Environmental law and practice in Italy: overview
A Q&A guide to environment law in Italy. This Q&A provides a high level overview of environmental law in Italy and looks at key practical issues including emissions to air and water, environmental impact assessments, waste, contaminated land, and environmental issues in transactions. In addition, answers to questions can be compared across a number of jurisdictions to assist in the management of cross-border transactions (see Country Q&A Tool).
The Q&A is part of the global guide to environment law. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-guide.
Environmental regulatory framework
The principal statute is the Legislative Decree 152/2006 (Environmental Protection Code) which states the key, EU-derived principles governing environmental protection in Italy.
The Environmental Protection Code sets out the main legislative framework applicable to:
All matters concerning integrated pollution prevention and control (IPPC).
Environmental impact assessment (EIA).
Environmental strategic assessment (SEA).
Water policy and management.
Waste and packaging management.
Contaminated land management
As well as the Environmental Protection Code, there are various specific laws and regulations relating to:
Specific pollutants or harmful emissions such as dangerous substances, light, noise and odour pollution.
Specific waste flows such as waste electrical and electronic equipment (WEEE), waste batteries and accumulators (WBA) or mineral oils.
Some installations, for example, landfills or installations recovering energy from waste.
Permitting regimes, such as the single environmental permit.
Sanctions are provided by the:
Environmental Protection Code.
Specific environmental laws and regulations as outlined above, including, among others, the Fish Code.
Criminal Code of Italy.
Legislative Decree 231/2001 which makes companies and other legal entities directly liable for crimes committed by physical persons acting on their behalf.
Liability and damage compensation obligations are governed by the laws and regulations, the Civil Code and the Environmental Protection Code's provisions on environmental damage.
The state is the main regulatory authority for environmental matters, but several provisions of the Environmental Protection Code allow individual regions to maintain or introduce more stringent protective measures.
Considering that 80% of environmental laws and regulations adopted in the EU member states originate in Brussels, it is often the case that, as a regulator, the state represents just one of the actors in the multilevel governance of the environment.
The implementation of Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control )(Industrial Emissions Directive) in particular, has introduced an additional level of governance for industrial installations subject to IPPC legislation which have an obligation to apply the best available technologies approved through the ''Sevilla process''.
Authorities that are responsible for supervising and controlling industrial activities are the:
Ministry of the Environment and Protection of Land and Sea (Ministero dell'Ambiente e della Tutela del Territorio e del Mare (MATTM)) (Ministry of the Environment).
Ministry of Economic Development.
Ministry of Cultural and Landscape Heritage.
Regions and the autonomous provinces of Trento and Bolzano.
Provinces, the municipalities and their associations (for example, the Ambit Authority (Autorità d'Ambito), which co-ordinates bulk water supply).
Authority for electricity, gas and water resources (Autorità per l'Energia Elettrica, il Gas ed il Sistema Idrico (AEEGSI)).
Other entities (for example, the Gestore Servizi Energetici Energy Services Manager (GSE) and the water companies (Consorzi idrici)).
These authorities are assisted by (among others) the:
National Institute for Environmental Protection and Research (ISPRA).
Health Institute (ISS).
Regional Environmental Protection Agencies (ARPA).
Police and the public prosecutor offices.
Customs and Monopoly Agency.
Environmental law requirements are enforced through criminal and/or administrative sanctions.
Depending on the extent of their powers, the regulatory authorities can apply criminal and administrative penalties (both monetary and non-monetary). As far as non-monetary sanctions are concerned, the regulatory authorities can, for instance:
Serve compliance, restoration or remediation notices.
In certain circumstances:
order a temporary suspension of industrial activities;
close an installation and revoke the permit;
seize equipment and production facilities.
Several new criminal offences were introduced into the Italian Criminal Code by Law 68/2015 (implementing Directive 2008/99/EC on the protection of the environment through criminal law (Environmental Crime Directive)):
Any unlawful conduct which causes the significant and measurable deterioration of the quality of the air, soil or water or the degradation of the ecosystem, biodiversity, animals or plants constitutes a criminal offence (Subchapter VI-bis, Chapter II, Criminal Code).
Any conduct provoking an environmental disaster also constitutes a criminal offence. An environmental disaster is defined as an event causing irreversible ecosystem changes which would require exceptional and onerous measures to remove or would pose a serious danger to public health.
To try to encourage polluters to take pre-emptive, corrective or remedial action, authorities can also require operators to comply with additional conditions and to pay a fine to extinguish some criminal offences (namely those mentioned in Part VI-bis, Legislative Decree 152/2006 (Environmental Protection Code), introduced by Law 68/2015).
Legal entities can also be held liable for environmental criminal offences committed by individuals on their behalf (Legislative Decree 231/2001).
Enforcement of environmental requirements and prosecution of violations are compulsory, although their effectiveness may depend on available resources and on the public authorities involved. Some authorities may lack the necessary expertise and financial resources to react to environmental violations.
Environmental organisations, including those operating at local level, temporary committees and pressure groups, have legal standing to challenge the lawfulness of public authorities' actions in environmental matters provided that both:
They have been formally recognised by the Minister for the Environment or are a bona fide environmental interest group.
The disputed measures affect the interests of those individuals and communities they represent, taking into account both the potential effects of the measures and their ''proximity'' to the communities represented (Articles 309 and 310, Environmental Protection Code and Articles 13 and 18, para. 5, Law 349/1986).
