In the context of environmental law, the remediation of contaminated sites is a key tool for the legal system to restore the integrity of a compromised environment. Italian legislation is based on the European principle of “the polluter pays”, whereby the party responsible for the contamination is identified as the party subject to the obligations of remediation and the associated financial burdens. Therefore, identifying the party responsible for the pollution plays a central role, as the implementation of remediation measures and the assignment of legal consequences for environmental damage depend on this identification. In this context, administrative case law has progressively outlined the criteria for determining liability and assigning remediation obligations.
The “polluter pays” principle
Under Italian environmental law, the rules on the remediation of contaminated sites revolve around the figure of the polluter which, under the “polluter pays” principle, must bear the obligation of remediation, the negative effects of pollution and the related costs of remedial activities.
Title V of the Environmental Code expressly refers to the principles of European Union law as the basis for the interpretation and application of national legislation. This establishes the “polluter pays” principle as the governing rule in administrative proceedings concerning environmental matters. The “polluter pays” principle requires that the costs of preventing, controlling, and remedying environmental damage be borne by the party responsible for such damage.
This principle identifies as liable only those who have generated the contamination, either wholly or in part, through their own behavior, whether active or passive, which is linked to pollution by a clear causal link. The event must be attributable to a specific behavior, on the basis of serious, precise and consistent “plausible indications” that lead to the probable recognition of liability, without contradictions or omissions.
According to administrative case law, the attribution of such responsibility does not require absolute certainty, since evidence can be given directly or indirectly — even through presumptions — in accordance with Article 2727 of the Italian Civil Code. This takes into account factual elements from which serious, precise and consistent clues can be drawn, which lead to the belief that it is likely, according to the “id quod plerumque accidit”, that pollution has occurred and that it is attributable to specific parties through a judgment of plausibility, of the preponderance of evidence or, rather, of the so-called “more likely than not” (“più probabile che non”).
Liability for pollution
The recognition of responsibility for altering the environment within a specific individual determines for him/her the acquisition of a personal and substantially non-transferable and non-disposable legal status that can arise either if said individual is the sole and exclusive person responsible for the condition of the site, or a co-responsible party for the event, since the presence of other potential polluters cannot allow him/her to escape from the relevant remediation obligations.
The non-transferability and non-disposability of the environmental liability are a direct consequence of the applicable regulations and of the fact that pollution entails the emergence on the part of the culprit of different profiles of liability: criminal, if such an event configures a criminal offence; civil, for environmental damage under ministerial jurisdiction or compensation to third parties; and administrative, for the activation of remediation measures.
Such administrative liability is rooted in public law rules, which impose on the holder of such status a duty to act aimed at the environmental restoration of the site and to offer a guarantee for the proper remediation of the damage. This framework is further justified by the particular “guarantee” position held by the polluter, who is directly and personally responsible for ensuring compliance with remediation obligations. Such liability rests directly with the party to whom the event is attributable and does not extend to third parties who have no causal connection to the contamination.
The consequence is that, at each pollution event, there is a direct administrative liability that arises in the sole person to whom the event is attributable and that does not extend to third parties who in any way have causal connections or can be considered authors of the contamination, in a commissive or omissive way. Hence, where a person acquires the legal status of “responsible for the pollution”, he or she cannot dispose of it freely and cannot get rid of it by alienating it to third parties or disposing of it free of charge, not even by transferring the object for which the status is acquired. Only in cases of universal succession or corporate transactions ensuring legal continuity — such as mergers by absorption — may there be a succession of obligations relating to environmental liability.
Acting differently would grant the polluter the power to escape his or her responsibilities by simply transferring the assumed legal position to a subsequent holder, possessor or owner by a mere legal transaction. This hypothesis is ruled out by the legislator because of the particular “guarantee” position held by the polluter and because of the complex penalties, especially criminal ones, directly and personally linked to the failure to fulfill the relevant remediation obligations.
