• ACN Determination No. 127437 of 13 April 2026, which updates and replaces the previous ACN Determination No. 379887 of 19 December 2025 and introduces the obligation to carry out the new process for listing and categorizing activities and services, as well as listing relevant NIS suppliers during the annual information update;
• ACN Determination No. 127434 of 13 April 2026, which sets the deadlines by which entities newly included in the NIS list during 2026 must comply with obligations concerning the notification of significant incidents and the adoption of security measures.

List of relevant NIS suppliers

ACN Determination No. 127437/2026 introduces the obligation to indicate relevant NIS suppliers as part of the broader annual information update process.

A relevant NIS supplier is an entity that provides services or products to a NIS entity and meets at least one of the following criteria:

1. the supply relates to the activities or services referred to in Annex I, points 8 and 9, of the NIS Decree, including DNS service providers, top-level domain name registry operators, cloud service providers, data center service providers, content delivery network (CDN) providers, as well as managed service providers and managed security service providers;
2. disruption or compromise of the supply would have a significant impact on the NIS entity’s ability to deliver the activities or services falling within the scope of NIS, also because adequate alternative suppliers are not available (non-substitutable suppliers).

To comply with this obligation, NIS entities must use the “NIS Service / Annual Information Update” on the ACN Portal and indicate, for each relevant supplier:

• company name;
• tax identification number;
• country of registered office;
• CPV (Common Procurement Vocabulary) codes relating to the supplies received by the NIS entity;
• the relevance criterion applied.

Listing and categorization of activities and services

One of the main operational innovations concerns the obligation for NIS entities to communicate the list of their activities and services, assigning each of them a corresponding relevance category. Legislative Decree No. 138/2024 (“NIS Decree”) provides that this requirement must be fulfilled from 1 May to 30 June each year, via the ACN digital platform, starting from the receipt of the first notification of inclusion in the list of NIS entities.

ACN Determination No. 127437/2026 specifies that this activity must be carried out through the “NIS Service / Categorization” on the ACN Portal. In practice, the Point of Contact must complete the list of the organization’s activities and services and assign to each a relevance category according to the model that will be established by ACN in the coming days, with the publication of a determination containing the categorization model, together with supporting materials to assist in carrying out a simplified Business Impact Analysis (BIA).

It is important to note that, after the 30 June deadline, the categorized list of activities and services will be considered final and no longer amendable, except in cases of delay due to documented technical-operational issues not attributable to the entity.

Furthermore, financial entities subject to the DORA Regulation and also falling within the scope of NIS are exempt from this specific requirement, without prejudice to the possibility of voluntary compliance.

The categorized list of activities and services submitted by NIS entities may be subject to compliance checks by ACN, carried out on a sample basis and also by comparison with data submitted by comparable entities. ACN must provide feedback within 90 days of submission, a deadline that may be extended once by up to an additional 60 days in case of further review. Where additional information, clarifications, or amendments are requested, the NIS entity must respond within 30 days; in case of failure to respond or late response, the list may be rejected. In the absence of a negative outcome communicated within the prescribed timeframe, the list shall be deemed validated.

Deadlines for entities included in the NIS list for the first time in 2026

ACN Determination No. 127434/2026 concerns entities that were included for the first time in the list of NIS entities during 2026. For these entities, ACN has set the deadlines for compliance with obligations relating to security measures and incident notification. In particular:

• the deadline for the adoption of the security measures set out in Annexes 1 and 2 of ACN Determination No. 379907/2025 is 31 July 2027;
• the obligation to notify significant incidents described in Annexes 3 and 4 of ACN Determination No. 379907/2025 applies from 1 January 2027.

An additional provision concerns top-level domain name registry operators and domain name registration service providers included in the NIS list during 2026. For these entities, ACN Determination No. 127434/2026 provides that the obligations referred to in Article 4(1) of ACN Determination No. 379907/2025 must be fulfilled by 31 July 2027.

If you need assistance and support in complying with the obligations under the NIS framework, please contact your trusted advisors.

The electrification of port quays, known as “cold ironing”, falls within the broader objective of “sustainable mobility” and aims to reduce the negative externalities arising from the use of fuels during the stationary phase of vessels in port.

An initial regulatory framework for the system was established by Article 34-bis of Decree-Law No. 162 of 30 December 2019, as subsequently amended by Law No. 214 of 30 December 2023, which defined cold ironing as “the set of structures, works and installations built on land necessary for the supply of electricity to vessels moored in port”, further qualifying it as a service of general economic interest.

Within this context, the recent Decree of the Minister of Infrastructure and Transport No. 10 of 22 January 2026 (hereinafter, the “MIT Decree”) was adopted to provide the Port System Authorities with specific guidance on the management of cold ironing services and to ensure full compatibility of the tariff relief measures with Article 107 of the TFEU, in compliance with the European Commission Decision of 17 June 2024, C/2024/3934.

2. On the authorization regime: the regional single authorization

Pursuant to Article 33 of Decree-Law No. 36/2022, port electrification projects have been classified as programs “of public utility,” subjecting their construction and operation to the issuance of a single authorization by the competent region, in compliance with the regulations in force concerning the protection of the environment, landscape and historical-artistic heritage, with the aim of simplifying the procedures for the construction of the infrastructure necessary for the system.

The single authorization is issued upon conclusion of the conference of services convened by the Port System Authority or the competent region, with the participation of all relevant administrations, within a maximum period of one hundred and twenty days, or one hundred and eighty days where an environmental impact assessment (“EIA”) procedure or a screening for EIA (“EIA Screening”) is required.

With regard to the applicability of EIA, it is considered that the project must follow the ordinary rules of the Environmental Code (Legislative Decree No. 152/2006), where the individual interventions fall within those listed in Annexes II, II-bis, III and IV to Part II of the same Code.

3. On the regulatory framework: system charges and the relief regime

The issue of general system charges (hereinafter, “GSCs”) represents the central element of the advantageous regime granted to the cold ironing system: by ARERA Resolution 492/2024/R/eel of 29 November 2024, the provisions of Article 34-bis, paragraph 1, of Decree-Law No. 162/2019 were implemented, concerning “reductions on general system charges for electricity drawn from cold ironing infrastructure”.

The extent of the reduction amounts, for consumption in the years from 2025 to 2029, to 100% of the GSCs owed by the Cold Ironing Infrastructure Manager (“IM”), with a proportional reduction in cases where the POD is not exclusively dedicated to the supply of cold ironing infrastructure. The MIT Decree further specified the operational modalities of the regime: from 1 January 2030, the relief measures shall be granted only to vessels and in ports not subject to the obligations respectively provided for by EU Regulation 2023/1804 and EU Regulation 2023/1805, in order to limit the incentive to those cases where it is necessary to steer the conduct of operators.

