B-HSE Società tra Avvocati

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.

The European Union (EU) has been at the forefront of integrating sustainability into its regulatory framework, aiming at balancing economic growth with environmental and social responsibility. Recent developments however, notably the introduction of an “Omnibus Simplification Package”, have led to significant amendments to key directives such as the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD). In addition, the EU has implemented the Carbon Border Adjustment Mechanism (CBAM) to address carbon leakage and promote global emission reductions. The present analysis delves into the nuances of these legislative changes and their implications. 1. The Omnibus Simplification Package: streamlining sustainability regulations In February 2025, the European Commission unveiled a comprehensive initiative known as the “Simplification Omnibus”.  This package aims to reduce regulatory and bureaucratic burdens for businesses by rolling back or modifying several EU sustainability and corporate reporting requirements and further enhancing the global competitiveness of European businesses. The initiative responds to concerns that extensive regulations may prevent the ability of EU companies to compete with counterparts in regions like the United States and China. Despite the new regulatory adjustments, the EU maintains its commitment to achieving net-zero emissions by 2050. The proposed measures are anticipated to save European companies approximately 40 billion euros, reflecting a strategic move to balance regulatory oversight with economic vitality. 2. Amendments to the Corporate Sustainability Reporting Directive (CSRD) The CSRD, initially adopted to enhance and standardize sustainability reporting across the EU, mandates that companies disclose information on their environmental, social, and governance (ESG) practices. The directive’s primary goal is to increase corporate transparency and accountability, thereby fostering sustainable business practices. Among the key amendments there are: scope and applicability, the Omnibus Simplification Package proposes to refine the scope of the CSRD, potentially exempting smaller enterprises from certain reporting obligations. Said adjustment aims to mitigate the compliance burden on small and medium-sized enterprises (SMEs) while ensuring that larger corporations continue to provide all-inclusive sustainability disclosures; reporting requirements, the amendments seek to streamline reporting obligations by focusing on material ESG factors, therefore reducing the complexity and volume of information that companies are required to report. This targeted approach is designed to enhance the relevance and comparability of sustainability data: digitalization and standardization, to improve accessibility and usability of the reported data, the amendments encourage the adoption of digital reporting formats and the use of a standardized reporting framework. This change is expected to facilitate data analysis and benchmarking across industries. Some implications: The amendments proposed are aimed at striking a balance between (i) ensuring transparency and (ii) reducing administrative burdens. By refining the scope and focusing on material issues, the EU seeks to maintain a solid sustainability reporting standard without stifling business innovation or competitiveness. However, there is the concern that easing said obligations could undermine accountability and reverse progress in corporate sustainability practices. 3. Amendments to the Corporate Sustainability Due Diligence Directive (CSDDD) The CSDDD obliges companies to (a) identify, (b) prevent, and (c) mitigate adverse human rights and environmental impacts within their operations and supply chains. The directive represents a significant step toward embedding sustainability into corporate governance. Among the key amendments there are: risk-based approach: the Omnibus Simplification Package introduces a more risk-based approach to due diligence, allowing companies to prioritize actions based on the severity and likelihood of potential adverse impacts. This approach seeks to make the due diligence processes more focused and efficient; proportionality principle: the amendments emphasize the principle of proportionality, ensuring that due diligence obligations are comparable with the company’s size and resources. This adjustment aims at preventing disproportionate burdens on smaller companies while maintaining accountability for larger corporations; stakeholder engagement: the revised directive encourages enhanced engagement with stakeholders, including affected communities and civil society organizations, to guarantee that due diligence processes are informed by both diverse perspectives and local insights. Some implications: The amendments to the CSDDD are intended to make the due diligence obligations more practical and tailored to the individual company contexts. By adopting a risk-based and more proportionate approach, the EU seeks to enhance the effectiveness of the directive while mitigating potential negative impacts on business operations. However, some have argued that these changes could instead soften the directive’s effectiveness in holding companies accountable for their supply chain impacts. 