netherlands and Italy – the same two Member States that had witnessed major accidents in the 1970s.Footnote 14 In this article, we analyse how the enforcement of European environmental law through infringement procedures created opportunities for the empowerment of various societal groups. In doing so, we aim to broaden the scope of the scholarship engaging with societal engagement through law.
Our approach to this alternative domain of societal empowerment is indebted to various fields of scholarship. Building on the insights provided by the vast amount of work done on legal mobilisation, we consider it by no means obvious that citizens and societal groups exposed to the risks of industrial disasters should understand their concerns regarding industrial safety in either ‘legal’ or ‘European’ terms.Footnote 15 On the one hand, we acknowledge the crucial role of legal expertise – whether in the shape of ‘ghost-writing’ Euro-lawyers,Footnote 16 brochure-printing Brussels institutions,Footnote 17 or as part of ‘well-organised civil society groups’ – in turning citizens into rights-conscious litigants.Footnote 18 On the other hand, the emerging body of scholarship on the ‘social history of European integration’ directs our attention to societal actors and their ‘lived experience’ of European integration and the manifold ways outside litigation in which citizens engaged with European institutions and shaped European integration as a result.Footnote 19
In order to unpack these thresholds, and to study the mobilisation of the Seveso directive in a way that captures both its ‘legal’ and ‘political’ variants, this paper develops an approach to mobilisation that starts from the directive itself as the central legal text.Footnote 20 From there, it surveys traces of societal engagement with the directive in a wide range of archives, both at the European institutional level and in national and local settings in the Member States where we most expected such engagement to take place: the Netherlands and Italy. We complemented these archival findings with interviews, press publications and parliamentary proceedings. This multi-archival, micro-level approach allows for exploring how actors learn of and understand European law and its uses, and discerning the various ways in which actors not only ‘talk’, but also ‘do’ law.Footnote 21
The scope of potential action (and non-action) is further widened by the fact that this article focuses on not one, but two case studies and countries, whose rather diverging compliance cultures and legal and political opportunity structures allow for widely varying forms of mobilisation.Footnote 22 The aim of this article is not to compare the Netherlands and Italy, nor to develop a single, coherent narrative, but to survey the full scope of societal engagement with the directive in these two founding Member States, in order to demonstrate what such an approach can yield.Footnote 23 More specifically, it maps the diversity of societal engagement with the Seveso directive, from rights-claiming (groups of) citizens, often as part of a broader emancipatory repertoire, to more institutionalised organisations, but also local actors who understood industrial safety as neither a legal nor a European affair. Before delving further into these ‘infringement stories’ of the Netherlands (section 4) and Italy (section 5) however, the article first sets the scene by briefly introducing the Seveso directive (section 2) and exploring the European-level opportunity structures it offered (section 3).
2 Industrial disaster, industrial safety and the Seveso directive
The major European industrial disasters of the 1970s revealed something fundamental about industrial risk: a crucial element in the prevention and mitigation of accidents was the availability of information to authorities and the public. The Seveso disaster especially stood out as an ‘information disaster’, as the management of the plant and public authorities were either unwilling or unable to inform citizens outside the plant of what had occurred or what they could do to stay safe under the circumstances.Footnote 24 The problem was much the same with the disasters mentioned in the explanatory memorandum to the directive. Much of the public unrest following these disasters concerned the lack of information provided by plant management and public authorities.Footnote 25
The European Parliament had rapidly picked up on the issue of information. For example, directly following the Seveso disaster, Members of the European Parliament (MEPs) urged Commissioner Carlo Scarascia Mugnozza to set up a ‘land register’ for assessing and monitoring risks.Footnote 26 In subsequent disasters, such as the 1979 accident in Velbert, West Germany, in which eight workers were killed, the Parliament again pressed for stronger Community safety regulation of industry.Footnote 27 The directive that followed Seveso was therefore the first to require environmental information to be provided and exchanged across borders.Footnote 28 It was both indicative of the EC’s commitment to environmental regulation, and of a broader societal preoccupation with questions of transparency and access to information in the 1970s.Footnote 29
Yet, the eventual Seveso directive was not just a knee-jerk regulatory response to accidents. The close involvement of the affected industries in its drafting demonstrates that the directive was just as well guided by the central logic behind the common market, namely that differing national rules and regulations on issues like industrial risk and environmental protection could result in unfair competition and impede free trade. Indeed, the Commission argued in its 1979 draft for the Seveso directive that the disparity in regulations on industrial safety could, especially, affect the price of products.Footnote 30 Thus, the regulation built on a long tradition. Already in the days of the European Coal and Steel Community (ECSC), mine safety was a major issue, made all the more urgent due to major accidents such as the 1956 Marcinelle disaster.Footnote 31
The main objective of the Seveso directive was to reduce industrial risks and their impact. It compelled managers of plants processing any of the dangerous substances listed in the directive to implement safety measures, risk monitoring and to prepare emergency plans. It also made them responsible for reporting these measures as well as major accident hazards to national authorities (Article 5). Most notably, Article 8 of the directive obliged national authorities to ensure that all persons liable to be affected by major accidents be informed about safety measures and to instruct them how to act in case of emergency.Footnote 32 This was surely the most complex and controversial element of the directive, because it inevitably had administrative consequences in the Member States, where authorities regulating industrial activity would have to be reorganised or endowed with new powers and tasks.Footnote 33 Thus, the directive effectively created an information network between industrial facilities, authorities and citizens, as well as authorities across borders likely to be affected.Footnote 34
After the Seveso directive entered into force in 1984, industrial disasters were all but a thing of the past.Footnote 35 The various accidents reported to the Commission by the Member States as well as new disasters prompted the Commission to amend and expand the directive. Following the 1986 Sandoz disaster in Basel, Switzerland, the Commission widened the scope of the directive to also cover the storage of substances next to their production. In another amendment of the directive, the Commission in 1988 crucially revised Article 8, transforming a passive right to information into an active duty for authorities to inform the public.Footnote 36 The controversial character of this article also meant that its implementation came with considerable delays in many Member States.Footnote 37 Meanwhile, the EC extended the freedom of access to information about environmental issues also to other areas.Footnote 38 An entirely new directive followed in 1996, which not only put more obligations on companies to be open about their safety risks and measures, but also to offer evidence.Footnote 39 In terms of legislation, the question of preparing for disaster had thus predominantly become a European matter.
