CIVIL COURT OF ROME WRIT OF
SUMMONSIn the interest of GREENPEACE Onlus, current in Rome, Via della Cordonata n. 7, C.F.
97046630584, PEC greenpeaceonlus@legalmail.it, in the person of its President and legal
representativepro

tempore,

Mr.

Ivano

Novelli,of RECOMMON APS, current
in Rome, Via dei Sardi n. 28, C.F. 97686900586, PEC recommon@pec.recommon.org, in the
person of its President and legal representative pro tempore,
Francesca Zazzera,
Ninetto Martucci,
Caravaglios,
NoaHelffer,
Marco Lion,
PatriziaBartelle,
Giorgio Crepaldi,

Lucia Pozzato,
Right,
Giovanna Deppi,
Rtiffato,
Maria Antonietta D'Antonio,
represented

anddefended, by proxies on separate sheets, by Alessandro Gariglio, of the Alessandria Bar, C.F.
with office in Alessandria, P.tta
St. Luciaof Rovigo,

Matthew

Ceruti,of Foro of

Rovigo,with an office in Rovigo, Via Al1'Ara n. 8, Marco Casellato, of theBaron studio in Rovigo, Via

Mazzini n. 23, electively domiciled at the office of the former at Alessandro, P.tta S. Lucia n. 1,
declaring that they wish to receive communications from the clerk's office at the following fax
number- actors -v.
ENI S.p.A., in the person of its legal representative pro tempore, with registered office in Rome,
Piazzale Enrico Mattei no. 1 c.f./p.iva: 00484960588; PEC: eni@pec.eni.com,e
MINISTRY OF THE ECONOMY AND FINANCE (fiscal code 80415740580) in personof the Minister, legal representative pro tempore, with registered office in Via XX Settembre, 97 00187 ROMA; PEC: attigiudiziari.mef@pec.mef.gov.it, represented ex lege by the Avvocaturadello Stato (fiscal code 80224030587) at whose offices he is by law domiciled in Via dei
Portoghesi, 12, 00186 ROMA, PEC: ags.rm@mailcert.avvocaturastato.it,e
CASSA DEPOSITI E PRESTITI SPA (tax code and registration with the Companies' Register ofRome 80199230584) in the person of its legal representative pro tempore with registered office in
Via Goito, 4 - 00185 Rome, PEC: cdpspa@pec.cdp.it,- defendants @@@@@@@@@INTRODUCTION
This case is part of the so-called 'climate litigation', legal actions brought with the aim of forcing
governments or companies to comply with certain standards on reducing greenhouse gas emissions
and limiting global warming.
The actors are environmental associations, of national and international stature, and private
individuals residing in areas of the country particularly exposed to climate change, all of whom,
either directly or through the frustration of their corporate purpose and their prevailing activities, on
the one hand, and their property and fundamental human rights, on the other, suffer theconsequences of ENI's conduct on climate change.
Anthropogenic climate change is "the greatest human rights challenge of the 21st century"1 . It
negatively affects a number of - if not all - human rights. The universally and scientificallyrecognised impacts of climate change, including environmental degradation, are resource
deprivation, prevalence of life-threatening diseases, widespread hunger and malnutrition, andextreme poverty that prevents individuals from living a dignified life. Some of the individual rights
negatively affected are the rights to life, food, water, sanitation and health. Collective rights are also
violated, including the rights to security
1

Statement made by the High Commissioner for Human Rights, Mary Robinson, during the meeting on human rights and climatechange at the 28th session of the Human Rights Council available athttps://www.fao.org/fileadmin/templates/righttofood/documents/news/150330_HRC28/HRC28_RighttoFood.pdf.

2

food, economic development and growth, self-determination, cultural preservation, equality andnon-discrimination.
Private actors, like every living being, are already suffering, and will suffer even more in the future,
the consequences of global warming that can be summarised as a worsening of the quality of life, tothe point of difficulty, if not impossibility, of living in their places of residence, the proliferation of
diseases, and all the further damage, both patrimonial and non-patrimonial, that the events
connected with climate change and universally recognised and indicated in the IPCC will bring andthat can be summarised as follows• atmospheric warming with heat waves;• warming of the oceans;• ocean heatwaves, which have doubled since 1980;• warming and rising seas resulting in coastal erosion and endangering coastal inhabitants;• acidification of the seas resulting from the absorption of increasing levels of Co2;
• loss of the cryosphere;• melting glaciers;• increased frequency and intensity of extreme weather phenomena, such as storms andfloods;• loss of agricultural production;• subsidence and salt wedge rise along rivers.
As already anticipated, to the damages and dangers for individuals are added the collective ones
that must be protected also through the recognition of the right of action of the plaintiffs
Greenpeace and ReCommon who, moreover, have been incurring substantial costs for several years
in order to study climate change and denounce ENI's conduct which is the subject of the present
suit.
ENI's responsibility for these changes clearly emerges from the results of the so-called 'attribution
science', i.e. the science that makes it possible to attribute to a specific subject a specific quantity ofemissions that do not comply with the values set at international level. In particular, it is possible toascertain, among other things, the quantity of ENI's emissions, which will be discussed below, andto ascertain that ENI is responsible at global level for a volume of greenhouse gas emissions that isgreater than that of Italy as a whole, thus being one of the main contributors to the climate change
underway. This is also due to the fact that the data they use was compiled by the oil companies
themselves, including ENI, which therefore cannot be unaware of it. Not even the hypotheticalobjection that it is not ENI alone that is responsible could exonerate it from its responsibilities, forthe legal reasons that will be dealt with at length in the second part of this writ.

3

But not only that.
Part I of this document will also illustrate and thus demonstrate in court how oil companies, and
ENI in particular, have been aware for over fifty years of the impact their activities have on the
climate, so much so that they have implemented lobbying and so-called 'greenwashing' strategies tomask their responsibilities.
The interrelationship between man and the environment is the pivot around which legal reflection
has developed in order to delineate its relative contours and to transpose the statements ofinternational instruments that, starting with the 1972 Stockholm Declaration, have brought
environmental protection within the framework of human rights. This is also thanks to the work
done by the European Court of Human Rights, which has increasingly extended the concept ofenvironmental protection to the point of speaking of the existence of the human right to a healthy
environment.
As will be argued in Part II of this document, the conduct that causes climate change, with all that
this entails in terms of environmental risks and health consequences, violates human rights that aresafeguarded and protected both by the Italian Constitution and, through it, by international standards
and agreements that are binding on states and companies, especially those such as ENI that
expressly declare that they adhere to them and are subject to them.
The violation of these rules entails the commission of unlawful conduct that is protected by Articles
2043, 2050 and 2051 of the Civil Code, read in conjunction with Articles 2 and 8 of the ECHR, andrequires both specific forms of compensation and injunctive relief, since the increase in the planet's
temperature, which is already detrimental to actors and human beings in general, will be even more
so if the supranational objectives set at the Paris Conference are not respected.
All this with the clarification that the action is also directed against the Ministry of Economy and
Finance and Cassa Depositi e Prestiti, in view of the dominant influence they exercise over thecompany, from its foundation to the present day, for which they are co-responsible - for the legal
reasons set out in greater detail below - for the company's choices made in terms of energy-climate
strategies and the consequent emissions of CO2 and other climate-changing gases.
Due to the inevitable length and complexity of the act, this brief introduction requires an index.
INDEXPART I: FACTUAL FOREWORD
1.

INTERNATIONAL REPORTS ON CLIMATE CHANGE

3.
2.

THE 1992 UNITED NATIONS CLIMATE CONVENTION AND CONFERENCE OF

THE PARTIES

4

4.

THE 2015 PARIS AGREEMENT (COP 21) LATEST

5.

IPCC AR6 REPORT

6.

INCREASING CO2 CONCENTRATIONS IN THE ATMOSPHERE

7.

GLOBAL WARMING

8.

KEY RISKS AND FIVE REASONS FOR CONCERN RISKS TO

9.

GLOBAL HEALTH

10.

SOCIO-ECONOMIC IMPACTS

11.

THE IMPACTS OF CLIMATE CHANGE IN ITALY INJUSTICE

12.

BETWEEN GENERATIONS

13. THE OIL COMPANIES' STRATEGY OF CONCEALMENT AND DISINFORMATION
AND THE CLIMATE CHANGE MALFEASANCE
14.

THE OIL INDUSTRY IN ITALY AND ITS KNOWLEDGE OF ONGOING CLIMATECHANGE
15.

THE SO-CALLED 'GREENWASHING' PHENOMENON

16.

THE ECONOMIC INFLUENCE OF OIL COMPANIES17.

ENI AND THE GLOBAL OIL INDUSTRY AND ITS CONTRIBUTION TO CLIMATECHANGE18.

ENI EMISSION DATA

19.

ENI'S CLIMATE POLICY PART

II: THE LAW
20.

THE SUBJECTS OF THESE PROCEEDINGS
20.1.

ACTIVE LEGITIMISED SUBJECTS
20.1.1. GREENPEACE ONLUS
20.1.2. RECOMMON APS
20.1.3. PRIVATE

20.2.

THE LEGITIMISED PASSIVE SUBJECTS
20.2.1. ENI
20.2.2. ENI AND THE ITALIAN STATE
20.2.3. CASSA DEPOSITI E PRESTITI

21.

THE LEGAL STANDING OF THE PLAINTIFFS
21.1.

THE LEGITIMISATION

AT

ACT

OF

GREENPEACE

ONLUS AND RECOMMON APS ASSOCIATIONS
21.2.

THE LEGAL STANDING OF NATURAL PERSONS22.

INTER-GENERATIONAL INJUSTICE AND CLIMATE DISPUTE

23.

INTERNATIONAL SOURCES

5

23.1.

CLIMATE CHANGE AND HUMAN RIGHTS

23.2.

ARTICLES. 2 AND 8 OF THE EUROPEAN CONVENTION ON

HUMAN RIGHTS AND THE CEDU JURISPRUDENCE
23.3.

ENVIRONMENTAL/CLIMATIC DISASTER AND HUMANITARIAN

PROTECTION IN THE JURISPRUDENCE OF THE ITALIAN COURT OF
CASSATION
23.4.
24.

CLIMATE CHANGE AND NON-STATE ACTORS THE

NEW ARTT. 9 AND 41 OF THE ITALIAN CONSTITUTION
24.1.

CONSTITUTIONAL REFORM AND THE DUTY TO PROTECT THE

ENVIRONMENT/CLIMATE 'ALSO IN THE INTEREST OF FUTURE
GENERATIONS'
24.2.

CONSTITUTIONALSYNDICTABILITY

REFORMAND

JUDICIALTHE

WIDENING

OF

OF
THE

ENVIRONMENTAL/CLIMATIC INTERESTS
25.

ARTICLES. 3-TER AND 3-QUATER OF T H E ENVIRONMENT CODE, ARTICLE 9

OF THE AARHUS CONVENTION
26.

ARTICLE 2043 OF THE ITALIAN CIVIL CODE (AND ARTICLES 2 AND 8 OF THE

27.

CEDU) SUBJECTIVE IMPUTABILITY OF THE WRONGFUL ACT TO ENI SPA
AND

THE 'SOFT LAW' AS THE NORMATIVE PARAMETER OF GUILT THE IMPUTATION
27.1.

OF MALICIOUS INTENT (AND THE

DISINFORMATION AND GREENWASHING)
27.2.
28.

CULPABLE IMPUTATION (AND SOFT LAW) ART. 2050 AND

2051 OF THE CIVIL CODE
28.1.

LA

RESPONSIBILITY

OF THE OPERATORADANGEROUS ACTIVITY UNDER ARTICLE 2050 OF THE CIVIL CODE
28.2.

LIABILITY FOR DAMAGE CAUSED BY THINGS IN CUSTODYCAUSALITY
29.

29.1. IN GENERAL
29.2. CONCAUSAL PROFILES

30.

ENI'S ACTIVIST STATE RESPONSIBILITY
30.1.

THE DOMINANT INFLUENCE OF THE STATE ON ENI SPA AND THE

ROLE OF THE SHAREHOLDERS' MEETING ON THE COMPANY'S
30.2.CLIMATE STRATEGY
THE INFLUENCE OF THE STATE (MEF AND CDP) ON THE
MANAGEMENT AND ADMINISTRATIONRELATEDTO STRATEGYOF

ENI IN
6CLIMATICS
30.3.

THE RESPONSIBILITY OF THE STATE (MEF AND CDP) ALSO IN

THE LIGHT OF THE 'SUBSTANTIALIST CONCEPTION' OF
ENTERPRISE
31.

THE PETITUM
31.1.

THE DAMAGE SUFFERED BY THE PRESENT PLAINTIFFS AS A

RESULT OF THE WRONGFUL ACT OF THE DEFENDANTS AND THEIRRESPECTIVE CLAIMS FOR DAMAGES
31.1.1. THE INJURIES SUFFERED BY THE PLAINTIFFS NATURALPERSONS WHOSE COMPENSATION IS SOUGHT
31.1.2. DAMAGESSUFFERED

BY

THE

ASSOCIATIONSGREENPEACE ONLUS AND RECOMMON APS FOR WHICHCOMPENSATION IS SOUGHT
31.2.

THE REQUEST TO ESTABLISH THE LIABILITY OF THE

DEFENDANTS AND THE CONSEQUENT REQUESTS FOR AN ORDER TOPAY COMPENSATION IN A SPECIFIC FORM
31.3.

IN PARTICULAR: PRINCIPLES TO WHICH ENI SHOULD ADAPTITS BUSINESS PLAN
31.4.

ON THE CLAIM FOR SPECIFIC COMPENSATION PURSUANT TO

ARTICLE 2058 OF THE CIVIL CODE.
31.5.

THE

APPLICATION

FOR

AN

INJUNCTIONPURSUANT TO ARTICLE 614 BIS OF THE CODE OF CIVIL
PROCEDURE CONCLUSIONSPART I: FACTUAL PREMISE
1. FOREWORD
In the Earth's long geo-history, there have been several geological periods marked by particularclimatic conditions, e.g. ice ages and warm periods. The geological era that saw the birth of humancivilisation, the Holocene, was marked by a stable climate that allowed humanity to develop as weknow it today. Until the industrial revolution, however, these phenomena depended essentially only
on natural dynamics while human impact was very limited. Since the industrial revolution in the
19th century, this picture was reversed and the indisputable role of fossil fuels used by mankind as
the main cause of climate change became apparent.
Carbon dioxide (CO2) is the most 'known' and widespread greenhouse gas in the atmosphere, but
methane also has a very high climate-changing potential, up to 80 times more than CO2 in the top
20
7

years after release2 . For the sake of simplicity, we will use the term CO2 and the term greenhousegas as synonyms in this paper, meaning all climate-altering gases released into the atmosphere. The
current (February 2023) CO2 concentration in the atmosphere is about 420 parts per million (ppm),3
and is more than 40 per cent higher than in the pre-industrial period, when concentrations wereabout 280 ppm. The result of this increase in CO2 concentrations in the atmosphere is that the
Earth's average temperature has risen by at least 1.1°C since 18804 and the consequences of thiswarming are now evident all over the planet, including in Italy.
2. INTERNATIONAL REPORTS ON CLIMATE CHANGE
This section briefly presents the main conclusions of the UN climate conventions and conferences.
The aim is to highlight the exponential increase in knowledge about the severity of the problem andits causes: climate-changing emissions from burning fossil fuels. It is worth noting at the outset that
despite more than 30 years of international negotiations and climate policies, the use of fossil fuels ENI, as we shall see, has maximised their production and sale - and the associated emissions of
CO2 and other greenhouse gases such as methane have dramatically increased to date. The result isthat annual global CO2 emissions are still rising, greenhouse gas emissions from fossil fuels havereached a record high5 in 2022, and with current trajectories we are on track for a temperature
increase of 2.9°C at the end of the century,6 while the implementation of current 'emission reduction
pledges' according to Article 4 of the Paris Agreement would only allow us to limit this increase to
between 2.4°C and 2.6°C.7
Climate change was first on the UN agenda in 1972 during the Stockholm Conference on the
Human Environment, when it was decided to establish a special UN organisation for climate andother global environmental issues: the United Nations Environment Programme, or UNEP.
The first world climate conference was held in Geneva in 1979. It was organised by UNEP andanother UN organisation, the World Meteorological Organisation (WMO). This conference urged
the member countries to introduce preventive measures
2

https://www.unep.org/news-and-stories/story/methane-emissions-are-driving-climate-change-heres-how-reduce-them3

https://www.co2.earth/daily-co2

4

https://earthobservatory.nasa.gov/world-of-change/global-temperatures

5

https://www.globalcarbonproject.org/carbonbudget/index.htm

6

https://climateactiontracker.org/global/temperatures/

7

https://www.unep.org/resources/emissions-gap-report-20228

against potential anthropogenic climate change in order to contain its repercussions on the wellbeing of humanity8 .
In 1985, UNEP and the WMO organised a conference in Villach, Austria, which was attended by 29
countries. According to the scientists, "as a result of increasing concentrations of greenhousegases, it is now believed that an increase in global average temperature that is greater than any
other in human history could occur in the first half of the next century."9 The rate and degree of
future warming could "be profoundly affected by government policies on energy conservation, fossil
fuel use, and the emission of certain greenhouse gases."10
The Joint Final Declaration of the 1988 Toronto Conference affirmed the need for urgent action toprevent the threat of severe anthropogenic climate change: 'Humanity is conducting anunintentional, uncontrolled and pervasive global experiment whose ultimate consequences could besecond only to a global nuclear war. The earth's atmosphere is being modified at an unprecedented
rate by pollutants resulting from human activities [...] These changes pose a serious threat tointernational security and are already having damaging consequences in many parts of the globe[...] The best available predictions point to potentially severe economic and social dislocation forpresent and future generations [...] It is critical to act now."11 The 1988 Final Declaration argues
that the "Transition to a sustainable future will require investment in energy efficiency and nonfossil energy sources" and recommends that governments and industry proceed immediately to (i)shift investment to large-scale sustainable energy, (ii) reduce energy considerably, and (iii) use
product labels to inform consumers of the CO2 pollution caused by the production and use of fossil
fuels. This call of the 1988 climate conference must be recognised as a historic event as it was thefirst time a scientific conference urged the main climate decision-makers to take immediate action,
demonstrating the concern already prevalent in the scientific community at the time. The final
declaration urged the United Nations to draw up a convention to combat climate change and protect
the atmosphere (which would happen in 1992) and to continue to support the work of the United
Nations Intergovernmental Panel on Climate Change (IPCC).
8

WMO 1979: Proceedings of the World climate Conference (WMO) Geneva 12-13 February 1979, p. 713.

9

UNEP/WMO/ICSU 1985 Conference Statement Villach 9-15 October 1985, p. 1.

10

UNEP/WMO/ICSU 1985 Conference Statement Villach 9-15 October 1985.

11

CIEL 1990, Conference Statement Toronto 27-30 June 1988.

9

Climate Change)12 which was established that same year (1988) with the aim of evaluating climatechange science.
Since 1988, scientific knowledge about the causes and consequences of climate change has been
regularly organised and summarised in regular reports by the IPCC. The reports of this institution
are the scientific basis for international intergovernmental cooperation against climate change.13 In
1990, the IPCC published its first assessment report in which it concluded that emissions caused byhuman activity cause a substantial increase in the concentration of greenhouse gases in theatmosphere, which in turn contributes to global warming. After the first assessment report in 1990,
new reports were published in 1995, 2001, 2007, 2013- 14 and 2021-22.
In 2018, the IPCC published a very important Special Report (abbreviated as SR1.5) analysing thedifferences between 1.5°C and 2°C global warming. More recently, two 'special reports' were
published in 201914 while the sixth 'IPCC Assessment Report' (AR6) was published between 2021
and 2023. The IPCC is divided into three working groups that analyse the scientific situation withregard to, existing scientific knowledge (Working Group I); the consequences of climate change forthe environment, economy and society (Working Group II); and potential strategies in response tothese changes (Working Group III).
3. THE 1992 UNITED NATIONS CLIMATE CONVENTION AND CONFERENCE OF THE
PARTIESThe United Nations Climate Convention, or United Nations Framework Convention on Climate
Change (UNFCCC), dates back to 1992 and entered into force on 21 March 1994.
Its overall objective is to prevent dangerous man-made climate change. This can be achieved bystabilising greenhouse gas concentrations in the atmosphere at a level that prevents significant
anthropogenic disturbance of the climate system. According to the Convention (Article 2), this levelmust be achieved 'within a time frame sufficient t o a l l o w ecosystems to adapt naturally to
climate change, to ensure that food production is not threatened and to enable economic
development to proceed in a sustainable manner'.
1213

https://www.ipcc.ch/about/
Article 21 of the UN Climate Convention states that the IPCC shall provide scientific and technical advice to States Parties and that the
Secretariat established under the Convention shall facilitate this advice. Article 21 explains that the Secretariat may also consult other qualified
scientific organisations. Practice has shown that the Secretariat uses, inter alia, reports and advice from the two parties incorporating the IPCC (theWMO and UNEP) and the World Bank, for example, which is why this report will also be based on the reports of these organisations.
14(IPCC Special Reports on Climate Change and Land, and on the Ocean and Cryosphere; and Climate Change and Land: an IPCC
special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes interrestrial ecosystems)

10

The preamble of the UNFCCC makes it clear that 'Parties should protect the climate system for the
benefit of present and future generations of humanity'15 . Article 3 discusses the principles that
States Parties, which have benefited from the causes of anthropogenic climate change, must observein their actions, including the principle that developed countries (the main culprits of the climate
crisis) must, in the first instance, take the lead in implementing emission reductions and climatechange mitigation. Another important principle enshrined in Article 3.3 is the precautionary
principle, i.e. the need to take precautionary measures to reduce or prevent the causes of climatechange and limit its negative impacts. The Convention makes it clear that where serious or
irreversible damage is likely to occur, lack of full scientific certainty should not be a reason for
postponing precautionary measures. This is known in international law as the precautionary
principle.
Article 7 of the UNFCCC establishes the Conference of the Parties (COP), the supreme body of theConvention that takes the necessary decisions to promote the implementation of the Convention.
The first COP was held in 1995 and is referred to as COP1. The numbering continues in this way,
which means, for example, that the 2010 COP is referred to as COP16 and the 2022 COP, whichconcluded last November 2022 in Sharm el Sheikh, Egypt, as COP27.
3.1 EVOLUTION OF LONG-TERM TEMPERATURE TARGETS
The Copenhagen Accord, sanctioned by COP15 in 2009, based on the best scientific knowledge
available at the time, reaffirms that in order to achieve the main objective of Article 2 of the
UNFCCC (i.e. to prevent dangerous anthropogenic climate change) the global temperature increase
will have to remain below 2°C16 . In particular, the Copenhagen Accord refers to a specificrecommendation of the 2009 Special Update Report. This report argues that observations from thattime have shown that ecosystems and societies are highly vulnerable to even modest levels ofclimate change and that temperature increases above 2°C could cause severe social andenvironmental disruption in this century and beyond: 'Recent observations show that societies andecosystems are highly vulnerable to even modest levels of climate change ... Temperature increases
above 2°C will be difficult for contemporary societies to cope with and are likely to cause severesocial and environmental disruptions in the remainder of this century and beyond'.17 The reportthen concludes that a 2°C scenario will pose 'significant risks of deleterious impacts on society andt h e environment'. Based on this scientific evidence, the15

UNFCC 1992 United Nations Framework Convention on Climate Change, Art. 3.1.

16

UNFCC COP 15 Copenhagen Agreement 2009, p. 5.

17

Richardson 2009 (IPCC AR4 2009), Synthesis Report from Climate Change, Global Risks, Challenges & Decisions.

11Copenhagen calls for the 'strengthening of the long-term goal by referring to various issues
presented by science, including in relation to temperature increases of 1.5°C'.
The Cancun Agreements reached at COP16 recognise that deep cuts in global greenhouse gas
emissions are needed "[...] so as to keep the global average temperature increase below 2°C
compared to pre-industrial levels and that Parties take urgent steps to achieve this long-termgoal."18 It also affirms the need "to strengthen the long-term global goal on the basis of the best
available scientific knowledge, including in relation to a global average temperature increase of
1.5°C." These agreements also refer to UN Human Rights Council Resolution 10/4 of 2009, whichstates that climate change is a threat to human rights worldwide, including the right to life and, inparticular, to those in vulnerable positions.
At COP17 in Durban in 2011, the signatories recognised "that climate change poses an urgent andpotentially irreversible threat to human societies and the planet and therefore requires to beurgently addressed by all Parties [...],"19 even to have "a likely chance of keeping the global
average temperature increase below 2 °C or 1.5 °C above pre-industrial levels". It is significant tonote that UNEP, in its first Emissions Gap Report in 2010, concluded that "Although the country iscommitted to contributing to reducing emissions below business-as-usual in 2020, these are notadequate to reduce emissions to a level consistent with the 2 °C target and thus lead to a gap"20 .
Building on the Conference of the Parties in Doha in 2012 (COP18), a process of expert dialogue
was initiated between 2013 and 2015 under the auspices of the UNFCCC in preparation for theParis Climate Summit.
The aim was to understand whether the target identified in Copenhagen and Cancún of reducing
global warming to below 2°C was sufficient, also in view of the possible need to reduce it to 1.5°C.
The final conclusions of the expert dialogues were documented in a report that the UNFCCC
published in 2015 and which states that the 2°C target can no longer be considered safe:"Significant climate impacts are already occurring at the current level of global warming andfurther warming magnitudes will only increase the risk of severe, pervasive and irreversible
impacts. [...] The concept of a 'watch level', where up to 2°C of
18

UNFCCC COP 16, Cancun Agreements, 2010.

19

UNFCCC COP 17 Durban 2011 Decision 1/CP 17.

20

UNEP, The Emission Gap Report 2010 Bridging the Emission Gap, Synthesis Report.

12

warming is considered safe, it is inadequate and would therefore be better seen as an upper limit[...] Limiting global warming below 1.5°C would have several advantages in terms of moving closer
to a safer 'watch level' [...] Parties may wish to adopt a precautionary pathway aiming to limit
global warming as far below 2°C as possible"21 .
The Paris Agreement, which entered into force on 5 October 2016 after the ratification processes, isa further elaboration and update of the 1992 UNFCCC.
4. THE 2015 PARIS AGREEMENT (COP21)
Its initial goal is to keep global warming 'well below 2°C' and preferably limit it to 1.5°C,
recognising that this would significantly reduce the risks and impacts of climate change (Article 2).
All countries affiliated to the UNFCCC must state their national emission reduction targets (set bythem), which should reflect the highest possible ambition based on their common but differentiatedresponsibilities and respective capabilities (Article 4). These targets are also called National
Determined Contributions (NDCs) and must be reported every five years and include a time frame
up to 203022 .
According to Article 2, the agreement '[...] aims to strengthen the global response to the threat ofclimate change [...]', defining as a central goal to '(a) Maintain the global average temperature
increase well below 2°C above pre-industrial levels and continue efforts to limit the temperature
increase to 1.5°C above pre-industrial levels [...]. To achieve the goals set to contain dangerous
climate change, Article 3 states that 'As nationally determined contributors to the global response
to climate change, all Parties shall undertake and communicate ambitious efforts as defined in
Articles 4, 7, 9, 10, 11 and 13 in order to achieve the objective of this Agreement set out in Article
2'.
Reaffirming their endorsement of the IPCC as the international authority on climate science andtheir commitment to base their climate action on the best available science, at COP21 in Paris itself,
the states called on the IPCC to provide a special report by 2018 on the impacts of global warmingof 1.5ºC above pre-industrial levels and related global greenhouse gas emission pathways (cited
above as IPCC SR 1.5)23 . In 2018, all 195 IPCC Member States approved by consensus theSummary for Policymakers
21

UNFCCC 2015, Report on the Structured Expert Dialogue on the 2013-2015 review.

22
23

FCCC/CP/2015/10/Add.1 paragraph 24
FCCC/CP/2015/10/Add.1 para 21

13

of SR 1.5, thus acknowledging that they have gained knowledge on the impacts of global warmingof 1.5ºC. Among other things, the report concludes that:i) Already at 1°C global warming compared to pre-industrial levels, the world was experiencing
extreme forms of climate that threatened human rights24 ;ii) a global warming of 1.5°C is not safe "for most nations, communities, ecosystems and sectors
and poses significant risks to natural and human systems compared to the current warming of 1°C25;iii) the difference in the consequences of climate change with a global warming of 1.5°C and 2°C,
respectively, is substantial26 ;iv) between 1.5ºC and 2ºC could result in serious and irreversible damage to natural and humansystems27 .
The report confirmed that even if temperatures are limited to 1.5ºC in the 21st century, sea levels
will continue to rise beyond 2100 and that, if 1.5ºC is exceeded, "instability of the Antarctic sea ice
sheet and/or irreversible loss of the Greenland ice sheet could cause sea levels to rise by several
metres over hundreds or thousands of years". After the publication of this report, the need to limit
global warming to a maximum of 1.5°C was recognised by the Council of Europe: 'The IPCC
report confirms that the world needs to limit climate change to 1.5°C to reduce the likelihood of
extreme weather events. It also emphasises that emissions must be reduced much more urgently
than previously expected. (...) This provides an opportunity for the EU to step up its action todemonstrate leadership and reap the benefits of first mover advantage.
This report also indicates that, as a result of these findings, reducing global warming to 1.5 °C
requires global CO2 emissions to be reduced by 45% by 2030 and 100% net by 2050. This meansthat from 2050 (bandwidth 2045-2055), there can be no more CO2 emissions into the atmosphere. If
this emission reduction process is followed, the probability of staying below 1.5 °C is 50% or more
and the probability of staying below 2 °C is 85%.
The subsequent COPs in Marrakech (COP 22), Bonn (COP 23) Katowice (COP 24) Madrid (COP25) can be seen as meetings that focused on the technical aspects of the implementation of the Paris
Agreement and the new climate scenarios outlined with the IPCC's 2018 work.
24

IPCC, 1.5SR, SPM, A.1-A..3.; IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to
the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, SPM, B.1.6 (2022) [IPCC AR6 WGII]).
25
IPCC, 1.5SR, Technical Summary (TS), p. 44, Ch. 5, p. 447.
26
IPCC, 2018, SR1.5 Global Warming of 1.5˚C, SPM p.20.
27
IPCC, 2018, SR 1.5 Global Warming of 1.5ºC, SPM, A.3.2

14

COP 26 in Glasgow was seen as particularly important, with countries expected to bring stronger
commitments to strengthen the Paris Agreement. In this context, negotiators were expected to take anumber of detailed technical decisions to finalise the Paris 'rule book', including new emission
reporting rules for all countries from 2024. In reality, the text 'invites' countries to 'review andstrengthen' their climate commitments by the end of 2022, calls for a 'phase down' of coal, anddefines processes to achieve a global adaptation target, higher levels of climate finance, and 'loss
and damage' funding.28
COP27 in Sharm el-Sheikh was marked by the assurance to developing countries to secure a newfund to support victims of climate disasters. It emphasised the urgent need for immediate, deep andsustained emission reductions in all applicable sectors; it recognised the unprecedented global
energy crisis and the urgency to rapidly transform energy systems to make them more secure,reliable and resilient, including by accelerating clean and equitable transitions to renewable energy
during this decade29 . This COP featured a record number of 636 lobbyists representing the fossil
fuel industry - an increase of more than 25 per cent compared to COP 26. This presence
demonstrated the strength of the oil industry and its ability to infiltrate and block decisive action to
drastically reduce the use of fossil fuels.
5. LATEST IPCC AR6 REPORTIn March 2023, the IPCC published the AR6 Synthesis Report, which summarises the best scientificknowledge currently available on climate change. This report integrates the main findings of theAR6 working group reports and the three special reports published since 2018 and affirms theimperative need to keep global warming below 1.5ºC.
In 2021, the IPCC published the Working Group I (WGI) contribution to the Sixth Assessment
Report, which addresses the most up-to-date physical understanding of the climate system andclimate change and brings together climate science knowledge. The contributions of Working
Group II (WGII) and Working Group III (WGIII) to the Sixth Assessment Report were published in
2022. The WGII report provides an assessment of the impacts of climate change on global andregional natural and human systems and examines the vulnerabilities, capacities and limitations of
nature and human societies in adapting to climate change. The WGIII report provides an updated
assessment of the progress and commitments of28

https://www.isprambiente.gov.it/it/archivio/notizie-e-novita-normative/notizie-ispra/2021/11/26a-conferenza-delle-parti-sul-cambiamentoclimate

29

https://enb.iisd.org/sites/default/files/2022-12/enb12818e.pdf

15

global climate change mitigation and examines the sources of global greenhouse gas emissions30 .
The WGII report is quite stark in its conclusions, and IPCC Chairman Hoesung Lee's statement is
explicit: 'This report is a desperate warning of the consequences of inaction.
The AR6 confirmed that CO2 concentrations in the atmosphere in 2019 were higher than at any
time in at least 2 million years, and that methane and nitrous oxide concentrations were higher thanat any time in at least 800,000 years. (A.1.3 SPM). The largest share and growth in grossgreenhouse gas emissions comes from CO2, fossil fuel combustion and industrial processes,
followed by methane. (A.1.4).
The IPCC also reiterates that current levels of warming are undermining the effective enjoyment of
human rights. The AR6 report noted that "the evidence of observed changes in extreme events suchas heat waves, heavy rainfall, droughts and tropical cyclones, and in particular their attribution tohuman influence, has strengthened further since AR5"31 . Millions of people are already suffering
the impacts of the climate crisis: water and food are increasingly difficult to access, amplifyingsocial tensions and migration phenomena, among other things.
The AR6 report also reiterates that at current levels of warming, climate change has already caused
substantial damage to terrestrial, freshwater, cryospheric, coastal and open ecosystems. The
Working Group II report confirms that some losses are already irreversible, such as mass die-offs ofvarious tree and coral species, and that "other impacts are approaching irreversibility, such as theimpacts of hydrological changes resulting from glacier retreat, or changes in some mountain(medium confidence) and Arctic ecosystems driven by permafrost thaw (high confidence)32 .
Furthermore, the IPCC has been clear that 'the projected risks and negative impacts and associatedlosses and damages from climate change increase with each increase in global warming' (emphasis
added) and that 'climate and non-climate risks will increasingly interact, creating compound andcascading risks that are more complex and difficult to manage'33 . With rising global temperatures,the IPCC warns that "compound heat waves and droughts are expected to become more frequent,
including concurrent events in multiple locations (high confidence). Due to relative sea level rise,the current extreme sea level events, which occur every 100 years, are expected to occur at least
once
30
31

https://www.ipcc.ch/reports/
IPCC AR6 Synthesis Report, SPM A.2; IPCC AR6, Working Group 1, Climate Change 2021: the Physical Science Basis, sections A3

and A.3.5
32
IPCC AR6, Working Group II, Climate Change 2022: Impacts, Adaptation and Vulnerability, SPM, Section B1.2
33
IPCC AR6, SPM B.2

16

per year in more than half of the tide gauge locations by 2100 under all scenarios considered (highconfidence). Other expected regional changes include intensification of tropical cyclones and/or
extratropical storms (medium confidence) and increased aridity and wildfires (medium-highconfidence)"34 .
The IPCC estimates that current greenhouse gas emission trends could reach 1.5ºC in the short termand even 2ºC in the coming decades35 . All global pathways that could limit warming to 1.5ºC andthose that limit warming to 2ºC, "imply rapid and deep and, in most cases, immediate reductions ingreenhouse gas emissions in all sectors this decade"36 .
Emissions must peak by 2025 at the latest, and be reduced by at least 45% by 2030. At the sametime, methane emissions must be reduced by a third by 2030. To achieve these deep and sustained
emission reductions and ensure a liveable and sustainable future for all, the IPCC states that "rapid
and far-reaching transitions are needed across all sectors and systems"37 and that to achieve thisgoal "feasible, effective and low-cost options for mitigation and adaptation are already available,with differences between systems and regions". The report confirms that in addition to solar andwind energy technologies, we also have the financial means to address this climate emergency: even
without counting the benefits of climate change mitigation, or the defence (adaptation) measures wewould need to address, the impacts of these investments on GDP would be a few percentage units.
As of SR 1.5 in 2018, the international community is aware of the need to make every effort to limit
the temperature increase to below 1.5ºC and the AR6 Synthesis Report reaffirms this. Therefore, allcountries of the world, based on the best available knowledge, are aware that with each additional
degree of warming, the negative climate risks and impacts and the associated losses and damages
from climate change will increase with each increase in global temperature; and that these projected
negative risks and impacts are higher for global warming of 1.5ºC and even higher for 2ºC andbeyond. Therefore, the international community is aware that every effort must be made to limit thetemperature increase to below 1.5ºC.
The IPCC AR6 report reiterates that achieving zero net emissions requires "a

34
35
36
37

IPCC AR6, SPM B.1.4
IPCC AR6, SPM B.2
IPCC AR6, SPM B.6
IPCC AR6, SPM C.3

17substantial reduction in the overall use of fossil fuels'38 .
However, the major contributors to this situation - the oil industry, above all - consciously anddeliberately refuse to make an effective contribution to preventing this danger. The AR6 Reportillustrates how reductions in emissions from fossil fuel combustion and industrial processes havefallen short of increases in emissions in industry, energy supply and transport39 . These actors arethus guilty, among other things, of damage to the environment, health, the economy and private
property, violating, as we shall see, supranational and national regulations.
In addition, even the influential International Energy Agency, an international organisation foundedby the OECD that works closely with governments and industry, recently published a study
showing that no investment should be made in new fossil fuel projects40 . In other words, thedevelopment of new oil and gas fields should not be approved in order to limit global warming to a
maximum of 1.5ºC. However, emission reductions from the combustion of fossil fuels - aprerequisite for compliance with the Paris Agreement - have been lower than emission increases
due to rising global activity levels in industry, energy supply and transport41 .
In the view of the actors, therefore, even private actors such as ENI, who are among the main
perpetrators of climate change, must take action not only to compensate for the damage alreadycaused and to remedy it, but also and above all to prevent its perpetuation over time. In particular:(1) because they have long been well aware of the dangers, risks and causes of climate change; (2)because they play a substantial role in global emissions of greenhouse gases and carbon dioxide inparticular (specifically, CO2 emissions associated with ENI's business are higher than those of theentire Italian state); (3) because they have the power, means and capacity to exercise control overemissions; (4) because they are among the main actors necessary for a transition to an
environmentally and socially sustainable society;(5) because they can take effective mitigating and precautionary measures with reasonable and not
impossible actions.
With these facts in mind, ENI, like any other oil company, has been aware of the problem for
decades, yet continues to make a significant contribution to emissions. Having the tools andresources to control and drastically reduce these emissions and to take effective precautionary
measures, it is essential that it adapts its industrial plans to enable a transition
38
39
40

AR6 SYR, SPM C.3.2
AR6 SYR, SPM A.1.4
https://www.iea.org/reports/net-zero-by-2050

41

AR6 SYR, SPM A.1.4

18

sustainable, emission-free energy. As a state-controlled company, it must adapt to the global climate
targets officially accepted under international law by our country without further unacceptabledelays.
On the basis of all that is illustrated in this summons, the plaintiffs come to the conclusion that ENI,
with its current climate policy inadequate with respect to the obligations to which it should be
subject, although endorsed by the Italian State for the reasons that will be better illustrated, violates
the right to life and the right to an undisturbed family life as provided for in Articles 2 and 8 of the
ECHR, committing unlawful conduct and causing pecuniary and non-pecuniary damage.
ENI must, therefore, be required to put an end to this contra ius situation by pursuing the global
climate objective of the Paris Agreement, respecting, among others, the precautionary principle.
As an internationally operating company and responsible for more CO2 than the entire country
emits, ENI will have to follow the emission reduction scenario necessary to limit global warming in
the atmosphere with a greenhouse gas concentration in the atmosphere between 400 and 500 ppm.
This means achieving zero net CO2 emissions by 2050 with an intermediate emission reduction ofat least 45% by 2030 at the latest. It is, therefore, imperative that ENI begins to reduce its emissions
immediately and concretely, because if it continues to delay and/or postpone, the risk of not being
able to avoid irreversible climate damage will increase, and so will the associated social andeconomic costs.
6. INCREASING CO2 CONCENTRATIONS IN THE ATMOSPHEREIn 2015, the annual average of global CO2 concentrations exceeded the level of 400 ppm for the
first time; in May 2022, that of 421 ppm42 . The speed with which humans have changed thechemical composition of the atmosphere since the industrial revolution is staggering.
In its fifth report in 2013/2014, the IPCC projected a baseline scenario (i.e. without explicit
additional efforts to limit emissions) that exceeds 450 ppm by 2030 and reaches concentrationlevels between 750 and more than 1300 by 210043 . If greenhouse gas emissions continue to grow as
they are now, climatologists predict global warming of more than 4°C above the pre-industrial level
during this century. As things stand, the world is therefore heading for catastrophic climate change
for humanity and other forms of life.
In the first decades of the 20th century, the relationship between fossil fuel combustion,
atmospheric CO2 and global temperatures aroused little interest because it was believed with somedegree of42

https://www.noaa.gov/news-release/carbon-dioxide-now-more-than-50-higher-than-pre-industrial-levels

43

IPCC 2013, AR5, WGIII, SPM, p.8.