NGOs are entitled to participate in environmental decision-making and to be granted access to environmental information (see Question 25). They can participate in administrative proceedings, instigate investigations and are entitled to claim compensation before both civil and criminal courts for both financial and non-financial damages they have suffered as a direct result of environmental wrongs (Article 2043 et seq. Civil Code on tort).
However, NGOs are not entitled to bring environmental damage claims based on a mere public interest in a healthy and safe environment, as these claims can only be brought by the Ministry of the Environment (Article 311, Environmental Protection Code).
Integrated/separate permitting regime
As part of an ongoing process of administrative simplification, the various separate environmental permits have mostly been replaced by ''all inclusive'' permits, which are the:
Integrated Pollution Prevention and Control permit (autorizzazione integrata ambientale) (IPPC). This permit, which is required for any entity wishing to carry out activities falling under the scope of IPPC legislation (Part II, Annex VIII, Legislative Decree 152/2006 (Environmental Protection Code)), replaces the separate permits relating to:
treatment of waste under Article 208 of the Environmental Protection Code;
disposal of equipment containing PCBs-PCTs;
use of sewage sludge in agriculture;
wastewater discharges regulated by the Venice Waterway Magistrate (subject to certain conditions).
Unlike the other comprehensive permits, the IPPC permit adopts an integrated approach, where all environmental aspects are considered simultaneously, together with site-specific issues. The relevant authority must apply emission limit values based on best available techniques (BAT) and interactions between the diverse environmental media.
Environmental single permit (autorizzazione unica ambientale) (AUA). Operators carrying out activities which are not envisaged by Part II of the Environmental Protection Code (Annex VIII) and therefore fall outside of the scope of IPPC legislation, must apply for an AUA (regulated under Presidential Decree 59/2013). This permit replaces the separate environmental permits relating to:
agronomic use of livestock manure and of oil mills' vegetable water;
use of sewage sludge in agriculture;
in some cases, the notifications concerning simplified waste treatment authorisation procedures.
It applies to all operators who need to obtain separate environmental permits for different proposed activities and are not required to apply for an IPPC permit or for a waste treatment single permit, because their activity falls neither under the scope of Part II, Annex VIII (see above) nor under the scope of Article 208 regulating the realisation and management of waste recovery, storage and/or disposal facilities as described below.
The permit is not required when the environmental impact assessment (EIA) replaces the single separate permits under an applicable specific law.
Unlike the process for the IPCC permits, each authority must separately grant its consent to the specific activity proposed. Operators must apply for an AUA through the muncipality's Business Desk (Sportello unico per le attività produttive) (SUAP) who then forwards the request to the appropriate environmental authorities (who would have been required to grant the separate permits under the old regime). The AUA, which lasts for 15 years, will normally be granted by the province unless regional law allocates this competence to a different authority.
The following permits regulate both environmental and other aspects of the activity, such as those requiring building permits:
Waste treatment single permit. This permit authorises the realisation of the necessary plants and buildings (that is, their construction and compatibility with town and planning law) and the management of waste recovery, storage and/or disposal facilities. It can be granted by the region (unless allocated to a different authority) and lasts for ten years (Article 208, Environmental Protection Code).
Single permit for installations producing energy from renewable sources. This permit, required under Legislative Decrees 387/2003 and 28/2011 (see Question 8), is issued by the region (unless allocated to the province) or, in some specific cases, by the Ministry of Economic Development or by the Ministry of Transportation.
Approval of environmental remediation projects. This is required under Article 242 of the Environmental Protection Code.
In some specific residual cases, additional special permitting regimes contained in national or regional law must be co-ordinated with the permitting regimes above or even overlap with them.These include the:
Notifications prescribed within simplified waste treatment authorisation procedures under Articles 214 and 216 of the Environmental Protection Code.
Accession to general air emissions permits under Article 272 (concerning less harmful emissions).
Wastewater discharge authorisation in certain circumstances (for example, industrial wastewaters merging with household wastewaters, urban wastewaters, and wastewaters discharged into surface water where the latter is managed by a remediation company (Consorzio di bonifica) or similar entities).
Permits and regulator
See Question 4.
The IPPC permit must be issued by the:
Environment Ministry (MATTM) when the business is included in Annex XII to Part II of the Environmental Protection Code.
Competent region or province, in any other case.
Length of permit
The IPPC permit conditions are subject to periodic review, within:
Four years of publication of the relevant decisions on BAT conclusions (see Question 4).
Ten years of issue in any case.
Twelve years where the installation was certified under the Environmental Management System UNI EN ISO 14001.
Sixteen years where the operator participates in the EU eco-management and audit scheme, EMAS, at the time when the permit is obtained.
Restrictions on transfer
The IPPC permit can be transferred, in which case both the former title holder and the new one must inform the competent authority within 30 days that the operator of the installation has changed.
Legislative Decree 152/2006 (Environmental Protection Code) provides for both administrative and criminal sanctions for non-compliance. Operators who run an installation without a valid permit or who do not comply with the requirements imposed by the permit face criminal sanctions.
Those who fail to comply with reporting requirements face administrative monetary penalties.
If the operator does not comply with permit conditions or operates without being authorised, additional administrative non-monetary sanctions may be applied (see Question 2).
Repeat violations of the same permit provision can result in the suspension of industrial activities.
Where several violations causing environmental harm or risk have been committed, the authority will revoke the permit and shut down the installation.
Permits and regulator
Anyone discharging wastewaters must obtain a permit and comply with the discharge limits laid down by Legislative Decree 152/2006 (Environmental Protection Code), based on whether wastewaters are industrial, household (or assimilated to household) or urban wastewaters.