3. Opportunities for enforcement of the Seveso directive: the institutional context
Whether and how citizens living under the ‘Seveso regime’ engaged with the directive depended on more than just the legal text. Their mobilisation of European law occurred in the context of what the literature refers to as ‘opportunity structures’: the structural factors such as institutions, resources and precedents that influence actors’ options to take action. Inspired by these studies’ mapping of political opportunity structures such as social actors’ access to information, rules on social movements and their interaction with political decision-makers, and legal opportunity structures such as access to courts, costs for legal proceedings or the availability of legal rights, this section explores the actual possibilities for societal engagement, especially on the European level.Footnote 40 It finds that, in the case of the Seveso directive, opportunities for local engagement were importantly influenced by a presumed lack of litigation options, which especially the European Commission claimed to compensate for by pursuing an active enforcement policy.Footnote 41
By the time the Seveso directive came into force, it was widely acknowledged that the rapidly growing Community legislation on environmental matters – of which the Seveso directive was considered a partFootnote 42 – could not as easily be mobilised as legislation on, for example, competition or workplace equality. In 1988, Ludwig Krämer, the European Commission’s Directorate-General for Environmental and Consumer Protection (DG XI)’s head of legal matters, observed that the environment typically lacked the interest groups that in other fields had grown increasingly involved in the enforcement of Community law: ‘Environment legislation affects each one of us; but at the same time, no group has a vested interest in seeing environmental standards actually applied’.Footnote 43 Moreover, environmental groups and individuals that were concerned with the matter typically lacked the legal standing required for bringing a case to court.Footnote 44 In the Netherlands, locus standi of societal organisations was accepted by administrative courts from 1975 onwards, but with important restrictions as to their scope and legal status.Footnote 45 Similarly, in Italy, a 1986 law granted legal standing, but to acknowledged national environmental organisations only.Footnote 46 Nevertheless, some possibilities for (individual) litigation did exist for the Seveso directive: as again Krämer keenly observed, its Article 8 in fact endowed citizens with an enforceable right to information as it contained an ‘exact, precise and clear’ obligation for Member States to act.Footnote 47
In contrast to the limited potential for societal engagement through litigation, which, as Krämer acknowledged, in the field of environmental law ‘has scarcely yet been fully explored or appreciated’, stood the possibility for bottom-up actors to engage the Commission in its attempts to mobilise law.Footnote 48 In its role as ‘guardian of the Treaties’, the Commission had already established a central register in 1961 to keep track of difficulties with the implementation of the Common Market. It could follow up on this by issuing warnings to Member States or, ultimately, by starting infringement proceedings before the ECJ (Article 169 EEC Treaty, currently Article 258 TFEU).Footnote 49 A more systematic monitoring of the implementation of Community legislation only emerged in the mid-1970s however, under the presidency of Roy Jenkins.Footnote 50 Following a proposal by the Legal Service and deputy Secretary General Christopher Audland, it then became standard practice to send a Member State a ‘letter of formal notice’ when an infringement was suspected, followed by an exchange over a ‘reasoned opinion’ before a case was brought before the ECJ.Footnote 51 As a consequence, the number of pending infringement cases rose from 15 to 42 between 1978 and 1984, while the number of letters of formal notice increased from 97 to 289.Footnote 52
In light of these figures, DG XI went against the tide. By the mid-1980s, the Commission became stricter in selecting its infringement proceedings in order to avoid overburdening of the Court.Footnote 53 Instead, the Commission increasingly relied on alternative means of encouraging compliance, such as private litigation and supporting research into reasons for non-implementation.Footnote 54 Remarkably, however, this stricter selection policy did not seem to apply to the enforcement of environmental legislation. On the contrary: the Commission’s engagement with the enforcement of environmental law rose spectacularly in the 1980s. Where the Commission’s share in enforcement generally accounted for some 15–40 per cent, in the environmental field it was up to 60 per cent in the 1990s.Footnote 55
In the late 1980s, DG XI came to present itself as a ‘European environment ombudsman’, actively soliciting complaints from citizens and NGOs, and organising frequent meetings with officials and experts from the Member States to monitor their implementation of environmental directives.Footnote 56 It owed the capacity for this more active role to the Seveso disaster, or more precisely the 1983 news that dioxin from the Seveso disaster site had gone missing. A European Parliament (EP) Committee of Inquiry – the first in its history – found that the Commission had failed to enforce the application of directive 78/319 on toxic and dangerous waste. The EP had therefore demanded that the Commission should expand its staff in this area and set up an administrative unit dedicated to this purpose, which it did in 1984.Footnote 57 The expansion of its administrative capacity allowed DG XI to register all signals it received from below as formal complaints and investigate them – even if they only vaguely hinted at a failure to comply with EC law. As a result, the number of registered environmental complaints rose from ten in 1982 to 525 in 1989.Footnote 58 This created a brief window in the opportunity structure which lasted roughly from the mid-1980s to the turn of the century, during which the Commission had the administrative capacity and willingness to actively pursue the enforcement of environmental law.Footnote 59
