6. Historical Pollution and Corporate Liability in the Italian Criminal Law

On Legislative Decree 231/2001, see among others De Maglie (2002), Bassi and Epidendio (2006), De Vero (2008), Presutti et al. (2008), Cadoppi et al. (2010) and Lattanzi (2010).

Law 300/2000 ratifies and implements a series of international acts prepared on the basis of Article K.3 of the Treaty of the European Union. It also contains the delegation to the government on regulations regarding the administrative liability of legal persons and entities without legal personality. Art. 11, Para. 1, Lett. (d) of Law 300/2000 provided for corporate liability related to the commission of crimes in the field of environmental and land protection listed therein.

See §12 of the Report accompanying Legislative Decree 231/2001. The Italian Government chose to limit the exercise of the delegation to the list of offences included in the Conventions ratified by Law 300/2000 (and therefore to the crimes of bribery and fraud), and it considered that a period of time was to be provided for the companies to assimilate the new type of liability before extending it to other types of offences of high impact on the business world; see Bricchetti and Pistorelli (2011, p. 48).

According to the prevalent interpretation among criminal law scholars, the principle of “legal certainty” (tassatività) concerns the technique of formulating the offences and expresses (a) the duty of the legislator to provide as accurate description as possible of the offences and (b) the duty of the judges to provide an interpretation that reflects the facts as they are described by the law (Mantovani 2013, p. 62; Fiandaca and Musco 2014, p. 85 ff.; Marinucci and Dolcini 2015, p. 71 ff.). The principle of “typicality” (tipicità) expresses the need under criminal law to identify each offence through a legislative description of a human fact that should be offensive (Palazzo 2016, p. 81). On these principles, with reference to corporate liability, see Lottini (2007a, p. 2294), Brunelli (2008a, p. 85 ff.), De Vero (2008, p. 137 ff.), Di Giovine (2010, p. 47 ff.) and Scoletta (2014, p. 885 ff.).

Pursuant to Art. 192, Para. 4 of Legislative Decree 152/2006, if directors and representatives of a legal person are responsible for the illegal act under and for the purposes of Para. 3, the legal person and the persons surrogated to the rights of the legal person itself will be jointly and severally liable, pursuant to the provisions of Legislative Decree of 8 June 2001, n. 231, concerning the liability of legal persons, companies, and associations. According to some scholars, Testo Unico Ambiente (TUA) turned out to be a missed opportunity to extend corporate liability for breaches in environmental matters: see Arena and Cassano (2007, p. 34) and Romolotti (2007, p. 38).

Art. 25-undecies of Legislative Decree 231/2001, in its original wording, recalls among the predicate offences the two new misdemeanours provided for in Art. 727-bis of the Italian penal code (killing, destroying, capturing, removing, or holding protected wild animal or plant species) and Art. 733-bis of the Italian penal code (destruction or deterioration of habitat within a protected site); some crimes on international trade in protected fauna and plant species (Law 150/1992); crimes on production and use of ozone-depleting substances (Law 549/1993); crimes related to ship-source pollution (Law 202/2007); and finally, and most significantly, misdemeanours on pollution of water, soil, and air are identified and included among the predicate offences of corporate liability provided for by Testo Unico Ambiente.

In accordance with the definition adopted by the present research, the offences listed in Testo Unico Ambiente, identified in order to analyse the phenomenon of historical pollution in relation to corporate liability, could all cause pollution of sites and natural resources with effects emerging a long time after the moment at which the conduct was carried out.

In more detail, the offences to be examined provided for in Art. 25-undecies of Legislative Decree 231/2001 are the following: Art. 137, Paras. 2 and 3 TUA: Discharge of industrial waste water containing hazardous substances without the required authorization and discharge of the same substances in violation of the requirements or authorization of the competent Authority; Art. 137, Para. 5 TUA: Discharge of industrial waste water over the limits; Art. 137, Para. 11 TUA: Failure to observe prohibitions on discharges into the soil, subsoil and underground water; Art. 256, Paras. 1 and 3 TUA: Activities of management of waste and unauthorized construction or operation of unauthorized landfill; Art. 260 TUA: Organized activities for illegal trafficking; Art. 279, Para. 5 TUA: Exceeding the limit values of air quality provided for by the legislation in force; Art. 257, Paras. 1 and 2 TUA: Sites remediation.

For further details on this issue, see Chap. 4, Sect. I.6; see also Ramacci (2012a), Forzati (2015), Scaroina (2015) and Ruga Riva (2016, p. 283 ff.).

