Environmental Law 2023 Comparisons

In 2022, Article 9 of the Italian Constitution was amended to include the protection of the environment, biodiversity and the ecosystem within its fundamental principles. In general, the key Italian environmental policies and principles are those provided by EU law:

• sustainable development;
• integration principle;
• precautionary and preventive action principle;
• the principle of rectification of environmental damage at source;
• the polluter-pays principle; and
• the high level of environmental protection principle.

The key principles governing environmental protection are listed in Legislative Decree No 152/2006 (the “Code”). The Code is the key law in Italian environmental legislation. It is composed of eight parts and 64 annexes. However, many areas are excluded from the Code and find the source of their regulation within separate pieces of legislation. The Code, furthermore, does not encompass many other important pieces of sector-specific legislation, such as those related to renewable energy sources.

The system of environmental competencies is complex and conferred on a number of authorities and bodies. At central government level, the body which plays a primary role is the Ministry for Environment and Energy Safety (Ministero dell’Ambiente e della Sicurezza Energetica, MASE). MASE was named Ministero della Transizione Ecologica (MITE) until September 2022 when the new government came into power. The MASE, established in 1986 as the Ministry for the Environment (Ministero dell’Ambiente), has progressively increased its functions and delegated them to other ministries. Under the previous Draghi government, the MITE was entrusted with energy-related policies, which were previously conferred to the Ministry for Economic Development (Ministero dello sviluppo economico, MISE). 

Some environment-related functions are still conferred to other central authorities, such as the Ministry for Health, the Ministry for Agricultural Policies and the Ministry for Culture. This often causes serious organisational challenges.

The Institute for Environmental Research and Protection (Istituto superiore per la ricerca e la protezione dell’ambiente, ISPRA) assists MASE with providing technical assessment within relevant administrative procedures or issuing monitoring reports on environmental matters. ISPRA also ensures the co-ordination of the Regional Environmental Agencies (Agenzie regionali di protezione ambientale, ARPAs). 

Important administrative functions are assigned to regional and local authorities, which may participate in environmental proceedings (eg, planning procedures, environmental authorisations, the setting of standards, the provision of economic measures and also the powers of ordinance, sanctions and control).

Regional authorities are also entrusted with sectorial planning powers, while urban planning is conferred on municipalities. The independent Authority for Energy, Networks and Environment (ARERA) has competencies in certain waste and water sectors. Finally, extended producer responsibility legislation entrusts private entities, such as consortiums of producers of certain goods, with the management of the waste deriving from their products.

Law No. 132 of 28 June 2016 established the National Networked System for Environmental Protection (SNPA), which is the most important co-operation institution provided at the national level and includes ISPRA and ARPAs.

SNPA performs both environmental monitoring functions as well as scientific and technical support for the activities of national, regional and local bodies with environmental administration tasks.

Through the SNPA Council, SNPA expresses its binding opinion of a technical nature on government measures and also advises the Permanent Conference for Relations between the State, the Regions and the Autonomous Provinces of Trento and Bolzano on the necessity of actions, including legislative ones, for the purposes of pursuing sustainable development objectives, reducing land consumption, safeguarding and promoting the quality of the environment and protecting natural resources. 

Among the most important co-operation mechanisms in active environmental administration is the instrument of the Service Conference (Conferenza di servizi), where the opinions of the various administrations involved in the decision-making process are acquired for the authorisation of the project to be implemented.

The general discipline is provided for by law no. 241/1990 (see articles 14 et seq.). However, the Code also provides for many environmental proceedings that expressly provide for the Service Conference (eg, remediation, environmental impact assessment, IPPC authorisations, etc).

Constitutional Law of 11 February 2022, No. 1 amended the Italian Constitution by giving full constitutional dignity to environmental protection. 

The amendment inserts in Article 9 a third paragraph that provides that the Republic shall protect: "the environment, biodiversity and ecosystems, including in the interest of future generations. The law of the State shall regulate the ways and forms of protection of animals" and in Article 41 it adds to the second paragraph a reference to "health" and "the environment" among the interests to which free economic initiative cannot "cause harm".

The Constitution is the first source in the legal system that brings substantial protection to environmental matrices. Such matrices do also find a place within the Code, which offers tools for their protection. These tools are mainly plans and programmes that regulate human activity by providing limits and controls. In addition to the Code, the matrices, by way of example air, fresh as well as sea water, soil, flora and fauna, natural habitats and landscapes, are subject to their own sectoral legislation.

Violation of regulations that offer protection to the environment and ecosystems may result in the adoption of sanctions. The administrative sanctions are mainly listed in the Code. Furthermore, the Criminal Code sanctions conduct damaging the respective environmental legal assets, including the following examples:

• environmental pollution (Article 452 bis);
• death or injury as a consequence of the crime of environmental pollution (Article 452b);
• environmental disaster (Article 452c);
• negligent crimes against the environment (Article 452 quinquies);
• trafficking and abandonment of highly radioactive material (Article 452 sexies);
• homeless remediation (Article 452l);
• organised activity for the illegal trafficking of waste (Article 452 quaterdecies).

Additional provisions are set forth in Part VI (Articles 299-318) of the Code, which transposed Directive 2004/35/EC.

Environmental regulators, both at national and local level, have a wide range of powers to prevent and sanction administrative or criminal offences affecting the environment. Relevant provisions are mainly found in Code of Criminal Procedure (inspections, searches, sequestration, etc), in the Administrative Sanctions Act (Law no. 689/1981), in the Code as well in the respective environmental permits. The authorities are permitted to carry out inspections aimed at verifying that the conditions set in the respective environmental permits have been met, including the power to collect and analyse samples.

