November 8, 2019

Remediation of polluted sites – Essay on Adunanza Plenaria del Consiglio di Stato, Decision no. 10/2019

by Studio Valaguzza in Deepening

The reclamation of the polluted site can also be ordered to a company which is not itself responsible for the pollution, but which has taken over as a result of merger by incorporation, and for activities which had taken place before the reclamation was introduced into the national legal system, when the adverse effects remain at the time of the adoption of the measure.

Adunanza Plenaria del Consiglio di Stato, the most important forum of the highest Court in the administrative judiciary of Italy- stated this in sentence no. 10 of 22nd October 2019, articulating its complex reasoning in three main points.

First, the Judges noted that environmental pollution had been considered an illegal act, source of civil liability for its author under article 2043 of the Civil Code, even before the obligation of remediation was introduced in the legal system by art. 17 of Legislative Decree no. 22/1997.
In fact, the conception of the environment as an autonomous and unitary juridical good, with a collective and super-individual dimension, worthy of juridical protection against human aggressions, dates back to the doctrine of the 70’s. This conception was then established in art. 18 of the Law no. 349/1986, on the institution of the Ministry of the Environment, and finally confirmed by the Constitutional Court’s jurisprudence (see sentence no. 184/1986 and no. 641/1987).
This evolution has made it possible to create the figure an indemnifiable financial damage, consequence of the environmental offence, which shall correspond to the costs paid by the public authority for the conservation and protection of the environment, in a clearly restorative perspective similar to “reintegrazione in forma specifica”, provided by art. 2058 of the Italian Civil Code.
Secondly, given the regulatory inconsistency between the environmental offence and the reclamation introduced in 1997, the common “reinstatement-reintegration nature” of such two institutes, with respect to any permanent damage event, in which no sanction element is present (expression of the well-known principle “ the Polluter should pay”), makes possible the application of the environmental conservation institutes provided for by the law at the time in which the damage situation is ascertained. In this way it could be possible to order the reclamation for pollution phenomena dating back to a period prior to its introduction in the legal system.
Thirdly, in order to determine whether the obligation to carried out the reclamation can be imposed on a third party who cannot be qualified itself responsible for the pollution, because it was not the owner or the manager of the industrial plant that caused the pollution, but has taken over as a result of merger by incorporation, Adunanza Plenaria took into account the regime prior to and following the 2003 company law reform.
The Judges concluded, also taking into consideration previous European case law, that merger by incorporation, both before and after the aforementioned reform, determines the succession of the acquiring company in the obligations of the incorporated one. Therefore, by virtue of this corporate continuity, the obligation to recover the environmental damage [or reintegra in forma specifica] is also transmitted to the new corporate structure.