The relief measures must be transferred in full to the end users of the cold ironing service, and the IM shall recognize, on a final settlement basis, any credits not passed on through the tariff, in the form of an adjustment or discount on subsequent supplies. A safeguard clause on State aid is also provided: the relief measures may not be granted to undertakings in difficulty or subject to a pending recovery order, for which purpose a self-certification shall be obtained from the beneficiary.

4. On the Cold Ironing Infrastructure Manager (IM) and the procedures for the award of the service

The IM may be an undertaking or a temporary grouping of undertakings (RTI), whether already formed or to be formed, demonstrating proven experience in the management of complex energy infrastructure, electricity distribution networks, cold ironing installations or high-power charging stations, operating in compliance with technical and safety standards equivalent to European standards.

The IM is required to ensure fair and non-discriminatory conditions of access and supply, sharing in advance with the competent Port System Authority the conditions of access to the installations, which shall be published on the Authority's institutional website, and is further required to submit semi-annual reports to the Port System Authorities, communicating data relating to the relief measures granted, the energy supplied and the tariff plan applied.

The provision of the service constitutes a service of general economic interest, the managers of which are identified by the competent Authorities through a public tender procedure pursuant to Article 6, paragraph 10, of Law No. 84/1994 and Legislative Decree No. 36/2023 (the so-called Public Contracts Code).

The optimal areas for award (so-called clusters) are identified by the competent Directorate-General, with the possibility for the relevant Port System Authorities to regulate the organization of the award through collaboration agreements pursuant to Article 15 of Law No. 241/1990. The award entails the granting to the IM of a maritime State property concession pursuant to Article 36 of the Navigation Code, while the IM shall be required to submit a balanced economic-financial plan, with tariff revenues sufficient to cover the costs of the service, including a reasonable profit margin tending towards the weighted average cost of invested capital.

5. Conclusions: an evolving regulatory framework

The regulatory framework reconstructed herein presents itself as a regulatory arrangement still in a phase of consolidation, the full definition of which remains contingent upon factors of a technical, economic and institutional nature, operating at both the national and European level. Moreover, notwithstanding the significant progress achieved to date in the subject matter at hand, certain fundamental aspects – such as the definition of the award clusters and the selection criteria for managers, as well as the allocation of responsibilities within the electricity supply chain in the context of the cold ironing system – remain at the implementation stage, and the EU framework on the energy transition of the maritime sector is itself undergoing rapid evolution.

1. ^ This refers to the Direzione generale per i porti, la logistica e l’intermodalità del Ministero delle infrastrutture e dei trasporti, which forms part of the Department for Transport and Navigation (Dipartimento per i trasporti e la navigazione).

It is against this backdrop that Directive (EU) 2024/825, known as "Empowering Consumers for the Green Transition", was adopted, with the aim of strengthening consumer protection against unfair commercial practices of an environmental nature. Legislative Decree No. 30 of 20 February 2026, which came into force on 24 March 2026, transposed the provisions of the Directive into Italian law, setting 27 September 2026 as the deadline by which economic operators must comply with the new requirements.

This measure has a significant impact on the Consumer Code (Codice del Consumo), introducing into Article 18(1) the definitions of key terms — including "environmental claim", "generic environmental claim", "sustainability label" and "certification schemes" — which are essential for interpreting the new provisions, which expand the scope of misleading commercial practices, misleading omissions and practices deemed misleading in all cases.

Specifically, Legislative Decree No. 30/2026 has made the following amendments:

(i) Extension of Article 21(1) of the Consumer Code. The provision introduces an explicit reference not only to the traditional characteristics of products, but also to their environmental and social characteristics and aspects of circularity, such as durability, reparability and recyclability. It follows that any practice likely to mislead the consumer on these points is classified as misleading.

(ii) New categories under Article 21(2) of the Consumer Code. The categories of "environmental claims regarding future performance without an implementation plan" (letter b-ter) and "advertising of irrelevant benefits" (letter b-quater) are introduced. Environmental claims relating to future performance that are not supported by a defined and independently verifiable plan are therefore considered misleading, as is the promotion of characteristics common to all products in the same category that are unduly presented as distinctive from an ecological perspective.

(iii) Strengthening of the rules on misleading omissions (Article 22 of the Consumer Code). The new paragraph 5-terof Article 22 of the Consumer Code provides that, in product comparison services where environmental, social or circularity-related information is provided, the following are deemed essential — with the consequence that their omission constitutes an offence: the comparison method used, the products and suppliers involved, and the measures put in place for updating the information.

(iv) Expansion of the list of practices that are misleading in all cases (Article 23 of the Consumer Code). The most significant change concerns the expansion of Article 23 of the Consumer Code, which lists commercial practices considered misleading in all cases. These include, amongst other things, the use of sustainability labels not based on recognised certifications and generic environmental claims that cannot be substantiated.

Enforcement of the legislation is entrusted to the Italian Competition and Market Authority (AGCM), which has been granted specific sanctioning powers and has always been particularly active in combating so-called greenwashing.

Conclusions

Legislative Decree No. 30/2026 marks a turning point in the regulation of corporate environmental communications, introducing specific obligations for those who make such claims. With the compliance deadline set for 27 September 2026, companies are called upon to act promptly, reviewing their communication strategies in light of the new regulatory framework.

At an operational level, it is essential that companies conduct an audit of the environmental claims currently in use, ensuring that each is supported by verifiable evidence and, where necessary, by recognised certifications. It is also essential to establish a permanent interdisciplinary task force — involving the legal, marketing, compliance and sustainability functions — responsible for the prior approval of content and the continuous monitoring of communications.

On 20 February 2026, Decree-Law No. 21/2026 (“DL Bollette”) was approved and is currently in the process of being converted into law. The Government has called a vote of confidence in the Chamber of Deputies on the text, as approved by the Committee on Productive Activities, with the deadline for conversion into law set for 21 April 2026. The measure amends, inter alia, the provisions of Article 5-bis of Decree-Law No. 63 of 15 May 2024, converted with amendments by Law No. 163 of 12 July 2024 (“DL Agricoltura”), by setting out how biomethane producers and end customers may structure the contractual arrangements for the relevant volumes.

2. The Regulatory Framework: DM Biometano, DL Agricoltura and DM GO 

To better understand the scope of the amendment, it is useful to briefly review the regulatory developments concerning the incentive mechanism governed by the Decree of the Ministry of the Environment and Energy Security of 15 September 2022 (“DM Biometano”), with particular reference to biomethane self-consumption.