4. The Carbon Border Adjustment Mechanism (CBAM) The CBA, introduced by Regulation (EU) 2023/956, is an innovative policy tool designed to «to put a fair price on the carbon emitted during the production of carbon intensive goods that are entering the EU, and to encourage cleaner industrial production in non-EU countries» (as expressly stated on the EU website). The mechanism aims to ensure that imported products are subject to the same carbon costs as products produced within the EU, thereby maintaining a level playing field and encouraging global emission reductions. Among the key features there are: the scope, the CBAM applies to imports of specific carbon-intensive products, including cement, iron and steel, aluminum, fertilizers, electricity, and hydrogen. The scope might also be expanded to include additional products in the future; the implementation phases, the CBAM is being implemented in phases. A transitional phase began in October 2023, during which importers are required to report the embedded emissions of their products without financial obligations. The full implementation, which involves the purchase of CBAM certificates that correspond to the embedded emissions, is scheduled to start in 2026; the calculation of embedded emissions, importers must calculate and report the greenhouse gas emissions embedded in their imported goods. The calculation methods are aligned with those used in the EU Emissions Trading System (ETS) to ensure consistency; the price of CBAM certificates, the price of CBAM certificates is linked to the price of EU ETS allowances, ensuring that importers face equivalent carbon costs as domestic producers. Some implications: The CBAM is expected to incentivize non-EU producers to adopt lower-carbon technologies in order to maintain access to the EU market. It further seeks to prevent carbon leakage by ensuring that EU producers are not disadvantaged by stringent domestic climate policies. However, the mechanism has faced criticism and trading partners have argued that it may be “protectionist” and could conflict with the rules set fort by the World Trade Organization (WTO).

The European Union (EU) has been at the forefront of integrating sustainability into its regulatory framework, aiming at balancing economic growth with environmental and social responsibility. Recent developments however, notably the introduction of an “Omnibus Simplification Package”, have led to significant amendments to key directives such as the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD). In addition, the EU has implemented the Carbon Border Adjustment Mechanism (CBAM) to address carbon leakage and promote global emission reductions. The present analysis delves into the nuances of these legislative changes and their implications. 1. The Omnibus Simplification Package: streamlining sustainability regulations In February 2025, the European Commission unveiled a comprehensive initiative known as the “Simplification Omnibus”.  This package aims to reduce regulatory and bureaucratic burdens for businesses by rolling back or modifying several EU sustainability and corporate reporting requirements and further enhancing the global competitiveness of European businesses. The initiative responds to concerns that extensive regulations may prevent the ability of EU companies to compete with counterparts in regions like the United States and China. Despite the new regulatory adjustments, the EU maintains its commitment to achieving net-zero emissions by 2050. The proposed measures are anticipated to save European companies approximately 40 billion euros, reflecting a strategic move to balance regulatory oversight with economic vitality. 2. Amendments to the Corporate Sustainability Reporting Directive (CSRD) The CSRD, initially adopted to enhance and standardize sustainability reporting across the EU, mandates that companies disclose information on their environmental, social, and governance (ESG) practices. The directive’s primary goal is to increase corporate transparency and accountability, thereby fostering sustainable business practices. Among the key amendments there are: scope and applicability, the Omnibus Simplification Package proposes to refine the scope of the CSRD, potentially exempting smaller enterprises from certain reporting obligations. Said adjustment aims to mitigate the compliance burden on small and medium-sized enterprises (SMEs) while ensuring that larger corporations continue to provide all-inclusive sustainability disclosures; reporting requirements, the amendments seek to streamline reporting obligations by focusing on material ESG factors, therefore reducing the complexity and volume of information that companies are required to report. This targeted approach is designed to enhance the relevance and comparability of sustainability data: digitalization and standardization, to improve accessibility and usability of the reported data, the amendments encourage the adoption of digital reporting formats and the use of a standardized reporting framework. This change is expected to facilitate data analysis and benchmarking across industries. Some implications: The amendments proposed are aimed at striking a balance between (i) ensuring transparency and (ii) reducing administrative burdens. By refining the scope and focusing on material issues, the EU seeks to maintain a solid sustainability reporting standard without stifling business innovation or competitiveness. However, there is the concern that easing said obligations could undermine accountability and reverse progress in corporate sustainability practices. 