Decree-Law No. 116 of 8 August 2025: new environmental offences and corporate liability[1]
We would like to point out that Decree-Law No. 116 of 8 August 2025 (“Decree-Law” or “Decree-Law 116/2025”) containing “Urgent provisions for combating illegal activities relating to waste, for the reclamation of the area known as Terra dei Fuochi, and for assistance to the population affected by natural disasters”, was published in the Official Gazette No. 183 of 8 August 2025.
The measure introduces important changes in the environmental field, amending, inter alia, Legislative Decree No. 152 of 3 April 2006 (the so-called “Consolidated Environmental Act” and, hereinafter, “TUA” - Testo Unico Ambientale -), the Italian Criminal Code and Article 25-undecies (“Environmental Offences”) of Legislative Decree No. 231 of 8 June 2001 (“Legislative Decree 231/2001”).
As far as is relevant here, the Decree-Law tightens the penalties for environmental offences, modifies certain offences already referred to in Article 25-undecies of Legislative Decree 231/2001[2] and introduces additional offences among the predicate offences provided for by Article 25-undecies.
First, it is necessary to mention the two offences summarised below, as their inclusion in the list of predicate offences under Legislative Decree 231/2001 is of significant systemic importance, putting an end to a regulatory anomaly that has long been criticised in legal doctrine[3].
“reclamation ” (Article 452-terdecies of the Italian Criminal Code), which punishes anyone who, being obliged by law or by order of the authorities, fails to voluntarily reclaim or restore a site.
It should be noted that said offence differs from the contravention referred to in Article 257 of the TUA (“Site reclamation”) – historically assumed to be the responsibility of entities pursuant to Article 25-undecies of Legislative Decree 231/2001 – as a special case, which punishes omissive conduct within a specific and structured administrative procedure. The offence only occurs when the person who caused the pollution (by exceeding the so-called “CTCs”[4] /”RTCs”[5] ) fails to comply with the obligation to reclaim the site in accordance with the operational plan approved by the competent authority, as provided for in the procedure set out in Articles 242 et seq. of the TUA.
Article 452-terdecies of the Italian Criminal Code, on the other hand, has a broader and subsidiary scope, allowing for a significantly greater punitive claim. The rationale is to penalise failure to comply with an environmental restoration obligation regardless of its specific source[6] ;
Particular attention should also be paid to the inclusion in the 231 catalogue of the following additional offences regarding waste:
“abandonment of non-hazardous waste in specific cases” and “abandonment of hazardous waste” (Articles 255-bis and 255-ter of the TUA). Decree Law 116/2025 thoroughly revises the matter, turning the abandonment of waste from an administrative (or minor) offence to a criminal offence, even in the case of non-hazardous waste, where the specific cases referred to in Article 255-bis of the TUA are applicable[7]. If the act is committed by business owners or managers of organisations, the penalties are increased. The connection with the institution of temporary storage (Article 183, paragraph 1(bb) of the TUA) has a crucial operational impact on both provisions.
Indeed, as is well known, exceeding the time and volume limits established for the “temporary storage prior to collection”[8] of waste may constitute one of the above offences, giving now rise also to liability of the entity pursuant to Legislative Decree 231/2001.
“Illegal combustion of waste” (Article 256-bis of the TUA). This provision, which has also been raised to the level of a criminal offence and falls within the scope of 231 liability, is intended to curb the practice of illegal “thermal management” of waste. This is a type of offence determined by the occurrence of a criminal event (reato a condotta libera) and implying an abstract danger, differing from the common crime of arson (Article 423 of the Italian Criminal Code), which requires the emergence of a danger to public safety. Its inclusion in the catalogue aims to combat conduct which, while not reaching the threshold of environmental disaster (Article 452-quater of the Italian Criminal Code), represents a particularly harmful form of illegal disposal, often aimed at drastically reducing company costs.
Pending the conversion of Decree Law 116/2025 into law (expected by 7 October 2025), it is essential that companies do not underestimate the scope of the changes introduced. As we have seen, the new provisions raise the threshold for criminal liability for conduct, particularly in relation to waste, which previously could amount to minor offences and did not give rise to liability on the part of the Entity.
