The environmental penalty system

Companies are forced to comply with environmental obligations, that have become increasingly cogent; failure to comply with them entails a series of penalties provided by the legislator.

For a long time now the vision of the environment as a good to be protected in a unified way has imposed itself endowed with value in itself, as a legal good and not merely as a necessary factor for human health, well-being and survival. It’s just as natural today as to consider the environment as a complex asset, as the sum of many physical and socio-cultural components. Over the years, legislation has adapted to this cultural-environmental evolution, continuing to protect every single environmental aspect but within a common vision.

In order to enforce compliance with environmental obligations, a penalty system is provided for. The penalties are the result of the supervisory activities of the control bodies. There are many environmental bodies: from the police to the state police, from local police to voluntary ecological guards. Regions and local authorities also have competences and responsibilities.

Environmental offences may be:

  • administrative
  • criminal

The latter in turn divided into fines and crimes, depending on their severity.

Criminal penalties are charged to natural persons and are added to the administrative responsibility of legal persons arising from crime, introduced by Leg. D. 231/2001. They are passed on to legal representatives unless there is an effective allocation of decision-making powers, as can be done in large companies.

Unlike administrative penalties, criminal penalties do not provide for reduced forms of payment. There may be reductions in the fine payable by the natural person, but the amount payable by the holding must be paid in full.

The administrative responsibility of companies follows a separate process, so it is often applied even when it is not possible to punish the material culprit by arrest or fine for failure to detect, prescription or for any other reason.

In the case of environmental infringements, as in the case of occupational safety, the supervisory body may also prescribe the offender in the case of a reduced payment of the fine.

The news of the crime is transmitted to the public prosecutor, but if the offender complies with the requirements in time and pays the fine, the crime is extinguished.

An even more serious case is environmental pollution. It is a new crime provided for by the recent art. 452-bis of the Penal Code, which punishes the abusive deterioration of water, air or large portions of soil or subsoil and ecosystem, biodiversity, including agrarian, flora and fauna. The penalty is the fine from 10.000 to 100.000 euros and imprisonment from two to six years. The pollution of protected areas is an aggravating circumstance, which moves the sentence to the maximum envisaged.

In addition, the interdictive ancillary sanctions of the undertaking shall apply for a maximum period of one year:

  • interdiction from activity;
  • suspension of authorisations, licences and concessions related to the offence;
  • prohibition to negotiate with the public administration;
  • exclusion from benefits, financing or contributions and withdrawal of those already granted;
  • prohibition of advertising of goods and services.

The interdictive sanctions can be applied only in part or with respect to specific areas, at the discretion of the judge. The crime is punished if intentional. The pollution must be intentional and not due to negligence or incompetence.

The environmental pollution crime provides for the secondary (and mandatory) sanction of the confiscation of things that constitute the product or the profit of the crime, or when it is not possible, of things of equivalent value. In order to avoid confiscation, the offender must ensure the safety or remediation of polluted areas.

In the case of crimes against the environment provided for in the new Title VI-bis of the Penal Code, the penalties shall be reduced from half to two-thirds where the offender provides, before the opening of the trial at first instance, for their safety, to the reclamation or the restoration of the state of the places and reduced from a third to a half when the transgressor cooperates fully with the authorities (active repentance provided for in art. 452-decies p.c.).

Environmental pollution is one of the crimes, so the authorities have more powers of investigation and the burden of proving intent or guilt.

The consequences of an environmental offence fall heavily, as well as on the guilty person, on the company for which it operates. In order to avoid this, companies can adopt an internal organisational model, supervised by an independent body, which makes it impossible for offences to occur, or rather that this is possible only by fraudulently circumventing internal controls: In this case, the offender alone will be held criminally liable for the crime.

Only the adoption of an organizational model conforming to Leg. D. 231/2001 puts the enterprise away from the administrative responsibility of the juridical persons deriving from crime.

For further information, please consult the following legislative references:

Legislative Decree 3 April 2006, n. 152  (Single Environmental Act)

Legislative Decree 8 June 2001, n. 231 (Criminal liability of legal persons).

Legislative Decree 7 July 2011, n. 121 (Criminal liability of enterprises in the environmental field).

Law 22 May 2015, n. 68 (Introduction of eco-crimes in the penal code e in other standards).

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