Articles
30/01/2024
Energy and Infrastructures

New GSE regulation: specified violations resulting in incentive forfeiture and defined percentage reductions applicable in case of controls on operating RES plants

The new regulation of the Gestore Servizi Energetici (GSE), published on its official website on December 22, 2023, represents a significant novelty that clarifies the violations leading to the forfeiture of incentives and the percentages of reduction applicable in case of less severe violations for operating RES plants.

Following the amendments introduced by art. 13-bis, para. 1, lett. a), of Decree Law September 3, 2019, No. 101, converted, with modifications, by Law November 2, 2019, No. 128, art. 42, para. 3, of Legislative Decree March 3, 2011, No. 28, specifies on one hand that, if significant violations relevant to the incentives provision are identified during controls, the GSE may reject the application or declare the forfeiture of incentives (as well as the recovery of sums already disbursed). On the other hand, in derogation from the above, “with a view to safeguard the production of energy from renewable sources of plants that, at the time of violation assessment, receive incentives”, the GSE proceeds with a reduction of the incentive ranging from 10% to 50% “depending on the severity of the violation”. Additionally, the same provision states that this reduction is halved if the violations are voluntarily reported by the responsible party outside a verification process.

Under art. 13-bis, para. 2, of Decree Law No. 101/2019, these provisions on incentive reduction apply to operating plants subject to ongoing administrative procedures and, “upon request of the interested party”, to those concluded with forfeiture measures subject matter of pending legal proceedings, as well as those concluded with final judgment at the time of entry into force of the law converting the aforementioned Decree Law, including extraordinary appeals before the President of the Republic for which the opinion referred to in art. 11 of Presidential Decree November 24, 1971, No. 11, has not been issued.

The same art. 42, para. 6, of Legislative Decree No. 28/2011, envisages the issuance of a Ministry Decree to define a comprehensive control framework for incentives within the competence of the GSE.

In this regard, the administrative case law has confirmed the direct applicability of the aforementioned regulatory innovations, even in the absence of the Ministerial Decree, respecting the principles of proportionality and adequacy of sanctions to irregularities found by the GSE.

While keeping the validity of the Ministerial Decree of January 31, 2014 (so-called “decreto controlli”) and the aforementioned administrative case law, the GSE has issued its own regulation classifying violations resulting in the forfeiture of incentives (Annex 1) and those leading to reductions (Annex 2).

In fact, the regulation provides different consequences depending on whether, at the end of the inspection procedure, violations listed in the first or second annex are identified.

In the first case, as these are violations relevant for the incentive provision, the GSE declares the forfeiture from the incentives, along with the full recovery of sums already disbursed. The situations identified in Annex 1 mainly refer to serious violations, such as fraudulent or obstructive behaviors towards the GSE, total absence of authorization, use of non-renewable fuels and waste contrary to the authorization, artful plant power fractionation violating rules related to the access to incentives, use of counterfeit components or those subject matter of theft, absence of required criteria for accessing incentives for ground-mounted photovoltaic plants in agricultural areas (art. 65 of Law of March 24, 2012, No. 27, converting the Decree Law January 24, 2012, No. 1).

In the second case, as these violations do not result in forfeiture of the right to incentives, the GSE orders the reduction thereof (at the rate indicated for each situation) from the date of operation of the agreement and for the entire incentive period. The GSE also orders the recovery of amounts received in excess, also by means of offset up to the amount due. The situations identified in Annex 2 represent less severe violations, such as, for example, the transfer of the authorization title on a date later than that envisaged for the access to incentives, or the completion of the authorization/enabling process on a date later than the declared entry-into-operation date, discrepancies in the realization of the plant compared to what was declared by the responsible party (in the event of an unsaturated quota or absence of unjust advantage to the detriment of other participants in the procedure).

The regulation reaffirms that the responsible party, in the case of inspection procedures concluded with forfeiture measures or subject to pending administrative proceedings and not defined by a final judgment, is required to submit a specific request to the GSE for the application of reductions provided for in art. 42, para. 3, of Legislative Decree No. 28/2011. This request implies acceptance of the violation ascertained by the GSE and abandonment of any possible legal action.

In the event of spontaneous declaration by the responsible party, outside a verification and control procedure, the reduction provided for in Annex 2 is halved. This declaration implies acceptance of the violation ascertained in the subsequent motivated reduction measure issued by the GSE, except for the possibility of carrying out control activities for the ascertainment of further violations or discrepancies.

Therefore, the GSE has prepared and published two different forms for submitting the request under art. 42, part. 3, of Legislative Decree No. 28/2011, depending on whether it is a matter of spontaneous report or administrative litigation.

However, the regulation contains an important caveat: the reduction of incentives for violations listed in Annex 2 is not applicable if the operator’s conduct is subject matter of an ongoing criminal proceeding or trial (even if concluded with non-final judgement of conviction).

Awaiting the practical results of the new regulation, it may constitute an essential reference point for sector operators not only for control activities and the consequences of ascertained or ascertainable violations, but also as a valuable aid for a better assessment of economic risks related to the characteristics and procedural events of each plant.

 

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Giovanni Battista De Luca, Ernesto Rossi Scarpa Gregorj and Alessandro Vittoria.

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