Propietà e diritti reali - vol. 3 (Il diritto privato nella giurisprudenza) (Italian Edition)

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Set up a giveaway. There's a problem loading this menu right now. Learn more about Amazon Prime. Get fast, free shipping with Amazon Prime. Get to Know Us. English Choose a language for shopping. Amazon Music Stream millions of songs. Amazon Advertising Find, attract, and engage customers. Edizioni Scientifiche Italiane, , , Renovar, and , I and II. The abandonment of waste on soil does not necessarily involve a contamination of environmental matrices. Jannarelli, n 23 above, For a comparative study on the right to property see S.

Il Mulino, 3th ed, , For a reading of the right to property in the light of constitutional legality, see P. Jovene, ; A. Edizioni Scientifiche Italiane, , passim; E. Edizioni Scientifiche Italiane, , ; U. For a historical framing of the property see P. The only obligation on the owner who is not responsible — besides the previously mentioned obligation to communicate an actual or apprehended contamination of a site to territorial authorities — is to carry out preventive measures Art , para 2, Environmental Code , ie initiatives aimed at countering an event that constitutes an imminent threat to the environment.

This encumbrance is only meant to cover a reimbursement of the costs of the environmental rehabilitation undertaken by the public administration to substitute for the punishment of those responsible for the contamination. For a trend that is developing with respect to the liability ex Art Civil Code of the owner who is not responsible for the pollution as the guardian of the contaminated site see Tribunale di Ferrara 17 January no 65, Tribunale amministrativo regionale Veneto-Venezia 8 February no , Tribunale amministrativo regionale Veneto-Venezia 8 February no , available at www.

Environmental liability is cast as a special liability system derived from general tort Arts ff Civil Code and is viewed in such a way by the majority of administrative justice. This precludes the extension of Civil Code Art relating to liability for operation of dangerous activities and Art Civil Code relating to damages to things in custody to environmental damage or to issues of rehabilitation.

Moreover, even if the Court wanted to, by analogy, apply Art Civil Code, this kind of liability could not be mapped onto this type of environmental harm due to the fact that a corporeal possession of the estates upon pollution is lacking. Art , para 4, Environmental Code, in fact, points to the general criteria to be applied to future rehabilitated sites in cases of diffuse pollution; in the alternative, such sites may also be the object of specific provisions contained in special plans approved by Regions.

European Court of Justice 4 March n 2 above, para The owner of the contaminated site who has not contributed to the contamination in any way cannot be held accountable under an objective liability test. This Directive, in accordance with Art TFUE, allows Member States to maintain or to introduce more stringent protective measures, including that additional activities may be subject to obligations of prevention and remediation and that additional responsible parties may be identified.

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The elements of subjective liability were inadequate compared to the actual requirements for imposing liability: The non-polluting owner must — at least, if he wishes to remain the owner of the property and not be subject to expropriation — necessarily undertake the burden of rehabilitation. The administrative courts, in accordance with Art , para 3, Environmental Code, held that the notice issued to the person responsible for contamination must also be sent to the non-polluting owner, in order to apprise him of both the encumbrance and the special security interest and to allow him to exercise his right to initiate the rehabilitation.

The collateral system provided for in Art Environmental Code induces the non-polluting owner — frequently in cases of inaction, or of failure to identify the responsible person, or of non- fulfilment of executive action — to bear the costs of environmental restoration. The public administration creditor may legitimately initiate an action for recovery of costs against a non-polluting owner, but only after officials have carried out a diligent investigation to establish the identity of the person actually responsible.

Indeed, a voluntary rehabilitation of the land by the non-polluting owner does not negate this administrative responsibility. Only by virtue of a reasoned decision and the provisions of legge 7 August no , the maximum reimbursement the non-polluting owner can be required to pay is the market value of the land, which must be determined after the implementation of measures to be taken by the competent authority Art , para 4, Environmental Code. The wording of the provision appears to preclude recovery in cases of rehabilitation by the public administration where the public administration has been reimbursed by the non-polluting owner through an encumbrance.

An action for compensation for further damage is determined by the general rules of civil liability.

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Salanitro eds, Principi europei e illecito ambientale Torino: Giappichelli, , Recital 2 of the Directive specifies that: The principle — which is compensatory rather than punitive in nature — is premised on the notion that environmental justice requires the prevention of environmental damage, especially with regard to professional activities which pose a risk to health or the environment. The Environmental Code separates matters that have many common features into two distinct parts: A responsible person, faced with an event that could potentially contaminate a site, may choose to initiate the rehabilitation procedure pursuant to Art Environmental Code or, alternatively, to activate the procedure for the adoption of the necessary measures for prevention and emergency safety pursuant to Art Environmental Code.

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The substantial connection between the scope of the two provisions indirectly derives from their identical notification procedures: Art , para 48 M. Salanitro eds, n 47 above, and Ponzanelli ed, Liber amicorum per Francesco D. Il diritto civile tra principi e regole Milano: Cedam, , According to both procedures, the responsible party has an obligation to communicate the potential contamination to the municipality, the province, the region and the prefect of the province, who, in turn, inform the Environment Ministry. Following the conversion of decreto legge 25 September no , 50 L.