In addition, the EP also proved an important source of information on Member State compliance. MEPs directed the Commission’s attention to compliance issues through written or oral questions. As early as 1958, the EP set up a dedicated committee to investigate petitions submitted by citizens and civil society groups. The role of MEPs as informants only became stronger when they acquired a direct democratic mandate in 1979. With the EC’s growing involvement in environmental policy from the 1970s onwards, the EP also started receiving more and more petitions on environmental issues, including petitions on non-compliance.Footnote 60 As the Italian Green MEP Alexander Langer observed in 1991: ‘unlike in the past, when topics such as pension, tax, customs, etc. prevailed, now the most prevalent item in petitions concerns the environment: out of 774 petitions presented in 1989–1990, 126 concerned environmental complaints or suggestions’.Footnote 61 The Committee on Petitions (PETI) reviewed all these appeals and determined whether they were admissible. If they were, it could decide to investigate and draw up a report on the matter or decide to bring the matter directly to the attention of the Commission.
In a strict legal sense, the opportunity structure for legal mobilisation on the Seveso directive was limited. Only Article 8 stood out as potentially enforceable. Looking beyond litigation, however, the Seveso disaster opened the doors of Brussels and Strasbourg for citizens and organisations that took issue with the application of EC environmental law in their member state. It was this opportunity that the Dutch and Italian actors portrayed in the following sections would make use of.
4 The Netherlands: the details of the directive
In the Netherlands, the shock of the 1975 DSM disaster provoked a major revision of legislation regarding industrial safety. Locally, both the more practical administrative questions of crisis management and the fears of the people living and working closest to the installations in areas such as the Rijnmond (harbouring the Rotterdam port industry) and the Limburg surroundings of DSM were addressed by municipal reorganisations and studies calculating industrial risks.Footnote 62 At the national level, new provisions regarding industrial safety were integrated in the 1980 Arbeidsomstandighedenwet, covering the risks for workers, and the 1985 Rampenwet, regulating the responsibilities for disaster prevention, among others. Before this carefully balanced body of legislation became effective, however, a first revision was necessitated by the new EC Seveso directive.
Although the Dutch government had generally supported the Seveso directive in the Council, implementation was challenging precisely because of the detailed national legislation that already was in place. This meant that the directive was to be integrated into an existing legal framework, that started from different definitions on, for example, dangerous sites but also held a different approach to calculating risk.Footnote 63 As a consequence, the industries concerned, as represented by their peak organisation Raad Centrale Ondernemersorganisaties (RCO), feared a divergence in rules and a duplication of the reports required from them.Footnote 64 Moreover, transposing the Seveso directive in the Netherlands meant that negotiations had to be reopened on the competence of the various ministries involved, two of which had just gone through a painful separation.Footnote 65
To make things even more difficult, consecutive ministers for Environmental Affairs insisted that the Seveso legislation should align with their broader programme of environmental regulation.Footnote 66 In light of these broader ambitions, ministers Pieter Winsemius (1982–1986) and Ed Nijpels (1986–1989), both from the liberal Volkspartij voor Vrijheid en Democratie (VVD), were generally inclined to accommodate business concerns. Winsemius expected that this would eventually secure the industries’ compliance with environmental legislation.Footnote 67 Indeed, from the early 1980s onwards, companies such as DSM reportedly attempted to provide more openness and thus improve relations with local residents and environmental NGOs.Footnote 68 Meanwhile, however, the company also negotiated an exemption to plans to mitigate industrial risks through ‘integral zoning’ – an exemption it claimed was needed to safeguard 6000 jobs in the Limburg area that was still recovering from the closure of the coalmines in the 1970s.Footnote 69
In this complex back and forth between industry and government, pressure from Brussels presented a further burden. Thus, the Dutch government reacted highly annoyed when the Commission started an infringement procedure over the non-implementation of the Seveso directive. In parliament, Nijpels blamed the Commission’s resort to Article 169 on European Commissioner for the Environment Stanley Clinton-Davis’ ambition to ‘show off’ after the 1986 Chernobyl and Sandoz disasters had placed the issue of industrial safety back on everyone’s radar.Footnote 70 However, while these circumstances may well explain the Commission’s impetuosity in December 1986, its persistence in pursuing what soon became an ‘utterly technical’ dispute on the details of the directive also rested on the close ties Dutch environmental groups and their lawyers maintained with some Brussels decision-makers.
