On 19 May 2015, the Parliament gave final approval to the new "Provisions related to crimes against the environment".
The legislature has moved on three fronts:
- Setting out a new separate chapter in the Penal Code, introducing new cimes against the environment;
- Changing the Environmental Code, providing for the possibility of the etinction of some offenses related to environmental protection;
- Extending the list of predicate crimes for the imposition of administrative iability of company pursuant to Legislative Decree 231/2001.
What to do?
- Know the new offenses;
- Know how you can remedy the offenses, reducing or excluding the criminal consequences;
- Adjust your organizational model.
- only with knowledge and awareness can you avoid or at least limit the risks of misconduct and criminal activity;
- in the case of an offense, it is essential to be ready to react quickly in order to contain the risk, and prevent or at least minimize the criminal consequences;
- in the case of an offense, the Company can better defend its position and reduce the risk of sanctions pursuant to Legislative Decree 231/2001 - both pecuniary and interdictive - only with a current and up-to-date organizational model, taking into account the latest developments.
Below we concern ourselves with the main innovations introduced with the law in question. In particular, to become familiar with the issues, we look at:
- the new offenses introduced by the legislature, focusing on the conduct characterized as anti-juridical;
- the modifications to Legislative Decree 231/2001;
- active repentance (for crimes) and the procedure to extinguish the offense (formisdemeanors);
- first critical interpretations and practical / operational implications.
What are the new offenses?
The principle offenses introduced are:
- the offense of environmental pollution, meaning the impairment or significant and measurable deterioration of the previous state: (i) of the water or air, or extended or significant portions of the soil or subsoil; or (ii) of an ecosystem, biodiversity (also agrarian) flora or fauna;
- the offense of environmental disaster, or (i) an irreversible alteration to the equilibrium of an ecosystem; (ii) an alteration to the equilibrium of an ecosystem whose elimination is particularly costly and achievable only with exceptional measures; or (iii) the offense of injury to public safety determined with reference to the relevance of the extent of the compromise to the environment or its harmful effects, to the number of persons both injured and exposed to danger;
- the offense of impeding controls, that includes denying or hindering access to places, or artificially changing the condition of premises, to thwart or circumvent the supervision and control of environmental and occupational health and safety, or to affect outcomes;
- the offense of failure to decontaminate, as a breach of the commitments of remediation, restoration and recovery of locations; this obligation of intervention can be derived directly from the law, or the order of a court or public authority.
Are there further consequences?
In case of a conviction for a crime against environmental protection, the judge shall always order the confiscation of those things constituting products or profits of the crime or that aided in its commission (or their equivalents).
Moreover, the judge must order the recovery and, where technically possible, the restoration of the condition of the premises, placing the execution of these activities dependent on the condemned and on the juridical persons required to pay financial penalties in the event of insolvency of the first.
Furthermore, the aforesaid condemned is barred from contracting with the public administration.
Finally, the list of offenses that entail liability of legal persons resulting from a crime has been extended, pursuant to Legislative Decree n. 231/2001. In particular, significant pecuniary sanctionsare provided for the commission of the following crimes against the environment:
- environmental pollution (up to around Euro 930 k), environmental disaster (up to around Euro 1.3 M), culpable environmental pollution and environmental disaster (up to around Euro 800 k);
- aggravated association with delinquents (common and mafia) (up to around Euro 1.6 M), trafficking and abandonment of highly radioactive materials (up to around Euro 930 k);
- killing, destruction, catching, taking, and possession of specimens of protected wild animal and vegetable species (up to around Euro 400 k);
- destruction or deterioration of habitats within a protected site (up to around Euro 400 k).
In case of conviction for environmental pollution or environmental disaster, the application of interdictive sanctions are also provided for, such as: (i) prohibition of performance of the activity; (ii) suspension or revocation of authorizations, licenses and concessions; (iii) prohibition on contracting with the PA; (iv) exclusion from benefits, loans, grants or subsidies possible revocation of those already granted; (v) prohibition on advertising goods and services.
Is it possible to extinguish or remediate the offense?