3. Amendments to the Corporate Sustainability Due Diligence Directive (CSDDD) The CSDDD obliges companies to (a) identify, (b) prevent, and (c) mitigate adverse human rights and environmental impacts within their operations and supply chains. The directive represents a significant step toward embedding sustainability into corporate governance. Among the key amendments there are: risk-based approach: the Omnibus Simplification Package introduces a more risk-based approach to due diligence, allowing companies to prioritize actions based on the severity and likelihood of potential adverse impacts. This approach seeks to make the due diligence processes more focused and efficient; proportionality principle: the amendments emphasize the principle of proportionality, ensuring that due diligence obligations are comparable with the company’s size and resources. This adjustment aims at preventing disproportionate burdens on smaller companies while maintaining accountability for larger corporations; stakeholder engagement: the revised directive encourages enhanced engagement with stakeholders, including affected communities and civil society organizations, to guarantee that due diligence processes are informed by both diverse perspectives and local insights. Some implications: The amendments to the CSDDD are intended to make the due diligence obligations more practical and tailored to the individual company contexts. By adopting a risk-based and more proportionate approach, the EU seeks to enhance the effectiveness of the directive while mitigating potential negative impacts on business operations. However, some have argued that these changes could instead soften the directive’s effectiveness in holding companies accountable for their supply chain impacts. 4. The Carbon Border Adjustment Mechanism (CBAM) The CBA, introduced by Regulation (EU) 2023/956, is an innovative policy tool designed to «to put a fair price on the carbon emitted during the production of carbon intensive goods that are entering the EU, and to encourage cleaner industrial production in non-EU countries» (as expressly stated on the EU website). The mechanism aims to ensure that imported products are subject to the same carbon costs as products produced within the EU, thereby maintaining a level playing field and encouraging global emission reductions. Among the key features there are: the scope, the CBAM applies to imports of specific carbon-intensive products, including cement, iron and steel, aluminum, fertilizers, electricity, and hydrogen. The scope might also be expanded to include additional products in the future; the implementation phases, the CBAM is being implemented in phases. A transitional phase began in October 2023, during which importers are required to report the embedded emissions of their products without financial obligations. The full implementation, which involves the purchase of CBAM certificates that correspond to the embedded emissions, is scheduled to start in 2026; the calculation of embedded emissions, importers must calculate and report the greenhouse gas emissions embedded in their imported goods. The calculation methods are aligned with those used in the EU Emissions Trading System (ETS) to ensure consistency; the price of CBAM certificates, the price of CBAM certificates is linked to the price of EU ETS allowances, ensuring that importers face equivalent carbon costs as domestic producers. Some implications: The CBAM is expected to incentivize non-EU producers to adopt lower-carbon technologies in order to maintain access to the EU market. It further seeks to prevent carbon leakage by ensuring that EU producers are not disadvantaged by stringent domestic climate policies. However, the mechanism has faced criticism and trading partners have argued that it may be “protectionist” and could conflict with the rules set fort by the World Trade Organization (WTO).

1. Introduction On June 14, 2023, the European Parliament’s Committee on Environment, Public Health, and Food Safety (ENVI) approved the text of the "Proposal for a Regulation of the European Parliament and of the Council establishing a framework for setting eco-design requirements for sustainable products and repealing Directive 2009/125/EC" (hereinafter referred to as the "Proposal"). The text is now awaiting a vote in the plenary session to initiate negotiations between the Institutions according to the standard legislative procedure of the European Union. The Proposal is a part of the broader context of the European Green Deal and the Union's efforts to combat "Fast Fashion". The textile sector, in particular, is identified by the EU as one of the industries with the highest environmental impact, not only due to resource consumption but also because of the low recycling rates. In 2020, the European Commission introduced the Circular Economy Action Plan (CEAP) and set initial timeframes for achieving the goals of a "Green Europe." This plan includes a specific focus on the fashion industry, known as the "European Strategy for Sustainable and Circular Textiles" (hereinafter referred to as "SSCT"), which was presented through a communication from the Commission on March 3, 2022 (COM (2022) 141 final). Within the SSCT, key actions for sustainable and circular textiles include the introduction of mandatory eco-design requirements, now incorporated into the Proposal. These requirements aim to extend the lifecycle of textile products to significantly reduce their impact on the climate and the environment. In this context, the Proposal introduces several innovations, not only related to eco-friendly design but also concerning the creation of digital passports for textile and non-textile products and the implementation of a disclosure obligation regarding unsold consumer products for all entities defined as "manufacturers" in the Proposal, which includes any natural or legal person involved in product manufacturing, design, marketing, or importation from third countries for market placement.   