Strikingly, most of the people working at the main Dutch industrial plants or living in their immediate surroundings generally seemed reassured by the detailed national legislation developed from the late 1970s onwards. Even when confronted with subsequent accidents, such as the 1991 explosion at DSM Botlek in which six workers were killed, workers’ representatives hesitated to speak openly, while administrators highlighted that driving a car or smoking involved more risk than living close to an industrial site.Footnote 71 In Limburg, where the 1975 explosion had been met with a deafening silence by the DSM leadership and local authorities alike, citizens living close to the industrial site occasionally even mobilised against the consequences of the very legislation issued to enhance their safety.Footnote 72 Protest movements rallied against a merger of municipalities meant to strengthen local authorities’ control and against the ‘integral zoning’ proposals which threatened to impose a building-free zone on the city of Geleen.Footnote 73 If they already acknowledged the risks of a potential disaster at the industrial plant where they worked and lived, most citizens thus did not seem to perceive this risk as either a European or a legal matter.
While the archival records examined do not include any local references to the Seveso directive, they also reveal that the directive and its implementation in the Netherlands were closely followed elsewhere: for a small group of connoisseurs, the question of industrial safety had been both ‘European’ and ‘legal’ from the very moment the Seveso directive had been issued in 1982. In general terms, the Dutch implementation of EC law had been critically followed by European law specialists since the late 1960s already. After the Dutch European law association, the Nederlandse Vereniging voor Europees Recht (NVER), had dedicated its 1968 conference to the theme, the implementation of European law became the key research subject of the interuniversity Asser Institute that served as the main documentation centre on European law in the Netherlands. Its research, conducted by teams of academic researchers and civil servants, exposed how the Dutch administration in many regards struggled to meet the terms and time limits set in the increasing number of regulations and directives issued in Brussels. In the late 1970s – not coincidentally when one of the initiators of the Asser Institute, European law professor Laurens Jan Brinkhorst, took up a seat in parliament – this research became a source of annual questions in parliament.Footnote 74 In spite of this close monitoring, the Dutch record in transposing European directives remained weak throughout the 1980s.Footnote 75
In the environmental field, a similarly well organised community of specialists closely followed European developments from the late 1970s onwards. The expertise of Stichting Natuur en Milieu, an umbrella organisation for environmental groups across the Netherlands, was widely acknowledged: in October 1982, at a colloquium of chemical industrialists discussing the implementation of the new Seveso directive, a representative of the Dutch pharmaceutical company Duphar raised the question of how to involve environmental organisations in the discussion on implementation, considering that ‘[n]ation-wide environmental organisations, eg Natuur en Milieu in the Netherlands, are among the best organised and staffed groups’.Footnote 76 Indeed, it was Natuur en Milieu that already signalled to press and parliamentarians in early 1986 that the delay in implementation ‘caused by resistance from the industries’ had led the Commission to send a letter of formal notice.Footnote 77
In the months that followed, Natuur en Milieu got further involved in the implementation of the Seveso directive through its seat on the government’s advisory council for the environment, the Centrale Raad voor Milieuhygiëne (CRMH). As a typical exponent of the Dutch corporatist arrangements, the CRMH, which also included representatives from business’ and workers’ organisations, had been asked to advise on the transposition of the Seveso directive in national legislation. In this context, Natuur en Milieu representatives made note of ‘remarkable differences’ between the Seveso directive and the draft Dutch legislation, for example, where it came to the implementation of Articles 5 and 8 of the directive regarding the industry’s obligations to share relevant information with the authorities and the broader public.Footnote 78
Natuur en Milieu, its associated lawyers’ association Vereniging voor Milieurecht and the more generalist Asser Institute kept close ties to the European Commission’s DG XI, especially when Brinkhorst took up the position of Director-General in 1987. In the same year, the Asser Institute dedicated its annual colloquium to EC environmental law, hosting amongst others a contribution by the Commission’s Legal Service official Thomas van Rijn.Footnote 79 In 1988, on the request of the European Commission, the Vereniging voor Milieurecht organised a conference together with the Amsterdam-based Instituut voor Europees Milieubeleid to discuss the Dutch implementation of EC environmental directives. The conference was meant to foster exchange between scholars, Commission officials, Dutch civil servants and in-house lawyers from relevant companies and societal groups: in his opening speech, Brinkhorst emphasised the importance of the exchange of information between national and European authorities, and highlighted the possibility for citizens and environmental organisations to submit complaints to the Commission – a possibility that he found was not yet much used by Dutch organisations.Footnote 80
Where Brinkhorst may have found the exchange between Dutch organisations and the Commission lacking, the conference itself provided an excellent forum for discussing details, also regarding the implementation of the Seveso directive. Yet, the conference also confirmed that the Commission’s insistence on due implementation of the directive was first and foremost an institutional affair. When, on behalf of the Dutch government, the deputy head responsible for Environmental Affairs R.J. Dronkers once again explained that the implementation delay was due to the government’s ambition to cooperate with the companies involved, Brinkhorst raised as his main concern that the nonchalant attitude demonstrated by the Dutch government eventually weakened the European legal order.Footnote 81 For the Commission, as well as for the Dutch experts and organisations taking part in the exchange, the due implementation of the Seveso directive thus was first and foremost part of a broader concern with the development of European (environmental) law.
