ITALY Law and Practice Contributed by: David A Röttgen, Andrea Farì, Francesco Fonderico and Ermanno Fonderico, Ambientalex Studio Legale
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 con- trasting views 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. Moreo- ver, the judgment stated that the abandonment of waste and, in general, pollution should be qualified as “external diseconomies” generated by the busi- ness activity. Therefore, the costs arising from such externalities must be borne by the mass of the entre- preneur’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 thereof, emergency safety measures (such as preventative measures) do not have such a sanction- ing nature – they instead constitute damage preven- tion 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 clari- fied that the identification of the obligations of the blameless owner cannot be based on the substan- tive 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 emer- gency 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 remedia- tion 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 The Council of State’s ruling No 1110/2024 applied the institution of unrepresentative business manage- ment in a case where the owner not responsible for the contamination had submitted the characterisation plan and risk analysis to the administration, obtain- ing a request from the authority to submit a remedia- tion 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, how- ever, the Council of State held that the spontaneously started activity should have been completed or other- wise continued until the responsible party took over. The Council of State ruled on the evidence of the spontaneous nature of the intervention. It held that the measures adopted to protect workers cannot be classified as spontaneous interventions, as they are required by law (Council of State, no. 9397/2024). 11. Contractual Agreements 11.1 Transferring or Apportioning Liability It is possible to negotiate instruments capable of transferring to the purchaser – merely on an eco- nomic level – the relative consequences arising from any liability for incidental damage or breaches of law.
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