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;
• the integration principle;
• the precautionary and preventative 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 the source of their regulation lies 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.

Ministry for Environment and Energy Safety

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, or MASE). Established in 1986 as the Ministry for the Environment (Ministero dell’Ambiente), MASE has progressively increased its functions and delegated them to other ministries. Under the previous Draghi government, it was entrusted with energy-related policies, which were previously conferred to the Ministry for Economic Development (Ministero dello sviluppo economico, MISE).

Other Ministries

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.

Institute for Environmental Research and Protection

The Institute for Environmental Research and Protection (Istituto superiore per la ricerca e la protezione dell’ambiente, or ISPRA) assists MASE by providing technical assessments 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, or ARPAs).

Regional and Local Authorities

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 sectoral planning powers, while urban planning is conferred on municipalities. The independent Authority for Energy, Networks and Environment (Autorità di Regolazione per Energia Reti e Ambiente, or ARERA) has competencies in certain waste and water sectors. Finally, extended producer responsibility (EPR) 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 (Sistema Nazionale Protezione Ambiente, or SNPA), which is the most important co-operation institution provided at the national level and includes ISPRA and ARPAs.

The 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 its council, the 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 the 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 (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).

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

The amendment inserts a third paragraph in Article 9 which 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 a reference to “health” and “the environment” is added to the second paragraph as being 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, such as 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); and
• 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 the 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 sectoral environmental legislation, often integrated into the Administrative Procedure Act or APA (Law No 241/1990). 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 the Regional Single Authorisation Provision (Provvedimento Autorizzatorio Unico Regionale, or PAUR).

Further, in order to realise projects provided for in the National Recovery and Resilience Plan (NRRP), implementing the 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.

The Certified Declaration Scheme

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 the applicant 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 to smaller plants in the energy sector (Provvedimento abilitativo semplificato, or PAS) as well as in the waste sector (known as Procedura semplificata).

Filing an Appeal

Without prejudice to the right to ask 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 is paying increased attention to environmental issues. In particular, rules are being adopted to regulate the various disciplines established at EU level into Italian law. Although the strategic discussion is now predominantly at EU level, the implementation of the NRRP has prompted deep reflection on the opportunities offered by the green economy, triggering numerous changes in laws to simplify procedures and reduce conflict, eg, territorial, for the construction of infrastructure. However, there has not been a corresponding change to the legal framework related to administrative sanctions or criminal offences affecting the environment.

Environmental permits can be transferred. However, due to changes in regulations, this transferral depends on the type of permit and its specific regulations.

Recent corporate changes in many industrial groups have had consequences for the permit process in both administrative and legal terms. Administrations have received many more requests for permit transfer. However, while the transfer is regulated in detail for some permits, such as for the IPPC, for others, such as waste treatment permits, the legal framework is established by the regions or autonomous provinces, which sometimes have slightly different positions on an issue.

The legal and practical consequences of breaching a permit/approval may be of:

• a criminal nature in more serious situations (eg, in connection with environmental disasters and pollution, waste, environmental permits, and remediation);
• an administrative nature (eg, in connection with an EIA); or
• 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, ordinary remedies may be sought before the criminal or civil, and/or the administrative judicial authorities.

Depending on the respective environmental sectors involved, key types of liability may arise 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 seriousness of the offences. Civil liability may arise under specific provisions of the Italian Civil Code (Codice Civile), under other special legislation, as well as under contractual law, depending on the type of operation (eg, M&A transactions, purchase contracts, etc). Although Italy recognises the “polluter pays” principle, in practice this principle cannot always be complied with. Therefore, liability may also arise for landowners that do not qualify as operators or polluters. In general, case law is rapidly evolving and therefore case-by-case analysis is always required.

