ITALY Law and Practice Contributed by: Francesco Fonderico, Elettra Monaci, Eugenio Fidelbo and Marco Pellizzola, Ambientalex Studio Legale
Civil Liability As regards directors’ liability for the impact on climate change of their companies, the ordinary provisions of the Italian Civil Code shall apply. Pursuant to Civil Code Articles 2392 and 2476, companies’ directors may be held liable for negligence in complying with their (occupational) duties. Therefore, directors may only be convicted for the negative impact their com - panies have on climate change where such impact results from negligence. Pursuant to ECA Article 311 (2), operators may be held liable for environmental damage. ECA Article 302 (4) provides for a broad definition of “operator”. It encom - passes “any natural or legal, private or public person who operates or controls the occupational activity having environmental significance or to whom deci - sive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity”. Directors, often jointly with the company, may thus be held liable pursuant to the ECA (Articles 298-bis and ff), where the above-mentioned requirements provid - ed for by Civil Code Articles 2392 and 2476 are met. Criminal Liability Criminal environmental liability is strictly personal. Traditionally, legal entities shall not be held liable for criminal offences ( societas delinquere non potest ); only directors, or the other natural person who took the relevant decision(s), shall be held liable for criminal offences committed by the company. However, under Legislative Decree No 231/2001, even legal entities, where they are not able to demonstrate that specific organisational measures have been adopted, may be held liable for a number of criminal offences (includ - ing environmental offences) committed in their interest or to their advantage by their directors or by another natural person exercising, even de facto, management and control over them. Infrastructure investments and/or financing arrange - ments capable of producing negative climate change impacts may become relevant under corporate social responsibility (CSR) law. Legislative Decree No 231/2001 embodies a CSR instrument, as it push - es companies to adopt organisational measures to
prevent the commission of certain criminal offences, including environmental offences (even though these are not criminal offences specifically related to climate change). 4.3 Shareholder or Parent Company Liability For environmental civil liability (ECA Articles 298-bis and ff), shareholders and parent companies may be held liable where: • they fall within the definition of “operator” provided for by ECA Article 311 (2) and (b); and • their conduct causes environmental damage pur - suant to ECA Article 300. Under the Civil Code, shareholders may only be held liable for damages caused by the company pursuant to ECA Articles 298-bis and ff where they are unlimit - edly liable for the acts of the company (ie, where that company is a partnership). For criminal environmen - tal offences, shareholders may be held liable where their personal conduct constitutes a criminal offence, in accordance with the principle of personal criminal liability. For parent companies, pursuant to Civil Code Article 2497-ter, every decision taken by the subsidiary com - pany in accordance with the parent company’s direc - tives should be analytically motivated and contain pre - cise indications of the reasons and interests whose evaluation affected the decision. Consequently, in so far as it is ascertained that the environmental dam - age caused by the subsidiary company was due to a directive from the parent company, the latter may be held liable. Similarly, in the case of an environmental criminal offence caused by a subsidiary company due to a directive from a parent company, even the latter may be held criminally liable pursuant to Legislative In recent years, climate change litigation has become increasingly common. The aim of such litigation is to bind the State by a court ruling to fulfil its climate obli - gations and to order the public authority to compen - sate individuals for the damage caused by its failure to do so. Such litigation is usually brought by NGOs and citizens’ groups. In spring 2023, several NGOs Decree No 231/2001. 4.4 Social Context
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