19

certainty that the CO2 released in this way would be absorbed by the oceans, thus protecting theatmosphere. This axiom began to be challenged when, in 1938, researcher Guy Callendar publisheda study entitled 'The Artificial Production of Carbon Dioxide and its Influence on Temperature'44 .
In his study, Callendar observed that three-fourths of the carbon dioxide released over the previous
50 years had remained in the atmosphere and therefore had not, as claimed until then, beenreabsorbed by the oceans.
In 1957, Roger Revelle and Hans Suess of the Scripps Institute of Oceanography in La Jolla,
California, published the first study contradicting the thesis that the oceans had absorbed the vast
majority of the carbon added artificially to the atmosphere45 . Revelle and Suess, in particular,stated that 'within a few centuries we are putting back into the atmosphere and the oceans theconcentrated organic carbon stored in sedimentary rocks over hundreds of millions of years'.
Two months after the publication of this article, scientists from Humble Oil (a subsidiary of today's
ExxonMobil) published a study that acknowledged both the increase in atmospheric CO2 levels andthe obvious contribution of fossil fuels to this increase, as well as the continued and predicted
increase in the burning of fossil fuels46 . The oil companies were by no means unaware of what was
happening, so much so that through their trade organisation, the American Petroleum Institute(API), they continued to commission studies on the subject47 .
For example, in 1968, a report commissioned by the API from the Stanford Institute of Research
entitled 'Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants' warned that rising CO2
levels would result in rising global temperatures and lead to melting polar ice caps, rising sea levels,
warming oceans, and other serious environmental damage on a global scale.
On 28 February 1978, the EPA (the US Environmental Protection Agency) published a dossier on
the environmental impact of coal liquefaction, which stated for the first time that "the continued useof fossil fuels as a primary energy source for more than 20 to 30 years could lead to an increase inatmospheric carbon dioxide levels. The greenhouse effect, the increase in
44

https://www.rmets.org/sites/default/files/qjcallender38.pdf

45

R.Revelle & Hans E. Suess, 'Carbon Dioxide Exchange Between Atmosphere and Ocean and the Question of an Increase of Atmospheris
CO2, during the Past Decade. Su https://onlinelibrary.wiley.com/doi/10.1111/j.2153-3490.1957.tb01849.x
46

H.R. Brannon et al., 'Radiocarbon Evidence on the Dilution of Atmosphere and Oceanic Carbon by Carbon from Fossil Fuels', available
at http://onlinelibrary.wiley,com/doi/10.1029/TR038i005p00643/full47

Elmer Robinson E R.C. Robbins, 'Sources, Abundance, and Fate of Gaseouse Atmospheric Pollutants: Final Report'. Available athttps://www.osti.gov/scitech/biblio/6852325. Also H.H. Meredith, "Platitudes or Performance?". Reachable at
http://www.tandfonline.com/doi/pdf/10.1080/00022470.1.

20

global temperature and the resulting climate change could be significant and damaging'.
During the same period, the American geophysicist Gordon MacDonald also came to similar
conclusions. In 1978 he began a study for the White House Department of Energy in which hestated that 'global temperatures will rise by an average of two to three degrees Celsius, fine dust
conditions will threaten vast areas of North America, Asia and Africa, access to drinking water andagricultural production will decline, triggering unprecedented mass migration'.
Lyndon Johnson, the 36th president of the United States, claimed that his generation had altered thecomposition of the atmosphere on a global scale through a sudden increase in carbon dioxide
derived from the use of fossil fuels and commissioned a further study on the subject.
On 23 July 1979, a group of scientists meeting in Massachusetts at the Woods Hole Oceanographic
Institution published the Charney Report, entitled "Carbon Dioxide and Climate: A Scientific
Assessment"48 . It stated that the level of CO2 would change the Earth's temperature, predicting adisastrous future. More precisely, according to the report, at that rate of emissions, the global
temperature would rise by 3°C by 2035: "we have irrefutable evidence that the atmosphere ischanging and that humans are contributing to this process. Carbon dioxide concentrations arecontinuously increasing. This is linked to the burning of fossil resources and the exploitation of thesoil. Since carbon dioxide plays a significant role in the thermal equilibrium of the atmosphere, it isreasonable to assume that its increase will have consequences for the climate'. One year after the
publication of the Charney Report, US President Carter signed the Energy Security Act (1980) to
initiate a multi-year study entitled Changing Climate, with the aim of analysing the social andeconomic effects of climate change49 .
The Charney Report then became the target of the oil companies who, therefore, were widely awareof it and who, like Exxon, tried to refute it and deny its conclusions, while scientists continued togather evidence and the media continued to publicise studies on climate change. The New YorkTimes, on 22 August 1981, published the news of a study published in Science by James Hansen
showing rising temperatures over the last century50 .
Hansen himself is one of the leading scientists on climate change. On 23 June
48
49
50

https://geosci.uchicago.edu/~archer/warming_papers/charney.1979.report.pdf
https://www.govinfo.gov/app/details/COMPS-10425
https://www.nytimes.com/1981/08/22/us/study-finds-warming-trend-that-could-raise-sea-levels.html

21

1988 speaks for the first time in history in front of the US Senate about global warming, stating thatthe world is overheating and that the Earth recorded higher temperatures in the first five months of1988 than in the previous 130 years, due to mankind's polluting activities.
Hansen even estimated that a temperature increase of 0.8°C would occur between 1988 and 2017.
The prediction was almost perfectly centred as the data in 2017 showed an increase of 0.6°C.
We can, therefore, say that the suspicions about the climate-changing effects of the use of fossil
fuels supplied by oil companies to our societies, which date back to the late 19th century, found acertain and unequivocal answer between the 1970s and the 1980s: the climate is changing andcatastrophic scenarios are looming because temperatures are rising in proportion to the increase of
CO2 and other greenhouse gases in the atmosphere, which is largely to blame for fossil fuels, the oil
industry's core business.
7. GLOBAL WARMING
The fact that the Earth is warming due to higher CO2 concentrations in the atmosphere has, as wehave seen, been known for a long time. According to the IPCC, in the decade 2011-2020, theaverage temperature of our planet has increased by about 1.09°C (bandwidth 0.95 to 1.20°C)
compared to pre-industrial levels51 , and global warming at the current rate will lead to an increasein average temperatures of 0.2°C every decade52 .
The most recent studies indicate that at least one of the years between 2023 and 2026 has a 48%
probability of temporarily exceeding 1.5°C of warming compared to pre-industrial levels53 , i.e.
well in advance of what was suggested in the IPCC's own recent special report on 1.5°C warming
published in 2018 mentioned above.
Furthermore, it is virtually certain that, according to current emission trends, the global warming
threshold of 2°C will be exceeded during the 21st century.
The current level of global warming is already having an impact on important ecosystems andhuman communities across the planet. Current climate extremes reveal that many human andnatural systems are vulnerable to global warming and its consequences, such as disruption of foodproduction and water supply, damage to infrastructure and settlements, and deterioration of life,
health and well-being of living beings.
Air pollution and the causes of climate change are strictly
51
52
53

IPCC 2021, AR6, SPM, p. 5.
IPCC 2018, Global Warming of 1.5˚C SPM p.6.
WMO, 2022, Global Annual to Decadal Climate Update, https://library.wmo.int/doc_num.php?explnum_id=11175

22

interdependent. This is a new element of the above-mentioned IPCC AR6 Working Group report
I. In fact, Chapter 6 discusses, for the first time in an organic manner in the work of the IPCC, theso-called short-lived climate forcers in the atmosphere, many of which are the most common air
pollutants that have deleterious effects on human health and the environment in general. Air
pollution and climate change are defined as two sides of the same coin, leading to the conclusionthat integrated policies to reduce emissions generated by human activities are the best
environmental policy strategy, also in terms of social and economic costs, and produce beneficial
effects both for air quality and for limiting global warming.
Many of the changes we have experienced in the recent past and are currently experiencing aresigns of a now irreversible impact, or one that is about to become irreversible, of climate change,such as rising sea temperatures, melting land ice and the consequent rise in sea level, and theacidification and deoxygenation (anoxia) of the seas themselves. In more detail, the report showsthat further warming will amplify the thawing of permafrost and the loss of seasonal snow cover,land ice and Arctic sea ice. The Arctic is likely to be sea-ice-free in September (month of the annual
minimum) at least once before 2050, with more frequent occurrences for higher warming levels.
The global mean sea level will continue to rise throughout the 21st century in all five scenarios
considered by the IPCC.
Again in the same report, low probability and high impact events are analysed, i.e. potential climatechange outcomes considered unlikely, yet possible, that could lead to disastrous consequences (e.g.
a sudden collapse of the Antarctic ice sheet leading to a faster-than-expected rise in sea level, or thedisappearance of the Amazon rainforest, or more generally concomitant extreme events).
On the other hand, this report analyses climate change with reference to five illustrative scenariosthat cover a range of possible future developments of anthropogenic factors that are found in thescientific literature to influence climate change. The Shared Socio-economic Pathways (SSPs)
consider a variety of different socio-economic contexts associated with the implementation ofdifferent GHG management strategies.
These paths start in 2015 and include hypotheses with:●high greenhouse gas emissions and CO2 emissions doubling by 2100 or 2050 compared tocurrent values;●

intermediate values of greenhouse gas emissions with CO2 emissions remaining at current

levels until the middle of the century;23●

Low or very low greenhouse gas emissions with CO2 emissions moving towards the goal of

net zero emissions around or after 2050, with different levels of negative CO2 emissions.
In the different pathways, emissions change according to different socio-economic assumptions,levels of climate change mitigation and emission control initiatives for certain pollutants. However,
the global temperature will continue to increase at least until mid-century in all the Shared
Socioeconomic Pathways considered.
8. KEY RISKS AND FIVE REASONS FOR CONCERN
Since the 2001 Third Assessment Report (AR3), the IPCC has divided the most important risks
associated with anthropogenic climate change ('key risks') into 'five Reasons for Concerns' (RCF).
They are considered key risks by the IPCC because of the great danger they pose, the high degreeof vulnerability of societies and/or ecosystems to them, the large magnitude of the risk, its highprobability, the irreversibility of the consequences, and the limited potential to limit the risk
through adaptation and mitigation.
The five RCFs are as follows:
RFC1: "Unique and threatened systems" are both natural and cultural systems. Rising global
temperatures will mean that some human systems will have to adapt massively or ecosystems as weknow them will disappear. Examples of systems that already face a very high risk of extensive
damage between 1.5°C and 2°C are ice masses in the Arctic Ocean and coral reefs in tropicalwaters.
RFC2: 'Extreme weather events' will increase in both frequency and intensity. Droughts, extreme
rainfall, heat and (tropical) storms and hurricanes are examples of extreme weather conditions thatwill increase in frequency and/or severity and will in turn lead to more forest fires (due todrought/heat) and floods (due to extreme rainfall and storms). Most infrastructures (ports, roads,
waterways, railways, energy supply, buildings, hospitals, dams, urban planning, etc.) have not been
designed to withstand extreme weather conditions such as extreme heat and extreme rainfall and thedamage will be significant.
But they already have been.
To cite events close to us, it will suffice at this stage to mention Hurricane VAIA, which, from 26 to
29 October 2018, raged over vast areas of France, Italy, Croatia, Austria and Switzerland, causing
extremely serious damage to natural resources, property and individuals affected, with a total of 37
deaths, the felling of around 42 million trees and damage estimated at over 5 billion

24euro54 .
RFC3: 'Distribution of Impacts'; the IPCC emphasises that the risks of climate change are unevenly
distributed and that in all countries (regardless of development status) groups that are already invulnerable situations and among the most marginalised will be the most affected and most exposed
to food and water security risks.
RFC4: "Global aggregate impacts" are the effects of climate change that are greater than direct
effects alone and that add up to various mutually reinforcing (indirect) effects. This can be
explained with an example: climate change leads to a loss of biodiversity through various complex
mechanisms, in a relationship where the loss increases exponentially with the extent of global
warming. This loss of biodiversity not only has important (direct) consequences for ecology, butalso important (indirect) economic consequences because people depend on this biodiversity.
RFC5: "Large-scale singular events" are changes that in most cases are irreversible and therefore
have very wide-ranging and lasting consequences.
Of the five reasons for concern, the fifth reason (the risks of large-scale singular events) deserves
special attention because it refers to the most comprehensive, drastic and sudden dangers of climatechange, the so-called 'tipping points' of the climate system. By 'point of no return', the IPCC
indicates that the climate system is undergoing an abrupt and irreversible change that throughfeedback mechanisms can further accelerate climate change to the point where it becomes
uncontrollable.
Some possible risks of the point of no return include, according to the IPCC, (i) the thawing of thepermafrost layer of the tundra regions and the thawing of the permafrost layers close to the shallow
seabed, causing the release of large quantities of methane gas (a considerably more potent
greenhouse gas than CO2, as mentioned above) trapped in the permafrost to date; (ii) the drying upof the Amazon region, with the consequence that tropical rainforests in this area may capture muchless CO2 from the atmosphere and may even become a net/active source of CO2 release, with anincreasing risk of large forest fires and the conversion of the rainforest biome to a savannah state(iii) the disappearance of ice in Greenland, which could cause the sea level to rise by 7 metres aswell as the West Antarctic Ice Sheet, which is also considered unstable, which may lead to a further
rise in sea level of about 4 metres.
The IPCC concludes that the risk of tipping points is particularly high if there is no54

https://www.larena.it/oltre-verona/veneto/tempesta-vaia-cause-danni-vittime-ottobre-2018-1.9702462, in celebrating the anniversary ofthe disaster, recalls, for example, the people who died in the Veneto region alone: 'one person died in the very first hours, a man from Padua
crushed by a plane tree in Feltre, followed by a man who slipped into a stream in Falcade and an elderly woman from Selva di Cadore swept away
by a tree in the woods'.

25

further emission reductions: 'Without further mitigation efforts beyond those in place today, andeven adapting, warming by the end of the 21st century will lead to a high to very high risk of severe,widespread and irreversible global impacts'55 .
It should be noted that in 2018, an international team of climate scientists published a paper on
tipping points that confirms the IPCC findings56 . Also that study points out that the crossing oftipping points can lead to accelerated warming or other changes through various feedbacks on the
climate system, so that other tipping points can be initiated in the climate system. The resulting
domino effect is called 'Tipping Cascades' (tipping cascades/chain reactions generated by a point of
no return), with the consequence that once the points of no return are reached, the Earth warms up
more rapidly, leading to the impossibility of preventing further and possibly irreversible dangerous
climate change.
9. RISKS TO HUMAN HEALTH
In 2014, the IPCC highlighted that the effects of climate change such as heat spells, floods anddroughts affect people's health both directly and indirectly. The consequences for food supply due
to crop failures, the spread of infectious diseases spread by insects and the health consequences
associated with the displacement of people have to be taken into account: 'The health of humanpopulations is sensitive to changes in weather patterns and other aspects of climate change (veryhigh confidence). These effects occur directly, through changes in temperature, precipitation andthe occurrence of heat waves, floods, droughts and fires. Indirectly, health can be damaged byecological disruptions caused by climate change (failed crops/crops, changes in disease vector
patterns) or social responses to climate change (such as displacement of populations following
prolonged droughts). Temperature variability is a risk factor in its own right, beyond the influenceof average temperatures on heat-related deaths'57 .
Because of the global scale of direct and indirect damage to people's lives and health, the World
Health Organisation (WHO) has identified climate change as the greatest challenge to human healthand a risk that seriously threatens all aspects of society: 'Climate change is the greatest healthchallenge of the 21st century and threatens all aspects of the society in which we live. The severityof the health impacts of climate change
55
56

IPCC 2013, AR5, SYR, p. 70-72.
Steffen, W., Rockström, J., Richardson, K., Lenton, T. M., Folke, C., Liverman, D., ... & Schellnhuber, H. J. (2018). Trajectories of
the Earth System in the Anthropocene. Proceedings of the National Academy of Sciences, 115(33), 8252-8259.
57
IPCC 2014, AR 5, WGII, H 11, p. 713.

26

human is becoming increasingly clear and further delay in action will increase the risks'58 .
Even The Lancet, arguably the world's leading medical-scientific journal, has come out to state that
health risks are becoming unacceptably high and that the lack of emission reductions threatens
human life and health: "The changes in our days of heat waves, labour capacities, vector-borne
diseases and food security provide an early warning of the combined and overwhelming publichealth impact as predicted - if temperatures continue to rise. Trends in climate change impacts,
exposures and vulnerabilities show an unacceptably high level of risk to the current and future
health of populations worldwide [...] The lack of progress in reducing emissions and building
adaptive capacity threatens both lives and the viability of the national health systems on which they
depend, with the potential to disrupt basic public health infrastructure and overwhelm/annihilate
health services."59 .
The link between climate change and difficulties in food supply shows that humans depend on
healthy ecosystems. The IPCC explicitly links the impact of climate change on ecosystems to its
impact on human systems, human well-being and people's ability to sustain themselves. In addition,
ecosystems also play a key role in limiting the spread of human and non-human diseases and pests,
influence and stabilise weather and climate (e.g. tempering temperature extremes, rainwater
circulation and CO2 uptake through forests), and thus influence agriculture, food supplies, watersupply and flood hazards, and physical human infrastructure. As ecosystems change, their impact
on these issues also changes, and according to the IPCC they affect human well-being and the wellbeing of millions of other species in many different ways. The more ecosystems are affected byclimate, the harder it is for humans and other species to adapt to these changes60 .
Some of the functions of ecosystems that are already threatened by the current warming of about
1°C are pollination, pest control, disease regulation, climate regulation services and drinking watersupply. With increased stress on ecosystems, the possibilities to respond to climate change will belimited. This is important, among other things, because ecosystems that cannot adapt to climatechange (because it is too fast or too drastic) also limit human adaptation: "Successful adaptation
will depend on our ability to enable and facilitate natural systems to
58
59
60

UNFCC World Health Organisation 2018, COP 24 Special Report Health & Climate Change p. 10.
Watts 2018, The Lancet, The 2018 Report of the Lancet countdown on health and climate change p. 2479.
IPCC 2014, AR5, WGII, CH. 4, p. 319.

27

adapt to a changing climate, thus maintaining the ecosystem services on which all life depends'61 .
The main effect that the destruction of ecosystems due to climate change will have on human life
and well-being is the reason why Article 2 of the 1992 UN Climate Convention made it clear thatclimate change is dangerous once ecosystems are no longer able to adapt naturally to it. For thesame reasons, within the definition of 'adverse effects of climate change', the treaty clarifies (Article
1) that these include significant adverse effects on the composition, resilience or reproductive
capacity of natural or human-managed ecosystems.
In short, humans depend on healthy ecosystems that are sufficiently vital for their lives and wellbeing if they can provide the goods, functions and ecosystem services that humans need for their
existence.
Climate change is a threat to ecosystems and therefore a threat to human life and well-being.
10. SOCIO-ECONOMIC IMPACTS
Evidence of one of the socio-economic impacts of climate change that most directly affects ourcountry is provided by a study published by Italian researchers that shows how heat waves in subSaharan Africa, by reducing food production in the area, increase migration flows62 . This, andmany other related works, attest to another particularly cruel aspect of climate change, namely its
nature as an amplifier of inequalities, a situation that can create further sources of conflict orexacerbate existing ones. The inequality inherent in climate change, on the other hand, is also wellreflected in the figure on responsibility for greenhouse gas emissions. According to one study, therichest 10% of the world's population was responsible for more than half (52%) of the emissions
between 1990 and 2015; also during this period, the richest 1% of the population was responsiblefor 15% of the emissions, more than the total emissions of the EU countries and more than double
those of the poorest half of humanity (7%)63 ; even the 1% of individuals emitting the most CO2
produced 1000 times more than the 1% of individuals emitting the least64 .
Climate change-induced inequalities are an important issue, hence the need for strong international
cooperation between countries, also emphasised by the
61
62

IPCC 2014, AR5, WGII, CH. 14, p. 839.
migrations from the Sahel to Italy driven by weather-climate variations, Linear and non-linear influences of climatic changes on
migration flows: a case study for the 'Mediterranean bridge', Environmental Research Communications 1,011005,
https://iopscience.iop.org/article/10.1088/2515-7620/ab0464, A. Pasini, S. Amendola (2019).
63
Oxfam, 2020, Confronting Carbon Inequality, https://oxfamilibrary.openrepository.com/bitstream/handle/10546/621052/mb-

confronting- carbon-inequality-210920-en.pdf
64
https://www.iea.org/commentaries/the-world-s-top-1-of-emitters-produce-over-1000-times-more-co2-than-the-bottom-1

28

UNFCCC, which in its preamble recognises 'that the global nature of climate change requires thewidest possible cooperation by all countries and their participation in an effective and appropriate
international response, in accordance with their common but differentiated responsibilities, andtheir respective economic and social capacities and conditions'. If the impacts of climate change
affect everyone, and Italy has already been repeatedly - and increasingly frequently - hit by extreme
phenomena such as heat waves and droughts, the countries and communities that have a residual
responsibility with respect to historical greenhouse gas emissions are those most affected and thathave the fewest resources today to cope with the impacts of the climate crisis. This is also why'climate justice' is a necessary element to ensure a future perspective for all our societies:
decarbonising is both a contingent necessity and an element of justice, to which we are all bound.
11. THE IMPACTS OF CLIMATE CHANGE IN ITALY
Italy is one of the European countries most at risk from the impacts of climate change. The study'Risk Analysis - Climate Change in Italy,'65 carried out by the Euro-Mediterranean Centre on
Climate Change (CMCC) highlights the main ones: 'reduction of water resources, soil instability,
forest fires, soil consumption, desertification and loss of crop and ecosystem productivity: these aresome of the multiple risk factors that characterise the entire Mediterranean basin. To these risks
must be added the additional pressures caused by ongoing climate change that act as 'amplifiers'
with consequences that could be extremely negative in the coming decades'.
As explained in this study, climate change can create 'new' risks, or it can amplify existing ones. We
are talking about risks related to extreme phenomena such as floods, storms, heat waves, but alsorisks for specific sectors of the economy, first and foremost agriculture, or related to cross-cutting
issues such as health or water management.
Some particularly interesting results of the CMCC study show that:-the probability of risk from extreme events has increased in Italy by 9% in the last 20 years;-

Urbanised areas will experience strong negative impacts from climate change, especiallywith regard to extreme weather phenomena (heat waves and intense precipitation events).

-

It will mainly be the most vulnerable sections of the population (children, the elderly, thedisabled) that will be most adversely affected;

65

Intense heat is a health risk for the population. In 2019 thehttps://www.cmcc.it/wp-content/uploads/2020/09/EXECUTIVE_SUMMARY_CMCC_RISCHIO_Clima_in_Italia-1.pdf

29

days of intense heat were 29 more than in the 1961-1990 period. According to climate
projections, these are expected to increase especially in urban areas;-

There is a strong link between temperature increase and air pollution. The expected increasein periods of intense heat affects the increase in mortality, cardiovascular and respiratory
diseases;-

There is an increasing trend in the frequency and intensity of extreme precipitation
phenomena, resulting in an increased risk of reservoir flooding and urban flooding;-

Italy is an area strongly subject to geological, hydrological and hydraulic instability
phenomena that pose a serious threat to the population. The rise in temperature and theincrease in precipitation phenomena localised in space and time play an important role inexacerbating the risk of geo-hydrological instability throughout the territory.

-

Expected climate changes (prolonged periods of drought, extreme events and changes in therainfall regime) present risks to the quality and availability of water resources in Italy; theserisks are most evident in the summer months and in semi-arid areas.

-

The risk from climate change in Italy for the agricultural sector is significant for both plant
and animal production. Productivity decreases are expected in the future for spring-summer
cycle crops in Italy, especially if they are not irrigated. From analyses of climate change
scenarios, a reduction in irrigated maize yields of up to 25-50% compared to current values
in some areas is expected in the coming decades.

-

Negative impacts of climate change on the health, production and reproduction of most
livestock species are expected, with higher vulnerability for dairy ruminants and pigs,
medium vulnerability for poultry and medium-low for meat ruminants.

-

An increase in fire risk of more than 20 per cent in all climate scenarios and a lengthening of
the fire season by between 20 and 40 days are expected in Italy in the coming decades.

In light of this risk picture, it is understandable how climate may become the most importantvariable with respect to economic and employment development in the coming years.
Isolating the risks of landslides and floods only, a study carried out in 2021 by Greenpeace Italy66 entitled 'How much does the climate crisis cost Italy' - highlights how 'from 2013 to 2019, theeconomic damage caused by landslides and floods in Italy amounted to EUR 20.3 billion, for66

https://www.greenpeace.org/static/planet4-italy-stateless/2021/08/ae9471fc-quanto_costa_allitalia_la_crisi_climatica.pdf

30

an average of almost 3 billion per year'. There are obviously regional differences, with EmiliaRomagna being the worst affected region, followed by Campania, Tuscany, Abruzzo and Liguria.
But it is the whole Italian territory that is exposed, since 'more than 90% of Italian municipalities
are at risk of landslides or floods: a total of 7.5 million people are exposed to these two dangers(1.3 million for the landslide risk, 6.2 million for the flood risk)'.
In addition to the material damage this will cause, these dangers also threaten the right to life, healthand undisturbed family life as set out in the European Convention on Human Rights.
12. INJUSTICE BETWEEN GENERATIONS
The impact of climate change not only differs for people from different regions and socioeconomic backgrounds (intragenerational), but also leads to inequalities between generations(intergenerational).
The fact that the consequences of climate change will inevitably become greater in the future
automatically means that climate change will hit young people and future generations harder.
The concept of intergenerational inequality gained its first importance after the Brundtland
Commission defined sustainable development in its well-known report 'Our Common Future' as
follows: "Sustainable development is development that meets the needs of the present withoutcompromising the ability of future generations to meet their own needs"67 .
Although this report did not specifically address climate change, it nevertheless shows that the
impact of anthropogenic activities has an impact on the lives of future generations and that it isimportant to consider the needs and opportunities of these generations as well. Lord Stern's 2006
and 2009 reports confirm this argument and also link it to climate change 'Issues of intra- andintergenerational equity are central. Climate change will have serious impacts over the lifetime ofmost of those living today. Future generations will be even more severely affected, but they lack
representation in today's decisions'68 .
Unless urgent and sufficient action is taken to prevent serious climate change and to stay below
1.5°C, the costs of adaptation and damage will largely be borne by younger people and future
generations, who have not caused the problem. The contradiction that emerges here is that thewishes are of the older generations and the burdens of the67
68

UN Documents, Our Common Future, Gathering a Body of Global Agreements, Chapter 2, Towards Sustainable Development, p. 44.
Stern Review 2006: The Economics of Climate Change, H. 2, Economics, ethics and climate change, this report is published on request of
the British government in 2006.

31

young people. Which once again underlines the importance of climate action and shows that delay
is not an option. In the following section on the sources of law and, in particular, on theconstitutional reform of 2022, this topic will also be explored from a strictly legal point of view.
13. THE STRATEGYOF OCCULTATIONE OF DISINFORMATIONOFTHE OIL COMPANIES AND MALFEASANCE ON CLIMATE CHANGE.
Hansen was not the only scientist who argued in the late 1980s what turned out to be true: that therise in temperatures was to be attributed to the exponential increase in C02 emissions into theatmosphere, which began with the industrial revolution and was linked to the extraction andexploitation of fossil fuels by oil companies.
Committed to scientific research in the field, the big fossil companies hired the best scientists tofigure out how to increase profits or protect themselves from possible problems related to risingtemperatures from burning fossil fuels.
Several documents that have emerged in recent years have shown that as early as 1981, RoyalDutch Shell, for example, commissioned its own scientists to carry out studies on the greenhouseeffect.
In 1986, this research led to the internal publication of the report of the same title, in which it waslearned that Shell was well aware of the oil industry's predominant role in the increase of CO2
emissions and had even calculated the individual contribution as an estimated 4% of the total. We
also learn that scientists knew that this would cause significant changes in sea level, ocean currents,
precipitation patterns, regional temperatures and climate, and the consequences on the human
ecosystem, living standards and food availability, as well as society, economics and politics.
A report written by scientists from Harvard, Bristol and George Mason universities and published in
October 2019 draws some parallels between the disinformation campaign set up by the oilcompanies and that orchestrated by the tobacco industry, which for years have tried tounderestimate the harm of cigarette smoking in the eyes of consumers69 .
In this regard, in the 2010 essay 'Merchants of Doubt', Harvard University historian and geologist
Naomi Oreskes and historian Eric M. Conway clearly explain how oil companies orchestrated massdisinformation campaigns to protect their own interests through the manipulation of public opinion,
so as to obstruct the recognition of the emerging scientific consensus.
The technique succeeded for a long time also thanks to the immense economic power of the oilcompanies.
69 https://www.climatechangecommunication.org/wp-content/uploads/2019/10/America_Misled.pdf

32All oil companies have adopted this tactic, but since climate change studies have been developed in
the United States, it is from a US company, Exxon, that we can derive useful information.
In 2006, the trial United States v. Philip Morris ended with the conviction of several tobaccocompanies: the companies had lied to the public for 50 years and continued to do so: "for decades,
the defendants also engaged in an elaborate and well-funded public relations offensive, denying
and attacking the consensus conclusion that they themselves had already reached internally, butthat the less well-funded public health community was belatedly reaching, that smoking is addictive
primarily because cigarettes effectively release nicotine"70 .
In the wake of this, a conference was organised in La Jolla, California, in 2012, at the initiative ofProfessor Naomi Oreskes, with the aim of exploring the hypothesis that specific responsibilities
existed in the fossil fuel industry as well, and possibly opening the way to legal action. In fact, it
was one thing to prove, as was now established, that there was a very well-funded disinformation
operation attributable to known spin-doctors, and quite another to establish whether it was also
criminally relevant conduct, i.e. whether one had lied with knowledge of lying.
The result was the investigative project Inside Climate News71 , according to which Exxon between
1977 and 1986 not only already referred to global warming caused by fossil fuels as a problem to be
dealt with, but internal company documents showed that managers were very well aware of the riskof environmental catastrophes and irreversible damage if they did not change course quickly. The
same analysis shows how other oil companies, such as ENI, had similar awareness as Exxon of thecauses and effects of global warming.
The disinformation operation is now established to be without merit and there are, in fact, numerous
lawsuits against oil companies worldwide for being the conscious and malicious cause of theongoing climate change and rulings by national courts and human rights institutions recognising theadvance knowledge of climate change and the malicious intent of fossil fuel companies. See mostrecently Dutch v. Shell and the findings of the Human Rights Commission of the Philippines. In
particular, the Human Rights Commission of the Philippines, in its landmark multi-year
investigation into the responsibility of 47 major fossil fuel and cement companies, including ENI,
towards the climate-related human rights of the Filipino people, stated that ENI and other70
71

https://publichealthlawcenter.org/sites/default/files/resources/tclc-fs-DOJ-litigation-overview-2015.pdf
https://insideclimatenews.org/project/exxon-the-road-not-taken/

33companies had an early awareness, notification or knowledge of the negative impacts of theirproducts on the environment and the climate system, at the latest in 1965, and engaged in the
deliberate obfuscation of climate science, which undermined the public's right to make informed
decisions about their products by concealing the fact that their products resulted in significant
damage to the environment and the climate system72 .
14. THE OIL INDUSTRYINITALYITS KNOWLEDGE OFONGOING CLIMATE CHANGE
The pollution caused by the oil industry is a consequence of all the activities and various stages ofhydrocarbon production, from exploration to refining. The wastewater, solid waste and gases
generated during drilling, production, but also transport, include more than eight hundred different
toxic chemicals.
Other types of impact on the environment must also be taken into account, involving an
intensification of the greenhouse effect, acid rain and groundwater pollution: all disastrous
consequences.
In Italy, the oil industry got a late start as a well-defined business, as the first national oil company
was only founded in the early 20th century under the name of Società Petrolifera Italiana.
This was more of a local business and its activities were somewhat reduced, until it first became
Agip in the 1920s and then after the war ENI, thanks to Enrico Mattei, who promoted the spread ofdomestic and foreign oil exploration and expanded its activities to many parts of Africa and Eastern
Europe.
Even today, ENI is still Italy's national oil company, despite the fact that a substantial shareholding
is held by private individuals, and is dedicated to finding crude oil and natural gas around the world.
ENI is Italy's largest fossil fuel company, 30% owned by the Italian state. It is among the top thirty
companies in the world responsible for the climate crisis73 . It produces approximately 1.7 million
barrels of oil equivalent (2022 figures) per day, and it intends to increase this figure by 3-4% peryear to 1.9 million by 2026, and then maintain this peak production until 203074 .
In Nigeria, for example, Eni has been active since 1965 in the Niger Delta region, infamously
known as one of the most polluted in the world, mainly due to continuous oil spills

72

Philippine Commission on Human Rights, National Inquiry on Climate Change Report, May 2022, available at: https://chr.gov.ph/wpcontent/uploads/2022/12/CHRP_National-Inquiry-on-Climate-Change-Report.pdf pp. 101-10973
https://cdn.cdp.net/cdp-production/cms/reports/documents/000/002/327/original/Carbon-Majors-Report-2017.pdf?1501833772
74
https://www.eni.com/it-IT/media/comunicati-stampa/2023/02/cs-capital-markets-day-2023-ita.html

34

contaminating water and soil in the region75 . To these must be added the damage caused by gas
flaring, i.e. the practice of open burning of excess gas, which Eni has not yet stopped76 .
In Mozambique, ENI has discovered an offshore gas field at a depth of about 1,600 metres. In order
to export the gas that will be extracted ENI is completing a huge gas liquefaction plant off the coastof Mozambique. A study by the Global Energy Monitor77 concluded that new liquefied gas projects
could have a greater impact on climate than even coal, due to fugitive methane emissions duringtransport. In Val d'Agri (Basilicata), ENI has been extracting oil from Europe's largest onshore field
for more than 30 years. In 2017, ENI's Centro Olio Val D'Agri (COVA) experienced a spillage of
400 tonnes of oil, which, according to the findings of the NOE carabinieri, caused thecontamination of waterways in the area. Because of this, two ENI managers are on trial for
unnamed disaster and one for environmental disaster in Potenza78 .
ENI, like the US oil companies, has been well aware of the relationship between CO2 emissions
and climate change for decades.
In publications signed by companies such as ISVET (for several years a research institute of the
ENI group) and TECNECO (a resource engineering company belonging to the ENI group andoperating in the 1970s in the field of environmental protection), as well as in several articles
published in ENI's in-house magazine 'Ecos' - published between the 1970s and the year 2000,
whose name was chosen because "it referred back to the 'E' of 'ENI' and 'energy', but also to thewords 'economy' and 'ecology'"79 - we find numerous testimonies demonstrating ENI's absoluteawareness, for decades, of the CO2/climate change issue, as has been the case for its American'sisters' and, recently, also for the French Total. This is not surprising, given that ENI has been amember since 197480 -- and together with Exxon, Shell, BP, Total itself and other companies in the
sector is still today a 'corporate member'81 -- of the International Petroleum Industry Environmental
Conservation Association (IPIECA). An organisation that, according to the very recent study 'Early
warnings and emerging accountability: Total's responses to75
76

https://www.amnesty.org/en/documents/afr44/7970/2018/en/
https://www.greenpeace.org/static/planet4-italy-stateless/2020/05/85f676a0-ex_sum_la_strategia_del_gruppo_eni_fino_al_2050.pdf p.2,
https://www.eni.com/assets/documents/governance/2020/ita/Domande-e-Risposte-prima-Assemblea-13-maggio-2020.pdf p.12 regarding thesituation in Libya and Nigeria
77
https://globalenergymonitor.org/wp-content/uploads/2021/01/Gas-Index-report-2020.pdf
78

https://www.rainews.it/tgr/basilicata/articoli/2022/02/bas-sversamento-petrolio-eni-cova-viggiano-rinvio-a-giudizio-andrea-palmaruggero-gheller-d696ad29-4817-460a-bf77-eb051cf3f79b.html
79https://archiviostorico.eni.com/aseni/it/magazines/ecos
80
https://archiviostorico.eni.com/aseni/bookreader/books/ECOS_1992_003.html?r=search#page/54/mode/2up/search/ipieca
81
https://www.ipieca.org/membership/35

global warming, 1971-2021'82 , published in October 2021 in the scientific journal Global
Environmental Change, was allegedly used by EXXON to coordinate 'an international campaign toquestion climate science and undermine international climate policies, starting in the 1980s'.
However, let us again focus strictly on ENI. In the introduction to the summary report (published in1970) of a survey carried out by ISVET on behalf of ENI itself between 1969 and 1970 ("Public
intervention against pollution; evaluation of the costs and economic benefits of a project toeliminate the main forms of air and water pollution in Italy"), between page 22 and page 24 - inparagraph 1.1.1. entitled "The ongoing technical-industrial revolution and pollution" - reads:"Pollution is an alteration of the state of nature caused by human intervention in the naturalenvironment, i.e. in "that infinitely complex network of living beings and resources (air, water,
nutrients and materials) on which life, including human life, depends". In his efforts to transform
his environment to make it more suitable for his survival and development, man has often altered its
balance, to the point of destroying natural resources of incalculable value, because they are
irreplaceable and non-reproducible. [...] The balance between man and the environment [...] has,
however, lasted a long time. It was only with the advent of the industrial revolution that the processof systematic and increasing destruction of natural resources began in the palaeo-technical era,leading in the last twenty years to the current crisis in the relationship between man and thebiosphere. In fact, this crisis, which manifests itself in the progressive compromise of the naturalenvironment, has been given a decisive turn in the recent post-war period by the expansion ofindustrialisation, the uncontrolled application of modern production techniques, the growing
increase in motorisation, the worsening of disordered urbanisation processes, the population
explosion, and the increase in production and consumption. In short, the drive for economic
development has led to an increasing aggravation of the process of social metabolism, according towhich nature's resources are wrested from the environment and returned to it after the cycles of
production/processing and consumption, in the form of waste products (urban solid waste,industrial effluents, combustion products, civil sewage, and so on). The damage done to theenvironment has been all the more serious, the more the myth of producing the maximum amount ofgoods and services at the minimum cost has so far prevailed over the need for harmonious
development of man and the balance between man and nature. Thus pollution has increased intandem with the expansion of production, causing increasing damage to human health and theenvironment on which, ultimately, human life itself depends. [...] Indeed, alterations in the naturalbalance are generally negative, because man has not yet learnt to regulate the system of dynamicbalances.
82

https://www.sciencedirect.com/science/article/pii/S0959378021001655

36

natural. When he tries to achieve the maximum economic effect, he touches almost the entirecausal-consequential 'web' of nature, causing a huge amount of unpredictable and often lethal
consequences. Beginning with Commoner's famous studies on strontium-90 and Lake Erie, thedevelopment of ecological studies has made it possible to denounce in an increasingly welldocumented manner the execrable character of many forms of environmental impairment. For
example, the carbon dioxide in the atmosphere, according to a recent report by the UN Secretary,
due to the increased use of mineral fuel oils, has increased over the last century by an average of
10% worldwide; towards the year 2000, this increase could reach 25%, with consequences'catastrophic' on climate'.
A few years later, in 1972, ENI entrusted TECNECO with the task of preparing the "First Report on
the Environmental Situation of the Country"83 . This was a three-volume publication - promoted by
the Prime Minister's Office, in the person of the then Head of Government Giulio Andreotti- presented and printed in 1973.
Section 1 0 2 of chapter i 'Climatic and Meteorological Characters' - written, among others, incollaboration with the Air Force Meteorological Service and the CNR Institute of AtmosphericPhysics - states: 'The atmosphere is one of the essential components of the environment in whichhuman life takes place and therefore its phenomena, its perturbations, its changes in structure,
which can be assessed through climatic and meteorological events, profoundly condition it. In the
man-atmosphere system, contrary to what was tacitly believed until not so long ago, therelationships are not exclusively unidirectional, i.e. they are all made up of the interference of theatmosphere on the human sphere: there is now also a sum of actions in the opposite direction,
whereby human activities, in turn, provoke transitory alterations or stable changes in the structureand quality of the atmosphere, as well as in the course of some of its important phenomena. Human
action can have either limited or major effects, potentially ranging between the two extreme limitsof pernicious changes that gradually lead to the disappearance of life on earth, or, in the opposite
direction, to a complete'weather control' capable of enabling knowledge and advance planning of all atmosphericmanifestations. By analysing the intense network of interdependencies and interactions between theatmosphere and mankind, the importance of meteorological and climatological studies and the very
way in which we understand and address the problems of the atmosphere have undergone a
profound evolution compared to the past (practically only 10-20 years ago). Not only have theavailable methodologies and technologies substantially changed and progressed, but some topics
have taken on a completely new and unpredictable importance, such as turbulence and the diffusionof substances in the lower layers of the atmosphere, climatic modifications, exchanges between
83

https://archiviostorico.eni.com/aseni/bookreader/books/ECOS_1972_003.html?r=gatto_ecos#page/76/mode/2up/search/tecneco