To answer this question, it is necessary to distinguish among crimes and misdemeanors.
With regard to environmental crimes, the principle of so-called active repentance has been introduced. Whoever works to prevent the illegal activity from resulting in further consequences or provides for the safety, decontamination and, where possible, restoration of the condition of affected places may benefit from a reduction of penalty from half to two-thirds. To enjoy this benefit, the remediation activities must be "concrete" and "before the declaration of the opening of the trial of first instance".
With reference to misdemeanors, an extinction procedure is provided for (that is not applicable to proceedings already under way). This procedure is connected to the fulfillment of a series of prescriptions and the payment of a sum of money on the part of the responsible party (provided that the violation has not caused any harm or danger to the environmental, urban or landscape conservation resources). The prescriptions are given by the surveillance authority and aim at the removal of the offense in a period not exceeding the time technically necessary. Extinction follows the dismissal of charges by the prosecutor. In case of a delay in performance, or performance in a way different than that prescribed, it is still possible to benefit from a reduced offer. The process seems to be inspired by that provided by labor and social legislation, under which inspectors impart prescriptions to eliminate violations of criminal law. This parallelism could lead to a debate about the nature of the legal requirements and the subsequent identification of the competent court in case of disputes (i.e., whether jurisdiction lies with the criminal or administrative court).
Initial critical reactions
Statutes of limitations: in the technical-juridical plan, one of the most relevant new elements is surely the provision to double the statute of limitations for new crimes against the environment, as a sign of the will of the legislature to ensure genuine and effective prosecution of environmental crimes in spite of the well-known problems of the slowness of Italian justice.
The offense of failure to decontaminate: the formulation of the offense of failure to restore is not crystal clear. It is not clear, in particular, if the crime is attributable only to the polluter or also to the proprietor to whom a request for restoration has been sent (even if the latter is not responsible for the pollution). The differentiation between these two subjects has been rec3ently confirmed by the European Court of Justice, which has signaled, on this point, the persistence of the principle “polluter pays”. Presently, Italian law requires the owner of a plot to start remediation and/or restoration only if directly responsible for the pollution; otherwise, it provides a limited financial liability, with the obligation to repay the costs of the actions taken by the competent authority within the limit of the increase in value of the site after the execution of these actions - notwithstanding the duty to “implement preventive measures”. In accordance with the principles of legality, culpability and proportionality, it would be appropriate to clarify that the “preventive measures” – defined as “initiatives to counter an event, act or omission that has created an imminent threat to health or the environment, understood as a sufficient likelihood that damage will occur from the health or the environment in the near future, to prevent or minimize the materialization of that threat” - do not fall within the criminal case to the extent not attributable “to the reclamation, restoration or recovery of the locations.” The clarification would be particularly useful in order to prevent an operator (e.g., an owner not responsible for the pollution) from being placed in difficulty by an illegitimate order from an authority. The new penal provision, in fact, does not expressly identify the agent as a polluter, but as forced to decontaminate (by law, by court order, or by order of the authority). Thus emerges the risk that in the event of an order of restoration - in violation of the Community principle “polluter pays” - received by a person not responsible for the pollution, the latter could be held criminally responsible. In order to limit this risk, the recipient of the measure should promptly bring the order for remediation before the administrative judge, without relying only on defense in a criminal court, so as to ask for the disapplication of the unlawful measure. Note that the power to set aside, albeit sometimes exercised by the criminal courts, presents a great deal of uncertainty and the decision of a criminal court is difficult to predict.
Criminal liability: the wider criminalization of polluters, if desirable against organized crime, is likely to produce the opposite effect on operators that have nothing to do with the phenomenon of the eco-mafia: in particular as regards the existence of historical pollution present in industrial sites operating before the environmental legislation. In this respect, it would be useful to clearly establish non-punishment (and not the mere reductions of sentences) for those who voluntarily report pollution and proceed with its decontamination, including in relation to the crime of impeding controls. Moreover, it would be easier to standardize the procedure provided by the Environmental Code for the extinction of misdemeanors and the active repentance of the crimes provided for in the Criminal Code.