Italy

Italy has not experienced litigation against private actors for their operations that allegedly lead to more climate change. Nevertheless, a case could be based on the following grounds;

• Tort Law: The constitutional court has recognized the applicability of the civil liability norm (Art. 2043 civil code) to cases of injury to human health and the integrity of the environment. (Decision no. 247/74, Constitutional Court [1974], decision no. 184/86, Constitutional Court [1986])

• EU Environmental liability law: Environmental Liability Directive (Dir. 2004/35). It defines “damage” as “a measurable, adverse change in a natural resource or a measurable impairment of a natural resource service which may occur directly or indirectly” (Art. 2.2). Considering that it specifies that the damage can be caused through “airborne elements”, it can be applied to climate change-induced impacts.

 The Directive does not, however, apply to cases of personal injury, damage to private property or any other economic loss (Recital 14, Dir 2004/35).

Standing: To bring a case against a private actor, an individual must allege to have suffered a personal damage (Art. 2043 Civil Code). In case of damage from climate change, the plaintiff would have to prove the causal connection between such individual damage and climate change, and between the actor’s conduct.

Moreover, the Ministry for the Environment has legal standing to sue private subjects considered to be responsible for climate damage when they fall under the definition of environmental damage pursuant to the EU Directive 2004/35 (integrated into Italian Environmental code). Conversely, persons affected or likely to be affected by environmental damage cannot directly sue the responsible actors under the directive but can submit observations and request the Ministry to take action.

Remedies: Under tort law, the court can grant compensation to the injured party (Art. 2043 Civil Code). Courts can also grant orders for measures to prevent environmental harms. (Decision no. 641/1897, Constitutional Court [1987]).

Under the Environmental Liability Directive (Annex II of the Dir. 2004/35), remedies for environmental damage can be restorative, complementary, or compensatory. Compensation consists of “additional improvements” to the protected environment and not financial compensation to the members of the public (art. 1.1.3 Annex II).

Under Article 311 of the Environmental Code, an action by the Minister for the Environment should aim at restoring the environment. Consequently, monetary remedy must be provided only when restorative measures have been taken in an incomplete way or in a different form to what prescribed by the Minister and only to pay the costs of completing or correcting the restoration (art.5 bis D.L 135/2009).