As is well known, DM Biometano defined self-consumed biomethane as the volumes of biomethane produced and transmitted, via internal networks at the relevant site, to equipment for self-consumption in the context of production processes carried out by the same producer.

Subsequently, with the entry into force of DL Agricoltura and, in particular, the provisions of Article 5-bis, paragraph 2, the legislator – in order to promote the production of biomethane from agricultural biomass and increase its use in various production sectors that are difficult to decarbonise – introduced significant changes to the definition of self-consumed biomethane within the context of DM Biometano. Consequently, as of today, the term also covers biomethane produced by an agricultural plant at the disposal of the holder of the premium tariff incentives referred to in DM Biometano and transmitted via the third-party connection obligation network to an end customer operating in so-called ‘hard-to-abate’ industrial sectors (“Hard-to-Abate End Customers”).

For the purposes of this extension, pursuant to paragraph 2 of Article 5-bis of DL Agricoltura, the average monthly price of guarantees of origin (“GOs”) shall be zero.

3. Biomethane sale and purchase agreements for self-consumption: change in law referred to in Article 11, paragraph 2, of the DL Bollette

It is precisely on the framework defined by paragraph 2 of Article 5-bis of DL Agricoltura that the DL Bollette intervenes; as clarified in the technical report, it aims to prevent any form of circumvention by producers regarding the valorisation of the GOs.

In this regard, the DL Bollette adds a final sentence to paragraph 2, clarifying that the transfer, even indirect, of the value of the GOs to other cost items in the contract is not permitted, without prejudice to the recognition of fees for the operational management of the contract.

Furthermore, the legislative amendment also introduces the new paragraph 2-bis of Article 5-bis of DL Agricoltura, which, in order to ensure an adequate level of transparency, requires that individual cost items shall be specified in the sale and purchase agreements entered into pursuant to the preceding paragraph. For the same purposes, it is also provided that ARERA, upon the proposal of the GSE, shall make available standard contractual clauses which operators may use.

The subsequent paragraph 2-ter, also introduced by the DL Bollette, limits the scope of application of paragraph 2 of Article 5-bis of the DL Agricoltura. In particular, the provision stipulates that the self-consumption regime applies to sale and purchase agreements signed with Hard-to-Abate End Customers, up to a limit of 35% of such customers’ consumption.

Finally, paragraph 3 of Article 11 of the DL Bollette governs the effective date of the provisions referred to in paragraph 2 of said Article. In the version originally approved by the Council of Ministers, paragraph 3 provided that these provisions would apply to contracts signed from the date of entry into force of the decree. However, the version currently undergoing conversion has postponed this deadline, stipulating that the same provisions shall apply to contracts signed from the thirtieth day following the date of entry into force of the law converting the decree.

The rationale behind these amendments appears consistent with the original purpose of Article 5-bis of DL Agricoltura: to ensure that the GOs are effectively transferred to the end customer, whether or not they are a Hard-to-Abate End Customer, at a zero price, so that they may enjoy the same benefits that would have been granted to the producer in the event of direct self-consumption. The regulatory amendment therefore aims to counter the negotiating practices that emerged during the initial application of Article 5-bis of DL Agricoltura, whereby the economic value of the GOs was effectively shared between the producer and the Hard-to-Abate End Customer.

4. Concluding remarks 

Pending the conversion of the decree and the GSE’s operational rules, the amendments introduced by the decree introduce significant new elements that require careful consideration by industry operators.

Firstly, the introduction of a 35% threshold for the consumption of Hard-to-Abate End Customers as the maximum limit for the application of the self-consumption scheme referred to in the DL Agricoltura entails the need to adjust the volumes that can be contracted under each individual biomethane sale and purchase agreement. However, the provision does not clarify the practical modalities through which this limitation will be applied; it will therefore be necessary to await the publication of the new implementing rules for the DM Biometano in order to fully understand the scope of the change introduced by the DL Bollette.

Secondly, the prohibition on passing on, even indirectly, the value of the GOs to other cost items in the contract has a decisive impact on the pricing structure of biomethane sale and purchase agreements, thus requiring a careful identification of the legitimately recognisable cost components. To this end, the publication by ARERA, upon the proposal of the GSE, of standard contractual clauses, together with the monitoring role assigned to the GSE, will help to define the limits within which biomethane sale and purchase agreements may be considered compatible with the regulatory provisions.

In this context, the overall framework designed by the legislator undoubtedly poses significant challenges in terms of structuring biomethane sale and purchase agreements, with particular reference to the structure of the price agreed between the parties. Nevertheless, the DL Bollette itself appears to leave considerable scope for (i) a definition of the consideration that allows for adequate remuneration of the activities carried out by the producer – or the intermediary – within the context of self-consumption, whilst expressly reserving the right to recognise fees for the operational management of the sale and purchase agreement, and (ii) for the valuation of the biomethane covered by the sale and purchase agreement as a sustainable resource. 

The correct identification of these margins, particularly in view of the standard contractual clauses that ARERA will make available upon the GSE’s proposal, will undoubtedly be of central importance to operators in the sector.

I. Overview and background: a long road to a common framework

On 26 March 2026, the European Parliament formally adopted the European Union’s first comprehensive anti-corruption directive — a landmark piece of criminal legislation that closes one of the most glaring gaps in the EU’s legal architecture (hereinafter, the “Directive”). The text was approved by 581 votes in favour, 21 against, and 42 abstentions, and had been provisionally agreed with the Council in December 2025 (1).

The context underscoring the urgency of this intervention is striking. According to a 2025 Eurobarometer, 69% of Europeans believe corruption to be widespread in their country, and 66% consider efforts against high-level corruption to be insufficient (1). Earlier EPRS studies estimated the total cost of corruption risk in EU public procurement alone at €29.6 billion between 2016 and 2021, with an additional €4.3 billion attributable to contracts involving EU funds. More broadly, Europol has reported that 71% of the most threatening criminal networks active in the EU use corruption to facilitate their activities or obstruct justice (2).

The path to the directive began on 3 May 2023, when the European Commission tabled an anti-corruption legislative package based on Article 83 TFEU — the provision empowering Parliament and the Council to establish minimum rules on criminal offences and sanctions in areas of particularly serious cross-border crime (1). The proposal followed calls by the European Parliament for EU-wide harmonisation of corruption offences and was shaped by the EU Security Union Strategy (2020–2025) and the EU Strategy to Tackle Organised Crime (2021–2025), which had tasked the Commission with assessing whether existing rules were adequate to address evolving criminal practices.

