The litigation currently pending for the Campania USW Projects

The administrative litigation

1. In October 2006, FIBE and FIBE Campania took legal action before the Lazio Regional Administrative Court censuring the commissioner’s failure to comply with its obligations under Law decree no. 245/2005 (converted into Law no. 21/2006), namely: (i)  recovery of amounts due by municipalities for waste disposal services outstanding at the date of termination of the contracts (15 December 2005); and (ii) identification of landfills for organic waste and stockpiles generated by the RDF plants and preparation and implementation of a plant maintenance plan. After accepting the precautionary motion presented by FIBE and FIBE Campania (in its ruling of 11 October 2006, confirmed by the Council of State on 7 November 2006), in its decision no. 3790 filed on 27 April 2007, the Court found that:

   1. FIBE and FIBE Campania effectively provided the waste disposal service under the 2000 and 2001 contracts up until 15 December 2005 and had the right to request completion of the legally-provided for procedure for collection of outstanding receivables by the municipalities;
   2. due to the ope legis termination of the service contracts, FIBE and FIBE Campania “with effect from 15 December 2005 merely provided the service on behalf of the commissioner [waste disposal] and had definitively lost title thereto”;
   3. the commissioner was to complete the procedure aimed at meeting the companies’ requests within 45 days;
   4. an ad acta commissioner to take the necessary measures within a further 45 days, should the local administrative  bodies not fulfil  their obligations, was to be appointed.

   The commissioner appealed against this ruling with the Council of State. Ruling no. 6057 of 28 November 2007 rejected the appeal, fully confirming the ruling of the Lazio Regional Administrative Court.
   
   As a result of the newly introduced regulations mentioned earlier, the companies are no longer interested in completing the procedure for identification of the landfills for organic waste and stockpiles generated by the WDF plants and preparation and implementation of a plant maintenance plan, given that they are to be transferred to the relevant municipalities. However, they continue to be interested in completion of the procedure for the recovery of their outstanding receivables for services provided up to 31 December 2005.
   
   In December 2009, the Special Commissioner appointed by the Regional Administrative Court to recover the receivables claimed by the two companies from the Campania municipalities for the waste disposal service provided until 15 December 2005, after filing an initial report in August 2009, filed a further report in June 2013 based on a more thorough investigation and acknowledgement of the receivables by subsequent joint verifications of the accounts and documents submitted by the parties; although it contains an acknowledgement of the receivables due to FIBE for the activities performed pursuant to the contract, the report submits to the Regional Administrative Court, for due consideration, the question of compensation claims by the Administration and the relative decisions. At the hearing for discussion of these issues on 4 December 2013, the Regional Administrative Court postponed it until 25 June 2014.

2. The Lazio Regional Administrative Court confirmed the findings of its ruling no. 3790/2007 in its ruling no. 7280 of 23 July 2008, reiterated by the Council of State decision no. 6057/07, as confirmed and integrated by the intervening regulations and aforesaid Law Decrees nos. 90/08 and 107/08, converted into Law no. 123/08 and subsequent laws.
   This ruling, which is practically final as it has not been appealed against by the public administrations, is very important for the companies as, in the justification section, it reconstructs the role and responsibilities attributable to the former service providers after 15 December 2005 – “mere executors” of the commissioner’s orders – and to the commissioner – sole responsibility for the waste disposal service and coordination activities, required to identify the best solutions for waste disposal. At the same time, the ruling establishes that all obligations imposed on the former service providers by law ceased to exist on 31 December 2007, contrary to the extension measures challenged with the previous regulations governing the conditions and limits of the specific emergency measures. Moreover, the intervening regulations also affected the orders as they were applied to past negotiations involving the companies whereby “no further activities are requested except for those to allow the taking over of management of the plants, employees and operating assets as well as transactions with third parties by the municipalities and the Armed Forces”. Given the above, the Regional Administrative Court concluded “It can logically be deducted that the Commissioner is required to meet the obligations...”

