Environmental Law 2022 Comparisons

In 2022, Article 9 of the Italian Constitution was amended to include the protection of the environment, biodiversity and the ecosystem within its fundamental principles. In general, the key Italian environmental policies and principles are those provided by EU law:

• sustainable development;
• the integration principle;
• the precautionary and preventative action principle;
• the principle of rectification of environmental damage at source;
• the "polluter pays" principle; and
• the high level of environmental protection principle. 

The key principles governing environmental protection are listed in Legislative Decree No 152/2006 (the “Code”). The Code is the key law in Italian environmental legislation. It is composed of eight parts and 64 annexes. However, many areas are excluded from the Code and find the source of their regulation within separate pieces of legislation. The Code, furthermore, does not encompass many other important pieces of sector-specific legislation, such as those related to renewable energy sources.

The system of environmental competencies is complex and conferred on a number of authorities and bodies. At central government level, the body which plays a primary role is the Ministry for Environment and Energy Safety (Ministero dell’Ambiente e della Sicurezza Energetica, MASE). MASE was named Ministero della Transizione Ecologica (MITE) until September 2022 when the new government came into power. The MASE, established in 1986 as the Ministry for the Environment (Ministero dell’Ambiente), has progressively increased its functions and delegated them to other ministries. Under the previous Draghi government, the MITE was entrusted with energy-related policies, which were previously conferred to the Ministry for Economic Development (Ministero dello sviluppo economico, MISE). 

Some environment-related functions are still conferred to other central authorities, such as the Ministry for Health, the Ministry for Agricultural Policies and the Ministry for Culture. This often causes serious organisational challenges.

The Institute for Environmental Research and Protection (Istituto superiore per la ricerca e la protezione dell’ambiente,ISPRA) assists MASE with providing technical assessment within relevant administrative procedures or issuing monitoring reports on environmental matters. ISPRA also ensures the co-ordination of the Regional Environmental Agencies (Agenzie regionali di protezione ambientale, ARPAs). 

Important administrative functions are assigned to regional and local authorities, which may participate in environmental proceedings (eg, planning procedures, environmental authorisations, the setting of standards, the provision of economic measures and also the powers of ordinance, sanctions and control).

Regional authorities are also entrusted with sectorial planning powers, while urban planning is conferred on municipalities. The independent Authority for Energy, Networks and Environment (ARERA) has competencies in certain waste and water sectors. Finally, extended producer responsibility legislation entrusts private entities, such as consortiums of producers of certain goods, with the management of the waste deriving from their products.

Environmental regulators, both at national and local levels, have a wide range of powers to prevent and sanction administrative or criminal offences affecting the environment. Relevant provisions, dealing with inspections, searches, sequestrations and the like, are mainly found in the Code of Criminal Procedure, in the Administrative Sanctions Act (Law No 689/1981), in the Code, as well as in the respective environmental permits. The authorities are permitted to carry out inspections aimed at verifying that the conditions set in the respective environmental permits have been met, including the power to collect and analyse samples. 

As a general rule, environmental permits are always required, and are granted after an administrative procedure is carried out. This procedure is regulated by the relevant sectorial environmental legislation, often integrated into the Administrative Procedure Act (Law No 241/1990) (APA). This “single authorisation model” is quite common. Some authorisations, for example, IPPC authorisations, are of European origin, while others are derived nationally – for example, the Environmental Single Permit, also known as Autorizzazione Unica Ambientale (AUA), and those in respect of renewable energy plants, remediation of brownfields, and Provvedimento Autorizzatorio Unico Regionale. 

Further, in order to realise projects provided for in the National Recovery and Resilience Plan (NRP), implementing Next Generation EU (NGEU), some permitting procedures have been streamlined and simplified.

The request for an environmental permit must be filed by the respective competent authority. Under Italian environmental law, there is a wide variety of competent authorities, both at national and local levels.

As a general rule, environmental permits are granted expressly after an administrative procedure is completed. However, particularly for projects not subject to an Environmental Impact Assessment (EIA), a simplified model, called a certified declaration scheme, may be applied. In terms of this scheme, an applicant will submit a professionally certified declaration of compliance with the relevant standards. Such certified declaration allows them to start the activity immediately, or after a period of 30 or 60 days. Thus, the competent authority does not grant a permit in advance, but merely conducts a retrospective conformity check on the truthfulness of the declaration. The certified declaration scheme is applied for smaller plants in the energy sector (Provvedimento abilitativo semplificato, also known as PAS) as well as in the waste sector (known as Procedura semplificata).