The pre-existing framework was acknowledged as fragmented. It consisted principally of Council Framework Decision 2003/568/JHA on private-sector corruption, a 1997 Convention on corruption involving EU officials, and the PIF Directive (2017/1371) (2). A 2023 external study mandated by the European Commission confirmed that “the lack of a coherent European framework including provisions for all corruption-related crimes identified by international standards” constituted “a source for legislative and operational challenges in tackling cross-border corruption cases” (3). The Commission’s own questionnaires to Member States revealed wide divergence: definitions differed substantially, certain UNCAC-mandated offences were absent from national legislation, and limitation periods varied significantly (3).

Following the Commission proposal, the LIBE Committee of the European Parliament adopted its report in January 2024 with near-unanimous support. The Council agreed its general approach in June 2024, and trilogue negotiations concluded with a provisional agreement in December 2025. The Parliament gave its final endorsement on 26 March 2026 (4).

II. Key provisions and criminal offences

The Directive (5) establishes a catalogue of corruption-related offences that Member States are required to criminalise if committed intentionally. These include (Articles 3 to 11):

1. Public-sector bribery (active and passive): promising, offering, or granting an undue advantage to a public official, or a public official soliciting or accepting such an advantage, to perform or abstain from an act in the exercise of their functions;

2. Private-sector bribery (active and passive): the same conduct involving directors or employees of private entities, acting in breach of their professional duties within the context of economic or commercial activities;

3. Misappropriation: the use by a public official of assets entrusted to their management for a purpose other than that intended, to their benefit or that of a third party, or to the detriment of the relevant public or private entity;

4. Trading in influence: promising or granting an advantage to any person to exercise improper influence on a public official, irrespective of whether the influence was actually exerted or produced the intended result;

5. Unlawful exercise of public functions: intentional serious violations of the law committed by a public official in the exercise of their functions;

6. Obstruction of justice: use of violence, threats, or inducements to interfere with testimony, evidence, or the official functions of judicial or law-enforcement officers in proceedings related to corruption offences;

7. Enrichment from corruption offences: acquisition, possession, or use of assets by a public official in the knowledge that those assets derive from corruption offences committed by another public official;

8. Concealment: intentional disguise or concealment of the nature, origin, or movement of assets derived from the above offences.

9. Incitement, aiding and abetting, and attempt are also covered.

The Directive (Article 2) defines key concepts including “public official” (covering EU and national officials, persons performing public service functions, and officials of international organisations), as well as “high-level official” — a category encompassing heads of government, ministers, members of parliament, constitutional and supreme court judges, prosecutors-general, and members of the European Commission and European Parliament.

Member States retain the right to adopt stricter standards, seeing as the Directive establishes only minimum rules.

Sanctions for natural persons (Article 12) are tiered according to the gravity of the offence: a minimum maximum penalty of five years’ imprisonment for public-sector bribery where the official’s act constitutes a breach of duty; at least four years for misappropriation, enrichment from corruption, and concealment; and at least three years for other offences, including private-sector bribery and trading in influence. Additional penalties may include fines, removal from public office, temporary disqualification from standing for election, exclusion from public procurement, and revocation of licences.

The Directive (Article 19) also harmonises limitation periods, requiring at least eight years from the commission of offences punishable by a maximum of at least four years’ imprisonment, and at least five years for less serious offences, with reduced minimum periods permissible only where interruption or suspension mechanisms exist.

Prevention obligations (Article 20 and following) require Member States to adopt national anti-corruption strategies, establish independent anti-corruption bodies, introduce asset disclosure mechanisms for public officials, regulate conflicts of interest and “revolving doors”, and conduct periodic risk assessments by sector. Whistleblower protection under Directive (EU) 2019/1937 is expressly extended to reports of corruption offences under this Directive (Article 25). Enhanced cooperation between national authorities and EU bodies — including OLAF, Eurojust, Europol, and the EPPO — is also mandated (Article 32).

III. Sanctions for legal persons: the turnover-based fine model and its broader context

One of the most significant innovations of the Directive lies in its approach to the liability and sanctioning of legal persons. Member States must ensure that companies can be held liable for corruption offences committed for their benefit by persons in a leading position, or where inadequate supervision by such persons enabled the commission of the offence (Article 13).

Sanctions must be effective, proportionate, and dissuasive. Beyond fines, they may include exclusion from public procurement, suspension from business activities, judicial winding-up, and publication of the judgment (Article 14).

The headline provision, however, concerns the calibration of pecuniary sanctions. For the most serious offences — public-sector bribery, private-sector bribery, and misappropriation (Articles 3 to 5) — the maximum fine must reach at least 5% of the legal person’s total worldwide annual turnover in the preceding financial year, or alternatively €40 million in absolute terms. For trading in influence, obstruction of justice, and enrichment from corruption (Articles 6, 8, 9), the threshold is set at 3% of global turnover or €24 million.

This turnover-based mechanism represents a structural break from the traditional Italian framework under Legislative Decree 8 June 2001, no. 231 (hereinafter, the “231 Decree”), which determines corporate sanctions through a “quotas” system: the judge fixes the number of units (quote) — between 100 and 1,000 — and the monetary value of each unit — between €258 and €1,549 — resulting in a maximum fine of approximately €1.55 million for corruption offences under Article 25 of the 231 Decree (6). While this system allows for a degree of judicial discretion calibrated to the gravity of the offence and the entity’s degree of responsibility, it was not designed to scale with the actual size or financial capacity of large multinationals.

The turnover-based model, by contrast, ensures that the sanction bears a direct and proportionate relationship to the economic weight of the offending entity — a principle that resonates with the regulatory logic already adopted in other European instruments. Most notably, Legislative Decree 30 December 2025, no. 211 — the Italian Decree implementing Directive (EU) 2024/1226 on criminal penalties for violations of EU restrictive measures — introduced a new Article 25-octies.2 into the 231 Decree, expressly providing for fines calculated as a percentage of the global annual turnover of the offending entity (7). Under that regime, fines range from 1% to 5% of global turnover for the most serious violations (or €3 million to €40 million where turnover cannot be determined), and from 0.5% to 1% for less serious ones (or €1 million to €8 million as an alternative).

The EU anti-corruption Directive now introduces a parallel and closely analogous structure. The alignment between the two instruments is deliberate: both reflect the EU legislator’s evolving preference for sanctions that penalise conduct in proportion to the economic capacity of the offender, thereby addressing the risk that fixed-sum fines may be absorbed as a ‘cost of doing business’ by large corporations. The same philosophy underpins the GDPR (fines up to 4% of global annual turnover), the Digital Markets Act, and various other EU sectoral regulations.

From an Italian implementation standpoint, the transposition of the Directive will require to amend Article 25 of the 231 Decree, which currently governs corporate liability for corruption-related offences. The existing quota-based system will need to be either replaced or supplemented by a turnover-referencing mechanism to achieve compliance with the Directive’s minimum standards. 