The Law of 22 May 2015, n. 68 (published in the Official Gazette No. 122 of 28 May 2015) introduced into the Italian system the new Title VI-bis of the penal code, entitled “Crimes against the environment” (Dei delitti contro l’ambiente). For an overview of the main innovations and for a comment on the reform, see Chap. 4, Sect. I.7; and see among others Masera (2015), Ramacci (2015), Ruga Riva (2015) and Siracusa (2015); in particular, with reference to corporate liability, see Amarelli (2016).

Legal doctrine and jurisprudence have discussed the nature of this liability at length. It may be held to be administrative liability, according to the wording of Legislative Decree 231/2001 (Marinucci 2002, p. 1203 ff.; Romano 2002, p. 398 ff.; Palazzo 2016, p. 56 ff.), or criminal liability, in light of the fact that it is established by a criminal court and due to the afflictive nature of the sanctions (ex multis, Paliero 2001, p. 845; Carmona 2002, p. 208; Fiorella 2003, p. 85 ff.; Manna 2003, p. 1103; De Vero 2008, p. 323; De Simone 2012, p. 21). The thesis of the “tertium genus” of liability is supported by Pelissero (2007, p. 867) and Di Giovine (2010, p. 14). The Italian Supreme Court in its more extended composition (Cassazione a Sezioni Unite) adhered to the latter approach in its judgement of 24 April 2014 (filed on 18 September 2014), No. 38343, Thyssenkrupp, rv. 261112.

Here there is a clear reference to the content of Art. 1 of the Italian penal code concerning natural persons, which states that “no one may be punished for an act which is not expressly designated as an offense by law, nor with punishments which are not thereby prescribed”. This norm, as well as the further norms of the Italian penal code reported, comes from the translation provided for by Wise (1978).

Scholars have criticized courts’ decisions that have held corporations punishable in the case of fraud against the State (Art. 640-bis of the Italian penal code) where the offence was committed before and the profit achieved after the entry into force of Decree 231; similarly, they have disputed that interdictory sanctions can be applied to the corporation in consideration also of profits achieved before the entry into force of the Decree for the purposes of calculating the entity of the profit: see Pistorelli (2006, p. 132 ff.) and Brunelli (2008a, p. 87).

The so-called reato abituale is a crime in which the law requires the reiteration of a series of homogeneous actions or omissions, even after a long interval of time (Mantovani 2013, p. 511 ff.; Marinucci and Dolcini 2015, p. 245 f.).

In this respect, it should be also clarified that, in case individual conducts do already constitute separate criminal offences and the new law simply introduces the new “habitual crime” (the so-called reato abituale improprio), scholars come to a different conclusion. Without prejudging the necessary occurrence of a “minimum set”, in such an event the previous conducts assume relevance and the occurrence of a single act under the new law could also be sufficient for the application of that law, even if it is more severe: Marinucci and Dolcini (2015, p. 246); see also Romano (2004, p. 348) and Valsecchi (2009, p. 1407 f.); conversely, Petrone (1996, p. 204) states that it should be determined which is the most favourable law. On these issues, see Sect. 3.

Cass. Pen., Sec. VI, 20 December 2013 (filed on 21 January 2014), No. 3635, Riva F.i.r.e. S.p.A., rv. 257789. For a comment on this judgement, see Piergallini (2014) and Trinchera (2014).

In this case, the crimes (provided for by the penal code, and not included among the predicate offences of Decree 231) were the so-called unnominated disaster, the intentional removal or omission of precautions against industrial accidents, and the poisoning of water or foodstuffs.

The Supreme Court seems to have “softened” its position with a later decision (Cass. Pen., Sec. III, 14 October 2015, filed on 23 November 2015, No. 46162, published on www.​iusexplorer.​it). The case concerns a company charged—with reference to Art. 416 of the penal code and Arts. 3–4 of Law 146/2006—with organizing, promoting, and being part of a transnational criminal conspiracy aimed at committing an undetermined number of crimes involving tax evasion and fraud. It is to be noted that the crime of association (also the transnational one) is provided as a predicate offence for corporate liability, while tax crimes are not included in the catalogue. The Supreme Court, in its ruling mentioned above, states that the preventive seizure aimed at the confiscation for the equivalent was properly applied in relation to the crime of association and that the profit gained was to be identified as the profit resulting from the offences of tax fraud included in the programme of the transnational criminal organization. This interpretation does not violate Art. 2 of Legislative Decree 231/2001 (principle of legality), in the sense that a profit gained through fiscal offences—not listed in the closed catalogue provided for by the Decree—would be subject to seizure for equivalent. As a matter of fact, the profit, meant as the set of benefits derived from the crime, may also consist of the complex of the benefits resulting directly from the set of the organisation-related crimes (tax crimes in this case), from which the offence of criminal conspiracy is completely independent. Ultimately, the Supreme Court does not consider the preventive seizure in relation to offences excluded from the catalogue of Legislative Decree 231/2001 admissible as such, but it considers the measure applicable in relation to tax crimes only because the profit resulting from tax offences is the benefit for which the crime of association was conceived.

