The system of liability of the pollutant "from pure causality" outlined by the Court of Cassation, with the ruling in question, seems to stand, on the one hand, in contrast with the evolution of the Euro-unitary system in terms of environmental responsibility, - where, also by means of the "polluter pays" principle, a system of objective responsibility for this subject is privileged, on the other hand in friction with the general principles on the subject of responsibility, when the responsibility of the pollutant as a form of responsibility other than the objective one. Further issues of great interest to the interpreter concern the legal nature of the claim by the owner against the pollutant and the partial nature of the environmental remediation obligation. These elements lead to a reflection on the self-sufficiency of the environmental responsibility system or its permeability with respect to the general principles of responsibility.

Edoardo Pellegrino - Decontamination of the polluted site between spontaneous activation of the non-polluting owner and polluting subject’s “pure causality” liability (note to judgement Cass. civ., sez. III, 22 gennaio 2019, n. 1573)

SOMMARIO:

1. The case. - 2. Preamble: regulatory and judicial framework and guiding principles of the subject. - 2.1. Jurisdiction on the verification of the person responsible. - 3. Polluant liability model: “liability for pure causality”. - 3.1. First corollary: compensation in the event of voluntary decontamination and compensation in the eventi of an “ex officio” intervention by the public administration. - 3.2. Second corollary: passive solidarity. - 3.3. Strict liability. - 3.4. – Critical remarks.

1. The case.

The Supreme Court, with its recent pronouncement[1], gave an interesting interpretation of the question regarding voluntary decontamination of polluted locations by a non-polluting owner. 

In particular, the judges deal with the issue by analyzing all the civil aspects of greater importance, especially dwelling on the nature of the responsibility of the polluting owner. 

Another particularly interesting aspect of the pronouncement pertains to the different legal consequences, also referring the lawsuit that can be brought against the person responsible for the pollution. This implicates the voluntary decontamination by the non-polluting owner, compared with the case in which the latter arises from an administrative act, with which the public authority communicates the unofficial activation of the process aimed at decontamination. 

In this case, Alfa company acquired a site from Beta company, which had acquired it from Gamma company. Once the pollution of the subsoil had been noticed, the Alfa company voluntarily reclaimed the land, in accordance with articles 239 of the d.lgs. 152/2006 (environmental “T.U.”). The company then sued the Gamma company, asking for the refunding of all the costs incurred for the decontamination, pursuant to article 253 c.4 d. lgs. 152/2006 or, alternatively, to article 2043 c.c., on the basis of the existence of a bond of solidarity between the two companies justifying the claim for the refunding of all the incurred costs.

The judge of the first instance and the appellate judge verified the responsibility of the Gamma company, since it was in possession of the site in the period between 1976 and 2007 and conducted a business on the site of washing and maintenance of public means of transport.

The judges concluded that the company was to be held responsible for having omitted to the precautions necessary to avoid pollution. With this last pronouncement, however, the judge denied the existence of the bond of solidarity and sentenced the Gamma company to refund two-thirds of the decontamination costs.

Consequently, the Alfa company lodged an “appeal in Cassation” against the judgement of the court of the second instance, whilst the Gamma company submitted a cross-appeal and a defence. The latter claimed the existence of the bond of solidarity and the former contested that the other company could bring an action according to article 253 “T.U. ambientale” and questioned the existence of responsibility pursuant to article 2043 c.c., for lack of negligence.

[1] The reference is to Cass. 22 January 2019 n. 1573 in annotation.

2. Preamble: regulatory and judicial framework and guiding principles of the subject.

The subject of environmental protection is particularly delicate, as can be seen from the specific legislation both supernational and national, and as proven from the fact that this legislation concerns civil, administrative and criminal aspects.

The decontamination of polluted sites, from a phenomenal point of view, is a particular exemplary case compared to those of real environmental damage, since in the first case a damaging occurrence has not happened yet, but there is a concrete risk that it may happen. 

In general, the legislation that regulates environmental question is guided by four fundamental principles[1], that are contained in article 191 T.F.E.U., and transposed to the Italian T. U. environmental.

The first two principles concern caution[2] and prevention; these may seem overlapping but are to be considered different.

With the first one, we refer to the management of unsure risks, the second one refers to actual risks[3]. Essentially, it the caution principle entails the obligation to act in order to avoid potential risks, the prevention principle concerns the management of real and concrete risks.

The third principle is about correcting environmental damages right from the beginning.

The fourth principle, which is fundamental for our analysis, is the so called “if you pollute, you pay” principle[4].

These principles are provided by European le and by Italian law, specifically by article 3 ter d.lgs. 3rd April 2006 n. 152, that provides that “the protection of the environment and of natural ecosystems (…) has to be assured by all public and private authorities and by natural and legal persons – public or private – through an appropriate action which is inspired by the rules of precaution, of preventive action and also by the ‘if you pollute, you pay’ principle”.