2. The main objective of the SSCT The primary focus of the SSCT is recognizing that «as clothing comprises the largest share of EU textile consumption (81%), the trends of using garments for even shorter periods before throwing them away contribute the most to unsustainable patterns of overproduction and overconsumption». The production and consumption of textile products have a considerable negative impact on the environment in terms of water and land use, as well as climate change. Moreover, the preference for lower-quality fabrics to reduce costs has led to the rise of "fast fashion," encouraging consumers to purchase more items, only to dispose of them quickly, resulting in additional environmental and climate impacts from unsold items and discarded products. The textile sector also faces social challenges, including issues such as child labor, climate change, and the impact of global events like the Covid-19 pandemic and the Russia-Ukraine conflict. These challenges require systemic solutions in line with the European Green Deal's vision of achieving sustainable, climate-neutral, energy-efficient, and resource-efficient growth. The main goal of the SSCT is to bring to the EU market, by 2030, «textile products ... that are long-lived and recyclable, to a great extent made of recycled fibers, free of hazardous substances and produced in respect of social rights and the environment». This aims to create «a competitive, resilient and innovative textiles sector [in which] producers take responsibility for their products along the value chain, including when they become waste». In this sense, extending the lifespan of textile products is crucial for reducing their environmental impact. To achieve this, product design plays a significant role, along with the new provisions on sustainable products and eco-design requirements that apply to a wide range of products.   3. Scope of the Proposal Compared to the previous Directive 2009/125/EC (the Eco-design Directive), which focused on eco-design requirements for energy-related products, the new Proposal aims to expand this approach to a wide range of products, with only a few exceptions. These exceptions include medicinal products, veterinary medicinal products, food and feed, living organisms, reproduction products, and human-origin products. The goals of the Regulation Proposal are to reduce the environmental impacts of products throughout their life cycle and improve the functioning of the internal market.   4. Key Innovations Among the main innovations in the Proposal, notable elements include: the development of eco-design requirements, the introduction of digital product passports, and the implementation of a disclosure obligation regarding unsold consumer products.   a) Eco-design Requirements The Proposal establishes a general framework for adopting eco-design requirements under art. 5. These requirements aim to improve various aspects of products, including: durability; reliability; reusability; upgradability; reparability; possibility of maintenance and refurbishment; presence of substances of concern; energy use or energy efficiency; resource use or resource efficiency; recycled content; The eco-design requirements encompass performance requirements (art. 6) and information requirements (art. 7).   b) Digital product passport The information requirements specify that products can only be placed on the market or put into service «if a product passport is available in accordance with the applicable delegated act adopted pursuant to Article 4, 9 and 10 of the Proposal». The requirements for the passport are numerous. Of major interest are: the information to be included; the manner in which the product passport is made accessible to customers before they are bound by a sales contract; the actors that shall have access to the passport information and the information made accessible; the actors that may introduce or update the information in the passport. Additionally, a register maintained by the Commission will store product passport information, allowing businesses and consumers to make informed choices and enhance communication within the value chains. The Commission assures that the passport will take into account the nature of the product and market, respecting intellectual property rights and allowing data limitation when necessary.   c) Disclosure obligation Lastly, art. 20 introduces a disclosure obligation regarding unsold consumer products. Economic operators disposing of unsold consumer products must disclose specific information, including the number and type of discarded products, reasons for discarding, and the method of disposal in compliance with the waste hierarchy as defined by art. 4 of Directive 2008/98/EC. This information must be published on a publicly accessible website or through alternative means until applicable delegated acts for the category of discarded unsold consumer products are approved. This requirement aims to reduce the waste of value and resources associated with the destruction of unsold goods, combating greenwashing and promoting transparency in the industry.   Conclusion The Proposal aligns with the European Union's broader objective of becoming the first climate-neutral continent by 2050. Like other ambitious sustainability initiatives, it will impact both domestic and global markets and influence consumer choices. To meet the Proposal's objectives, most manufacturers will need to redesign their products with a focus on durability, reusability, energy efficiency, and recycling. This shift toward sustainable production will require manufacturers to reevaluate their design standards and conduct comprehensive value chain audits.