The rule refers, even in this case, both to the succession of criminal laws related to the predicate offence and to the succession of laws concerning the administrative infringement depending on crimes: see De Vero (2008, p. 140).

On this, see also Chap. 4, Sect. I.4.

A crime is instantaneous when the offence is instantaneous, as it arises and ends at the same time, and may not extend over time; a persisting crime is a crime for which the law requires that the offence does last over time due to the wilful conduct of the agent (Mantovani 2013, p. 438). As regards habitual crime, see n. 16 above.

For a more detailed examination of these issues, see Chap. 4, Sects. I.5–I.6.

Once again, the recent Ilva affair seems exemplary: the public prosecutor used the crime of association (Art. 24-ter of Legislative Decree 231/2001) to prosecute violations in environmental matters not provided among the predicate offences of corporate liability: see Sect. 2.

Cass. Pen., Sezioni Unite, 5 October 1994 (filed on 28 December 1994) No. 12753, Zaccarelli, rv. 199385. For a comment, see Paone (1995).

Cass. Pen., Sec. III, 14 April 2015 (filed on 30 September 2015) No. 39373, published on www.​penalecontempora​neo.​it. For a comment, see Perini (2015).

On the scope of the new rules and in particular on the crime of environmental disaster, see Chap. 4, Sect. I.7.

Cass. Pen., sec. I, 19 November 2014 (filed on 23 February 2015) No. 7941, Schmidheiny, rv. 262789, with the comment of Zirulia (2015). The Eternit trial concerns the occurrence of an environmental disaster caused by the dispersion of asbestos over time, which took place in Italy, involving an undefined number of people (plants’ workers and population living close to the four sites of Cavagnolo, Casale Monferrato, Bagnoli, and Rubiera). The defendants (two corporate managers who led the company until 1986, when it went bankrupt), accused of having caused a threat to the safety and health of the population, were convicted both by the first instance Court and on appeal. The key legal point is the identification of the moment in which the crime of “unnominated disaster” can be considered as having been committed, and so the moment in which the period of limitation starts to run. In this context, different interpretations of the structure of the crime arose. The Prosecutors qualified the disaster as a persisting offence represented by the ongoing situation of pollution; the conducts of the defendants were considered still in progress too, in the form of failure to cooperate in sites remediation. The Court of first instance, with a different approach, stated that the crime was not time-barred because the offence continues as long as the event of pollution persists, despite the absence of active or omissive conducts of the defendants. The Court of Appeal, with another description, stated that the legal test for the disaster offence should include not only the environmental pollution, but also the increase of asbestos-related diseases within the population. On the basis of the incidence of such diseases in the areas surrounding the plants, the Court found that the disaster was far from being time-barred. These decisions were all overturned by the Supreme Court, which ruled that the crime had been time-barred since the beginning of the trial: the offence of disaster should be considered as committed when the defendants’ conduct posing a threat to public safety is interrupted (in the Eternit case, the activity of the plants stopped in 1986 and so the Supreme Court referred to that moment to determine that the period of limitation had expired). For further details, see also Chap. 5, Sect. I.5.

For the administrative provisions concerning remediation, see Chap. 7.

In support of this thesis, Ruga Riva (2012) notes that punishment limits established by law are unique (fine up to two hundred and fifty quotas): should this provision also cover the offence of failure to communicate the potentially polluting event, it would end up unreasonably merging conducts with a different disvalue under the same sanction (as shown, indeed, by the differentiated penalties provided for individuals). On the whole, the interpretation most consistent with the principle of legality, in the case of possible divergent interpretations, should impose the strict reading which provides all possible guarantees: therefore, according to the author, the crime of failed communication is not among those included in the catalogue of predicate crimes.