Italian environmental legislation provides for a wide variety of disclosing obligations related to environmental issues, particularly when contamination and/or environmental damage occurs. The threat of environmental damage or a case of potential contamination is sufficient for the operator to be required to notify the local authorities and to take preventative measures. In the event that the operator omits to immediately notify the authorities about the harmful event and take the necessary preventative measures, financial penalties are established by law for the period 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 plant and compliance with the provisions included in the respective permit. Also in this case, financial penalties are provided for by 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, contamination existing prior to 29 April 2006). An “innocent” owner is not obliged to carry out remedial works. They are, however, obliged to give notification and to take preventative measures. Some recent case law has set forth further obligations. In addition, the “innocent” owner may be obliged, up to the increase in the value of the land, to reimburse the expenses incurred by the competent authority in carrying out the remediation works, if the subject responsible for the contamination cannot be identified or does not carry out the necessary remediation themselves. Although 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 remediation work has been carried out, thus obliging the applicant to carry out remedial works even if they have not caused the contamination. Therefore, the “polluter pays” principle, in practice, does not always offer enough protection.

Italian legislation allows a wide variety of sources to impose reporting obligations. Environmental permits generally require the operator to comply with specific reporting obligations, both on a regular basis as well as in case of incidents, damage, pollution, etc. In addition, reporting obligations also arise under sector-specific environmental legislation applicable to the activity exercised by the operator (eg, waste management, IPPC activities, Seveso legislation, ETS, extended producer responsibility legislation, etc). Italian brownfield legislation extends, in the case of potential contamination found, to a reporting obligation on the part of 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 contracts, lease contracts, M&A deals, etc) may establish specific environmental reporting obligations. Further reporting obligations may also arise under legislation regulating social and environmental disclosure (see 5.2 Disclosure; 7.5 ESG Requirements; 16.3 Requirements to Design, Take Back, Recover, Recycle or Dispose of Goods; 16.4 Rights and Obligations Applicable to Waste Operators;17.1 Self-Reporting Requirements; and 17.3 Corporate Disclosure Requirement).

For key types of liability in general, 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 at the time, but also on the specific case.

Without prejudice to the liability of directors, employees and shareholders, as discussed below, Italy provides for corporate liability under Legislative Decree No 231/2001 with regard to 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.

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 level as well as on a local level. At national level, for example, Italy has a carbon tax aimed at reducing CO₂ emissions. Furthermore, Italy also applies taxes on products in an attempt to discourage the production and/or consumption of goods that generate pollution during their life cycle. The 2020 Budget Act recently introduced a plastic tax (ie, tax on the consumption of single-use plastic products). The entry into force of the plastic tax has been repeatedly delayed (currently until 1 July 2026). Some taxation, such as on environmental services, aims to compensate the services for their costs. Such local taxes, often subject to the regulatory powers of the 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, although 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 provides economic incentives in order to encourage the community to go green. Below, are the most relevant economic incentives which, however, do undergo frequent changes.

The Eco Bonus, Home Bonus and Superbonus

The Budget Law 2022 financed, until 31 December 2024, tax deductions for the energy efficiency of buildings (“Eco Bonus”) and tax deductions for renovations (“Home Bonus” or Bonus Casa), in relation to expenses incurred from 1 January 2022 to 31 December 2024 (see ENEA’s Tax Bonus site and the Revenue Agency’s Guides).

The 110% “Superbonus”, aimed at ecological transition (Article 119 of Decree-Law 34/2020, the so-called “Relaunch Decree”), in its original configuration consisted of a tax deduction of 110% of expenses incurred from 1 July 2020 to 30 July 2022 for the implementation of specific interventions aimed at energy efficiency and static/seismic consolidation of buildings. In the last few years this incentive scheme has been downsized and remodelled: 110% for expenses incurred up to 31 December 2023; 70% for expenses incurred in 2024; 65% for expenses incurred in 2025; with subjective and objective limitations compared to the original version. Due to the high cost of public finances, such incentives are likely to be reduced – if not repealed – by means of the Budget Law 2025.

The Home Bonus includes renovation, redevelopment (eg, installation of systems based on the use of renewable energy sources) and asbestos abatement works. The related tax deductions are as follows: 50% for 2024; 36% from 1 January 2025 to 31 December 2027; 30% from 1 January 2028 to 31 December 2033; with a maximum expenditure limit of EUR48,000 (maximum deduction: EUR14,400). With the Budget Law 2025, the incentive of 50% will be limited to the first home (prima casa).