Today, uncertainty, associated with economic development and technology is growing; conflict regarding the distribution of wealth (goods) has been joined by conflict regarding the distribution of “ills.” This distribution depends not only on technological, economic, social and cultural variables but also on the political-institutional structure of the diverse States. Different societies and cultures react differently to comparable uncertainties. The new factors that have appeared in recent years are the questions associated with climate change. The scientific community considers that global warming is undeniable, and that it is highly likely that, over the next few decades, the planet will have to face the serious climate changes brought about by anthropic activities, changes that will be very dangerous both for the people and for the ecosystems that co-habit on the planet. Global warming happens because certain gases accumulate in the atmosphere. These gases can retain the infrared radiation emanating from Earth: changes in the terrestrial energy balance determine the increase in global temperatures. While the increase in CO2 emissions, the main climate altering gas, is almost entirely the result of the use of fossil fuels and to the changes in soil use, (e.g., deforestation), the other two main greenhouse gases, methane (CH4) and nitrous oxide (N2O) are mainly generated by agricultural and zootechnic activities. The problem of emissions resulting from food production is more important in the short term, whereas CO2 emissions resulting from burning fossil fuels are, in the long term, the real heart of the problem. To stabilise the concentrations of greenhouse gases in the atmosphere and, hence, the temperature of the planet, there must be a substantial reduction in the emissions of climate-changing gases in coming decades. Policies aiming to mitigate climate change must involve all sectors, not only those, such as the production and consumption of energy, that are among the most responsible for global emissions. Thus, climate regulation measures must be taken at an international level, given that the environment is supranational so it can only be regulated at an international level through agreements between States. At the international level, the first attempt to combat polluting emissions was made on the 9th May 1992, when, under the aegis of the United Nations, the Rio di Janeiro Convention United Nations Framework Convention on Climate Change - UNFCCC, was approved. The objectives of this document were to stabilise the concentrations of greenhouse gases in the atmosphere to prevent and avoid dangerous interference with the climate system. However, this Convention had little impact, it was efficacious in that it was a “soft law”, not mandatory and called upon the Parties to commit to a generic pledge to reduce CO2 emissions to their 1990 levels. The international community did make legally binding commitments in the Kyoto Protocol, which offered the first means of actualising the UNFCCC “Framework Agreement”. In this Protocol, the Parties committed to reducing their overall greenhouse gas emissions by 5.2%, with respect to 1990, in 2008-2012. To reduce emissions specific “Units” (called Assigned Amount Units - AAU) were allocated to each country which then had to stay within the limits of the units it had been assigned. To meet these obligatory targets, the States that had signed could use specific “credits” by adopting any of three options for flexibility: joint implementation, clean development and emission trading. Of the three, emission trading plays the most crucial role. Emission trading implies setting a cap on the emissions permitted, with a system for allocating “emission quotas” and then, trading them. Art. 17 of the Protocol establishes that those countries that receive these AAUs, and who can manage to keep their emissions below their target, can then sell their “surplus” AAUs to other countries that, by buying them, are able to reduce theirs, i.e., offset their excess emissions and, by doing so, “meet” their obligatory reduction target. Nowadays, the rules and regulations for the battle against climate change are those laid out in the Paris Agreement, drawn up in December 2015. One hundred and seventy-five countries attended the opening ceremony, which marked the signing of the agreement, This was followed by a rapid ratification process, which enabled the Agreement to come into force on the 4th of November 2016. This Agreement marked an important moment in the development of international action, with respect to its predecessor the Kyoto Protocol, which latter had had a rigid conceptual and normative structure, and, almost 20 years after its adoption, in 1997, no longer reflected the needs, or aims, of the international community. Thus, the Paris Agreement overcame the rigidity of the Kyoto Protocol and began to replace it in the international community’s actions to thwart climate change by implementing the objectives and the principles, sanctioned by the framework convention of 1992, on climate change that still underlie international actions on the question. As regards the juridical nature of the Accord, one could argue that it is a binding international treaty as defined by Art. 2, par. 1, lett. a) of the Convention of Vienna. Indeed, it can indubitably be defined as a written agreement drawn up between States and regulated by international law regardless