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;

  • 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).

In Italy, there has been no case challenging the government’s approval of projects that leads to increased emissions or ineffective adaptation.

However, a case could be based on breach of environmental impact assessment (EIA) requirements. The EU’s EIA Directive (Directive 85/337 codified by Directive 2014/52), implemented in Italy through a framework legislation (Legislative decree no. 152/2006, known as “Environmental Code”)  requires the EIA process to include an assessment of the effect of the project on the climate (Art. 3 Directive 2014/52). Where the direct and indirect effects of a project on the climate are not included in the EIA process or where EIA has not been validly conducted, citizens can challenge authorization of the project before the administrative court.

Standing: Both individuals and associations can challenge the approval of projects before the administrative judge. To have standing, private citizens must prove the geographical nexus and potential harm arising from the violation of the EIA process. Environmental associations which have been identified as having national character under the Law 349/1986 are exempt from providing evidence of sufficient standing.

Remedies: If the court finds that the EIA has not been validly carried out, any permit, opinion, or license relating to the project may be revoked. If the EIA is found to be incomplete, the authorization for the project may be annulled. Some regional laws also provide for administrative monetary fines, in addition to the penalties envisaged by the Environmental Code.

Italy has experienced litigation challenging the state for ineffective climate action. In the case A Sud et al. v. Italy, filed in June 2021, a group of associations and citizens  filed a case against the government alleging that the state has failed to take sufficient measures to meet the Paris Agreement’s temperature goals. At the time of preparing this summary, the case had not been heard. The case is based on the following grounds:

  • Human rights: The plaintiffs allege that:
  • International climate obligations: The Claimants derive the State’s climate obligations from the UNFCCC, Paris Agreement and EU Regulations nos. 2018/842, 2018/1999, 2020/852, 2021/241 Having signed international agreements and instruments on climate change, the State is obliged to fulfill the obligations and do so in good faith (Convention on the Law of Treaties, Art. 4 n.3 TEU, Articles 1375 and 1175 of the Italian Civil Code). While relying on caselaw, the plaintiffs further allege that;
    • International climate laws must be framed within the Italian constitutional system (Constitutional Court decision no. 124/2010; 85/2012; Council of State (V Section) decision no. 4768/2012 and (Section VI) no. 4567/2016.
    • The Paris Agreementis the first universal and legally binding climate treaty, and the international climate laws entered by the EU must be considered as EU law, and thus as directly applicable in Italy. (Supreme Court (Section V), no. 4568 and 2572/2021).
  • State responsibility under civil law. The plaintiffs argue that the state has violated its civil responsibility under Articles 2043 and 2051 of the Italian Civil Code. Article 2043 requires any person who causes unjustified injury through an intentional or negligent act to compensate the injured party for harm. Courts have extended the applicability of this provision to the state and asserted that civil liability includes preventing harmful consequences of inaction and regression (Decision no. 641/1987, Constitutional Court [1987])
  • According to Article 2051 of the Civil Code, everyone is responsible for the damage caused to the things in their custody. The plaintiffs argue that the state is responsible for the damage caused to the natural resources (including the elements of the climate system), which according to Art. 117 of the Constitution, are under its sovereignty in the Italian territory. Furthermore, that the State’s role of stewardship towards natural resources is based on international law, including: the Universal Declaration of Human Rights, the UN Stockholm Declaration on the Human Environment, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

In A Sud et al. v. Italy, the plaintiffs are seeking the following remedies:

  • A declaration that the Italian state is responsible for the dangerous situation resulting from its inaction in combating the climate emergency; and
  • An order directing the state to reduce greenhouse gas emissions by 92% by 2030 compared to 1990 levels.

Standing:  According to civil procedure code (Art. 100), in order to bring an action, one needs to have an interest in it. This interest is determined by the existence of an advantage or benefit that could not be obtained without the judge’s intervention.

Where one alleges violation of personal right(s), the mere allegation of entitlement to the right(s) alleged to have been violated is sufficient to establish standing.

Regarding cases before the administrative court for the annulment of unlawful acts, Italian law grants standing to environmental associations which have been recognized as having “national character” by the Minister of the Environment (Articles 13 and 18.5 of the Law no. 349/1986).