Energy Communities

The Renewable Energy Communities referred to in Decree No 414 of 7 December 2023 encourage the creation of “Energy Communities” with the aim of supporting the production of electricity from renewable sources by recognising a non-repayable contribution of up to 40% of eligible costs as well as a cumulative incentive tariff for the renewable electricity produced. The use of photovoltaics is encouraged by various national sources, for example, the Decree of the Ministry of Agriculture, Food Sovereignty and Forestry of 17 April 2024 related to interventions for photovoltaic systems to be installed on buildings for productive use in the agricultural, livestock and agro-industrial sectors (parco agrisole).

Non-polluting Vehicles

As to incentive schemes regarding mobility, the Eco Bonus has so far only been confirmed for 2024, but not for 2025, in relation to the purchase and installation on M1 category vehicles with an environmental class of not less than Euro 4, of LPG or methane fuelling systems equipped with appropriate type-approval codes. Furthermore, it also deals with the purchase of non-polluting vehicles although the resources set aside for electric cars have been exhausted and are awaiting refinancing, while reservations are still available for certain types of plug-in hybrid cars and hybrids. The incentives also apply to motorbikes and vans. Furthermore, incentives do also exist for the installation of electric car charging stations.

Alternatives to Plastic

Incentives are also granted for the purchase of alternative products and materials to disposable plastic. A tax credit equal to 20% of the expenses incurred in 2022, 2023 and 2024 is granted to companies in order to promote the purchase and use of alternative materials and products to disposable plastic, giving priority to products intended to come into contact with foodstuffs. Since 14 January 2024, balloons, plates and containers made of single-use, non-biodegradable and non-compostable plastic have been outlawed (Legislative Decree No 196 of 8 November 2021).

The 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; or (ii) they have interfered in individual acts or abused powers of direction and co-ordination, 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 will be liable to the 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 regulations on the disclosure of non-financial information.

In Italy, Legislative Decree No 125 of 6 September 2024, which implements the CSRD Directive, was published in the Official Journal No 212 (in force as of 25 September 2024). This introduced corporate sustainability reporting to replace non-financial reporting (provided for by former Legislative Decree 254/2016, now repealed by Legislative Decree No 125/2024 (Article 17, paragraph 3).

Legislative Decree No 125/2024 applies to corporations (joint stock companies, limited partnerships, limited liability companies) and some partnerships (general partnerships and limited partnerships). Insurance companies and credit institutions (ie, banks and financial institutions) are also included, as long as they are large enough to meet the criteria set out in the decree.

Excluded are micro-enterprises (ie, companies that do not exceed certain limits in terms of revenues, balance sheet total and number of employees) and the Bank of Italy.

The reporting obligation is intended to provide transparent and comprehensive information on corporate activities and their environmental, social, and governance (ESG) impacts, both for individual companies and groups. Consolidated reporting requires analysis at the group level, whereas individual reporting focuses on individual companies.

According to Article 17 of Legislative Decree No 125/2024, the sustainability reporting requirement (CSRD) varies according to the size and type of company, as follows:

• From 1 January 2024, the obligation applies to large companies that are public interest entities (eg, listed companies) and that exceed an average of 500 employees employed during the financial year, as well as to public interest entities that are parent companies of large groups that, on a consolidated basis, exceed the average of 500 employees.
• From 1 January 2025, the obligation extends to all other large companies, even if they are not among those exceeding 500 employees.
• From 1 January 2026, the obligation applies to small and medium-sized listed companies (except micro-enterprises) and other entities, such as small and non-complex entities and captive insurance companies.
• From 1 January 2028, reporting requirements will also apply to branches of non-European parent companies that exceed certain revenue limits in the EU.

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 their surety policies and the duration of their environmental authorisations.

As an example, Article 29-octies co. 8 of the Code, applicable to IPPC plants, extends the duration of the IPPC permit:

• from ten to 16 years for EMAS registered installations (Regulation (EC) No 1221/2009); and
• from ten to 12 years for IPPC plants certified according to UNI EN ISO 14001.