From a corporate compliance perspective, the said directives make it critical for companies to promptly recalibrate their trade compliance and anti-bribery and corruption (ABAC) frameworks. The shift to turnover-based corporate fines  substantially increases the (also, financial) exposure attached to corruption risks and makes “static” control systems harder to defend as effective. In practical terms, this calls for an immediate refresh of risk assessments (including sectoral and geographic corruption risks, public-touchpoints, and third-party channels), tighter third‑party due diligence and ongoing monitoring, strengthened controls over gifts/hospitality, sponsorships, facilitation-risk, and conflicts of interest (including revolving-door scenarios), and testing of reporting/escalation mechanisms (also in light of the Directive’s express linkage to the EU whistleblowing framework). 

For Italian entities subject to the 231 Decree, transposition will likely require a targeted update of the so-called Model 231 (compliance program). Companies that treat the Directive as a “legislative update” rather than a compliance redesign risk finding that their Model 231 is no longer viewed as adequately implemented or effective when scrutinized by prosecutors and courts.

The Directive now awaits formal adoption by the Council of the EU, after which it will enter into force 20 days following publication in the Official Journal of the European Union (1). Member States will have between 24 and 36 months from entry into force (depending on the obligations concerned) to transpose the Directive.

Bibliography

(1) europarl.europa.eu/news/en/press-room/20260323IPR38831/parliament-greenlights-eu-anti-corruption-rules

(2) EPRS_BRI(2024)762406_EN.pdf, P. 2

(3) EPRS_BRI(2024)762406_EN.pdf, P. 5

(4) https://www.europarl.europa.eu/legislative-train/theme-a-new-era-for-european-defence-and-security/file-directive-on-combating-corruption

(5) https://www.europarl.europa.eu/doceo/document/TA-10-2026-0094_EN.html

(6)  https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2001-06-08;231

(7) www.normattiva.it/uri-res/N2Ls=

The Distinctive Features of a Hybrid PPA

A Power Purchase Agreement — PPA — is, in its most basic form, a long-term contract whereby a renewable energy producer transfers its output to a buyer — typically an industrial consumer or a trader — on predetermined terms, thereby avoiding the volatility of the spot market.

The traditional pay-as-produced PPA has features that have certainly facilitated its uptake, particularly in Italy: volume risk is clearly allocated, the bankability of multi-year contracts with creditworthy counterparties is high, and the production profile of a photovoltaic or wind plant does not necessarily match the buyer's consumption profile. It is precisely this last feature that, in future market developments, could constitute a limitation to the further expansion of long-term contracts.

The Hybrid PPA was created precisely to overcome this potential limitation, combining one or more generation sources and BESS in an integrated structure. The addition of storage makes it possible to transform an intermittent and otherwise unmanageable production profile into one that more closely matches the consumer's needs. In essence, the BESS, together with trading activities, makes the product — the energy delivered to the end customer — qualitatively different from the basic as-produced output of a single renewable plant.

The Subjective Structure of the Hybrid PPA: Actors and Rationales

From a structural standpoint, a physical Hybrid PPA may involve the interests of a plurality of parties: the holders of renewable energy generation plants, the holders of storage systems, the trader acting as aggregator, the energy-intensive end customer, and the technology supplier/EPC Contractor. It is worth pausing on each of them, as the complexity of the Hybrid PPA stems precisely from the need to balance interests that do not always converge spontaneously.

The energy-intensive end customer has a clear priority: to receive energy in baseload form, with delivery at the PCE and Guarantees of Origin in relation to the volumes covered by the Hybrid PPA.

The trader has a twofold main interest: to present the energy-intensive end customer with a product that is as attractive as possible, while at the same time maximising its own margin by keeping the prices paid to the generator under the PPA and to the storage holder under the tolling agreement as low as possible. The trader's commercial objective is to enter into a PPA that is as close as possible to a Pay as Nominated arrangement with the generator — i.e. a Pay as Produced with a guaranteed minimum monthly volume — with delivery at the PCE.

The storage holder is primarily interested in receiving from the trader a fixed fee or a floor under the tolling agreement, such as to make this solution preferable to — and compatible with — any alternative means of valorising the storage capacity, including participation in the Capacity Market.

The Plant SPV aims to stabilise its revenues by entering into a PPA at the highest possible price, while ensuring the bankability of the contract.

Protection Requirements: Guarantees and Bankability

One of the most sensitive — and practically relevant — aspects of this contractual architecture concerns risk management and the structuring of guarantees among the parties, including the technology supplier and EPC Contractors, also for bankability purposes.

The trader will seek to protect itself against the various risk fronts by requesting the delivery of guarantee instruments.

The Regulatory Framework

In this context, the enabling role of public instruments also comes into play: the Energy Release, the FER mechanisms, including FER Z, the MACSE, the Capacity Market, the MPPA and public guarantees, as well as the need to regulate the coexistence and interaction between public incentivisation and private contracting.

Will the PPA market finally take off, or will it remain marginal compared to the public schemes managed by the GSE? Will FER-Z — with its decentralised structure and incentivisation of profile delivery — contribute to the growth of the PPA market, or could it prove to be a limitation?

To recap, in the proposal, a company can register within 48 hours, fully online, at a maximum cost of €100 and with no minimum share capital. The Commission says founders will submit their information once through an EU level interface connecting national registers. A central EU register will follow in a second phase.[…]

[…] Fabio Coco, Partner ADVANT Nctm: "The Commission unveiled the EU Inc. proposal on 18 March: it falls short of what the financial sector urgently needs to accelerate innovation and it does not offer any form of ‘fintech passport’ or a genuine ‘single license’ for financial services. 

At this stage, the ‘EU Inc.’ proposal, seems to be a missed opportunity for innovation in the financial sector: the absence of an EU-wide regulatory sandbox or ‘safe harbor’ provision is a notable omission. Such an environment is vital for testing innovative financial services under a reduced regulatory burden without compromising market integrity. By deferring to existing national frameworks, the proposal misses a critical opportunity to lower the high barriers to entry in the banking, insurance, and financial sectors. This lack of centralised ambition risks curbing the competition and innovation the initiative was intended to foster.

In contrast, the progress made by the Italian Supervisory Authorities serves as a robust benchmark. Facilitated by a forward-thinking legislative approach, Italy successfully implemented a national regulatory sandbox. This controlled environment allows supervised entities and Fintech operators to test technologically innovative products and services within the banking, financial and insurance sectors for a defined period – a model that provides the clarity and flexibility currently missing from the broader EU proposal". […]

Read the full article on techround.co.uk

The Problem

Generative AI systems are trained on vast quantities of content gathered from the internet without authorisation and without compensation for those who produced it. The result, according to the European Parliament, is that authors find themselves competing in the market with systems trained on their own content, without having been asked for consent or receiving any compensation. This dynamic raises significant issues both in terms of authors' individual rights and the economic sustainability of the European cultural sector as a whole.

