Member States need to provide a DNSH assessment for each and every measure (i.e., each reform and each investment) of their RRPs (Article 18, of Regulation (EU) 2021/241). According to Article 19 of Regulation (EU) 2021/241, the Commission has to assess the relevance, effectiveness, efficiency and coherence of the recovery and resilience plan and, for that purpose, has to take into account the criteria specified in paragraph 3 of the same provision which it has to apply in accordance with Annex V of the Regulation at stake. The measures (reforms and investments) that Member States include in their RRPs are subject to specific conditions (legislative and regulatory constraints) that significantly affect the discretion of public administrations in two essential stages: on one hand, in terms of choice of the investment and/or reform to be included in the relevant RRP; in the other hand, in terms of design and implementation of those measures.51 V. THE ITALIAN CASE-LAW ON THE DNSH The process of full “legalization” (and application) of the DNSH is under way,52 as shown, inter alia, by the recent Italian case-law. The DNSH has been the focus of attention in a number of cases before Italian administrative courts. From those rulings some relevant points arise. Firstly, very often the DNSH is reviewed and examined by courts together with the precautionary principle53, deemed as “a brother principle” of the DNSH one.54 This statement seems to be confirmed by Regulation (EU) 2019/2088 which uses the expression “the precautionary principle of ‘do no significant harm’” (recital 17).55 51 I. Costanzo, cit., par. 2.2. 52 See S. Candela, in M. Monteduro et al., Testo e contesto del progetto di «Global Pact for the Environment» proposto dal Club des Juristes, in Rivista Quadrimestrale di Diritto dell’Ambiente, No. 1/2018, par. 4.2, p. 98. 53 See Council of State, Division IV, judgment 5 August 2024, No. 6966, points 5.4, 5.5 and 5.6. See also Regional Administrative Court of Lazio, Rome, Division III, judgment 8 November 2023, No. 17216. On the difference between these two principles see also Regional Administrative Court of Lazio, Rome, Division III, 4 December 2023, No. 18141, esp. par. 16.2.4. On the EU case-law on the precautionary principle see, among the others, Court of First Instance (Third Chamber), Judgment of 11 September 2002, Case T-13/99, Pfizer Animal Health SA v Council of the European Union; Court of First Instance (Second Chamber, extended composition), Judgment of 26 November 2002, Joined cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00 and T-141/00, Artegodan GmbH and Others v Commission of the European Communities. As for the Italian case-law, see Council of State, Division III, No. 6655/2019. 54 R. Famà, cit., p. 73. 55 See again R. Famà, cit., p. 73. 120 FRANCESCO GASPARI
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