37the atmosphere and the biosphere and between the air and the sea, artificial weather modification,water and energy climate balances and atmospheric circulations at various scales of space andtime'.
In section 1 2 2 'Atmospheric emissions', contained in the chapter 'Production activities' in the samefirst volume of the TECNECO report - a structure part of the Eni group- it states: 'Industrial discharges into the atmosphere are mainly related to the following activities:
processing of ferrous (steel and foundry) and non-ferrous materials (production and finishing),
processing of non-metallic minerals (cement, lime, bricks, etc.), chemical industry, oil industry(refining and petrochemicals), food industry, pharmaceutical industry, paper industry, electronics,
etc. [...] Heat production plants are also very often present in technological cycles, which normallyuse fuels for the operation of thermal generators [...] These plants generate pollution fromcombustion reactions, with emissions of sulphur and nitrogen oxides, particulate matter and so on'.
In a table published to accompany the paragraph to schematically summarise the list of 'main
polluting compounds emitted during the different phases of industrial operations and their sourcesin relation [...] to gases', CO2 is also included. The list84 mentions CO2 from combustion processes
and the fact that although not considered a pollutant "its increase in the atmosphere is considered apotential cause of climate change".
Five years later, in 1978, TECNECO itself published an in-depth study entitled "Environment andexhaustible or renewable energy sources". It is, according to the introduction, "an attempt to assess
in a comprehensive manner the environmental implications of massive 'concentrated' energy
production and to indicate, in broad terms, those aspects of the development of energy sources thatdeserve special attention for their suitability to be exploited without causing further degradation to
the environment. This type of work is part of a strand of studies that has already been underway forsome time within Tecneco, whose tasks are mainly dedicated to the development of two areas: oneconcerning the protection of the environment and the other the search for environmental resources
suitable for use in energy production'. In the foreword to the first chapter of the publication, entitled"Energy sources for 'concentrated' energy production and their environmental effects", the authors
ask: "what are the limits placed by the environment on ever-increasing energy production andconsumption?" They add that "it is desirable, technically feasible, and economically sound to
reduce the rate of growth of energy consumption, without decreasing the gross national product[...] It would also be necessary to implement an intensive programme of energy development fromrenewable and extensive sources such as solar, geothermal, and wind power [...]". Then the chapter
continues with an excursus on the different energy sources used at the time, and continues with an
in-depth look at 'Emissions
84

The source of which is: H. F. LUND, Industrial pollution control handbook, Mcgraw Hill - 197138

pollutants from fossil fuel power plants and their environmental effects'. These include, inparagraph 3.4, CO2: "Carbon dioxide (CO2) is the ultimate oxidation product of fossil fuels [...] it
exists in the air in concentrations of about 300 p.p.m. and only human activity increases this value
by interfering with natural processes, so that above a certain threshold it becomes a pollutant [...] it
has been found to have increased from about 295 p.p.m. to 320 p.p.m. (1970 values), i.e. by about
10%, during the last 110 years. It is assumed that with the increasing consumption of fossil fuels,
which began with the industrial revolution, the CO2 concentration will reach 375-400 p.p.m. in theyear 2000, assuming that 35-45% of the emitted CO2 remains in the atmosphere (the remainder
being removed by the bio-geochemical cycle). This increase is regarded by some scientists as apossible long-term problem, especially since it could alter the heat balance of the atmosphere,leading to climate changes with serious consequences for the biosphere'. Climate effects are thesubject of a separate section, 3.8. "Several hypotheses have been formulated about the effect offossil fuel emissions on climate. On a local scale, even considerable changes in climate have been
noted [...] Similar changes in climate may occur on a regional scale due to the continued,
increasing consumption of fossil fuels, and this may become a major problem by the end of the
century [...] As already noted, the most reliable data available indicate that the CO2 content of theatmosphere will reach 375-400 p.p.m. in the year 2000; this would increase the temperature of theatmosphere by 0.5°C [...] if, on the other hand, the effect due to the accumulation of CO2 prevails,
the temperature increase could contribute to the complete melting of the Arctic and Antarctic ice.
Turning to the 1980s, and Eni's company magazine Ecos, in the July/September 1988 issue focusing
on energy, in an article by Paolo Gardin, we read that 'there is no energy source that does not have asignificant impact on the environment, nor is there any part of the natural ecosystem that does not
suffer this impact to varying degrees. However, the atmospheric environment is the one primarily
involved in energy production processes, given the prevalence of fossil sources. The tremendous
development of combustion processes during this century has led scientists to fear the greenhouseeffect that could lead to climate change with devastating effects on the entire earth's ecosystem"85 .
Page 23 of the October/December 1988 issue of the same Ecos states that 'while scientists continue
their investigations to further investigate the nature of the phenomenon and quantify its possible
consequences, it is incumbent on us to work as of now, as far as possible, to contain the85

https://archiviostorico.eni.com/aseni/bookreader/books/ECOS_1988_180182.html?r=catto_ecos#page/100/mode/2up/search/%22effect+gerra%2239

phenomenon of carbon dioxide emission'86 .
Again on page 32, in an article on the greenhouse effect in which the 1988 Toronto conference isalso cited, it is stated that "Thus, carbon dioxide, water vapour, methane, are substances that arepart of a natural cycle whose equilibrium concentration in the atmosphere has determined theclimatic conditions of our planet in the last geological era. Scientists are concerned about thechange in this equilibrium as a result of the enormous development in the demand for energy and,
therefore, the consumption of fossil fuels that characterised the transition from the pre-industrial
era to the industrial era"87 .
This shows ENI's awareness of CO2 emissions as a result of burning fossil fuels and the impact on
the climate system.
15. THE GREENWASHING PHENOMENON.
As seen above, scientific disinformation has been one of the strategies most often adopted by oil
companies. This system, however, at least since the 2000s, with the awareness of the scientificworld and the population of the effects of CO2 on the atmosphere, has lost its effectiveness and oilcompanies have tried new ways.
One of these is 'greenwashing'.
In the English dictionary the term 'greenwashing' reads 'behaviour or activities that make people
believe that a company is doing more to protect the environment than it actually does'. After years
of prevailing climate denialism (we knew everything over eighty years ago), the climate crisis
manifests itself in all its, unfortunately expected, power. Calling increasingly frequent extreme
phenomena 'bad weather' is just one of many ways of denying the evidence.
Those who have known for a long time are now engaged in a frenzied struggle to cover up their
responsibilities with so-called greenwashing initiatives, i.e. giving themselves a greenwash tocontinue making money to the detriment of the community.
One way is to tell of investments in futuristic technologies, such as nuclear fusion or the absorption
and storage of carbon or its removal from the atmosphere, which simulate a real commitment,
disguising a concrete disinterest in a current and urgent issue: climate change.
This is not to demonise scientific research, but to criticise it if it is used for the cat-and-mouse
operation of changing everything to change nothing.
It may not be possible to start experimenting with nuclear fusion until the middle of the century88 ,86https://archiviostorico.eni.com/aseni/bookreader/books/ECOS_1988_183185.html?r=catto_ecos#page/24/mode/2up/search/%22effect+serra%2287
https://archiviostorico.eni.com/aseni/bookreader/books/ECOS_1988_183185.html?r=catto_ecos#page/34/mode/2up/search/%22effect+serra%22
88
https://www.greenpeace.org/italy/storia/15639/fusione-nucleare-possiamo-credere-alle-dichiarazioni-di-descalzi-al-copasir/40

but by that time, if we have not already reduced greenhouse gas emissions to zero, the damage willbe irreversible. Much more important, urgent and 'green' would be to spend the same amount ofmoney on total decarbonisation programmes89 .
Equally problematic is ENI's promotion of emission 'offsetting' projects through the implementationof forest protection measures, as the estimates presented by ENI on the emission reduction achievedby these projects are inflated. This is what emerges from a scientific analysis of the Luangwa
Community Forests Project, in Zambia, the only REDD+ (Reducing Emissions from Deforestationand forest Degradation in developing countries) project in which ENI is involved for which it has
been possible to obtain documentation. The Luangwa Community Forests Project is the largest
REDD+ project by number of beneficiaries, as well as the largest in Africa by area covered.
However, according to the analysis carried out, the Zambian project financed by ENI overestimatesthe carbon credits generated which, in reality, are likely to be about half of those projected90 .
Even ENI's dissimulation that it has found the solution in the use of gas, fossil of course, is not asolution. On this point, Elisa Giannelli, a researcher at E3G in Brussels in 2019, described the
problem in these terms: 'the European Union's long-term climate goals call for the Union to phaseout natural gas almost entirely, gradually but steadily, by 2050. Analysis of the projectedtrajectories of the NIPECs of some major countries suggests that member states are driving theUnion towards a natural gas glut'91 .
However, while the European Union has already revised its targets since 2019 with respect to
cutting emissions and the share of renewables in total electricity production, in Italy the PNIEC has
not yet been amended, which, at ENI's behest, has fossil gas consumption at its core, and thisdespite direct criticism from the European Commission92 .
That the attempt by ENI and Italy is a blatant example of a 'mass distraction' operation can also be
deduced from the decisions taken in other states.
Also in 2019, the Advertising Standard Authority (the UK equivalent of the Antitrust Authority)
warned Equinor (a Norwegian state-owned company) against confusing consumers by claiming thatgas is a 'low carbon energy' source.
Similar situation in the Netherlands where the Advertising Code Foundation sanctioned Shell for the
89
90
91

https://www.greenpeace.org/italy/rapporto/13862/the-luangwa-community-forests-project-lcfp-in-zambia
https://www.greenpeace.org/italy/rapporto/13862/the-luangwa-community-forests-project-lcfp-in-zambia/
https://www.rivistaenergia.it/2019/11/lincoerenza-delle-politiche-minaccia-gli-obiettivi-climatici-europei-il-caso-del-gas-naturale/92
https://ec.europa.eu/energy/sites/ener/files/documents/staff_working_document_assessment_necp_italy.pdf&sa=D&source=docs&ust=165053717865
3080&usg=AOvVaw16rBzqR5bW9WVTc6DuJXsE

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gas to liquid' message even conveyed to an audience of children (during the Generation Discover2018 festival).
Curiously, a couple of years late and evidently without paying attention to the sanctions imposed inother European countries, Italy has decided to entrust its national oil company, ENI, with school
education.
In January 2020, the ANP (National Association of Headmasters) and ENI announced the launch ofa programme of meetings on environmental sustainability issues for the training of Italian school
teachers. In particular, the seminars will cover the following four macro topics: climate change,energy efficiency, waste and environmental remediation93 .
This is without hesitation the most obvious example of Italic greenwashing.
It is paradoxical that it is precisely ENI, which has very serious, significant and certain
responsibilities on at least two of the topics that will concern the teaching activities, 'climate change'
and 'territories to be reclaimed' - the company itself admits that it has more than 1,800 hectares to bereclaimed as a result of its polluting activities94 - that is being called upon by the Principals to play a
key role in this educational path. A path that, instead, should be carried out by third parties,
representing collective interests and not by a private company that not only makes profits by
exploiting fossil fuels - the consumption of which should be drastically reduced if we want to avoid
the exponential rise in temperatures on our planet - but which, over the last fifty years, has been
responsible for major environmental impacts on a global and national level.
16. THE ECONOMIC INFLUENCE OF OIL COMPANIESOf course, the economic power of the oil companies is probably unparalleled.
In the October 2020 report 'Decarbonising Is Easy: Beyond Market Neutrality in the ECB's
Corporate QE'95 by Greenpeace, New Economic Foundation, Soas University of London,
University of the West of England and University of Greenwich, it was shown how the rules
regarding the assets that private banks can provide as collateral to the European Central Bank whenborrowing money end up favouring multinational oil and gas companies. We are talking about morethan EUR 300 billion, including the securities of ENI, Shell, Total, Repsol and others.
This means that when the European Central Bank lends money to private banks, money that is thenlargely used to finance the oil companies themselves, it asks for 'collateral' consisting of financial
assets such as government bonds or corporate bonds,
93

https://www.eni.com/it-IT/media/news/2020/01/eni-e-lassociazione-nazionale-presidi-anp-avviano-un-programma-congiunto-di-incontri- onenvironmental-sustainability-themes-for-training-teachers-in-italian-schools.html
94https://www.eni.com/enirewind/it-IT/bonifiche.html
95https://www.greenpeace.org/static/planet4-italy-stateless/2020/10/3f229ef4-greenpeacenefreportecb-1-1.pdf

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i.e. the bonds of companies and oil companies in particular.
Over time, therefore, 59% of the corporate bonds eligible as collateral by the European Central
Bank are from the fossil fuel, energy-intensive industry, carbon-intensive transport and fossil
energy utilities sector.
It is obvious that such a situation puts the oil companies in a position of absolute economic strength.
In Italy, the development of new fields and the construction of more gas pipelines could not takeplace without the financial support of banks such as UniCredit and Intesa Sanpaolo.
Since the signing of the Paris Agreement, UniCredit and Intesa Sanpaolo have financed Italianfossil companies with over USD 9.2 billion. Taking all lending institutions worldwide into account,the total financing the Six-legged Dog has received over the past seven years since the Paris
Agreement is $23.6 billion96 .
This unquestionably denotes ENI's power over national and EU credit institutions.
17. ENI HE
INDUSTRY AND ITSWORLD OILCONTRIBUTION TO

CLIMATE CHANGE
ENI is one of the world's leading oil companies as well as one of the world's largest emitters ofgreenhouse gases, as shown in the tables below, which illustrate its size in relation to the othermajors in the sector: revenues, annual production, reserves and reserves/production ratio.
In more detail, thanks to 'attribution science', a new branch of climate science that the IPCC's 2021
report has embraced, it is possible to reconstruct the contribution - and thus the historicalresponsibility - of individual companies to climate change and its major negative impacts.
"Attribution science makes it possible to establish the causal link between what we see and who
created the emissions. It is a scientific breakthrough that forces companies to take responsibility forwhat they do,' summarised Rachel Licker, a climatologist at the Union of Concerned Scientists(Virgin, 2019) in November 2019.
For example, a number of important recent studies (Heede, 2013; 2014; Ekwuzel et al., 2017;
Licker et al. 2019) draw attention to the direct contribution to climate change, in terms of emissions
and impacts, of the oil industry and provide an excellent basis for understanding and determining
their responsibilities and duties in this regard as they for the first time quantify the climate change
impacts attributable to the specific oil company.
The most striking result of Heede's (2013; 2014) work - the so-called 'carbon accounting97 ' - is that
62% of global industrial emissions of carbon dioxide and methane from 1751 to 2015 can be traced
back to the activities of 100 'carbon majors' - basically companies
96
97

https://www.bankingonclimatechaos.org/#fulldata-panel
https://science.sciencemag.org/content/353/6302/858.summary

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operating with fossil fuels (oil, gas and coal) - currently active. The Carbon Majors Database (CDP2017), the most comprehensive database on the historical contribution in terms of GHG emissions
by private companies98 also indicates that emissions from these companies accounted for 91% of
global industrial emissions and over 70% of all anthropogenic GHG emissions in 2015.
It should be pointed out that these figures, as will be further clarified below, include so-called scope
3 emissions, i.e. emissions that originate from the 'downstream' combustion of oil and gas
distributed by oil companies in the global economic system, those generated by the use of products
and services placed on the markets. Overall, the largest share - between 85% and 90%, it isestimated - of oil industry emissions are scope 3.
Ekwurzel and colleagues (2017) extended Heede's original analysis by connecting the activities ofcarbon majors to greenhouse gas concentrations in the atmosphere and some associated climate
impacts. This study found that emissions generated by 90 carbon majors over the historical period
1880-2010 contributed to about 57% of the observed increase in atmospheric CO2 concentrations, 4250% of the increase in global mean surface temperature, and 26- 32% of global sea-level rise.
Licker and colleagues (2019) demonstrated the link between declining pH levels in ocean surface
waters and CO2 production, pointing out that 88 of the carbon majors were responsible for 55% of
ocean acidification between 1880-2015, causing inestimable damage to ecosystems and marine life,
not to mention the fishing industry so vital to myriad coastal communities.
To come to ENI, its cumulative CO2 and CH4 emissions over the period 1988-2015 amount to 0.6% of
global cumulative industrial emissions (Heede, 2014). The database on which the work of Ekwurzel
et al. (2017) is based makes it possible to attribute to ENI over the period 1980-2010: 1) between
0.309 and 0.395 ppm contribution to the increase in the concentration of CO2 in the atmosphere; 2)
between 0.0013 and 0.0037 °C contribution to the increase in the global mean land temperature; and3) between 0.04 and 0.21 mm global sea level rise. The database of the study by Licker et al. (2019)shows that over the period 1980-2015, ENI contributed to ocean acidification, reducing the pH of
the oceans by between 0.000365 and 0.000444.
18. ENI EMISSION DATA
According to the Annual Financial Report99 , ENI's absolute lifecycle greenhouse gas emissions in
the year 2022 (latest available data) amount to 419 million tonnes of CO2 eq., broken down as
follows100 :98 Accessible here: https://b8f65cb373b1b7b15febc70d8ead6ced550b4d987d7c03fcdd1d.ssl.cf3.rackcdn.com/cms/reports/documents/000/002/327/original/Carbon-Majors-Report-2017.pdf
99
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Scope 1 emissions: direct greenhouse gas emissions from sources owned or controlled by thecompany;
Scope 2 emissions: indirect greenhouse gas emissions associated with the production of electricity,heat, or steam purchased by the company;
Scope 3 emissions: all other indirect emissions, such as emissions associated with the extraction andproduction of materials, fuels and services, including transport in company-owned or companycontrolled vehicles, waste management, outsourced business activities.
In ENI's case, Scope 1 and Scope 2 emissions represent 9% of total emissions. It should be specified
that ENI has adopted its own methodology to measure its Scope 1, Scope 2 and Scope 3 emissions:
1. "Net Carbon Footprint", which represents the total Scope 1 and Scope 2 emissions associatedwith ENI's activities, net of "carbon sinks" (i.e. any system, natural or man-made, that absorbs
more carbon than it emits);
2. "Net-Absolute GHG Lifecycle Emissions", i.e. the total Scope 1, Scope 2 and Scope 3 emissions
associated with ENI's products and activities throughout the value chain, net of carbon sinks;
3. "Net Carbon Intensity", which represents the ratio between the net amount of greenhousegases emitted in absolute terms, over the entire life cycle of products, and the energy content of
the products sold.
The 'Lifecycle Greenhouse Gas Assessment', on the other hand, includes 'all energy products
managed by Eni and considers all their impacts along the entire value chain (including products
acquired from third parties): oil, gas, electricity as well as new bioproducts from circular economy
companies' (see figure below).
Figure 4.1 - ENI methodology for emissions reporting.

100

https://www.eni.com/assets/documents/ita/sostenibilita/2021/eni-for-2021-just-transition-ita.pdf

45Source: Eni's Methodology for the assessment of GHG emissions with reference to data for the year
2018.
The new methodology significantly changes the way ENI reports its emissions:- for Scope 1 and 2, there is a shift from a 100% approach based solely on fields operated by ENI("operated approach") to an asset-based reporting, i.e. also including ENI's share in activities notdirectly operated by the company, both in the upstream (exploration and production) and along the
production chain;- For Scope 3, the scope is extended to include all emissions associated with mid-downstream
energy products, excluding products from ENI's (upstream) production 'to avoid double counting';
In practice, for the year 2021 - for which more detail is available - Scope 1 and Scope 2 emissions
related to activities directly operated by ENI amount to 41 million tonnes (Mt), to which 176 Mt of
Scope 3 emissions are added. The sum of these two quantities gives the total emissions reported
under 'standard reporting', which is 217 Mt. To these, using the 'equity approach' adopted by ENI,
Scope 1 + 2 emissions relating to activities not wholly operated by ENI, and Scope 3 emissions
relating to midstream and downstream, i.e. activities such as the transport and combustion of gas
and oil extracted by ENI, are added, thus arriving at 456 Mt. As a comparison, in the same year,
national GHG emissions were 407 Mt101 , thus Eni's total emissions far exceeded those of Italy.
19. ENI'S CLIMATE POLICY
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In light of the large climate footprint, ENI has equipped itself with a decarbonisation plan to 2050
(document available on the company's website under the name 'Long-Term Strategic Plan to 2050'),
which, however, does not envisage the company abandoning fossil fuels completely, andfurthermore leaves the reduction of about 65% of the company's emissions to after 2030, contrary to
the indications of the scientific community regarding the urgency of reducing a large part ofemissions in the current decade. This point is fundamental with respect to ENI's hypothetical
decarbonisation, which plans to reduce its emissions by only 35% by 2030, and postpones more
important actions from the next decade.
Emission reduction, according to the plan, will be achieved by combining at least five different
strategies:
1) increasing the share of gas in decreasing upstream production (after 2030) and decreasing gas
flaring;2) focus on own-produced gas, bio-methane and renewables (with an installed renewables capacityof 60 GW by 2050);
3) conversion of European refineries into bio-refineries;4) forest conservation (REDD+ projects);
5) CCS (Carbon Capture Storage).
The plan remains quite vague in several passages, and ENI gives as justification the fact that thestrategic development plan 'has great flexibility to adapt to changes in the markets' over the next
thirty years. While this may make sense in a long-term perspective, it would be appropriate for ENI
to provide investors and all interested citizens with at least 3-4 different development scenarios,
based on different expected market trends.
ENI also emphasises that it will reach zero net Scope 1 and 2 (upstream) emissions by 2030. Thisgoal, which is not particularly ambitious considering that, as mentioned, 90% of the company's
2021 emissions are Scope 3, would be achieved through a series of strategies that also include
projects of dubious effectiveness such as CO2 capture and storage (CCS) and emission credits fromforest preservation projects (REDD+), which have encountered several problems in the past, both interms of counting emission credits and the impact on local communities living in the various
forests.
While the plan is vague in the medium and long term, it is clear that in the short term ENI intends toincrease - rather than decrease - its production of hydrocarbons (oil and gas). For the period 20232026, in fact, it expects an average annual growth of 3-4% per year and an overall growth of 17%
until the production peak in 2026. This effectively means postponing emission cuts and notdecarbonising its energy mix, relying only on offsetting instruments such as those mentioned above.

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Eni's planned expansion of oil and gas production in the coming years also involves thedevelopment of new oil and gas fields that are already taking place. As the company's management
told investors last March, in 2023 Eni will start up the first phases of Baleine in Côte d'Ivoire andCongo LNG, start-ups in Egypt, the United Arab Emirates and Norway, and will continue the asset
development programme in Algeria, while in 2024 the company will launch start-ups in Italy,
Egypt, Côte d'Ivoire Phase 2, Kazakhstan and Norway102 .
In essence, in the face of an already serious climate emergency, ENI decides to postpone theadoption of incisive measures to reduce greenhouse gas emissions until after 2030 and to continue
to increase its oil and gas production, while the scientific community agrees in identifying the 20202030 decade as the decisive window of opportunity for climate action: if all possible actions to
reduce emissions are not put in place in the current decade, the future situation may no longer berecoverable (Grasso and Vergine, 2020).
ENI also plans to exploit 85% of the current 3P hydrocarbon reserves (proven + probable +possible)103 by 2035. A clear and worrying sign of the direction the company intends to take.
Unfortunately, ENI has not disclosed clear emission reduction targets in the plan in the short term,
and it is not possible to know whether and how emissions will increase from 2020 to 2025,
especially Scope 3 emissions. However, it is reasonable to assume that emissions will increase,given the sustained increase in hydrocarbon production and considering that offsetting strategies
related to reforestation and CO2 capture and storage projects are uncertain and will not have amajor effect in the short term.
Furthermore, it is unclear by how much ENI plans to decrease its hydrocarbon production after
2030. In the evolution of the upstream sector, much emphasis is placed on the reduction of oil infavour of gas, whose supposedly greater contribution to the reduction of GHG Scope 1, 2 and 3
emissions than oil is something that is questioned by numerous studies. For example, the criticalityof methane emissions was recently reiterated by a study published in 2019 in the prestigious journal
Science: this work argues that methane is a significantly more potent greenhouse gas than carbon
dioxide in terms of warming the atmosphere, and therefore poses a serious obstacle to achieving thegoals of the Paris Agreement (Fletcher and Schaefer, 2019).
102

https://www.eni.com/assets/documents/press-release/migrated/2023-it/02/CSc a p i t a l - m a r k e t s - d a y - 2 0 2 3 - i t a . p d f p.5
103
Proven reserves: this is the definition for oil and gas that one is reasonably certain can be extracted, given current technology, current
prices, commercial and political agreements. It is also called P90, i.e., it has a 90% chance of being produced. Probable reserves: is the definition foroil and gas that it is probable to be able to extract, given current technology, current prices, commercial and political agreements. It is also called P50,
i.e., it has a 50% chance of being produced.
Possible reserves: this is the definition for oil and gas that has the possibility of being developed under favourable circumstances, notequivalent to the current ones. It is also called P10, i.e., it has a 10% chance of being produced.

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In short, proper decarbonisation cannot only involve the - albeit slow - shift of production from oil
to gas, but must instead plan for a gradual but steady shift away from hydrocarbons as a wholewithout relying on carbon capture and storage or the removal of carbon from the atmosphere104 .
This element is completely absent from the company's plans.
ENI clearly admits that it relies heavily on offsetting instruments, in particular CCS (Carbon
Capture and Storage: a process of geological sequestration of carbon dioxide produced by large
combustion plants) and REDD+ (Reducing Emissions from Deforestation and Forest Degradation):
forest conservation projects that allow CO2 absorption). On forest conservation projects ENI
provides steadily increasing CO2 offset targets from 2025 to 2050. CO2 absorption is expected toincrease from 0 to 10 Mt per year in this decade and by at least another 40 Mt per year in thefollowing twenty years (2030 to 2050).
REDD+ projects lack transparency, as the company has never presented official documentation onthem and only data from a project in Zambia is available. Moreover, in analysing this data, an
independent study commissioned by Greenpeace Italy found inconsistencies that would lead to an
overestimation of emission credits linked to the project105 .
CO2 capture and storage (CCS) technology is also one of the pillars promoted for decarbonisation.
Besides numerous uncertainties related to technology, cost, efficiency, the possibility of its
production on an adequate scale and environmental impact106 , it is clear that CCS will not
contribute to decarbonisation in the short term.
The authoritative French research association on finance and decarbonisation Reclaim Finance,
whose director Lucie Pinson was awarded the prestigious Goldman Environmental Prize in 2020,
comparable to a Nobel prize for the environment, has recently published, in collaboration with
ReCommon and Greenpeace Italia, its analysis of ENI's decarbonisation strategy to 2050, showing
how it is not in line with what is required by the IPCC and International Energy Agency's net zero
scenarios107 . As can be seen from the following diagram based on data provided by the company
itself, it is precisely the lack of a more incisive action to reduce emissions in the current decade thatis to blame for ENI's non-compliance with what the international scientific community requires inorder to avoid catastrophic
104
105
106
107

IPCC AR6, Synthesis Report, SPM, B6.4
https://www.greenpeace.org/static/planet4-italy-stateless/2021/06/719f406b-gp-lcfp_scientific-report_english-version-1.pdf
IPCC AR6 WGIII, SPM, C.4.4, C.4.6
https://u6p9s9c8.rocketcdn.me/site/wp-content/uploads/2023/04/20230413-briefing-climate-strategy-assessment-eni.pdf

49

climate change by keeping the temperature increase below 1.5°C. In fact, already by 2030 ENI will'consume' 71 per cent of the carbon budget allocated to it according to scientific models, and by2035 the carbon intensity of ENI's activities will still be 21 per cent higher than allowed.
Figure 4.2 - ENI's carbon intensity reduction commitments to 2035

Source: Reclaim Finance, Is Eni on Track for 1.5°?, April 2022
In March 2023, ENI also presented its 'Strategy 2023-2026', which will direct the group's
investments in the short term. This investment plan is very indicative of the kind of climate impact
the company expects to have in the near future, and it is clear that - at least in terms of planned
investments - ENI has no intention of decreasing its high-carbon activities in the coming years,
especially in the oil and gas sectors.
Investments in the four-year period will, in fact, be concentrated mainly on hydrocarbons, whilevery little is envisaged for renewable energies, major absentees in ENI's industrial plan, whichshows that it does not want to focus on these technologies for its own decarbonisation. The plan
envisages an average investment capital of EUR 9 billion per year, of which about 75% - or EUR
6.5 billion per year - will be earmarked for gas and oil, and only 25% for the 'green + retail' sector,
thus presumably zero or low emissions. This is how Eni intends to finance the increase in oil andgas production in this decade, as shown in the graph below, and contrary to what the International
Energy Agency recommends in its net zero (NZ) scenario.
Figure 4.3 - Eni's oil and gas production trajectory to 2030 compared to International Energy
Agency reduction scenarios

50Source: Reclaim Finance, Assessment of Eni's Climate Strategy, April 2023
Therefore, for the next four years ENI intends to focus clearly on hydrocarbon extraction, leaving
only a small part of the investment capital to renewables. Note that the 'green' sector also includes
unspecified decarbonisation activities, circular economy - again, not specifying the interventions and the retail sector.
The production targets for renewables are also extremely low: ENI plans to install or acquire
renewable plants or existing renewable companies by 2026 just 7GW, a very small share, which
does not improve much even in 2030, when the company sets a target of 15 GW of installedcapacity.
In summary, as far as combating climate change is concerned, ENI therefore provides some longterm objectives but, in the short and medium term, the company's investments will remain 75%
directed towards gas and oil, the hydrocarbons responsible for greenhouse gas emissions, andtherefore the company's emissions are likely to increase in the coming years, which will be decisivein countering the worsening climate emergency.
* * **PART II: THE LAW
20. THE SUBJECTS OF THESE PROCEEDINGS
20.1. ACTIVE LEGITIMISED SUBJECTS
20.1.1. GREENPEACE ONLUS
Greenpeace is a global network of independent national and regional organisations working tochange attitudes and behaviour, to protect and preserve the environment and to promote peace. It
comprises 28 independent national/regional organisations in over 40 countries in Europe,

51

Americas, Africa, Asia and the Pacific, as well as a coordinating body that is GreenpeaceInternational. It supports communities in their legal and campaigning efforts to address the impactsof the climate crisis and to achieve climate justice.
With this legal action against ENI, Greenpeace Italia defends the collective (legal) interests set out
in its statute. The social object of Greenpeace Italia is defined in Article 3 of the statute, whichreads as follows 'the association pursues exclusively civic, solidarity and socially useful aims andoperates, without profit-making purposes, carrying out activities of general interest in the field of
safeguarding and improving the conditions of the environment [...] the aims of the association are
the following - 'to promote the protection of nature and biodiversity and the preservation of theenvironment in a socially just, equitable and ecologically durable manner for the benefit andadvantage of present and future generations [...] In particular, the association may [...] propose
and support legal actions, provided that such activities are consistent with the association's
purposes and its status as a third sector entity'.
Greenpeace was born out of the social protests of the 1960s, the battles for civil, women's,
indigenous and workers' rights, pacifism and emerging ecological awareness. Greenpeace wasinitially founded as a response to US plans to conduct a thermonuclear test with a 5-megaton bombon the island of Amchitka, threatening 131 species of birds and other biodiversity.
Since then, Greenpeace has been at the forefront of stopping nuclear tests and emissions ofpollutants that have dangerous implications for the atmosphere and human safety, such as CFCs
(chloro-fluorocarbons). Greenpeace was (also in Italy, as we shall see) one of the main protagonistsof the path that led to the Montreal Protocol for the abatement of CFC emissions in 1987.
Subsequently, in the 1990s, Greenpeace developed 'Greenfreeze', a CFC-free refrigeration systemand, in 1997, the United Nation Environmental Plan (UNEP) awarded Greenpeace for its'outstanding contributions to the protection of the Earth's ozone layer'.
This experience, coupled with growing alarm in the scientific community, also led Greenpeace tostart campaigning on climate change. Greenpeace International's first report on climate change,'Global Warming - the Greenpeace report' was in 1990, and since then Greenpeace has been one of
the associations that has contributed most to raising awareness of climate change among the nonspecialist public. For example, by also showing possible solutions. Greenpeace's first
decarbonisation energy scenario, 'The fossil fuel free future' was developed by the Stockholm
Environment Institute (SEI) in 1993. Between 1994 and 2004, Greenpeace continued to develop
energy scenarios

52

(global, regional - e.g. European - and over twenty national scenarios) on models that, althoughrelatively simple, were among the most effective (and predictive) in the field. Since 2005,
Greenpeace has been producing a new series of energy scenarios: Energy Revolution, developedwith the International and the European Renewable Energy Council (EREC) and the German Space
Agency's Institute for Technical Thermodynamics (DLR). These scenarios, which were often
incorporated into the work of international scientific commissions such as the International Panel on
Climate Change (IPCC), made it possible to formulate targets, and thus more precise demands,
integrating aspects on fossil fuels as well as on the elimination of nuclear power, sustainableagriculture and the protection of oceans and forests. Between 2005 and 2009, various Greenpeace
offices, with different collaborations, developed various versions of some thirty scenarios on allcontinents, with two 'global' editions of the scenario, translated into over fifteen languages. As weshall see, also in Italian: Greenpeace Italy has also, more recently, developed a further refinedenergy scenario model.
Of course, Greenpeace has not limited itself to developing models and proposing solutions. Overtime, it has directly confronted numerous activities, companies, governments, responsible fordangerous greenhouse gas emissions. With direct actions, Greenpeace for example has repeatedly
protested against the use of coal, with actions in various parts of the Planet: from New Zealand to
Svaalbard, from Australia to the United Kingdom and many more: including, as we shall see, Italy.
Greenpeace Italy's first activities are, of course, campaigns against nuclear power: in particular on
the transport by sea of nuclear waste from the Latina power plant to the Sellafield plant (UK) where
plutonium is extracted from the waste to produce nuclear devices. This commitment continued bothwhen protesting (e.g. with Gianna Nannini at the French Embassy in Rome) against the resumptionof French nuclear tests in Mururoa (1995) and when attempts were made to restart nuclear power in
Italy. Greenpeace Italy was in the front row for the victory of the second anti-nuclear referendum(2011).
Another issue that attracted the attention of Greenpeace Italy from the very beginning was the
trafficking of toxic waste, starting with the first documented 'poison ships' (and denounced by
Greenpeace) in 1988. Then, when the oil tanker Haven exploded off the coast of Genoa on 11 April
1991, Greenpeace was among the first to broadcast images of the disaster. Still in the 'maritime'sphere, after Greenpeace's global success that led to the UN ban on drift nets (the so-called 'walls ofdeath'), Greenpeace was particularly active against an (illegal but widely tolerated) fleet operatingin Italy, responsible - according to estimates released by the then Minister of Agriculture - for thekilling of about 6,000 cetaceans a year. Thanks to this pressure, the European Union banned thepractice altogether in 1998.
Greenpeace in Italy has also been active against the production of hazardous substances: a case53

Exemplary was the global campaign against PVC production, which in our country condensed into
the protests against the (former ENI) petrochemical pole in Porto Marghera (with numerous actions,particularly in 1990 and 1999). Again, as already mentioned, Greenpeace was decisive for theapproval in Italy, in 1993, of one of the most advanced 'ozone-saving' laws. More recently,
Greenpeace has denounced the extremely serious condition of hundreds of thousands of citizens in
the Veneto region who have been exposed to contamination by perfluoroalkyl substances (PFAs)
for decades. Thanks to numerous actions, investigations and demonstrations organised together withlocal committees, in 2020 the first part of a trial was finally begun involving the top management of
the company considered most responsible for the pollution (Miteni in Trissino), but not yet thepoliticians and administrators who should have prevented this disaster.
Following the launch of Greenpeace International's climate campaign (in 1990), Greenpeace Italyalso started its activities on the subject with public initiatives, scientific reports and campaigns andactions also against the most responsible actors, politicians and companies. In 1992, Greenpeace
Italy published the Italian translation of the "Global Warming" report with the title "Clima. The
Greenpeace report on global warming'. Various other activities were followed by a first action (in1995) with the unveiling of a large banner on the ENI headquarters in EUR. Activities against
ENI's projects in the Barents Sea (2004 and 2005), among others, are worth mentioning. After theefforts (mentioned above) to stop the 'nuclear renaissance' in Italy, Greenpeace campaigned against
coal-fired power generation development projects, in particular by ENEL. The campaign started in2006 with dozens of non-violent direct actions against plants (of ENEL and other groups) and othersites (including ENEL's headquarters in Viale Regina Margherita, Rome), culminating in asimultaneous occupation of five power plants (and protests at various coal ships) during the G8summit in L'Aquila in 2009.
More recently, in 2020, Greenpeace Italy published an even more refined energy scenario, 'Italy
1.5', commissioned from the Institute for Sustainable Future in Sydney (ISF). The scenario used amethodology already applied on a global scale for the decarbonisation of the planet scenario
promoted by the Leonardo DiCaprio Foundation and carried out by ISF itself, the German
Aerospace Agency (DLR) and the University of Melbourne.
As early as 1993, Greenpeace International published a scenario for sustainable development.
Internationally, Greenpeace organisations have conducted many campaigns to combat climatechange, some of which are mentioned below.
One of Greenpeace's first campaigns on climate change took place in Austria in 1990, where
Greenpeace urged members of the government to commit to a 30% reduction before the54Two thousand108 .
In 1992, Greenpeace acted on the last day of the Rio Conference by painting the word ACT on
chimneys around the world to remind government leaders that they had to actually implement thegoals.
In 1995, sociologists wrote that Greenpeace played an important role in formulating the problem
and distributing information on climate change among the general public109 .
Since 1997, various Greenpeace offices have organised expeditions to the North Pole, Antarctica,
the Alps and the Himalayas to document the effects of climate change.
Greenpeace has developed various energy evolution scenarios that are often used in the world of
science and energy110 .
In these scenarios, Greenpeace and the German Institute for Space and Space Travel have shownthat a completely CO2-free energy supply by 2050 is technically and economically feasible.
Greenpeace in Italy now employs around 60 people and has over 1,000 volunteers and 93,000
supporters, has legal personality in Italy and is an association recognised by the Ministry of theEnvironment111 which has invested for the 'climate campaign', from 2016 to 2021, data available
today, the total amount of euro 735,706.00112 .
20.1.2. RECOMMON APS
ReCommon APS is a social promotion association founded in Rome in January 2012. ReCommon
fights against the abuse of power and the plundering of territories to create spaces of transformation insociety, in Italy, Europe and the world.
As stated in the Articles of Association, ReCommon APS 'proposes to carry out exclusively or
principally activities of general interest aimed at stimulating the autonomous and sustainable
development of local communities [...] to act for the protection of the environment and the climate,
to promote social equity in the ecological transition' (Art. 2.1.).
For the pursuit of the aforementioned purposes, the Association operates in the following areas ofgeneral interest referred to in Art. 5 para. 1 of Legislative Decree 117/2017 (Art. 2.3 of the Articles
of Association): 'lett. e) interventions and services aimed at safeguarding and improving theconditions of the environment and the prudent and rational use of natural resources'.
108
109

B. Knappe 1994: Het geheim van Greenpeace. Uitgeverij Mingus, 1994.
M. Mormont & C. Dasnoy, 1995: Source strategies and mediatisation of climate change. Environmental Sociology Unit,
Fondation Universitaire Luxembourgeoise, Arlon, Belgium, Media, Culture & Society, Sage, vol. 17, p.49-64
110
Greenpeace 2015: Energy Revolution.
111
Decree of Recognition Ministry of the Environment.
112
Certification by the Financial Director of Greenpeace Onlus, dated 28 October 2021.

