On May 19, 2015 the Italian Parliament approved the new “Provisions related to crimes against the environment”. The law will be enforceable in the next days and it will applicable only to crimes committed after the issuing date. The legislature has moved on three fronts:
- Setting out a new separate chapter in the Penal Code, introducing new crimes against the environment;
- Changing the Environmental Code, providing for the possibility of the extinction of some offenses related to environmental protection;
- Extending the list of predicate crimes for the imposition of administrative liability of juridical persons pursuant to Legislative Decree 231/2001.
The principle offenses introduced are:
- 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 (up to six years of imprisonment and 100.000 euro fine, if the crime is not aggravated);
- death or injuries as consequence of environmental pollution (imprisonment up to twenty years);
- environmental disaster, causing (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 (punishment up to 15 years of imprisonment, if the crime is not aggravated);
- 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 (up to three years of imprisonment);
- failure to restore, 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 (up to four years of imprisonment and 80.000 euro fine).
Important to note that, from one hand, all the new crimes introduced can always be prosecuted ex officio and only if they are committed with malice, but, on the other hand, environmental pollution and disaster crimes may be prosecuted even if committed with gross negligence (in this case the punishment is reduced). 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 entities resulting from a crime has been extended, pursuant to Legislative Decree n. 231/2001. In particular, significant financial sanctions are provided for the commission, among others, of the following crimes against the environment:
- environmental pollution (up to approx. 930.000 euro), environmental disaster (up to approx. 1.300.000 euro), environmental pollution and environmental disaster committed with gross negligence (up to approx. 800.000 euro);
- killing, destruction, catching, taking, and possession of protected wild animal and vegetable species (up to approx. 400.000 euro);
- destruction or deterioration of habitats within a protected site (up to approx. 400.000 euro).
In case of conviction for environmental pollution or environmental disaster, the application of interdittive 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. The same law-update introduced the so-called active repentance principle, which states that 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 (which, till today, covered almost all the unlawful behaviors), it has been introduced an extinction procedure (that is not applicable to the ongoing proceedings). 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 monitoring organ and aim at the removal of the offense in a period not exceeding the time technically needed . 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 fine.