Without prejudice to the right of asking the competent authority to reconsider its decisions, the plant’s manager, or any subjects with legal standing, can file an appeal before the competent regional administrative court within 60 days of notification or publication of the administrative decision taken by the competent authorities. For some sectors, Italian law provides a special shorter term of 30 days within which to take action. However, against many, but not all, types of administrative decisions, it is also possible to file an appeal to the President of the Italian Republic in a longer term of 120 days.

Rulings of the regional administrative courts can be appealed before the Council of State (Consiglio di Stato).

Depending on the respective environmental sectors involved key liability may arise under administrative, criminal and/or civil law. Administrative fines or criminal penalties are imposed, according to a classification set out in law, depending on the magnitude of the offences. Civil liability may arise under specific provisions of the Italian Civil Code (Codice Civile), other special legislation, or under contractual law, depending on the type of legal transaction involved (eg, M&A transactions or purchase contracts). Although Italy recognises the polluter pays principle, in practice this principle is not always complied with. Therefore, liability may also arise for landowners that do not classify as operators or polluters. In general, case law is rapidly evolving, requiring a case-by-case analysis of each instance of liability.

Generally, according to the polluter pays principle, the responsibility for remedial operations lies with the subject responsible for the contamination. The liability principle also applies to “historic contamination” (ie, contaminations existing prior to 29 April 2006). An “innocent” owner is not obliged to carry out remedial works, but is, nevertheless, obliged to give notification and to take preventive measures. Some recent case law has set forth further obligations. In addition, an “innocent” owner may be obliged to reimburse the expenses incurred in carrying out the remediation works by the competent authority, up to the amount of the increase in value of the land, if the subject responsible for the contamination cannot be identified or does not carry out the necessary remedial works. Although Italy recognises the polluter pays principle, in practice this principle is not always complied with. By way of example, building permits are often only granted after remediation works are carried out, obliging the applicant to carry out remedial works even if they have not caused the contamination. Therefore in practice, the polluter pays principle does not always offer enough protection.

For key types of liability in general, please see 4.1 Key Types of Liability, and for a more detailed discussion, see the following: 6. Corporate Liability, 7. Personal Liability, 8. Lender Liability, and 9. Civil Liability.

The conditions and limits of these types of liability depend not only on the specific regulatory provision applicable from time to time, but also on the specific case. The same applies to the key defences (see also 10. Contractual Agreements).

Without prejudice to liability of directors, employees and shareholders, as discussed below, Italy provides for corporate liability under Legislative Decree No 231/2001, which regards crimes committed or attempted by directors or employees of a corporate entity, in the interest or to the advantage of the entity of which they are a part. The decree includes crimes related to environmental wrongdoings, such as “environmental pollution” (Article 452 bis of the Criminal Code) and “environmental disaster” (Article 452 ter). Under certain conditions, a legal entity may be exempted from liability, for example, if it adopted and implemented an organisational model prior to the commission of the offence. In general, case law is rapidly evolving, and a case-by-case analysis is always required.

Environmental liability of shareholders follows the general principles of Italian company law. Generally, shareholders of limited liability companies are not liable for the actions of the company itself. There are cases where their liability can be assessed (by piercing the corporate veil) if:

• they have taken on a de facto managerial role in the company; or
• they have interfered in individual acts or abused powers of direction and coordination, in the case of a majority shareholder.

According to case law, anyone managing the company in the absence of investiture is considered a de facto administrator. In respect of environmental liability of a parent company, in general, the holding and the controlled company are two separate legal entities except for limited cases set out in law (Article 2497, Civil Code), or if the subsidiary has no autonomy with regard to decision-making. The liability regime of the parent company applies if the parent company plays a controlling and co-ordinating role pursuant to Article 2497 of the Civil Code. If the parent company has instructed its subsidiary to perform acts or transactions that have compromised the integrity of the company’s assets in violation of the ordinary principles of proper administration, it will be liable to creditors and other shareholders for the damage to the assets. Case law is, however, rapidly evolving in this sector.

When representing the governing body of a company, directors will have direct environmental liability, unless they have properly delegated environmental liability by proxy (so-called delega ambientale). The criteria and formalities for a valid delega ambientale are set out in case law. The contents of a delega ambientale need to be evaluated on a case-by-case basis, also taking into consideration the respective business.

See 10.2 Environmental Insurance.

