The boundaries of liability for climate damage

In fact, the Order merely affirms the jurisdiction of the Court of Rome to decide the dispute on the basis of two arguments in line with the regulatory framework. First, the jurisdiction lies with the ordinary court inasmuch as this is a "common action for damages" that does not amount to "an invasion of the sphere reserved to the legislative power", since, unlike what was decided in the case brought against the Italian State, the MEF and Cdp were sued not in their capacity as public entities, but as shareholders of Eni. Secondly, jurisdiction lies with the Italian courts because Eni, as defendant, has its registered office in Italy and all the plaintiffs, who complain of damage caused by climate change, are also resident in Italy.

The Order also clarifies that all major issues concerning the merits of the dispute remain unresolved, including, in particular, (i) the possibility of directly and bindingly applying the rules of the Paris Agreement, the European Convention on Human Rights (ECHR) and the Constitution to private individuals, and the consequent "justiciability" of the claims of the NGOs and activists, (ii) the legal standing of the two NGOs, and (iii) the concrete configurability of an individual damage suffered by the plaintiffs as a result of Eni's conduct.

In addition, the question of Eni's liability, also possibly in its capacity as parent company, with respect to emissions produced by its subsidiaries or affiliates, remains to be verified, an issue that the Court of Cassation referred to the Court of Rome, clarifying that "the ascertainment of the imputability to Eni of the emissions produced by the aforesaid companies... is a matter for the merits of the dispute". These issues will therefore all have to be addressed and resolved by the Court of Rome in the continuation of the civil case, which must now be resumed by one of the parties within the next six months.

In relation to the still open issues, in the first phase of the trial Eni disclosed its industrial strategy and the measures adopted in the field of energy transition, and documented the technical-scientific as well as legal complexity of a global phenomenon such as climate change.

It is precisely with reference to this last aspect that the Court of Appeal in The Hague recognised in the Shell case (Judgment No 2100 of 12 November 2024) that the court cannot impose a specific reduction of emissions on the company.

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