Measures Requested of the Commission

Transparency. AI providers should provide a detailed list of the protected content used in training — an obligation based on the principle of sufficient disclosure: the disclosure must be sufficiently detailed to allow rights holders to verify whether and how their content has been used. This measure builds on the provisions of the AI Act for GPAI models, which requires the publication of summaries of training data, whilst going a step further towards a significantly higher level of detail.

No geographical loopholes. An AI system that uses protected content outside the EU should not be marketed in the European market. This principle reflects the extraterritorial approach already adopted by the AI Act, which applies to all systems placed on the European market regardless of where they were developed.

Traceable crawlers. Those who collect data from the web should be identifiable by website operators and should keep detailed records of their activities.

Digital watermarks. Rights holders would be able to mark their content; AI providers would be obliged to keep watermarks intact and to offer tools to detect them. This issue intersects with the provisions of the AI Act on the labelling of synthetic content and the automated detection of deepfakes.

Right of exclusion. The Parliament proposes that rights holders should be able to exclude their content from model training, using standardised formats managed by the EUIPO. This would constitute an operational strengthening of the opt-out mechanism already provided for in the Digital Single Market (DSM) Directive, which the AI Act refers to but does not regulate in detail.

Collective licences. The EUIPO could coordinate a sector-specific licensing system. For content already used without authorisation, fair and proportionate transitional remuneration is envisaged.

Labelling. The proposal suggests introducing an obligation to distinguish content "generated by AI" from that "produced by a human being", with a code of good practice to be drawn up by the Commission — in line with the transparency obligations already introduced by the AI Act for systems that generate synthetic content or interact directly with users.

A Fundamental Principle

Content protection should remain anchored to human authorship: content generated entirely by AI would not be protectable and would remain in the public domain.

Why It Matters Now

Read alongside the AI Act, the resolution contributes to shaping a regulatory mosaic still under construction. The AI Act laid the foundations — transparency obligations, risk management, model governance — but deferred the issue of content protection to subsequent developments. This resolution indicates the form those developments might take. For those working in the cultural or technology sectors, now may be the time to assess their practices in light of a regulatory framework which, between existing obligations and measures still being defined, appears set to evolve significantly in the years ahead.

Read the February 2026 issue

Stay Update!

By amending Articles 7, 7.1 and 7.2 of Law No. 130/1999 (the Italian Securitisation Law), the reform enables companies to unlock the financial value of their stock through capital markets structures, offering an alternative to traditional collateral-based lending.

1. Key Elements of the Reform

Inventory becomes a securitisable asset: for the first time, non-registered movable assets — including inventory — may be directly securitised. This allows transactions based on the transfer of stock to an securitisation vehicle and the issuance of inventory-backed notes under Article 7.2.

Expansion of the segregated pool (patrimonio destinato): the designated pool may now include not only receivables but also assets across the entire production cycle — raw materials, work in progress, finished goods and substitute assets — enabling dynamic, revolving structures aligned with operational needs.

Two alternative securitisation routes:

(i) Article 7.1 structure: the company designates inventory (together with existing or future receivables) within a segregated pool, or transfers it to a supporting non-issuing SPV. The issuing SPV grants a limited recourse loan, with repayment sourced from the segregated assets and related proceeds within a statutorily ring-fenced structure.

(ii) Article 7.2 structure: the inventory is sold to the issuing SPV in a true sale transaction. The SPV finances the purchase through the issuance of notes backed by the transferred stock and related sale proceeds, allowing a structurally cleaner destocking solution.

Access for non-licensed lenders: non-licensed lenders may use securitisation techniques to provide inventory financing (previously reserved for banks and regulated intermediaries) or to purchase the inventory.

2. Biggest Changes from the Previous Framework

The reform marks a clear shift from pledge-based inventory finance to full securitisation alternatives. Previously, inventory financing relied on non-possessory pledges securing a loan. The new regime introduces structures based either on statutory segregation (Article 7.1) or on true sale to an issuing SPV (Article 7.2), significantly broadening the available toolkit. Designated pools are no longer limited to receivables and ancillary collateral but may encompass the entire production cycle, enabling revolving and continuously replenishable structures. The introduction of a true sale option under Article 7.2 also creates the possibility of off-balance sheet treatment and clearer structural ring-fencing compared to traditional security-based models.

3. Why It Matters

The reform materially expands inventory-based financing in Italy. It opens new liquidity channels, reduces the operational constraints associated with pledge structures, and facilitates market-driven destocking transactions through standardised securitisation tools.

For a complete analysis — including structural diagrams, tax considerations and a detailed comparison of Articles 7.1 and 7.2 — please refer to our full alert available here.

https://www.advant-nctm.com/en/news/legge-annuale-pmi-novita-in-tema-di-cartolarizzazioni-per-lo-smobilizzo-del-magazzino 

On 17 February 2026, the European Commission opened formal proceedings against Shein, designated as a Very Large Online Platform (VLOP) under the Digital Services Act (DSA). The initiative falls within the framework of the supervisory powers conferred on the Commission to verify compliance with the obligations imposed on large digital platforms, in particular with regard to the circulation of illegal and counterfeit products within online marketplaces. Among the issues under examination is the possible presence on the platform of goods infringing intellectual property rights, including trade marks, designs and copyright. Shein was formally designated as a VLOP by the European Commission in October 2023.

2. DSA Obligations Concerning Illegal Products and IPR

The Digital Services Act introduces a system of responsibility and due diligence for online platforms, directly affecting the circulation of counterfeit products as well. The DSA replaces the previous intermediary liability regime established by the E-Commerce Directive (2000/31/EC), significantly strengthening the obligations placed on platforms.

The most relevant obligations include:

a) Notice-and-action mechanisms (Art. 16 DSA): platforms must establish systems enabling rights holders to easily report illegal content or products, including items that infringe intellectual property rights. The system must be easily accessible, equipped with a direct electronic channel, and capable of allowing sufficiently precise reports. The platform is required to communicate its decision to the reporting party, with an obligation to provide reasons in the event of a refusal.

b) Trader traceability (Art. 30 DSA): marketplaces must collect and verify information on professional sellers operating on the platform — including business name, VAT number and bank details — in accordance with the "Know Your Business Customer" (KYBC) principle, with a view to reducing the presence of operators selling counterfeit products. Sellers who have not provided the required information or whose verification has failed may not operate on the platform.

c) Enhanced obligations for VLOPs (Arts. 34–35 DSA): very large online platforms must: i) assess systemic risks, including the spread of illegal products, on an annual basis; ii) adopt mitigation measures, such as more effective control systems and enhanced moderation; iii) undergo independent audits of compliance with the measures adopted (Art. 37 DSA).

d) Transparency and data access: VLOPs must provide information on how their systems operate and on the measures taken to counter illegal content and products, as well as share data with the Commission and authorised researchers (Arts. 40–42 DSA).