3. In December 2008, FIBE and FIBE Campania challenged a number of orders before the Lazio Regional Administrative Court whereby the parties appointed by the commissioner for technical and operating activities (Technical-operational head under Prime Minister’s Order no. 3705/2008 and the Special commissioners for the provinces) obliged the companies to re-acquire possession of certain areas and stocking sites, which such parties had acquired in August 2008; these areas and stocking sites were not deemed necessary to provide the service and the following concurrent declaration was requested: “(i) the non-existence of any obligation to manage the offices, sites and plants used at any time as part of the integrated waste treatment system in Campania for the companies in the light of the ruling sector regulations which fully regulated the previous situations in full compliance with the Lazio Regional Administrative Court’s ruling no. 3790/2007, confirmed by the Council of State with ruling no. 6057/2007 and the Lazio Regional Administrative Court ruling no. 7280 of 23 July 2008 about the nature of the relationships between the municipalities, FIBE and FIBE Campania and third parties; (ii) the municipalities’ obligation to comply with the relevant instructions in the above court ruling no. 3790/2007, confirmed by the Council of State with ruling no. 6057/2007 and the Lazio Regional Administrative Court ruling no. 7280 of 23 July 2008 about the nature of the relationships between the municipalities, FIBE and FIBE Campania and third parties”.
   
   Following the hearing of 19 January 2009, the Regional Administrative Court suspended the enforceability of the challenged measures and accepted the appeal made by FIBE and FIBE Campania in its ruling no. 2357/09 on 13 March 2009, cancelling the challenged measures.
   
   The municipalities appealed against this ruling to the Council of State on 8 July 2009. The companies presented themselves for the related proceeding and made a cross appeal against the same ruling, requesting that the reprimands deemed to have been covered by the first level hearing and particularly related to the non-existence of the assumptions about the inoperability of the sites for the purposes of the waste management service, be examined and allowed. They also requested that the reprimands related to the non-existence of any obligation for them to manage the offices, sites and plan ƒts used at any time for the integrated waste treatment system in Campania, in line with the sector regulations, and to the existence of the Administrations’ obligation to comply with the rulings of the Lazio Regional Administrative Court no. 3790/07, confirmed by the Council of State’s ruling no. 6057/07 and the Lazio Regional Administrative Court ruling no. 7280 of 23 July 2008 about the nature of the relationships between the Administrations, FIBE and FIBE Campania and third parties be examined and allowed as well.
   
   On 22 July 2009, the under-secretary of State notified FIBE and FIBE Campania via the ad acta commissioners of new orders to take back the above sites. The companies have appealed to the Regional Administrative Court.
   
   On 26 January 2010, the Council of State issued ruling no. 290/2010 definitively confirming the cancelling of the orders issued in December 2008, freeing FIBE from any obligation to manage the sites which, according to the municipalities, were not suitable for their activities.
   
   Specifically, this ruling analysed Prime Minister’s Order no. 3693/2008 deeming that the challenged orders were unlawful as contrary to the reference legislation due to the erroneous valuation of the concept of the operability of the assets for the waste management service.
   
   The Council of State based its assessment of the operability of the sites on article 183.1.D) of Legislative decree no. 152/2006, which expressly defines the concept of waste management as the collection, transportation, recycling and elimination of waste, including monitoring of these activities as well as of the landfill after it has been closed.
   
   This led to confirmation of the operability of the assets, the return of which had been ordered, for the waste management service as a whole, with the related statement of unlawfulness of the challenged measures.
   
   Despite this outcome, the party engaged under Law no. 26/2010 to manage the sites in the Province of Caserta and, subsequently, the party engaged to manage the sites in the Province of Naples and Benevento took new action to see FIBE S.p.A. charged with the custody costs for the sites.
   
   The company presented a motion for the cancellation of this action to the relevant judicial authority which was rejected on 25 October 2010. However, following the request for clarifications about the custodian obligations, the Fifth Criminal Chamber of the Naples Court established in its order of 24 November 2010 that the official receiver has “as its sole scope and responsibility that of ensuring the integrity of the seals, the property under seizure and to report any dangers to the judicial authority”. This clarification bears out the company’s thesis, supported by its legal advisers, that the official receiver is exempt from any liability once it diligently and promptly informs the relevant authority of any events that could in any way compromise the integrity of the property under seizure and that the persons indicated as official receivers are behaving in this way.
   