The regions may introduce more restrictive discharge limits and regulate the management of rainwaters and of industrial wastewaters assimilated to household wastewaters.
Regulations can also impose specific restrictions on water and sewage treatment to protect water infrastructure.
Apart from specific exceptions, it is generally prohibited to discharge wastewaters into the soil, the subsoil and ground waters (Part III and Annex V to Part III, Environmental Protection Code).
In any case, it is specifically prohibited to discharge:
Wastewaters containing certain substances into the soil.
Rainwater into groundwaters.
Wastewaters into well and spring drinking water collection areas.
Clean-up and compensation obligations are regulated under Part IV (see Question 14) and Part VI of the Environmental Protection Code. Dumping waste in these waters also represents a criminal offence. Offenders are required to restore the waters to previous environmental conditions.
Criminal and administrative monetary and non-monetary sanctions apply in cases of non-compliance (see Question 2), depending on the discharge type and seriousness of the violation.
The most serious sanctions are imposed for the discharge of wastewaters containing dangerous substances. Some of these violations also trigger a legal entity's criminal responsibility.
Emitting polluting substances into the water may be an offence under Article 674 of the Criminal Code (concerning harmful dispersion of substances).
Permits and regulator
Air pollution control provisions apply to installations carrying out activities producing air emissions, including those consisting of more than one separate plant (Part V, Legislative Decree 152/2006 (Environmental Protection Code)).
Any activity producing polluting emissions must be authorised.
Where pollutants are channelled out through chimneys, filters or similar technologies, each outlet must comply with the emission limits defined by the regions in accordance with the standard values set out in Annex I to Part V of the Environmental Protection Code and the relevant air quality guidance.
Where pollutants cannot be channelled, operators must adopt appropriate measures to contain emissions.
It is unlawful to produce polluting emissions:
Without a valid permit.
That exceed the emissions limits.
That do not comply with permit conditions (including those set out in specific environmental regimes, for example applicable to specific substances (see Question 1)).
Activities producing smoke, grit, dust, gases or smoke emissions damaging to health or causing a nuisance beyond reasonable limits can be restricted even if they have been duly authorised and do not exceed emission limit values (Article 844, Civil Code).
Clean-up and compensation obligations are regulated under Part IV (see Question 14) and Part VI of the Environmental Protection Code.
Criminal sanctions can be imposed on operators who:
Operate an installation producing air emissions without a valid permit.
Exceed air emission limits.
Fail to comply with any other condition of the permit (except those attracting administrative penalties), the Environmental Protection Code or any other relevant laws, plans and programmes.
Emitting harmful substances into the atmosphere can also be punished as an offence under the Criminal Code (Article 674 (concerning harmful dispersion of substances or materials)) where this liability is given a wide interpretation.
In appropriate cases, competent authorities can apply administrative, non-monetary sanctions (see Question 2).
Climate change, renewable energy and energy efficiency
As well as being a party to both the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol (see Question 9), Italy is subject to the "EU 20-20-20" targets set out in the EU Integrated Energy and Climate Change Package (IECCP) which include a:
20% reduction in greenhouse gas (GHG) emissions from 1990 levels.
20% share of renewables in its energy consumption levels.
20% improvement in energy efficiency.
To meet the targets, Italy has enacted a comprehensive legal and regulatory framework for ensuring compliance with its GHG emissions reduction obligations, which are to:
Contribute to achieving the EU target of reducing GHG emissions by 20% by 2020, where applicable, by improving and extending the GHG emission allowance trading scheme (ETS) (Legislative Decree 30/2013 (implementing Directive 2009/29/EC (revising the emissions trading directive)) (see Questions 9 and 10).
Ensure that renewable energy forms 17% of the country's total energy consumption by 2020 and that at least 10% of overall transport fuel consumption comes from renewable sources (Legislative Decree 28/2011 (implementing Directive 2009/28/EC on the promotion of the use of energy from renewable sources (Renewable Energy Directive))).
Reduce energy consumption by 20 million tonnes of oil primary energy consumption (Mtoe), equivalent to 15.5 million tonnes of oil final energy consumption (Mtoe) by 2020, from 2010 levels, as an indicative national energy efficiency target (Legislative Decree 102/2014 (implementing Directive 2012/27/EU on energy efficiency)).
The targets have been incorporated in the national energy strategy adopted by Ministerial Decree 8 March 2013 and, subsequently, in the National Energy Efficiency Action plan adopted in 2014 under Directive 2012/27/EU.
Italy has ratified both the UNFCCC and the Kyoto Protocol committing itself to meet the relevant objectives jointly with other EU member states.
To achieve the target set by the EU Integrated Energy and Climate Change Package (IECCP), the EU has reformed and strengthened the emissions allowance trading scheme (ETS) (see Question 10) and, with regard to those sectors falling outside of the scope of the EU ETS, has established individual binding annual GHG emission targets for each member state (Decision No 406/2009/EC (Effort Sharing Decision) and Decision 162/2013/EU).
These require Italy to reduce its greenhouse gas (GHG) emissions in sectors that are not already covered by the EU ETS by 13% (compared with 2005 levels) by 2020.
The EU Framework on Climate and Energy for 2030 has recently introduced new, more ambitious targets, aiming to:
Boost the share of renewables to at least 27% of EU energy consumption by 2030.
Endorse an indicative energy savings target of 27% by 2030.
Introduce a binding economy-wide emission reductions target of at least 40% by 2030 compared to 1990.
A proposal of the EU Commission of July 2016 translates this commitment into binding annual GHG emission targets for each member state for the period 2021 to 2030, the target proposed for Italy being 33% (compared to 2005).