55

ReCommon APS therefore aims to pursue the following purposes (Art. 2.4):"(a) The achievement of a society based on equity and economic, social, environmental and climate
justice, (b) the promotion and protection of the commons, (c) the protection of the environment andclimate, including the promotion of moving away from the fossil fuel economy; (d) the restorationof sovereignty over the management of natural resources to local communities, ... (j) the promotionof new environmentally and socially sustainable lifestyles."As of 30 April 2023, ReCommon has a staff of 11 people and 55 volunteers.
Denunciation and pressure campaigns on companies, institutions and the world of finance are
ReCommon's main means of action. These campaigns use the tools of research, investigative work,
advocacy, legal activism and support for local communities impacted by environmentally harmfulprojects and operations.
One of the seven thematic axes around which ReCommon's campaigns are developed is climate
justice.
For ReCommon, 'climate change is now a reality that brings with it environmental, social andeconomic devastation, especially for the most marginalised communities. The commitments ofgovernments and multinationals have so far failed to contain global warming below a safe
threshold long established by the scientific community. On the other hand, they promote false
technological solutions that postpone the problem or even circumvent it, such as emission
compensation mechanisms, which condemn those who suffer most from the climate crisis tosacrifice their territories to allow polluters to continue their activities undisturbed. It is profoundly
unfair that once again those who generated the crisis come out stronger without changing theirmodel of development, which is so harmful and without paying the bill for the wounds inflicted on
the planet' (www.recommon.org).
In order to see its statutory objectives realised, ReCommon APS has always cultivated investigations
and information campaigns against the fossil industry, in the conviction that environmental
disasters, human rights violations and social devastation often occur in societies founded on a modelof energy exploitation anchored on fossil fuels such as coal, gas and oil.
ReCommon APS also works to counter the consolidation of an 'extractivist' model of society, basedon the systematic removal of wealth from territories, the dispossession of the communities that livein them, and the consequent impoverishment of billions of people worldwide.
His investigations, advocacy and public campaigns challenge governments, corporations andfinancial institutions, which are responsible for violations and abuses, with actions conductedjointly with local communities.
By way of example, the following publications are mentioned:

56

-"The Poison Delta - The Impacts of the Activities of ENI and Other Multinational Oil
Companies in Nigeria", published on 5 June 2012;-'Energy and Alternatives - Let's start again from the territories to transform societies',
published on 11/12/2013;-"Energy and Finance', published on 18/03/2014.

Since its foundation, ReCommon has been active in raising public awareness on energy issues andthe energy transition away from fossil fuels. In particular within the framework of the European
project no. DCI-NSAED/2012/281-964 of the EuropAid agency, entitled "Democratising energy
for development: mobilising public support for fair energy relations and democratising the process
regarding the EU Common External Energy Policy to develop a coherent, just and sustainable
European policy".
ReCommonhas

produced

https://www.recommon.org/energia-e-

two

short

alternatives/,

handbooksonthesubject-

https://www.recommon.org/energia-in-che-senso/ - and conducted a series of training meetings aimed at Italian and European citizens.
In campaigning to stop climate change, ReCommon has focused on discouraging the production
and use of fossil fuels, which are mainly responsible for global warming and subsequent climatechange.
In particular, ReCommon was the initiator of public campaigns that helped move the Enel group,
Europe's second largest electricity utility, to adopt a commitment to decommission all its coal-fired
plants worldwide by 2027.
At the same time, ReCommon's campaigning led the UniCredit banking group to adopt a very
progressive policy to exit coal financing by 2028.
Similarly, Generali Insurance has adopted a policy to exit coal financing and insurance by 2030.
These commitments and policies are in line with what the United Nations has called for to meet theclimate change challenge.
In addition, thanks to ReCommon's action, Generali assicurazioni and UniCredit adopted a policyof partial exclusion of financing for oil and gas operations in the non-conventional sector. Finally,
ReCommon was among the most active organisations in the campaign that led the European
Investment Bank, the EU's public bank, to commit to cease all financing for fossil fuels, including
fossil gas, by the end of 2021. At COP26 in Glasgow in November 2021, the Italian government
pledged to stop direct international public funding for the fossil energy sector, a source of CO2
emissions into the atmosphere, by the end of 2022.
Recently, ReCommon's role and actions have gained important recognition from57

administrative judges who have repeatedly affirmed the association's right to have access toenvironmental and climate documentation on financial transactions related to gas extraction andliquefaction projects.
Reference is made to the decisions of the Regional Administrative Court of Lazio-Rome, section II,
no. 6272 of 17 May 2022 and of the Council of State, section IV, no. 2635 published on 14 March
2023, referring to the internal due diligence carried out by the public insurer SACE SpA, controlled
by the Ministry of Economy and Finance, with respect to two gas extraction and liquefaction
projects in northern Mozambique.
Again with regard to these projects, it is worth mentioning a similar important precedent of theRegional Administrative Court of Lazio - Rome, section II, with ruling No. 2642 published on 14
February 2023, which recognised the association's right to have access to the environmental andclimate documentation of the due diligence carried out by Cassa Depositi e Prestiti SpA, a
subsidiary of the Ministry of Economy and Finance.
For its activities on Climate and ENI, ReCommon invested from 2016 to 2022 the sum of EUR
289,400.00.
20.1.3. PRIVATE
The private actors are all Italian citizens residing in Italy.
We do not wish to anticipate here what will be discussed in more detail in the following section on
climate change in Italy, however, two aspects cannot be left out: the first is that climate change willbe, but already is, impacting every part of the world and, therefore, every inhabitant; the second isthat some areas of Italy will have more easily perceptible impacts than others and, therefore, their
inhabitants will suffer more appreciable consequences.
In particular, as pointed out by the Euro-Mediterranean Centre on Climate Change at a conferencein April 2022, the outlook for Italy is not very encouraging113 .
Temperatures are expected to rise, with variations being felt more in Alpine areas and during thesummer seasons when, according to the CEMC climate models, the rise in average temperatures,without the corrections that the actors are demanding, could reach up to 5°C.
Hydrogeological instability will worsen significantly as a consequence of melting glaciers andpermafrost, indicators that the Alpine and Apennine areas will always be hardest hit. The intense
rainfall that will follow periods of prolonged drought, as is already occurring in Piedmont at theturn of 2021 and 2022, will contribute to a further increase in hydraulic risk for small basins and to
the risk associated with surface landslide phenomena for areas with higher permeability soils.
Both the coastal and offshore marine environment will see an increase in surface temperatures and113

https://www.focus.it/ambiente/natura/italia-le-conseguenze-del-clima.

58

sea level rise, with increased water acidification and coastal erosion. There will be an increase inmortality from ischaemic heart disease, s t r o k e s , nephropathies and metabolic disorders due toheat stress, and an increase in respiratory diseases due to the close relationship between risingurban temperatures and concentrations of ozone and particulate matter.
Impacts will also affect agriculture because there will be a trend towards reduced yields for many
crop species, accompanied by a decrease in the quality characteristics of products. Similarly, there
will also be impacts on livestock farming, with both direct and indirect impacts on animals andconsequent repercussions on the quality and quantity of production.
Having said that, we can divide the private plaintiffs in the present case into four categories.
Those residing in the Po delta and Venice lagoon area, those residing in other coastal areas of Italy,
those residing in the Po Valley and finally those residing in mountainous areas, particularly the
Dolomites.
The former - Martucci, Bartelle, Crepaldi, Pozzato and Destro - are already suffering and will
suffer directly from the effects of warming and rising seas with the consequent erosion of thecoastline, including the phenomena of subsidence, the rising of the saline wedge in the Po river,droughts, heat waves, water shortages, hence the inevitable change in the economy, especially
agriculture, and the market values of land and property, and the dangers to their safety. As well as,
but this applies to all categories, the danger of serious health repercussions.
The latter - Zazzera, Lion and Hellfer - are already witnessing and will also see coastal erosion, lessevident than those in the first category due to the different orography of the territories, but which
will nonetheless heavily affect the environment and safety, also as a result of the intensification of
extreme climatic phenomena (just think of the state of already serious hydrogeological instability in
Liguria and Campania, where rivers and streams will see their watercourses shorten even further,with a consequent greater risk of flooding and, consequently, of damage to property and persons,up to and including endangering people's lives as a result of disaster events).
The third group, Caravaglios and D'Antonio, while not suffering direct consequences from risingseas, will suffer, and in part is already suffering, all the other consequences from which the lowland
areas and the Po Valley in particular are afflicted: heat waves, prolonged drought periods, water
shortages, drinking water supply problems, reduced cultivation, impoverished soils and worsening
air quality. All of which have an impact on the environment, climate and health.
All the problems highlighted for the first three groups also apply to the fourth, that of the59residents in the mountain areas, Ruffato and Deppi, who are already suffering and will also suffer
the direct consequences of glacier erosion, increased landslides, destruction of forests, risingtemperatures, storms, hurricanes and other extreme climatic phenomena, and dangers to waterbasins. The Dolomite area is particularly unstable, there have been debris discharges in the Sorapiss
area, landslides at the base of the Civetta in the province of Belluno, from Sass Maor in theprovince of Trento a piece of wall has come off, generating an imposing accumulation, the same
fate has befallen the west face of Cima Canali and the Torri del Cimerlo. Not to add the impacts ofthe devastating hurricane VAIA that, from 26 to 29 October 2018 raged over the Dolomites (aswell as over vast mountainous areas in France, Croatia, Austria and Switzerland) causing extremely
serious damage to natural resources, property and individuals affected, with a total of 37 deaths, thefelling of around 42 million trees and estimated damage of over 5 billion euros.
Therefore, ENI's conduct for which it must be held liable pursuant to Articles 2043, 2050 and 2051of the Civil Code, and more generally for the violation of human rights, gives rise to the right for
private plaintiffs and associations to bring an action for compensation for material, economic andmoral damage as well as damage to health and life, and to obtain an injunction imposing
compliance with precise objectives in the defendant's strategic and industrial choices.
20.2. THE LEGITIMISED PASSIVE SUBJECTS
20.2.1. ENIThis legal action is brought first against Eni SpA, which is an energy company present in 62 countries
with approximately 32,000 employees.
The ENI group is active in the exploration, development and extraction of oil and natural gas in 37
countries, including Italy114 .
ENI markets gas, electricity and oil products in Europe and non-European markets also throughtrading activities.
Until a few years ago, ENI was the leading Italian company by capitalisation.
In 2021, Eni was ranked 461st in the Forbes Global 2000 ranking of widely held companies interms of revenue, profit, assets and market capitalisation, while the Fortune 500 listed Eni at
position 216 for revenue. In the same year, Eni was listed in the Thomson Reuters Top 100 Global
Energy Leaders[7] and in the Thomson Reuters Top 25 for the Oil & Gas sector.
With the crisis in the oil sector exacerbated by the Covid-19 pandemic in recent years, ENI today
ranks second in terms of market capitalisation after Enel, with a capital of EUR 44,917 million

114 https://www.eni.com/assets/documents/ita/bilanci-rapporti/2022/Relazione-finanziaria-annuale-2022.pdf

60

(value as of end of March 2023)115 . ENI is a company listed on both the Milan Stock Exchange andthe Dow Jones in New York.
If we compare ENI with the other largest multinational oil companies internationally, in terms ofannual oil equivalent production at the end of 2021, ENI ranks 19th with more than 600 million
barrels of oil equivalent (BOE: barrel of oil equivalent). To give meaning to a scale of comparison,
the first in the ranking is Saudi Aramco with a production of 4,346 million BOE). If, however, one
excludes from the ranking the national oil companies (i.e. almost completely state-controlled) ENI
is the sixth largest international oil company worldwide (again as a term of comparison the first is
Exxon with a production of 1,581 million BOE)116 . This means that ENI is among the mostimportant players in the global oil market. In 2022, ENI extracted an average of 1.61 million barrels
equivalent per day117 and its business plans inform us that it intends to increase its production to 1.9
million by 2026. In addition, ENI made 750 million barrels of oil equivalent of new discoveries in
2022 alone118 .
In particular, ENI is the leading oil producer in Africa from where it derives about half of its total
oil and gas production.
In this regard, ENI has historically played a central role in some African countries in initiating andenhancing oil and gas extraction since the 1960s. It should be emphasised that in the last decade,
ENI has played a central role internationally in the discovery of new mega fields, whose shares itthen sold in a new business model, realising significant capital gains. In particular, compared to its
competitors, in recent years ENI has had one of the highest success rates in oil exploration, even of
the largest majors.
As at 31 December 2022, Eni SpA had equity investments in 401 subsidiaries, of which 275 abroad,in 134 jointly controlled and associated companies, of which 98 abroad, and another 24 significant
equity investments, of which 21 abroad119 .
With reference to the year 2020, in the sectors of exploration & production, global gas & LNG
portfolio, refining & marketing and chemicals, renewables, corporate and financial companies, thecompany ENI International BV under Dutch law, a wholly owned subsidiary of ENI SpA, is115
https://mercati.ilsole24ore.com/azioni/classifiche/capitalizzazione-piazza-affari
116
Urgewald elaboration, Global Oil and Gas Exit List - https://gogel.org/
117
https://www.eni.com/assets/documents/press-release/migrated/2023-en/02/eni-fourth-quarter-2022-ceo-claudio-descalzi-commentsresults.pdf
118
https://www.eni.com/assets/documents/ita/bilanci-rapporti/2022/Relazione-finanziaria-annuale-2022.pdf
119https://www.eni.com/assets/documents/ita/bilanci-rapporti/2022/Relazione-finanziaria-annuale-2022.pdf
Annexes to the Notes to the Consolidated Financial Statements of Eni SpA as at December 31, 2022, pp. 472 et seq.

61

itself being the parent company of as many as 81 companies abroad on behalf of ENI SpA120 . Itshould be noted that the financial statements of ENI International BV are consolidated in the same
way as those of 43 other subsidiaries and 99 jointly controlled and associated companies in thefinancial statements of the parent company ENI SpA in accordance with current Italian tax law121 .
The financial statements of ENI International BV for the fiscal year 2019 - thus outside theeconomic impact of the Covid-19 pandemic that started in February 2020 with heavy repercussions
on the oil sector - show that the company had dividends of USD 4,793,177,000 from its
subsidiaries, and paid out a dividend of USD 6,780,552,000 against a capital injection of USD
1,750,000,000 from the parent company ENI SpA122 . This generated an anti-tax profit of EUR
5,746,000,000, and thus it can be said that as net transfers Eni International BV contributed morethan 75% of ENI SpA's anti-tax profit, and thus played a decisive role in the generation of thelatter's profit.
20.2.2. ENI AND THE ITALIAN STATE
The action is brought not only against ENI SpA, but also against the Ministry of Economy and
Finance and Cassa Depositi e Prestiti spa.
The 'Ente Nazionale Idrocarburi' was created by the Italian state as a public body in 1953 under theleadership of Enrico Mattei, a partisan and Christian Democrat MP, who was its chairman until his
death in 1962.
ENI, as mentioned, was from its inception until 1992 a public economic entity, financed by the statethrough an 'endowment fund' whose disbursement and increase was determined by parliament.
As a public economic entity, ENI was subject to the supervision of the Ministry of State Holdings.
and was governed by a board of directors within which was an 'Executive Council' of threemembers plus the president and vice-president; the Executive Council was the body with thegreatest decision-making powers, and its members were chosen on the recommendation of theparties of the governing majority.
ENI was then converted into a public limited company in 1992.
After privatisation, from 1995 to 2001, the Italian State sold a substantial part of the share capital in
five stages, while retaining a share of over 30% (adding the shares held by the then Ministry of theTreasury and the Cassa Depositi e Prestiti), thus maintaining effective control of the company.
According to Law No. 474 of 30 July 1994, the
120
121
122

https://www.eni.com/assets/documents/ita/bilanci-rapporti/2020/Relazione-finanziaria-annuale-2020.pdf
https://www.eni.com/assets/documents/ita/bilanci-rapporti/2020/Area-di-Consolidamento-Eni-2020.pdf
Eni International BV balance sheet, available at the Dutch commercial register: https://www.kvk.nl/orderstraat/productkiezen/?kvknummer=332649340000

62

The State, through the Ministry of Economy and Finance (MEF), in agreement with the Ministry of
Economic Development, is the holder of a number of special powers to be exercised in accordancewith pre-established criteria.
As of 19 September 2022, the controlling shareholders Ministry of Finance and Cassa Depositi e
Prestiti hold 4.411% and 26.213% of the shares, respectively. The control of the Italian State is thus
guaranteed. In fact, the State's participation is such that it influences choices in a sector that, as
mentioned, is strategic both in the short and long term.
As a strategic asset of the state, ENI has always represented its best and worst aspects. As emerges
in many official documents and in records of judicial enquiries that obviously cannot be retraced
here, ENI has served, among other things, as a 'cash box' for financing parties and managing foreign
funds, as well as an 'employment office' for politics123 .
Eni feeds the Treasury's coffers with rich dividends (more than EUR 5.7 billion received in the
period 2016-2022 alone), and is Italy's largest multinational.
On the other hand, its CEO is worth as much or more than a minister because of the power hederives from managing investments, cash flows, purchases and dividends worth several tens ofbillions of euros. The important influence of the company and its CEO on the country's international
strategies, particularly in the oil and gas sector, is also well known.
20.2.3. CASSA DEPOSITI E PRESTITI
It is worth making a few remarks on the Cassa Depositi e Prestiti (CDP), since its legal system,
despite having undergone many changes, has not distorted its original nature as a public
administration, which it still retains and which is recognised by both administrative jurisprudence124
and the Supreme Court125 , as well as by the same provisions of the Prime Minister's Office.
Founded in pre-unification Italy, having been established in 1850 with its headquarters in Turin,
CDP is historically linked to the need to use the substantial financial resources from the collectionof postal savings to finance public investments.
That is why, for about a century, it was a Directorate General of the Ministry of the Treasury,
although it had separate accounts and budget from those of the State.
By Law No. 197 of 13 May 1983, it acquired full autonomy and in 1993 was recognised

123
124

Andrea Greco, Giuseppe Oddo, 'Lo Stato Parallelo', ed. Chiarelettere.
See, e.g., TAR Lazio-Roma, Section II Sentence dated 8 February 2023 published on 14.2.23 Associazione Recommon v. Cassa depositi eprestiti spa and others in which Cassa depositi e prestiti (defended on this occasion by the Avvocatura generale dello Stato) was ordered to produce
documents requested by the applicant as addressee, as a "public authority", of the obligations regarding access to environmental information pursuant
to Legislative Decree no. 195/2005.
125
Cf. Civil cassation, Sec. 1, Sentence no. 7401 of 13/07/1999, which states that it belongs to the State Administration, which has notceased to exist as a result of the subsequent attribution of legal personality.

63the Institute the legal personality126 .
Subsequently, with Legislative Decree No 284 of 30 July 1999 (implementing Article 11 of Law No
59 of 15 March 1997), its organisational and functional structure was reorganised, reaffirming, inany event, its legal nature as a State administration, endowed with its own legal personality andwith organisational, patrimonial and budgetary autonomy, which carries out activities of general
economic interest: for this reason, the rules contained in the Consolidated Law on Banking andCredit were not applied to it.
The 2002 Finance Act127 provided that the Cassa Depositi e Prestiti could intervene in the financingof the extraordinary plan for infrastructure and large-scale regional and local works identified by the
CIPE.
Subsequently, with Decree-Law No. 63 of 15 April 2002, converted, with amendments, into Law
No. 112 of 15 June 2002, the CDP was authorised to set up a joint-stock financial company,'Infrastrutture S.p.A.', with the task of financing, as a subsidiary to banks and other intermediaries,
infrastructure and large public works, provided that they are susceptible of economic use, anddevelopment investments. The Finance Law for 2006128 then provided for the merger byincorporation, effective as of 1 January 2006, of Società Infrastrutture S.p.A. into Cassa Depositi e
Prestiti (in the meantime transformed into a joint-stock company), which consequently assumed all
the assets, rights and legal relations of Infrastrutture S.p.A., including the separate assets.
Subsequently, Article 5 of Decree-Law No. 269/2003, converted, with amendments, into Law No.
326/2003, provided for the transformation of the Cassa Depositi e Prestiti into a joint-stockcompany, named 'Cassa Depositi e Prestiti Società per Azioni' (CDP S.p.A.).
In implementation of this legislation, the Decree of the Minister of Economy and Finance of 5
December 2003 was issued, which, inter alia, set the share capital of CDP S.p.A. at EUR 3.5 billion.
The share capital was fully paid into a current account with the Central State Treasury of which
CDP S.p.A. is the holder (current account called 'CDP S.p.A. - separate management').
In addition, on 27 April 2005, the Articles of Association of CDP S.p.A. were adopted by a Prime
Ministerial Decree not published in the Official Journal, and the members of the corporate bodies
were appointed.
The joint-stock company takes the form of a non-banking financial intermediary and is subject tosupervision by the Bank of Italy in the forms provided for registered financial intermediaries
126

See Article 22 of Decree-Law No. 8 of 18 January 1993, converted by Law No. 68 of 19 March 1993.

127
128

Law No. 448/2001, Art. 47, paragraphs 1-5.
Law No 266/2005, Art. 1, paras 79-83

64

in the special list referred to in Article 107 of the Consolidated Banking Act.
It is also provided that other public or private entities, among which banking foundations are
expressly mentioned, may hold capital shares, provided that overall these shares remain minority(Decree-Law No. 269/2003: Art. 5(2)).
Currently, 70 per cent of the company's share capital is owned by the Ministry of Economy and
Finance and 30 per cent, corresponding to a value of EUR 1.50 billion, by a group of 65 banking
foundations.
The Minister for Economic Affairs and Finance continues to exert a decisive influence on the
Cassa's activities, as a result both of the large majority he holds in the institution's capital and of thespecific powers conferred on him with regard to the separate management, to which the holdings
transferred by the State are entrusted.
Indeed, from a purely civil law perspective, the fact that it is a new public limited company isirrelevant.
Beyond the formal aspect, in fact, cases are all too well known in which the individual joint-stockcompany with a predominantly (or exclusively) public shareholding has been considered, by caselaw, as an indirect organ of a public administration to which it was instrumentally linked.
Starting with the judgment of the United Cassation Court of Cassation dated 29/12/1990, no. 12221(Meddedil case) with which it was formally ruled that the joint-stock company, concessionaire of
the P.A. for the construction of works, as holder of public functions, transferred by the same PA
with the concession provision, not only performs substantially and objectively administrative acts,
but operates precisely as an indirect organ of the same Public Administration.
The Supreme Court itself, moreover, has still had occasion to distinguish, more recently and also
under a different profile from that affirmed by the United Sections, when considering thephenomenon of the privatisation of public entities, between a 'substantial privatisation' and a
privatisation, instead, that is merely 'formal'.
The latter would be the case where the new entity operates, albeit in the form of a public limited
company, under a 'special right' resulting, on the one hand, from the fact that the State participatesin the share capital and, on the other, that the company is called upon to pursue public interest
objectives. In such cases, and on the basis of such legal considerations, the Supreme Court has
equated, even in the presence of a new corporate form, the legal regime relating to the defence inthe trial of the joint-stock company with that previously granted to the same entity when it played
the role of an economic public body.129

129

In this sense, see Sec. 3, Judgment No. 5441 of 14/03/2006 De Bernardo v Ente Poste Italiane Spa.

65

However, the reference to the indirect organ thesis130 seems the most appropriate to frame thepresent case, given similar specific precedents.131
Particularly in the light of the even more explicit statements made by the Council of State which, in
its judgement no. 498 of 20/5/1995, sez. VI decision, regarding the SpA Ferrovie dello Stato, acompany holding the concession ex lege of the tasks envisaged by law no. 210 of 17/5/1985,
establishing the Ente Ferrovie dello Stato, and whose shares are wholly owned by the State,affirmed the principle according to which the SpA Ferrovie dello Stato is to be qualified as anindirect body of the Public Administration, a body that is a public body and is not a public body.
210 of 17/5/1985, which set up the Ente Ferrovie dello Stato, and whose shares are wholly ownedby the State, affirmed the principle according to which Spa Ferrovie dello Stato is to be qualified as
an indirect organ of the Public Administration (then the Ministry of Transport), as it is in the same
position as the Public Administration and issues subjectively and objectively administrative acts.
The Constitutional Court has played a significant role in the reconstruction of this special categoryof administrative bodies. 259 with respect to joint-stock companies established following thetransformation of IRI, ENI, INA and ENEL provided for by Article 15 of Law Decree No. 333 of
11/7/1992. converted by Law No. 359 of 8/8/1992, a control that should have continued to be
exercised, in the forms and within the limits previously applied, as long as the State continues tohold an exclusive or majority interest in the share capital of said companies.
The same Court has clarified that ".in the presence of a public service organised and managed in theform of an undertaking and based on economic criteria, the relationship with users assumes acontractual nature and loses its authoritative connotations, with the consequent disappearance, in theregulation of liability for damage caused to users, of the importance once attributed to the subjective
aspects of the body - administration, Entity or company - that takes care of them, while theobjective profiles of each service become decisive, capable of justifying a special discipline limitingthat liability, without, however, ever being able to exclude it entirely"132 .
130

The body-organ thesis was, for example, supported by the Avvocatura Generale dello Stato with regard to the legal nature of the Port
Authorities after the reform carried out by law 84/94: cf. 26750 of 4 March 1995, according to which "...the functions attributed by law to theauthority, all of which are of an exquisitely public nature, belong to the Ministry of Transport and Merchant Marine, to which, o n the other hand,
they remain attributed in ports where such authorities are not established; the regulation of the management of assets and the control over the same,
reserved to the adm.Transport and Shipping and the Treasury; the control of the legitimacy of the management of the port authority, reserved for the
Court of Auditors, are all elements of assessment that reasonably lead to the conclusion that port authorities are "bodies" of the State, assimilable toState administrations and therefore can avail themselves of the advocacy of the Bar according to the general rules of the Consolidated Law on
Lawyers.
n. 1611/1933." The text of the note can be read on the official website of the State Attorney's Office http://www.avvocaturastato.it/node/188.
131
The cases of ANAS, transformed into a joint-stock company with public shareholding by article 7, paragraph 11 of Law 8-8-2002, no.
178 (converting into law, with amendments, Law Decree 8-7-2002, no. 138) and CONI CONI, also transformed into a joint-stock company withpublic shareholding by article 8 of Law 8-8-2002, no. 178, seem emblematic. Both of the above companies were granted the patronage of the
Avvocatura dello Stato.
132

Constitutional Court. 21 January 1999, no. 4. Again in the sense of excluding a favourable regime for the civil liability of companies
exercising public functions, see Corte cost. 20 June 2002, no. 254 by which the constitutional illegitimacy of Article 6 of Presidential Decree of 29
March 1973 was declared,
No 156, on postal and telecommunications matters, in so far as it provided that the postal administration and the concessionaires of the service
telegraphic service do not incur any liability for the non-delivery of telegrams.

66

A further refinement of the theory is represented by that jurisprudential direction of the Council ofState that has been able to enhance the attribution to the public joint-stock company of the status of'public body of community importance'133 .
Finally, the reference to Community legislation also allows one to take into account the relevant
guidelines expressed by the Court of Justice, a further important interpretative input that can beused for the correct legal classification of a joint-stock company as a Cassa Depositi e Prestiti134 .
Finally, it should be borne in mind that all of Cassa Depositi e Prestiti's activities are characterisedby a close relationship of instrumentality with the activities of the State and are also carried out
using, inter alia, the staff of the Ministry of the Economy and Finance itself (which has absorbed thepowers of the Ministry of the Treasury).
In the light of these general principles, therefore, it must be affirmed that the various reform laws
have always confirmed that the Cassa Depositi e Prestiti belongs to the public administration, mostrecently through t h e organic inclusion of the joint-stock company within the State Finance
Administration, as an instrumental body (or, more appropriately, as an indirect body in the terms
described above) of the State Administration itself, chaired by the Minister and subject to thesupervision of the Ministry of the Economy and Finance.
It also follows that it has full passive legitimacy with respect to the action for damages caused by
the emissions of ENI (of which the Cassa Depositi e Prestiti owns 25.96 % of the share capital) interms of climate change, in light of the same principles of law that will be recalled below withrespect to the position of the Ministry of the Economy and Finance.
21. THE LEGAL STANDING OF THE PLAINTIFFS
21.1. LEGAL STANDING OF THE ASSOCIATIONS GREENPEACE ONLUS AND
RECOMMON APS.
Without needing to go into excessive detail on this point (and referring to what has been deduced inPart I of this deed), it is clearly evident that the climatic alterations of which ENI is one of the main
perpetrators, and undoubtedly the main Italian culprit, are the cause of extremely serious
environmental/climatic damage, as such legally relevant, also in terms of unnamed "disaster"(pursuant to Article 434 of the Criminal Code) and of environmental disaster (Article 452-quater of
the Criminal Code) presenting all the characteristics both in terms of size and of the relative
offensive projection: see the disaster events mentioned in § 20.1.3.
133
134

In this sense, see the arguments developed by Council of State, Sec. 06 SENT. no. 01267 of 16/09/1998.
See, for example, the Teckal judgment of 18 November 1999 in Case C-107/98 in which the Court was able to affirm the inapplicability ofthe public procurement rules when there is no real contractual relationship between the contracting authority and the company entrusted with theservice, as is the case with interorganic delegation or a service entrusted exceptionally in-house.

67

The plaintiffs in the present action are, as mentioned above, the associations Greenpeace and
ReCommon, and, in addition, a number of private persons, i.e. natural persons, all of whom are inany event affected, the former in their statutory purposes, the latter in their property and rights, by
the activity carried out by the defendants.
In fact, the plaintiffs are legitimated to act for breach of Articles 2043, 2050 and 2051 of the Civil
Code due to the unlawful conduct, because it violates human rights, committed by the defendants
ENI, CDP and MEF. On the other hand, both private individuals and associations are also entitled toact for the damages suffered by them due to the environmental/climatic damage caused by ENI's
conduct, in the forms and measures that will be specified.
It is, in fact, entirely common ground that the violation of human rights and, therefore, protection
under Articles 2043, 2050 and 2051 of the Civil Code, arises from the significant environmental
damage caused by ENI under Article 300 of Legislative Decree No 152/2006.
Moreover, as is well known, pursuant to Article 311 of Legislative Decree no. 152/2006, the only
person with the legal standing to act for the purposes of compensation for environmental damage is
the Minister for the Environment and Protection of the Territory (now the Minister for theEnvironment and Energy Safety-MASE), who 'acts, also by bringing civil action in criminal
proceedings, for compensation for environmental damage in a specific form and, if necessary, forequivalent assets, or proceeds pursuant to the provisions of Part Six of this decree'.
In the case in point, therefore, there has been an evident and macroscopic environmental damage,i.e. a significant and measurable deterioration of natural resources, and it is only the Minister for theEnvironment who has the right to act for the purpose of obtaining compensation for such specificdamage, either in a specific form or by means of the administrative procedures pursuant to Part Sixof Legislative Decree No. 152/2006.
However, in our case, the plaintiffs are clearly not claiming compensation for environmental
damage in the proper sense of the term (not within their jurisdiction), but rather the plaintiffs are
subjects damaged by the fact producing the environmental damage - i.e. by the harmful conduct ofthe defendants. Therefore, as such, associations and private individuals have a direct right of action
against the persons responsible for the fact (also causing environmental damage), in order to obtaincompensation for the damage, different and distinct from the environmental damage, caused to thesame plaintiffs by the same facts of the defendants, which are also productive precisely of theenvironmental damage proper.
Indeed, pursuant to Article 313, paragraph 7 of Legislative Decree no. 152/2006, it remains in any
case without prejudice to "the right of the persons harmed by the event producing environmental
damage, in their health or in their property, to take legal action against the responsible party toprotect the rights and interests harmed".
In this regard, the Constitutional Court in its judgment 01/06/2016, no. 126 recognised theconstitutional legitimacy of the legislator's choice to reserve to the State, and in particular to the68Minister of the Environment (now MASE), the power to act for compensation for environmental
damage,69

pointing out, however, that there is always the power of action of other subjects (public and private)
for the specific damage suffered by them as a consequence of the environmental damage (in thestrict sense).
Accordingly, there is full entitlement to bring proceedings against the applicants for compensation
for the damage suffered by them as a result of ENI's activities. Those activities are manifestly multioffensive or multi-injurious, in that, on the one hand, they have caused and continue to cause verysignificant environmental damage, within the meaning of Article 300 of the abovementioned
directive, but at the same time they have caused and continue to cause further and separate damage
to the property and rights owned by the applicants in the present proceedings.
The plaintiffs Greenpeace and ReCommon therefore have full right and legitimacy, under the
statutes of their respective associations, to bring an action to counteract the harm and damage to theenvironment and climate caused by the defendants, as well as to obtain compensation for the
expenses incurred over the years in investigating, denouncing and counteracting ENI's unlawful
conduct.
On the other hand, there would be no doubt if the associations were exercising their civil action incriminal proceedings, therefore, neither can there be any doubt as to their full right to exercise that
action in civil proceedings. Even more so now that the criminal preliminary ruling has disappeared.
In support of the foregoing, reference is made to consolidated and authoritative jurisprudence oflegitimacy. According to the Criminal Court of Cassation, section III, 23/05/2012, no. 19437, "thedamage that can be compensated under civil law may also be in the form of the prejudice caused tothe activity concretely carried out by the environmental association for the valorisation andprotection of the territory, which is affected by the goods subject of the damaging event. In such
hypotheses, there could be harm that is also susceptible of economic assessment, in consideration of
any financial outlays incurred by the body for the performance of the protection activity". In
identical terms, Criminal Cassation section III 26/09/2011 no. 34761. Such damage would exist,
again according to the Supreme Court, and in the present case it undoubtedly does exist, if theenvironmental association, rooted - as here - in a very specific historical and territorial context, i.e.
the Italy of the last decades, has sustained expenses - as in the present case - for the activity ofenvironmental protection, which became necessary in reaction to and in connection with theoccurrence of facts causing environmental damage ex adverso.
Again, according to the Criminal Court of Cassation, section III, 21/10/2010 no. 41015, only theState, and on its behalf the Minister of the Environment, pursuant to article 311 of the Environment
Code, as mentioned above, has the right to form a civil action in proceedings for environmental
offences, in order to obtain compensation for environmental damage of a public nature, pursuant toarticle 300 of the Environment Code, considered in itself as a lesion of the public and generalinterest in the environment. However, all other subjects, whether individual or associated, according
to this pronouncement of the Supreme Court, may act - as precisely through this act - "pursuant to70Article 2043 of the Civil C o d e to obtain compensation for71