   The civil proceedings before the Naples Court initiated by S.A.P.NA. S.p.A., a local company set up by the Naples provincial authorities, form part of this situation. It challenged its takeover of title to certain temporary and definitive areas and stocking sites with roughly 40 rulings; these areas and sites had already been found to be inoperable by the Special commissioners in their measures of December 2008 challenged by FIBE S.p.A. and which led to the Lazio Regional Administrative Court’s ruling no. 2357/09 and the Council of State’s ruling no. 290/10. S.A.P.NA. also requested it be reimbursed and held harmless by FIBE S.p.A. and/or the government commissioner from the intervening operating costs incurred and to be incurred.
   FIBE S.p.A. has appeared before the courts in each of these proceedings which are still ongoing.

4. FIBE and FIBE Campania appealed to the Lazio Regional Administrative Court again on 30 April 2009 (RG no. 3770/2009) disputing the commissioner’s slackness in completing the administrative procedures for the recording and recognition of the costs incurred by the former service providers for the services provided as required by law and the work ordered by the municipalities and carried out by the companies during the transition period (16 December 2005 - 31 December 2007). They requested the Court state the unlawfulness of this silence and verify the municipalities’ obligation to finalise the procedure in a suitable timeframe, with the concurrent appointment of an ad acta commissioner that would take the measures required of the defaulting commissioner should the latter not respond within the set timeframe. Upon conclusion of the hearing of 24 June 2009, the Court stated the appeal was inadmissible in its ruling no. 7070/2009 and that with respect to “checks into financial claims, even when based on obligations assumed by law”, the companies should not have already activated the special silence procedure but should have filed a specific action for declaration and satisfaction to the Court on an exclusive jurisdiction basis.
   On this basis, the companies filed a new appeal with the Lazio Regional Administrative Court (RG no. 7338/2009), which had exclusive jurisdiction pursuant to article 4 of Law decree no. 90/2008, for the issue of the necessary rulings on the declaration  and  payment  orders  against  the  local governments,  including  on  an admonitory basis. The admonitory motion was quashed as the Court did not accept the assumptions for issue of a payment order. The merits hearing has yet to be held. While awaiting a date for the related hearing, a preliminary motion was notified and subsequently filed on 8 April 2010 for the appointment of a court-appointed expert that, after examining the documentation presented, identified the amount of:

   1. the sum due by the local governments for the management  activities reported by the companies from 16 December 2005;
   2. the amount already paid by the municipalities for this service;
   3. the amount of the payable already checked and acknowledged but not yet paid by the municipalities as per the administrative measures already issued and added to the court records;
   4. the amount not yet checked or paid by the municipalities for the services reported by the companies;
   5. the amount due by the Administrations for the services entrusted to the companies and provided by them since 16 December 2005;
   6. the amount already paid by the municipalities for the services as per point e);
   7. the amount of the payable already checked and acknowledged but not yet paid by the municipalities as per the administrative measures already issued and added to the court records;
   8. the amount of the payable not yet checked or paid by the municipalities for the services provided as requested by such local governments by FIBE S.p.A. and FIBE Campania S.p.A., based on the documentation added to the court records;
   9. specified the consultancy role based on the verification of the above documents, the amount of the Administration’s payables for all the activities imposed on and carried out by FIBE

   S.p.A. and FIBE Campania S.p.A. for them, starting from 16 December 2005, net of the amount already paid for such services and any other issue that this court will consider.
   The companies presented a specific withdrawal request for the timely setting of the related hearing, after which the Regional Administrative Court issued its interim ruling no. 3669 ordering that the “checks” of the accounting documentation presented for reporting purposes be carried out to ascertain if the claims made in court are grounded. It has reserved its decision until this procedure is completed. Accordingly, the Court requested that La Sapienza Rome University carry out the check. On 29 January 2013 a partial expert report was filed relating to the period 15.12.2005- 31.12.2006, and an extension was requested for the filing of the full report covering all the periods in question, the extension being granted until 31 March 2014.