When representing the governing body of the company, directors have direct environmental liability, unless they have properly delegated environmental liability by proxy (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 for each respective business.

Insurance products 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 that are not part of 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 advisable to evaluate the content and extent of the respective insurance products (eg, remediation costs, environmental damage, legal and technical consulting, current or future legislations, etc) case by case. 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 that are likely to have an environmental impact, to provide guarantees for an amount calculated on the basis of pre-set criteria (eg, waste management companies, IPPC activities).

Environmental insurance is available in the Italian market, including those policies targeted at directors and managers who may attract personal liability for environmental misdemeanours committed in the company’s interests (see also 8.2 Insuring Against Liability). 

There is no obligation to have general environmental insurance.

The extent to which effective coverage is offered by environmental insurance 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.

However, Italian Budget Law 2024 (Law 213/2023)introduced the obligation to take out specific insurance coverage against damage caused by natural disasters and catastrophic events. Although not equivalent to general environmental insurance, such obligation is set forth for all companies with a registered office in Italy, or with a permanent establishment in Italy and registered in the Companies Register. The aim is to protect national production sites from risks arising from catastrophic events.

Lenders in Italy are not usually liable for violations of environmental laws by borrowers. Liability may arise, however, if 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, due to securities granted, lenders were to become the 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 the first instance, carry out accurate legal and technical due diligence. In the second instance, lenders should seek appropriate contractual guarantees. In the third instance, lenders should refrain from any actions which could be classified as the 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 follow 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. If properly drafted, environmental indemnities (which are increasingly being used in Italy) do represent an effective way to reduce the buyer’s financial exposure by allowing the buyer 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 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 a class action. A 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 makes it possible to bring an action with regard to the efficiency of public administrations and public service providers. 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 only be 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 – their 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 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 a crime. Such compensation for damages would aim at restoring the assets of the damaged/injured party, eliminating the consequences of the damage suffered, but would not include 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 is classified as a subjective non-contractual liability (pursuant to Article 2043 of the Civil Code). Thus, according to the principles that regulate civil liability, it is of central importance 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).

Council of State, Judgment No 4965/2024

In this ruling, the Council of State ruled that MASE has the power to order the owner and user of an area to provide information to determine whether there is an imminent threat of environmental damage, regardless of its responsibility as an operator. According to the Council of State, the power to ask operators for such information is part of a regulation that has a clear preventative function regarding environmental damage, and is aimed at setting the conditions for the effectiveness of subsequent prevention measures.

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.

Court of Cassation, Civil Section, United Sections, Judgment No 3077/2023

In recent years, a jurisprudential orientation has emerged in Italy, which has affirmed the possibility of imposing emergency clean-up measures on an owner who is not responsible for contamination. Although judges have previously held that imposing clean-up measures on an owner who is not responsible for the contamination is not justified in light of the sanctioning nature of this measure, emergency safety measures (like preventative measures) do not have such a sanctioning nature. They instead constitute damage prevention and are imposed by the precautionary principle and preventative 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.

The Supreme Court recently intervened on this issue. The ruling of the United Sections No 3077/2023 clarified that the identification of the obligations of the blameless owner cannot be based on the substantive scope of the intervention measure. Thus, the court identified the “typifying” elements of the measures and concluded that preventative interventions must also be carried out, in the presence of the regulatory prerequisites, by the blameless owner, while emergency safety interventions are the responsibility of the person responsible for the contamination alone.

Constitutional Court, Rulings No 160/2023 and No 5/2024

The Constitutional Court found that it was not in accordance with the Italian Constitution to change the division of competencies in waste and remediation matters established by the Environmental Code through a regional law.

The matter was then subsequently regulated by a state regulation, namely Article 22 of Decree Law No 10 of 10 August 2023, which governed the cases in which the regions conferred administrative functions regarding reclamation and waste to local authorities.