The environmental annex of April 2016 to the Economic and Financial Statement (Documento di Economia e Finanza) sets out the measures Italy intends to adopt to meet its assigned and prospective emissions reduction targets.
The Italian emissions trading system is part of the EU's emission allowance trading scheme (ETS).
Directive 2009/29/EC (revising the emissions trading directive), which launched the current third phase (2013 to 2020) and substantially reformed the EU ETS as regulated by Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community (Emissions Trading Directive), has been implemented in Italy by Legislative Decree 30/2013.
Under the third phase, a single community registry accounting for all allowances issued under the emissions trading scheme has replaced individual member state registries.
Allowances are no longer issued by the Italian authorities in accordance with the Commission decision on the national allocation plan. Instead, from 2013, an EU cap on allowances is set annually by the European Commission and emission allowances are auctioned (although, for a transitional period, allowances can still be allocated free of charge).
The National Committee (Comitato nazionale per la gestione della direttiva 2003/87/CE) lists installations covered by the ETS Directive and notifies them to the Commission together with the provisional quantity of allowances to be issued free of charge (where this is allowed).
Subject to the Commission's approval, the Committee then allocates emissions allowances on the basis of the EU harmonised rules and of the relevant Commission allowances cap.
The National Committee is also responsible for granting GHG emissions permits. Although most installations are also subject to the integrated pollution prevention and control (IPPC) regime, the issue of GHG emissions permits involves a separate procedure and autonomous assessment.
The Energy Services Authority (Gestore Servizi Energetici) (GSE) is the authority responsible for the auctioning of allowances.
Environmental impact assessments
The EIA concerns projects (including their modification or their extension) which are likely to have significant and negative effects on the environment and on the cultural heritage.
The types of projects which fall under the scope of EIA include, for example (Annexes II and III to Part II, Legislative Decree 152/2006 (Environmental Protection Code)):
Integrated chemical plants.
Waste disposal facilities.
Construction of roads.
Installation of overhead electrical power lines.
Industrial installations for the production of electricity.
In certain cases, the decision on whether or not EIA is required for a particular project is taken after a screening process (Annex IV to Part II, Environmental Protection Code).
The EIA must identify, describe and assess the direct and indirect effects of a project on the following factors:
Human beings, fauna and flora.
Soil, water, air and the climate.
Physical assets and cultural heritage.
The interaction between all these factors.
Permits and regulator
For projects listed in Annex II, the EIA is carried out by the Ministry of the Environment.
The EIA relating to Annex III projects is carried out by the region (unless regional law allocates this power to the province).
The applicants must prepare and submit an environmental impact statement and apply for an EIA before starting work on the project.
A decision granting development consent will contain appropriate conditions relating to the realisation and operation of the project as well as decommissioning.
Work cannot be started on the project before obtaining the assessment. Projects must be completed within five years of the grant of development consent and once this period has expired, the EIA procedure must be undertaken all over again, unless the deadline has been postponed.
A health impact assessment (valutazione di impatto sanitaria) (VIS) must also be carried out as part of the EIA procedure for some specific projects, for example, crude oil refineries or thermal power stations with a heat output of more than 300 megawatts.
Where an EIA is required but has not been validly carried out, any permit, opinion or licence relating to the project can be challenged and may be revoked.
The relevant authority can suspend development works, request adjustments and/or order the demolition and remediation of the site where a project:
Is completed without a prior EIA.
Does not comply with the conditions set out in the development consent decision.
Has been subject to subsequent modifications affecting the EIA conclusions.
Some regional laws also impose administrative monetary fines in addition to penalties envisaged by the Environmental Protection Code in these cases.
Permits and regulator
Any establishment and/or undertaking intending to carry out waste management activities must obtain a permit from the competent authority (Part IV, Legislative Decree 152/2006 (Environmental Protection Code)).
Waste management activities are:
Waste treatment (recovery and disposal of waste, including preparing waste for re-use).
Temporary storage (pending collection) of waste on the site where it is produced does not require authorisation, provided that certain conditions relating to quantity and duration are met.
Waste producers and economic operators managing waste must also comply with specific requirements aimed at ensuring waste traceability.
It is unlawful to manage waste without a valid permit and/or not complying with permit conditions.
Other prohibited activities include (Part IV, Environmental Protection Code):
Mixing hazardous and non-hazardous waste.
Dumping of waste.
Burning waste in the open.
Activities which must be registered in the National Environmental Managers' Registry and are subject to minimum requirements include:
Waste transportation carried out on behalf of third parties.
Waste dealing and brokerage.
Polluted sites remediation.
Specific operating conditions apply to compliance schemes managing some waste categories, such as waste electrical and electronic equipment (WEEE), in accordance with the principle of extended producer responsibility.
Economic operators carrying out waste management activities, including waste shipment operations to be notified under Regulation (EC) 1013/2006 on shipments of waste, must provide bank or insurance guarantees, which involves an assessment of the operator's financial soundness.
Some regions also require waste treatment operators to hold environmental liability insurance policies (see Question 30).
Special rules for certain waste
Without prejudice to the general provisions on waste contained in Part IV of the Environmental Protection Code, which apply as default rules, certain types of waste (for example, WEEE, WBA, mineral oils, sanitary waste and PCB) or treatment facilities (such as incinerators and landfills) are regulated under special regimes.
See Question 2.
The waste management sector is the focus of most of the enforcement proceedings in environmental cases.