any pecuniary damage, further and concrete, suffered by them, distinct from environmental
damage", and yet caused by the same facts producing environmental damage in the proper sense. In
similar terms, according to the Criminal Court of Cassation section III, 9 July 2014 no. 24677, thelegitimacy of bringing a civil action in trials for environmental offences belongs exclusively to theState for the compensation of environmental damage of a public nature, understood as a lesion of
the public interest in the integrity and healthiness of the environment, while all other subjects,
individuals or associations, may bring civil action in criminal proceedings pursuant to art. 2043
Civil Code. - or, as here, civil action in the autonomous and designated civil forum - in order toobtain compensation for pecuniary and non-pecuniary damage, further and concrete, consequent as in the present case - to the lesion of their other particular rights, different from the public interestin the protection of the environment, even if deriving from the same damaging conduct andproducing the environmental damage.
According to the Criminal Court of Cassation section III, 25 May 2011 no. 25039, environmental
associations are legitimately entitled to become civil parties in criminal proceedings - or rather, as
in the present case, to act directly in civil proceedings for the purpose of compensation for the
relevant damages suffered - for environmental offences iure proprio, since the provision that
reserves to the State - pursuant to article 311 of the Environmental Code - the possibility of
becoming a civil party in matters of environmental damage is not an obstacle. "This rule in fact does
not prevent the applicability of the general rules on compensation for damage".
Finally, as already agreed and unequivocally stated by the authoritative jurisprudence of theSupreme Court of Cassation, in the opinion of the Criminal Cassation section III, 17 January 2012
no. 19439, "the damage, necessarily different from the damage to the environment as a public good,which can be compensated in favour of environmental associations that are civil parties inproceedings for environmental offences, can be of a financial nature as well as moral, derivingfrom the prejudice caused to the activity concretely carried out by such associations for thevalorisation and protection of the territory on which the goods subject to the damaging event
affect".
Therefore, the environmental associations which are the plaintiffs today have full and indisputable
standing to bring civil proceedings under Article 2043 et seq. of the Civil Code, in order to obtaincompensation for the pecuniary and non-pecuniary damage suffered by those associations as a resultof the many years of activities carried out by ENI, which also primarily caused environmental
damage under Article 300 of the Environmental Code.
With regard to the legitimacy to act of non-recognised environmental associations, before theOrdinary Civil Judge the issue has already been positively resolved by the Supreme Court. Indeed,
the jurisprudence of legitimacy has progressively opened up towards extensive solutions, until
reaching the definitive clarification by the United Criminal Sections of the Court of Cassation withthe well-known judgment of 24.04.2014, no. 38343 (in Rv 261110, ThyssenKrupp) where it was72specified (see the§ 56) that 'corporations and associations are entitled to bring actions for damages, even in criminal
proceedings73

by means of the constitution of a civil plaintiff, where the offence has damaged an interest of theirown, provided that this interest coincides with a real right or, in any case, with a subjective right ofthe organisation, and therefore even if the offended interest is the interest pursued with reference toa historically circumstantiated situation, taken to heart by the organisation and assumed in thearticles of association as the very reason for its existence and action, as such the subject of an
absolute and essential right of the organisation. This is due both to the immedesimation between theentity itself and the interest pursued, and to the incorporation between the members and theassociation itself, so that the latter, due to the affectio societatis towards the chosen interest and the
prejudice caused to it, suffers an offence and therefore also non-pecuniary damage from theoffence". (Sec. 6, no. 59 of 01/06/1989, Monticelli, Rv. 182947). The principle has been repeatedly
reiterated (e.g. Cass. pen., sect. I, no. 44528 of 25/09/2018, dep. 31/10/2019; Cass. pen., sect. 4, no.
38991 of 10/06/2010, Quaglierini, Rv. 248848; Sect. 3, no. 38290 of 03/10/2007, Abdoulaye, Rv.
238103). It was briefly stated that there are organisations that have made a certain interest themain object of their existence, so that it has become an internal and constitutive element of theassociation and as such has taken on the consistency of a subjective right. The development ofjurisprudence has held the protectability of collective interests without the existence of a protective
norm being necessary, the direct assumption by the entity of the interest in question being sufficient,which has made it the object of its own activity, becoming the specific purpose of the association.
All of this with the following functional clarification to "identify a regulating principle that, without
prejudice to the basic lines of the development of jurisprudence, avoids inappropriate outcomes,
such as the indiscriminate extension of legitimacy every time any body claims to be the guardian of
the interest harmed by the crime. In this regard, the evocation and valorisation, recurrent in caselaw, of the need to refer to a specific historical situation is useful; and the role concretely played by
the body that takes part in the proceedings is also relevant" (Cass. Sez. Un. 24.04.2014 cit.).
On the level of active and passive legitimacy in environmental actions, it is then necessary to recall
the provisions of the "Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters", signed in Aarhus in 1998 and ratified in
Italy by law no. 108 of 16 March 2001, which provides, inter alia:- in Article 2(5) that 'the public concerned' (with access to justice in environmental matters) is to beunderstood as 'the public affected or likely to be affected by, or having an interest to assert in,environmental decision-making processes; for the purposes of this definition, non-governmentalorganisations promoting environmental protection and meeting any requirements under nationallaw shall be deemed to have such an interest;- in Article 9(3) that "... each Party shall ensure that members of the public who74meet the criteria, if any, laid down in national law, may initiate administrative or judicial
proceedings to challenge the acts or omissions of private persons or public authorities performed inbreach of national environmental law'.
- and in paragraph 4 of Article 9: "4. Without prejudice to paragraph 1, the procedures referred toin paragraphs 1, 2 and 3 shall provide adequate and effective remedies, including injunctive relief
where appropriate, and shall be objective, fair, expeditious and not prohibitively expensive.
Decisions under this Article shall be given or recorded in writing. Decisions of courts and, where
possible, of other bodies shall be accessible to the public.".
The Aarhus Convention Compliance Committee has clarified that while national governments enjoy
broad discretion in defining such criteria for standing, the criteria cannot be so stringent as to denyenvironmental associations access to the courts in practice (Communication ACCC/C/2005/11(Belgium) para. 35-36). In the same decision, the ACCC clarified that standing must be the rule andlimitations are the exception.
21.2. THE LEGAL STANDING OF NATURAL PERSONS
Similarly, the natural persons, who are also the plaintiffs today, all residents and owners of property
in areas of the country particularly exposed to the effects of climate change, have full legitimacy toact, as pacifically established by the aforementioned jurisprudence of legitimacy, for the purposes ofcompensation, pursuant to Articles 2043, 2050 and 2051 of the Civil Code, of the pecuniary andnon-pecuniary damages etiologically traceable, without interruption, to the facts, also productive ofenvironmental/climatic damage, unlawfully put in place by the defendants.
If in fact, again in terms of a counterfactual judgment, ENI had not carried out the acts and conduct
detrimental to the environment complained of herein, the private plaintiffs would certainly not havesuffered the patrimonial damage manifested by them in this action and alleged both in the past andin the future.
In fact, if ENI had not committed the acts alleged in the summons, the plaintiffs would not haveseen the patrimonial and market value of the relevant real estate assets concretely diminished to aconsiderable extent, as has unfortunately occurred, by virtue of the conduct of the present
defendants.
It should be added that the private plaintiffs have suffered and are suffering damage from 'metus',
attributable to the psychological suffering resulting from the fear of exposing their material
possessions, as well as their safety, life and health, and that of their loved ones (in particular,
spouses and children) to the extreme and disastrous phenomena induced by climate change, andthey are also entitled to obtain compensation for the damage resulting from the alteration of their
daily life habits due to the75same climate changes (on the legitimacy to act of private parties in order to obtain the recognitionof damages from metus in cases of disaster events pursuant to art. 434 of the Italian Criminal Code,see Civil Cass., SS.UU., sentence 21/02/2002 no. 2515 on the Seveso disaster; Civil Cass, sect. III,no. 11059 of 13/05/2009 always referring to the well-known Icmesa affair; Court of Assizes of
Alessandria 06/06/2016 no. 1 on the Spinetta Marengo case; Cass. pen., sect. IV, of 10/05/2018, no.
25547; Ord. Court of Savona, sect. pen. of 19/03/2019 concerning the environmental and healthdisaster of the thermoelectric power plant Tirreno Power).
Hence, in conclusion, the manifest legitimacy to bring proceedings, as well as the evident interest in
bringing proceedings - direct, concrete and current - pursuant to Article 100 of the Code of Civil
Procedure. All the plaintiffs, environmental associations and private parties, have a direct, concreteand present interest in bringing proceedings, pursuant to Article 100 of the Code of Civil Procedure,in order to obtain compensation for the pecuniary and non-pecuniary damage suffered by them as aresult of the wilful and negligent conduct described in the lawsuit, which would also merit direct
action by the Minister of the Environment pursuant to Article 311 of the Environmental Code, forthe purpose of obtaining compensation for the separate environmental damage pursuant to Article
300 of the Environmental Code. As already mentioned, pursuant to Article 313, paragraph 7, of thesame Legislative Decree. As already mentioned, pursuant to article 313, paragraph 7 of the samelegislative decree 152/2006, in any case, the right of parties damaged by the event producing
environmental damage, in their health or property, to take legal action against the responsible party
to protect the rights and interests harmed remains intact, with the clarification that the abovementioned "special" regulations on environmental damage are, however, in addition to the generalregulations on damage provided for by the civil code (Criminal Court of Cassation, section III,
17/01/2012, no. 19439).
Hence the plaintiffs' interest and right to sue for the violation of human rights, as amply
demonstrated and argued above. According to the well-known and fundamental judgment of the
Court of Cassation, United Sections, 6 October 1979 no. 5172, the right to a healthy environment
constitutes a fundamental right of the individual that cannot be degraded and as such can also beprotected against the Public Administration. This judgment represented the first recognition of theright to the environment as a subjective right, irrespective of whether the plaintiff holds a right toproperty or another right in rem, a principle later followed by copious case law (see, e.g., Court ofCassation, section II, 9.1.2013, no. 309).
It remains only to add, in terms of jurisdiction, that the United Civil Sections of the Supreme Courtof Cassation have had occasion to specify that the jurisdiction of the ordinary judge remains
unchanged with regard to actions for damages or injunctions brought by persons to whom the event
producing environmental damage has caused damage to health or property, pursuant to theprovisions of Article 313, paragraph 7, of Legislative Decree 152/2006. All of which is to add thatthe fact that the harmful activity is carried out in accordance with authorisations issued by the76

public authorities does not affect the division of jurisdiction (given that such authorisations cannot
be recognised as having the effect of weakening rights).

77fundamental rights of third parties) but exclusively on the powers of the ordinary judge, who, in the
hypothesis that the damaging activity derives from material conduct that does not comply with theadministrative measures that make its exercise possible, shall sanction, by prohibiting it or bringing
it into conformity, the activity that has proved harmful because it does not comply with theadministrative regulation, while, in the hypothesis that such conformity is revealed, he shalldisapply the aforesaid regulation and impose the cessation or adjustment of the activity so as toeliminate the damaging consequences (thus Civil cassation, sec. un, 23/04/2020, n.8092).
22. INTER-GENERATIONAL INJUSTICE AND CLIMATE DISPUTE
The impact of climate change not only differs for people from different regions and socioeconomic backgrounds, but also leads to inequalities between generations.
The fact that the consequences of climate change will inevitably become greater in the future
automatically means that climate change will hit young people and future generations harder.
The concept of intergenerational inequality gained its first recognition after the so-called'Brundtland Commission' defined sustainable development in its well-known report 'Our Common
Future', published in 1987 by the World Commission on Environment and Development (WCED),
as follows: "Sustainable development is development that meets the needs of the present withoutcompromising the ability of future generations to meet their own needs"135 .
Although this report did not specifically address climate change, it nevertheless highlighted thecentrality of the issue of the impact of anthropogenic activities on the lives of future generations
whose needs and opportunities must be considered. The 2006 and 2009 climate change reports by
Lord Nicholas Stern confirm this argument and also link it to climate change: 'Issues of intra- andintergenerational equity are central. Climate change will have serious impacts over the lifetime ofmost people living today. Future generations will be even more severely affected, but they lack
representation in today's decisions'136 .
Unless sufficient action is taken to prevent severe climate change and to stay below 1.5°C, the costsof adaptation and damage will largely be borne by these people and future generations, who havenot caused the problem. The contradiction that emerges here is that the desires are of the older
generations and the burdens of the young. Which again underlines the importance of climate action
and shows that delay is not a legally acceptable option.
135
136

UN Documents, Our Common Future, Gathering a Body of Global Agreements, Chapter 2, Towards Sustainable Development, p. 44.
Stern Review 2006: The Economics of Climate Change, H. 2, Economics, ethics and climate change, this report is published on request of
the British government in 2006.

78

The action proposed by this act is part of the list of climate litigation actions, which as of April
2023, according to the Sabin Centre for Climate Change Law database137 , reached 2,276
worldwide.
In short, it must be remembered that there has so far been climate litigation between states andclimate litigation in which the plaintiffs are private individuals and non-governmental organisations,
including Greenpeace. In relation to the defendants, a distinction is made between actions brought
against states, on the one hand, and actions brought against companies (the so-called 'big carbons'),
on the other.
Climate litigation by private individuals against states includes, inter alia:- the Dutch experience of the now well-known 'Urgenda case' (also discussed below), i.e. the civil
case brought by the 'Dutch Urgenda Foundation' (and several Dutch citizens) against the Dutch
State to demand that it be ordered to reduce CO2 emissions in accordance with its international
commitments, which ended with the Supreme Court's 2020 ruling upholding the State's sentence,
issued at the previous instances, to reduce greenhouse gas emissions by 25% compared to 1990
levels138 ;- the German case "Neubauer, et al. v. Germany' of the appeal brought by natural persons andsupported by Greenpeace Germany that ended with the 2021 ruling of the German Federal
Constitutional Court (on which see below), which declared that the provisions of the Federal
Climate Protection Act governing national climate targets were incompatible with fundamental
rights enshrined in the Constitution because they did not provide for a clear emission reduction
pathway from 2030 to achieve carbon neutrality and thus placed an unfair burden of emission
reductions on future generations that would seriously undermine their fundamental freedoms139 ;- the French affair known as the 'Affaire du Siècle' defined in first instance with the 2021 rulings of
the Paris Administrative Court, which upheld the appeal brought by a number of non-governmentalorganisations (including Greenpeace France), declaring the French State liable for failing to adopt
adequate and sufficient instruments to combat the phenomenon of climate change and ordered it totake all necessary measures to repair the ecological damage caused by the exceeding of carbon
budgets between 2015 and 2018140 .
Climate litigation against large emitters of greenhouse gases includes
137
138

In https://climate.law.columbia.edu
These were the rulings in the 'Urgenda case': District Court of The Hague, Urgenda v The State of the Netherlands,
ECLI:NL:RBDHA:2015:7145, 24 June 2015; Court of Appeal of The Hague, Urgenda v The State of the Netherlands,
ECLI:NL:GHDHA:2018:2591, 8 October 2018; Court of Cassation, ECLI:NL:HR:2019:2007, 13 January 2020.
139
The 24 March 2021 ruling of the Bundesverfassungsgericht, published athttps://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html
140
These are the rulings issued by the Paris Administrative Court on 3 February and 14 October 2021.

79remember, among others:- the Dutch case of 'Milieudefensie et al. v. Royal Dutch Shell plc.' decided with the 2021 judgmentin which the Hague District Court ordered the company to reduce climate-changing emissions in thelight of scientific evidence and international standards141 ;- the German case 'Llyula v. RWE AG' concerning the lawsuit brought by a Peruvian citizen against
an energy major to have it declared liable for global warming and consequently endangering his
property142 ;- the New Zealand case 'Smith v. Fonterra Co-Operative Group Limited' brought by a New Zealandcitizen against several companies held responsible for greenhouse gases (including a dairy, a power
plant and an oil refinery)143 .
On the other hand, as the United Nations Environment Programme points out, 'more than ever,litigation is now an important tool to encourage policy makers and market actors to develop andimplement effective means to mitigate climate change and adapt to its effects. Indeed, it would bewrong to rely on technological developments and non-climate policy initiatives to fend off climate
destabilisation. Therefore, climate law and policy is a key element of any rational action plan'144 .
Now, the recalled climate change litigation pronouncements start from a twofold common premise:- Scientifically, there is now irrefutable evidence (see §§ 17, 18 above) that human activities haveunequivocally caused global warming, mainly through the emission of greenhouse gases to which
ENI, as a 'Carbon Major', has contributed significantly through the release of CO2 and othergreenhouse gases, causing a dangerous alteration of the Earth's climate system;- This scientific premise is accompanied by the legal acquisition, now common to the various stateand supra-state legal systems, that the stability of the climate system - and, conversely, the fightagainst climate change - is an essential dimension of the right to a clean, healthy and sustainable
environment, which all individuals are entitled to and the protection of which calls for theapplication of an intergenerational responsibility of states and companies.
The protection of the right to a clean, healthy and sustainable environment, and therefore to a stableclimate, is
141

The Hague District Court, 26 May 2021, available athttps://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2021:5339).
142
The court of first instance rejected the claim, pointing out, in addition to its vagueness, the lack of a causal link between
the event and the damage; otherwise, the court of second instance found the claim admissible. For a reconstruction of the entire case, see
https://climate-laws.org/geographies/germany/litigation_cases/luciano-lliuya-v-rwe. On the case, see D'Alessandro, Climate change litigation, orthe new frontier of judicial protection: the trial as a tool to combat climate change, in Le pag. de l'aula civ., 2020, p. 51 ff.
143
For the reconstruction of the story, https://climate-laws.org/geographies/new-zealand/litigation_cases/smith-v-fonterra-co-operativegroup- limited.
144
ONU Environnement en partenariat avec Columbia Law School, l'état du contentieux climatique, revue mondiale, mai 2017.

80

necessary for the effective enjoyment of all human rights, including the rights to life, health, privateand family life, and private property, as well as the economic, social and cultural rights recognisedby the various constitutional charters, including the Italian Constitution, the ECHR - European
Charter of Human Rights and international agreements (first and foremost, the UNFCCC and theParis Agreement).
To date, there are no Italian court rulings on climate change and human rights145 . However,awareness of the problems associated with climate change has been known to Italian judges forsome time now. In particular, constitutional, administrative and civil jurisprudence has alreadyexpressed itself on the subject on several occasions.
Thus, for example, the Plenary Assembly of the Council of State No. 9 of 2019 affirmed the'overriding interest of the community in the gradual reduction of the carbon dioxide component in
the atmosphere'.
The Constitutional Court has added that there is a public interest in "eliminating dependence on
fossil fuels", thus giving a significant impetus and spur towards alternative energy sources(Judgments No 124 of 2010, 286 of 2019, 237 of 2020 and 46 of 2021).
The Court of Cassation, Civil Section VI, in its judgment no. 7343 of 2021 affirmed the "favour of
the national legislator and the European Union for the principle of the maximum diffusion ofrenewable energy sources. In this sense it is first of all the Treaty on the Functioning of theEuropean Union of 25 March 1957, art. 194, letter c, - cd. Treaty of Rome, according to which "inthe context of the establishment or functioning of the internal market and with regard for the needto preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity
between Member States, to [...] promote energy saving, energy efficiency and the development of
new and renewable forms of energy". We must also mention the United Nations Framework
Convention on Climate Change, ratified by Law no. 120 of 1 June 2002, on the "Ratification andExecution of the Kyoto Protocol to the United Nations Framework Convention on Climate Change,
done at Kyoto on 11 December 1997"), the European directives on the subject (Dir. of theEuropean Parliament and of the Council, 27 September 2001, no. 2001/77/EC of the European
Parliament and of the Council of 27 September 2001 on the promotion of electricity produced fromrenewable energy sources in the internal electricity market; Directive 2009/28/EC of the European
Parliament and of the Council of 23 April 2009 on the promotion of the use of energy fromrenewable sources and amending and subsequently repealing Directive 2001/77/EC and Directive
2003/30/EC). Finally, also in the same145

It should be noted, however, that before the civil section of the Court of Rome the action brought by environmental protection associations
and individuals in June 2021, which sued the Italian State held responsible for climate non-compliance, is currently pending, in order to order it toadopt the necessary measures to reduce greenhouse gas emissions by 92% by 2030, compared to pre-industrial levels (an initiative called 'Giudizio
Universale'). See www.giudiziouniversale.eu, as well as L. BUTTI, Il contenzioso sul cambiamento climatico in Italia, in RGA Online, 22, 2021, p. 1
ff.; P. PUSTORINO, Cambiamento climatico e diritti umani: sviluppi nella giurisprudenza nazionale, in Rivista OIDU, 2021, p. 596 ff.; G. PULEIO,
Rimedi civilistici e cambiamento climatico antropogenico, in Persona e Mercato, 3, 2021,
p. 469 ff.

81

direction is the Paris Agreement signed on 22 April 2016, the first universal and legally binding
agreement on climate change, adopted at the Paris Climate Conference held from 30 November to
11 December 2015, ratified by the European Union and all its countries and entered into force on 4
November 2016, which, as part of the objective to curb global warming, strongly incentivises theuse of renewable energies.
The Supreme Court has, therefore, embraced two fundamental principles: that of assimilatinginternational sources on climate change to EU law, thus becoming immediately effective inthemselves, and that of recognising the 'Paris Agreement' as 'the first universal and legally binding
agreement on climate change'.
The reference legislation for the action in question must, therefore, be found in both national andEuropean Union and international law. And the relevant precedents can and must also be sought
beyond national borders, as we have already seen above and will elaborate on in the following
paragraphs.
23. INTERNATIONAL SOURCES
23.1. CLIMATE CHANGE AND HUMAN RIGHTS
The repercussions of climate change on human rights, primarily the right to life and health, are now
well known and evident: the figures for illnesses and premature deaths due to environmental
pollution are already three times higher than those for AIDS, tuberculosis and malaria taken
together, and this constitutes a threat to the right to life, a healthy environment and clean air; natural
disasters such as floods, tropical storms and long periods of drought are occurring with increasing
frequency and have adverse consequences for food security in the countries of the global South andNorth and the enjoyment of numerous human rights146 .
The Paris Agreement was the first international treaty to explicitly recognise the link between
climate action and human rights, thus laying the groundwork for the application of existing humanrights legal instruments to the reduction of emissions by states and private companies147 .
But for some time now, the risks of serious damage that climate change causes to human rights havebeen recognised, as partly anticipated in Part I of this act, by several bodies at international and EU
level.
146

See, inter alia, the 'European Parliament resolution of 19 May 2021 on the effects of climate change on human rights and the role ofenvironmental defenders in this context', in https://www.europarl.europa.eu/doceo/document/TA-9-2021-0245_IT.html
147
The Preamble of the Paris Agreement refers to the need for an effective response to the threat of climate change
in the context of the protection and promotion of human rights, "[...] recognising that climate change is a common human concern, countries should,
when acting to address it, respect, promote and consider their human rights obligations, the right to health, the rights of indigenous peoples, local
communities, migrants, children, persons with disabilities, those in vulnerable situations, and the right to development, as well as gender equality, theempowerment of women and intergenerational equity.

82Thus, for example, the UN report 'Climate Change - The Anatomy of a Silent Crisis' states that'every year climate change leaves more than 300,000 people dead, 325 million severely affected[...] Four billion people are vulnerable and 500 million people are at extreme risk'148 . Also
according to the UN, 'in the coming decades climate change will displace millions of people.
Current estimates put the number of 'climate refugees' and 'environmental migrants' in the range of
25 million to one billion by 2050'149 .
On 25 March 2009, the UN Human Rights Council adopted Resolution 10/4150 in which it stated
that: "The effects of climate change have a number of impacts, both direct and indirect, on theeffective exercise of human rights, including the right to life, the right to adequate food, the right toenjoy the best possible state of health, the right to adequate housing, the right to self-determinationand human rights obligations relating to access to safe drinking water and sanitation, and recallingthat under no circumstances should a people be deprived of their livelihoods."
In particular, the UN (see previous link) has stated that the right to life, self-determination, healthand basic needs such as food, clean water and shelter will be compromised due to the consequencesof climate change "noting that climate change impacts have a number of implications both direct
and indirect, for the effective enjoyment of human rights, including, inter alia, the right to life, theright to adequate food, the right to the highest attainable standard of health, the right to adequate
housing, the right to self-determination and human rights obligations relating to access to safe
drinking water'.
At the opening of the forty-second session of the Human Rights Council, held in Geneva on 9
September 2019151 , the UN High Commissioner for Human Rights called on states to act on thethreat that climate change poses, stressing that "the world has never seen a human rights threat ofthis magnitude".
The 'United Nations Committees for the Protection of Human Rights' also jointly issued a statement
recalling the impact of climate change on human rights, highlighting that the IPCC report releasedon 8 October 2018 on global warming of 1.5°C "confirms that climate change poses significant
risks to the enjoyment of human rights protected by the International Convention on the Eliminationof All Forms of
148
149
150
151

Global Humanitarian Forum, Human Impact Report Climate Change, The Anatomy of A Silent Crisis, 2009 executive summary.
https://gsdrc.org/document-library/human-impact-report-climate-change-the-anatomy-of-a-silent-crisis/
https://www.ohchr.org/en/climate-change/human-rights-council-resolutions-human-rights-and-climate-change
https://www.partitoradicale.it/2019/09/09/michelle-bachelet-alto-commissario-delle-nazioni-unite-per-i-diritti-umani-mai-vista-unathreat-to-human-rights/

83discrimination against women, the International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Protection of the Rights of All Migrant Workers andMembers of Their Families, the Convention on the Rights of the Child and the International
Convention on the Rights of Persons with Disabilities. The negative impacts identified in the report
threaten, among others, the right to life, the right to adequate food, the right to adequate housing,
the right to health, the right to water, and cultural rights [...] These negative impacts on humanrights are already occurring at 1°C warming and any further rise in temperatures will further
undermine the realisation of rights. The IPCC report makes it clear that to avoid the risk of largescale and irreversible systemic impacts, urgent and decisive climate action is needed [...] Climaterelated risks to health, livelihoods, food security, water supply, human security and economic
growth will increase if global warming of 1.5°C occurs, and even more if it warms by 2°C"152 .
It is then recalled the case addressed by the UN Human Rights Committee in its decision of 14
October 2019 (in the case of Teitiota v. New Zealand, UN Doc. CCPR/C/127/D/2728/2016)153 thatrecognised the relevance of the effects of climate change on migration policies, in the sense thatenvironmental degradation that prevents a person from living in a certain area of the planet can be aprerequisite for the recognition of refugee status. In fact, the decision affirms the principle that
States have an obligation to ensure and guarantee the right to life of persons, extending this right to"reasonably foreseeable threats and potentially life-threatening situations that may result in the lossof life or otherwise a substantial deterioration in the conditions of existence, including
environmental degradation, climate change and unsustainable development, which constitute someof the most serious and urgent threats to the life of present and future generations and which may
adversely affect an individual's well-being and thus cause a violation of his or her right to life".
In 2019, the Human Rights Committee recognised that climate change is one of 'the most pressing
and serious threats to the ability of present and future generations to enjoy the right to life. The
obligations of States Parties under international environmental law should therefore inform thecontext of Article 6 of the Covenant [right to life], and the obligation of States Parties to respectand guarantee the right to life should also inform their obligations relevant to the152

https://www.unhcr.org/it/notizie-storie/notizie/unhcr-il-comitato-delle-nazioniu n i t e - p e r - i - d i r i t t i - u m a n i - c o n - l a - s u a - d e c i s i o n e - i n - m a t e r i a - of-climate-changes-launches-an-alarm-bell/
153
It is the story of Mr Teitiota, a citizen of a small state in Oceania who, due to the rising of the oceans had
transferred to New Zealand where he applied for refugee status, which was denied by the New Zealand authorities. Having exhausted all domestic
remedies, Mr. Teitiota appealed to the UN Human Rights Committee, on the basis of Article 5 and Article 6 of the Optional Protocol to theInternational Covenant on Civil and Political Rights, claiming New Zealand's violation of his right to life.
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F127%2FD%2F2728%2F2016&Lang=en

84

under international environmental law' 154.
In 2021, the United Nations Council recognised "the right to a clean, healthy and sustainable
environment as an important human right to the enjoyment of human rights "155 and acknowledgedthat the impacts of climate change and the consequent loss of biodiversity and its services "interferewith the enjoyment of a clean, healthy and sustainable environment and that environmental damage
has negative implications, both direct and indirect, for the effective enjoyment of all human rights."
Furthermore, it recognised that climate change constitutes one of the 'most pressing and serious
threats to the ability of present and future generations to enjoy human rights, including the right tolife'.156
The UN Council's recognition of the right to a healthy environment was followed by the UN
General Assembly's (UNGA) recognition that a clean, healthy and sustainable environment is auniversal human right. This resolution, adopted in July 2022, was unprecedented (with 161 votes infavour, no votes against and eight abstentions). In the resolution, the UNGA recognised that the
impacts of climate change 'interfere with the enjoyment of a clean, healthy and sustainable
environment and that environmental damage has negative implications, both direct and indirect, forthe effective enjoyment of all human rights'157 and that climate change is one of 'the most pressing
and serious threats to the ability of present and future generations to effectively enjoy all humanrights'158.
23.2. ARTICLES. 2 AND 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTSAND THE CEDU JURISPRUDENCE
At the level of European law, it should be recalled that the European Court of Human Rights has
clearly established on several occasions that various types of environmental degradation may lead toviolations of substantive human rights protected by Articles 2 and 8 of the European Convention on
Human Rights, which guarantee respectively the right to life and the right to respect for private andfamily life: such an interpretation offered by the European Court of Human Rights is now constantand consolidated (see Lόpez Ostra v. Spain, 9 December 1994; Guerra and Others v. Italy, 19
February 1998; Di Sarno and Others v. Italy, 10 January 2012, no. 30765/2008).
Thus, for example, in 1998, with the ruling Guerra v. Italy, 19.2.1998 ref. 14967/89159 the
154
155
156
157

N. Human Rights Comm., General Comment No. 36, U.N. Doc. CCPR/C/GC/36, para. 62 (2019) [HRC, General Comment No. 36].
Human Rights Council, HRC, A/HRC/RES/48/13 (18 October 2021), page 3
Ibid, p.2
United Nations General Assembly (UNGA), The human right to a clean, healthy and sustainable environment, A/RES/76/300 (28 July2022), p. 2
158
Ibid, p.3
159
http://www.dirittiuomo.it/sentenza-19-febbraio-1998

85

The ECHR broadened the area of protection under Article 8 of the Convention by stating that 'desatteintes graves à l'environnement peuvent toucher le bien-être des personnes et les priver de lajouissance de leur domicilie de manière à nuire à leur vie privée et familiale'. 160without even thepotential for damage to health.
Furthermore, in the 1994 Lopez-Ostra v. Spain judgment, it established the principle that "il va
pourtant de soi que des atteintes graves à l'environnement peuvent affecter le bien-être d'une
personne et la priver de la jouissance de son domicile de manière à nuire à sa vie privée etfamiliale, sans pour autant mettre en grave danger la santé de l'intéressé"161 . In essence, the ECHR
stated that even if there was no danger to health, as is the case here, there would still be a violationof human rights and in particular of Article 8 of the Convention.
Even more recently, in the Cordella and Others v. Italy decision of 24/01/2019, it was ruled that
there is an infringement of the right to respect for private and family life, under Article 8 ECHR,
when the persistence of a situation of environmental pollution endangers the health of the applicantsand, more generally, that of the entire population living in the areas at risk, compromising the rightto the full enjoyment of their private and domestic dimension. In the same judgment, the Court
specified that the breach of the commitment undertaken by the Contracting States to protect therights deriving from the ECHR is also to be found in the omissions and negligence attributable to
the State for not having prevented or stopped the conduct, attributable to private individuals, which
infringes the ECHR.
With the 2009 Tatar v. Romania judgment162 the ECHR expressly recognised, among the subjective
positions protected by Article 8 of the Convention, not only the rights to respect for one's home andprivate life, but more generally the right to enjoy a healthy and protected environment, derived froma coordinated reading of international instruments and European and international case law.
It was, therefore, the ECHR, through an evolutionary reading of the Convention, that delineated theenvironment as an autonomous protected legal asset, understood as a synthesis of the factors thatallow and favour the life and development of living beings.
It should be added that Articles 2 and 8 of the ECHR, as interpreted above, must be analysed inparallel with Articles 2 and 7 of the Charter of Fundamental Rights of the European Union(CFREU) - also known as the 'Nice Charter' - which also protect the right to life and the right torespect for one's home and one's privacy.
160"serious damage to the environment may impair the well-being of persons and deprive them of the enjoyment of their home in such a way
as to impair their private and family life".
161"it goes without saying, however, that serious damage to the environment may affect a person's well-being and deprive him of theenjoyment of his home in such a way as to impair his private and family life, without, however, seriously endangering his health".
162
https://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=001106021&filename=CASE%20OF%20T%C4%82TAR%20v.%20ROMANIA%20%20[Italian%20Translation]%20by%20UFTDU%20(Unione%20forense%20per%20la%20tutela%20dei%20diritti%20umani).pdf

86

family life. It must be pointed out that the Nice Charter is directly applicable in our legal system,
since, pursuant to art. 6 TEU (Treaty on European Union), it has the same legal value as treaties, thescope of which is far greater than that of an ordinary international treaty, since they come from a
supranational system integrated with that of the Italian Member State and constitutionallyrecognised pursuant to art. 11 of the Constitution. The Nice Charter thus becomes EU law andcarries with it all the consequences deriving from the principle of the primacy of EU law in terms of
direct effectiveness and precedence over national legal systems.
Not only that: the scope of the provisions of the Nice Charter must be coordinated with theinterpretation offered by the European Court of Human Rights with reference to those rights thatfind correspondence in both supranational charters by virtue of the principle of equivalence set out
in Article 52 of the same CFREU (Nice Charter) which states that "Where this Charter contains
rights corresponding to those guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as
those conferred by the said Convention. This provision shall not preclude more extensive protection
under Union law'.
Therefore, the protection of private and family life granted by the Charter of Nice, which finds
direct application in the Member States' legal systems for matters falling within the competence of
the EU, must be interpreted in accordance with the jurisprudential orientation of the European Courtof Human Rights, understanding it as a fundamental right of the individual to live in a healthy
environment without suffering adverse consequences on his or her daily activities due to pollution.
It is worth adding, however, that the protection of fundamental rights and the Paris Agreement arealso at the heart of the aforementioned judgment of the Court of Appeal of The Hague, upheld by
the Supreme Court of the Netherlands, in Urgenda Foundation v. State of the Netherlands in which
the Dutch judges held that the aforementioned Articles 2 and 8 of the European Convention on
Human Rights (ECHR) were applicable to the case.
The Court of Justice of the European Union (CJEU) also endorsed the principle of the relationshipbetween climate policy, sustainable energy and the right to life as early as 2001: "the use ofrenewable energy sources [...] contributes to the reduction of greenhouse gas emissions, which areamong the main causes of climate change that the European Community and its member states arecommitted to combating [...] It should be noted that this policy is also designed to protect people's
health and lives"163 . The CJEU, therefore, ruled that climate policy can be opposed to the principleof the free market because climate policy (which aims to protect life and health) has a higher
purpose than the objective of the free market itself.
163

PreussenElektra/Schhleswag AG, C-379/98 of 13 March 2001, ECLIL:EU:C:2001:160

87

23.3. ENVIRONMENTAL/CLIMATIC DISASTER AND HUMANITARIAN PROTECTION
IN THE JURISPRUDENCE OF THE ITALIAN COURT OF CASSATION
Finally, it is recalled that also the Italian Supreme Court of Cassation (recalling the citedinternational precedent of the United Nations Human Rights Committee in its decision of 14
October 2019 on the case Teitiota v. New Zealand) recognised the inseparable link between climatechange, environmental disasters and human rights violations. This occurred with the order of Cass.
civ., sect. II, 24 February 2021, no. 5022 where it was stated that "for the purposes of therecognition, or denial, of humanitarian protection provided for by Article 19, paragraphs 1 and 1.1,of Legislative Decree no. 286 of 1998, the concept of "ineliminable core constitutive of the status of
personal dignity", constitutes the minimum essential limit below which the individual right to lifeand dignified existence is not respected. This limit is to be assessed by the court of merit not onlywith specific reference to the existence of a situation of armed conflict, but also with regard to any
context that is, in concrete terms, capable of exposing the fundamental rights to life, liberty andself-determination of the individual to the risk of being reduced to zero or reduced below the
aforementioned minimum threshold, expressly including - if its existence is concretely recognised ina given geographical area - the cases of environmental disaster, as defined by Article 452-quater of
the Criminal Code climate change and the unsustainable exploitation of natural resources'. The
Court of Cassation, therefore, attributing the situation in the Niger delta (from where the person
applying for humanitarian protection came from) to the case of environmental disaster under Article
452-quater of the Criminal Code. because of the "serious situation of environmental disruption, due
to the indiscriminate exploitation by oil companies", clarified that among the conditions of
unsustainable impairment of fundamental human rights (which allow the recognition ofhumanitarian protection), there is not only armed conflict, but also those situations due toenvironmental degradation, exploitation of natural resources determined by man and climate changethat endanger the right to life, understood as the minimum complex of rights to health, social
existence, family, security and dignity.
The jurisprudence of the Supreme Court is now consolidated in this sense: see, most recently, Civil
cassation, sez. lav., 22/06/2022, no. 20121 where it reaffirmed the principle whereby, for the
purposes of recognising the humanitarian protection of a foreign citizen, the concept of"ineliminable core constituent of the statute of personal dignity constitutes the minimum essential
limit below which the individual right to life and dignified existence is not respected, which "mustbe assessed by the judge of merit not only with specific reference to the existence of a situation ofarmed conflict, but also with regard to any context that is, in concrete terms, capable of exposing
the fundamental rights to life, liberty and self-determination of the individual to the risk ofannihilation88

or reduction below the aforesaid minimum threshold, expressly including - if their existence in agiven geographical area is concretely recognised - the cases of environmental disaster, as definedby Article 452-quater of the Criminal Code, climate change and the unsustainable exploitation ofnatural resources) or even of extreme poverty (Court of Cassation no. 15961/2021, Court ofCassation no. 20218/2021, Court of Cassation no. 5022/2021)".
23.4. CLIMATE CHANGE AND NON-STATE ACTORS
It is now widely recognised that human rights obligations and responsibilities have specificimplications in relation to climate change and are incumbent not only on states but also on theprivate sector.
During the 25th Conference of the Parties in Madrid in 2019 (COP 25) under the UN Climate
Convention, the so-called 'Climate Ambition Alliance' was established164 . In the 'Climate Ambition
Alliance' state and non-state actors have committed themselves to achieving net zero CO2emissions by 2050, which are necessary to meet the climate goals of the Paris Agreement. The
official documents on this alliance of state and non-state actors mention, among other things, thatcountries cannot take on this task alone, that non-state action is necessary to achieve the goal of theParis Agreement, and that this requires the latest scientific findings.
Under the auspices of the United Nations, the Race to Zero initiative was developed to achieve thenecessary expansion of the group of 'non-state actors' in the Alliance for Climate Ambition as
quickly as possible. The Race to Zero initiative comprises a set of global networks that havedeveloped protocols and emission reduction guidelines for non-state actors. Based on scientificfindings, these protocols and guidelines present, among other things, what companies should do to
reduce greenhouse gas emissions caused by their activities and products.
As clarified by Eni in the answers published on the company's website to the pre-assembly
questions in preparation for the 2023 Shareholders' Meeting, "At the moment, Eni is not a member of
the UN 'Climate Ambition Alliance: Race to Zero', because although it has implemented adecarbonisation strategy that is challenging in terms of targets and includes all supply chain
emissions related to products sold (Scope 1, 2 and 3), it has decided not to meet all therequirements of the initiative. In particular, it is currently not possible to certify Eni's targets as'science based', as there is no approved and shared target setting methodology for the O&G sector'.
(p.126).

