BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Article 8 of the Convention finding that Hungary had failed to discharge its positive obligation to guarantee the applicant’s rights. 45 It emphasised that the existence of a sanction system is not enough, if it is not applied in a timely and effective manner. In particular, Hungarian courts had failed to determine any enforceable measures in order to assure that the applicant would not suffer any disproportionate individual burden for more than fifteen years. Victims of environmental pollution are primarily natural persons, and the provisions of Article 8 in this respect can hardly relate to legal persons. In the case of Greenpeace e.V. and Others v. Germany , the application was lodged by the association Greenpeace e.V. and four other applicants. 46 The applicant association had its business premises close to busy roads and intersections in Hamburg and complained about the German authorities’ refusal to take specific measures relating to emissions from diesel vehicles. The Court observed that it was not persuaded that the applicant Greenpeace e.V., in the specific circumstances of the case, can claim to be a victim of a violation of Article 8 of the Convention. Given that the applicants referred to a violation regarding protection of health, an association is in principle not in a position to rely on health considerations to allege a violation of Article 8. In the end, the Court declared the application inadmissible as being manifestly ill-founded. In particular, it stressed that the choice of means as to how to deal with environmental issues fell within the state’s margin of appreciation. The applicants had failed to show that in refusing to take the specific measures they had requested, Germany had exceeded its discretionary power by failing to strike a fair balance between the interests of the individuals and that of the community as a whole. In the case of Di Sarno and Others v. Italy, a waste treatment and disposal service was entrusted to private companies. 47 The Court reiterated that the fact that the Italian authorities had handed over the management of a public service to third parties does not relieve them of the duty of care incumbent on them under Article 8 of the Convention. It found a breach of this provision, noting that the state had been under a duty to adopt reasonable and appropriate measures capable of safeguarding the right of those concerned to a healthy and protected environment. Another case ( Locascia and Others v. Italy ) against Italy regarding a complaint about the danger to health caused by operation of a private waste disposal plant is currently under an examination of the Court and has not been decided yet. 48 The decision to construct a cemetery near the applicant’s house, which led to the contamination of his water supply, resulted in the finding of a violation of Article 8 of the Convention in the case of Dzemyuk v. Ukraine . 49 Although the land where the cemetery was built belonged to a state-owned company called Vorokhtya Lisokombinat, it is clear that such property may also be owned by business entities. In this case the Court observed that it was not disputed that the cemetery had been constructed and used in breach of the domestic regulations. The conclusions of the Ukrainian environmental 45 ECtHR, Bor v. Hungary , Appl. No. 50474/08, Judgment, 18 June 2013, § 28. 46 ECtHR, Greenpeace e.V. and Others v. Germany , Appl. No. 18215/06, Decision, 12 May 2009. 47 ECtHR, Di Sarno and Others v. Italy , Appl. No. 30765/08, Judgment, 10 January 2012, § 110. 48 ECtHR, Locascia and Others v. Italy , Appl. No. 35648/10. 49 ECtHR, Dzemyuk v. Ukraine , Appl. No. 42488/02, Judgment, 4 September 2014, § 92.

44