Environmental pollution offence: relevant conduct for the purposes of establishing the unlawful act

Article 452 bis of the Criminal Code, concerning environmental pollution, provides that: 

“A penalty of imprisonment from two to six years and a fine ranging from EUR 10,000 to EUR 100,000 shall be imposed on anyone who unlawfully causes significant and measurable impairment or deterioration:

1. of water or air, or of extensive or significant portions of the soil or subsoil
2. of an ecosystem, biodiversity, including agricultural biodiversity, flora or fauna.

When the pollution is produced in a protected natural area or an area subject to landscape, environmental, historical, artistic, architectural or archaeological constraints, or to the detriment of protected animal or plant species, the penalty shall be increased by between one third and one half. In the event that the pollution causes deterioration, impairment or destruction of a habitat within a protected natural area or subject to landscape, environmental, historical, artistic, architectural or archaeological constraints, the penalty shall be increased by between one third and two thirds”.

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The provision therefore punishes anyone who illegally causes significant and measurable impairment or deterioration of water, air, soil, subsoil, ecosystems, biodiversity, flora or fauna. The offence can be committed either through an action or an omission, and the regulation does not define the possible punishable conduct but punishes the occurrence of the harmful event of environmental damage.

The conduct is abusive to the extent that it is carried out in violation of state/regional regulations or administrative authorizations.

On the element of abusiveness required for the offence of environmental pollution, the Supreme Court has stated that “abusive” conduct, capable of constituting the offence referred to in Article 452-bis of the Criminal Code, includes not only that carried out in the absence of the prescribed authorizations or on the basis of authorizations that have expired or are clearly unlawful or in any case not commensurate with the type of activity required, but also that carried out in violation of state or regional laws - even if not strictly pertinent to the environmental sector - or of administrative prescriptions” (Sez. III, 27 April 2018, no. 28732, in C.E.D. Cass., no. 273565-01).

This may include, for example, illegal discharge, emissions exceeding limits, illegal waste management, or the dumping of waste.

The provision also specifies that the impairment or deterioration must be significant and measurable.

On this point, the Court of Cassation has clarified that ”it is a criminal offence of damage consisting in an act of damage, caused in an alternative form and which, in the case of “deterioration”, consists in a reduction of the thing that constitutes its object to such an extent as to significantly diminish its value or to prevent, even partially, its use, or to make restoration require a significant effort, while, in the case of “impairment”, it consists of a functional imbalance that concerns the relationship between the affected asset by man and the needs or interests that the same asset is intend toed satisfy” (Sec. III, 4 January 2023, no. 17400, in C.E.D. Cass, n. 284557).

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With reference to this offence, a recent ruling of the Criminal Court of Cassation, section III, dated 11.02.2026, no. 7066 clarified that “On the subject of environmental pollution pursuant to Article 452-bis of the Criminal Code the existence of the conduct of significant and measurable “deterioration” or “impairment” of the environment does not necessarily require specific technical investigations, since the event can be inferred from the concrete factual circumstances, when immediately and easily perceivable”, since environmental damage can therefore be assessed even in the absence of specific technical assessments. 

Furthermore, it is “an offence of damage, the proof of which does not require the performance of technical assessments, the empirical evidence of the negative consequences of the conduct being sufficient” (Criminal Court of Cassation section III, 13/02/2025, no. 12514).

The latter ruling also clarifies that “the mitigating factor of voluntary disclosure may be supplemented only by remedial conduct that has resulted in concrete benefits for the environment”.

On this point, it should also be noted that the offence referred to in Article 452-bis of the Italian Criminal Code constitutes a predicate offence for the administrative liability of legal entities pursuant to Legislative Decree No. 231/2001, Article 25-undecies.