In Italy, lenders are generally not liable for violations of environmental laws by borrowers. Liability may arise where lenders have interfered in the decisions of borrowers, by actions or omissions of due conduct, such as to cause the environmental violation, damage or pollution. In case lenders were to become, due to securities granted, owners of the respective plot of land or business, special liabilities may arise (see 4.1 Key Types of Liability, 5.1 Liability for Historical Environmental Incidents or Damage and 9.4 Landmark Cases).

Before investing or taking action, lenders should, in the first instance, carry out an accurate legal and technical due diligence. In the second instance, lenders should seek appropriate contractual guarantees. In the third instance, they should refrain from any actions which may be classified as direct involvement of the lender in the misconduct. In general, it is recommended that a case-by-case analysis is carried out due to the fact that case law is rapidly evolving.

Italian civil law differentiates between remedies under tort law and under contractual law. Under tort law, which also applies to environmental damage, the relevant provisions are set out in Articles 2043 and following of the Italian Civil Code. Contractual remedies depend on the type of contract entered into by the parties. However, given that remedies provided by law are not always satisfactory, it is common to include specific clauses which deal with these matters in contracts. Environmental indemnities, which are increasingly being used in Italy, represent an effective means for reducing the buyer’s financial exposure by allowing them to claim from the seller costs and damages incurred, or even to govern the procedures relating to the clearing of environmental liabilities. Depending on the type of transaction chosen under Italian law, in general terms and except for in very limited cases, the payment – between the parties to an M&A transaction – of an agreed environmental indemnity, does not limit potential environment-related liabilities arising under public law vis-à-vis the competent public authorities.

In addition, a civil liability system is outlined in Part VI of the Code, providing for various instruments to guarantee its effectiveness, such as the prevention and restoration measures contained in articles 304 and 305 of the Code, the ministerial order pursuant to Articles 312 and 313 of the Code, and the action for damages in a specific form before a civil or criminal court (where the MASE is a civil party) pursuant to Article 312 of the Code. 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.

Italian legislation does not foresee punitive damages as known in other jurisdictions. Under Italian tort law, the payment of damages is compensatory in 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 system (Sezioni Unite No 16601/2017).

Law No 31/2019 regulates the instrument of class actions and was promulgated in light of former legislation not proving to be effective. Entities entitled to bring a class action are non-profit organisations or associations, whose statutory objectives 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. Class action may be brought against companies or bodies that manage public services or public utilities, in relation to acts carried out in the performance of their respective activities.

Furthermore, legislative decree No 198/2009 allows an action to be brought with regard to the efficiency of public administrations and public service concessionaires.

The aforesaid “public” collective actions, however, exclude the possibility of obtaining compensation 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, Code). Other public or private subjects are only entitled to act in the event of damage of a different nature (ie, affecting their personal legal position - such as health, property and economic activities as a result of actions or facts which have caused damage to the environment).

Bearing in mind that under Italian law criminal action for conduct which constitutes a crime, can only be exercised by the judicial authority, it is possible - for a subject 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 the crime. However, compensation for damages would aim at restoring the assets of the damaged or injured party, eliminating the consequences of the damage suffered, but not including punitive damages.

Rulings on reclamation often involve profiles relating to protection against environmental damage.

Council of State, Judgment No 1630/2022

The Council of State held that the provisions on environmental damage within the Code prove that liability for environmental damage classifies as a subjective, non-contractual liability (pursuant to Article 2043 of the Civil Code). Thus, the principles that regulate civil liability assign centrality to the need 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 (reclamation and emergency safety measures) regardless of both the subjective element (wilful misconduct or negligence) and the objective element (aetiological link). Consequently, the remediation and safety measures, reclamation and restoration (which constitute forms of primary remediation of environmental damage) are borne exclusively by the person to whom the contamination can be attributed, at least from an objective point of view. It is therefore not possible to configure automatically, objectively, by the position or by the actions of others, a liability on the part of the owner of the polluted area and, therefore, the obligation to decontaminate by the mere fact of holding that position, where their culpable causal contribution to the environmental damage found cannot be demonstrated.