164https://climateinitiativesplatform.org/index.php/Climate_Ambition_Alliance:_Race_to_Zero#:~:text=It%20is%20the%20UN%2Dbacked,thrive%20in%20spite%20of%20them

89Nonetheless, "Eni recognises and supports the role of the Intergovernmental Panel on Climate
Change (IPCC), as the main international body for the study and investigation of climate change,
and considers its Assessment Reports to be among the most relevant scientific sources on thefunctioning of the climate system and the anthropogenic impact on the mechanisms that regulate it".
(p.116), and in particular, "Eni supports the Paris Agreement goal of limiting the global averagetemperature increase to well below 2°C compared to pre-industrial times, pursuing all efforts tolimit the temperature increase to 1.5°C." (p.126) ENI is, therefore, universally committed to thegoals of the COP and the Paris Agreement.165
The violation of human rights is protected in domestic law, on the one hand under the constitutional
profile deriving from Articles 10 and 11 of the Constitution, and on the other hand, by the provisionof Article 2043 of the Civil Code, as will be discussed in more detail below in § 26.
Similar reasoning was recently conducted by the Dutch Court of The Hague in the climate litigation
brought by some associations and individuals against Shell166 . In its judgment of 26 May 2021, theDistrict Court of The Hague, upholding the action brought by Milieudefensie et alii, ordered Shellto reduce CO2 emissions by 45% by 2030 compared to 2019 levels through a significant change incorporate policy.
Based on the assumption that protection against the effects of climate change constitutes a 'humanright' (as, moreover, reiterated by the UN Special Rapporteur on Human Rights in 2019, according
to whom 'it is now commonly recognised that human rights norms apply to the entire spectrum ofenvironmental issues , including climate change'), the Dutch court ruled on the inadequacy of thestrategies adopted by Dutch society on CO2 emissions to prevent an imminent possible violation of
the right to life and private and family life of Dutch residents and inhabitants of the Wadden region,
based on scientific evidence and international standards, and supplemented the state regulation on
civil liability with the 'standard of care' dictated by the Paris Agreement.
The rule that was held to have been violated by the Dutch court is Article 6:162 of the Dutch Civil
Code, which provides that 'a person who commits a wrongful act attributable to him or her against
another person shall make reparation for the damage that that other person has suffered as a result
thereof', applied in conjunction with (and thus supplemented by) the United Nations Guiding
Principles (UNGP) on Business and Human Rights and the Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises (on which infra), as
well as Arts. 2 and 8 of the European Convention on Human Rights
165
166

https://www.eni.com/en-IT/low-carbon/inevitable-energy-transition.htm
Milieudefensie et al. v. Royal Dutch Shell, ECLI:NL:RBDHA:2021:5337

90

with reference to the right to life and respect for private and family life.
24. THE NEW ART. 9 AND 41 OF THE ITALIAN CONSTITUTION
24.1.

CONSTITUTIONAL

REFORM

AND

THE

DUTY

TO

PROTECTTHE

ENVIRONMENT/CLIMATE 'ALSO IN THE INTEREST OF FUTURE GENERATIONS'
The first source of law underpinning this action are Articles 9 and 41 of the Italian Constitution, as
recently amended by Constitutional Law No. 1 of 8 February 2022.
As is well known, the new Article 9 of the Constitution provides that167 :"The Republic promotes the development of culture and scientific and technical research. It protects
the landscape and the historical and artistic heritage of the Nation. It protects the environment,
biodiversity and ecosystems, also in the interest of future generations. State law regulates the ways
and forms of animal protection'.
Instead, the reformed Article 41 of the Constitution provides that:'Private economic initiative is free.
It may not be carried out in conflict with social utility or in such a way as to harm security,
freedom, human dignity, health or the environment.
The law determines the appropriate programmes and controls so that public and private economic
activity can be directed and coordinated for social and environmental purposes'.
Articles 9 and 41 of the Constitution thus reformed now serve as a fundamental exegeticalparameter for ordinary laws that, if they cannot be interpreted in a constitutionally oriented sensewith respect to the primary obligation to protect the environment 'also in the interest of future
generations', must be referred to the Constitutional Court to have them declared unconstitutional.
In this sense, the aforementioned 'injustice between the generations' can and must find in theconstitutional dictate its point of reference and element of protection both from a passive point ofview and from an active point of view, and the Court cannot but orient its decision in this sense.
In Italy too, therefore, 'future generations' become central in constitutional law. As has been said,"We are moving more and more towards a protection of those who 'have no voice', and this marks afundamental shift in constitutionalism, a change in the perspective of the Constitutions and [...] achange in the assessment of the relationship between the Constitution and the future: from the focus
on the future of the Constitutions [ . . . ] we are progressively moving to the future as a dimension tobe

167

The underlined parts are those that were introduced with the constitutional amendment in question.

91

preserve'168 .
On the other hand, the concepts of sustainability and future generations are becoming increasingly
central to European constitutionalism also "taking advantage of the permeability of contemporary
constitutions to external influences"169 .
The environment and future generations have thus become so important and central in politics andconstitutional law that for the first time since 1948, one of the first 12 articles of the Italian
Constitution, the 'fundamental principles' of the Republic, has been amended170 .
The amendment of Article 9 of the Constitution has, therefore, made explicit both an
intragenerational and intergenerational responsibility. This latter responsibility was already apparent
in other articles of the Constitution. In fact, where Article 1 speaks of 'the people', the concept of
future generations must also be traced back to it171 , and even the principles of a balanced budget(Article 81) and sustainability of the public debt (Article 97) - introduced by the 2012 constitutional
amendment - find their explanation in an implicit reference to responsibility towards future
generations (and in fact the Constitutional Court had already mentioned future generations in its
rulings, not only on the environment, but also on the budget and public spending: judgment of the
Court of Appeal of 19 December 2011, p. 6).
No. 18 of 2019 and Judgment No. 115 of 2020).
Of course, Article 9 of the Constitution now makes the intergenerational responsibility clause
explicit in unequivocal terms, expressly linking it to the protection of the environment, ecosystems
and biodiversity. All this with the further clarification that the nexus 'protection of the environmentfuture generations' finds its main and natural terrain in the management of the problem of theclimate emergency because of its ontological intergenerational temporal projection.
This choice was, moreover, long overdue to bring our country into line with European
constitutionalism, and was now almost inevitable in light of international norms, which, especiallyin the environmental and climate fields, have attained the status of customary norms of internationallaw172 .
With the constitutional reform, therefore, it is quite clear that the way is now open for Italy, too, toreach a ruling similar to that of the German Federal Constitutional Court in 2021 (Ordinance of 24
March 2021 on the168

L. Bartolucci, 'The latest path of future generations in constitutional law', AIC, Constitutional Observatory, 4/2021, ISSN:2283-

7515.
169

T. Groppi, 'Sustainability and constitutions: the constitutional state at the test of the future', in Comparative and European Public
Law No. 1, 2016.
170
I.A. Nicotra, 'The entry of the environment into the Constitution, an important signal after Covid', in Federalismi.it, 30 June 2021, p. 2.
171
D. Porena, 'The principle of sustainability. Contributo allo studio di un programma costituzionale di solidarietà intergenerazionale',Turin, 2017, pp. 155 ff. according to which 'the exercise of sovereign prerogatives could not take on only concerns linked to the present and to thecontingent needs of the citizen-voters alone because the compromise of the needs of the future generations would end up contradicting that very
notion of the people [...] which, only in its fullness and complexity, would make it the legitimate holder of sovereignty'.
172
R. Falk, 'Human Rights Horizons. The Pursuit of Justice in a Globalized World', New York-London, 2000, p. 193.

92

Bundesverfassungsgericht)173 , based on a similar constitutional provision of intergenerational
responsibility. In that case, following an appeal brought by individuals, including children,
environmental associations and the Fridays for Future movement, in the aforementioned decision
the German judges declared the incompatibility with fundamental rights of the provisions of theFederal Climate Change Act of 12 December 2019, which regulate national climate targets andpermitted annual emission quantities until 2030. In particular, Article 20 of the Grundgesetz (GG)
was taken as the reference standard, according to which 'The state shall protect, thereby assuming
its responsibility towards future generations, the natural foundations of life and animals throughthe exercise of legislative power, within the framework of the constitutional order, and of executive
and judicial powers, in accordance with law and the law'. On the basis of this, the Federal Court
ruled that the plaintiffs' fundamental rights had been violated because the government had notestablished a clear emission reduction pathway after 2030 and had allowed too many emissions
compared to the permitted amounts until 2030, thus leaving a disproportionate burden of emission
reductions on future generations. In the words of the Court, 'one generation should not be allowed
to consume large portions of the carbon budget by bearing a relatively smaller share of the
reduction effort, if this means leaving subsequent generations with a drastic reduction burden andexposing their lives to severe loss of liberty'.174 As intertemporal guarantees of liberty,
fundamental rights offer plaintiffs protection against global threats, in this case the unfair
greenhouse gas reduction burdens, which cannot be unilaterally dumped into the future. If, in fact, alarge part of the CO2 budget was already exhausted by 2030 to allow current generations a lifestyle
based on high greenhouse gas emissions, there would be a greater risk of serious loss of freedom
because there would be a shorter timeframe for the technological and social developments necessary
to keep global warming within 1.5°C. In essence, the German judge read Article 20 GG 'as a rule oftime-keeping of the German climate system and a duty to protect it in time for the benefits of future
generations: benefits of maintaining, not increasing their rights'175 . Climate protection, in this way,
becomes a question of the permanence in time of freedoms, which must be safeguarded for the
benefit of future generations.
There is no doubt that the similar intergenerational responsibility clause for environmental
protection contained in the new Article 9 of the Italian Constitution requires all powers of the173

https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html

174
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/03/rs20210324_1bvr265618en.html;jsessionid=813E8B97D5C3436
EF0D2CF80B94AA188.internet991
175
M. Carducci, 'Climate-conditional freedom and the government of time in the BVerfG ruling of 24 March 2021', in LaCostituzione.info, 3
May 2021.

93Republic, including the jurisdictional one, to preclude one generation from being allowed to"consume a large part of the carbon dioxide budget by bearing a relatively light burden, where thiswould result in subsequent generations having to bear a more radical burden and expose their lives
to a greater loss of freedom" (so the aforementioned Bundesverfassungsgericht's Climate Change
Order of 24 March 2021)176 .
As the doctrine has pointed out, in short, it is 'undeniable ... that an explicit reference in theConstitution to the 'interest of future generations' - as significantly demonstrated by the recent
judgment of 24 March 2021 of the German Bundesverfassungsgericht, which ruled on theprovisions of the Federal Climate Change Act of 12 December 2019 (Bundes- Klimaschutzgesetz KSG), applying precisely the clause of 'responsibility towards future generations' contained in Art.
20a of the Basic Law - is certainly capable of constituting an extremely important constraint for thelegislature and, therefore, a parameter of validity rich in potential for the decision-making
processes of environmental policy-making and for judicial review of them"177 .
24.2. CONSTITUTIONAL REFORM AND THE EXTENSION OF JUDICIAL REVIEW OFENVIRONMENTAL/CLIMATE INTERESTSThe new constitutional norms of the reformed Articles 9 and 41 of the Constitution therefore open
the way to a broader judicial review of environmental/climate interests also in the interest of future
generations. First and foremost in terms of active legitimacy, i.e. the inevitable broad interpretationof the conditions for access to justice for individuals and associations and NGOs with express
statutory purposes of environmental and climate protection declined in terms of intergenerational
equity, such as Greenpeace (whose statutory purpose is to 'promote the protection of nature andbiodiversity and the conservation of the environment in a socially just, equitable and ecologicallysustainable manner for the benefit of present and future generations': art. 3 of the articles ofassociation) and ReCommon ("The association aims to pursue the following purposes: a) theachievement of a society based on equity and economic, social, environmental and climate justice;b) the promotion and protection of the commons; c) the protection of the environment and climate,including the promotion of overcoming the fossil fuel economy; d) the restitution to local
communities of sovereignty over the management of natural resources": Art. 2 of the articles ofassociation).
Secondly, in terms of passive legitimacy, in the sense that 'broad access' to justice176

I.A. Nicotra, "The Entry of the Environment into the Constitution", cit., p. 4 "Social justice between generations requires, in fact, that one
generation should organise its affairs in such a way as to refrain from placing the behaviour of the offspring to come in conditions worse than thosepresent. Ultimately, the new constitutional statement recognises the importance of the non-transferable character of the environmental heritage inorder to guarantee the perpetuation of the social group against the serious danger of humanity's self-destruction. So that each generation ensures
access to the environmental heritage, preserving it intact for future generations'.
177
M. Cecchetti, La revisione degli articoli 9 e 41 della Costituzione e il valore costituzionale dell'ambiente, in Forum di Quaderni
costituzionali, no. 3/2021, 311.

94

environmental - climate of individuals and associations, which is also prescribed by international
conventions (first and foremost by the 'Aarhus Convention' on access to information, public
participation in decision-making processes and access to justice in environmental matters, to which
we will return below), must be guaranteed both with regard to states and to public and private
enterprises. In fact, it is to the latter that the constitutional legislator addresses when the new art. 41
prescribes that private economic initiative cannot be carried out in conflict with social utility or insuch a way as to damage (in addition to security, freedom and human dignity, also) 'health' and 'theenvironment', identifying in the latter public interests two precise limits, prevalent and conforming,of private economic activity, which is therefore obliged to prevent environmental/health damage,
starting with the most exasperating damage constituted by climatic prejudice.
Again in terms of passive legitimacy, it should be added that, as has been pointed out, the newparagraph 3 of Article 41 of the Constitution ('The law determines the programmes and appropriate
controls so that public and private economic activity can be directed and coordinated for social andenvironmental purposes') paves the way for a profound change in the relationship between law andeconomy in our country, foreseeing the intervention of the State aimed at orienting economic
initiative towards a new model of development (from the Welfare State to the 'Environmental State')with actions of direction and coordination of the public and private economy aimed atenvironmental protection178 .
Since state action in the field of economic production has mainly been implemented in our country
through public participation in the share capital of enterprises, in particular by the Ministry of the
Economy and Finance through the intervention of its subsidiary Cassa Depositi e Prestiti s.p.a.,there is no doubt that the action of environmental functionalisation of economic activity, now
provided for by the constitutional text, sees in this area the priority sector of intervention, with aninevitable new role for the MEF and CDP itself, in terms of selecting and managing investments inshareholdings through 'mission-oriented policies'179 .
This must necessarily be the case, in particular, in the presence of companies in which the Ministryof the Economy, by virtue of shareholdings held either directly or indirectly (precisely, through the
Cassa Depositi e Prestiti), has control over the company, exercising a dominant influence over it, asis the case with the share capital of ENI s.p.a.
25. ARTICLES. 3-TER AND 3-QUATER OF THE ENVIRONMENT CODE, ARTICLE 9
OF THE AARHUS CONVENTION
The reform of Articles 9 and 41 of the Charter has in essence constitutionalised two principles
already enunciated in the Italian legal system, contained in Legislative Decree 152/2006 andsubsequent amendments and additions, bearing, as is well known, the so-called "Italian
Constitution".
178

F. De Leonardis, The ecological transition as a system development model: insights into the role of administrations, in Diritto

95

amministrativo, 2021, 779.
179
F. De Leonardis, ult. op. cit.

96

"Environmental Code'.
On the one hand, the 'Principle of Sustainable Development' of Art. 3-quater of Legislative Decree
152/2006, as amended and supplemented, containing, as is well known, the so-called 'Environment
Code', according to which '1. Every human activity that is legally relevant under this code mustcomply with the principle of sustainable development, in order to ensure that the satisfaction of theneeds of present generations cannot compromise the quality of life and the possibilities of future
generations'.
On the other hand, the 'Principle of Environmental Action' in Art. 3-ter of the same 'Environment
Code', which provides that "the protection of the environment and natural ecosystems and cultural
heritage must be guaranteed by all public and private entities and natural and legal public or
private persons, through appropriate action that is informed by the principles of precaution,
preventive action, correction, as a priority at source, of damage caused to the environment, as wellas the 'polluter pays' principle, which, pursuant to Article 174(2) of the Treaty of the European
Unions, govern the Community's policy on the environment".
We are therefore in the presence of the constitutionalisation of the general principles of theEnvironmental Code that assign an express duty of environmental protection not only to public
entities, but also to private legal entities: a legal duty that imposes on individual entrepreneurs andprivate companies an 'appropriate action' in environmental matters, necessarily conformed to theprinciple of sustainable development and necessarily informed by the general principles of Art. 191
of the Treaty on the Functioning of the European Union (TFEU), of precaution, of preventive
action, of the correction, as a priority at source, of damage caused to the environment, as well as the'polluter pays' principle.
Hence the full justiciability of the rights of individuals and associations against business actions
conducted in a manner contrary to these principles and likely to cause environmental/climate
damage, in order to obtain the imposition of business strategies aimed at ensuring sustainable
development that will preserve people's health and the environment (including ecosystems andbiodiversity) from the detrimental consequences of climate change induced emissions.
All this, moreover, is in line with international treaties, ratified by our country, including the
aforementioned 'Aarhus Convention' (to which we will return below) which, in Articles 2 and 9,
prescribes that 'members of the public concerned' (including NGOs) must be guaranteed 'broad
access' to environmental justice, in order to initiate legal proceedings to challenge also 'actions andomissions by private individuals' made in violation of environmental law.
This opens the door, therefore, to ENI's liability and the claimants' right to bring anenvironmental/climate liability action against the same company.

9726. ARTICLE 2043 OF THE ITALIAN CIVIL CODE (AND ARTICLES 2 AND 8 OF THE
ECHR)
Going back to what has been deduced above (at § 23.4) regarding the reasoning underlying Shell'sconviction in the climatic litigation concluded with the judgment of the District Court of The Hagueof 26 May 2021 where the violation of human rights found protection in Art. 6:162 of the Dutch
Civil Code, the analogy between the aforementioned Dutch rule on civil liability and Article 2043of the Italian Civil Code, according to which 'any intentional or negligent act which causes unjust
damage to others shall oblige the person who has committed the act to compensate for the damage',is quite evident.
That Article 2043 of the Civil Code is the reference standard used to protect human rights is clear
from the jurisprudence of legitimacy and merit on this point.
In Judgment No. 21649 of 28 July 2021, the Sixth Civil Section of the Court of Cassation points outthat "it has been affirmed by this Court that the right to respect for one's private and family life is
one of the rights protected by the European Convention on Human Rights (Article 8). The
Strasbourg Court has repeatedly applied this principle also as a basis for the protection of the
liveability of the home and the quality of life within it, awarding the parties subjected to intolerable
immissions substantial compensation for non-material damage, and all this even though there wasno state of illness (Court of Cassation, Sec. 3, no. 20927, 16/10/2015, Rv. 637537). It has similarly
been affirmed that even when there is no biological damage, the impairment of the right to normalfamily life in the home and the right to the free and full exercise of daily living habits areappreciable damages in terms of non-asset damage (Court of Cassation, no. 7875, 2009). The courtof merit conformed to these principles and ascertained the existence of indemnifiable damage
related to the impairment of the right to rest, which affects the quality of life of an individual andconsequently the constitutionally guaranteed right to health. It is not a question of damage in re
ipsa, but of damage-consequence, which, according to the court of merit's ascertainment, has been
proven in terms of inconveniences suffered as a result of the difficulty of living in the home".
Even more explicit is Sentence no. 4030 of 19 February 2013, Third Civil Section, "the criminal
exoneration does not elide the civil tort and that the obligation under Article 2043 of the Italian
Civil Code, which is a general clause of neminem laedere, both in positive law and with regard to
inviolable human rights such as health, remains firm".
ENI's unlawful act is therefore manifest in all its evidence, the company's conduct having violated
at the very least Articles 2 and 8 of the European Convention on Human Rights, in addition to theother sources of law, including constitutional and community law, referred to above, so that thedefendant's conduct appears definitively 'contra ius'.
In this last regard, it is worth recalling the progressive expansion that the jurisprudence of98

legitimacy has gradually recognised the concept of the "injustice" of the damage, arriving ataffirming the compensability also of the injury of factual situations which - although not protected
through the recognition of a subjective right - are however protected by the legal system (see for theaffirmation of the principle, although relating to a different case, Civil cassation no. 9547/2020).
Just as, to all intents and purposes, the subjective legal situations of the present plaintiffs areprotected by the legal system, in the terms that have already been explained in the preceding
paragraphs and, in particular, in terms of the impact of climate change on future generations.
At the same time, it must be pointed out that the defendant's conduct is certainly to be counted
among those so-called "non iure" conducts, since the exercise of the business activity cannot be
considered as justified if it results in a de facto abuse of law - in the terms illustrated in paragraphs
17 et seq. and therefore - in total disregard of the composition of the interests at stake alreadyaffirmed upstream by the legislature according to the national and supranational regulatory sources,
recalled several times.
As to the existence of the causal link between the defendant's wrongful act and the so-called
event-damage, i.e. the impairment of the interests protected by the legal system of which thepresent petitioners are undoubtedly bearers, we shall discuss this at greater length below.
Suffice it for now to mention that the previous paragraphs documented how ENI is one of theworld's largest oil companies and emitters of greenhouse gases.
In particular, thanks to "attribution science" (cf. § 17 and §§ ff.), the contribution - and thus thehistorical responsibility - of the defendant on the cumulative emissions of CO2 and CH4 in the period
1988-2015 was reconstructed, amounting to 0.6% of global industrial cumulative emissions (Heede,2014). The database on which the work of Ekwurzel et al. (2017) is based makes it possible toattribute to ENI over the period 1980-2010: 1) between 0.309 and 0.395 ppm contribution to theincrease in the concentration of CO2 in the atmosphere; 2) between 0.0013 and 0.0037 °C
contribution to the increase in the global mean land temperature; and 3) between 0.04 and 0.21 mm
global sea level rise. The database of the study by Licker et al. (2019) shows that over the period
1980-2015, ENI contributed to ocean acidification, reducing the pH of the oceans by between
0.000365 and 0.000444.
Furthermore, according to ENI's own report 'Eni for 2019 - carbon neutrality in the long term',
ENI's absolute lifecycle greenhouse gas emissions in the year 2022 (latest useful data), amount to
419 million tonnes of CO2 eq:
Scope 1 emissions: direct greenhouse gas emissions from sources owned or controlled by thecompany;
Scope 2 emissions: indirect greenhouse gas emissions associated with the production of electricity,heat, or99

steam purchased by the company;
Scope 3 emissions: all other indirect emissions, such as emissions associated with the extraction andproduction of materials, fuels and services, including transport in company-owned or companycontrolled vehicles, waste management, outsourced business activities.
In the light of the above, therefore, Eni's decisive contribution to the occurrence of the damageevent does not appear to be in doubt, in accordance with the so-called prevailing probability or"more probable than not" criterion, which is valid in ascertaining the causal link in civil liability(see, on this point, most recently, Civil cassation, section II, no. 1, Civil cassation, section III, no. 1,
no. 2, no. 2, no. 3, no. 3, no. 4), sec. II, no. 25884/2022, according to which "on the subject ofascertaining the causal link, if the harmful event is hypothetically ascribable to a plurality of
causes, the judge of merit is required, first of all, to eliminate, from the list of possible assessable
hypotheses, those less probable (without the number of possible alternative hypotheses concretely
identifiable being relevant, given the impredictability of an arithmetic of the probative values), thento analyse the remaining hypotheses considered most probable and, finally, to choose from them theone that has received, according to inferential reasoning, the highest degree of confirmation fromthe factual elements having the consistency of clues, thus assuming the guise of prevailingprobability").
27. SUBJECTIVE IMPUTABILITY OF THE UNLAWFUL ACT TO ENI SPA AND THE'SOFT LAW' AS THE NORMATIVE PARAMETER OF FAULT
27.1. MALICIOUS IMPUTATION (AND STRATEGIES OF DISINFORMATION AND
GREENWASHING)
As is well known, in order for the wrongful act to be attributed to the defendant, it is necessary toprove that it also belongs to the defendant from a psychological point of view, in terms of 'intent' or,at least, 'fault'.
Beginning with the first subjective imputation, it does not seem unnecessary to recall that,
according to almost constant case law, for the purposes of the integration of the tort of tort, it is notnecessary that the conduct be supported by a so-called direct intent, it being sufficient even the mereso-called eventual intent.
In essence, the fact will be maliciously attributable to the agent even when the latter, although notacting with the specific aim of realising the harmful event, has nevertheless represented its
occurrence as a possible consequence of the conduct and has accepted the risk. Alternatively,
wishing to borrow Frank's well-known formula from criminal doctrine, the offender may be said tohave acted with malice aforethought when he, having been certain that the event would occur as aconsequence of his conduct, acted in any case.
In this respect, it is worth recalling once again the considerations made in the preceding paragraphs
and, in particular, in §§ 13 and 14.
100

In fact, it will be recalled that scientific publications by research institutes traceable to ENI (such as
ISVET and TECNECO), as well as various articles published by ENI itself ('Ecos' - publishedbetween the 1970s and the year 2000), already contain numerous testimonies demonstrating101the absolute awareness of the CO2/climate change issue by ENI for decades, as seen by Americanand European oil companies.
It will also be recalled how ENI is associated with the International Petroleum Industry
Environmental Conservation Association (IPIECA). An organisation that, according to the very
recent study 'Early warnings and emerging accountability: Total's responses to global warming,
1971-2021', published in October 2021 in the scientific journal Global Environmental Change, wasallegedly used by EXXON to coordinate 'an international campaign to question climate science andundermine international climate policies, starting in the 1980s'.
From the above derives at the very least ENI's absolute awareness of the relationship between CO2emissions - and, more generally, between the environmental impacts of its activity - and climatechange, which in turn are the harbingers of the consequences better described in the introduction
and on which this action is based.
It should also be recalled that the defendant company, along with all the other oil companies, triedin every way to conceal the scientific evidence of this aetiological relationship throughdisinformation campaigns carried out over the years.
It is indeed a well-known fact that since the 1970s/80s, all oil companies, including ENI, using theenormous economic power generated by the profits of their activities, have deployed a veritablestrategy of concealment on the causes and consequences of climate change (on this point, pleaserefer to § 13 where the subject is exhaustively dealt with).
Similarly, when at the beginning of the 2000s the correlation between CO2 emissions a n d climatechange could no longer be doubted, the same oil companies, again including the defendant, began to'practice' so-called 'greenwashing', i.e. to implement communication campaigns aimed at making themappear in the eyes of the public as 'sensitive' and 'active' companies in the fight against climate change(again, please refer to § 15 for a detailed discussion of the so-called 'greenwashing' phenomenon).
Therefore, the defendant's having first attempted to conceal the catastrophic results for the ecosystem
resulting from its business activity and, later - when those nefarious results could no longer be denied having tried to appear as a company devoted to environmental protection and sustainability, constitutes
proven proof that the defendant's actions belong to it maliciously.
In other words, the aquillian tort contested against ENI is nothing but the result of a precise
entrepreneurial choice on its part, carried out knowingly despite being aware of the consequencesthat its activity had - and has - for the ecosystem. All this, with the sole objective of102

maximising profits from the use of fossil fuels for as long as possible.
In light of all the foregoing considerations, therefore, the subjective element of fraudulent intent on
the part of the defendant ENI is deemed amply demonstrated.
27.2. CULPABLE IMPUTATION (AND SOFT LAW)
Without prejudice to the above-mentioned malicious intent of the wrongdoing, the case also shows
clear culpable profiles against the defendants.
Fault takes the form of a lack of the required diligence, prudence and expertise (so-called general
fault), or for failure to comply with laws, regulations, orders or disciplines (so-called specific fault,
again borrowing the dogmatic classification of criminal science).
In general, culpability consists in the failure of the agent's conduct to meet the standard ofappropriateness imposed by the legal system, whereas the failure to comply with laws, regulations,orders and disciplines represents the 'in itself' of culpability.
Therefore, all those precautionary rules, inspired by the criteria of foreseeability and preventabilityof the harmful event, which describe in modal terms the conduct necessary to avoid the occurrenceof a given event, are of decisive importance in the present case.
This category includes the set of provisions or recommendations, even if not strictly legal in origin,
better known as 'soft law'.
Orbene, che la “soft law” possa esprimere un parametro oggettivo per l’accertamento della colpa
non pare revocabile in dubbio, giacché il nostro ordinamento conosce già una forma diresponsabilità colposa che parte proprio dal mancato rispetto delle c.d. linee guida, che nerappresentano l’autentica espressione (cfr. in merito, Cass. civ., sec. II, no. 13510/2022, according
to which "on the subject of healthcare liability for medical-surgical activities, the so-called soft lawof the guidelines - although not having the value of a rule of the system - constitutes an expressionof parameters for ascertaining medical negligence, which contribute to the correct subsumption of
the concrete case in the legal case, governed by general clauses, such as those contained in articles
1218 and 2043 of the Italian Civil Code").
Now, ENI's conduct not only violates the cited articles of the Civil Code, the ECHR and theConstitution of the Italian Republic, but also other internationally recognised standards, such as the
UN Guiding Principles on Business and Human Rights, the UN Global Compact and the OECD
Guidelines for Multinational Enterprises.
On this point, already in a 2014 article published by the Turin Academy of Sciences, Professor
Sabino Cassese, former President of the Constitutional Court, highlighted how 'national law
retracts, supranational law asserts itself. International agreements multiply: European Convention
on Human Rights [...] these and other international agreements contain103

guarantee norms for the protection of citizens' rights [...] From national constitutional openings
and the development into global norms comes a third phenomenon that has been called'demystification', i.e. the process by which international human rights become effective within
national legal orders [...] In different ways, depending on the parts of the world and the countries
involved, the decisions of supranational courts regarding subjective legal situations of national
citizens are binding within the national legal order, as, for example, reflected in the SERAP v.
Republic of Nigeria decision of the African Court on Human and Peoples' Rights (ECW/CCJ/JUD
18/12, 2012), regarding the right to health, the right to an adequate standard of living and the rightto environmental protection in the Niger Delta, and has been recognised by the Mexican Supreme
Court of Justice, with reference to a decision of the Inter-American Court of Human Rights, in the
Padilla Pacheco case (912/2010) regarding the right to life, the right to personal integrity, the rightto liberty and the right to judicial protection."
As far as this litigation is concerned, the sources to which reference must be made, in order to fulfil"the court's task of advancing the protection of rights [...] as that affirmed by the Italian
Constitutional Court of the "maximum expansion of guarantees", Constitutional Court, Sentence317/2009". 180in addition to those already mentioned, are the United Nations Guiding Principles(UNGP), which constitute an authoritative and internationally approved normative instrument that
establishes and distinguishes between the responsibilities of States and those of corporations("corporate accountability") in relation to human rights.
The responsibility of states, as formulated in the UNGP, is broader than that of corporations: states
must protect themselves against human rights abuses within their territory and/or jurisdiction by
third parties, including corporations. This requires the adoption of appropriate measures to prevent,investigate, punish and redress such abuse through effective policies, laws, regulations anddecisions. The responsibility of corporations to respect human rights, as formulated in the UNGP, isa global standard of conduct expected of all corporations wherever they operate. It exists
independently of the ability and/or willingness of states to fulfil their human rights obligations anddoes not reduce those obligations.181 And it exists beyond compliance with national laws andregulations that protect human rights.182 Therefore, it is not sufficient for companies to monitor
developments and follow measures taken by states: they have an individual responsibility.
It can, therefore, be inferred from the UNGP and other soft law instruments that it is universally
180
181

S. Cassese, Accademia delle Scienze, Turin, 2014, 'End of the solitude of constitutional courts, or the porcupine's dilemma'.
UNGPS, Principle 11, page 13. Available here:
https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf
182
Ibid

104

recognised that companies must respect human rights. This includes the human rights enshrined in
the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights and other 'internationally recognised human rights', including
the ECHR. For example, the OECD Guidelines for Multinational Enterprises (the OECD
Guidelines) state the following: "Enterprises should, within the framework of the laws, regulations
and administrative practices of the countries in which they operate, and in consideration of relevantinternational agreements, principles, objectives and standards, give due regard to the need toprotect the environment, public health and safety, and generally to conduct their activities in amanner that contributes to the broader objective of sustainable development. In particular,
companies should [...] Consistent with the scientific and technical understanding of the risks, where
there are threats of serious damage to the environment, also taking into account human health andsafety, not use the lack of full scientific certainty as a reason for postponing cost-effective measures
to prevent or minimise such damage."Companies, including ENI, must therefore respect human rights. This means that they should not
only avoid violating human rights, but also address negative human rights impacts in which they are
involved. Addressing negative human rights impacts means that measures must be taken to prevent,
limit and, if necessary, address their impacts. It is a global standard of conduct expected of allcompanies wherever they operate. This is not an optional responsibility for companies, but applies
everywhere, regardless of the local legal context and is not passive: 'Respect for human rights is nota passive responsibility: it requires action on the part of companies.
It applies to all companies regardless of their size, sector, operating environment, ownership andstructure. However, the extent and complexity of the means by which companies assume this
responsibility may vary depending on these factors and on the severity of the negative impacts on
the company's human rights. The means by which an enterprise assumes its responsibility to respecthuman rights will be proportionate to, among other factors, its size. The severity of impacts will be
judged by their scale. The means by which an enterprise assumes its responsibility to respect humanrights may also vary depending on whether, and to what extent, it conducts business through a
corporate group or individually.
The UN Human Rights Council also states that 'markets function optimally only if they areembedded in rules, customs and institutions [...] Indeed, history teaches us that markets pose thegreatest risks - to society and business itself - when their reach and power far exceed the reach of
the institutional foundations that enable105

them to function smoothly and ensure their political viability. This is such a moment and thegrowing allegations of corporate-related human rights violations are the canary in the coal mine,signalling that all is not well. The root cause of the corporate and human rights situation today liesin the governance gaps created by globalisation - between the scale and impact of economic forces
and actors and the ability of corporations to manage their negative consequences. These
governance gaps provide the permissive environment for wrongful acts by corporations of all kinds
without adequate sanction or redress. How to reduce and ultimately close human rights gaps is our
key challenge .183
From this it follows that, in addition to States, corporations also have a responsibility to prevent
human rights violations in the course of their activities: 'The framework is based on differentiatedbut complementary responsibilities [...]: the State's duty to protect against human rights violations
by third parties, including corporations; the corporate responsibility to respect human rights [....]
Each principle is an essential component of the framework: the State's duty to protect because it isat the very core of the international human rights regime; the corporate responsibility to respect
because it is the basic expectation society has of business'.
A form of self-regulation is, therefore, necessary because in a globalised world, nation states are
not able to combat this excess of increasing human rights violations by multinational companies:'There is no single solution for institutional misalignments in business and human rights. Instead,all social actors - states, companies and civil society - must learn to do many things differently'.
For this reason ENI is legally bound by its code of ethics, which forms the basis of the company's
Organisation, Management and Control Model in accordance with Legislative Decree 231 of 2001,
stating that: "ENI is committed to ensuring respect for internationally recognised Human Rights in
its own activities and those of its business partners, in line with the United Nations Guiding
Principles on Business and Human Rights (UNGP) and the OECD Guidelines for Multinational
Enterprises. Eni's commitment to comply with international human rights treaties and standards is
expressed in the Eni Declaration on Respect for Human Rights and is also embedded in other key
documents of the company's internal regulatory system. Eni's approach to Human Rights is also
confirmed in the Global Framework Agreement on International Industrial Relations andCorporate Social Responsibility renewed in 2019 and in compliance with the Voluntary Principles
on Security & Human Rights. Eni is determined to contribute positively to the achievement of the
Sustainable Development Goals,
183

Ruggie 2008: Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the right todevelopment.

106

supports a low-carbon and socially just energy transition and is among the signatories of the Paris
Pledge supporting the goals contained in the Paris Agreement', must be held legally bound to theprohibition of human rights violations, even if a certain conduct is not sufficiently regulated at thenational and international level due to the lack of national and international agreements,
instruments and resources: a company, in particular of the defendant's significance, always has an
obligation to prevent its activities from leading to wrongdoing and in particular human rights
violations.
Environmentally, ENI has also committed to act on the targets set by the Paris Accords, whichurged the private sector to do more to reduce emissions: '13. Welcomes the efforts of all nonstakeholder stakeholders to address and respond to climate change, including those of civil society,the private sector, financial institutions, cities and other sub-national authorities; 135. Calls on the
non-stakeholder stakeholders referred to in paragraph 134 to intensify their efforts and support
actions to reduce emissions [...]"184 .
The UN Guiding Principles were adopted with the support of the UN Human Rights Council in
2011. They serve to incorporate and elaborate the basic principle that, in addition to states,
companies also have independent obligations to prevent human rights violations.
In particular, they state that:● The responsibility to respect human rights is a global standard of conduct that all companies

are obliged to respect;● Addressing negative consequences in the area of human rights means that measures must be

taken to prevent, minimise and, if necessary, remedy these consequences;● companies are not allowed to undermine the ability of states to fulfil their human rights

obligations;● Therefore, companies must prevent their activities, products and services from causing

negative consequences for human rights;● the larger the company and the severity of the impact (scale, scope and degree of

irreversibility), the greater the responsibility to prevent these negative consequences;● preventive or mitigating measures must be taken even in the event of potentially serious

consequences.
Now, there is no doubt that the defendant company - i.e. the leading Italian company bycapitalisation (at least until a few years ago), one of the most important oil producers
184

UNFCCC 2015 COP21 Adoption of the Paris Agreement, p.19

107

in the world and among the largest companies in which the Italian State has a shareholding embodies to perfection that 'model agent' from whom compliance with the aforementioned
precautionary rules could certainly be expected. So much so that, the failure to comply with them,also integrates the subjective parameter of guilt, thus allowing the unlawful act to be ascribedculpably to its author.
All the more so since his position, in legal terms, qualifies as a 'position of guarantee' under both
criminal and civil law according to the criteria laid down for this purpose by the Supreme Court.
Consider, to this end, the principles affirmed by the Criminal Court of Cassation, Sec. II, sentence
no. 4633 of 1 October 2020 concerning the position of guarantee borne by natural persons and the
Criminal Court of Cassation, Sec. 3, sentence no. 32941 of 28/04/2010 Ud. dep. 08/09/2010
concerning the position of guarantee of the Municipality (owner of the road property) as civil
responsible party in the criminal proceedings; similarly cf. Civil cassation Sect. 3, Order no. 20312
of 26/07/2019 concerning the position of guarantee both pursuant to art. 2051 of the Civil Code andwith reference to the principles of "neminem laedere" on the basis of precedents already affirmed by
Sect. 3, Sentence no. 3631 of 28/04/1997 and by U. S., Ruling no. 2693 of 13/07/1976.
On the other hand, specific negligence, pursuant to Article 43 of the criminal code, also consists infailure to comply with 'disciplines', meaning the set of rules (including those of good technique) thatgovern a certain activity.
The best criminal doctrine is very clear, on this point, when it affirms, with regard to rules ofconduct: "...Not a few times the State or other authority, public or private [the bold is ours],
intervenes to fix these rules, regulating certain activities, more or less dangerous, so as to prevent,as far as possible, harmful consequences for third parties".185
The most recurring example of this is the UNI standards, which, although they are "...a set ofprovisions without general binding force", nevertheless dictate the rules of art to which humanactivity must conform in the matters they regulate186 .
With these premises, therefore, it must be concluded by acknowledging that even the so-called 'soft
law rules' as described above can contribute to qualifying the (specific) fault of the industrial
operator in relation to the damage caused by climate change attributable to it.
28. ARTICLES. 2050 AND 2051 OF THE CIVIL CODE
If, therefore, as anticipated, the violation of human rights finds internal protection in Article 2043
c.c., which is the general rule for civil law sanctioning liability for torts
185
186

Thus Antolisei, Manual of Criminal Law, General Part 7 edition, Giuffrè, p. 294
Cass. penale Sez. 3, Sentenza n. 1987 del 08/10/2014 Ud. dep. 16/01/2015 which, in motivation, opportunely specified: "This is, therefore,
a set of provisions without general scope, because they are directed to the specific purpose of regulating the analyses carried out by the owner of thewaste production plant, for the purposes of their chemical-physical characterisation, for the sole types of waste identified by the same ministerial
decree".