The “if you pollute, you pay” principle is also stated by the specific framework that regulates the decontamination procedure and the securing of the polluted site, given by “titolo V parte IV T.U. ambientale”, in particular by article 239. Moreover, for what concerns the peculiar obligations of prevention measures, of securing and decontamination, article 242 of the T.U. environmental states that these obligations are on who altered or compromised the environment.

The problem arises when environmental pollution emerges, but the polluting person is not the land-owner.

As national[5] and supernational[6] judges have clarified, there is no legal obligation for the non-polluting owner to decontaminate. He only needs to avoid causing environmental damage, taking any urgent and temporary necessary measure; in the Italian legal system there is no legal prevision that obliged the non-polluting owner to decontaminate the site. These conclusions are direct corollaries of the “If you pollute, you pay” principle, a principle which therefore prevents negative external effects of pollution from falling back on the community, and consequently, makes it possible for the person responsible for the pollution to be inseparably connected to the decontamination of the site he has polluted.

Otherwise, the position of the owner who is not responsible is made up of both obligations (obviously less trenchant than those of the polluting person) and of a faculty.

In particular, pursuant to article 245, the non-responsible owner, once the polluting fact has been verified (or the distance from the CSC, that is the level of contamination), must inform the Region, the Province and the Municipality and must carry out prevention measures, pursuant to article 242. The Province will then identify the person responsible but the owner of the site can intervene at any moment to perform the necessary decontamination. If he does this, he has, according to article 253 c.4, the right to recourse against the person responsible for the pollution, if identified.

On the contrary, as stated in article 250, if the owner for the site (whether responsible or not for the pollution) or the person responsible do not decontaminate the site, the procedure foreseen by article 242 are by official rule carried out by the Municipality concerned.

This rule is connected to that of the article 253, which foresees that operations of decontamination carried out by official rule by the competent authority are burdens belonging to the site. It also foresees that the expenses involved have a special property privilege on that site. Consequently, in the case of a forced operation, the public administration will submit a claim for credit against the non-offending owner, credit that the latter must pay within the limits of the value of the property and therefore, according to some legal writings[7] and some court decisions[8], within the limit of his enrichment.

[1] For an in-depth examination of the fundamental principles that inspire European intervention in environmental matters: B. Caravita, L. Cassetti, A. Morrone (a cura di), Diritto all’ambiente, Ed. Il Mulino, 2016, 88 ss.

[2] The caution principle acquires a decisive role in international law following the overcoming of the so-called "Principle of assimilation capacity" based on the assumption of the suitability of the environment to neutralize by itself a certain amount of harmful effects resulting from pollution, with the consequence that emissions below this "assimilability" threshold were considered permitted. The undoubted difficulties of identifying these thresholds of "assimilability" with scientific rigor have led to the progressive abandonment of this approach and the contextual adoption of the different precautionary logic, to the point of making it a cornerstone of environmental matters. The moment of consecration of the precautionary principle is identified in the Concluding Declaration of the United Nations Conference on Environment and Development, held in Rio de Janeiro in June 1992. Subsequently, the precautionary approach has seen its scope of application expand into sectors different such as that of human and animal health in the food sector (the so-called Cartagena Protocol on Biosecurity of January 2000), up to its applicability in the commercial field in the case of multilateral agreements stipulated at the World Trade Organization, in which however, it assumes significance from the point of view of limiting the freedom of commercial exchanges. The variegated sources that characterize the principle under examination have sparked a doctrinal debate about the juridical nature of the same, with particular reference to its mandatory scope or not. A first approach recognizes its mandatory dimension, making it fall within the general customs or principles of international law. A second approach, on the other hand, relegates the caution principle to a mere indication of a political nature addressed to member states. Particularly refined is a third approach which, enhancing the diversity of the areas in which the principle is enucleated, assigns it a "strong" dimension in some (such as, for example, the environmental one following the aforementioned Rio Conference) a "weak" one in others (such as in the multilateral trade sector). For an in-depth analysis of the precautionary principle, see L. Marini, Il principio di precauzione nel diritto internazionale e comunitario. Disciplina del commercio di organismi geneticamente modificati e profili di sicurezza alimentare, Cedam, 2004; F. Battaglia, Sul principio di precauzione, in Le Scienze, n. 394, giugno 2001, 110 ss.; A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law, in American Journal of International Law , Volume 96 , ottobre 2002, 1016 ss.;S. Marr, The precautionary principle in the law of the sea: modern decision making in international law, Martinus Nijhoff, 2003; G. Manfredi, Osservazioni su ambiente e democrazia, in Riv. giur. amb., 2010, 293 ss; P.G. Marchetti, Il principio di precauzione, in Codice dell’azione amministrativa, M.A. Sandulli (a cura di), Giuffrè, 2011; F. De Leonardis, Il principio di precauzione nell’amministrazione di rischio, Giuffrè, 2005; U. Izzo, La precauzione nella responsabilità civile, in Collana del Dipartimento di Scienze Giuridiche dell'Università di Trento, 2004.