Lombardy Regional Administrative Court, Milan, Judgment No 2236/2021

This judgment regarded the identification of the party responsible for the contamination. The plaintiff company was identified as jointly responsible for the contamination together with another company. The regional court held that the identification of the party responsible for the contamination can also be based on circumstantial elements and proof can also be given indirectly through the use of simple presumptions. When the administration provides sufficient circumstantial evidence to presumptively prove that the contamination is attributable to a specific person, the burden of proof for exculpating passes on the latter. To this end, it is not sufficient to state generically the doubt of a possible liability of third parties or external events, but it is necessary to prove the real dynamics of the events and to indicate the specific factor that caused the contamination. The regional court therefore held that it was correct to attribute joint responsibility to the two companies, both of which carried out waste treatment activities in the area. In particular, the court stated that in the present case the joint liability arose from the high probability that both parties had contributed to the contamination of the site. With reference to the criterion for attributing liability, the court held that the administration had correctly applied the rule set forth in Article 2055 of the Civil Code, according to which if more than one person is liable for the damage, they are all jointly and severally liable to pay compensation for the damage. It also stated that the seriousness of the respective fault and the extent of the consequences resulting from each person's conduct were relevant - where identifiable - only for the purpose of determining the share of recourse between the joint debtors. An appeal, not yet decided, has been lodged against the judgment. Judgment No 2236/2021 recalls Council of State ruling No 172/2021, which resolved in similar terms the issue of the partial or joint nature of the reclamation obligation. The judgment specified that the precautionary principle requires that the reclamation order be carried out promptly, avoiding uncertainties or delays, as a result of which environmental damage could increase.

Council of State, Judgment No 3424 of 2022

This judgment addresses, among other things, the possibility of imposing emergency clean-up measures on the owner not responsible for the contamination. The judgment states that the impossibility of imposing the clean-up measures on said owner is justified in light of the sanctioning nature of this measure. Differently, as to emergency safety measures (like preventive measures), these do not have a sanctioning nature. They rather constitute damage prevention and are imposed by the precautionary principle and preventive 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.

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 differing 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. Moreover, the judgment stated that the abandonment of waste and, in general, pollution, should be qualified as “external diseconomies” generated by the business activity. Therefore, the costs arising from such externalities must be borne by the mass of the entrepreneur'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.

Council of State, Judgment No 3575 of 2021

The judges clarified the division of competencies between the MITE (now the MASE) and the peripheral administrations (provinces) with reference to the identification of the party responsible for the contamination and the imposition of remediation actions. The provincial authorities are responsible for the activities preceding and preparatory to the reclamation activity in the strict sense (identification of the party responsible for the contamination, and warning the identified party responsible to take action, including any prevention and emergency safety measures). Once the reclamation procedure has been started, the MASE is exclusively responsible for carrying out this procedure.

It is possible to negotiate instruments capable of transferring to the purchaser - merely on an economic level - the relative consequences arising from any liability for incidental damage or breaches of law. However, such contractual clauses have fully binding effects only between the parties, and are not binding on the authorities or third parties. Such contractual agreements will not influence any obligations under public law. Therefore, environmental indemnities agreed, for example, within M&A transactions, cannot limit, vis-à-vis the competent public authorities, the environmental liabilities of the target company. However, environmental indemnities, if properly drafted, may represent an effective means for reducing the buyer’s financial exposure by allowing them to claim from the seller costs and damages incurred, or even to govern the procedures relating to the clearing of environmental liabilities. Generally, except for very limited cases, the payment of an environmental indemnity, agreed between the parties of an M&A transaction, does not limit environmental liabilities under public law.

Insurance products for covering damage by pollution are available in the Italian market (eg, Pool Ambiente, an association of insurers and reinsurers). However, insurance products are also offered by companies not forming part of the Pool Ambiente. The insurance products depend on the type of activity to be insured, the “price” the party requesting coverage is willing to pay, and the respective negotiation positions. It is strongly advisable to evaluate the content and the degree of the respective insurance products on a case-by-case basis (eg, remediation costs, environmental damage, legal and technical consulting, and current or future legislations). The request for environmental insurance is increasing. Businesses obtaining ISO 14001 Certification or EU Eco-Management and Audit Scheme (EMAS) registration pay reduced insurance fees. 

In certain cases national and regional laws require certain enterprises, such as waste management companies and IPPC activities, which are likely to cause an environmental impact, to provide guarantees for an amount calculated on the basis of pre-set criteria.

Italy has a body of legislation dedicated to the protection of compensation against environmental damage. In addition to these rules, there are specific regulations in the Italian legal system on the reclamation of contaminated sites. Land reclamation is embodied in measures that constitute primary forms of compensation for environmental damage. The “core” of Italy’s brownfields legislation is set out in Part IV of the Code. In addition, depending on the type of site, as well as on the remediation target, the Code and some Ministerial Decrees (eg, DM 31/2015, DM 46/2019) provide for a rather wide variety of procedures. Additional legislation exists at national and local levels. Under some local legislation, a subject planning to develop a site might be required to investigate potential soil and groundwater contamination prior to developing that site. In a case of industrial installation subject to IPPC legislation, Italian legislation requires a baseline report to be carried out in order to investigate the status of the soil and groundwater. The rules on reclamation are in line with both national and European legislation on environmental damage. There have been a number of interventions by the European Court of Justice on this issue.

