In November 2008, Europe promulgated Directive 2008/99/EC on the protection of the environment through criminal law. Pursuant to this Directive, European Member States should use criminal law to enforce legislation implementing environmental directives.
With this measure, the European legislator attempted to increase the effectiveness of European environmental legislation as it is believed that only criminal law will have a sufficiently deterrent effect. This directive was to be implemented by the European Member States by 26 December 2010. Italy implemented the Directive in May 2015, with Law n. 68/2015 which has brought about important changes. The key innovations are briefly outlined in this article.
The new Law moves on three fronts:
1. it sets out a new chapter in the criminal code (Title VI-bis), introducing new crimes against the environment;
2. it changes the Environmental Code, providing for the possibility of the extinction of some offenses relating to environmental protection;
3. it extends the regime of “administrative liability” of legal persons and collective entities for crimes committed in their interest or for their benefit to the newly-introduced environmental crimes.
Among the newly-codified offences the following are particularly noteworthy:
– art. 452-bis – environmental pollution:
punishes with detention (from 2 to 6 years) and a penalty (€ 10.000 to € 100.000) whoever causes a significant and measurable deterioration:
(i) to water, air, significant portions of soil or subsoil;
(ii) to an ecosystem, biodiversity, flora or fauna;
– art. 452-quater – environmental disaster:
it is to be considered as:
(i) any irreversible alteration of the equilibrium of an ecosystem;
(ii) any variation to the equilibrium of an ecosystem which can be
revived only with exceptional and costly measures;
(iii) any offence to public safety determined regarding the relevance of damage to the environment or its harmful effects, depending on the number of parties offended or exposed to danger;
– art. 452-septies – prevention controls:
punishes with detention (from 6 months to 3 years) whoever denies access to places in order to thwart the supervision of the environment and safety and hygiene in work places. The new provisions establish that in the event of a conviction, the judge shall always order to confiscate earnings deriving from the crime or the requisition of things that aided its commission. Whether it is possible, the judge must order the recovery and restoration of the previous condition of the premises, placing the expenses entailed on the convicted.
Furthermore, the convicted person will be barred from contracting with the public administration. The new Law introduces the principle of active repentance: whoever tries to prevent illegal activity – in a concrete way and before the trial of first instance begins – from resulting in further negative consequences or provides for the safety, decontamination and, if possible, restoration of affected places may benefit from a reduction of the penalty from half to two-thirds.
While the new provisions are moving in the right direction in complying with European standards, it should underlined that the language used by the Italian legislator is far from clear. For instance, in art. 452-quater language is ambiguous and far from proportional, as it appears to include situations which may not necessarily be as serious as the general understanding of what is considered a disaster. Therefore, judges will play a key role in ensuring that the new law is not limited by its imprecise formulations.