3. The Focus of the Investigation: Counterfeit Products

With specific regard to Shein's activity as a third-party marketplace, the Commission's investigation concerns in particular the possible inadequacy of the measures adopted by the platform to: prevent third-party sellers from selling products that infringe registered trade marks or designs; promptly remove items reported as counterfeit through notice-and-action mechanisms; ensure the traceability and proper identification of third-party sellers pursuant to Art. 30 DSA.

In this context, the DSA serves as a complementary instrument to traditional IP rights enforcement, since it does not target the individual act of counterfeiting carried out by the third-party seller, but rather the governance of the platform that enabled the commercialisation of such goods.

4. Possible Consequences of the Investigation

Should the Commission find violations of the Digital Services Act, it could impose:

• corrective measures to strengthen the platform's control systems (modification of notice-and-action systems, enhanced seller verification, periodic reporting obligations);

• fines of up to 6% of the company's annual global turnover (Art. 74 DSA);

• periodic penalty payments of up to 5% of average daily turnover for each day of non-compliance;

• in cases of serious and repeated infringement, interim measures and, as a last resort, temporary suspension of access to the service in the EU (Art. 76 DSA).

   

5. Conclusions

The investigation into Shein provides a significant opportunity to reflect on the role that the Digital Services Act may play, indirectly, in the enforcement of intellectual property rights in the digital economy.

The DSA strengthens the procedural responsibility of online platforms, imposing more stringent due diligence obligations in the management of potentially counterfeit products. This represents a step forward compared to the previous regime, but it does not eliminate the structural difficulties of IP enforcement in the digital context: the fragmentation of supply chains, the speed with which dishonest sellers reconstitute themselves under new identities, and the complexity of verification at a global scale remain open challenges.

For rights holders, the mechanisms introduced by the DSA — in particular notice-and-action and trader traceability — offer additional protective tools, which complement rather than replace traditional IP remedies. The practical effectiveness of these tools will depend, however, on actual implementation by platforms and on the rigour with which the Commission exercises its supervisory powers.

The outcome of the investigation into Shein will provide valuable guidance on the practical scope of the DSA in this area, but it is premature to regard it as a consolidated model: this is one of the first enforcement cases against a VLOP, and regulatory practice is still taking shape.

As a professional with over twenty years’ experience gained at leading national and international firms, Antonio La Porta boasts solid and recognised expertise in special and structured finance, with a particular focus on securitisations, covered bonds and NPL transactions, as well as in private debt, acquisition finance and the debt capital market. 

Alongside Antonio La Porta, Francesca Spadafora is also joining the firm as a managing associate. She specialises in banking and finance law, with expertise in debt capital market, corporate finance and acquisition finance.

This move is a sign of the further strengthening of ADVANT Nctm’s Banking & Finance practice, a process that began at the start of the year with Federico Morelli joining the partnership, and confirms the firm’s strategy of building a highly specialised team capable of identifying key market trends in a timely manner in order to offer increasingly focused and dedicated advice.   

“The entry of Antonio La Porta marks a further step in the strenghtening of our Banking & Finance practice. Following the recent joining of Federico Morelli, we are continuing to bolster our team by recruiting professionals with distinctive skills who can bring significant added value. This investment enables us to further enhance the quality of the support we give our clients in a constantly evolving market”, commented Paolo Montironi, Senior Partner of ADVANT Nctm.

“Joining ADVANT Nctm is a particularly exciting opportunity for me, in an area – Banking & Finance – that is already well-established and recognised in the market. I will bring to the firm my experience in corporate finance and structured finance, with the aim of further contributing to the development of the practice by leveraging four elements that I consider central: specialist expertise, strategic vision, teamwork and the ability to build solid and lasting market relationships”, said Antonio La Porta.

With the joining of Antonio La Porta, the total number of Partners at ADVANT Nctm rises to 85.

The removal last year of a Banksy in Venice has reignited a longstanding legal debate at the intersection of property law and copyright: when street art is created without permission on someone else's wall, who actually owns it? And can the property owner legally remove it?

In May 2019, during the inauguration of the Venice Biennale, a work attributed to Banksy appeared depicting a migrant child with its feet and part of its legs immersed in the water of a canal, wearing a life jacket and holding a flare emitting pink smoke. In early 2025, to preserve its integrity considering local climatic conditions and to allow restoration of the historic palazzo owned by Banca Ifis on which it was created, it was announced that the work would be removed by "detaching" it from the surface; the operation was carried out on the night of 23-24 July 2025. The restoration was completed in early 2026; the work is currently held at an undisclosed location and may soon be returned to its original site, this time with protective measures to shield it from the effects of water, salt air and wind.

Read the full article on artlawyersassociation.com

Raffaella Quintana is a partner and Head of White-Collar Crime, Investigation and Compliance at ADVANT Nctm. More than 35 years ago, when she built the first criminal law team inside a large Italian multi-practice firm, she had to make two arguments simultaneously: the legal one and the cultural one. The legal argument was technical. The cultural argument was harder, persuading partners and clients that business criminal law was not a niche for handling emergencies but a fundamental governance discipline, one that belongs in the room where strategy is made, not called in after the damage is done. That argument is now settled. What she continues to build is the architecture around it.

Read the full interview on Leaders League website

Given the extent of the innovations introduced, through this column, Energy Law Italy continues its analysis of the key measures set forth by the Decree, dedicating an analysis to each legislative amendment with particular focus on their potential practical implications (the other contributions are available at the following link).

In this analysis, we focus on the Decree's tax-related measures and in particular those concerning the IRAP rate applicable to energy sector operators. 

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Temporary increase of the IRAP rate

Specifically, Article 3 of the Decree – entitled “Provisions concerning the IRAP rate for energy sector enterprises” – provides for a two-percentage-point increase in the IRAP rate set forth in Article 16, paragraphs 1 and 1-bis, of Legislative Decree No. 446/97 establishing the regional tax on productive activities (IRAP), for the 2026 and 2027 tax years.

The surcharge applies to entities that predominantly carry out certain activities attributable to the energy sector, as identified by specific ATECO codes listed in Table 1 annexed to the Decree (further detailed below).

