As of April 30th, 2025, the capacity of pending requests for the interconnection…
What is happened
As part of the latest draft of the so-called “Energy Decree” awaiting discussion in the Council of Ministers, the establishment of an “Environmental and Territorial Compensation and Rebalancing Fund”, with an endowment of 200 million Euro for each of the years from 2024 to 2032, to be distributed among the regions and autonomous provinces, aimed at the adoption of measures for decarbonization and the promotion of sustainable territorial development, has been provided for in Article 5. A decree of the Minister of the Environment and Energy Security, in agreement with the Unified Conference (Conferenza Unificata) referred to in Article 8 of Legislative Decree No. 281 of August 28, 1997, will establish the procedures and criteria for the distribution among the regions and autonomous provinces of the Fund’s resources, taking into account, as a priority, the level of achievement of the annual installed power targets pursuant to Article 20, paragraph 2, of Legislative Decree No. 199 of November 8, 2021.
For the purposes of the establishment/supplementation of this Fund, resources will be derived from: (i) the proceeds from the auctioning of carbon dioxide emission allowances referred to in Article 23 of Legislative Decree June 9, 2020, no. 47; (ii) from the payment to the GSE, by the owners of plants producing electricity from renewable sources with a capacity of more than 20 kW who have acquired the title for the construction of the same plants in the period between January 1, 2024 and December 31, 2030, of an annual contribution equal to Euro 10.00 for each kW of power of the plant, for the first three years from the date of entry into operation.
However, this contribution will not be due: (i) by holders of plants powered by geothermal energy sources required to pay contributions under Article 16, Paragraph 4 of Legislative Decree No. 22 of February 11, 2010; and (ii) by holders of hydroelectric plants required to pay contributions for the implementation of environmental and territorial compensation measures under Article 12, Paragraph 1-ter, Letter l) of Legislative Decree No. 79 of March 16, 1999.
The activities necessary for the operation of the Fund referred to in Paragraph 1 shall be entrusted to the GSE and shall be regulated through a special agreement signed with the Ministry of Environment and Energy Security.
Why it is important
This rule, if confirmed upon approval, could therefore introduce, for all owners of renewable energy power plants with a capacity of more than 20 kW who have acquired the authorization title for the construction of these plants in the period between January 1, 2024 and December 31, 2030, the obligation to pay a contribution to the GSE for the first three years after the plants become operational.
As worded in draft, however, the measure in question may be incompatible with our legal system since such payment would take place without any counter-performance in favor of the holders by the GSE and, therefore, apparently without a legal cause.
To better understand these critical issues, it is appropriate to start with a preliminary question, and thus analyze what kind of nature the payment obligation introduced by Article 5 of the draft Energy Decree Law has.
First of all, one could attribute to the same the nature of a “compensation measure” where compensation measures are generally understood to mean the monetization of the negative effects that the environmental impact determines, whereby whoever proposes the installation of a given plant undertakes to devolve, to the local authority in charge of the authorization, certain services or benefits. However, the application of this measure appears to be bound only to the power of the facilities and no reference is made to the possible environmental impact of the facilities.
In this regard, it is necessary to point out that, according to Article 12, paragraph 6, Legislative Decree No. 387 of 2003, authorization for the construction and operation of a RES plant cannot be subordinated to or provide for compensatory measures in favor of the regions and provinces, and that in any case these compensatory measures can be applied only if all the conditions indicated in Article 1, paragraph 4, letter f) of Law No. 239 of 2004 are met.
In addition, as specified within the Ministerial Decree of the September 10, 2010 Ministerial Decree of the Ministry of Economic Development, the mere fact that an energy production plant from renewable sources is built cannot automatically give rise to compensatory measures, regardless of any consideration of its characteristics and size and its impact on the environment.
In light of what has just been pointed out, it is therefore clear that the measure set forth in Article 5 of the draft Energy Decree, where it is qualified as a compensation measure, presents undoubted profiles of criticality with the general principles and primary legislation currently in force in our system, resulting in the contribution required from economic operators lacking cause and, therefore, due for the mere fact of having brought the energy production plant into operation.
As an alternative to the above, the same could be attributed the nature of a fee, payable by the owners of the facilities by reason of the issuance of the permit.
In such a case, as the Constitutional Court has already had occasion to affirm in the context of judgment no. 124 of 2010 in a similar case, such a measure would risk conflicting with Articles 3, 41, 97 and 117, first and third paragraphs, of the Constitution, insofar as it would limit the freedom of economic initiative in the sector under consideration (expressly provided for by Article 1 of Legislative Decree no. 79 of 1999) with consequent non-compliance with international obligations to increase electricity production from renewable sources.
On the contrary, there would seem to be no relevant critical issues where such payment is deemed to be of a tax nature.
In fact, it should be noted how the same could be considered as a patrimonial benefit imposed for solidarity purposes which would, therefore, be of a tax nature, where the allocation of the sums obtained to a "common fund" aimed at activities to promote the economic and social development of the territory has been considered a determinate element for the purposes of such qualification, in a similar case, by the Supreme Court in United Sections in the context of Order No. 16261/2020.
In fact, as noted in the aforementioned Order No. 16261/2020, the criteria established by case law for qualifying certain levies as taxable would seem to apply: a) dutifulness of the service; b) lack of a synallagmatic relationship between the parties; and c) connection of said service to public spending in relation to an economically relevant prerequisite.
Should one opt for the latter classification, therefore, it should be pointed out how, in the reasoning followed by the Supreme Court, there would not seem to be any major critical issues, where: (i) there would be no violation of the principle of ability to pay under Article 53 Const, given that the carrying out of business activities on the basis of a derivative concession is in itself symptomatic of ability to pay; (ii) that in any case the increase in tax costs for the concessionaire (rectius, holder subject) is not relevant, given that both the identification of significant situations of the ability to pay and the determination of the extent of the tax burden are left to the discretion of the legislator, with the limit of the non-arbitrariness or irrationality of the legislative choice; (iii) there are no critical issues with reference to the principles of legitimate expectations and legal certainty and the risk of a merely confiscatory ablation of a significant portion of wealth (Articles. 3, 41, 42, 43 and 117 Const.).
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 the Energy and Infrastructures Department
