ITALY Law and Practice Contributed by: David A Röttgen, Andrea Farì, Francesco Fonderico and Ermanno Fonderico, Ambientalex Studio Legale
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. 10.2 Exemplary or Punitive Damages 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 sys- tem ( Sezioni Unite , No 16601/2017). 10.3 Class or Group Actions 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 objec- tives 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 ser- vices or public utilities, in relation to acts and behav- iour 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 effi- ciency of public administrations and public service providers. The aforesaid “public” collective actions, however, exclude the possibility of obtaining compen- sation 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, affect- ing their personal legal position – their health, prop- erty, economic activities, etc – as a result of actions or facts that have caused damage to the environment).
Bearing in mind that, under Italian law, criminal action for conduct that constitutes a crime can only be exer- cised by the judicial authority, it is possible for a sub- ject 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 dam- ages would aim to restore the assets of the dam- aged/injured party, eliminating the consequences of the damage suffered, but would not include punitive damages. 10.4 Landmark Cases 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 prin- ciples that regulate civil liability, it is of central impor- tance 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 (reclama- tion and emergency safety measures) regardless of both the subjective element (wilful misconduct or neg- ligence) 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 pre- ventative function regarding environmental damage, and is aimed at setting the conditions for the effective- ness of subsequent prevention measures.
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