108

environmental liability committed by ENI from a subjective point of view, there are nonethelesstwo other provisions of the Civil Code which must also be taken into consideration in the event that,
however improbable, one wishes to object to the absence of the subjective element of noncontractual liability on ENI's part in causing the damage in question, namely Articles 2050 and
2051 of the Civil Code.
28.1. LIABILITY OF THE OPERATOR OF A DANGEROUS ACTIVITY UNDER ART.
2050 C.C.
Article 2050 of the Civil Code regulates, as is well known, liability for the performance of'dangerous activities', providing that 'anyone who causes damage to others in the performance of adangerous activity, by its nature or by the nature of the means used, shall be liable to pay
compensation, unless he proves that he has taken all appropriate measures to avoid the damage'.
From the point of view of the scope of application of the provision, as clarified by case law,dangerous activities are to be considered not only those activities qualified as such by a regulation,
but also those which, by their very nature or the characteristics of the means used, entail asignificant possibility of the occurrence of damage, having a marked offensive potential (Civil
cassation, 5 June 2002, no. 8148; Civil cassation, 30 October 2002, no. 15288). It follows that "alarge number of activities, even those not expressly regulated, but from which aggression may arise
to individual components of the environment or neighbouring assets (such as health or public
safety), may well, by reason of a recognised dangerousness, entail the application of the strict
regime of imputation of liability pursuant to Article 2050 of the Civil Code"187 . And so theapplicability of Article 2050 of the Civil Code to the exercise of activities that cause environmental
pollution has been repeatedly recognised by ordinary and administrative judges: see e.g. Cass. civ,
sect. III, 29 July 2015, no. 16052 (which affirmed the operation of Article 2050 of the Civil Code ina case in which it was alleged that the spillage of fuel from an underground tank of a service station
had polluted the nearby aquifer, contaminating the crops on a piece of land); as well as Cass. civ.
sez. I, 07/03/2013, no. 5705; T.A.R. Lombardy-Brescia sez. I, 09/08/2018, no.802 (regarding
historical contamination of polluted sites).
See also the judgement of the Regional Administrative Court of Sicily, Catania, Sec. I, 11
September 2012, no. 2117, in which the administrative judge affirmed that the liability of theoperator of ex se polluting activities is to be determined precisely pursuant to Article 2050 of the
Italian Civil Code, which, as is well known, establishes a presumptive type of liability "theeconomic operators who produce and derive profits through the exercise of dangerous activities,
insofar as they are ex se polluting, or insofar as they are users of contaminated production facilities
and a source of enduring contamination, are for this very reason obliged to fully bear the charges
necessary to guarantee the protection of the environment and the health of the

109

187

L. PRATI, Civil Law and the Environment, in NESPOR-DE CESARIS (ed.), Environmental Code, Giuffrè, Milan, 2009, 281.

110

population, in causal correlation with all the phenomena of impairment connected indiscriminately
with the industrial use of the site, burdened as such with a real burden of public relevance,
inasmuch as it is aimed at the protection of prevailing and indecisive interests of the entire
community', and which, as such, may well also be activated by individuals belonging to thecommunity.
According to the constant orientation of the jurisprudence of legitimacy, liability for the exercise of
dangerous activity pursuant to Article 2050 of the Civil Code establishes a presumption of fault on
the part of the injured party, the recognition of which only requires prior ascertainment of theexistence of the etiological link between t h e activity and the harmful event; however, the burdenof proving that all suitable measures were adopted to avoid the damage remains with the injured
party (Civil cassation 15 July 2008, no. 19449; Civil cassation 4 December 1998, no. 12307).
28.2. LIABILITY FOR DAMAGE CAUSED BY THINGS IN CUSTODY
For the same reasons, the civil liability of the 'custodian' under Article 2051 of the Civil Code,which states that 'everyone is liable for the damage caused by the things he has in custody, unlesshe proves unforeseeable circumstances, also applies in the case under consideration.
It is a rule of Romanesque derivation, being modelled on the actio de effusis et deiectis of thepraetorian matrix in Roman law of the 2nd century B.C. Already at that time, the praetor was moreinterested in the harmful consequences (to be prevented or sanctioned) than in the conduct thatcaused them.
Consider, to remain within our positive legal system, that based on the rule in question, the injured
party can therefore limit themselves to proving the causal link between the thing in custody and thedamage, while the custodian is required to provide the so-called "liberating" proof by positively
demonstrating the fortuitous event, i.e. the fact outside the sphere of custody having an autonomous
causal impulse and being absolutely unpredictable and exceptional (see, for example, Civil
cassation, section VI, 02/05/2022, no. 13729). All this with the clarification that "On the subject ofcivil liability pursuant to Article 2051 of the Civil Code, custody takes concrete form not only in theperformance on the thing of the subsequent restorative interventions, aimed at neutralising, within areasonable time, the unforeseeable dangerous elements, which have in any case occurred, but also
in a preventive activity, which, on the basis of a judgement of foreseeability "ex ante", arranges
what is necessary to prevent damage etiologically pertaining to the thing in custody" (Civil
cassation, sec. VI, 23 January 2019, no. 1725). With regard to the scope of application, case law
specifies that the liability under Article 2051 of the Italian Civil Code applies to the custodian of thething, i.e. to the person who has actual material power over it, de facto or de jure (Cass. civ.
1859/2020; Cass. S.U. 91/12019; Cass. civ. 88/5377).
The rule was used by the State to obtain compensation for environmental damage caused on
polluted sites whose remediation was deemed to be of national interest.
111

Thus, for example, in Programme Agreements concerning some of these Sites188 rules wereintroduced that recognised the State's right to have environmental damage repaired also pursuant to
Article 2051 of the Civil Code189 .
Regardless of the above-mentioned administrative practice, there is case law on Article 2051 of the
Civil Code concerning precisely damage caused through natural resources.
In tal senso si consideri il caso trattato dalla Suprema Corte quando, ancora nel 2004, ha affermato
la seguente massima: “Poiché per configurare la responsabilità prevista dall'art. 2051 cod. civ. it issufficient the etiological link between the harmful event and the anomaly of the thing, whether
original and natural or supervening and man-made, if the owner of a fund upstream, while notaltering an existing road, increases the debris - in this case earth, stones, leaves, following theplanting of an orchard - without also carrying out the necessary works to prevent the natural
atmospheric agents, even if of considerable, but not exceptional, entity, from conveying anddragging them forcefully into the underlying property, flooding it, he is obliged to compensate theforeseeable damage deriving therefrom. (In the case in point, the Court of Cassation held that thetrial judge had correctly applied this principle, having ascertained that, although the ground was
unstable and landslide-prone, this did not justify omissive conduct on the part of the custodian of
the area, and that the protective works required of the owner of the land upstream did not consist in
the complete reclamation of the cliff on which the land was situated, but were limited to theconstruction of a retaining wall capable of providing a natural defence for the property below)".190
In that case, the damage was the result of the omission of a precautionary measure that, if taken,
would have prevented the damage from occurring due to the work of natural agents that were notinterdicted as would have been necessary.
In any event, it is necessary to take into account the fact that, under Article 2051 of the Civil Code,the injured party only has the burden of proving the causal link between the thing in custody (in thiscase the industrial plant producing the atmospheric emissions) and the damage (understood as injury
to the legal asset owned by the plaintiffs).
Given this proof, the burden of proof will be on the injured party to prove that the damage isattributable to a "fortuitous event" where by such is meant ".... a natural fact either of the injured
party or of a third party, characterised by unforeseeability and inevitability, from the objective pointof view and of causal regularity or adequacy,

188

We refer, in particular, to the Programme Agreement for the Mantua Site (31/5/2007), for the 'Napoli Orientale' Site (15/11/2007) for theBrindisi Site (18/12/2007), for the Piombino Site (21/12/2007) for the Priolo Site (7/11/2008).
189
See, for example, Art. 5 of the Programme Agreement for the East Naples Site of 15.11.2007 established that " ...in private areas thesafety and remediation works of the soil and groundwater are carried out by the persons obliged to do so because they are responsible for thecontamination thereof or to whom the environmental damage is, in any event, attributable also pursuant to Article 2051 of the Civil Code withreference to the environmental damage caused by the areas for which they have custody".
190
Civil cassation Sec. 3, Judgment No. 10649 of 04/06/2004

112

without any relevance to the diligence or lack of diligence of the caretaker'191 .
On the fact that industrial emissions into the atmosphere produce climate change with theconsequent damage to individuals, their property and their rights, we will argue, with ample
scientific references, below: it will therefore be up to the defendants to attempt to prove the'fortuitous event' with the characteristics required by the aforementioned ruling of the United
Sections.
29. CAUSALITY
29.1. IN GENERAL
We have left the subject of causality for last, certainly not because of its residual importance (on thecontrary), but rather so that it can be better appreciated in the light of all the considerations made sofar.
In fact, it remains to be clarified what are the legal reasons why ENI itself, on the one hand, and theAdministrations and/or State Bodies that, for various reasons, control its activity, on the other, canbe called to answer, before an Italian Judge, for a planetary phenomenon as complex as climatechange.
One might, in fact, be tempted to consider on the one hand unconnectable to ENI's (or ENI's alone)
conduct the above-mentioned phenomenon, which is articulated in a myriad of aspects, eachendowed with its own autonomy, hardly attributable to the conduct of a single subject; on the other
hand, it is not possible to censure (for lack of jurisdiction or for lack of a civil obligation on the partof the State towards individuals to adopt measures to prevent climate change) the activities of theGovernment or of the public administration carried out jure imperi, since it is unanimously
recognised that the phenomenon of global warming is transnational and requires collective
measures in order to be prevented or contained.
In order to provide adequate answers to these albeit legitimate questions, it is necessary to reckon
with the notion of causality (including omissive causality) and with the positive discipline ofconcurrence of causes in relation to liability for damages referable thereto, as well as with thejurisprudential arrears that have so far developed in other Community legal orders, where similar
questions of law have already been addressed and decided.
The principle of causality is inherent in the paradigm of civil liability, especially non-contractual
liability under Article 2043 of the Civil Code.
Indeed, this rule is built upon it when it states that the obligation to compensate arises from 'any
wilful or negligent act that causes unjust damage to another'.
To cause means to cause: hence one is liable for damage when and to the extent that it has beencaused by wilful or negligent conduct.
191

Thus most recently Civil Cass S. Unite Order No. 20943 of 30/06/2022113

Indeed, in this regard, the Supreme Court has affirmed the following principle: "On the subject ofcivil liability, in order for an obligation of indemnity to arise, it is necessary to have not only adamaging event, governed by material causality, but also a consequential damage, governed bylegal causality, the attribution of which presupposes the finding of any of the normative cases
pursuant to articles 2043 et seq. of the Civil Code, all consisting in the description of a connection,
which historically links an event to conduct, things or events of another nature, connected with aparticular relationship to the subject called upon to answer, all of which consist in the descriptionof a nexus, historically linking an event to conduct, things or events of another nature, connectedwith a particular relationship to the subject called upon to answer".192
Causality, therefore, is the same as that which applies in criminal law, as the Court has had occasion
to state repeatedly, emphasising basic norms of the criminal system: "On the subject of noncontractual civil liability, the causal link between unlawful conduct and damage is governed by theprinciple set out in Articles 40 and 41 of the Italian Criminal Code, according to which one event is
to be considered caused by another if the former would not have occurred in the absence of thelatter, as well as by the so-called adequate causality criterion, on the basis of which, within thecausal series, the first would not have occurred in the absence of the latter, on the basis of which
one event is to be considered caused by another if the former would not have occurred in theabsence of the latter, as well as by the criterion of the so-called adequate causality, on the basis ofwhich, within the causal series, only those events must be given prominence that do not appear - toan "ex ante" assessment - wholly implausible; It follows that, for the purposes of attributing theharmful event to a certain conduct, it is not sufficient that a sequence relationship exists between
the antecedent and the consequential datum, but rather that this relationship must integrate theextremes of a possible sequence, in the same way as a calculation of statistical regularity, whereby
the event appears as a consequence that cannot be unforeseen from the antecedent"193 .
It should also be specified that damage caused by mediated causality is also indemnifiable,according to the rule whereby "causae est causa causati": "On the subject of the indemnifiability ofdamage resulting from an unlawful act (or from breach of contract, in the case of contractual
liability) the causal link must be understood in such a way as to include in the indemnity also
indirect and mediated damage that appears as a normal effect according to the principle of so-calledcausal regularity"194 .
In our case, it is ENI itself that declares the tortious act of emitting into the environment annually,
through its plants and the marketing of petroleum products, huge quantities of climate-changeproducing gases.
In this qualitative-quantitative perspective, therefore, ENI is among the first industrial players,internationally, to emit the largest quantities of gases responsible for global climate change if it istrue that, for example, in 2021 it alone emitted more tonnes of CO2 than the rest of Italy195 .
114

192
193

Thus Civil Cass. Sec. 3, Judgment no. 4043 of 19/02/2013.
Thus, for example, Civil Cassation, Sec. L, Judgment No. 8885 of 14/04/2010 and the same judgment Sec. U, Judgment No. 24408 of
21/11/2011, which will be discussed shortly.
194
Thus Civil Cass. Sec. 3, Judgment No. 15274 of 04/07/2006
195
See § 18115

In this regard, wishing to pursue the discussion of the causal link according to the disciplineborrowed from criminal law, it does not seem pointless to recall how Eni's aetiological contribution
to climate change also benefits from the so-called 'law of hedging', according to the well-known
model of subsumption under scientific laws, cleared by the well-known 'Franzese' sentence andconsolidated with the equally well-known 'ThyssenKrupp' sentence196 .
In fact, the causal relationship between the use of fossil fuels and climate change does not appear to
be in doubt, since it is based on so-called 'universal' scientific laws, which make it possible to affirm
with certainty or at least with a high degree of rational credibility or logical probability that theoccurrence of climate change is causally linked to the emission of greenhouse gases, such as those
constantly emitted into the environment by Eni, as the company itself has declared197 .
In the present case, therefore, it appears possible to consider that the causal link between ENI's
conduct in emitting altering gases and the 'climate change' event has already been demonstrated on
the basis of the consolidated scientific knowledge and the absence of alternative causal paths
capable of explaining the phenomenon.
All this without prejudice to the fact that in the matter of ascertaining the causal link in the context
of civil liability, the standard of proof remains that of the so-called 'prevailing probability', even in
the hypothesis of several concurrent causal factors in the occurrence of the event.
In particular, as recently reiterated by the Supreme Court, 'where the harmful event is hypotheticallyattributable to a plurality of causes, the criteria of "prevailing probability" or "more probable thannot" must be applied; therefore, the court of merit is required, first of all, to eliminate the least
probable hypotheses from the list of assessable hypotheses (without the number of possible
hypotheses that can be concretely identified being relevant, given the unpredictability of anarithmetic of probative values), then to analyse the remaining hypotheses considered more probableand, finally, to choose from them the one that has received, according to inferential reasoning, thehighest degree of confirmation from the factual elements having the consistency of evidence, thus
assuming the role of prevailing probability" (cf. Cass. civ, sec. III, no. 25884/2022, cited above).
In the light of all the above, therefore, even if we do not wish to adhere to the strictest evidentiarystandard of criminal law, which is in any case deemed to exist, the causal link between ENI's active
conduct and t h e climate change event can be deemed to be demonstrated in the present
196

As is well known, these are, respectively, the judgments: Cass. pen., Sez. Un. of 10 July 2002, No. 30328 and Cass. pen. Sec. Un. of
04/04/2014, no. 38343 of 04/04/2014 that affirmed the following principle of law, albeit referring to omissive causality "in the improper omissive
culpable offence, the causal relationship between the omission and the event cannot be deemed to exist on the basis of the statistical probability
coefficient alone, but must be verified on the basis of a judgement of high logical probability, which in turn must be founded not only on a logicaldeduction reasoning based on scientific generalisations, but also on an inductive judgement based on the analysis of the characterisation of thehistorical fact and the particularities of the concrete case".
197
On the so-called scientific laws of coverage, please refer to the first part of the act, where all international scientific studies demonstrating
the aforementioned causal link are reported and discussed.

116

judgement at least by virtue of the aforementioned criterion of prevailing probability, sufficient in
itself to configure the tort of tort in tort.
29.2. CONCAUSAL PROFILES
A final clarification is necessary with regard to the regulation of concauses.
Of course, ENI's emissions are not alone in causing climate change, as it is a phenomenon that, bydefinition, has a multiplicity of causal factors, partly human and partly natural.
However, it is precisely for this reason that ENI, since its conduct was concausal with respect to theclimate change, can be held civilly liable under Article 41 of the Italian Criminal Code.
The Supreme Court's most recent jurisprudence has, in fact, tempered the rigour of previous
pronouncements (such as, for example, the aforementioned Sez. U, Sentence no. 24408 of
21/11/2011)198 reaffirming the equivalence between causes and concauses: "On the subject of therelationship of causality in civil liability, on the basis of the principles set out in Articles 40 and 41of the Criminal Code if the environmental conditions or natural factors characterising the physicalreality affected by the conduct attributable to man are sufficient to determine the event of damage
independently of the conduct itself, the author of the action or omission remains relieved, in full, of
all responsibility for the event, not having put in place any antecedent with concrete causal
efficiency where, on the other hand, those conditions cannot give rise, without the humancontribution, to the damaging event, the author of the attributable conduct is liable in full for all theconsequences arising therefrom according to normality, since in such a case a proportional
reduction cannot be made by reason of the lesser seriousness of his fault, since a comparison of thedegree of aetiological incidence of several competing causes can be established only between aplurality of culpable human conducts, but not between an attributable human cause and a naturalcontributory cause that cannot be attributed. It follows that, in the face of even the slightest
uncertainty as to the relevance of a possible "con-causal" contribution of a natural factor (whateverthat may be), it is not legally permissible to rely on a "simplified" probative reasoning, such as tolead "ipso facto" to a division of liability on an equitable basis, with the relative resizing of thecompensatory "quantum"""199 .
The same principle of law was also recently affirmed by Civil cassation, section III, no. 5632 of
23/02/2023, albeit with reference to liability for medical malpractice, where the Court establishedthat, "in the event of competition in the production of the harmful event between the conduct of the
medical practitioner and an autonomous natural fact, such as a previous pathological situation of
the injured party, it is up to the198

That judgment, in fact, had sought to circumscribe the principle of causal equivalence dictated by Article 41 of the Criminal Code,allowing the Judge to "...proceed to the percentage attribution of the respective responsibilities".
199
Thus, for example, Civil cassation, sect. 3, no. 30521 of 22/11/2019. The same principle, moreover, was recently reaffirmed by Civil
cassation, sec. II, no. 5737 of 24/02/2023.

117the creditor of the professional service the burden of proving the causal link between theintervention of the doctor and the damage event in terms of aggravation of the pathologicalsituation and, once the concausal scope of the medical error has been ascertained, it is up to thedoctor to prove the absorbing and not merely concurrent nature of the external cause; if the extent
of the natural concausal contribution remains uncertain, liability for all the consequences identified
on the basis of legal causality must be attributed entirely to the author of the human conduct'.
In the same terms, moreover, the Supreme Court had previously expressed itself when it stated, on a
general level: "In the presence of facts attributable to several persons, coeval or succeeding one
another in time, all must be recognised as having a causative efficacy of the damage, if they havedetermined a situation such that, without one or other of them, the event would not have occurred,
while the rank of exclusive efficient cause must be attributed to only one of the attributable facts
when the same, by inserting itself as a supervening cause in the causal series, interrupts the
etiological connection between the harmful event and the other facts, or when the same, exhausting
the causal series from the outset and by its own force, reveals the non-existence, in the other facts,of the value of contributory cause and relegates them to the level of extraneous occasions"200 ; justas when he had also affirmed a similar principle with reference to medical negligence201 .
Finally, as mentioned above, similar questions of law have also arisen in the jurisdictional systemsof other states, similarly affected by legal actions framed within the framework of so-called climatic
litigation, where the same legal problem of identifying the causal link between conduct and event
arose.
Emblematic in this respect is the so-called 'Urgenda' case, which was recently definitively decided
by the Dutch Court of Cassation in the landmark ruling of 13 January 2020202 .
The Dutch Urgenda Foundation, also representing a large group of Dutch citizens, had brought aclass action against the State, demanding that it be ordered to reduce CO2 emissions in accordancewith its international commitments. Similar to the present case, the cause of action in that action
was based, among other arguments, on the high level of Dutch emissions and the fact that thiswould lead to serious human rights violations for future generations due to the resulting increase intemperatures.
In its judgment at first instance, T h e Hague Tribunal upheld the claim of the plaintiffs and,accordingly, ordered the Dutch State to reduce total greenhouse gas emissions by 25%.
200
201
202

Thus Civil Cass. Sec. 1, Judgment No. 92 of 04/01/2017.
See e.g. Civil Cassation, Sec. 3, Judgment No. 2335 of 16/02/2001.
Below are the case law references of the judgments on the merits and legitimacy of the case, using the identification criteria used by
Dutch doctrine: District Court of The Hague, Urgenda v The State of the Netherlands, ECLI:NL:RBDHA:2015:7145, 24 June 2015; Court ofAppeal of The Hague, Urgenda v The State of the Netherlands, ECLI:NL:GHDHA:2018:2591, 8 October 2018; Court of Cassation,
ECLI:NL:HR:2019:2007, 13 January 2020.

118

compared to 1990 emission levels. The decision was then upheld on the merits also on appeal, while
in cassation all procedural issues concerning the Urgenda foundation's legal standing andjurisdiction were definitively rejected.
Of interest for our purposes are the arguments with which first the Court of First Instance, and thenthe Court of Appeal, rejected the defendant state's plea that no causal conduct could be attributed to
it in relation to a global phenomenon to which it contributed at least 0.5% of global emissions203 .
However, according to the Hague Tribunal, the fact that the Netherlands emitted fewer greenhousegases than other states could not, in any case, avoid the Dutch State's obligation to reduce them andtake the necessary precautions to protect the rights of its citizens. Moreover, the court of first
instance continued, any release of greenhouse gases into the environment, no matter how small,contributes to an increase in the level of CO2 in the atmosphere and, consequently, the risk ofclimate change204 .
In the light of all these considerations, therefore, the Dutch court of first instance considered that thecausal link (defined as 'sufficient causal link'205 ) between the State's greenhouse gas emissions andglobal climate change, with its present and future deleterious effects on the quality of life of Dutch
citizens, was present and proven in this case.
The arguments spent by the Court of Appeal on the subject were of a similar tenor.
According to the judge of appeal, in fact, the awareness that the phenomenon of change
203

Here is the passage from the judgment in which this argument is stated (§ 4.78): "After all whether or not the 2°C target is achieved will
mainly depend on the reduction targets of other countries with high emissions. More specifically, the States relies on the fact that the Dutch
contribution to worldwide emissions is currently only 0.5%. If the reduction target of 25-40% from Urgenda's claim were met the State argues that
this would result in an additional reduction of 23.7549.32 Mt CO2-eq (up to 2020), representing only 0.04 0.09% of global emissions. Starting fromthe idea that this additional reduction would hardly affect global emissions, the State argues that Urgenda has no interest in an allowance of its
claim for additional reduction".
204
This is § 4.79 of the judgment, which states: 'This argument does not succeed. It is an established fact that climate change is a global
problem and therefore requires global accountability. It follows from the UNEP report that based on the 47 van 55 27-6-2015 19:30 Rechtspraak.nl Print uitspraak http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDH... reduction commitments made in Cancun, a gap between thedesired CO2 emissions (in order to reach the climate objective) and the actual emissions (14-17 Gt CO2 ) will have arisen by 2030. This means that
more reduction measures have to be taken on an international level. It compels all countries, including the Netherlands, to implement the reduction
measures to the fullest extent as possible. The fact that the amount of the Dutch emissions is small compared to other countries does not affect the
obligation to take precautionary measures in view of the State's obligation to exercise care. After all, it has been established that any anthropogenic
greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climatechange. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In
view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution isminor, as also adjudicated mutatis mutandis in the Potash mines ruling of the Dutch Supreme Court (HR 23 September 1988, NJ 1989, 743). The
rules given in that ruling also apply, by analogy, to the obligation to take precautionary measures in order to avert a danger which is also the subjectof this case. Therefore, the court arrives at the opinion that the single circumstance that the Dutch emissions only constitute a minor contribution to
global emissions does not alter the State's obligation to exercise care towards third parties. Here too, the court takes into account that in view of afair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to amore than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in theworld'.
205
The theme is taken up in § 4.90 of the judgment, according to which 'From the above considerations, particularly in 4.79, it follows that asufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the
future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact thatthese emissions contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions havecontributed to climate change and by their nature will also continue to contribute to climate change'.

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climate is global in nature does not negate the defendant state's obligation to nonetheless take allappropriate measures within its territory, also in accordance with the general precautionary principle
established in international law206 .
Also according to the appellate court in the 'Urgenda' case, therefore, all of the Dutch State's
objections regarding the lack of a causal link in the present case had to be rejected, since such anargument - namely that the defendant cannot be held responsible for climate change since it is not
the sole (or only a minor) material cause of it and in any event shares responsibility with otherStates, which perhaps do not take any precautions to mitigate the same phenomenon - would lead tothe absurdity of denying any effective legal remedy to the plaintiffs who, among other things,
certainly cannot choose which state to sue207 .
Precisely on the basis of these grounds, the Dutch Court of Cassation - which, as recalled, set the
final seal on the dispute in January 2020 - rejected all procedural questions raised by the defendantstate regarding the Urgenda foundation's interest in bringing proceedings, on the assumption that a
reduction of emissions by the Netherlands alone would not have prevented the occurrence of thedanger of climate change for the present and future generations.
Thus, even according to the Dutch Supreme Court, even the minimal contribution of only one of theactors responsible for climate change can justify the individual's interest in bringing suit. A fortiori,
it is held that the same legal arguments can be transposed to the present case where the defendant
ENI, unlike the Dutch State, contributes to climate change with a far greater emission figure, sincein 2021 it alone emitted more tonnes of CO2 than the rest of Italy.
The fact that climate change is also caused by other contributory factors, which in the present case
may well be the climate-changing emissions of other parties, public or private, including ENI's
competitors, certainly does not exclude liability
206

The reference is to §§ 61, 62 and 63 of the judgment: '61. The State has also put forward that the Dutch greenhouse gas emissions, inabsolute terms and compared with global emissions, are minimal, that the State cannot solve the problem on its own, that the worldwide community
has to cooperate, that the State cannot be deemed the party liable/causer ('primary offender') but as secondary injuring party ('secondary offender'),
and this concerns complex decisions for which much depends on negotiations. 62. These arguments are not such that they warrant the absence ofmore ambitious, real actions. The Court, too, acknowledges that this is a global problem and that the State cannot solve this problem on its own.
However, this does not release the State from its obligation to take measures in its territory, within its capabilities, which in concert with the efforts ofother states provide protection from the hazards of dangerous climate change. 63. The precautionary principle, a generally accepted principle ininternational law included in the United Nations Framework Convention on Climate Change and confirmed in the case-law of the European Court of
Human Rights (Tǎtar/Romania, ECtHR 27 January 2009, no. 67021/01 section 120), precludes the State from pleading that it has to take account of
the uncertainties of climate change and other uncertainties (for instance in ground of appeal 8). Those uncertainties could after all imply that, due tothe occurrence of a 'tipping point' for instance, the situation could become much worse than currently envisioned. The circumstance that full scientificcertainty regarding the efficacy of the ordered reduction scenario is lacking therefore does not mean that the State is entitled to refrain from taking
further measures. High plausibility, as described above, suffices'.
207
The passage is contained in § 64, which states that "Moreover, if the opinion of the State were to be followed, an effective legal remedy fora global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have totake measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option tosummon all eligible states to appear in a Dutch court.

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of the defendant and its aetiological contribution to the aforesaid phenomenon, if it is true as statedin Article 41(3) of the Criminal Code, i.e. that the wrongful act of another person in which the preexisting or simultaneous or supervening cause may arise does not, however, exclude the causal
relationship between the action or omission and the event.
All this, without forgetting the provisions of Article 2055 of the Civil Code, according to which
where the harmful event is attributable to more than one person, all are jointly and severally obliged
to pay compensation for the damage.
Thus, to conclude on this point, ENI is civilly liable for the damage caused by climate change that it
has caused or otherwise contributed to.
Under this last profile, the most recent theories of so-called proportional causality, based on thecriterion of the increase in risk to be attributed to the subject who has been identified (or who is inany case identifiable) in the hypothesis of plural causal contributions by several subjects to theoccurrence of the harmful event, also assume relevance.
In such a case, the identified or identifiable wrongdoer shall be liable to an extent proportionate to
the increased risk related to his conduct, determined according to available scientific knowledge.
Therefore, and to all intents and purposes, ENI cannot in any event be exempt from liability even if
it accepts this theory, since the increased risk of climate change linked to its conduct is extremely
significant from a proportional point of view in light of all the considerations set out above.
Therefore, and to all intents and purposes, ENI cannot be exempt from liability even if it accepts
this theory, since the increase in the risk of climate change attributable to its conduct is extremely
significant from a proportional point of view; and this in light of all the considerations set out
above.
30. THE RESPONSIBILITY OF THE STATE AS SHAREHOLDER OF ENI
30.1.

THE INFLUENCEDOMINANT

ENI

E

SPA

OF THE

STATE

ON

ROLE OF THE ASSEMBLY ON THE

COMPANY'S CLIMATE STRATEGY
Eni, as seen above in § 20.2, is not a 'normal' joint-stock company. Eni is the State and the State is
Eni.
This is not only because the controlling shareholders of the company are the Ministry of Financeand Cassa Depositi e Prestiti, which hold 4.411% and 26.213% of the shares respectively.
On the other hand, one cannot forget, in fact, that Eni's budget is audited by the Court of Auditors,
which reports to the Presidents of the House and Senate.
We read in the annual incipit of the Court's report that 'having regard to the Presidential Decree of
11 March 1961 by which ENI, Ente Nazionale Idrocarburi, was subjected to the control of the
Court of Auditors; having regard to Law No 359 of 8 August 1992 converting,121

having regard to Decree-Law No. 333 of 11 July 1992, as amended, by which Ente Nazionale
Idrocarburi was transformed from a public entity, established by Law No. 136 of 10 February 1953,
into a joint-stock company, taking the name of Eni S.p.A.; having regard to the financial statementsof the above company for the financial year 2019, as well as the attached reports of the Board of
Directors and the Board of Statutory Auditors, transmitted to the Court of Auditors in accordancewith Article 4 of the abovementioned Law No. 259 of 1958; having examined the acts; having heard
the reports of the President of the Chamber ... 259 of 1958; having examined the acts; having heard
the Rapporteur, President of the Chamber ... and, on his proposal, discussed and deliberated on thereport in which the Court, on the basis of the acts and information acquired, reports to the
Presidencies of the two Chambers of Parliament the result of the audit carried out on the financial
management of the Company for the financial year ...; considering that, having thus fulfilled thelegal requirements, the said Presidencies may be informed, pursuant to Art. 7 of the aforesaid Law
No. 259 of 1958, the financial statements - accompanied by the reports of the administrative andauditing bodies - and the report as resolved above, which is attached hereto as an integral part;P. Q. M.
communicates, pursuant to Article 7 of Law No 259 of 21 March 1958, to the Presidencies of the
two Chambers of Parliament, together with the financial statements for the financial year ... of Eni
S.p.A. - accompanied by the reports of the administrative and auditing bodies - the joint report inwhich the Court reports the results of its audit of the financial management of Eni S.p.A. for thefinancial year in question'.
In Cassa Depositi e Prestiti's 2019 report, as in its predecessors, it still states that 'The shareholding,whether direct or indirect, is subject to the statutory limit of three per cent of the share capital(Article 6.1 of the articles of association), in implementation of Article 3 of the Decree-Law of 31
May 1994,
No. 332, converted, with amendments, by Law No. 474 of 30 July 1994, then amended by Article 3,
paragraph 5, letters a) and b) of Decree-Law No. 21 of 15 March 2012, converted, with
amendments, by Law No. 56 of 11 May 2012, which provides that companies operating, inter alia,
in the energy sector may introduce into their bylaws a maximum limit of share ownership notexceeding five per cent with respect to individual shareholders. Shareholdings in excess of three percent do not affect the exercise of property rights, but do not permit, with respect to the shares
exceeding the limit itself, the exercise of voting rights and any other rights other than property
rights. Excluded from this limit, pursuant to Article 32 of the articles of association, in accordancewith the provisions of the abovementioned Article 3 of Decree-Law No 332 of 1994, are theholdings in Eni's capital held by the Ministry of Economy and Finance, by public entities, or byentities controlled by them (such as Cassa Depositi e Prestiti SpA). The aforementioned Ministry,by virtue of the shareholding it holds both directly (with 4,34 per cent) and indirectly (with 25,76
per cent) through Cassa Depositi e Prestiti SpA (CDP SpA), a company controlled by the same
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Ministry, therefore has123sufficient votes to exercise a dominant influence in the Company's ordinary shareholders' meeting'.
Furthermore, consider that pursuant to Article 2359 of the Italian Civil Code, 'The following are
considered subsidiary companies: ... 2) companies in which another company has sufficient votes toexercise a dominant influence in the ordinary shareholders' meeting'. All this with the clarificationthat the latter provision is expressly referred to by Legislative Decree No. 175 of 19 August 2016
(approving the "Consolidated Law on Public Participation Companies") according to which "control"
is "the situation described in Article 2359 of the Civil Code".
Therefore, thanks to the company shareholdings held directly and indirectly, the MEF has sufficientvotes to exercise a dominant influence in the ordinary shareholders' meeting of Eni, which isequivalent to a situation of 'control' by the State over the same investee company.
Eni's ordinary shareholders' meeting also plays a primary role in the company's climate strategy.
Indeed, the latter approves Eni's Annual Financial Report, which includes many elements of thestrategy to achieve carbon neutrality by 2050 and in particular the verification of the progressachieved each year to meet these and related specific targets: see Annual Financial Report 2022208 .
At the same time, the same document approved by the Shareholders' Meeting includes the'Consolidated Non-Financial Statement' (pursuant to Legislative Decree 254/2016), which
extensively elaborates on the aforementioned strategy with reference to specific carbon and climate
performance indicators. This implies that the public shareholder with dominant influence approves
the annual financial report and all its related documents.
The 'Notes to the Consolidated Financial Statements' submitted for approval by the Shareholders'Meeting also elaborates on the company's climate strategy: 'ACCOUNTING STATEMENTS ANDSIGNIFICANT ASSESSMENTS MADE TO TAKE ACCOUNT OF THE IMPACTS OF CLIMATERISKS
The effects of initiatives to limit climate change and the potential impact of the energy transition
influence the accounting estimates and significant judgments made by management for the
preparation of the consolidated financial statements as of 31 December 2021. In particular, theglobal push towards an economy with reduced emissions intensity, increasingly restrictive
regulatory measures towards oil & gas activity and hydrocarbon consumption, carbon pricing
schemes, the technological evolution of alternative energy vectors, as well as changes in consumer
preferences may lead, in the medium-long term, to a structural decline in demand for hydrocarbons,
an increase in operating costs, as well as a greater risk of non-producible reserves (so-called
stranded assets) for Eni. The strategy defined by Eni envisages achieving carbon neutrality of its
operations in 2050, in line with the208

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124scenarios compatible with keeping global warming within the 1.5°C threshold; it also setsintermediate targets for 2030 and 2040, both in terms of absolute emission reductions and carbon
intensity. The scenarios adopted by company management are constructed taking into accountexisting or foreseeable policies, regulations and technological developments, and outline anevolutionary path for the future energy system, based on an economic and demographic framework,an analysis of current and announced policies and the state of technologies, identifying, among
these, those that can reasonably be expected to reach technological maturity in the horizon
considered. The price variables therefore reflect management's best estimate of the fundamentals of
the various energy markets, incorporating current and foreseeable decarbonisation trends, and are
constantly benchmarked against the views of market analysts and energy industry peers. These
scenarios underpin significant estimates and judgments regarding: (i) the assessment of theintention to continue exploration projects; (ii) the verification of the recoverability of non-current
assets and credit exposures to National Oil Companies; (iii) the definition of the useful lives andresidual values of fixed assets; (iv) the impacts on provisions for risks and charges. Please refer tothe Report on Operations - Non-Financial Statement regarding the sensitivity analyses performedon the value of reference assets considering the low-carbon scenarios indicated by international
bodies."
The approval of these documents (and others) by the Shareholders' Meeting confirms that the stateshareholder has approved Eni's climate strategy and approach to climate risk.
30.2.

