Under Italian environmental legislation, it is difficult to identify the rules applicable to secondary raw materials and even more so, which materials are to be considered as secondary raw materials. This difficulty has been further complicated by the Lower Court of Cagliari Ordinance No. 616 of July 29, 1994. Such Ordinance requested a ruling of the Constitutional Court on the question of whether Article 2, paragraph 3 of Law Decree No. 438 of July 8, 1994 (containing a regulation which refers to activities involving the recycling of leftover materials from production or consumption cycles as raw materials or as sources of energy) is in breach of the Constitution in that it violates Article 3, paragraph 2 (the "equality clause") and Article 13 (reserving legislation in criminal matters to Acts of Parliament) of the Italian Constitution.

Pursuant to Article 2, paragraph 3 of the above-mentioned Law Decree No. 438 of 1994 concerning secondary raw materials, the application of such Decree does not include materials regarded as having economic value, among which are the materials listed in the official registers kept by the local Chambers of Commerce since November 1993. As the inclusion or exclusion of materials in or from such registers falls within the discretionary powers of the regional governments, the determination of whether criminal sanctions are applicable in case of violation of the rules of Law Decree No. 438 of 1994 depends eventually also on acts passed by the regional governments.

The Lower Court Ordinance held that "the decision of an authority of the regional government to include a certain material in a list of marketable goods affects the applicability of the criminal law regarding waste, thus creating unequal treatment (depending on whether the identification as goods occurs in one Region or another) and consequently violating the statutory reserve of the legislator in criminal matters."

The local authorities' decisions criticized in the Court Ordinance are decisions which currently the local authorities make at their own discretion as to which materials can be considered as marketable goods and thus negotiable on the local markets or listed in the registers kept at the local Chambers of Commerce and, on the other hand, which wastes are instead subject to the more stringent rules (subject to criminal sanctions in the case of violation) regulating the recycling of the leftover materials from production or consumption cycles as raw materials or as energy sources.

The Constitutional Court has yet to submit its decision on this issue and, in the meantime, many doubts remain.

Environmental Liability And Delegation Of Powers

The question as to who should be held liable for the violation of environmental laws has yet to be decided. The traditional doctrine, based on Article 2087 of the Italian Civil Code, considers the owner of an enterprise to be the only person required to assure the safety of the workers and thus, similarly, the person who is to be held liable in the case of environmental damage caused by his company's activities. This view considers the scope of an entrepreneur's powers to be all-inclusive and therefore considers him to be the subject who should be held responsible in case of any damage.

Such a traditional view has been criticized because the entrepreneur often delegates powers and functions to collaborators and thus cannot be considered to be directly and personally liable for any environmental damage which may occur. According to Article 27 of the Italian Constitution criminal liability is personal and a person who has not personally committed a crime cannot be held liable.

On the basis of such reasoning, an "indirect" liability may still be attributed to the entrepreneur for not having coordinated his business activities responsibly, but the core of the liability is in any case attributed to the person who is directly responsible.

Recent decisions of the Court of Cassation have set forth a few standards which help to identify the party liable and have given further support to the theory of "delegated powers". As a rule, environmental powers may be validly delegated when the following conditions have been met:

	(i) the party delegated must have the necessary technical 

	(ii) the party delegating must provide the party delegated with 
	the necessary technical and economic means to complete the project 
	without interfering in any way in its execution;

	(iii) the powers granted must have been clearly specified and 
	defined in detail.
Therefore, in order to exempt the party delegating from liability, the powers must have been delegated to a qualified person and such delegation must effectively respond to the needs of the enterprise. Further, the delegation should result from a written document and refer to a specific sector of the business. It is still unclear if this theory is also applicable to small businesses.

By Paolo Roncelli of Gianni, Origoni & Partners, Milan

For further information please contact Enzo Schiavello on +392 76 00 97 56.
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