Council of State, Judgment No 1110/2024

Council of State Ruling No 1110/2024 applied the institution of unrepresentative business management in a case where the owner not responsible for the contamination had submitted the characterisation plan and risk analysis to the administration, obtaining a request from the authority to submit a remediation project. The company had complained that it had expressly indicated to the administration that it did not want to carry out the remediation. In that case, however, the Council of State held that the activity begun should have been completed or otherwise continued until the responsible party took over.

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, and 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 the buyer 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 in 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.

See 8.2 Insuring Against Liability.

The “core” of Italy’s brownfields legislation is set out in Part IV of the Code.   

Additional provisions on the remediation of contaminated sites are contained in regulatory frameworks and differ 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; and in Title VI-bis of the Penal Code, which introduces crimes against the environment into the Code. 

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

Italy also has a body of legislation dedicated to the protection of compensation against environmental damage.

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 their own conduct/omission. 

An owner who is “innocent” is not obliged to carry out remedial works. Nevertheless, they are obliged to give notification and to take preventative measures. They have a patrimonial liability limited to the value of the site after remediation. 

Obligations may otherwise be 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.

When assessing liability, common practice applies the principle “more likely than not” (più probabile che non). This principle allows the competent authority to require decontamination by the party which, according to the competent authority, is “more likely (than not)” to have caused the contamination.

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 clean-up actions to individual parties, the obligation of environmental reclamation constitutes a joint and several obligation.

Firstly, the discipline on compensation for environmental damage, actionable with 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 which case, 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.

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 or “CSCs”), the exceeding of which does not automatically determine the legal qualification of the site as contaminated – it only obliges the carrying out of a site-characterisation as well as a site-specific risk analysis. Only the latter makes it possible to determine the Threshold Risk Concentrations (“CSRs”). Only if the CSRs are exceeded will a site legally qualified as a contaminated site have the 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 investigations and/or remediation operations on their own initiative in order to avoid financial liability and to establish a situation of legal uncertainty regarding any future criminal or compensation liability. Furthermore, some local building regulations may require the execution of investigations where 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.

The key provisions relating to asbestos are set forth by Law No 257/1992, Ministerial Decree dated 6 September 1994, Legislative Decree No 81/2008, integrated by regional laws and plans dealing with orientation and monitoring, as well as municipal regulations. In principle, the obligations set forth by asbestos legislation depend on the qualification of the legal entities involved (owner, lessee, employer) and on the state of conservation, which is assessed by applying a so-called Degradation Index to the asbestos-containing materials.

The key provisions relating to PCBs are set forth by Legislative Decree No 209/1999, transposing Directive 96/59/EC, and Ministerial Decree 11 October 2011, integrated by regional legislation. Such legislation regulates the maximum time for decontamination and disposal of fluids and equipment containing PCBs, lays down bans, defines the labelling to be affixed to equipment containing PCBs, establishes an inventory and sanctions, and obliges the regions to draw up decontamination and disposal programmes. PCBs are, however, also addressed by sectoral legislation (eg, regeneration of waste oils, incineration, water and waste legislation, etc).

Italy has enacted a large amount of waste legislation. 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, electrical waste 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. Despite the existence of national legislation, however, Italy lacks a nationwide level playing field regarding waste.

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 trans-boundary 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 ends when the waste producer or holder receives the duly completed certificate (confirming the receipt of such waste by the authorised third parties) 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 not only entails take-back obligations, but also payment of environmental fees and reporting obligations. Although Italian EPR schemes differ considerably, common standards have been required from all of them since 2023 (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 few years, the Italian Antitrust Authority has become increasingly active in evaluating the implementation of EPR, including on online marketplaces.

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 upon definitive cessation of activities. Furthermore, waste plants subject to IPPC legislation are required to carry out a baseline report, set forth by European IPPC legislation, in order to investigate the status of the soil and groundwater. Reclamation obligations may also arise from the applicable “best available techniques” (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. Breach of the above obligations implies administrative and criminal sanctions.

Italian environmental legislation provides for a wide variety of reporting obligations (eg, contaminated land (see 13.5 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 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.