Authorities can apply both criminal and administrative monetary and non-monetary sanctions, including confiscating the land where waste has been unlawfully dumped and/or the vehicle(s) used to unlawfully transport waste.
The most severe sanctions are reserved for the unlawful management of hazardous or radioactive waste, and for organised criminal activities for the illegal trafficking of waste.
A legal entity can be criminally liable for such violations.
The most important laws dealing with asbestos are:
Law 257/1992 and implementing regulations (including Ministerial Decree 6 September 1994), which control the ban on using asbestos.
Legislative Decree 36/2003 on landfills, which include very strict rules on the disposal of asbestos.
Legislative Decrees 152/2006 (Environmental Protection Code) and 114/1995 on the protection of the environment from asbestos-related risks.
Legislative Decree 81/2008, which regulates occupational exposure to asbestos.
The extraction, import, export, buying and selling, and use of asbestos are prohibited under Law 257/1992.
Where workers are exposed to asbestos, the conditions in Legislative Decree 81/2008 must be met.
Any exposure of asbestos to members of the public (even to one individual) constituting a health risk or serious injury or death is forbidden under Law 257/1992.
Existing buildings and plants containing traces of asbestos must be notified to the relevant authorities by their owners, monitored and registered in the appropriate regional registries.
Where any manufactured product contains traces of asbestos, depending on the physical conditions of such traces, they must be removed or decontaminated in accordance with the regional implementing regulations.
Permits and regulator
Any investigations carried out on buildings or installations must follow the procedures set out in Law 257/1992 and Legislative Decree 81/2008. The operators in charge must register in the National Environmental Managers Registry and they are subject to the supervision and control of the local health authorities.
Employers are liable for criminal penalties for any breach of the obligations relating to the unlawful management of waste containing asbestos and with any asbestos-related injury to human health.
Administrative monetary penalties are applied by some regions to operators who fail to notify the authorities of asbestos traces.
Employers are also financially liable for asbestos-related occupational diseases.
Regulator and legislation
Environmental remediation of polluted sites is regulated under section V of Part IV of Legislative Decree 152/2006 (Environmental Protection Code). Regulatory responsibility for remediation is shared between the regions and the provinces, and many regions have delegated the issue of the relevant permits to the municipalities. A "site" includes the soil, subsoil and groundwaters.
In principle, the same contamination event may be regulated under several regimes.
Although, in principle, the provisions under section V do not apply to waste abandoned on the site, if the maximum permitted concentration levels of contaminants are exceeded (see below) after the waste has been removed, the area must be characterised and, if necessary, reclaimed under the terms of that section.
Further, following major changes made in 2013, contaminated land legislation can occasionally overlap with provisions on environmental damage and on industrial emissions. As to the latter, legislative Decree 46/2014 (implementing Directive 2010/75/EU on industrial emissions (Industrial Emission Directive)) requires operators of sites that use, produce or release hazardous substances to prepare a baseline report so that the state of the soil and groundwater contamination can be compared when the site is closed.
The various regimes above apply independently and simultaneously, without prejudice to their respective provisions.
Investigation and clean-up
In relation to any event that could result in contamination or any past event that still carries a risk of aggravating the contamination of the site, section V (see above) requires the relevant authority to (Part IV, Environmental Protection Code):
Adopt any necessary preventative, restorative and emergency safety measures.
Notify the relevant authorities.
Perform a characterisation of the site.
The site must be reclaimed if threshold concentration levels for certain substances are still being exceeded after the measures above have been carried out. A site-specific risk analysis of soil must be carried out to define the remediation targets.
Where production activities are ongoing, standard remediation activities may be postponed until production has ceased but provisional remediation measures (messa in sicurezza operativa) are adopted to prevent the contamination spreading.
Bank guarantees covering clean-up costs must be given for the benefit of the relevant authority in accordance with the conditions of the permit.
Criminal offences under Part IV are committed where the polluter:
Does not reclaim the site in accordance with the approved remediation plan.
Fails to notify the authorities straight after the occurrence or the discovery of the contamination event.
Where the polluter is a legal entity, it can incur criminal liability under Legislative Decree 231/2001.
Criminal penalties can now be imposed under the Criminal Code on polluters who fail to undertake remediation activities ordered by a court or by a relevant authority or required by law (Law 68/2015) (see Question 2).
According to the ''polluter pays'' principle, the person or entity responsible for the contamination must reclaim the site at its own expense or reimburse clean-up costs borne by third parties (private individuals or public authorities) as well as the costs of any necessary environmental investigations, even where those costs exceed the site's value.
Where there is more than one polluter, the courts have generally required each of the responsible parties to pay in proportion to their contribution to the contamination.
Public funds can occasionally cover part of the clean-up costs, depending on available resources, on the extent of the contamination and on the urgency of remediation.
An owner of a site who is not responsible for the pollution on it may be exclusively required to reimburse costs for measures undertaken by the relevant authority, within the limit of the market value of the site, determined after those measures have been carried out.
The owner or the occupier of the land who finds that the threshold concentration limits have been exceeded, or are specifically and genuinely at risk of being exceeded, must inform the relevant authorities and implement preventative measures.
The owner or any other interested party may, however, intervene on a voluntary basis at any time in order to undertake the requisite rehabilitation measures for the site. In this case, the owner or third party can ask the polluter to reimburse the costs incurred and claim additional damages.
Previous owner/occupier liability
The "polluter pays" principle governs the allocation of liability. As a result, the previous owners or holders of the site can be held liable for the pollution of the site where, based on a strict application of this principle, they caused or contributed to causing the pollution. No liability can be attributed to the owner/holder as such, where they have not caused the pollution.