5. With their appeal notified on 18 May 2009 (RG no. 4189/09), the companies challenged Prime Minister’s Order no. 3748/09 before the Lazio Regional Administrative Court whereby only refuse produced and stored after the date of termination of the service contracts with the companies (15 December 2005) was to be transferred to the Acerra waste-to-energy plant. A date for the related hearing has yet to be set.
   
   While they are convinced that the obligation to dispose of the bales produced and stored in Campania (regardless of the solution chosen by the municipalities about which waste was to be disposed of first), remains solely with the Administrations, the companies have prudently appealed against this order with the relevant Lazio Rome Regional Administrative Court.

6. The Lazio Regional Administrative Court issued its ruling no. 3886 on 5 May 2011 on FIBE’s appeal (RG no. 9942/2009) for the Administrations’ non-payment of FIBE’s unamortised costs at 15 December 2005 for the Campania WDF plants. It accepted FIBE’s appeal and ordered the Administrations to pay FIBE € 204,742,665.00 plus legal and default interest from 15 December 2005 until settlement. This ruling correctly reconstructs the transactions between the parties as per the reference contractual terms and legislation. It confirms that the Administrations recouped the WDF plants as a result of termination of the service contracts and are therefore obliged to pay the former service providers the unamortised costs at the contract termination date (15 December 2005) as expressly stated by the Administrations. The Regional Administrative Court based its quantification of the claim on FIBE’s accounting figures and the considerations set out by the municipalities in the previous calls to tender for the service.
   
   The Administrations have appealed against the ruling with a petition (RG 6313/11) notified on 11 July 2011, which was heard on 13 December  2011 after  which the Council of State rejected the appeal made by the Administrations with its ruling no. 868/2012 filed on 20 February 2012 and ordered that the parties bear their own legal costs.
   
   The public prosecutor has proposed that an appeal should be made to the Supreme Court against the Council of State’s ruling, alleging the administrative judge’s lack of jurisdiction. FIBE, in turn, has presented a statement of defence and a counterclaim challenging the municipalities’ arguments and appearing against the Council of State’s ruling with its counterclaim in the part in which it holds that it had first to rule about jurisdiction (even though it was favourable) rather than acknowledging the tardiness of the appeal and, therefore, invalidating it. The public prosecutor then presented its statement of defence to FIBE’s counterclaim and the Supreme Court in its hearing of 6 March 2013 dismissed the appeal brought by the public prosecutor. FIBE therefore continued with its enforcement action for compulsory recovery of the full amount ordered. The public prosecutor opposed enforcement with a request for suspension, the application being discussed at the hearing of 9 July 2013. By decision of 24 July 2013, the Enforcement Judge of the Court of Rome awarded to FIBE the amount of € 240,547,560.96 in full payment of the debt claimed as principal and legal interest and suspended enforcement for the further portion of interest claimed, setting a deadline of 30 November 2013 for the bringing of proceedings on the merits following the objection.
   
   Both parties therefore initiated proceedings on the merits and at the hearing of 3 February 2014 the court declared the failure to appear of the Prime Minister's Office, and set a deadline of February 21 for the production of a certificate of non-registration of the writ issued by the Prime Minister's Office with the date set (on the writ) of 10 February.
   
   In any case, the judge stated that should this second objection need to be registered the two cases should be joined.