Cases of exclusion of the right of access are exhaustively listed, and the administration is required to justify its refusal. In the case of illegitimate refusal to grant 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 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 the 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 entrusted with environmental-related public utilities (waste management, water services, energy services) may also be subject to the obligation laid down by Legislative Decree No 195/2005 (see 17.2 Public Environmental Information), in so far as access to relevant environmental information is requested by the public. Further environmental information disclosing duties on corporations are set forth in Legislative Decree No 125/2024 that has transposed into Italian legislation the Directive (EU) No 2022/2464 on Corporate Sustainability Reporting (CSRD). The Decree No 125/2024 repeals the previous Legislative Decree 254/2016 (the “NFR Decree”) and introduces the sustainability reporting that replaces non-financial reporting. It must be highlighted that Legislative Decree No 125/2024 provides that sustainability reporting must now be included in a separate section of the annual report.

Legislative Decree No 125/2024 has transposed into national law the Directive (EU) No 2022/2464 on Corporate Sustainability Reporting (CSRD) which amends, by expanding its scope, the Non-Financial Reporting Directive (EU) 2014/95 (NFRD). Pursuant to Article 2(1) of Decree No 125/2024, it applies to corporations (joint stock companies, limited partnerships, limited liability companies) and some partnerships (general partnerships and limited partnerships) if public limited companies, limited partnerships or limited liability companies (in the forms listed in Annex I to Directive 2013/34/EU, or comparable to those listed in said Annex I) are shareholders. Insurance companies and credit institutions (ie, banks and financial institutions) are also included, as long as they are large enough to meet the criteria set out in the decree.

Micro-enterprises (ie, companies that do not exceed certain limits in terms of revenues, balance sheet total and number of employees) and the Bank of Italy are excluded.

Article 3 sets forth that large enterprises, as well as small and medium-sized listed enterprises, include in a special section of the management report the information necessary for understanding the impact of the enterprise on sustainability issues, as well as the information necessary for understanding how sustainability issues affect the enterprise’s performance, results and situation.

Article 3(2) lists the issues to be included in the sustainability reporting.

Article 4 provides a similar provision for parent companies of a large group.

Even though the provision includes just some of the components related to climate change, Articles 2, 3 and 4 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 monitoring and enforcing tasks, the ordinary competencies apply. Thus, the main enforcing tasks lie with the judiciary. Nonetheless, a crucial role is also played by independent authorities (eg, the National Commission for Companies and the Stock Exchange (Commissione nazionale per le società e la borsa, or CONSOB) and the Italian Antitrust Authority (Autorità garante della concorrenza e del mercato, or AGCM). 

Furthermore, the National Institute for the Supervision of Insurance (Istituto per la vigilanza sulle assicurazioni, or IVASS) issued Regulation No 38/2018 on the system of governance of insurance undertakings and groups, which sets 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 set aside enough time for the due diligence exercise. In order to provide proper safeguards, the due diligence should not be limited to documentary aspects, but should 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, the agreements signed between the parties and the type of environmental information) in order to minimise the risk of subsequent claims for damages.

In Italy, most environmental obligations are based on EU law (as transposed into Italian legislation) and consequently, environmental due diligence in Italy is widely aligned with due diligence exercises carried out in other European countries. This is also because due diligences are often carried out by consultants acting at international level and using standard forms. The extent of environmental due diligence may vary in practice, however, on the basis of the environmental and economic understanding of the parties involved. The key issues depend on whether an asset or a share deal is carried out. In the case of asset deals, the extent of the due diligence depends on the type of asset and the activity carried out therein, presently, in the past and also with a view to the future. In the case of real estate deals, compliance regards all environmentally relevant assets to be part of the real estate (eg, storage tanks, asbestos, combustion units, waste units, etc). A key issue is always compliance with Italian brownfields legislation. Another key issue, in the case of activities subject to environmental permits, is a detailed analysis of permit compliance and the carrying out of site visits. In the case of share deals, due diligence is far more complex, aimed at identifying, as a key issue, the potential existence of environmental liabilities arising from the past.