Limitation of liability
The owner of the site can be required to reimburse the costs for measures undertaken by the relevant authority only up to the market value of the site.
The polluter is, by contrast, wholly liable towards the authorities, although it is possible for the polluter to transfer some or all of the responsibility to third parties by private agreement, it being understood that the agreement would be effective between the parties alone.
Voluntary clean-up programme
Subject to certain conditions (for example, where the operator has entered into a specific agreement with the relevant authority), public funding and fiscal incentives are offered to encourage the adoption of remediation and industrial reconversion measures on contaminated national interest sites (siti inquinati di interesse nazionale).
Consenting and environmental impact assessment
Part III of Legislative Decree 152/2006 (Environmental Protection Code) prohibits hydraulic fracturing. Shale gas and shale oil exploration and extraction, as well as any technique aimed at encouraging the production of shale gas, are forbidden and accordingly the mining authorities cannot grant authorisation for such activities.
Because of the high risk of seismic events in Italy, public opposition against fracking has increased and few derogations from the provision above are likely to be allowed, at least in the short term.
Environmental liability and asset/share transfers
In general terms, environmental law is made up of imperative principles, such as, in particular, the "polluter pays", the prevention and the precautionary principles. It imposes on specific categories of persons, such as the operator of an industrial installation or the owner of a contaminated site, specific obligations of a public law nature which cannot therefore be contractually derogated by the parties. The person required by law to comply with these obligations can transfer them to a third party but any such agreement will be effective only between the parties . Consequently, a buyer can agree to assume environmental liabilities contractually (see Question 20) but the seller retains liability towards the authorities.
The buyer does not assume any public or private obligation imposed on the seller in relation to the asset purchased, in contrast to a legal successor of the seller (who would inherit the obligation).
However, to minimise risk, the buyer should make sure, from the moment it takes over the asset, that the installation is duly authorised and able to comply with any legislative, regulatory or administrative requirement. Failure to do so can result in the buyer becoming liable for the inability of the entity to lawfully operate on the date where the purchase become effective, notably where permit conditions relating to the plant's infrastructure and machinery are not fulfilled or a permit has not been obtained or has expired.
Further, the buyer can be held liable, as the contaminated site owner, up to the limit of the market value of the site (see Question 15).
A company resulting from a merger or acquisition transactions takes over the assets and liabilities of the relevant entities participating in the transaction together with any obligations and commitments (Civil Code). In principle, the transfer of the shares therefore involves the transfer to the buyer of all of the merged or of the acquired entity's liabilities, including:
Environmental liabilities resulting from events, acts, omissions or circumstances which occurred before the purchase and which have nonetheless been discovered after the acquisition.
Liabilities for any contamination that the target caused on its current properties or on any properties it formerly owned, used or occupied.
The seller remains liable for any breach of environmental law and regulations and/or contamination events, accidents and damages caused before the sale of assets (see Question 19).
Liabilities incurred by the target before the sale (or after the sale but relating to acts or omissions occurring before the sale) remain with the target (see Question 19, Share sale). Therefore, the seller should not be at risk of retaining any environmental liabilities after the sale.
However, under Italian environmental law, the seller originally controlling the target company might, in principle, retain liability in relation to events occurring before the share sale, subject to specific conditions (for example, when decisions affecting the target company's compliance with environmental law have de facto been taken by the controlling entity and/or the environmental wrongdoings committed by the target company ensue directly from the controlling entity's instructions).
However, at present courts have no precedents to rely on in this respect as no decision on environmental related cases has ever reached any such conclusion.
There is no specific legal obligation to disclose environmental information to the buyer. However, based on general Civil Code rules, during the negotiations the parties must:
Act in good faith.
Provide any information requested by the counterparty.
Keep the talks confidential.
Breach of any of the above rules can result in liability for damages.
The buyer can also ask for the contract to be declared null and void if the seller:
Misrepresented the environmental situation of the site.
Fraudulently omitted to provide information such as the environmental factors affecting the site.
The general principles which apply to asset sales are also relevant to share sales.
Because liabilities are generally transferred to the buyer together with the company, a buyer is more likely to ask the seller to provide appropriate guarantees (see Question 23).
Due diligence by both vendor and buyer are very common and usually cover the following areas:
Environmental permits, licences and registrations including, where applicable, decisions on emissions allowances.
Reports on past environmental investigations.
Information on criminal proceedings involving the company's directors.
Factors affecting compliance and breaches of the applicable laws, regulations and administrative provisions.
Information on accidents and other events potentially resulting in contamination of the site.
Types of assessment
Environmental due diligence is usually carried out in phases. The first, summary, phase is intended to assess the scope of environmental liabilities and subsequent phases are aimed at defining the purchase price and/or the scope of warranties and indemnity clauses in the light of any environmental risks.
The process can involve:
Talks with the vendor.
Inspection of public registers.
Inspection of plants.
Interviews with management and staff.
Environmental investigations, including sampling and analyses of soil and groundwater.
The parties can use their own technical consultants or, less commonly, joint expert consultants. In the latter case it is understood that the consultants' final opinion is not to be challenged by either party.
The engagement letter to consultants usually sets out in detail the scope of the assessment together with their responsibilities.
The buyer commonly asks the seller to provide an environmental warranty or indemnity. The scope and extent of these clauses necessarily depends on the available information, price and bargaining power of the parties.
The seller is generally asked to confirm that:
The business is duly authorised to operate.