As a general rule, environmental permits are always required, and are granted after an administrative procedure is carried out. This procedure is regulated by the relevant sectorial environmental legislation, often integrated into the Administrative Procedure Act (Law No 241/1990) (APA). This “single authorisation model” is quite common. Some authorisations, for example, IPPC authorisations, are of European origin, while others are derived nationally - for example, the Environmental Single Permit, also known as Autorizzazione Unica Ambientale (AUA), and those in respect of renewable energy plants, remediation of brownfields, and Provvedimento Autorizzatorio Unico Regionale.

Further, in order to realise projects provided for in the National Recovery and Resilience Plan (NRP), implementing Next Generation EU (NGEU), some permitting procedures have been streamlined and simplified.

The request for an environmental permit must be filed by the respective competent authority. Under Italian environmental law, there is a wide variety of competent authorities, both at national and local levels.

As a general rule, environmental permits are granted expressly after an administrative procedure is completed. However, particularly for projects not subject to an Environmental Impact Assessment (EIA), a simplified model, called a certified declaration scheme, may be applied. In terms of this scheme, an applicant will submit a professionally certified declaration of compliance with the relevant standards. Such certified declaration allows them to start the activity immediately, or after a period of 30 or 60 days. Thus, the competent authority does not grant a permit in advance, but merely conducts a retrospective conformity check on the truthfulness of the declaration. The certified declaration scheme is applied for smaller plants in the energy sector (Provvedimento abilitativo semplificato, also known as PAS) as well as in the waste sector (known as Procedura semplificata).

Without prejudice to the right of asking the competent authority to reconsider its decisions, the plant’s manager, or any subjects with legal standing, can file an appeal before the competent regional administrative court within 60 days of notification or publication of the administrative decision taken by the competent authorities. For some sectors, Italian law provides a special shorter term of 30 days within which to take action. However, against many, but not all, types of administrative decisions, it is also possible to file an appeal to the President of the Italian Republic in a longer term of 120 days.

Rulings of the regional administrative courts can be appealed before the Council of State (Consiglio di Stato).

The regulator has an approach of increasing attention to environmental issues. In particular, rules are adopted to regulate in Italian law the various disciplines established at EU level. Although the strategic discussion is now predominantly at EU level, the implementation of the National Recovery and Resilience Plan has prompted a deep reflection on the opportunities offered by the green economy, triggering numerous changes in laws to simplify procedures and reduce contrasts, eg, territorial, for the construction of infrastructure. However, there has not been a corresponding change of the legal framework related to administrative sanctions or criminal offences affecting the environment.

Environmental permits can be transferred. However, the changing regulations depend on the type of permit and its specific regulations.

In this recent period, both the administration practice as well as the jurisprudence have dealt with the consequences of corporate changes in many industrial groups. Administrations have received much more requests of permit transfer. However, while the transfer is regulated in detail for some permits, such as for the IPPC, for others, such as the waste treatment permits, the legal framework is established by the regions or autonomous provinces, which sometimes have partially different positions from each other.

The legal and practical consequences may be of a criminal nature in more serious situations (eg, in connection with environmental disasters and pollution, waste, environmental permits, remediation), of administrative nature (eg, in connection with the EIA) or of a remedial nature (eg, in connection with liability for environmental damage). The measures that should be taken to avoid this type of liability are to obtain a permit and to comply diligently with the relevant conditions. According to the type of liability, the ordinary remedies may be sought before the ordinary (criminal or civil) and/or administrative judicial authorities.

The key types of liability may arise, depending on the respective environmental sectors involved, under administrative, criminal and/or civil law. Administrative fines or criminal penalties are imposed according to a classification set forth by law, depending on the importance of the offences. Civil liability may arise under specific provisions of the Italian Civil Code (Codice Civile), other special legislation as well as under contractual law, depending on the type of operation (eg, M&A transactions, purchase contracts, etc). Though Italy recognises the "polluter pays" principle, in practice this principle is not always complied with. Therefore, liability may also arise for landowners that do not classify as operators or polluters. In general, case law is rapidly evolving, therefore always requiring a case-by-case analysis.

Italian environmental legislation provides for a wide variety of disclosing obligations related to environmental issues, particularly when contamination and/or environmental damage occurs. It is sufficient that there is a threat of environmental damage or a case of potential contamination for the operator to be required to notify the local authorities and take preventive measures. In the event that the operator omits to notify the harmful event and take the necessary preventive measures, financial penalties are established by the law for the days of delay in taking measures.

Furthermore, environmental permits often require annual reports to be submitted to the relevant public entities regarding the environmental status of the plants and compliance with the provisions included in the respective permit. Also in this case, financial penalties are provided for by the law for failure to comply with the required data disclosure.

Generally, according to the “polluter pays” principle, the responsibility for remedial operations lies with the subject responsible for the contamination. The liability principle also applies to “historic contamination” (ie, contaminations existing prior to 29 April 2006). An “innocent” owner is not obliged to carry out remedial works. They are, nevertheless, obliged to give notification and to take preventive measures. Some recent case law has set forth further obligations. Furthermore, the “innocent” owner may be obliged, up to the increase in value of the land, to reimburse the expenses incurred in carrying out the remediation works by the competent authority if the subject responsible for the contamination cannot be identified or does not carry out the necessary remedial works. Though Italy recognises the polluter pays principle, in practice this principle is not always complied with. By way of example, building permits are often only granted after carrying out of remediation works, thus obliging the applicant to carry out remedial works even if he has not caused the contamination. Therefore the polluter pays principle, in practice, does not always offer enough protection.

Italian legislation provides for a wide variety of sources which impose reporting obligations. Environmental permits generally require the operator to comply with specific reporting obligations, both on a regular basis as well in case of incidents, damage, pollution, etc. In addition, reporting obligations also arise under sector-specific environmental legislation applicable to the activity exercised by an operator (eg, waste management, IPPC activities, Seveso legislation, ETS, extended producer responsibility legislation, etc). Italian brownfield legislation extends, in case of potential contamination found; reporting obligation also to mere owners or entities operating on such land. Reporting orders may also be issued by the competent authorities within investigative actions. Also civil law agreements (eg, insurance contract, lease contracts, M&A deals, etc) may establish specific environmental reporting obligations. Further reporting obligations may arise under legislation regulating social and environmental disclosure (see 5.2 Disclosure, 7.5 ESG Requirements, 13.5 Rights and Obligations Applicable to Waste Operators, 16.3 Requirements to Design, Take Back, Recover, Recycle or Dispose of Goods, 17.1 Self-Reporting Requirements, 17.3 Corporate Disclosure Requirement).