[3] On this point, see the reconstruction of N. De Sadeleer, Environmental Principles. From Political Slogans to Legal Rules, Oxford University Press, 2002, 74-75, 89-90, 117 ss. e 156 ss.

[4] On the value of this principle and the consequent importance of the causal assessment in the matter, see CGUE, 9 marzo 2010 nelle cause C-378, C-379, C-380; CGUE del 4 marzo 2015, nella causa C-534/ 13, resa su rimessione da parte dell’Adunanza Plenaria del CdS con ordinanza di rinvio 25 settembre 2013, n. 21. In dottrina, si vedano L. Meli, Le origini del principio del “chi inquina paga” e il suo accoglimento da parte della Comunità Europea, in Riv. giur. amb., 1989, p. 218; L. Butti, L’ordinamento italiano e il principio del “chi inquina paga”, in Riv. giur. amb., 1990, 411.

[5] On this point, see CdS, 25 gennaio 2018, n. 502; CdS 5 ottobre 2016, n. 4099 CdS, 29 novembre 2016, n. 5023; CdS, Ad. Plen. 25 settembre 2013 n. 21; T.A.R. Firenze, (Toscana), 19 giugno 2018, n. 882; T.A.R. Firenze, (Toscana), 21 gennaio 2018, n. 291; T.A.R. Trieste, (Friuli-Venezia Giulia), 24 febbraio 2016, n. 54; T.A.R. Lecce, (Puglia), 21 maggio 2015, n. 1697

[6] CGUE, 4 marzo 2015, causa C-534/13. Among the numerous comments on pronunciation, see, in particular, CGUE, 4 marzo 2015, causa C-534/13, in which a comparison is offered between the Dutch, Flemish, French, English and Spanish systems.

[7] See in this sense B. Pozzo, voce ‘‘Responsabilità civile per danni all’ambiente’’, in Digesto Civ., VIII Agg., 2013, 593.

[8] T.A.R. Milano (Lombardia), 30 maggio 2014, n. 1373; T.A.R. Trieste (Friuli-Venezia Giulia), 17 dicembre 2009, n. 837; T.A.R. Catania (Sicilia), 20 luglio 2007, n. 1254.

2.1. Jurisdiction on the verification of the person responsible.

After these necessary premises, it is now possible to examine in depth the pronouncement.

The jurisdiction to identify the person responsible for the pollution is a crucial question analyzed in the verdict.

In particular, the party that submitted the cross-appeal in Cassation claims that verification of the person responsible, pursuant to article 245 c.2, and start of decontamination procedures by public administration are indefectible requirements to have the right of recourse stated in article 253.

Essentially, according to this party, in the event of voluntary decontamination by the non-responsible person, there would be no right to recourse pursuant to article 245 c.2, last sentence. Otherwise, the regulations would clash with articles 3 and 23 Constitution, since it would involve a monetary obligation with no reasonably definite requirements. The conclusion is that the exclusive jurisdiction in the identification of the person responsible is up to the public administration, and that the ordinary judge has no jurisdiction.

The judges reject this opinion, declaring that the right of recourse could appear just in the event of voluntary decontamination (about this question, vide infra) and that a necessary and sufficient condition for it is not the identification of the person responsible by public administration, but the undergoing of the intervention of the owner to the procedure stated by the law.

The Court of Cassation states that, according to article 245 c.2 last period, the non-responsible owner could intervene and decontaminate at any moment and, then, whether the person responsible has been identified by the public administration or not. Consequently, since the right of recourse is connected to the voluntary decontamination, it is not necessary to wait for the identification of the person responsible by public authority in order to bring that action 

The Court also states that in the event of voluntary decontamination the identification of the person responsible is up to the ordinary judge and that the potential identification by the public authority is not significant in court, but just under probatory point of view. The judges conclude in these terms also discussing a contrario in relation to article 7 c.1, d. lgs. 19^th January 2017 n. 3, which foresees, in relation to damage compensation caused by violation of the competition law, according to which infringement of right is believed to be permanently verified once the antitrust authority gave a pronouncement which can not be appealed to the judge.

The reasoning of the Court meets essentially the “ubi lex voluit dixit, ubi noluit tacuit” principle.

This approach is after all corroborated by purely logic observations.