It complies with all the relevant laws, regulations and administrative provisions.
No compliance notices, claims, investigations or proceedings have been addressed, raised or opened by the authorities or third parties in relation to the business.
The relevant estate is not polluted or subject to environmental remediation procedures.
Generally, the same types of warranties or indemnities given in asset sales (above) are given, but any additional issues arising from the transfer of liabilities (see Question 19) must to be taken into account.
Reporting and auditing
A wide range of environmental information is available on public registers. For example:
Relevant authorities (see Question 2) hold public registers recording emissions, releases and discharges affecting specific environmental media.
A list of IPPC installations is available on the Ministry of the Environment website. Pollutants emitted by such installations are recorded on the Italian Pollutant Release and Transfer Register.
clean-up procedures currently taking place;
remediation activities carried out in these sites;
names of those responsible for cleaning up.
Regions hold a register of polluted sites where they record, for example:
Real estate registers record the existence of a clean-up obligation in relation to a polluted site.
Chambers of Commerce keep, among others, the:
national register of environmental operators;
national registers of electrical and electronic equipment producers and of producers of batteries and accumulators;
register required by Regulations EU/517/2014 and EU/2015/2067 on fluorinated greenhouse gases (Fluorinated GHG Regulations) .
Third party procedures
In general, anyone can seek access to publicly held environmental information without the applicant having to state a specific interest (Legislative Decree 195/2005) and generally to documents held by public authorities (Law 241/1990). In both cases, specific grounds for restricting access can be opposed by the authority concerned.
Both domestic and EU regulations establishing end of waste criteria for certain types of waste (for example, scrap metal) require operators to adopt quality management systems which must be certified by qualified environmental monitors.
Provisions on monitoring and control activities (piano di monitoraggio e controllo) in certain permits can also prescribe environmental audits.
Apart from these specific cases, environmental auditing is voluntary.
However, certain certification systems (for example, ISO 14001 and EMAS (see Question 5)) offer some advantages such as:
Simplified procedures for the issue, renewal and re-assessment of permits.
Postponement of the expiry date of the IPPC permit.
Possible replacement of administrative monitoring and control activities carried out by enforcement authorities with the monitoring activities undertaken in the course of certified environmental audits.
Reduced bank and insurance guarantees required for waste collection, transportation and shipment activities.
Provision of evidence within proceedings under Legislative Decree 231/2001.
The findings of more invasive investigations (for example, soil and groundwater analysis) must be disclosed to the regulatory authorities under the terms contained in contaminated land law and the regulations described above (see Question 14).
Permits generally include an obligation to report to public authorities all relevant information and data concerning the emissions or discharges from the permitted plant.
There is no general obligation to report environmental incidents.
However, several provisions applying to specific activities require operators to report accidents or events likely to harm the environment, for example, those applying to IPPC installations and to waste incineration facilities. This requirement is often prescribed by the permit itself.
Further, the polluter, the owner or the holder of a site must notify the authorities of any event which could result in contamination (see Question 14).
Site ''operators'' are generally required to notify the relevant authorities of any imminent threat of environmental damage (besides adopting the necessary preventative measures) to allow the Ministry of the Environment (notably) to bring the appropriate damage claims against the polluter (Part VI, Legislative Decree 152/2006 (Environmental Protection Code)). Failure to fulfill obligations determines the application of administrative monetary penalties.
Regulatory and enforcement authorities are entitled to:
Access an industrial site.
Carry out technical assessments.
Access information by examining documents and data and interviewing the company's staff.
Subject to certain conditions, the information collected can be used within administrative proceedings and/or within criminal investigations.
It is now a criminal offence to prevent public authorities from exerting their supervisory, investigative and control powers in relation to environmental compliance or to hinder the latter's activity (Law 68/2015) (see Question 2).
Companies must include in the management report any relevant information concerning risks associated with the environmental performance of the company or its subsidiaries (Article 2428, Civil Code). As far as large public-interest entities are concerned, such information must be detailed as precisely as now prescribed by Legislative Decree no. 254/2016 implementing Directive 2014/95/EU (amending Directive 2013/34/EU on disclosure of non-financial and diversity information by certain large undertakings and groups).
Types of insurance and risk
There is no general obligation to hold an insurance policy covering environmental risks, liabilities and damages. Some industrial operators must provide bank guarantees covering the costs of future site remediation required on the cessation of activities regulated under IPPC, landfills, waste and contaminated land legislation.
Environmental liability insurance (RC inquinamento) usually covers damage caused to third parties by the pollution originating from the activities carried out on the relevant site. In addition, the traditional third party insurance (RC terzi) covering any damage caused to third parties can be extended to cover environmental damage.
Specific environmental insurance may also cover:
Damages caused by gradual pollution originating from fully lawful activities.
Polluter's own costs.
Damages arising from the closure of the activity.
Clean-up costs and costs associated with adopting preventive and remedial measures.
Legal and technical consulting expenses.
It is not common to enter into environmental liability insurance agreements and there are not many insurance companies with specific expertise in this field. Brokers and their consultants may carry out preliminary technical and non-technical assessments on operators seeking this kind of insurance.
The most relevant environmental taxes are the following.
Tax on waste
The Waste Tax (Tassa sui rifiuti) (TARI) was introduced by Law 147/2013 to ensure full coverage of costs incurred by the municipalities relating to waste management services (collection, recovery and/or disposal).
The TARI must be paid by anyone possessing or using a property where urban waste is produced, that is, both household waste and waste originating from industrial and commercial premises, which, under the municipality regulations, can be managed as household waste.