of what it has, in reality, been termed. This is true even though many of the provisions of the Paris Agreement do not establish precise obligations for actions or for results, but it could also be defined as provisions of “due diligence” as has been, correctly, stated. The main evidence of this is that there are no binding obligations for the Parties to reduce their greenhouse gas emissions, something which, in the Paris Agreement, was replaced by a system of non-binding mitigation, to be set up autonomously, and voluntarily, by each Party. Whether or not these national contributions are respected, is subject only to indirect, facilitative checks carried out by the institutions provided for in the Agreement. The non-binding nature of most of the provisions of the Paris Agreement is confirmed by the fact that, as regards the non-binding national mitigation contributions, many countries have opposed the use of the word “shall” instead of “should” when establishing the obligations of the Parties. Furthermore, with the use of the phrase “non-binding national contributions” instead of “binding obligations for reducing”, which was used in the Kyoto Protocol, there is a clear and unequivocal desire, of the Parties, not to be subjected to binding obligations such as those enshrined in the Paris Agreement. At the European level the Kyoto Protocol was ratified by the EU on the 2nd of June 2002, while the Directive proposal, presented on the 25th of October 2001, was adopted two years later, on the 13th of October 2003 (Directive 2003/87/EC of the European Parliament and Council 13 10 2003 that set up a system for exchanging emission quotas of greenhouse gases in the Community which modified Directive 96/61/EC of the Council). The Directive introduced an exchange system (that was to become operational on the 1st of January 2005) on the basis of which plant managers were assigned a certain number of quotas of emissions that they were permitted to produce. The total number of quotas assigned determined the maximum limit, the cap, of emissions that all the participants in the system could produce globally. Those who managed to stay at, or below, this cap were considered to be “emission creditors” who could concede “credits” to other States that had exceeded theirs. The reward function of this regulation is clear, in that those who do not manage to reduce their emissions must acquire “credits” from others in order to “achieve” their cap level which they have exceeded. In general, the Directive rests on two pillars: the authorisations, which all plant managers participating in the system must acquire, and the emission quotas themselves, measured and expressed in equivalent tons of CO2, which allow their owner (the plant manager) to emit one ton of carbon dioxide per year. Each year, by the 30th of April, plant managers must declare the emissions released by the plant during the previous solar year and these must correspond to those noted in the Register. When they the quotas available have been exceeded, they risk sanctions. The Directive provides for another important institute: the National Register. Given that the quotas only exist in electronic form, each interested party can hold quotas and withdraw them from the market so long as they have an open account with the National Register. National Registers are essential, not only as a way of supervising exchanges at the level of companies, but also to check that the commitments, made by the member States through the Agreement to share the burdens, are being respected. The 2003 Directive was subsequently modified by the “Linking Directive” emanated in 2004 (Directive 2004/101/EC of the European Parliament and Council of 20th of October 27 contains a modification of Directive 2003/87/EC that sets up a system permitting the exchange of emission quotas for greenhouse gases in the Community, in relation to the mechanisms of the project in the Kyoto Protocol) with the aim of opening up the Community system of exchanging emission quotas to project-based mechanisms (JI and CDM). The 2003 Directive was further modified by the 2009/29 Directive (Directive 2009/29/EC of the European Parliament and Council of 23rd April that modified Directive 2003/87/EC with the intent of perfecting and extending Community system for exchanging quotas for emissions of greenhouse gases), which sought to resolve some problematic issues that had emerged after Directive 2003/87 had been emanated, and which had sought to rationalise, and extend, the scope of application of the ETS system. Currently, the Emissions Trading System, as updated in the light of Directive n. 2018/40, falls within the wider circle of the “Package for climate and energy 2020 and, consequently, also within that of the “Framework for climate and energy 2030. In this latter, the European Union has committed to reducing greenhouse gas emissions to at least 40% below 1990 levels. In line with the international trend, in this important mitigation plan whose measures are, on the one hand, improvements of at least 32.5% as regards energy efficiency and, on the other, an increase of at least 32% in the amount of energy from renewable sources consumed, there is a note: “European strategy for adapting to climate changes”, that seeks to minimise the economic, environmental, and social impact of climate change. Given the constraints and obligations that weigh upon States, and the centrality of the principle