The identification of the polluting person allows the public administration to activate its public powers for the forced decontamination, preventing the costs to fall back on the community. If the owner voluntarily decontaminates the site, the interests of the public administration to protect the environment and to allocate the related costs on a certain person are satisfied. Consequently, the question drifts on a private-law point of view and the jurisdiction on the verification of the person responsible can only be up to the judicial authority.

3. Polluant liability model: “liability for pure causality”.

In analysing the characteristic features of the pollutant's liability pursuant to art. 253 c. 4 T.U. environmental, the Supreme Court seems to recognize a new model of responsibility.

In particular, the Court affirms that there is an obligation ex lege arising from a liability "of pure causality"[1], in which all that is relevant is the material connection between the fact of the pollution and the conduct of the subject who caused the event.

The Court specifies that causality has to be understood only in the material sense[2] stated in Articles 40-41 of the criminal code and not also in the legal one pursuant to art. 1223 of the Italian Civil Code: this exclusion implies that when the law refers to "damage", it does so exclusively with reference to the "damage event" and not also with reference to the concept of "damage consequence". Therefore, when the law speaks of "greater damage", it does not refer to loss of profit but to other items of expenditure that are directly attributable to the reclamation, even if they are not an integral part of the related expenditure.

What the law provides, as the Supreme Court clarifies, is an indemnity logic, rather than compensation.

The result that the law wants to achieve is that of blaming the negative externalities with the pollution exclusively on the polluting person, without blaming them on the administration or on the non-polluting owner: it is the manifestation of the "if you pollute, you pay" principle.

Moving on to the structure of the liability in question, as mentioned, the Supreme Court considers it a liability of "pure causality", distinguishing it from objective liability.

In particular, this last form of responsibility would be characterized by the existence, in addition to the necessary causal link, also by the element of the person’s "position", or its relationship with the res that materially triggers the causal course that leads to the verification of the damage event.

However, this differentiation does not seem convincing, since, as it will be seen below, the two forms of responsibility do not seem distinguishable, since both have, as their fulcrum, an etiological link, which is the only true element on which both the objective responsibility and the pure causality are based on.

[1] There are two different approaches to ascertaining the causal link in this matter. According to a first, endorsed by T.A.R. Emilia-Romagna Bologna, 15 febbraio 2017, n. 125, the notion of cause should be traced back to that of increased risk. Consequently, according to this reconstruction, it would not be necessary to achieve a level of certainty in the causal assessment capable of demonstrating the logical probability close to 100%. On the other hand, according to another orientation, followed by the prevailing administrative jurisprudence (CdS, 30 luglio 2015, n. 3756; CdS, 9 gennaio 2013, n. 56; CdS, 5 settembre 2005, n. 4525) ascertaining the causal link between the behavior of the subject and the pollution event must cover the characteristics of certainty.

[2] On the element of material causality in the civil liability, see: C. Castronovo, Responsabilità civile, Giuffrè, 2018; P. Forchielli, Il rapporto di causalità nell’illecito civile, Cedam, 1960; F. Realmonte, Il problema del rapporto di causalità nel risarcimento del danno, Giuffrè, 1967; P. Trimarchi, Causalità e danno, Giuffrè, 1967; P. Trimarchi., La responsabilità civile: atti illeciti, rischio, danno, Giuffrè, 2017, 449 ss..; R. Pucella, La causalità ‘‘incerta’’, Giappichelli, 2007; L. Nocco, Il ‘‘sincretismo causale’’ e la politica del diritto: spunti dalla responsabilità sanitaria, Giappichelli, 2010; M. Capecchi, Il nesso di causalità`. Dalla condicio sine qua non alla responsabilità proporzionalità, Cedam, 2012; G.E. Napoli, Il nesso causale come elemento costitutivo del fatto illecito, ESI, 2012; M. Infantino, La causalità nella responsabilità extracontrattuale. Studio di diritto comparato, ESI, 2012; P.G. Monateri-D. Gianti-M. Balestrieri, Causazione e giustificazione del danno, in Tratt. resp. civ., diretto da P.G. Monateri, Giappichelli, 2016.

3.1. First corollary: compensation in the event of voluntary decontamination and compensation in the eventi of an “ex officio” intervention by the public administration.

Apart from the critical observations set out and summarized above, what is obvious is that the responsibility of the pollutant does not fall within the scope of art. 2043 of the Italian Civil Code, as long as the non-responsible party spontaneously decontaminates the polluted site.

The first corollary of the nature of the liability identified by the Court involves the issue of recourse pursuant to art. 253 c. 4 “T.U. ambientale”[1]. In this case, as pointed out by the Supreme Court, an obligation ex lege arises, with an indemnity and non-compensatory content, on the polluting person, who will have, therefore, to refund the expenses incurred by the person that decontaminates.