7. The Campania Regional Administrative Court issued order no. 292 on 23 February 2012 rejecting the  appeal  RG 301/2012  made by S.A.P.NA.  for suspension of the ministerial measure which requested that the local company provide the results of the characterisation plan and implementation of urgent safety measures for the contaminated groundwater at the Settecainati landfill (Giugliano municipality) owned by FIBE S.p.A.. The local company sued FIBE for its alleged liability for the contamination and its obligation to characterise and implement urgent safety measures. The court order included S.A.P.NA.’s obligation to pay the precautionary court costs. The hearing on the merits is pending. Against the order of the Campania Regional Administrative Court no. 292/2012, cited above, S.A.P.NA. s.p.a. submitted appeal no. RG 3247/2012 to the Council of State which, by Order no. 1968 of 23 May 2012 ratified the decision at first instance. The legal costs were shared.
8. The Lazio Regional Administrative Court ruling of 5831 of 26 June 2012 stated the lack of its jurisdiction in favour of Court of Public Waters. FIBE has appealed against this ruling with appeal RG 7434/2008 and subsequent additional grounds. FIBE requested that the commission and ministerial measures ordering the communication of the results of the surface and groundwater characterisation plan and urgent safety measures be cancelled – the measures provide that if FIBE fails to comply therewith, the substitute damaging powers are activated -, as well as the recognition of the real cost and the inspection and reclamation of the environmental damage to the landfill in Cava Giuliani in the Giugliano municipality. The ruling has been summarised before the Court of Public Waters which deferred the hearing to 9 October 2013. Following the signing on 9 September 2013 of an agreement with the Government Commissioner concerning the characterisation of the landfill site at Cava Giuliani, the hearing was adjourned to 25 June 2014.
9. The Lazio Regional Administrative Court ruling no. 6033/2012, published on 3 July 2012 and notified on 13 September 2012, joined and rejected the appeals RG 10397/2007, 10398/2007 and 2770/2012 and related additional grounds presented by FIBE for the cancellation of the commission and ministerial measures requiring the characterisation plan and urgent safety measures on penalty of proceedings for damages, relating to the Pontericcio site, the WDF production plant and storage area and the Cava Giuliani site and storage area.
   
   The company appealed against this ruling to the Council of State (RG 7313/2012) as it would appear to be tainted by the obvious misrepresentation of the facts as it is based on contamination at a site different to those referred to in the ruling. Reference is mistakenly made to contamination of the landfill in Cava Giuliani (as shown in the court-appointed expert’s report to the Naples public prosecutor, prepared for the criminal proceedings RGNR 15968/2008), appealed against with appeal RG 7434/2008 (see  letter  I  above).  On  12  November  2012,  the  Council  of  State  rejected  FIBE’s precautionary motion for suspension of the execution of the ruling. A date for the merits hearing has not yet been set.
   
   Following the rejection of the precautionary motion in decision no. 6033/2012, and taking into account the deliberations on the crime of non-decontamination and the liability of the Company pursuant to Legislative Decree. 231/2001, and notification by the Government Commissioner pursuant to Order no. 3849/2010 et seq. of the pending signature with Sogesid S.p.A. of the contract for the characterisation of the sites at Pontericcio and Cava Giuliani, the subject of decision no. 6033/2012 and the appeal to the High Court for Public Waters (TSAP) no. 36/2013, FIBE S.p.A. wrote to the Ministry of Environment and the other relevant authorities on 13 December 2012 to demonstrate its willingness to comply with decision no. 6033/2012, and called for a meeting with a view to drafting an Agreement by which to regulate mutual relations. However, it does not admit its liability as the merits hearing has yet to be held and it has also reserved the right to resubmit the costs of executing the ruling. This agreement was signed by FIBE and the Government Commissioner on 9 September 2013. In this agreement, FIBE accepted the requests of the Government Commissioner regarding the characterisation and environmental survey activities, rejecting liability concerning any irregularities partially identified as a result of such activities  and confirming its action as exclusive performance of Regional Administrative Court decision no. 6033/2012 cited above.

The civil litigation

The judge, following the hearing on 11 July 2013 deferred proceedings, to allow preliminary investigation, to the hearing on 24 January 2014, where he allowed a court-appointed expert only in relation to the claims of FS Logistica against the Prime Minister's Office and the subject of the court order.

The criminal litigation

As this again relates to events challenged in the period after the contracts were terminated, when the companies’ activities were not only expressly ordered by Law no. 21/2006 but also carried out on behalf of the Commissioner, FIBE is fully convinced that it acted in accordance with the law.