See Cass. Pen., Sec. III, 13 April 2010 (filed on 9 June 2010) No. 22006, Mazzocco, published on www.​lexambiente.​it, and also most scholars: for example, according to Di Landro (2014, p. 26), this view is supported by the formalistic criteria of the nomen iuris and of the so-called topographic location of the provisions (i.e. both provisions are included in the same Article); it is also supported by the structural principium individuationis of circumstances, with reference to the provision of Para. 2, which is described through a referral to the offence described in Para. 1 (and not autonomously). If Paras. 1 and 2 of Art. 257 TUA were reconstructed not as autonomous offences, but, respectively, as a simple (Para. 1) and an aggravated (Para. 2) type of the same offence, it could be concluded that the remediation could extinguish this offence regardless of the nature (dangerous or not) of the pollutants. However, there is also a contrary opinion according to which the best solution is instead the one that configures the case of pollution by hazardous substances as an autonomous offence: see Cass. Pen., Sec. III, 14 March 2007 (filed on 9 July 2007) No. 26479, Magni, rv. 237134.

Cass. Pen., Sec. III, 16 March 2011 (filed on 11 May 2011) No. 18503, Comit case, rv. 250143. For comments on this decision, see Ariolli and Cappai (2011, p. 4405 ff.) and Fasani (2011, p. 809 ff.). Paone (2012, p. 523) agrees with this judgment: the obligation to communicate on interested subjects who are not responsible lies in Art. 245 TUA and not in Art. 242 TUA. Therefore, if in Art. 257 TUA the legislator had intended to make a reference also to those who caused the pollution, he would have included those who have that feature among the active subjects of the offence; or he would have referred to Art. 245 TUA to detect the different punishable obligation to communicate. This judgement is analysed in Chap. 5, Sect. I.6.

Cass. Pen., Sec. III, 28 April 2000 (filed on 7 June 2000) No. 1783, Pizzuti, rv. 216585. For comments, see Prati (2001) and also Brunelli (2002, p. 241).

This approach began with the following judgement: Cass. Pen., Sec. III, 29 November 2006 (filed on 8 March 2007) No. 9794, Montigiani, published on www.​lexambiente.​it; for comments, see Vergine (2009). This approach was later confirmed: see Cass. Pen., Sec. III, 14 March 2007 (filed on 9 July 2007) No. 26479, Magni, rv. 237134 and Cass. Pen., Sec. III, 13 April 2010 (filed on 9 June 2010) No. 22006, Mazzocco, published on www.​lexambiente.​it.

A third interpretation is offered by Di Landro (2014, p. 25), who deems that the exemption of the remediation may apply to entities, enhancing Art. 257, Para. 4 TUA: according to this provision, the compliance with the remediation project is a condition for exemption from punishment for environmental crimes provided by other laws for the same event. Para. 2, Lett. (c) of Art. 25-undecies of Legislative Decree 231/2001 (which is surely a law that is different from the TUA) punishes the same event provided for by Art. 257, Paras. 1 and 2 TUA, extending to a different subject (the corporation) the liability for some environmental crimes that do already exist (Art. 257 TUA).

Reference is made to the above-mentioned judgement of the Corte di Cassazione, No. 3635 of 2014. For a comment about confiscation in this proceeding, see Maiello (2014).

See Sect. 2.

Trib. Chieti, ord. 26 September 2013, case No. 2022/2012.

On this topic, see Lottini (2002, p. 176 ff.), Rossi (2005, p. 573 ff.), De Vero (2008, p. 253 ff.), Di Giovine (2010, p. 146 ff.), Furlotti (2010, p. 290 ff.), Piergallini (2010, p. 248 ff.), Scaroina (2013, p. 2120 ff.) and Severino (2016, p. 80 ff.).

On the provisions of the Italian penal code concerning the statute of limitation, see Chap. 4.

Molino (2015, p. 34) notes that the investigation and the prosecution of the most serious environmental offences currently have a very long period of limitation (forty years in the case of intentional environmental disaster; up to fifty years in the presence of interrupting acts) and that this is in contrast with the very short period of limitation provided for misdemeanours in environmental matters.

As noted by Masera (2015, p. 16) with reference to the problems of “denial of justice” in evidence in the Eternit case, the legislator, with this event in mind, doubled the ordinary statute of limitation for the new crimes; new cases of environmental disaster shall expire in thirty years, and if such provision had been applicable in the Eternit case, the period of limitation would not have been expired even with reference to the moment of the cessation of activities.