Whether the Commission’s calls for further exchange with Dutch organisations yielded results cannot be established based on the available paper trails. What is clear, however, is that, when preparing the file for the infringement case, Brinkhorst was explicitly asked by the Legal Service to chip in with his expertise.Footnote 82 More indirectly, most of the Commission’s objections regarding the Dutch implementation of the directive concerned the very same aspects that had already been raised by the environmental and labour representatives in the CRMH and the Arboraad – an advisory body overseeing occupational health and safety.Footnote 83 Thus, the main focus was on Articles 5 and 8, on which employers’ organisations had pushed back against stricter legislation on safety reports as well as access to information for the broader public.
In line with the expert-driven way in which the compliance issue had been mobilised in the Netherlands, the eventual infringement case as it was presented to the European Court of Justice was considered utterly technical. In his 1992 conclusion, the Danish Advocate General Gulmann even questioned the Commission’s rationale in pursuing the case, considering that the practical effect of the ECJ’s findings would be rather minimal. After all, the Dutch government seemed full of good intentions, and the conflict focused merely on whether its transposition into national law fully met all requirements of the directive. Yet, the Advocate-General agreed with the Commission that a few provisions of the directive indeed required better implementation.Footnote 84 The ECJ confirmed this conclusion in its May 1992 judgement. Whereas the court allowed the Dutch government its broader interpretation of certain provisions as long as the objectives of the directive were met, it ruled that for especially the contested provision on access to information, the Dutch government had simply failed to comply with the directive.Footnote 85
In spite of the continuing salience of industrial safety in the Netherlands, the translation of the issue into a European and legal question largely remained a matter for the experts of Natuur en Milieu and adjacent jurists’ organisations. At the same time, their mobilisation not only fed into the Commission’s DG XI’s ambition to actively monitor non-compliance, but it also functioned as important leverage for the other platforms on which these societal organisations criticised the Dutch nonchalant implementation, such as in the CRMH, and in their lobbying the press and national parliamentarians about the stakes behind the highly technical clauses. Thus, it was the exchange between national, societal organisations and the European Commission that eventually kept both the Dutch government and its industries on track.
5. Italy: Seveso’s ripple-effects
Whereas industrial safety and pollution emerged as politically salient issues in Italian politics in the early 1970s, they became impossible to ignore by 1976.Footnote 86 The disaster at Seveso, near Milan, not only shook up Italian society, but its name also became associated with the EC directive that followed. Although nobody was killed in the explosion, there were many casualties in the days and months that followed. The carcinogenic dioxin that was released caused a sharp rise in cancer in the area. Children especially were affected by a skin condition called chloracne, and numerous women clandestinely aborted their pregnancies in fear of birth defects.
The Seveso victims became the faces of Italy’s most notorious industrial disaster to date. Seveso became a powerful symbol of the risks that came with industrial society and ushered in a period of politicisation of industrial safety and pollution in Italy. After all, Italy’s problems in this area seemed structural. Just three months later, in the Southern region of Apuglia, an explosion at the ENICHEM petrochemical plant released a cloud of arsenious dioxide that rained down over the coastal town of Manfredonia. One-hundred and fifty people were admitted to hospital with arsenic poisoning, with longer term health effects only emerging in the months and years after.Footnote 87 The year after, an explosion at a Montedison petrochemical plant in Brindisi left three employees dead. Against the backdrop of these disasters, the risk perception in communities that lived near heavy industry was heightened, often exacerbated by more persistent issues such as pollution. With the implementation of the Seveso directive, this new European dimension thus became a viable venue for bottom-up mobilisation. This section traces three such mobilisations, following them as they moved through subsequent venues and ended up addressing the EP. To put this into context, the following first outlines the implementation of the directive in Italy.