A recent confirmation is by Consiglio di Stato 26 September no , available at www. In this sense, see L. In line with the original provisions of the Environmental Code, the legislative amendments did not affect the subjective nature of the liability of the polluter, nor did they eliminate the consequences for a violation of the Directive.

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Despite the proliferation of tort cases in environmental liability, there is a marked retreat from the use of responsibility rules, as the function of property is used as a tool of restoration Art 42, para 2, Constitution. The understanding that property has a social function is intended as an effective environmental protection when contaminated sites are to be rehabilitated.

The rules of liability, supported by subjective parameters, did not — until the amendments made in — ensure identification of the person actually responsible for the contamination and, in fact, while inspired by a policy preference for objective imputational criteria, actually defeated their intended purpose. The legge europea marked a confused return to a form of strict liability, poorly coordinated with the rules contained in the Environmental Code Arts bis and , para 2.

The current legal regime on environmental damage has finally — despite persistent contradictions — brought the Italian system into line with EU legislation, allowing for the application of strict liability to dangerous activities listed in Annex V as well as to energy industry, refineries, coke ovens, chemical activity, mining, production and processing of metals and waste 54 V. In both Art and the new Art bis56 of the Environmental Code, there is a reference to strict liability for damage caused by any activity listed in Annex 5 to Part VI of the Environmental Code.

In both the original formulation of Art of the Environmental Code, before its amendments,57 and in that currently in force, a subjective test determines liability for damage to protected species and natural habitats. These elements combine to obfuscate the application of the framework of environmental liability. The major review of Part VI of the Code, although incomplete and unsystematic, implemented some fundamental changes: The text of Art sets forth elusive and contradictory formulations of European law: The aim of this approach is to foster the internalisation of negative externalities — ie the costs of environmental alteration — into enterprise budgetary planning as part of corporate social responsibility.

It does this in order to avoid that the owner could derive an unwarranted benefit from the rehabilitation of the polluted site,60 according to the principle provided for by Art Civil Code.

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Edizioni Scientifiche Italiane, , passim; G. Goisis, n 40 above, Giampietro, n 7 above, , states that the Art , para 4, Environmental Code derives from the unjustified enrichment principle ex Art Civil Code in case law see Tribunale Amministrativo Regionale of Sicilia-Catania 20 July no no 53 above and, therefore, it is open to criticism, as it imposes on the Public Administration heavy and unnecessary burdens of proof referred to in para 3 given the residual nature of the unjustified enrichment action.

Jovene, , Its regulation of dangerous activities is also congruent with the principle of the social function of property and corresponds to European law as interpreted by the ECJ.

These contaminated properties are destined for environmental rehabilitation, in the personal, social and environmental interest. Corriero, Autonomia negoziale e vincoli negli atti di destinazione patrimoniale Napoli: In its referral orders to the ECJ for a preliminary ruling,70 the Consiglio indirectly intended to allow the public administration to require the reimbursement of rehabilitation costs which amounted to more than the value of the site.

In this regard, the dissenting judgments, demurring to the correctness of the majority view, do not justify the decision of the Consiglio to refer this point of disagreement to the ECJ, only seeing some possible justification for it in the desire to devise a method to hold the polluter responsible.

Administrative case law resolves the problem by attaching these costs to the property by virtue of the constitutional principle of the social function of property Art 42, para 2, Constitution. Perlingieri, Leale collaborazione tra Corte Costituzionale e Corti europee.

Per un unitario sistema ordinamentale Napoli: In cases where a competent authority acts, itself or through a third party, in the place of an operator, that authority should ensure that the cost incurred by it is recovered from the operator. With respect to prevention, enterprises must internalise the potential costs of environmental alteration by incorporating such costs into commodity prices. It therefore appears unlikely that these costs, included in the costs of production, would lead to a decrease in the price of goods; they would, rather, lead to an increase.

The different opinion of the Consiglio di Stato75 contradicts the principles of the Consumer Code decreto legislativo 6 September no , as it necessarily imposes the burden of decontamination costs on the consumer.

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In fact, the social costs borne by the collectivity, both ex ante and ex post, would decrease if all enterprises were — in accordance with the prevention and precautionary principles — required 72 Consiglio di Stato-Adunanza Plenaria ordinanza 13 November no 25 n 1 above, para The Encumbrance on the Contaminated Site as a Burden Imposed in the Personal, Social and Environmental Interest Placing encumbrance under the rubric of contaminated sites confirms the need to reinterpret it in a historical-comparative perspective.

Pennasilico ed, n 16 above, Cendon ed, Scritti in onore di Rodolfo Sacco. The overcoming of the inviolable concept of ownership as established by the Constitution, which defines the prevalence of the social interest in terms of balancing the interest of the owner, is analyzed by S. Branca ed, Commentario della Costituzione Bologna-Roma: Zanichelli-Foro italiano, , With particular reference to the properties of polluted sites, see P.