There are two constituent elements of this obligation: voluntary execution of the remediation by the owner of the site and compliance with the procedures provided by the T.U. The case in question therefore falls within the scope of legal obligations that do not derive from an unlawful fact: consequently, it will be subjected to the ten-year limitation period rule.

On the other hand, in the event that the owner of the site does not take action to carry out the remediation voluntarily, according to the provisions of art. 250 T. U. environmental, the public administration will carry out the remediation. This eventuality entails, by law, that the public body, if it cannot identify the person responsible for the pollution or cannot exercise recourse against the polluting person, will exercise the privilege against the owner of the site.

After the refunding of the expenses by the owner towards the public administration, the former will not be able to benefit from the compensation provided by art. 253 T.U. environmental, which, as peremptorily stated by the Court, is provided for by law only in the case of spontaneous remediation by the owner who is not responsible for the pollution. As stated by the Ermellini, in fact, the indemnity logic underlying the compensation is unrelated to the case in which the property loss of the owner of the site is caused by an offense.

Consequently, in order for the expenses incurred to reimburse the Public Administration to be refunded, the owner of the site will have to bring an action against the polluting party, pursuant to art. 2043. This obiously entails the re-emergence of the discipline of the obligation from an illegal act. In particular, the rule of limitations will be five years, the burden of proof on the plaintiff will be more onerous, in addition to the re-emergence of the subjective requirements.

Moreover, in this case, the etiological link ceases to have an exclusively material value, since in the discipline of the illicit fact it takes on a double value.

Alongside material causality (connection between the conduct of the responsible party, the polluting event and the exercise of the privilege by the Public Administration), legal causality is also relevant, i.e. the link that connects the pollution to the damage unjustly suffered by the non-polluting owner.

It is clear, as pointed out by the Court, that voluntary reclamation by the non-polluting owner is a reward and, therefore, the owner will be able to obtain more easily the refunding of the incurred expenses.

Prudent doctrine[2], however, highlights how this mechanism, while creating the reward system emphasized by the Court, on the one hand would weaken the European "if you pollute, you pay" principle and, on the other, does not take into consideration the fact that the recourse would be, in any case, placed in the sphere of civil liability. It is stated, in fact, that the characteristics of synallagmatic compensation of the reimbursement paid in the form of compensation would be lacking, since the refunding of the costs by the polluting person to the owner would not be in form of compensation, but of a real refunding, since the first damaged by the polluting event is the inculpable owner.

[1] V. Corriero, Diritto di rivalsa e obbligazioni parziarie risarcitorie nel sistema italo-europeo di responsabilità ambientale, in Rassegna di diritto civile, I, 2021, 342 ss.; U. Salanitro, Bonifica ambientale e azione di rivalsa, in Corriere Giuridico, X, 2019, 1245 ss.

[2] V. Corriero, Diritto di rivalsa e obbligazioni parziarie risarcitorie nel sistema italo-europeo di responsabilità ambientale, cit, 355.

3.2. Second corollary: passive solidarity.

The second corollary that derives from the statute of liability of the pollutant concerns the rule of solidarity pursuant to art. 2055 of the Civil Code, which the Court refuses to apply to the present case. In particular, as a basis for this decision, there would be no art. 311 c. 3[1] of the T.U. environmental, as well as the application of general principles in civil matters.

In fact, art. 311 c. 3 concerns another case, namely the one of environmental damage which, as seen, occurs logically later than the one at issue. Otherwise, the denial of the solidarity rule derives from the nature of the responsibility which, as mentioned, is not a reimbursement, but a compensation, to the extent that it falls within the obligations ex lege from a lawful fact.

This conclusion, although it passes through the questionable exclusion of the compensatory nature of the recourse action[2], is consistent with the general principles on subjectively complex obligations, according to which an obligation is partial when multiple absolutely independent securities converge between them, applying, on the other hand, art. 2055 of the Italian Civil Code if the title is the same.

In the present case, in fact, the conducts of the polluting person and of the owner of the site cannot be traced back to units, maintaining their own autonomy that is as logical as it is factual[3].

[1] Which reads verbatim in the last sentence: "In cases of concurrence in the same event of damage, each is liable within the limits of their personal responsibility".

[2] V. Corriero, Diritto di rivalsa e obbligazioni parziarie risarcitorie nel sistema italo-europeo di responsabilità ambientale, cit; U. Salanitro, Bonifica ambientale e azione di rivalsa, cit., who points out that it is not in fact understood how the rejection of the local rule on the subject of wrongdoing would have prevented the application of solidarity, which would in any case derive from the general discipline of obligations.

[3] See, on this point, M. Orlandi, Concorso nel danno ambientale e teoria dell’equivalenza, in I.A. Nicotra e U. Salanitro (a cura di), Il danno ambientale tra prevenzione e riparazione, Giappichelli, 2010, 141.

