ITALY Law and Practice Contributed by: David A Röttgen, Andrea Farì, Francesco Fonderico and Ermanno Fonderico, Ambientalex Studio Legale
However, such contractual clauses have fully binding effects only between the parties and are not binding on the authorities or third parties. Hence, said con- tractual agreements will not influence any obligations under public law. Therefore, environmental indemni- ties agreed on – for example, within M&A transac- tions – cannot limit, vis-à-vis the competent public authorities, the environmental liabilities of the target company. However, environmental indemnities, if properly draft- ed, 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. Except for in very limited cases, generally the payment of an environmental indemnity, agreed between the parties of an M&A transaction, does not limit environmental liabilities under public law. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The “core” of Italy’s brownfields legislation is set out in Part IV of the Code. Additional provisions on the remediation of contami- nated sites are contained in regulatory frameworks, and differ from the Code – for example: • Ministerial Decree No 46 of 1 March 2019, on the remediation of areas used for agricultural produc- tion and livestock farming; • Ministerial Decree No 31 of 12 February 2015, on simplified criteria for the characterisation, securing and remediation of fuel sales outlets; • Ministerial Decree of 22 October 2009, on the remediation of sites and infrastructure directly intended for military defence and national security; and • Title VI-bis of the Penal Code, which introduces crimes against the environment into the Code. Additional legislation exists at the national level (eg. Ministerial Decree No 45 of 23 January 2023, on con-
taminated sites of national interest – so-called SINs) and local level. Under some local legislation, a sub- ject planning to develop a site might be required to investigate potential soil and groundwater contami- nation prior to developing that site. In the case of an industrial installation subject to IPPC legislation, Ital- ian 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. 12.2 Clearing Contaminated Land According to Italian regulations (inspired by the “pol- luter 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 remedia- tion/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, unless they have undertaken actions classifiable as an assumption of an obligation to do so. Nevertheless, they are obliged to give notification and to take preventative measures. They have a pat- rimonial 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 When assessing liability, common practice applies the principle of “more likely than not” ( più probabile che non ). This principle allows the competent authority to require decontamination by the party which, accord- ing to the competent authority, is “more likely than not” to have caused the contamination. always suitable for public effect. 12.3 Determining Liability
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