of the effectiveness of the safeguards, the quaestio of the remedies for climate change is crucial. One particularly important aspect is the controversial opportunity offered for individuals to challenge international and European obligations in Courts. One of the principles for such judicial action can be found not only in the already mentioned international Conventions, but also in the Oslo Principles on Global Climate Change Obligations of 1st March 2015. This Charter of principles, drawn up by a group of internationalists from various countries, affirms that notwithstanding the fact that there are no binding treaties, and that States do have a margin of discretion when deciding how they will fulfil their obligations, both international law, above all the precautionary principle, and individual national legal systems, may well be able force governments to adopt all measures that aim to prevent any climate change that could lead to a rise of more than 2°C above that of the level of the pre-industrial era. Among the various actions against governments, both those announced and those underway, is that brought before the Supreme Court of the Netherlands which resulted in a recent sentence regarding the climate emergency. This sentence stated that the National Government must reduce the levels of both CO2 and other greenhouse gas emissions by 25%, with respect to 1990 levels, by the end of 2020. Unlike the fiscal approach, according to which an order to “create legislation” is not admissible and that it would have an impact on the system of the separation of powers, the Court recognised that there was a real and proper positive obligation for the State to protect the lives and health of its citizens. Furthermore, in support of the Court’s reasoning, Articles 93 and 94 of the Dutch Constitution establish that the State must observe every disposition of the European Court of Human Rights, in that every part of these is binding; thus, since the Netherlands comes under the jurisdiction of the European Court of Human Rights (ECHR), Dutch Courts must interpret the articles of the Convention in the light of the same hermeneutic parameters as those adopted in The Court in Strasbourg. The guarantees enshrined in Articles 2 and 8 of the European Court of Human Rights — the right to life and to respect for private and family life — mean that there is a need to take steps to prevent, even from the standpoint of the precautionary principle, prejudices related to climate change. Since measures of mitigation must be taken to reduce greenhouse gas emissions by at least 25%; from the emissions of greenhouse derives, according to the logic of the decisum, the fact that the Court can order that such measures be adopted. If it were not so, it would infringe a fundamental rule of constitutional democracies, that of the right to effective recourse: Article 13 of the UDHR. Thus an “order to create legislation” would be admissible, since there is no general prohibition of interference on the part of the Courts within the political decision-making process so, when necessary, as laid down in Article 94 of the Dutch Constitution, “the courts must disapply legislation if any binding provisions of treaties entail such.” According to the Dutch Supreme Court, conflicts with the principle of the separation of powers would only occur if the Courts were to order the creation of legislation with a specific, concretely defined content; identifying the “final aim”, that of reducing greenhouse gas, would not affect the freedom of State legislators to choose the measure or measures to be adopted to achieve their desired objectives, in the best, and most efficient, way. Still in the Netherlands, in a more recent case on the 26th of May 2021, the District Court of Aja ordered Royal Dutch Shell to reduce its CO2 emissions by 45%, with respect to 1990 emission levels, by 2030. The Judge decided that the Company was obliged to adopt a Company policy that would reduce their CO2 emissions. The decision is based on the unwritten principle of due care, established by the Dutch Civil Code and interpreted by judges in the light of international soft law. The sentence is important, (perhaps even revolutionary) because violation of the obligation to reduce emissions is not envisaged and, indeed, improvements in the sustainability of the activity is recognised. However, there is a perceived lack of concreteness, connected to individual responsibility for climate change. This responsibility is not linked to State actions, and it manifests as an obligation of result and of best efforts with suppliers and clients upon whom the company is asked to use its influence through the Group’s internal policies. Thus, the Company does have a free choice in how it will meet the objective of reducing emissions, but is obliged to do so, to meet the objective(s). In light of the above, it has to be noted that climate change is a sensitive global issue that requires strong international cooperation. Several measures have already been taken both at an international and European level. However, to stabilise the concentrations of greenhouse gases in the atmosphere and, hence, the temperature of the planet, policies aiming to mitigate climate change that involve all sectors are necessary. In addition, the challenge of international and European obligations remains a crucial point for individuals, with a jurisprudence still in constant evolution.