Tax rates are defined by municipalities based on the:
Net living space of the property.
Type of business activities carried out.
Number of people living in the property.
Average waste production rates in the municipality.
Reference values provided by the relevant regulations.
A levy on the disposal of solid waste in landfills (tributo speciale per il deposito in discarica dei rifiuti solidi) has been introduced by Law 549/1995 to encourage waste recovery and to prevent waste production and disposal.
The landfill tax is paid, in the first instance, by the landfill operator and, indirectly, by the person responsible for the waste disposal, in relation to disposals in:
Landfills authorised to carry out waste disposal operations (D1).
Waste incineration installations carrying out waste disposal operations (D10).
Anywhere, if illegally dumped.
Tax rates are defined by regions based on the category and quantity of waste landfilled, taking into account the criteria laid down in the Law 549/1995 based, for example, on the percentage of separate collection of waste achieved by the region or on how well the region did in preventing the production of waste.
The carbon tax was introduced by Law 448/1998 to discourage the consumption of fossil fuels releasing high quantities of carbon dioxide into the atmosphere (namely, petroleum coke, coal and orimulsion used in combustion plants).
This tax, levied on operators or owners of large combustion plants with a rated thermal input of 50 megawatts or more, has a progressive structure, the marginal tax rate increasing with the quantity of fuel consumed in the previous year.
Tax on sulphuric anhydride and nitrogen oxide emissions
This tax was introduced by Law 449/1997 and is regulated under Presidential Decree 416/2001. It is levied on operators of large combustion plants based on tonnes of sulphuric anhydride and nitrogen oxide they emitted in the previous year.
A comprehensive review of laws and regulations concerning the remediation of polluted sites is currently under discussion.
Waste law is also subject to reform proposals including a:
New regulation on excavated soil, classified either as waste or as a by-product (limited to "preliminary storage" conditions).
General decree on the various types of by-products.
General decree setting out the specific criteria that each single waste category undergoing a recovery operation must meet to cease to be waste and, therefore, to achieve "end of waste" status.
In addition, Italy is required to implement Directive 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment on EIA by 2017.
The regulatory authorities
Ministry of the Environment and Protection of Land and Sea (Ministero dell'Ambiente e della Tutela del Territorio e del Mare) (MATTM)
Main activities. This generally exercises its powers in this field by issuing directives and adopting the rules and regulations necessary to implement the relevant primary legislation. It is also responsible for issuing some permits, including, in particular, the IPPC permit, and undertaking EIA and SEA assessments in relation to plants, installations and projects falling under the state's competence. It is also responsible for bringing environmental damage claims.
Ministry of Economic Development (Ministero dello Sviluppo Economico)
Main activities. The Ministry of Economic Development is required to participate in some civil proceedings concerning environmental matters and to provide its opinion. It is also responsible for issuing some concessions, notably in the mining sector, and adopting some relevant regulations together with MATTM.
Ministry of Cultural and Landscape Heritage (Ministero dei Beni e delle Attività Culturali e del Turismo)
Main activities. The Ministry of Cultural and Landscape Heritage gives an opinion in administrative proceedings concerning environmental matters. It (together with MATTM) is mainly responsible for the performance of some EIAs falling under state competence.
Health Ministry (Ministero della Salute)
Main activities. This can adopt some relevant regulations and can give its opinion in administrative environmental proceedings.
National Institute for Environmental Protection and Research (Istituto Superiore per la Protezione e la Ricerca Ambientale)
Main activities. This is overseen and guided by MATTM. It advises government departments in relation to environmental issues and is responsible for providing a preliminary assessment and undertaking investigations into IPPC installations regulated by the state.
Higher Institute for Health Protection (Istituto Superiore di Sanità)
Main activities. This is especially responsible for providing preliminary assessments and advising the ministries about human health issues in the course of administrative and regulatory procedures in environmental matters.
Description. This website publishes all the legislation in force. There is no official English translation.
Feature table: Environmental liability comparative table
Mara Chilosi, Partner
Chilosi Martelli – Studio Legale Associato
Professional qualifications. Admitted to the Bar of Milan. Qualified to plead before the Higher Courts.
Areas of practice. Waste management; implementation of the "extended producer responsibility" principle in relation to various waste flows, wastewater discharges and water management, transboundary movement of waste, auditing, legal entities' criminal responsibility.
Languages. Italian, English.
Publications. Author of various articles and participated as a lecturer in several conferences and training initiatives concerning waste law, packaging, WEEE, wastewater discharges and environmental crime.
Andrea Martelli, Partner
Chilosi Martelli – Studio Legale Associato
Professional qualifications. Admitted to the Bar of Milan. Qualified to plead before the Higher Courts.
Areas of practice. Waste management; contaminated soil remediation; environmental damage; IPPC and environmental permits; air and noise pollution; radioactive waste; EIA; environmental taxes; control of major-accident hazards involving dangerous substances.
Languages. Italian, English.
Publications. Author of various articles and participated as a lecturer in several conferences regarding the IPPC regime, EIA, air pollution, waste and contaminated land law.
Chilosi Martelli – Studio Legale Associato
Professional qualifications. Admitted to the Bar of Milan.
Areas of practice. Waste management; implementation of the extended producer responsibility principle in relation to WEEE, WBA and waste packaging; contaminated soil remediation; chemicals and dangerous substances.
Non-professional qualifications. LLM Environmental law and Policy, University College London.
Languages. Italian, English, French.
Publications. Author of various articles on environmental taxes, Seveso, WEEE and public access to environmental information.