For key types of liability in general, please see 5.1 Key Types of Liability, and for a more detailed discussion, see the following: 7. Corporate Liability, 8. Personal Liability, 10. Lender Liability, and 11. Civil Liability.

The conditions and limits of these types of liability depend not only on the specific regulatory provision applicable from time to time, but also on the specific case.

Without prejudice to liability of directors, employees and shareholders, as discussed below, Italy provides for corporate liability under Legislative Decree No 231/2001, which regards crimes committed or attempted by directors or employees of a corporate entity, in the interest or to the advantage of the entity of which they are a part. The decree includes crimes related to environmental wrongdoings, such as “environmental pollution” (Article 452 bis of the Criminal Code) and “environmental disaster” (Article 452 ter). Under certain conditions, a legal entity may be exempted from liability, for example, if it adopted and implemented an organisational model prior to the commission of the offence. In general, case law is rapidly evolving, and a case-by-case analysis is always required.

Italian environmental taxation regime is based upon the polluter pays principle as well as on taxation constitutional principles. Italian legislation provides for a wide variety of environmental taxes, both at national level as well as on local level. At national level, for example, Italy has a carbon tax aiming at reducing CO₂ emissions. Furthermore, Italy also applies taxes on products aiming at discouraging the production and/or consumption of goods that generate pollution during their entire life cycle. 2020 Budget Act has recently introduced a plastic tax (ie, tax on consumption of single-use plastic products). Plastic Tax entry into force has been repeatedly delayed. Finally, the 2022 Budget Act deferred its application to 1 January 2023. Some taxation, such as on environmental services, aims to compensate them for their costs. Such local taxes, often subject to the regulatory powers of a national independent authority for environmental public utilities (ARERA), are intended to finance the collection and disposal of waste. In particular, taxes for urban waste collection and disposal are going to be converted into tariffs for the public or private entities entrusted with the service. Furthermore, though not classified as taxes, Italian legislation on EPR also provides for a wide variety of environmental fees (see 16.3 Requirements to Design, Take Back, Recover, Recycle or Dispose of Goods).

Italy promotes economic incentives to encourage the community to make the ecological transition. 

These include the so-called "Ecobonus" for the purchase of cars and motor vehicles with reduced environmental impact (Budget Laws 2019, 2021, 2023/proposal). 

To improve the quality of domestic water and reduce the consumption of the plastic packaging of bottled water, the "Drinking Water Bonus" or "Purifier Bonus" was also financed: a 50% tax credit to purchase and install tap water filtering systems (Budget Laws 2021 and 2022).

Moreover, facilitations aimed at the ecological transition have also been provided for in the important tax operation of the so-called "Superbonus" (Article 119 of Decree-Law No. 34/2020 (Relaunch Decree)) consisting of a 110% deduction of the expenses incurred from 1 July 2020 for the implementation of specific interventions aimed at energy efficiency and static/seismic consolidation of buildings. 

Among the subsidised interventions is also the installation of photovoltaic systems and infrastructures for recharging electric vehicles in buildings.

A further incentive with great environmental benefits is contained in the "Renovation Bonus", which grants private citizens who are owners of buildings containing asbestos a 50%-65% relief on the expenses incurred to replace asbestos, including with photovoltaic panels (Budget Law 2019 and 2022).

Environmental liability of shareholders follows the general principles of Italian company law. Generally, shareholders of limited liability companies are not liable for the actions of the company itself. There are cases where their liability can be assessed (by piercing the corporate veil) if (i) they have taken on a de facto managerial role in the company; (ii) they have interfered in individual acts or abused powers of direction and coordination, in the case of a majority shareholding. According to case law, anyone managing the company in the absence of investiture is considered an administrator de facto. As to the environmental liability of a parent company, in general, the holding and the controlled company are two separate legal entities except for limited cases set forth by the law (Article 2497 Civil Code), or if the subsidiary has no autonomy with regard to decision-making. The liability regime of the parent company applies if the parent company plays a controlling and co-ordinating role pursuant to Article 2497 of the Civil Code. If the parent company has instructed its subsidiary to perform acts or transactions that have compromised the integrity of the company’s assets in violation of the ordinary principles of proper administration, it shall be liable to creditors and other shareholders for the damage to the assets. Case law is, however, rapidly evolving in this sector.

The Corporate Sustainability Reporting Standard Directive (CSRD), Directive (EU) 2022/2464, amended the previous regulation of non-financial reporting. Published in the Official Journal of the European Union on 16 December 2022, Italy has 18 months to adopt the CSRD into national legislation. 

Non-financial reporting, introduced by Directive 2013/34/EU and later amended by Directive 2014/95/EU, was transposed in Italy by Legislative Decree 254/2016, which introduced in Italy the obligation to publish the non-financial statement (DNF) for Relevant Public Interest Entities, or Italian companies that are listed on a regulated market in Italy or in the EU. Specifically, the mandatory requirement concerns banks, insurance and reinsurance companies with: (i) more than 500 employees; (ii) a balance sheet of more than EUR20,000,000; (iii) a turnover of more than EUR40,000,000. The rule also provides that other companies, other than the obliged ones, can still make a DNF on a voluntary basis. 

Failure to make a DNF exposes the (obliged) company to heavy penalties: from EUR20,000 to UR00,000. In case of false reporting: from EUR50,000 to EUR150,000.