Italy, being part of the EU, implements the main topics regulated by EU Directives.

Concrete measures to combat climate change include the implementation of EU regulations on the European Emissions Trading Scheme (ETS) and the “Effort Sharing” Directive applying to non-ETS sectors (eg, transport and agriculture). 

The National Integrated Energy and Climate Plan (PNIEC) sets out the guidelines to be followed and the objectives to be achieved in the field of energy and environmental protection, for the period 2021-2030. 

Further to incentive schemes for energy efficiency, a multitude of mechanisms provide incentives for the installation of plants for the production of renewable energy. These incentive mechanisms depend, among other things, on the type of renewable energy source, the size of the plant, and the date of construction. Details of such incentive schemes are often set forth by ministerial decrees as well as by guidelines issued by the Gestore dei Servizi Elettrici(GSE). 

Italian legislation also considers the reduction of CO₂ levels when operating motor cars, buses or trucks for the transportation of people and goods. 

The ETS, set out in Directive (EU) 2018/410 (transposed by Legislative Decree No 47/2020), introduces important changes relative to the previous Directive 2003/87/EC and accelerates the withdrawal of emission allowances available on the market. Under the cap-and-trade mechanism, emission limits are allocated to each installation or aircraft (CO₂ allowances in tonnes). If actual emissions exceed the allocated allowances, the operator must buy allowances to surrender to cover its emissions.

At national level, Law No 257/1992 plays a central role, together with Ministerial Decree of 6 September 1994, which set requirements for civil or commercial and industrial building structures, privately owned properties and/or those open to the public. 

The presence of asbestos containing materials (ACM) must be notified by owners and/or managers of the activities that take place therein, to the local health authorities. Designation of a person responsible for the control and co-ordination of all maintenance activities involving ACM is mandatory. ACM location must be documented and identified. During any event that may cause a degradation of ACM, safety measures must be complied with. Further obligations may arise depending on the state of conservation of the ACM, to be assessed by applying a so-called Degradation Index. Owners and/or managers are also obliged to provide proper information to occupiers about the presence of ACM in the building, potential hazards, and the behaviours to be adopted. There may be additional obligations at local level. An increasing variety of financial incentives for the removal of ACM are being set up.

Italy has enacted a large amount of waste legislation which makes it difficult to orientate oneself. The Code entails the central regulations (Articles 179-238 (Part IV)). Most of the details are, however, set forth in specific ministerial decrees that vary depending on the type of waste (eg, packaging, waste electrical and electronic equipment recycling, batteries and accumulators, edible waste oils, mineral waste oils, ships, vehicles, and end-of-life tyres). Further, the set of obligations also depends on the type of single treatment operations (recovery or recycling, landfilling etc). As for end-of-waste and by-products, Italy has enacted very detailed legislation. Notwithstanding the existence of national legislation, Italy lacks a nationwide level playing field.

Circumstances under which producers or consignors of waste may retain liability for waste even after it has been disposed of by a third party, need to be carefully assessed. 

Article 188 of the Code governs this liability, as well as transboundary shipments, without always providing precise boundaries, especially in light of the respective case law.

Article 188 has been interpreted extensively by criminal court decisions, sometimes far beyond the literal wording of the article.

In general, waste producers or holders are obliged to hand over such waste to duly authorised third parties, including municipal waste management operators. In some cases, however, these waste producers or holders may be entitled to directly manage such waste. If waste is handed over to duly authorised third parties other than the municipal waste management operators, liability only ceases if the waste producer or holder receives the return of the duly completed certificate (confirming the receipt of such waste) within three months after such consignment. 

“Extended producer responsibility” (EPR) is widely known and regulated under Italian national legislation, and includes the likes of packaging, electrical and electronic equipment, batteries, end-of-life vehicles, mineral waste oils, edible waste oils, tyres and PVC. In the near future, further products are likely to fall under EPR regulations. EPR legislation does not only entail take-back obligations, but also payment of environmental fees and reporting obligations. Italian EPR schemes may very much differ from one another, however by 2023, common standards shall be applied by all of them (according to Directive (EU) 851/2018). Non-compliance with obligations set out under the respective regulation governing the related EPR scheme may be sanctioned, depending on the EPR regulation specifically applicable to the respective consumer good. Over the past years, the Italian Antitrust Authority has become increasingly active in evaluating the implementation of EPR, including online marketplaces.

