Historical Pollution and Corporate Liability in the Italian Criminal Law

Abstract

This contribution analyses the provisions in the Italian legal system concerning corporate liability for administrative infringements depending on crimes, provided for by Legislative Decree 231/2001, from the perspective of the phenomenon of historical pollution. The work deals with the problem of verifying whether and to what extent past pollution—caused before the entry into force of Legislative Decree 231/2001—with persistent and current effects, may result in corporate liability which is substantially criminal, as is the one outlined in the Decree. By trying to highlight the main issues raised by historical pollution in this matter, and the critical aspects related to the regulation provided for by the above-mentioned Decree, the analysis is carried out at three levels: (i) the introduction in 2011 of environmental crimes in the Decree through Article 25-undecies, and the problems that have accompanied this belated intervention; (ii) the interference between the general principles of criminal law and the theme of historical pollution, with reference to the principles of legality and non-retroactivity and to the offences in environmental matters which may be relevant in relation to cases of historical pollution—with due regard to the moment of the commission of the crime (tempus commissi delicti); (iii) the issues raised by some provisions of the Decree with respect to the object of the present research (sites remediation, sanctions and confiscation of profit, statute of limitation). The aim is to deepen the topic, unexplored in many aspects, by defining the scope of application of Legislative Decree 231/2001 with respect to historical pollution, also taking into account the reform of 2015 that renewed Italian environmental criminal law.