3.3. Strict liability.

In order to better understand the legal nature of “pollution liability”, it appears preferable, first of all, to outline the essential features of objective liability, in order to assess the validity of the distinction made by the Supreme Court.

According to most of the doctrine[1], indeed, the only unfailing element of objective responsibility would be the one of the causal link, an objective element par excellence of the civil offense.

In fact, it is possible to reach this conclusion by reviewing some cases that the doctrine places under this form of responsibility.

Analysing articles 2051 of the Italian Civil Code (Damage caused by things in custody)[2] and 2052 c.c. (Damage caused by animals)[3] we can see how these forms of responsibility are characterized not only by the centrality of the causal link, but also by the enhancement of the relationship between the responsible party and the "thing in custody" (art. 2051 cc) or the animal (art.2052 cc).

However, this assumption cannot lead, sic et simpliciter, to the conclusion that such relationships are among the essential elements of strict liability.

In fact, by analysing what the liberating evidence that can be experienced by the injuring party in these cases is, in both cases it takes the form of the demonstration of fortuitous events, of force majeure, of the fact of the third party or of the fact of the injured party. Well, these four eventualities essentially translate into the interruption of the causal link between damaged person and damaged res.

Furthermore, analysing art. 2050 cc, another case that the doctrine, now prevalent[4], identifies as a hypothesis of objective responsibility, it can be noted that there is no difference between the responsible person and the quid which triggers the causal course that leads to the verification of the damage; this case is then characterised by the type of activity conducted by the person, and not by the type of the "person" himself (thing in custody or animal).

According to the jurisprudence, in some of the typical cases of strict liability (liability for things in custody[5], for damage caused by animals[6] or for the ruin of a building[7]) the analysis of the position (owner of the res or of the animal) is aimed at ascribing liability to a legal entity liable to civil liability.

In these cases, technically, the causal course is triggered by an element that can never be considered responsible (the res or the animal), and that explains why it’s the condition of the owner that have to be considered in order to convey the consequences of the fact on someone who can be civilly responsible for it.

Similarly, in the criminal responsibility for the so-called “offence by neglect”[8], the examination about the condition of legal guarantee of the offender is on a causal level, where the non-execution of the legal obligation to prevent the event replaces the active conduct, which is typical of the commissive crime.

Moreover, even in "position liability" the only way for the holder of the guarantee position to free himself from liability is demonstrating the existence of fortuitous events or force majeure[9], or facts that affect directly the causal link ending it.

Consequently, in strict liability, the only way for the person to be exempt from liability is by demonstrating the interruption of the causal link[10].

Therefore, in the light of what has been seen, it can be affirmed that strict liability is a form of liability based on the causal link and that the assessment of the condition of the civilly imputable person is a way to ascribe the harmful consequences of the offense, which, otherwise, would be incomplete, lacking.

[1] P.G. Montaneri, La responsabilità civile, in Tratt. Sacco, Utet 1998, p. 1010; M. Franzoni, Responsabilità per l’esercizio di attività pericolose, in G. Alpa- M. Bessone (a cura di), La responsabilità civile, II, 2, Cedam 1987, 459; P. Trimarchi, Rischio e responsabilità oggettiva, Giuffrè 1961, 48; F. Gazzoni, Manuale di diritto privato (XVIII ed.), ESI, 2017, 726 ss.

[2] C.M. Bianca, Diritto civile, La responsabilità, V, Giuffrè, 2011, 712; G. Alpa-M. Bessone-V. Zeno Zencovich, I fatti illeciti, VI, II ed., UTET, 1995, 353; G. Alpa, Diritto della responsabilità civile, Laterza, 2003, 172; M. Franzoni, Fatti illeciti, in Comm. cod. civ.., Zanichelli, 1993, 604; M. Franzoni, L’illecito, in Tratt. Resp. Civ., I, II ed., Giuffrè 2010, p. 505; C. Salvi, Responsabilità extracontrattuale, Giuffrè, 1988, 118.