Italian environmental legislation provides for a wide variety of reporting obligations (eg, contaminated land, industrial plant management, waste management, and EPR). Further, reporting obligations may also arise under the respective environmental authorisation regimes. Recent legislation regulating social and environmental disclosure also imposes disclosure obligations on the subjects indicated therein (see 15.3 Corporate Disclosure Requirement).

According to Legislative Decree No 195/2005, transposing Directive 2003/4/EC, public entities (referred to in a broad sense) are required to make environmental information available to the public. Further obligations arise under Article 40 of Legislative Decree No 33/2013.

The right of access is very broad.

From a subjective point of view, anyone who requests documents entailing environmental information, has a right to be granted access, without the subject having to demonstrate an interest in them.

From an objective point of view, the notion of environmental information is broad, as such information may be contained in any material.

Anyone who wants to obtain access can file a request to the public administration, which must make the documentation available within 30 days from the date of receipt of the request or within 60 days in the case of a complex or particularly wide request.

The cases of exclusion of the right of access are exhaustively listed, and the administration is required to justify its refusal. In case of illegitimate refusal to request access, it is possible to request access to administrative remedies through the ombudsman and the administrative judge. 

Specific sector-related legislation exists requiring certain information to be made public (eg, EIAs, Environmental Strategic Assessments (ESAs) and Integrated Pollution Prevention and Control (IPPC) – see the MASE website, register of contaminated sites, national electronic register for the traceability of waste, managed directly by the MASE, or the national register of producers, within the framework of EPR).

As a general rule, companies are not required to disclose environmental information in their annual reports under Italian Civil Code. However, environmental permits often require annual reports to be submitted to the relevant public entities regarding the environmental status of the plants and compliance with the provisions included in the permit. Corporations also entrusted with environmental-related public utilities (waste management, water services, energy services) may be subject to the obligation laid down by Legislative Decree No 195/2005 (see 15.2 Public Environmental Information), insofar as access to relevant environmental information is requested by the public. Further environmental information disclosing duties on corporations is set forth in Legislative Decree No 254/2016 (NFR Decree). NFR Decree has transposed into Italian legislation the Accounting Directive (EU) 2013/34, as amended by the Non-Financial Reporting Directive (EU) 2014/95 (NFRD).

The exercise of environmental due diligences has become commonplace in Italy, starting at least from the late 1990s. Currently, due diligences are widely accepted and conducted in Italy in relation to environmental matters. The extent of the due diligence, to be carried out by technicians as well as by lawyers, depends not only on the nature of the asset being sold, but also on the type of transaction. In environmental matters, it is highly recommended to plan enough time for the due diligence exercise. In order to provide proper safeguards, the due diligence should not be limited to documentary aspects, but also involve on-site visits and access to publicly existing information (data access).

In general, disclosing all environmental information to a purchaser is not required by specific statutory provisions (under public law). However, failure to notify situations that do not meet environmental standards may give rise, depending on the nature of the asset being sold, to pre-contractual and contractual liability under the general principle of good faith (under civil law). Disclosure obligations towards a purchaser should be evaluated, on a case-by-case basis, depending on the concrete circumstances (eg, agreements signed between the parties, and type of environmental information) in order to minimise the risk of subsequent claims for damages.

The Italian environmental taxation regime is based upon the polluter pays principle as well as on taxation constitutional principles. Italian legislation provides for a wide variety of environmental taxes, both at national and local levels. At a national level, for example, Italy has a carbon tax, which aims to reduce CO₂ emissions. It also applies taxes on products aimed at discouraging the production and/or consumption of goods that generate pollution during their entire life cycle. The 2020 Budget Act has recently introduced a plastic tax (ie, a tax on consumption of single-use plastic products), but its enforcement has been repeatedly delayed. The 2022 Budget Act has deferred its application to 1 January 2023. Some taxation, such as on environmental services, aims to compensate them for their costs. Such local taxes, often subject to the regulatory powers of a national independent authority for environmental public utilities (ARERA) are intended to finance the collection and disposal of waste. In particular, taxes for urban waste collection and disposal are going to be converted into tariffs for the public or private entities entrusted with the service. Furthermore, though not classified as taxes, Italian legislation on EPR also provides for a wide variety of environmental fees (see 15.3 Corporate Disclosure Requirement).