The CSRD has extended the sustainability reporting obligation to all large companies, whether listed or unlisted, with a turnover of more than EUR150 million in the EU. From 2027, listed SMEs will also have to report on sustainability for the financial year 2026.

The Environmental Audit is essentially a voluntary instrument. As yet, the national legislator has not made this activity mandatory. However, the law supports companies that undertake environmental audits by granting them economic benefits through significant reductions in the amounts of surety policies and the duration of environmental authorisations.

As an example, Article 29-octies co. 8 of the Code, applicable to IPPC plants, recognises for EMAS registered installations (Regulation (EC) No 1221/2009) the extension of the duration of the IPPC permit from ten to 16 years, while for IPPC plants certified according to UNI EN ISO 14001 from ten to twelve years.

Directors, when representing the governing body of the company, will have direct environmental liability, unless they have properly delegated environmental liability by proxy (so-called delega ambientale). The criteria and formalities for a valid delega ambientale are set forth by case law. The contents of a delega ambientale need to be evaluated case by case considering the respective business.

Insurance products for covering damage by pollution are available on the Italian market (eg, Pool Ambiente, an association of insurers and reinsurers). However, insurance products are also offered by companies not forming part of the Pool Ambiente. The insurance products depend on the type of activity to be insured as well as on the “price” the party requesting coverage is willing to pay (and, last but not least, the respective negotiation positions). It is strongly advisable to evaluate from case to case the content and the degree of the respective insurance products (eg, remediation costs, environmental damage, legal and technical consulting, current or future legislations, etc). The request for environmental insurances is increasing. Businesses obtaining ISO14001 Certification or EMAS registration pay reduced insurance fees. 

In certain cases national and regional laws require certain enterprises, likely to cause an environmental impact, to provide guarantees for an amount calculated on the basis of pre-set criteria (eg, waste management companies, IPPC activities).

Environmental insurances are available in the Italian market, including those targeted to directors and managers who may attract personal liability for environmental wrongdoings committed in the company’s interests (see also 8.2 Insuring Against Liability). 

There is no obligation to have a general environmental insurance.

The extent to which effective coverage is offered by environmental insurances requires particular attention. Professional insurance may cover all financial aspects, including the cost of legal proceedings, with the exception of criminal sanctions that restrict personal liberty.

Lenders, generally in Italy, are not liable for violations of environmental laws by borrowers. Liability may arise when lenders have interfered in the decisions of borrowers, by actions or omissions of due conduct, such as to cause environmental violation, damage or pollution. In the event that lenders were to become, due to securities granted, owners of the respective plot of land or business, special liabilities may arise (see also 5.1 Key Types of Liability, 6.1 Liability for Historical Environmental Incidents or Damage and 11.4 Landmark Cases).

Before investing or taking action, lenders should, in first instance, carry out an accurate legal and technical due diligence. In second instance, lenders should seek for appropriate contractual guarantees. In third instance, lenders should refrain from any actions which may be classified as direct involvement of the lender in the misconduct. In general, it is recommended to carry out a case-by-case analysis also due to the fact that case law is rapidly evolving.

Italian civil law differentiates between remedies under tort law and under contractual law. Under tort law, also applying to environmental damage, the relevant provisions are set forth by Articles 2043 and following of the Italian Civil Code. Contractual remedies depend on the type of contract entered into by the parties. However, given that remedies provided by law are not always satisfactory, it is common to provide specific contractual clauses. Environmental indemnities, which are increasingly being used in Italy, do represent an effective means for reducing the buyer’s financial exposure by allowing him, if properly drafted, to claim from the seller costs and damages incurred, or even to govern the procedures relating to the clearing of environmental liabilities. Depending on the type of transaction chosen under Italian law, in general terms and except for very limited cases, the payment - between the parties to an M&A transaction - of an agreed environmental indemnity does not limit potential environment-related liabilities arising under public law vis-à-vis the competent public authorities. 

Furthermore, a civil liability system is also outlined in Part VI of the Code providing for various instruments to guarantee its effectiveness, such as the prevention and restoration measures contained in articles 304 and 305 of the Code, the ministerial order pursuant to Articles 312 and 313 of the Code, and the action for damages in a specific form before the civil or criminal court (where the MASE is a civil party) pursuant to Article 312 of the Code. On 7 October 2021, ISPRA published Guidelines no. 33/2021 concerning the methodologies and reference criteria for the assessment of environmental damage pursuant to Part VI of the Code.

Italian legislation does not foresee punitive damages as known in other jurisdictions. Under Italian tort law, the payment of damages has a compensatory nature. Damage has to be proven by the claimant without prejudice to the court’s right to liquidate the damage on an equitable basis. Recently the Supreme Court (Corte di Cassazione) stated that punitive damages are not per se incompatible with the Italian legal system (Sezioni Unite, no. 16601/2017).

Law no. 31/2019 (former legislation has not proved to be effective) regulates the instrument of class actions. Entities entitled to bring a class action are non-profit organisations or associations whose statutory objectives include the protection of the respective rights forming part of a class action. Only entities registered with a public list kept by the Ministry of Justice may bring class action. Class action may be brought against companies or bodies that manage public services or public utilities, in relation to acts and behaviour carried out in the performance of their respective activities. 

Furthermore, legislative decree no. 198/2009 allows to bring action with regard to the efficiency of public administrations and public service concessionaire. The aforesaid “public” collective actions, however, exclude the possibility of obtaining compensation for damages, without prejudice to the right to seek ordinary compensatory remedies. 

Action for compensation for environmental damage, understood as public interest, may be only brought by the State Administration (Article 311 of the Code). Other public or private subjects are only entitled to act in the event of damage of a different nature (ie, affecting their personal legal position (health, property, economic activities, etc) as a result of actions or facts which have caused damage to the environment).