[3] G.D. Comporti, Fatti illeciti. Le responsabilità oggettive, art. 20149-2053, in Comm. cod. civ. Schlesinger, Giuffrè, 2009, 350; G. Branca, Sulla responsabilità oggettiva per danni causati da animali, in RTDPC, 1950,. 255; F. Cordero, Riflessioni sugli artt.  2052-2054,in GI, 1952, p. 239; R. Scognamiglio, Illecito (diritto civile), ND, VIII, Utet, 1962, p. 645; C. Salvi, Responsabilità extracontrattuale, cit., 1229; G. Alpa, Diritto della responsabilità civile, cit., 173; G. Alpa-M. Bessone- V. Zeno zencovich, I fatti illeciti, cit., 357; P. Trimarchi, Rischio e responsabilità oggettiva, Giuffrè, 1961, 131; D. Carusi, Forme di responsabilità e danno. Attuazione e tutela dei diritti, IV, Responsabilità e danno, III, Diritto civile, diretto da Nicolò Lipari e Pietro Rescigno, Giuffrè, 2009, 455; M. Franzoni, Fatti illeciti, cit., 618; P. G.  Montaneri, Le fonti delle obbligazioni. La responsabilità civile, Tr. Sacco, III, Utet, 1998, 1061; G. Visintini, Trattato breve della responsabilità civile, II ed. Cedam, 1999, 801.

[4] P.G. Montaneri, La responsabilità civile, cit, 1010; M. Franzoni, Responsabilità per l’esercizio di attività pericolose, cit., 459; P. Trimarchi, Rischio e responsabilità oggettiva, cit., 48.

[5] On this point, see: Cass. 23 gennaio 2019, n. 1725; Cass. 1 febbraio 2018, n. 2480; Cass. 31 Ottobre 2017, n. 25837.

[6] Cass. 21 aprile 2016, n.8042 which expressly states: "In the hypothesis of damage caused by animals, the relevance of the fortuitous must be appreciated from a causal point of view, as it is susceptible of an evaluation that allows to bring back to an external element, rather than to the animal that is the source immediate, the damage actually occurred. " See also Cass. civ. Section 3, no. 7260 of 22/03/2013 where it is stated: "it is up to the plaintiff to prove the existence of the etiological link between the animal and the injurious event, while the defendant, in order to free himself from responsibility, must prove that he is not guilty, but the existence of a factor extraneous to its subjective sphere, capable of breaking the causal link "

[7] Cass. 25 agosto 2014, n. 18168; Cass. 27 gennaio 2005, n. 1666; Trib. Milano, 21 giugno 2018, n. 6952.

[8] See, on this point, Cass., SS.UU., 10 luglio-11 settembre 2002, n. 30328, n. 8 in Riv. Dir. Civ., 2003, II, 361 s., with comment by M. Bona, Il nesso di causa nella responsabilità civile del medico e del datore di lavoro a confronto con il decalogo delle Sezioni Unite penali sulla causalità omissiva e ivi, 417 ss., with comment by S. Landini, Causalità giuridica e favor veritatis; in Nuova Giur. Comm., 2003, I, 246 ss., with comment by M. Capecchi, Le sezioni unite sul nesso di causalità omissiva. Quali riflessi per la responsabilità civile del medico?; in Corriere Giur., 2003, 348 ss., with note by B. Di Vito, Le Sezioni unite sul nesso di causalità omissiva in tema di responsabilità medica; in Danno e Resp., 2003, 195 ss., with comment by S. Cacace, L’omissione del medico e il rispetto della presunzione d’innocenza nell’accertamento del nesso causale

[9] On the difference between fortuitous event and force majeure and on the conditions for their occurrence, see Cass. 31 Ottobre 2017, n. 25837.

[10] Cass., 06 maggio 2015, n. 9009; Cass, n. 10300/2007.

3.4. – Critical remarks.

Having clarified this, it is possible to make some critical remarks to the pronouncement in question.

In particular, the delineated differentiation between strict liability and liability pursuant to art. 253 c. 4 T.U. environmental[1]. Both forms of responsibility are based on “pure causality”, which, in the two hypotheses, acts differently only from a phenomenal point of view, in regard to the intrinsic characteristics of the model of reference.

In the case under examination, unlike what has been seen with reference to the assumptions of strict liability, the rule requires the identification of a "person responsible", therefore of a person to whom the damage event is causally attributable to; the rule, however, does not statue anything about the causality model, since it could sometimes have an “active form” and other times an “omissive form” and, in the latter case, it would require an investigation into the condition of the person. In fact, the aforementioned responsibility can be recognized, for example, both in those who have voluntarily spilled toxic material on land and in the owner of a tanker whose breakage caused the same spill.

Consequently, as it’s been noticed, all the analysed hypotheses (strict liability and "pollution liability") have the common trait of focusing all the negligence of the fact in the causal link, leaving out the subjective profile (wilful misconduct or negligence) and requiring, as the only liberating evidence, the proof of the fortuitous event, of the force majeure or of the fact of the third party or of the damaged party.

This assumption implies that, if the Supreme Court wants to enhance the distinction that it operates between strict liability and liability from "pure causality", it should affirm that, in the second case, the institutions of fortuitous events or force majeure are not applicable.

