Prepared by Annalisa Di Ruzza, Edoardo Ferrero and Guido Ajello
1. The epidemiological emergency from COVID-19 has had extraordinary and unpredictable effects on the entire economic Italian system. Of course, it necessarily has an impact on the corporate functions responsible for the compliance of the company with administrative and environmental obligations.
It is therefore necessary to analyze how the undertakings can manage this situation whenever this context determines the impossibility of correctly and promptly fulfilling environmental obligations (e.g. communication of data, self-checks, etc.) within the prescribed time limits.
2. First of all, a fundamental distinction must be made between the deadlines that are fixed directly by law or other legislative acts and those that are determined by administrative acts.
3. Deadlines can be formulated either by referral to specific dates of each year or as a lapse of time starting from a given fact, act or behavior (e.g., many hours, days or months from the commissioning of a plant or the knowledge of potential contamination).
In general, deadlines imposed by a normative provision can be modified or extended only by a norm of equal or higher rank than the one that has established them, not by a norm of a lower rank nor by administrative acts.
In relation to these deadlines, at State level there was no generalized and systematic extension but only limited extensions or specific derogations laid down in some articles of the so-called “Cura Italia” (Law Decree 18/2020, converted by Law 27/2020), which were added to the general suspension of administrative proceedings.
This general suspension no longer applies as it ceased on May 15, 2020, with the exception of the procedures for verifying the achievement of certain obligations pursuant to Ministerial Decree January 11, 2017 in relation to White Certificates: in the latter case, in fact, the suspension was postponed to November 30, 2020 by Law Decree 34/2020, as converted by Law 77/2020.
With regard to the specific extensions, Cura Italia had set the deadlines for a series of obligations regarding waste as at June 30, 2020, including the presentation of the MUD and the communications of data relating to batteries and accumulators as well as the payment of the annual membership fee of the National Register of Environmental Managers.
Related to the subject of waste management, during the conversion of Cura Italia, it was inserted Article 113-bis, which allowed undertakings to manage waste in a temporary storage regime more easily, also considering the significant consequences deriving from the violation of the conditions of the temporary storage itself on an administrative and criminal level.
However, this provision was repealed by Article 228-bis of the Law Decree 34/2020, as converted by Law 77/20020. Therefore, Article 183, comma 1, lett. bb), no. 2) of Legislative Decree 152/2006 nowadays applies.
4. Cura Italia has also established the extension of the validity of all certificates, attestations, permits, concessions, authorizations and deeds of approval, however named, expiring between January 15 and April 15, 2020.
During the conversion, it was then specified that the above list also includes, in building matters, the terms of commencement and completion of the works included from Article 15 of Decree of the Republic President 380/2001. It has been also modified the period when the extension of validity operates: it is nowadays established that the extension applies to all the enabling acts expiring between January 31, 2020 and July 31, 2020, which will retain their validity for the ninety days following the declaration of termination of the state of emergency.
Furthermore, at the time of conversion again, it was expressly specified that this extension also applies to certified notifications of commencement of activities (SCIA), to certified notifications of usability, to landscape authorizations and environmental authorizations, as well as to the withdrawal of building permits, whatever named, issued until the declaration of termination of the state of emergency.
It should be noticed that the termination of the state of emergency was most recently postponed to October 15, 2020, pursuant to Article 1, comma 1, letter a) of the Law Decree 83/2020.
These provisions therefore constitute an extension by law of the duration of the qualifications, whatever denominated, which seems very significant because it prevents that their effectiveness fails during the emergency period. In this way, the legislator grants undertakings more time to manage their renewal or to conclude the activities underlying them.
For example, with regard to building permits, whose validity is extended until ninety days from the declaration of termination of the state of emergency, the owner obtains an “extra” time interval to conclude the work, which should make up for the delays in activities that presumably occurred due to the health emergency.
5. In absence of normative extensions or derogations, when it is not possible to comply with the deadlines for the fulfillment of administrative obligations, it would be advisable to prepare, before the deadline, internal documentation suitable to demonstrate the objective impossibility of fulfilling in order to avoid administrative and criminal sanctions.
Some of the causes of objective impossibility could be, for example, the obligation to terminate activities at the plants or administrative offices, the prohibition of moving non-fungible corporate figures, etc.
However, a point of attention must be paid to the fact that the possibility of smart working never seems to have ceased and therefore the demonstration of objective impossibility must take this circumstance into account.
6. Deadlines set by administrative acts, notably by the environmental authorizations, could be extended by the demanded authorities just in case they are not reproductive of legislative deadlines.
The extension could take place before the expiry of the date ex officio or at the request of a party.
7. A lot of local governments have adopted ex officio extensions.
An example is Decree of the General Directorate for Environment and Climate of Lombardy Region 3430/2020, concerning temporary and urgent measures relating to certain obligations envisaged in the IPPC field.
In short, Lombardy Region has approved temporary measures that aim to simplify certain burdens related to the management of IPPC installations, such as the postponement to October 31, 2020 of the deadline for sending the communication, pursuant to Article 29-decies, comma 2 of Legislative Decree 152/2006, to AIDA portal related to the emission controls data measured according to the IPPC provisions during the calendar year 2019, as well as the obligation to fill the ‘Online IPPC Forms’ when submitting applications for the IPPC release, review or modificatio
8. In case of extension upon request by a party, the latter must be proposed by the undertaking before the deadline expires (as soon as possible) and it is necessary to justify the reasons that make it impossible or extremely difficult and uncertain to comply with the deadline.
In absence of ex officio extension, related to the deadlines laid down by administrative acts, it is therefore recommended – when compliance is not possible – the preparation before the expiry of a specific application for extension, accompanied by suitable documentation for the aforementioned demonstration.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti