The sixth part of the Consolidated Bill on the Environment (TUA), entitled “Rules on the Compensation of Environmental Damages“, has implemented EU Directive 2004/35/EC (Directive of the European Parliament and of the Council of 21 April 2004 on liability in respect of the prevention and restoration of environmental damages).

Pursuant to and for the purposes of Article 300 of the TUA, an environmental damage is considered to be “any significant and measurable deterioration, whether direct or indirect, of a natural resource, or of the benefits provided by the latter”.

This regulation implements the principle of non-typicality of the offence, providing a generic definition of environmental damage, which includes “any deterioration” as long as it is detrimental to a natural resource or to the benefits that can derive from its use.

The above provision continues in paragraph II of Article 300, taking up the meaning expressed by Directive 2004/35/EC and giving a more detailed definition of environmental damage with specific reference to:

a) living species, natural habitats subject to special protection;

b) inland waters and their ecological, chemical and/or quantitative status;

c) coastal waters and territorial sea;

(d) land, in terms of soil and underground.

The Testo Unico Ambiente can therefore be said to introduce a binary system of response to events that can cause environmental damages, or a contamination of environmental assets.

On the one hand, the reaction is considered “contamination”, governed by the rules on the reclamation of contaminated sites (i.e. Articles 239 et seq.), on the other hand, the case can be considered from the point of view of “damage or imminent threat of damage”, countered through the precautionary measures, prevention and environmental restoration (pursuant to art. 299 et seq. of the Consolidated Act).

Almost unconsciously, the legislator seems to deal with the profiles of “event damage” and “consequence damage” with distinct disciplines, through substantial distinctions regarding the levels of institutional competence (regional and local for the former, national for the latter).

Another major distinction is that relating to the different regime of liability allocation:

1-In the event of contamination, subject to remediation, responsibility is attributed both in relation to active and omissive conduct, but especially the blameless owner is liable within the limits of the value of the land.

2-In the event of damage, it draws a distinction on the basis of the legal nature of the agent: in the case of a professional operator it will be irrelevant whether there is a subjective element of malice or guilt, the causal link being sufficient.

In the case of a non-professional subject, he will be liable for the event only by way of intent or negligence.

Both categories are however excluded from the charge of the damage caused by a third party (ex art. 308 paragraph 4 letter. a).

Still on the matter of the second class, the so-called “consequential damage“, both professional and unqualified operators are exempted from liability in two other cases, one relating to the damaging events that have been expressly authorised legitimately and in accordance with the law (so-called permit defence pursuant to Article 308, paragraph 5, letter a), and the other in the event that the damage cannot be foreseen according to the state of technical-scientific knowledge (so-called best technology defence, pursuant to Article 308, paragraph 5, letter b).

The last major distinction between the regime provided for by the obligations of remediation and the process of environmental damage, the latter has no retroactive effect, contrary to the obligations of remediation of polluted sites.

According to the majority doctrine, this dualism does not find a specific ratio legis; apparently the reclamation procedures ex art. 239-253 are of regional competence, because of the nature of ordinary solution to the events of contamination (even if historical) while the ministerial procedure can be initiated both in the phase of imminent threat of damage, and in the phase of repression (where the person responsible has not promptly fulfilled his obligations).

We offer advice and assistance to private individuals, legal entities, public administrations and associations with widespread interests, professional operators and professionals, in judgments and proceedings relating to the compensation of environmental damage in civil, administrative and criminal proceedings.