Before the well-known reform of Chapter V, the concept of 'environment' was not even contained in the Italian Constitution. To say this today - in 2021 - is objectively difficult to even believe. Yet this was indeed the case and it very clearly shows how much things have changed since the Second World War. Quite simply, in 1948 the country's needs and priorities were very different (reconstruction, economic revival, etc.). There was no room for paying attention to the environment.
This historical 'delay' has long made its consequences felt in Italian legislation. It is a fact that, for very many years, the environment - broadly understood of course - almost lacked a real and effective framework of criminal punishments. Even when such rules were introduced, their inadequacy to ensure actual deterrence and repressive effectiveness was often lamented, especially because of the punishments they envisaged, which were considered very (perhaps too) limited. In this sense, repeated criticism were levelled at the Consolidated Environmental Act (introduced by Legislative Decree 152/2006).
The system was literally revolutionised by Law 22 May 2015, no. 68, by which the criminal regulation of the environment was radically changed. And the new 'eco-offences' are not to be taken lightly.
The new set of rules (from Art. 452-bis to Art. 452-quaterdecies of the Criminal Code) establish very heavy punishments, up to fifteen years imprisonment in the most serious cases. The repressive framework is even heavier when we consider that these offences affect not only natural persons, but also companies. Art. 25-undecies of Legislative Decree 231/2001 also extends the corporate liability of legal persons deriving from a crime to certain 'eco-offences'. Moreover, the consequences for legal persons may be, in some respects, even more serious than for individuals, since they are not limited to pecuniary sanctions alone (which are already very high per se),but extend in certain cases to the dreaded disqualification sanctions, as well as to confiscation. Without considering, of course, the extra-legal consequences in terms of image damage.
In short, while attention to the environment was not the priority of Italian law-makers for years - though it would be more correct to say for decades - (and, as a consequence, companies were not prompted to deal with the issue too much),now the issue has become a priority.
The watchword for the entrepreneur must and indeed can only be one: prevention. Ignoring environmental issues can result in paying a very high price which, in some cases, may even jeopardise business continuity. Intervening ex post, once the public authorities have made a complaint, is very difficult and, moreover, not always possible. In short, it is crucial to intervene before criminal consequences appear on the horizon.
In what way? Here the key word is another one: compliance. Entrepreneurs sometimes perceive this idea - which was equally unknown to the Italian legal system and entrepreneurial world for a long time - as a 'useless cost' or as an unnecessary 'burden' compared to their business needs. But this is not the case. What may seem like a non-essential expense is, instead, a crucial investment for the future, the only way to protect and 'shield' one's business against criminal risks that, as we have seen, can be very serious. The adoption and constant implementation of organisational and control models, the presence of a responsive and vigilant supervisory body, an effective governance system, effective reporting channels and a strong in-house legal department: these are some of the key ingredients to protect the company.
This, however, does not only apply to environmental matters, but to all areas of a company's operations, since the list of so-called predicate offences (i.e. those that can trigger the liability of a legal person under 'Decree 231') is constantly expanding. Indeed, very recently - although this is not worrying in environmental terms - tax offences were included in this catalogue.
Fabio Cagnola and Filippo Ferri for Forbes, Jan 2022
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