Bearing in mind that under Italian law criminal action for a conduct which constitutes a crime can only be exercised by the judicial authority, it is possible - for a subject who has suffered damage or injury as a result of an offence – to bring a civil action before the Criminal Court. The same right is also granted to bodies and associations representing those damaged or injured as a result of the crime. However, compensation for damages would aim at restoring the assets of the damaged/injured party, eliminating the consequences of the damage suffered, but not including punitive damages.

Rulings on reclamation often involve profiles relating to protection against environmental damage.

Council of State, Judgment No. 1630/2022

The Council of State announced that the provisions on environmental damage within the Code prove that liability for environmental damage classifies as a subjective non-contractual liability (pursuant to Article 2043 of the Civil Code). Thus, the principles that regulate civil liability assign centrality to the need to ascertain the causal relationship between the conduct and the damage. Consequently, a person to whom the damaging event cannot be attributed, even from an objective point of view, cannot be liable in tort. It is therefore not possible for a subject to be called upon to adopt specific form remedies (reclamation and emergency safety measures) regardless of both the subjective element (wilful misconduct or negligence) and the objective element (aetiological link). Consequently, the remediation & safety measures, reclamation and restoration (which constitute forms of primary remediation of environmental damage) are borne exclusively by the person to whom the contamination can be attributed, at least from an objective point of view. It is therefore not possible to configure automatically, objectively, by the position or by the actions of others, a liability on the part of the owner of the polluted area and, therefore, the obligation to decontaminate by the mere fact of holding that position, where his culpable causal contribution to the environmental damage found cannot be demonstrated. 

Lombardy Regional Administrative Court, Milan, Judgment No. 2236/2021

The judgment regarded the identification of the party responsible for the contamination. The plaintiff company was identified as jointly responsible for the contamination together with another company. The Regional Court held that the identification of the party responsible for the contamination can also be based on circumstantial elements and the proof can also be given indirectly through the use of simple presumptions. When the Administration provides sufficient circumstantial evidence to presumptively prove that the contamination is attributable to a specific person, the burden of proof for exculpating passes on the latter. To this end, it is not sufficient to state generically the doubt of a possible liability of third parties or external events, but it is necessary to prove the real dynamics of the events and to indicate the specific factor that caused the contamination. The Regional Court therefore held that it was correct to attribute joint responsibility to the two companies, both of which carried out waste treatment activities in the area. In particular, the court stated that in the present case the joint liability arose from the high probability that both parties had contributed to the contamination of the site. With reference to the criterion for attributing liability, the court held that the administration had correctly applied the rule set forth in Article 2055 of the Civil Code, according to which if more than one person is liable for the damage, they are all jointly and severally liable to pay compensation for the damage. It also stated that the seriousness of the respective fault and the extent of the consequences resulting from each person's conduct were relevant - where identifiable - only for the purpose of determining the share of recourse between the joint debtors. An appeal, not yet decided, has been lodged against the judgment. Judgement No. 2236/2021 recalls Council of State ruling No. 172/2021, which resolved in similar terms the issue of the partial or joint nature of the reclamation obligation. The judgment specified that the precautionary principle requires that the reclamation order be carried out promptly, avoiding uncertainties or delays, as a result of which environmental damage could increase. 

Council of State, Judgment No 3424 of 2022

Such judgment addresses, among other things, the possibility of imposing emergency clean-up measures on the owner not responsible for the contamination. The judgment states that the impossibility of imposing the clean-up measures on said owner is justified in light of the sanctioning nature of this measure. Differently, as to emergency safety measures (like preventive measures), these do not have a sanctioning nature. They rather constitute damage prevention and are imposed by the precautionary principle and preventive action. Therefore, such measures are incumbent on the owner or holder of the site from which the environmental damage may arise, without the need to establish fault or negligence.

Plenary Meeting of the Council of State, Judgment No 3/2021

The Council of State clarified the question of the receiver's passive entitlement to the obligations set forth in Article 192 of the Code, thus settling the contrasts on the subject. The judgment declared the principle of law according to which the bankruptcy receiver bears the burden of restoring and disposing of the waste pursuant to Article 192 of the Code. The related costs fall on the bankruptcy estate. Moreover, the judgment stated that the abandonment of waste and, in general, pollution should be qualified as "external diseconomies" generated by the business activity. Therefore, the costs arising from such externalities must be borne by the mass of the entrepreneur's creditors, who benefit from the effects of the receivership in terms of the distribution of any bankruptcy profits. The opposite solution, in the view of the Plenary Assembly, would end up placing the costs of the clean-up on the community, in violation of the "polluter pays" principle and in antithesis with the continuity, in economic terms, between the assets of the entrepreneur and the bankruptcy estate.

Council of State, Judgment No. 3575 of 2021

The judges clarified the division of competences between the MITE (nowadays, the MASE) and the peripheral administrations (provinces) with reference to the identification of the party responsible for the contamination and the imposition of remediation actions. The provincial authorities are responsible for the activities preceding and preparatory to the reclamation activity in the strict sense (identification of the party responsible for the contamination; warning the identified party responsible to take action, including any prevention and emergency safety measures). Once the reclamation procedure has been started, the MASE is exclusively responsible for carrying out this procedure.

It is possible to negotiate instruments capable of transferring to the purchaser - merely on an economic level - the relative consequences arising from any liability for incidental damage or breaches of law. However, such contractual clauses have fully binding effects only between the parties, but are not binding on the authorities or third parties. Hence, said contractual agreements will not influence any obligations under public law. Therefore, environmental indemnities agreed for example within M&A transactions cannot limit, vis-à-vis the competent public authorities, the environmental liabilities of the target company. However, environmental indemnities, if properly drafted, may represent an effective means for reducing the buyer’s financial exposure by allowing him to claim from the seller costs and damages incurred, or even to govern the procedures relating to the clearing of environmental liabilities. Generally, except for very limited cases, the payment of an environmental indemnity, agreed between the parties of an M&A transaction, does not limit environmental liabilities under public law.