THE INFLUENCEABOUTOF THE STATE (MEF

MANAGEMENT

E

CDP)

AND ADMINISTRATION OF ENI IN

RELATION TO CLIMATE STRATEGY
ENI's Bylaws209 establishes limits to the Company's shareholding by providing in Article 6.1,
paragraph 1: "Pursuant to Article 3 of Decree-Law No. 332 of 31 May 1994, converted with
amendments by Law No. 474 of 30 July 1994, no one may own, for any reason whatsoever, sharesof the Company that entail a shareholding of more than 3% of the share capital".
Paragraph 6, which follows, explicitly removes voting rights for the portion exceeding 3 per cent:"Voting rights and other rights other than equity rights pertaining to shares held in excess of the
maximum limit indicated above may not be exercised and the voting rights that would have accrued
to each of the persons to whom the shareholding limit applies are reduced proportionally, unlessthe shareholders concerned have jointly indicated in advance. In the event of non-compliance, theresolution may be challenged pursuant to Article 2377 of the Civil Code if the required majority
would not have been achieved without the votes in excess of the limit
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116maximum indicated above'.
And yet Article 32.2 of the General Provisions provides for an exemption from the aforesaid
provisions for the Ministry of Economy and Finance and entities controlled by them (Cassa
Depositi e Prestiti SpA): 'Pursuant to Article 3(2) of Decree-Law No. 332 of 31 May 1994,
converted with amendments by Law No. 474 of 30 July 1994, the shareholdings in the capital of theCompany held by the Ministry of Economy and Finance, by public entities or entities controlled bythem are not subject to the provisions of the aforesaid General Provisions. 332 of 31 May 1994,
converted with amendments by Law No 474 of 30 July 1994, the provisions of Article 6.1.6 of these
Articles of Association do not apply to the shareholding in the Company's capital held by the
Ministry of Economy and Finance, public entities or entities controlled by them'.
From this exemption (dating back to the 1994 regulations on the privatisation of Eni and other stateowned shareholdings), descends the so-called golden share attributed to the Italian government tomaintain strategic control over the companies being privatised. While it is true that (as a result ofdevelopments in European law and an infringement procedure imposed by the European
Commission) in 2012 the legislative framework was replaced by the so-called golden power
mechanism and related rules introducing limitations on purchases by certain foreign entities ofshares in Italian companies, the latter leaves unchanged the corporate structure concerning the
MEF's shares, which continues to control, either directly or through mediation, 31 per cent of Eni
SpA.
The dominant influence of the MEF and CdP over ENI is not, however, limited to the share package
and the shareholders' meeting, but goes to the 'heart' of the company's management andadministration.
Article 17.3 of ENI's bylaws regulates the appointment of the company's Board of Directors, which'is the central body of the corporate governance system', by the Shareholders' Meeting: 'Only
shareholders who alone or together with other shareholders represent at least 1% of the sharecapital or the different measure established by Consob with its own regulation...'.
Eni's board of directors consists of 9 members. Thus the MEF presents a list of 6 candidates (1 thefuture chairman and 2 the future managing director) and the private shareholders usually only a list
with 3 candidates210 . The same applies to the appointment of the company's auditors.
Thus, even if the appointment of two-thirds of the Board of Directors and among them those whom
the Board then appoints as Chairman and Chief Executive Officer is not directly by the MEF - asprohibited by Article 2449, fourth paragraph of the Civil Code -, it is clear that they are in factappointed by the Ministry and are an expression of the Ministry's vision due to the election
procedure, regulated by the Articles of Association.
As can be seen from the current composition of the Board of Directors, of the nine members, twoare executive (i.e. with management functions) and seven are non-executive (i.e. without
management functions).
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The President is appointed by the Shareholders' Meeting pursuant to Art. 18 of the Articles of
Association. If the Shareholders' Meeting has not done so, the Board of Directors does so. Due tothe dominant influence on the Shareholders' Meeting by the State, the Chairman is always chosenfrom among the 6210

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118

advisors appointed by the MEF.
In Eni there is no executive committee and therefore, pursuant to Article 24 of the articles ofassociation, the Board of Directors delegates its powers to one of its members, namely the CEO.
Since there is a two-thirds majority on the Board of Directors, it is clear that those nominated by the
MEF choose one of them to be the CEO, who has in fact already been nominated - prior to theshareholders' meeting - by the MEF (currently Claudio Descalzi).
Of the 7 non-executive directors, 6 are considered independent, and only the MEF official who sits
on Eni's Board of Directors (and is currently also the Chairman of SACE) is not considered
independent.
There are 4 committees within the Board of Directors in which only non-executive members
participate211 : Audit and Risk Committee (4 members: 2 MEF appointment and 2 private, private
chairman), Remuneration Committee (3 members: 1 MEF appointment and 2 private, MEF
chairman), Nomination Committee (3 members: 2 MEF appointment and 1 private, MEF chairman),Sustainability and Scenarios Committee (5 members: 3 MEF appointment, 2 private, private
chairman).
It should be noted, therefore, that in the Sustainability Committee the majority is MEF-appointed, as
is half in the Risk and Control Committee. Both committees deal with the climate strategy.
The Control and Risk Committee (which 'supports the Board in evaluations and decisions
relating to the System of Internal Control and Risk Management (SCIGR), as well as in thoserelating to the approval of periodic financial and non-financial reports, with appropriate
preliminary activity, as a result of which it formulates evaluations and/or opinions to the Board')
deals with climate change, as reported on ENI's website212 :"The Committee ... has also concluded the specific in-depth sessions on Eni's main business risks,
started in 2020, with reference to climate change, scenario risk, Environmental, Social, Governance(ESG) and reputational risks ... has deepened, meeting for this purpose with the various competent
corporate functions in a dedicated session, the top risk climate change in the perspective of its
impacts : i) of a financial nature, with particular reference to scenarios (Eni and IEA), to thecompany's strategy within the framework of the decarbonisation process and to the repercussions
on financial disclosure and financial statement valuations; ii) physical, in relation to the impacts on
O&G connected to the intensification of chronic and extreme climatic events, taking particular
account of the peculiarities of the territories in which Eni operates and in relation to the methods ofassessing physical risk, in terms of the safety of people, the integrity and availability of assets andthe protection of the environment; and iii) with reference to legal issues, also in light of theevolution of case law in this area..."211

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1192021.pdf

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The Sustainability and Scenarios Committee is then mainly focused on scenarios andsustainability, with particular attention on processes, initiatives and activities aimed at overseeing
the Company's commitment to sustainable development along the value chain. Particular attention
is paid to the respect and protection of rights, in particular human rights, which are the foundation
for an inclusive development of societies, territories and consequently of the companies operating
therein. Other topics covered by the Committee with respect to sustainability include: health, wellbeing and safety of people and communities; local development; access to energy, energy
sustainability and climate change; environment and resource efficiency; integrity and transparency;
and innovation. In particular, the Committee examines scenarios for the preparation of the strategicplan, the sustainability policy and its implementation in business initiatives; it monitors theCompany's positioning with respect to financial markets on sustainability issues and internationalsustainability initiatives; it examines and evaluates sustainability initiatives, also in relation toindividual projects, as well as the Company's non-profit strategy and its implementation, also in
relation to individual projects. It expresses an opinion on other sustainability issues at the request of
the Board. Article 3 of the committee regulation with regard to climate transition states that '... or
decarbonisation at both operational and product portfolio levels, and technological innovation,
green chemistry and circular economy, aimed at ensuring the creation of value over time forshareholders and all other stakeholders...'213 .
30.3. THE RESPONSIBILITY OF THE STATE (MEF AND CDP) ALSO IN THE LIGHT
OF THE 'SUBSTANTIALIST CONCEPTION' OF ENTERPRISE
The aforementioned dominant influence of the State, the Ministry of Economy and Finance andCassa Depositi e Prestiti, the only controlling shareholders of Eni S.p.A., on the shareholders'meeting and on the management and administration of the company in relation to its climate
strategy (and the consequent emissions of climate-changing gases), must however be framed within
the context of the substantiveist conception of the company and the consequent allocation of
responsibility in environmental matters.
Consider in this regard that, in the name of the 'polluter pays' principle with the correlated need forthe allocation of the negative externalities of the business activity to the subject that has benefited
from them to be effectively pursued, has led case law to accept the 'substantiveist conception' of anundertaking, elaborated in the field of competition law by the European Union case law. According
to this concept, it is in fact necessary to have regard to the 'economic substance' of the undertaking,going beyond the formal phenomenal fragmentation of the undertaking into a plurality of distinct
subjects and attributing, therefore, to all the subjects to whom the consequences of the conduct
carried out and from which they have benefited are actually attributable, the consequences of the
conduct carried out and from which they have benefited, to all the subjects to whom they are
actually attributable.
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213

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122benefit. Thus, it has been held that "the concept of an undertaking, in the context of competition
law, must be understood as referring to an economic unit from the point of view of the object of theagreement, even if, from a legal point of view, this economic unit consists of several natural or legal
persons and if that economic entity consists of a unitary organisation of personal, tangible andintangible elements which pursues a specific economic purpose on a stable basis" (thus ECJ, 1 July
2010, Case C.407/08P, Knauf Gips KG). Thus, according to the case law that has applied theaforementioned principles in environmental matters (Council of State, sect. IV, 6 April 2020, no.
2301; TAR Veneto, sect. II, 13 March 2023, no. 340) - for the purposes of identifying the parties
responsible (and as such required, inter alia, to clean up a polluted site) in accordance with asubstantiveist conception of an undertaking, it is necessary not to limit the ascertainment ofresponsibility for the conduct that gave rise to the pollution to the material author of the economic
activity that constituted the source of the contamination, but to extend it to the search for thoseparties who have actual control of the source by virtue of decision-making powers or who have 'inany event made possible' the activity that gave rise to the pollution 'by virtue of the legal position
they hold within the relations with the direct polluter' and 'in the context of such situations, thehypothesis of the parent company that makes use of operating companies to carry out the businessactivity is certainly the most emblematic'. In short, "The substantive notion of an undertaking
determines that environmental responsibilities must be allocated to those entities that, over theyears, have made a profit from polluting activities, either through the distribution of dividends, or,as is more often the case, thanks to cost savings obtained through the failure to adopt adequate
environmental safeguards" (Cons. Stato, no. 2301/2020 cit.).
Therefore, applying to the case at hand the aforementioned principles on the substantiveist
conception of enterprise in environmental matters, in light of the recalled situation of dominant
influence/control by the State over the Company's Ordinary Shareholders' Meeting, of theappointment of two-thirds of the members of the Board of Directors of the Chairman and the CEO,of the enormous profits made by the State through the distribution of dividends (as recalled, morethan EUR 5.7 billion received in the 2016-2022 period alone, following the Paris Agreement), theresponsibility for ENI's climate-changing emissions must be allocated (also) to the MEF and CDP.
In conclusion, therefore, the Ministry of Economy and Finance and Cassa Depositi e Prestiti, inview of their powers and the dominant influence they have exercised over the company since its
foundation to date, cannot but be held jointly responsible for the corporate choices made in terms ofenergy-climate strategies and the resulting emissions of CO2 and other climate-changing gases.
It is worth remembering that the choices made by Eni in past decades, even before its privatisation,
have their effects on the climate to this day and will continue to123

produce them in the future: therefore, the responsibility of the state, of the Ministry of Economy and
Finance and of CdP, must be, as such, directed towards the past as well as the present and thefuture.
On the other hand, it is within the full powers and duties of the State to verify the subsidiary's
respect for the environment and the climate system through the pursuit of liability actions in theevent of Eni's failure to comply with international agreements that directly bind the Italian State inthis matter, first and foremost the 2015 Paris Agreement, including Eni's failure to take the required
precautions.
In this sense, therefore, the Italian state cannot but be co-responsible for the environmental-climatic
disaster caused in past decades, in the present time and in the future by Eni S.p.A.
31. THE PETITUM
31.1. THE DAMAGE SUFFERED BY THE PRESENT PLAINTIFFS AS A RESULT OF
THE WRONGFUL ACT OF THE DEFENDANTS AND THEIR RESPECTIVE CLAIMSFOR DAMAGESIn the light of what has been set out and will be documented in court, the climate alterations ofwhich ENI appears to be one of the architects, and undoubtedly the main Italian culprit, haveproduced and are producing very serious damage to the plaintiffs, the associations Greenpeace and
ReCommon, as well as to the private individuals acting in this case.
Hereinafter, therefore, we will briefly illustrate the prejudice for which compensation is sought withreference, respectively, to each of the two groups of plaintiffs in the present case, individual citizens
on the one hand and environmental associations on the other.
31.1.1. THE INJURIES SUFFERED BY THE PLAINTIFFS NATURAL PERSONSWHOSE COMPENSATION IS SOUGHT
It is entirely undisputed that the violation of the human rights to life and to an undisturbed family
life as provided for by Articles 2 and 8 of the ECHR and, therefore, the protection under Article
2043 et seq. of the Italian Civil Code invoked by the individuals in the present case, arises first of
all from the significant environmental/climatic damage caused by ENI pursuant to Article 300 ofLegislative Decree No 152/2006, as better illustrated in the preceding paragraphs on this matter.
However, as stated above, the present plaintiffs do not claim compensation for environmental
damage in its proper meaning, i.e. as a significant and measurable deterioration of natural resources,
but seek compensation for quite different items of damage.
More specifically, with regard to the plaintiffs-physical persons, there appears to be no doubt thatthey are damaged by the defendant ENI's wrongful act in that it has unequivocally caused damage
to their health and safety, as well as to their property and their functional sphere.

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Therefore, their legal action is aimed at obtaining compensation for items of damage, different anddistinct from environmental damage in the strict sense of the term, as they are entitled to do so
pursuant to Article 313, paragraph 7 of Legislative Decree no. 152/2006, for which, in any case,"the right of persons harmed by the fact producing environmental damage, in their health orproperty, to take legal action against the person responsible for protecting the rights and interests
harmed" (see Constitutional Court 01/06/2016, no. 126) remains intact.
In fact, environmental damage is a multi-offensive or multi-injury event in itself, in that it causes
further and distinct harm, relating to the assets and rights of the plaintiffs in the present case.
Moreover, in the present case, as has already been extensively examined, there is a classic case of
tort in tort in civil law, in that the defendants carried out - in a repeated and persistent manner intentional and negligent acts, which caused unjust damage to the plaintiffs, pursuant to Article
2043 of the Civil Code.
Moreover, the aforementioned paragraph 7 of Article 313 constitutes an express reference and mere
reconfirmation of the very general hypothesis of non-contractual civil liability under Article 2043 etseq. of the Civil Code.
In this regard, as, moreover, has already been documented and as will be demonstrated in any eventin the course of the proceedings, it is worth recalling that the plaintiffs-individuals are all residents
and owners of real estate in areas of the country particularly exposed to the effects of climatechange, so that the unjust damage to their property and to their health and safety are etiologicallyattributable, without interruption, to the facts, also productive of environmental/climatic damage,
unlawfully implemented by the defendants.
If, in fact, in terms of counterfactual judgement, the defendants had not engaged in theenvironmentally damaging conduct complained of herein, the private plaintiffs would certainly nothave seen the patrimonial and market value of the relevant real estate substantially diminished, as
unfortunately occurred.
Similarly, individuals, all of whom reside in areas particularly affected by climate change, would
not be exposed to extreme weather events that produce disasters and therefore endanger their healthand personal safety.
Hence the further prejudice caused by metus due to the psychological suffering deriving from thefear of exposing one's material goods, as well as safety, life and personal health and that of loved
ones to extreme and disastrous phenomena induced by climate change, also having the right toobtain compensation for the damage consequent to the alteration of daily life habits due to climatechange, also in the absence of proof of biological damage (on the damage caused by metus indisaster events, see Civil cassation, section III, sentence no. 2515 of 21 February 2002 on theSeveso disaster; Civil cassation, section III, no. 11059 of 13 May 2009, again referring to the wellknown case of the Seveso disaster), SS.UU., sentence 21/02/2002 no. 2515 on the Seveso disaster;
Civil cassation, section III, no. 11059 of 13/05/2009 always referring to the note125

Icmesa affair; Cass. pen. sez. IV, no. 13843/2020 on the Spinetta Marengo case; Cass. pen. sez. IV,
10/05/2018, no. 25547).
Hence the right of the plaintiffs to obtain compensation for the aforementioned items of damage
resulting from the violation of human rights by the defendants through the conduct complained ofherein.
In particular, Marco Lion, a resident of Senigallia, has already suffered climate change damage,having been one of the victims of the flood of 15 September 2022 when his home was flooded withthe consequent loss of documents and other property. Lion fears, in particular, that the situation ofhydrogeological instability and the occurrence of further extreme events that will increasingly put
his property and the safety of him and his loved ones at risk.
These well-founded concerns are common to all actors, even those who have not yet experienced
extreme events, but who already feel some of the effects of ongoing climate change.
Giovanna Deppi and Lucia Ruffato, mindful of the extreme event that happened in the Dolomites(Hurricane Vaia in 2018), fear that similar situations could happen again, with risk not only for theenvironment, but also for their own safety. They are also concerned about the melting of theglaciers and the severe drought situation in the mountains, and therefore increasingly fear a lack ofwater supply, as well as the occurrence of forest fires.
Vanni Destro, Giorgio Crepaldi, Lucia Pozzato and Patrizia Bartelle, all residents of Polesine,
express their concerns and are already suffering similar damage, including heat waves, the effects of
the rising salt wedge, subsidence and drought, with the consequent loss of crops and, therefore, thevalue of property, up to the risk of having to abandon their places of residence because they are nolonger habitable in the near future, with the consequent loss of affection and the economic value of
property.
The situation of Ninetto Martucci, a resident of Venice, who directly experiences the effects ofrising seas, is particular. In particular, Martucci, like all Venetians, is aware that without the use of
the so-called. Mose during the increasingly frequent 'high water' events, the ground floors of homes
would be almost unusable, if not unusable at all; on the other hand, however, the use of the Mose
has two profoundly negative effects firstly of an economic nature, because each use costs several
hundred thousand euro that could be used for another purpose; secondly, because blocking thecirculation of water poses a risk to its salubriousness, as well as to the lagoon's marine ecosystem,
which is already severely compromised, not least by extreme weather events such as tornadoes thathave caused damage to property and people, with the consequent fear for the safety of their loved
ones and their own.

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Also overlapping are the concerns of actresses Rachele Caravaglios and Maria Antonietta
D'Antonio. They are residents of Piedmont, in the area of the Po Valley, where there is constantalarm over the state of the air and heat waves, added to which there is a drought and a shortage ofwater resources, with the result that even water tankers have recently been resorted to in order tosupply some towns. Added to this, the constant drought and rising temperatures in a situation ofvery serious atmospheric particulate matter creates inevitable concern for the future and for thehealth of themselves and their loved ones, as it is scientifically proven to cause respiratory, allergic,
skin, etc. problems.
To some extent, these concerns are the same as those of Francesca Zazzera, who, as a resident of
Naples, has recently experienced at first hand the worries of extreme rainfall disasters (starting withthose in nearby Ischia in November 2022), as well as major droughts, with the inevitable onset ofworries about her future starting with the fear of having to leave her home and, therefore, having tostart her life over in another place. In the case of Noa Helffer, who resides in Acireale, Sicily,
extreme weather events, such as floods and tornadoes, have already caused damage to her home, as
well as recurring limitations to school attendance, hence the inevitable onset of concern about
possible future impacts related to such extreme phenomena, including drought and the increasing
spread of fires.
31.1.2. DAMAGES SUFFERED BY THE ASSOCIATIONS GREENPEACE ONLUS AND
RECOMMON APS FOR WHICH COMPENSATION IS SOUGHT
As regards the damages claimed by the other two plaintiffs, the associations Greenpeace ONLUS
and ReCommon APS, it is first of all worth recalling that each of them pursues a main statutory
purpose, namely the defence of the environment, the climate, as well as natural resources and local
communities (recognised as human rights under Articles 2 and 8 ECHR), in the terms set out in §§20 et seq.
Accordingly, the pecuniary and non-pecuniary damage for which specific compensation is soughtby the above-mentioned plaintiffs are nothing other than the damage caused by the infringement of
the aforesaid statutory purposes and the damage to the financial resources and assets deployed andconsumed by the same associations in order to counteract the productive activities - ex multis - ofenvironmental/climatic damage carried out by ENI over the years.
In other words, the wilful and negligent activities of the defendants, which also produced
environmental damage, caused separate financial and non-financial damage to the aforementioned'collective claimants'; damage etiologically correlated to the aforementioned adverse activities andto the need, therefore, for the same claimants, as associations statutorily entrusted with theprotection of the environment and the climate, ecosystems, natural resources and local communities,
to implement activities, initiatives and127campaigns, clearly costly, aimed at combating and containing, as far as possible, the environmental
damage caused by the defendants' activities.
Ultimately, in terms of a counterfactual judgment, if ENI had not carried out the environmentally
damaging activities at issue in the present action, the above-mentioned plaintiffs would certainly nothave suffered the non-pecuniary damage to their statutory purposes and the pecuniary damage totheir financial and economic resources, or the disbursements which, on the contrary, they have
faced in recent years, since they are engaged in onerous activities - both humanly and financially aimed at counteracting the acts of the defendants that cause environmental damage.
In support of the foregoing, reference is made to the authoritative and consolidated jurisprudence oflegitimacy according to which "the damage that can be compensated under civil law may also be in
the form of the prejudice caused to the activity concretely performed by the environmental
association for the valorisation and protection of the territory, which is affected by the goods
subject of the damaging event. In such hypotheses, there could be a harm that is also susceptible ofeconomic assessment, in consideration of any financial outlays incurred by the body for the
performance of the protection activity" (Criminal Court of Cassation section III 23/05/2012 no.
19437. In identical terms Criminal Cassation section III 26/09/2011 no. 34761).
31.2. THE REQUEST TO ESTABLISH THE LIABILITY OF THE DEFENDANTS AND
THE CONSEQUENT REQUESTS FOR AN ORDER TO PAY COMPENSATION IN
SPECIFIC FORM
On the basis of all that is set forth in the writ of summons, the plaintiffs conclude that the aforesaid
pecuniary and non-pecuniary damages result from the inadequate climate policy that ENI has
pursued and continues to pursue.
In fact, as illustrated and documented above in § 19, ENI's decarbonisation strategy to 2050 is not at
all in line with what is required by the IPCC and International Energy Agency's net zero scenarios,
and that the lack of incisive action to reduce emissions in the current decade is due to ENI's noncompliance with what the international scientific community requires to avoid catastrophic climatechange by keeping the temperature increase within 1,5 degrees (in fact, already by 2030 ENI will'consume' 71 per cent of the carbon budget allocated to it according to scientific models, and by2035 the carbon intensity of ENI's activities will still be 21 per cent higher than allowed).
ENI must, therefore, be required to put an end to this contra ius situation by pursuing the global
climate objective of the Paris Agreement, respecting, among others, the precautionary principle.
As a company responsible for more CO2 than the country as a whole, ENI will have to follow theemission reduction scenario necessary to stabilise the128concentrations of greenhouse gases in the atmosphere between 400 and 500 ppm.
It is, therefore, imperative that ENI begins to immediately and concretely reduce its emissions
because, if it continues to delay and/or postpone, the risk of not being able to avoid irreversible
climate damage will increase, and so will the associated social and economic costs.
It should be recalled, that as mentioned in § 4, the 2018 IPCC SR Report 1.5 indicates that reducing
global warming to 1.5 °C requires global CO2 emissions to be reduced by 45% by 2030 and 100%
net by 2050. This science-based recommendation was recently reiterated and reinforced in the AR6Working Group III Report of 2023.214
Hence the need to limit the aggregate annual volume of all ENI's (Scope 1, 2 and 3) atmospheric
CO2 emissions due to the industrial, commercial and energy transport products sold by it to such an
extent that the volume of emissions is reduced by at least 45% at t h e end of 2030 compared to2020 levels.
It should also be considered that, as already deduced above, the Ministry of Economy and Financeand Cassa Depositi e Prestiti are also responsible for Eni's choices and the relative effects on the
climate, taking into account the shareholdings held both directly and indirectly, their powers ofcontrol and the dominant influence they have exercised over the company from the foundation to
the present. All this considering that the new paragraph 3 of Article 41 of the Constitution (asamended by Constitutional Law 1/2022) has imposed a profound change in the relationship between
law and economics in our country, providing for public intervention to protect the environment,with actions to guide and coordinate the public and private economy aimed at environmental
protection, and a consequent inevitable new role for the MEF and CDP itself, in terms of selecting
and managing investments in shareholdings.
Hence, a request to ascertain responsibility and the consequent request for the Ministry of Economy
and Finance and Cassa Depositi e Prestiti S.p.A. to adopt an operating policy that defines andmonitors the climate objectives that Eni S.p.A. should adopt as soon as possible in line with theParis Agreement, and the scenarios developed by the international scientific community to keep thetemperature increase within 1.5 degrees.
31.3. IN PARTICULAR: PRINCIPLES TO WHICH ENI SHOULD ADAPT ITS BUSINESSPLAN
As demonstrated, therefore, global CO2 emissions will have to be reduced to zero by 2050 in order
to meet the Paris climate target to prevent dangerous climate change, and a 45% reduction in global
CO2 emissions is required by 2030.
214"In pathways limiting warming to 1.5°C (>50%) with no overshoot or limited overshoot global net CO2 emissions are reduced relative tomodelled emissions in 2019 by 48% [36-69%] in 2030 and 80% [61-109%] in 2040." IPCC, AR6, SPM, C.1.2 https://www.ipcc.ch/report/ar6/wg3/downloads/report/IPCC_AR6_WGIII_SummaryForPolicymakers.pdf

129Any lesser scenario reduces the chances of reaching the Paris target and increases the dependence
on the large-scale application of unproven CDR (carbon dioxide removal) technologies to create socalled negative emissions to offset excess emissions if the necessary 45% reduction in CO2emissions by 2030 and 100% reduction by 2050 is not achieved.
That these emission reduction scenarios can and should be demanded and imposed on ENI has been
made abundantly clear and demonstrated, explaining that these are feasible paths, both globally andfor ENI.
Oxford University's Sustainable Finance Programme and the British think tank E3G studied which
scenarios are most attractive to oil and gas companies using models simulating the international
low-carbon transition.
According to their survey report 'Crude Awakening: making oil major business models climate
compatible' it is in the interest of oil and gas companies to take an active position in the energy
transition215 .
Of the five selected and researched ways in which oil and gas companies can respond to the energy
transition, two were found to be economically viable and profitable for oil and gas companies andtheir shareholders, namely (i) actively exiting the fossil sector ('early exit') and (ii) switching to arenewable energy company ('planned transformation')216 .
'First one out', or early exit, is a scenario in which an oil and gas company reduces investments in
upstream oil and gas, and at the same time distributes profits to shareholders through dividends andshare buybacks. In this way, the company remains profitable while phasing out its fossil fuelactivities. If projects are likely to miss profit targets, they will be divested, transferring theobligation to decommission the existing oil and gas infrastructure to another party217 .
"Planned transformation" is, on the other hand, a scenario in which a company not only moves
away from oil and gas, but also grows in renewable energy.
With reactive strategies, on the other hand, oil companies will encounter large
losses218 . This concerns the following strategies:•

drift scenario: a strategy whereby a company adjusts its portfolio on an ad hoc basis toshrinking markets. The company is reactive and not anticipatory. Many

215
216
217
218

Caldecott 2018, e3g, Crude awakening: Making Oil Major Business Models Climate Compatible.
Caldecott 2018, e3g, Crude awakening: Making Oil Major Business Models Climate Compatible p.4.
Caldecott 2018, e3g, Crude awakening: Making Oil Major Business Models Climate Compatible p.16-18
Caldecott 2018, e3g, Crude Awakening: Making oil major business models climate-compatible p.16-26.

130

oil and gas companies see opportunities for gas, while it is not obvious that gas will or
should be able to compete with alternatives. This is a risky strategy where sudden and ad
hoc responses to market changes can lead to 'stranded assets' (assets that have lost theirvalue).
•

ostrich scenario: a scenario in which an oil and gas company assumes that demand for oil
and gas will continue to increase, oil prices will remain high and climate targets will not be
met. The company pays little attention to the energy transition.

•

Last one standing' scenario: a scenario in which an oil company guesses that it will be thelast company to produce oil and gas. This requires all other oil and gas companies to leave
the market first ('first out'). State-owned companies hold 80-90% of global oil and gas
reserves and can produce oil and gas at the lowest cost. According to Oxford University andE3G, it is therefore unlikely that a private oil and gas company could successfully
implement this strategy.

In short, according to this study by the University of Oxford and E3G, it is in the interest of oil andgas companies to actively take drastic measures to ensure that these companies do not risk large
losses. It is in the interest of both private oil and gas companies and their shareholders that thesecompanies either gradually but profitably wind down (early exit), or make an early and complete
transition to a renewable energy company (planned transformation).
Should the defendant find a different industrial policy economically unsustainable, the case of theDanish company Ørsted (formerly Danish Oil and Natural Gas Energy) is recalled. This company
demonstrated that it is also possible for oil and gas companies to engage in the energy transition,divest from polluting activities, and focus on renewable energy (the aforementioned 'plannedtransformation' strategy). In October 2017, this company, which is the largest energy company inDenmark, announced a name change after a ten-year process in which the company completely
divested its investments in oil and gas and started investing in renewable energy. The company
plans to reduce its greenhouse gas emissions by 96 per cent by 2035 compared to 2006 emissions
and completely cease its coal operations in the same year. The company's CEO indicated that thecompany will focus entirely on renewable energy: 'Our focus for the future will be on green growth
based on our existing business platforms in offshore wind, biomass, solutions

131

green for customers'219 .
In this way, the company wants to take the necessary steps to create a world that runs entirely on
green energy:"our vision is a world that runs entirely on green energy. We want to be a company that provides
real, tangible solutions to one of the world's most difficult and urgent problems'220 .
For the time being, Ørsted's strategy has proven successful. In an interview in July 2018, Matthew
Wright, managing director of Ørsteds, explains that the company is the fastest growing and mostprofitable energy supplier:221"The leadership strategy is to run a profitable and socially responsible business. They had toconvince people that the future business could be as successful as the old one. Ørsted is now thefastest growing and most profitable utility company, proving that it is possible to make decent
returns from renewable energy [...] People were sceptical about offshore wind power [...] New
technology is expensive to develop and we found that we were competing (competing) withestablished ways (methods) of generating and delivering energy. To force change, you have toimplement new technology and keep developing new iterations so that it improves. Wind farms are
now as cheap as using fossil fuels to generate energy and much more efficient.
This example suggests that oil companies can actually turn a profit, not a loss.
31.4. ON THE CLAIM FOR INDEMNIFICATION IN A SPECIFIC FORM UNDER ART. 2058of the Civil Code.
Article 2058 of the Civil Code provides that "the injured party may request reinstatement in a
specific form if it is wholly or partially possible". In the present case the plaintiffs are, in a different
manner natural persons from associations, all damaged, pursuant to Article 2043 of the Civil Codeby ENI's unlawful conduct. In this regard, therefore, the plaintiffs can make two types of claims:
compensation in equivalent and compensation in specific form.
Well, in the present case, in the main, it is considered that the most correct request and which canguarantee more a relief for the past, but above all a guarantee for the future, is the reinstatement inspecific form of Article 2058 of the Italian Civil Code. What is sought, in fact, is for the Court toorder ENI to cease the unlawful conduct by means of a modification of the business plan that takes
into account the aspects of law, including supranational law, devoted to the achievement of the Paris
objectives and the cessation of environmental offences.
219
220
221

Murray 2017 Oil and gas is 'no longer who we are': DONG Energy seeks to rebrand as Orsted following fossil fuel.
Murray 2017 Oil and gas is 'no longer who we are': DONG Energy seeks to rebrand as Orsted following fossil fuelMorris 2018, From Fossil Fuels to Green Energy: The Orsted Story132

From what has been amply illustrated above, it is clear, without any qualms of denial, that ENI's
current industrial plan will cause an overshoot in the future of both the global climate objective of a
1.5°C and 2°C temperature increase, due to the latency period between the moment of greenhousegas emissions into the atmosphere, including CO2, and the macroscopic manifestation of theeffects. This is why today we can say that the objective cannot be to maintain the status quo ofgreenhouse gas emissions, because this status would lead to a negative result, but it is necessary to
reduce emissions to zero today in order to see the effects tomorrow. And this cannot but passthrough the requested modification of ENI's industrial plan. Therefore, the request for compensation
in a specific form must be understood, in this case, as a request to cease the unlawful conduct byrestoring the status quo ante that will occur in the future by virtue of what is done hic et nunc.
"An order to pay damages by means of reinstatement in a specific form may be pronounced with theorder to eliminate what has been unlawfully done, which is identified as the exclusive source of acurrent damage destined to be prolonged in time". Cass. Civ., 27 September 1993,
n. 9728.
Obviously, the request for compensation for damages in equivalent form is, as jurisprudenceteaches, a minus with respect to 2058 Civil Code that must, and will, be requested only in asubordinate or, in any case, complementary manner according to the teaching of the Supreme Courtof Cassation, sentence no. 4958 of 20 August 1981 "the sentence sentencing to compensation fordamages in specific form does not exclude the right to compensation for damages in pecuniary
equivalent inherent to the period in which the damaged asset was prejudiced in its efficiency andenjoyment".
On the practicability of injunctive and specific actions to grant judicial protection to primary goodsof constitutional importance, first and foremost the protection of health and the environment, evenagainst the public administration, the jurisprudence of the Supreme Court is constant. See, e.g.,
Civil cassation, section III, 27/07/2000, no. 9893, according to which judicial protection of the rightto health with respect to the public administration may be preventive and give rise to injunctions if,even before the public work is put into operation in the prescribed manner, it is possible toascertain, considering the situation that will arise once the operation commences, that the same
situation entails a risk of jeopardising the health of the plaintiff. But also Civil cassation sez. un.,
23/04/2020, no. 8092 according to which the criterion of the injunction protection and that ofcompensation for damage in a specific form takes priority over the general action for compensation
pursuant to art. 2043 civil code and this with reference both to the right to health of constitutionalrank and the right to property. Therefore, the claim of a private individual who complains about theconcrete manner in which the production cycle is carried out, assuming that it is dangerous to healthor other fundamental rights of the person and requesting the adoption of the necessary measures to133eliminate actual and potential damage and intolerable immissions (Cass. civ. S.U. no. 11142 of
8.5.2017), with the further clarification that this jurisprudential framework is also valid andoperative in the field of environmental damage and is in accordance with the relevant legislation.
31.5. THE INIBITORY REQUEST UNDER ART. 614 bis c.p.c.
Article 614 bis of the Code of Civil Procedure states that "in the order for the performance ofobligations other than the payment of sums of money, the judge, unless this is manifestly
inequitable, shall fix, at the request of a party, the sum of money owed by the obligor for eachsubsequent breach or non-compliance, or for each delay in performing the order. The order shallconstitute an enforceable title for the payment of the sums due for each breach or non-compliance."
The object of injunctive protection is a subjective right whose injury has been caused by the
conduct of others, which, moreover, has also led to the violation of a rule of positive law that
already protected the right in question, whereas the hypotheses of expectation of preventive
protection of these types of rights are broad and varied, some directly referable to the category ofso-called self-determined rights222 .
Injunctive protection, which is a preventive type of protection because it tends to prevent therepetition or continuation of unlawful conduct, is of primary and not secondary importance, also inview of the fact that there are many areas - such as the rights to liberty, or to health and a healthy
environment - of constitutional matrix in which the person and not material goods are placed at thecentre of the protection system223 .
In essence, such an action is directed to the protection of a right, and above all to the protection in
the future of the same, on the assumption that a current injury has already occurred as well as thefurther and not secondary assumption of the serious danger of repetition and continuation of the
injury of the same. In the present case, it is quite clear that there is no exemption from also seeking
injunctive protection, given that ENI's unlawful conduct is likely, if not inevitable, to be prolonged.
@@@@@@@@@On account of all the foregoing in fact and in law, the Claimants, as set forth above, represented anddefended,citingENI S.p.A., in the person of its legal representative pro tempore, with offices in Rome, Piazzale
Enrico Mattei no. 1, the Ministry of Economy and Finance, in the person of its Minister pro
tempore, with offices in Rome, Via XX Settembre no. 97, Cassa Depositi e Prestiti S.p.A., in the
person of its legal representative
222
223

G. Basilico, La tutela preventiva, Milan, 2013.
G.N. Nardo, Systematic Profiles of Civil Injunctive Action, ESI, 2017.

134

pro tempore representative, current in Rome, Via Goito no. 4, to appear before the Court of Rome,in its known premises, section and examining magistrate designated pursuant to Article 168 bis
c.p.c, at the hearing of 30 November 2023, at the usual time, with an invitation to enter an
appearance within the term of seventy days prior to the indicated hearing, pursuant to and in theforms established by Article 166 of the c.p.c., with a warning that failure to enter an appearance orentering an appearance beyond the terms shall entail the forfeitures pursuant to Articles 38 and 167of the c.p.c, and that technical defence through a lawyer is compulsory in all proceedings before thecourt, with the exception of the cases provided for in Article 86 of the Code of Civil Procedure orby special laws, and that the defendants, if the legal requirements exist, may present a petition foradmission to legal aid, and that in the event of failure to appear in court they will be legitimately
and declarably absent, in order to hear the following
CONCLUSIONS
May it please the Honourable Court:
As a preliminary inquiry, to admit evidence by way of interpellation and witnesses on the chapters to
be formulated in the subsequent pleadings, with a request for a CTU as specified below under 1;
On the merits:1) ascertain, if appropriate by means of a court-appointed expert's report, and declare that ENI
S.p.A., the Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A., as a result ofemissions into the atmosphere of greenhouse gases, in particular CO2, from the industrial,commercial and energy transport products sold by ENI, have not complied and are not complying
with the internationally recognised climate objectives which ENI S.p.A.p.A. should have adopted inline with the Paris Agreement and the scenarios developed by the international scientific community
to keep the temperature increase within 1.5 degrees, in breach of Articles 2 and 8 of the ECHR;
2) accordingly, find and declare that ENI SPA, the Ministry of the Economy and Finance and Cassa
Depositi e Prestiti SPA are jointly and severally liable, in breach of the combined provisions ofArticles 2 and 8 of the ECHR and Articles 2043, 2050 and 2051 of the Civil Code, for all thepecuniary and non-pecuniary damage suffered and to be suffered by the applicants as a result of theconsequences of climate change which they have contributed to causing, includinga) against the plaintiffs-individuals, damage to their property and non-property damage to theproperty of their health, safety and metus, as well as for having endangered, and having continued toendanger, the same property and interests;b) against the plaintiffs Greenpeace and ReCommon, the pecuniary damage consisting of theeconomic and financial resources deployed to combat the effects of climate change and the nonpecuniary damage resulting from the frustration of their respective statutory purposes, as well as forhaving jeopardised, and having continued to jeopardise, the same assets and interests;

1353) consequently, order ENI SPA, pursuant to Article 2058 of the Italian Civil Code and Article 614
bis of the Code of Civil Procedure to limit the aggregate annual volume of all CO2 emissions into
the atmosphere (Scope 1, 2 and 3) due to the industrial, commercial and energy transport products
sold by it to such an extent that such volume of emissions is reduced by at least 45% at the end of2030 compared to 2020 levels, or to another extent ascertained in the course of the proceedings, thatguarantees compliance with the scenarios developed by the international scientific community tokeep the temperature increase within 1.5 degrees, establishing as of now, in the event of noncompliance, an order to pay the sum that the Judge will deem equitable for breach or noncompliance or delay in the execution of the measure;4) also order the Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A., pursuant to
Article 2058 of the Civil Code and Article 614 bis of the Code of Civil Procedure to adopt an
operational policy which defines and monitors the climate objectives which ENI S.p.A. should
adopt in line with the Paris Agreement and the scenarios drawn up by the international scientificcommunity to keep the increase in temperature within 1.5 degrees, within the terms indicated inpoint 3) above, establishing as of now, in the event of non-compliance, the condemnation of the
defendants to pay the sum which the Judge will deem equitable for breach or non-compliance ordelay in the execution of the measure;5) in the alternative, order the defendants to take all necessary steps to ensure compliance with thescenarios developed by the international scientific community to keep the temperature increase
within 1.5 degrees.
In any event, order the defendant to pay the costs, fees and expenses of the proceedings.
Documentary productions:
On the premise that, for reasons of procedural economy, all documents for which the reference web
page has been indicated in the course of the deed or in the notes will be produced directly in court at
the explicit request of the Ill. giudice adito (to simplify their availability, a document containing theindication of all the web pages with the relative hyperlink is attached, sub doc. 1), the following
deeds and documents are filed in court:
1) document containing web pages and hyperlinks;
2) identity documents, certificates of residence and real estate ownership of private actors;
3) Articles of Association of Greenpeace Onlus and minutes of the election of the President andlegal representative pro tempore;4) Ministry of the Environment decree recognising Greenpeace Onlus as an environmental
protection association of 20 February 1987;
5) ReCommon's articles of association and minutes of the election of the President and legal
representative pro tempore;6) technical-scientific report.
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Subject to further deduction and production within the time allowed.
For the purposes of the payment of the unified contribution under Presidential Decree No 115/02, it is
hereby declared that the value of the dispute is undetermined.
9 May 2023, Rome
Avv. Alessandro Gariglio

Avv. Marco Casellato

Avv. Matteo Ceruti

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