Take the case of a container, with a potentially polluting substance inside, which suffers damage because of the falling of a tree or of exceptional atmospheric agents, resulting in the spillage of the substance on the ground and in the connected alterations of the environment. In this case, it is evident that the fortuitous event, abstractly, would directly affect the causal link between the person (owner or keeper of the container) and the occurrence (pollution), excluding the responsibility of the former.

On the basis of this reasoning, and therefore considering that these institutions are not applicable in pollution liability, it would not be strange to envisage shadows of unconstitutionality on the rule in relation to art. 3 of the Constitution, from the point of view of reasonableness.

In fact, the protection of the pre-eminent environmental good justifies that the responsibility of the polluting person is not subjected to the canonical rules of imputation of responsibility, which require the assessment of the subjective element, with consequent transfer of responsibility in the objective sphere of pure causality. However, believing that the causal link can not be ended, through fortuitous events or force majeure, appears to be an excessive and too far from the traditional liability model stretch, not justifiable even with the importance of the legal asset protected by the law.

On the other hand, the “if you pollute, you pay” principle, which, evidently, can be read under multiple profiles, upholds this interpretation. Putting the responsibility on the landowner, as in the case of the example shown before, would mean holding responsible those who, technically, did not cause the pollution.

Such a responsibility would imply a model, as the Supreme Court said, of “pure condition”, that is a responsibility based exclusively on the qualification of the person as owner, without even detecting the etiological link. Consequently, we would witness the paradox whereby a responsibility from pure causality would turn into an ascertained responsibility, even without causality.

Consequently, it does not appear bearable that the provisions of fortuitous event and force majeure are not applicable to the present case, with the further consequence that, this way, the only difference, abstractly conceivable, between the two forms of responsibility would be lacking.

Concluding on this point, it does not seem that between the case in question it deviates significantly from strict liability except from the point of view of the possible phenomenological expression of the causal link.

Furthermore, this conclusion is supported by the comparison of this case with the one of environmental damage stated in art. 300 T.U. environmental.

In particular, unlike liability for pollution (which, as mentioned, requires, sic et simpliciter, the existence of a polluting fact, or a deviation of the values ​​of the environmental matrix as compared to the CSC or CSR), liability for environmental damage is a logically subsequent case in terms of progression of offense to the environmental legal good, which requires, pursuant to art. 300 T.U. environmental, a significant and measurable deterioration, direct or indirect, of a natural resource or of the utility ensured by the latter, compared to which the decontamination is not enough but an environmental restoration action is required; this action, following the definition contained in the art. 240 c. 1 letter Q), is not simply a conservation action, just like decontamination, but is an active intervention to re-create the deteriorated environmental matrix.

Well, in the event of environmental damage, jurisprudence[2] and doctrine[3] undoubtedly believe that the relative responsibility is divided into objective[4] responsibility and ordinary responsibility, pursuant to art. 2043.

Consequently, it would seem incongruous to believe that a more severe liability regime is connected to a logically preceding case, which is characterized by lesser social danger and lesser capacity to damage the protected legal right.

[1] On this point, see V. Corriero, Diritto di rivalsa e obbligazioni parziarie risarcitorie nel sistema italo-europeo di responsabilità ambientale, cit., 359. The author, in particular, underlines how the interpretation given by the Supreme Court with the ruling in comment on the issue of the nature of liability from "pure causality" as differentiated from a form of objective liability, is in contrast with the he granite orientation of the European Court of Justice, which has repeatedly reiterated the necessary existence of ascertaining the causal link in objective European environmental liability.

[2] Cass., 19 febbraio 2016 n. 3259.

[3] . D’adda, Danno ambientale e tecniche rimediali: le forme del risarcimento, in Nuova giur. civ., 2013, 7-8, 407; M. Benozzo, La responsabilità per danno ambientale da attività autorizzate tra imputazione oggettiva e assenza dell’antigiuridicità, in Contratto e impresa, 2018, 4, 1323 ss., B. Pozzo, Verso una responsabilità civile per danni all’ambiente, in Europa, in Riv. Giur. Ambiente, 2000, 623; S. Amedeo, La responsabilità ambientale nel Trattato della Comunità Europea, in B. POZZO (a cura di), La nuova responsabilità civile per danno all’ambiente, 2002, 70; F. Giampietro, La responsabilità per danno all'ambiente: l'attuazione della Direttiva 2004/35/ CE, 2006, 46-50; Si v. fra gli altri F. Degl’innocenti, I criteri di imputazione della responsabilità per danno ambientale, in Contratto e Impresa 3/2013, 751 ss.

[4] Pursuant to art. 311 c. 2 T.U. environmental, liability for environmental damage assumes the connotations of strict liability if the fact is committed by one of the parties listed in Annex IV to part VI of the T.U. environmental, as they engage in risky activities. For other subjects, as the law specifies, the title of responsibility is for willful misconduct or negligence.