The legislation that Italy had in place at the time of these disasters was, in the words of the European Commission, ‘extremely disparate’. Its basis dated back to a 1934 health law, which had been amended in later decades to cover air and water pollution. Whereas these amendments introduced reporting and licensing schemes for industries, the Italian government had been more preoccupied with the chemical industry’s competitiveness. With the exception of private plants like ICMESA at Seveso, the Italian chemical industry was mostly controlled by an oligopoly in which the state was heavily involved. ENI (Ente Nazionale Idrocarburi), set up in 1963, was entirely state-owned, whereas the Italian state held a minority of the shares of the other chemical giant Montedison. The oil shocks of the 1970s left the latter group especially ailing, and so the Italian government intervened in 1981, dividing up chemical production in the country between the two groups.Footnote 88
The EC directive offered the Italian authorities an opportunity to reconcile the question of industrial safety with the chemical industry’s competitiveness in Europe. The Italian government was therefore convinced of the need for a European directive and urged for its swift adoption in 1979.Footnote 89 It transposed the directive in a series of laws. By 1988, however, the Commission found that the Italian government had implemented the directive only partially, with few provisions for on- and off-site emergency plans or requirements for informing the public about risks.Footnote 90 This was consistent with Italy’s track record with belatedly or inadequately implementing EC environmental law.Footnote 91 Moreover, in spite of a total of some 350 industrial facilities being subject to the directive, the Italian authorities had not submitted a single report on safety to the Commission as of 1987.Footnote 92
While remarking upon the faulty implementation of the Seveso directive in Italy, the European Commission did not notify the Italian government of its shortcomings until 1991. In its notification, the Commission cited the drawing up of external emergency plans (7.1), safety inspections by authorities (7.2), the notification by plants of measures taken (5.1) and the information duties by the Member States (8) as the key deficiencies.Footnote 93 This action did not come out of nowhere. It followed political pressure from the EP earlier that year, which in turn had received visits and petitions from various local communities that had flagged Italy’s non-compliance with the Seveso directive. As this section will demonstrate, this pressure from below ultimately proved conclusive in the Commission’s legal action against Italy.
These upward escalations were the outcome of years of mounting local frustration with inactive authorities and, as a result, a growing local capacity for political and legal mobilisation. It all started, however, with street protests and citizen groups that sought to lobby local and regional authorities. One such group emerged in 1986 in the Bormida Valley in the North, in the border region between Piemonte and Liguria, where residents organised in a protest group against recurring incidents at the ACNA chemical plant, owned by Montedison, and its persistent pollution of the Bormida river.Footnote 94 A second local movement emerged in in the aforementioned Apuglian port town of Manfredonia, where the ENICHEM plant had been the site of one of the disasters in 1976 that had given rise to the Seveso directive. In 1988, local tensions came to a head when a ship carrying toxic waste was directed to the local incinerator, upon which the town erupted in protest, which saw 40.000 residents taking to the streets, clashes with the police and an occupation of the town hall. The protest became a more sustained popular movement, when residents set up a tent camp in Manfredonia’s main square, where they convened every evening for two years straight.Footnote 95
In their local struggles, these movements came to realise that the problems they faced were not just local, but of a more structural nature and larger scale. Frustrated with the lack of result from their local actions, they found each other in seeking to address national political circles. They kept in touch and occasionally joined each other in protests, such as a demonstration before of the Italian Chamber of Deputies.Footnote 96 The activists from the Bormida Valley were especially set on exerting political pressure at the national level by attracting the attention of national media. They did so rather successfully, through a meeting with Pope John Paul II, a protest at the Sanremo song contest and a blockade of the finish of a stage in the Giro d’Italia, which even got coverage outside Italy.Footnote 97
These local protest movements framed the issue of industrial safety in terms of social conflict first and foremost, and sparked mobilisation on the themes of public health, safety at work, democracy and transparency rather than environmentalism. They found allies especially among trade unions and branches of political parties such as the Partito Communista Italiano (PCI), which had stronger local roots than environmental organisations.Footnote 98 Women played a central role in these movements.Footnote 99 In Manfredonia, it was a group of women calling themselves the Movimento Cittadino Donne (Womens’ Citizen Movement) that drove the protest in the long term. Inspired by feminist ideas, they united a critique against the industrial exploitation of the area and the pursuit of profit over protection of public health. They presented themselves as the embodied representatives of that struggle: as women, they were carriers of life, who stood up against the violent ‘robbery and conquest’ of ENICHEM.Footnote 100
When the Italian government transposed the Seveso directive into law one year later, the women from Manfredonia were quick to see shortcomings in the transposition.Footnote 101 Having amassed considerable legal and technical knowledge, they quickly issued a communiqué stating that the Italian law insufficiently met the obligation to provide citizens with information about the risks of living near a potentially hazardous chemical plant. The Italian law namely obliged the mayor of the town where the plant was located to inform citizens, even though neighbouring municipalities could be more affected, as had precisely been the case with the Seveso and Manfredonia disasters.Footnote 102
Yet, for the women from Manfredonia, the Seveso directive remained only one of multiple routes of mobilisation. Their main efforts and resources went into an appeal to the European Court of Human Rights (ECtHR), based on the complaint that they had not been properly informed about risks or measures taken to combat them. In 1998, the ECtHR ruled in their favour based on Article 8 of the European Convention on Human Rights, which guaranteed the right to private and family life – after yet another incident had occurred at ENICHEM in 1997, this time a fire.Footnote 103
