ITALY Law and Practice Contributed by: David A Röttgen, Andrea Farì, Francesco Fonderico and Ermanno Fonderico, Ambientalex Studio Legale
6. Corporate Liability 6.1 Liability for Environmental Damage or Breaches of Environmental Law Without prejudice to the liability of directors, employ- ees and shareholders, 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” (Arti- cle 452 bis of the Criminal Code) and “environmental disaster” (Article 452 ter). Under certain conditions, a legal entity may be exempted from liability – for exam- ple, if it adopted and implemented an organisational model prior to the commission of the offence. In gen- eral, case law is rapidly evolving, and a case-by-case analysis is required. 6.2 Environmental Taxes The Italian environmental taxation regime is based on 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 and on a local level. At national level, for example, Italy has a carbon tax aimed at reducing CO₂ emissions. Furthermore, Italy also applies taxes to products in an attempt to discourage the production and/or con- sumption of goods that generate pollution during their life cycle. The 2020 Budget Act 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 (see 2.1 Regulatory Authori- ties ), are intended to finance the collection and dis- posal 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
eral, case law is rapidly evolving and therefore case- by-case analysis is always required. 5.2 Liability for Historical Environmental Incidents or Damage Generally, according to the “polluter pays” principle, the responsibility for remedial operations lies with the subject responsible for the contamination. The liabil- ity 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. 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. As stated previously, although Italy recognises the “polluter pays” principle, in practice this principle is not always complied with. By way of example, build- ing permits are often only granted after remediation work has been carried out, thus obliging the appli- cant to carry out remedial works even if they have not caused the contamination. Therefore, in practice the “polluter pays” principle does not always offer enough protection. 5.3 Key Defences The key defences, limits and conditions to liability for environmental damage very much depend on the respective legal basis under which liability for environ- mental damage is claimed. As environmental liability may arise under administrative, criminal and/or civil law (including contractual law), it is not recommend- ed to rely in all of these contexts on the same types of key defences, limits and conditions to liability for environmental damage. The developing status of the latter makes it recommendable to ascertain and evalu- ate, on a case-by-case basis, whether or not the legal conditions for the respective type of legal provision are met.
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