The impact on Legislative Decree 231/2001 is, on this occasion, direct and immediate, as it provides companies with an important opportunity to assess the preventive adequacy of their internal control systems concerning the environment. Such activity could lead to the need to carry out targeted updates of organisation, management and control models (“Models 231”).
The assessment should focus, first and foremost, on highest-risk processes, such as, for example, waste cycle management. In this regard, it would be particularly useful to verify the “robustness” of the company's regulatory and organisational tools relating to waste management, with particular attention to the implications associated with temporary storage.
The adaptation of Model 231 and the relevant internal protocols is, in fact, the technical prerequisite for aligning the compliance system with the new predicate offences. Such updating, together with the consequent activities for the effective implementation of Model 231 (such as supervision by the Supervisory Body, audits and training), is therefore functional to preserving the requirements of suitability and effective implementation imposed by Legislative Decree 231/2001 for the purposes of potential recognition of the effect of exempting the entity from liability in court.
We remain at your disposal to carry out the necessary in-depth analysis to understand the practical impact of the regulations in question on your business.
[1] The content of this article is for informational purposes only and does not constitute professional advice.
[2] The Decree Law deals, in particular, with the following cases, increasing penalties and providing for new aggravating circumstances: (i) “Trafficking and abandonment of highly radioactive material” (Article 452-sexies of the Italian Criminal Code); (ii) “Offences relating to unauthorised waste management activities” (Article 256 of Legislative Decree No. 152/2006); (iii) “Illegal shipment of waste” (Article 259, paragraph 1, Legislative Decree No. 152/2006); (iv) “Organised activities for the illegal trafficking of waste” (Article 452-quaterdecies of the Italian Criminal Code).
[3] This exclusion appeared particularly problematic and critical with regard to the offence of “omitted reclamation” (Article 452-terdecies of the Italian Criminal Code), as its omission fuelled intense debate about the consistency of the repressive system. Authoritative doctrine had repeatedly emphasised that such gap undermined the very rationale of Law No. 68 of 22 May 2015, which was to strengthen criminal protection of the environment, including through the involvement of legal persons. C. Ruga Riva, I nuovi delitti contro l’ambiente, in G. L. Gatta (ed.), La riforma dei reati ambientali. Commento alla legge 22 maggio 2015, n. 68, Dike Giuridica, Rome, 2015, pages 115 et seq.. Decree Law 116/2025 finally repaired this systematic fracture, realigning the catalogue of predicate offences with the actual offensiveness of the conduct and the need to punish not only polluting actions but also omissions that perpetuate their harmful effects in the interest of companies.
[4] Contamination Threshold Concentrations
[5] Risk Threshold Concentrations
[6] In this regard, see, among others, G. Gallone, L’individuazione del responsabile della bonifica: giudice amministrativo e giudice penale a confronto, in Urb. e App. 4/2020, pages 449 et seq.
See also Report No. III/04/2015 of the criminal sector of the Office of the Massimario of the Court of Cassation, where, precisely in relation to the case referred to in Article 257 of the TUA, it is specified that “the introduction of the reservation clause “Unless the act constitutes a more serious offence” ensures [..] that it can only apply in cases where the risk thresholds have been exceeded but have not reached (at least) the level of pollution, i.e. where there has been no significant and measurable impairment or deterioration of the assets (water, air, etc.) listed in Article 452-bis”.
[7] «If the act results in danger to the life or safety of persons or danger of compromise 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;
b) if the act is committed in contaminated or potentially contaminated sites within the meaning of Article 240 or in any case on roads to access the aforementioned sites and related appurtenances»
[8] In a nutshell, pursuant to Article 185-bis of the TUA, temporary storage of waste is only permitted if (i) it is done at the production site (or, for farmers, at cooperatives or consortia) and, in specific cases, also at points of sale (for waste with extended producer responsibility or construction/demolition waste); (ii) safety standards for hazardous and pollutant-containing waste (storage, packaging and labelling) are complied with; (iii) waste is collected at least every 3 months or when a total of 30 m³ (of which a maximum of 10 m³ is hazardous) is reached, and in any case within one year; (iv) waste is grouped into homogeneous categories. The Supreme Court case law consistently affirms that exceeding the quantitative or time limits set out therein results in the activity being reclassified as “uncontrolled storage” or “abandonment”.