Insurance products for covering damage by pollution are available on the Italian market (eg, Pool Ambiente, an association of insurers and reinsurers). However, insurance products are also offered by companies not forming part of the Pool Ambiente. The insurance products depend on the type of activity to be insured as well as on the “price” the party requesting coverage is willing to pay (and, last but not least, the respective negotiation positions). It is strongly advisable to evaluate from case to case the content and the degree of the respective insurance products (eg, remediation costs, environmental damage, legal and technical consulting, current or future legislations, etc). The request for environmental insurances is increasing. Businesses obtaining ISO14001 Certification or EMAS registration pay reduced insurance fees. 

In certain cases national and regional laws require certain enterprises, likely to cause an environmental impact, to provide guarantees for an amount calculated on the basis of pre-set criteria (eg, waste management companies, IPPC activities).

The regulations on the remediation of contaminated sites are mainly provided by the Code. 

Additional provisions on the remediation of contaminated sites are contained in regulatory frameworks, different from the Code. By way of example: in Ministerial Decree No. 46 of 1 March 2019, on the remediation of areas used for agricultural production and livestock farming; in Ministerial Decree No. 31 of 12 February 2015, on simplified criteria for the characterisation, securing and remediation of fuel sales outlets; in Ministerial Decree of 22 October 2009, on the remediation of sites and infrastructure directly intended for military defence and national security; in Title VI-bis of the Penal Code, which introduces crimes against the environment into the Code. 

The Italian legal system on remediation is inspired by the “polluter pays” principle, according to which the responsibility for the remedial operations lies with the subject responsible for the contamination.

According to the Italian regulations (inspired by the "polluter pays" principle) the “polluter”, ie, the subject to whom the pollution is attributable (at least from an objective point of view), has to carry out the remediation/rehabilitation actions if and to the extent that they are attributable to his own conduct/omission. 

An owner who is “innocent” is not obliged to carry out remedial works. He has a patrimonial liability limited to the value of the site after remediation. 

Obligations may be otherwise regulated by the parties through the instrument of contract (eg, in the case of land sales). However, contractual agreements are not always suitable for public effect as well.

Italian legislation does not expressly regulate the liability regime applicable in cases of contamination determined by multiple causal contributions.

In the case of multiple causal contributions to contamination, in application of the "polluter pays" principle, remedial burdens are placed on operators in an amount corresponding to their contribution to the event.   

The need to allocate environmental costs on the basis of the actual consistency of the causal link and the consequent exclusion of a "generic" attribution of responsibility has also been confirmed by Italian case law. 

However, national jurisprudence has also held that when the actions of multiple parties have generated unitary environmental pollution and it is not possible to assign specific cleanup actions to individual parties, the obligation of environmental reclamation constitutes a joint and several obligation.

First, the discipline on compensation for environmental damage, actionable with the Mase, can be invoked. 

Other entities (eg, territorial public bodies, environmental agencies, etc) may also take action under civil law to obtain compensation for the damage suffered by property belonging to the community, provided that it does not fall under the notion of environmental damage understood as "public interest"; in the latter case, the compensatory protection can only be enforced by the State.

Under certain conditions established by law, it is possible to invoke the non-contractual liability of the previous owner or operator who caused the contamination. 

In the event of an asset deal, the purchaser may bring an action under the provisions of civil law.

Waste operators are fully subject to brownfields (Part IV of the Code) and environmental damage legislation (Part VI of the Code). Waste management plants such as incineration and co-incineration plants (Article 237-ter, lit. b) - c) Code) or IPPC plants are expressly subject to brownfields legislation once the plant, or parts of it, are dismissed. Furthermore, waste plants subject to IPPC legislation are required to carry out a base-line report, set forth by European IPPC legislation, in order to investigate the status of the soil and groundwater. Reclamation obligations may also arise from applicable BAT-Conclusions. Furthermore, environmental permits do generally require the operator of a waste management plant to investigate the soil and groundwater upon incidents and damage occurring. Breaching of the above obligations implies administrative and criminal sanctions.

Upon the occurrence of an event (including an accident) that has the potential to contaminate a site, the polluter is obliged to perform a preliminary investigation in the area.

The results of such environmental investigations, which will influence subsequent actions, must be reported to the authorities.

The Code sets attention values (Contamination Threshold Concentrations - “CSC”), the exceeding of which does not determine the automatic legal qualification of the site as contaminated: it only obliges to carry out a site-characterisation as well as a site-specific risk analysis. Only the latter makes it possible to determine the Threshold Risk Concentrations (“CSR”). Only if the CSR are exceeded, a site illegally qualified as contaminated site, with consequent obligation of remediation.

Under national law persons who are not responsible for the contamination are not obliged to carry out investigations. However, they are entitled to carry out investigation and/or remediation operations on their own initiative in order to avoid financial liability and, in any case, the establishment of a situation of legal uncertainty regarding any future criminal or compensation liability. Furthermore, some local building regulations may require the execution of investigations obligation in case a building permit is sought. 

Italy, being part of the EU, implements the main topics regulated by EU Directives.

Concrete measures to combat climate change include the implementation of EU regulations on ETS and the “Effort Sharing” Directive applying to non-ETS sectors (eg, transport, agriculture, etc). 

The National Integrated Energy and Climate Plan (“PNIEC”) sets out the guidelines to be followed and the objectives to be achieved in the field of energy and environmental protection, for the period 2021-2030. 

Further to incentive schemes for energy efficiency, a multitude of mechanisms provide incentives for the installation of plants for the production of renewable energy. These incentive mechanisms depend, among other things, on the type of renewable energy source, the size of the plant, the date of construction, etc. Details of such incentive schemes are often set forth by ministerial decrees as well as by guidelines issued by the GSE, the publicly owned company promoting and supporting renewable energy sources. 

Last but not least, Italian legislation also considers the reduction of CO2 levels when operating motor cars, buses or trucks for the transportation of people and goods. 