Therefore, only through the circulation of shares or shareholdings relating to a “polluter – legal person” may a form of transfer of the “polluter responsible” status occur. This is because no shift of personal position takes place, but the transferee of the shares becomes the successor in the ownership of the legal person, which is not affected by the transaction and therefore remains unchanged, except indirectly through the change of control. Indeed, only the circulation of the company’s assets ensures continuity of the legal subject before public authorities and the community, resulting in a substantial non-modification of the subject, which, even under a new ownership structure, remains the original holder of the polluter status.
In all other cases of transfers of individual assets or other forms of singular succession, the absence of such continuity prevents the acquisition of the polluter status by the transferee.
From another perspective, liability for contamination does not necessarily require active conduct, as it may also arise from omissions, provided that a causal link exists between the omission and the pollution event. Case law has clarified that, in identifying the responsible party, the administration may rely on serious, precise, and consistent circumstantial evidence. This may include the assessment of factual elements such as the proximity of the facility to the contamination, the correspondence between the substances found and those used in activities carried out at the site, and the reconstruction of the condition of the premises and prior activities. Once such evidence has been established, the party held liable must provide evidence capable of accurately reconstructing the causal chain of events. A mere reference to possible third-party liability or to generic external factors is insufficient.
It should also be noted that, where multiple parties have contributed to the contamination, the “polluter pays” principle does not automatically entail either strict joint liability or, conversely, undifferentiated joint and several liability. Where the resulting damage is concretely distinct and separable, each liable party is held responsible only to the extent of the share of pollution attributable to it; where, however, it is not possible to distinguish the effects of the individual acts on a causal and material basis, remediation may assume a unified character and be enforced jointly and severally, without prejudice to the internal allocation of costs according to the respective shares of liability.
Conclusion
A careful analysis of the provisions of the Environmental Code and the relevant case law highlights the central role of the “polluter pays” principle within the system of liability for the remediation of contaminated sites. Of European origin, this principle constitutes a fundamental criterion for identifying the party upon whom the obligations of environmental restoration and the related financial burdens fall, thereby ensuring that the costs of pollution are borne by those responsible for it.
In line with the principles of European Union law, under Italian law, liability is based on a causal determination. This requires proof, including through simple presumptions and according to the “more likely than not” standard, of a link between the party’s conduct and the contamination event. While this system does not require absolute proof of liability, it does exclude forms of strictly objective or automatic liability for parties that played no actual role in causing pollution.
From this perspective, liability for pollution is personal and essentially non-transferable, and cannot be circumvented through contractual transactions or by transferring ownership of the contaminated site. This is particularly significant in real estate acquisition transactions, in which the purchaser is potentially subject to substantive environmental law obligations, such as the possible implementation of remediation measures, or the administration seeking recourse against the property’s value. However, the purchaser does not automatically assume responsibility for the pollution unless there are instances of subjective continuity, such as universal succession or specific corporate transactions.
For this reason, it is of critical importance to have a proper understanding of the criteria for identifying the party responsible for pollution in real estate acquisition transactions. Verifying past activities carried out on the site, reconstructing the area’s industrial or manufacturing history and analysing any environmental liabilities are essential steps in the due diligence process. These steps are aimed at adequately assessing the legal and economic risks associated with the purchase. Therefore, identifying the party responsible for the pollution is the decisive moment in the entire remediation process, as it determines the allocation of remediation obligations and the balance between environmental protection and safeguards for those involved in economic and real estate activities.
In conclusion, considering the regulatory and jurisprudential framework examined, it is evident that thorough pre-acquisition due diligence and environmental assessment play a pivotal role in transactions involving the acquisition of sites or business complexes potentially affected by environmental contamination.
These activities are essential for verifying the historical nature of any contamination, identifying potential liability issues and assessing the legal and economic risks associated with the transaction. In particular, a thorough preliminary analysis enables the identification of any ongoing administrative proceedings, as well as the potential adoption or implementation of emergency safety measures or remediation efforts, factors that can significantly impact the liability framework and the obligations incumbent upon the purchaser.
From this perspective, environmental due diligence is not merely a tool for contractual prudence; it is an essential step in ensuring a proper assessment of environmental risk and structuring the acquisition transaction with full awareness, including through appropriate liability allocation mechanisms.