The group from the Bormida Valley, meanwhile, was more attentive to Italy’s compliance with the Seveso directive, and the role that the EC could play in enforcing it. In 1989, a number of residents, mayors and other regional politicians and journalists from the area took a bus to Strasbourg, where they had a meeting with a number of Italian MEPs from different parties to discuss the European dimension to their struggle. More importantly, they had a meeting with the EP’s President, Lord Henry Plumb, whom they presented a petition with some 12.000 signatures.Footnote 104 In their petition, the residents called upon the EP to investigate whether the Italian government had met its commitments to the EC, in particular Article 5 of the Seveso directive, which stipulated that the ACNA plant they lived nearby should report to the competent authorities on its activities.Footnote 105
The PCI played a key role in bringing this complaint to the EC and honing in on the issue of compliance. It was the Piemontese regional section that came up with the idea of going to Strasbourg in the first place.Footnote 106 Having representatives both in the region and in Strasbourg, the PCI could thus act as an intermediary, translating local concerns into issues of European law. The PCI also had a number Members of the European Parliament (MEPs) who were very active on the subjects of environmental protection, industrial safety and public health, with Altiero Spinelli as its figurehead.Footnote 107 Crucial in this regard was the role of the PCI MEP Vera Squarcialupi. As early as 1984, the year that the Seveso directive took effect, she had started drawing attention to Italy’s role as a laggard in implementing the directive. In the EP, she enquired more broadly about the compliance of Member States with the Seveso directive. The Commission’s answer, that Belgium, Greece and Italy were lagging behind, led her to draw the conclusion in the national communist newspaper L’Unita, that ‘Italy is always last’.Footnote 108 She then started drawing the Commission’s attention to the situation in places like the Bormida Valley and Manfredonia.Footnote 109 Squarcialupi was also among the MEPs who welcomed the residents from the Bormida Valley in Strasbourg and visited the Valley itself.Footnote 110
In legal terms, the impact of the petition remained minimal. Having investigated the matter, the EP’s PETI Committee Petitions found in 1993 that the Italian government was not in breach of the Seveso directive.Footnote 111 For the Bormida Valley protesters, however, the visit to Strasbourg and the petition were opportunities to put political pressure on Italian authorities first and foremost. That is why they delivered the petition in person rather than sending it by post, allowing for yet more media coverage of their struggle.Footnote 112 Tellingly, later that year, the movement called for a boycott of the European elections, which resulted in only 8 per cent of voters in the Valley turning out to the polls. It shows that the petition was not borne out of a particular attachment to the EP or European law, but a pragmatic assessment of how to exercise political pressure on political elites and draw attention to their cause.Footnote 113
By taking their struggle to Strasbourg, the Bormida Valley protesters had ostensibly set an example, even though there is no sign that subsequent mobilisations to the EC level copied their playbook. The next group to bring their cause to the EP were the women from Manfredonia. The 1989 European elections saw an ally of the Movimento Cittadino Donne get elected to the EP for the PCI: Adriana Ceci, a qualified paediatrician and advocate of women’s emancipation. Hailing from Apuglia, she had already been an important contact for the movement in Rome. Shortly after her election, Ceci invited the women from Manfredonia to Strasbourg to make their case before the Committee on the Environment, Public Health and Consumer Protection. Meanwhile, Ceci continued her efforts to draw the Commission’s attention to the situation in Manfredonia.Footnote 114 Unlike her predecessor Squarcialupi, however, who had left the EP in 1989 and had been very attentive to the issue of compliance, Ceci was seemingly less preoccupied with the legal dimension.Footnote 115
It took another intermediary to translate the grievances of the women of Manfredonia into an issue of compliance. Enrico Falqui, an MEP for the Italian Greens who had been present at the meeting with the women, addressed a series of three written questions to the Commission. Raising the question of Italy’s compliance with the Seveso directive, he drew attention to the cases of Manfredonia, Sarroch and Porto Scuso (Sardinia) and Priolo, Melilli, Augusta and Siracusa (Sicily). The Bormida Valley was not included in Falqui’s questions.Footnote 116 He alerted the Commission to the fact that residents had not been ‘given any information at all about the high-risk industrial activities being carried on in the area or about any emergency plans to be implemented inside or outside the plant in the event of a major accident’.Footnote 117
With his written questions, Falqui not just articulated concerns from Manfredonia, but also from the third region discussed here, the towns on Sicily’s East coast – Priolo in particular. As a member of the PETI-Committee, he had taken part in examining a series of three petitions from that town, which neighboured a large petrochemical site. The site was not only a source of water and air pollution, but plagued by incidents as well. In 1985, for example, a leak in an ethylene tank near Priolo caused a massive fire which saw many locals flee their homes.Footnote 118
In an emotive appeal to the EP, a female resident of the town of Priolo complained in a 1990 petition about the lack of information that residents received about the risks of living near the plant, albeit without referring to the Seveso directive.Footnote 119 While her petition was still under review, the woman filed a new one the following year. This time, it was a very short letter, co-signed by 188 others, referring explicitly to the Seveso directive’s Article 7 section 1, which stipulated the responsibility of national authorities to ensure that adequate emergency plans would be in place.Footnote 120 Yet another petition, filed by another resident of Priolo and 83 co-signatories some months earlier, drew attention to the exact same paragraph.Footnote 121 Clearly, knowledge about the Seveso directive and the way in which to engage with EC institutions was going around the area.
