Criminal liability for the “unlawful” trafficking of waste in Italy: what relevance for the European Best Available Techniques?

Abstract

The paper deals with a much-debated topic in Italian criminal law scholarship and jurisprudence, that of criminal liability for carrying on formally authorised polluting activities, with a focus on its EU law profiles. After an overview of the concept of “unlawfulness” in environmental criminal law, the paper turns on the Italian offence of waste trafficking, addressing in particular two recent rulings of the Court of Cassation that held that the violation of EU “Best Available Techniques” can determine the “unlawful” nature of conduct, even when the latter is formally authorised. The author argues that this approach cannot be shared in its absoluteness, but deserves attention in order to avoid that, in certain well-defined hypotheses, authorisation becomes a factor of unjustified impunity for environmental damage.