In the context of the environmental reclamation procedures governed by Legislative Decree 152/2006, case law is consolidating the principle according to which, in the presence of a plurality of parties that have contributed - even in a non-simultaneous manner - to the contamination of a site, the responsibility for the reclamation is joint and several.
The “Preponderance of the evidence” criterion
Administrative case law, for some time now, has clarified that, for the identification of those responsible for the contamination, the criminal standard of “beyond a reasonable doubt’ does not apply, but rather the civil law criterion of “Preponderance of the evidence”. Therefore, it is sufficient for the administration to prove, including circumstantial evidence such as geographical proximity or a match between emitted and detected substances, that a subject has probably contributed to the pollution.
Joint and Several Liability under the Polluter Pays Principle
The recent judgement of the Council of State, Sec. IV, 10 March 2025, no. 1969 reiterated that, when it is not possible to distinguish the effects of individual conduct causing environmental damage, remediation efforts must be unified and jointly and severally borne by all the parties held responsible. The Court has emphasised that it is not a question of evading the ascertainment of the causal link, but of enhancing the high probability that several parties contributed to the pollution. In this sense, the administration may legitimately issue a single reclamation order pursuant to Article 244 of Legislative Decree 152/2006, even in the absence of direct evidence, provided it is supported by a coherent preliminary investigation grounded in objective evidence.
Internal apportionment and right of recourse
Joint and several liability operates vis-à-vis the public administration, which may recover the full amount from any of the jointly liable parties. However, this is without prejudice to the right of internal recourse (Article 253, para. 4, Legislative Decree 152/2006), whereby the party that has borne the costs of the clean-up may take action against the other co-responsible parties to obtain reimbursement on a pro rata basis, according to their respective degrees of responsibility.
When does proportional liability apply?
Proportional liability may only apply when environmental damage is ontologically distinct and distinguishable, e.g. by origin, nature or time period. In such cases, each party will only be required to perform the remedial actions necessary to remove the damage caused by it.
Conclusions
The most recent case law confirms a fundamental principle: the protection of the environment and public health requires prompt action, even in the presence of uncertainties as to the exact causal contribution of individual parties. In this framework, joint and several liability is an effective tool to ensure the effectiveness of clean-up obligations, without prejudice to the later determination of each party’s individual liability.
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Authors of this note are Delia Schiaroli, Raffaele Arcadi and Alessandro Castellini.
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