The petitions from Sicily and the grassroots mobilisations from the Bormida Valley and Manfredonia show that the path to the mobilisation of European law was far from straight. The local activists pursued different avenues. Where it came to European law, they invariably ended up addressing the EP, through mediation of the PCI, rather than directly filing a complaint with the Commission as the guardian of European law. This shows that the activists saw the mobilisation of European law not as a mere legal-procedural issue, but rather as a way to take their struggle to new venues and to exert political pressure through new means.
This politics of enforcement through the EP was not a path that all MEPs were equally attentive to. It took the insight of MEPs Vera Squarcialupi and Enrico Falqui to connect the various cases and to highlight that Italy’s problems with industrial safety were not isolated incidents, but a structural shortcoming on the part of the Italian state. Falqui thus set the Commission on the track of starting an investigation against Italy in 1991, over a year later. Subsequent petitions and questions by MEPs, among whom Falqui himself, kept sustained pressure on the Commission to pursue the matter.Footnote 122
It took until mid-1993 before the Commission decided to issue a reasoned opinion against Italy.Footnote 123 The petitions played a significant role in this decision. DG XI cited them in urging the Legal Service to advance with the case in 1995, arguing that the credibility of the Commission as the enforcer of European law was at stake here.Footnote 124
In making its case before the ECJ, the Commission eventually cited exactly those places that Enrico Falqui had drawn attention to in his written questions.Footnote 125 It was precisely on Article 7 section 1, moreover, as highlighted by the Priolo petitions, that the ECJ ruled against the Italian state in 1997.Footnote 126 The mobilisations from below, coupled with EP activism on the subject, made the difference. Even though the infringement did little to directly improve the lives of those communities that had mobilised to the European level, it did send a powerful political signal to the Italian authorities.
6. Conclusion
By analysing how citizens and societal groups in the 1980s and 1990s engaged with an EC directive ‘preparing for disaster’, this article aimed at broadening the scope of scholarship on societal engagement with European law. It started with the Seveso directive, issued in 1982 to address public concerns about industrial safety and pollution, and from there traced the different kinds of societal engagement (or absence thereof) it provoked in the Netherlands and Italy. In doing so, this article showcased an approach to legal mobilisation that moves beyond the typical narrow focus on litigation. It zoomed in on infringement procedures that the Commission started against the Netherlands and Italy at a time when new disasters revealed the shortcomings of Member States in implementing the directive. Precisely in the differences between these cases lies the contribution of this article: it showcases a wide variety of actors and ways of engaging with European law, and how the Commission’s use of the infringement procedure effectively empowered them to do so.
Our analysis of the Commission’s responsiveness to pressures from below belies any notion that enforcement of the Seveso directive was a unidirectional top-down affair. Rather, the Commission, with support from the EP, presented itself as the spokesperson of concerned citizens. In the Italian case, there was a direct link between the Commission’s persistent enforcement efforts and the engagement of local action groups with the EP and especially its PETI Committee. In the Netherlands, even if there was no such grassroots pressure, the enforcement procedure built on a broader societal debate about the application of the Seveso directive that not only interested Euro-lawyers such as the Commission’s Director-General Laurens-Jan Brinkhorst, but also involved environmental organisations and workers’ representatives.
In both national cases, it is clear that this societal engagement was by no means purely a question of compliance with EC law. The question of compliance became conflated with broader societal issues which the Seveso directive uniquely addressed, such as access to information and transparency, risk management and the position of industry in society. Especially in the young field of environmental law, the Commission’s remarkable assertiveness in the 1980s was met with a groundswell of citizens concerned with the quality of their living environment. Enforcement of EC environmental law by means of the infringement procedure added an important opportunity for citizens and societal groups to their repertoire of action for addressing these broader issues.
Our analysis thus confirms that the Commission’s use of the infringement procedure broadened the access to European law and fostered societal empowerment. Yet, it equally nuances overly optimistic views on the emancipatory value of European law by showing how in both countries societal engagement with European law was dependent on mediation. In all these cases of enforcement from below, there were intermediary actors who had the expertise and the interest to bring grassroots concerns to the European level, such as members of environmental organisations, the EP or civil servants. This calls for expanding our understanding of the legal entrepreneurs who played a role in the development of the EU legal order beyond the so-called Euro-lawyers that have been central to recent scholarship.Footnote 127 Further, their intermediary role in enforcing European law also needs to be understood in a broader way than just one channelling towards litigation.
This study thus exemplifies the embeddedness of European law in society and opens up avenues for further research. It also underlines the contingency of both the Europeanisation and legalisation of societal processes. Even though the Seveso directive made industrial safety a question of European law, it was only when grassroots actors sought to hold regional and national authorities accountable for the uncertainty and risks they faced that they mobilised to the European level – the EC first and foremost, but in one case also the ECtHR. Thus, our approach showcases that societal actors experienced European law not so much as a separate category, but as part of a broader continuum of solutions to a societal problem.
Acknowledgements
We are much indebted to Anna La Placa for her help in researching this article, and to the special issue editors for their initiative and their guidance in bringing this project to fruition. We also thank all the colleagues who commented on earlier drafts of this article, in particular Francesca Colli and Esther Versluis, and the participants to the various workshops where we presented our work in progress.
Competing interests
The authors have no conflicts of interest to declare.
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