The ETS, set out in Directive (EU) 2018/410 (transposed by Legislative Decree No 47/2020), introduces important changes relative to the previous Directive 2003/87/EC and accelerates the withdrawal of emission allowances available on the market. Under the cap-and-trade mechanism, emission limits are allocated to each installation or aircraft (CO₂ allowances in tonnes). If actual emissions exceed the allocated allowances, the operator must buy allowances to surrender to cover its emissions.

Italy has a body of legislation dedicated to the protection of compensation against environmental damage. In addition to these rules, there are specific regulations in the Italian legal system on the reclamation of contaminated sites. Land reclamation is embodied in measures that constitute primary forms of compensation for environmental damage. The “core” of Italy’s brownfields legislation is set out in Part IV of the Code. In addition, depending on the type of site, as well as on the remediation target, the Code and some Ministerial Decrees (eg, DM 31/2015, DM 46/2019) provide for a rather wide variety of procedures. Additional legislation exists at national and local levels. Under some local legislation, a subject planning to develop a site might be required to investigate potential soil and groundwater contamination prior to developing that site. In a case of industrial installation subject to IPPC legislation, Italian legislation requires a baseline report to be carried out in order to investigate the status of the soil and groundwater. The rules on reclamation are in line with both national and European legislation on environmental damage. There have been a number of interventions by the European Court of Justice on this issue.

Italy has enacted a large amount of waste legislation which makes it difficult to orientate oneself. The Code entails the central regulations (Articles 179-238 (Part IV)). Most of the details are, however, set forth in specific ministerial decrees that vary depending on the type of waste (eg, packaging, waste electrical and electronic equipment recycling, batteries and accumulators, edible waste oils, mineral waste oils, ships, vehicles, and end-of-life tyres). Further, the set of obligations also depends on the type of single treatment operations (recovery or recycling, landfilling, etc). As for end-of-waste and by-products, Italy has enacted very detailed legislation. Notwithstanding the existence of national legislation, Italy lacks a nationwide level playing field.

Circumstances under which producers or consignors of waste may retain liability for waste even after it has been disposed of by a third party need to be carefully assessed. 

Article 188 of the Code governs this liability, as well as transboundary shipments, without always providing precise boundaries, especially in light of the respective case law.

Article 188 has been interpreted extensively by criminal court decisions, sometimes far beyond the literal wording of the article.

In general, waste producers or holders are obliged to hand over such waste to duly authorised third parties, including municipal waste management operators. In some cases, however, these waste producers or holders may be entitled to directly manage such waste. If waste is handed over to duly authorised third parties other than the municipal waste management operators, liability only ceases if the waste producer or holder receives the return of the duly completed certificate (confirming the receipt of such waste) within three months after such consignment. 

“Extended producer responsibility” (EPR) is widely known and regulated under Italian national legislation, and includes the likes of packaging, electrical and electronic equipment, batteries, end-of-life vehicles, mineral waste oils, edible waste oils, tyres and PVC. In the near future, further products are likely to fall under EPR regulations. EPR legislation does not only entail take-back obligations, but also payment of environmental fees and reporting obligations. Italian EPR schemes may very much differ from one another, however by 2023, common standards shall be applied by all of them (according to Directive (EU) 851/2018). Non-compliance with obligations set out under the respective regulation governing the related EPR scheme may be sanctioned, depending on the EPR regulation specifically applicable to the respective consumer good. Over the past years, the Italian Antitrust Authority has become increasingly active in evaluating the implementation of EPR, including online marketplaces.

Italian environmental legislation provides for a wide variety of reporting obligations (eg, contaminated land (see 13.6 Investigating Environmental Accidents), industrial plant management (see 6.2 Reporting Requirements), waste management, EPR (see 16.3 Requirements to Design, Take Back, Recover, Recycle or Dispose of Goods), etc). Furthermore, reporting obligations may also arise under the respective environmental authorisation regimes. Recent legislation regulating social and environmental disclosure also imposes disclosure obligations on the subjects indicated therein (see also below 17.3 Corporate Disclosure Requirement).

According to Legislative Decree No 195/2005, transposing Directive 2003/4/EC, public entities (referred to in a broad sense) are required to make environmental information available to the public. Further obligations arise under Article 40 of Legislative Decree No 33/2013.

The right of access is very broad.

From a subjective point of view, anyone who requests documents entailing environmental information, has a right to be granted access, without the subject having to demonstrate an interest in them.

From an objective point of view, the notion of environmental information is broad, as such information may be contained in any material.

Anyone who wants to obtain access can file a request to the public administration, which must make the documentation available within 30 days from the date of receipt of the request or within 60 days in the case of a complex or particularly wide request.

The cases of exclusion of the right of access are exhaustively listed, and the administration is required to justify its refusal. In case of illegitimate refusal to request access, it is possible to request access to administrative remedies through the ombudsman and the administrative judge. 

Specific sector-related legislation exists requiring certain information to be made public (eg, EIAs, Environmental Strategic Assessments (ESAs) and Integrated Pollution Prevention and Control (IPPC) – see the MASE website, register of contaminated sites, national electronic register for the traceability of waste, managed directly by the MASE, or the national register of producers, within the framework of EPR).

As a general rule, companies are not required to disclose environmental information in their annual reports under Italian Civil Code. However, environmental permits often require annual reports to be submitted to the relevant public entities regarding the environmental status of the plants and compliance with the provisions included in the permit. Corporations also entrusted with environmental-related public utilities (waste management, water services, energy services) may be subject to the obligation laid down by Legislative Decree No 195/2005 (see 17.2 Public Environmental Information), insofar as access to relevant environmental information is requested by the public. Further environmental information disclosing duties on corporations is set forth in Legislative Decree No 254/2016 (NFR Decree). NFR Decree has transposed into Italian legislation the Accounting Directive (EU) 2013/34, as amended by the Non-Financial Reporting Directive (EU) 2014/95 (NFRD).

Legislative Decree No 254/2016 (the “NFR Decree”) has transposed into Italian legislation the Accounting Directive (EU) 2013/34, as amended by the Non-financial Reporting Directive (EU) 2014/95 (NFRD). Articles 2, 3 and 4 of the NFR Decree enact Articles 19a and 29a of the Accounting Directive, both introduced by Article 1(1) and (3) of the NFRD. Pursuant to Article 2 NFR Decree, public interest entities that average over 500 employees during the financial year and a balance sheet total of EUR20 million and/or a net turnover of EUR40 million shall include a non-financial statement in the management report. 

In order to determine whether ESG reporting falls within such a regulatory requirement and whether it includes a climate change component, a number of normative acts need to be considered.

NFR Decree Article 3(1) provides that the statement should cover environmental, social and governance (ESG) issues describing, at least:

• the undertaking’s business and organisational model; 
• the policies pursued by the undertaking in relation to those matters, including due diligence processes implemented; and
• the principal risks related to those matters linked to the undertaking's operations including, where relevant and proportionate, its business relationships, products or services which are likely to cause adverse impacts in those areas, and how the undertaking manages those risks.

Article 3(2) specifies the information related to ESG matters. As to the environmental ones, the non-financial statement shall include information on: 

• the renewable and non-renewable energy resources used, as well as the use of water resources; 
• GHG and polluting emissions; and
• the impacts on environment and human health.

Article 4 NFR Decree provides a similar provision for public interest entities’ parent companies as referred to in Article 1(1)(b) NFR Decree.

Even though the provision includes just some of the components related to climate change, Articles 2, 3 and 4 NFR Decree, enacting Articles 19a and 29a Accounting Directive, should be read in the light of Regulation (EU) 2020/852 (the “Taxonomy Regulation”) and the related delegated acts progressively issued by the European Commission.

As to the monitoring and enforcing tasks, the ordinary competences apply. Thus, the main enforcing tasks lie with the judiciary. Nonetheless, a crucial role is also played by independent authorities (eg, Italian Antitrust Authority (AGCM)). 

Furthermore, the National Institute for the Supervision of Insurance (IVASS) issued Regulation No 38/2018 on the system of governance of insurance undertakings and groups which set forth important obligations.

The exercise of environmental due diligences has become commonplace in Italy, starting at least from the late 1990s. Currently, due diligences are widely accepted and conducted in Italy in relation to environmental matters. The extent of the due diligence, to be carried out by technicians as well as by lawyers, depends not only on the nature of the asset being sold, but also on the type of transaction. In environmental matters, it is highly recommended to plan enough time for the due diligence exercise. In order to provide proper safeguards, the due diligence should not be limited to documentary aspects, but also involve on-site visits and access to publicly existing information (data access).

In general, disclosing all environmental information to a purchaser is not required by specific statutory provisions (under public law). However, failure to notify situations that do not meet environmental standards may give rise, depending on the nature of the asset being sold, to pre-contractual and contractual liability under the general principle of good faith (under civil law). Disclosure obligations towards a purchaser should be evaluated, on a case-by-case basis, depending on the concrete circumstances (eg, agreements signed between the parties, and type of environmental information) in order to minimise the risk of subsequent claims for damages.

The Italian environmental taxation regime is based upon the polluter pays principle as well as on taxation constitutional principles. Italian legislation provides for a wide variety of environmental taxes, both at national and local levels. At a national level, for example, Italy has a carbon tax, which aims to reduce CO₂ emissions. It also applies taxes on products aimed at discouraging the production and/or consumption of goods that generate pollution during their entire life cycle. The 2020 Budget Act has recently introduced a plastic tax (ie, a tax on consumption of single-use plastic products), but its enforcement has been repeatedly delayed. The 2022 Budget Act has deferred its application to 1 January 2023. Also the 2023 Budget Act has deferred its application to 1 January 2024, likely to be further deferred. Some taxation, such as on environmental services, aims to compensate them for their costs. Such local taxes, often subject to the regulatory powers of a national independent authority for environmental public utilities (ARERA) are intended to finance the collection and disposal of waste. In particular, taxes for urban waste collection and disposal are going to be converted into tariffs for the public or private entities entrusted with the service. Furthermore, though not classified as taxes, Italian legislation on EPR also provides for a wide variety of environmental fees (see 16.3 Requirements to Design, Take Back, Recover, Recycle or Dispose of Goods).

In the Italian legal system, environmental disputes are usually settled in the courts. Jurisdiction is therefore vested in the various orders of judges (administrative, civil and criminal) depending on the case and the legal situation being asserted.

Institutions of alternative civil dispute resolution (eg, mediation, introduced by Legislative Decree No. 28/2010) have so far found limited application in environmental matters, as they are limited to matters relating to disposable rights. Environmental matters are, on the other hand, mainly governed by "mandatory" rules, which concern non-available powers, rights and obligations.

In the criminal field, there are alternative forms of extinguishment applicable only to contraventions (Law No. 68/2015). A recent reform introduced the institution of "restorative justice," which is also applicable to environmental crimes (Legislative Decree No. 150/2022, the so-called Cartabia Law).

Italian environmental regulation is certainly continuously evolving. In November 2023, the environmental minister appointed a commission of experts in order to prepare a proposal for reforming the Code and some other decrees. One of the goals of the reform is to bring Italian environmental legislation in line with the new provisions of the Italian Constitution, which in 2022 introduced environmental protection as one of the fundamental principles of the Republic. Further goals are simplifying and rationalising Italian environmental regulation. However, it would be important for the reform to simplify the competences and the entities involved in environmental proceedings, as the complexity of decision-making mainly depends on the number of public bodies requested to express their opinion. Similarly, it would be appropriate for the reform to standardise many permitting processes in order to avoid that legislation is applied differently in the various regions and autonomous provinces.