From an operational standpoint, the measure effectively entails:

• an increase in the ordinary rate from 3.9% to 5.9% for the generality of affected taxpayers.

• an increase from 4.2% to 6.2% in the rate applied to concessionaire enterprises, other than those engaged in the construction and management of highways and tunnels.

Effective Date

The surcharge, which is expressly temporary and non-structural in nature, applies starting from the tax year following the one in progress as of 31 December 2025.

For entities whose fiscal year coincides with the calendar year, the increase will therefore take effect as of 1 January 2026.

Subjective Scope and the Predominance Criterion

The subjective scope of the surcharge is determined on the basis of a “predominance” criterion, defined by reference to the “predominant” conduct of economic activities that must be attributable to the following macro-sectors identified in Table 1 annexed to the Decree:

• Extractive Activities (Section B):

  • 06 – extraction of crude petroleum and natural gas.

  • 09.1 – support activities for petroleum and natural gas extraction.

• Manufacturing Activities (Section C):

  • 19.2 – manufacture of products derived from petroleum refining and products from fossil fuels.

• Electricity and Gas Supply (Section D):

  • 35.1 – Production, transmission, and distribution of electric power.

  • 35.2 – Production of gas and distribution of gaseous fuels through mains.

  • 35.4 – Intermediation service activities for electricity and natural gas.

• Transportation and Storage (Section H):

  • 49.50.1 – Transport of gas via pipelines.

In the absence of further implementing guidance or criteria expressly defined by the legislature (potentially already during the parliamentary conversion process), the notion of “predominance” will likely need to be construed by reference to objective parameters, such as revenue volume or the value of production relevant for IRAP purposes. Consistent with the framework of the regional tax, it appears reasonable to consider that the decisive criterion may be identified in the percentage weight of the net production value attributable to energy activities relative to the total.

A particularly noteworthy issue concerns enterprises that, in addition to the activities falling within the ATECO codes identified by the Decree, also carry out further activities outside the energy perimeter. Based on the literal wording of the provision, it would appear that, where the energy activity is predominant, the increased rate applies to the entire IRAP tax base and not solely to the portion of net production value attributable to the predominant segment.

Such an interpretation, if confirmed in administrative practice, could give rise to significant complexities in application, particularly for multi-business groups, vertically integrated utilities, and companies engaged in mixed activities, where the delineation of the energy perimeter – for purposes of verifying predominance – may not always be straightforward, especially in the presence of functionally integrated activities or organizational models that do not allow for a clear separation of economic flows. This would indeed entail potential issues both in the subjective qualification phase and in the planning of overall tax impacts.

Impact on Advance Payments: Recalculation Using the Historical Method

A particularly significant operational aspect of the new legislative provision concerns its coordination with the mechanism for determining advance payments under the historical method. Paragraph 2 of Article 3 provides that, for purposes of calculating the advance payment due for the tax year following the one in progress as of 31 December 2025, the tax liability for the preceding period must be recalculated as if the increased rate were already applicable.

In substantive terms, this results in an acceleration of the tax burden already at the advance payment stage for 2026, with immediate effects on the liquidity and financial planning of the affected enterprises. The additional tax burden will therefore materialize before the final settlement, effectively enabling the Ministry of Economy to collect the resources as early as the upcoming June and November 2026 deadlines, and significantly impacting entities characterized by high production values and capital-intensive structures.

Allocation of Revenue and Redistributive Mechanism

The provision under review outlines and forms part of a broader strategy for the redistribution of resources within the energy sector, leveraging the IRAP tax mechanism to finance a targeted reduction in general system charges.

The Decree provides that the resources generated by the rate increase shall be entirely allocated to reducing the A_SOS component of the electricity bill for non-domestic users, excluding: (i) public lighting users, low-voltage users for other purposes, and non-domestic users connected at medium, high, and extra-high voltage; (ii) withdrawals benefiting from the special tariff regime under Article 29 of Decree-Law No. 91/2014; and (iii) users enrolled in the registry of enterprises with high electricity consumption established at the Fund for Energy and Environmental Services (CSEA) pursuant to Article 3 of Decree-Law No. 131/2023.

The benefit is therefore not absolute in scope but is directed at the intermediate productive sector that does not benefit from the preferential regimes reserved for large energy-intensive consumers and major industrial districts and that, in proportional terms, bears a significant incidence of general system charges.

In these terms, an internal reallocation mechanism within the energy system is thus established, whereby a portion of the additional tax revenue from energy supply chain operators is allocated to reducing energy costs for non-energy-intensive productive enterprises, with the stated objective of structurally mitigating the burden of general system charges.

From a systemic perspective, the measure is situated within a logic of internal rebalancing of the energy supply chain, aiming to capture a portion of the margins potentially earned in certain segments of the sector and to allocate them toward containing the energy costs borne by enterprises that are less protected against market volatility.

Although the provision does not expressly characterize the surcharge as a “solidarity contribution,” the structure of the intervention – confined to a specific sector and aimed at redistributing resources within it – recalls and presents clear substantive analogies with prior sector-specific levy measures oriented toward redistributive purposes.

It remains to be seen, however, including in light of future interpretive and implementing guidance, whether the legislative framework will succeed in reconciling the objective of equity with the need to ensure certainty and stability of the tax landscape. In particular, it will be necessary to assess whether the temporary increase in the IRAP rate may affect investment decisions and the predictability of the tax burden for sector operators, especially in an industry characterized by high capital intensity and medium- to long-term planning horizons.

Preliminary Considerations

The new regulatory framework effectively requires potentially affected enterprises to undertake a careful and timely internal analysis. In particular, it appears essential to conduct a thorough review of one's ATECO classification, also in light of the activities actually carried out and their economic significance, as well as a technical analysis of the criteria for determining “predominance,” with specific reference to the proportion of net production value attributable to energy activities.

At the same time, the economic and financial impacts arising from the rate increase must be assessed in advance, also considering the recalculation of the 2026 advance payments under the historical method, which will result in an acceleration of the higher tax burden.

In this context, a proactive and structured approach could help mitigate tax and interpretive risks, safeguard compliance requirements, and coherently and promptly integrate – although on a temporary basis - the new and increased charges into the tax and financial planning process, within an evolving regulatory environment that is moreover subject to potential amendments during the parliamentary conversion of the decree-law into statute.

Europe remains a solid and attractive market for investment and businesses, even in an international context marked by economic and geopolitical uncertainty.

This is the key finding of Europe’s Opportunity Outlook, the new report published by ADVANT — the European law firm association represented in Italy by ADVANT Nctm — based on the views of General Counsel (GC) in Europe and the United States.

The research was based on a survey of over 800 General Counsel (or equivalent roles) in France, Germany, Italy and the United States, working in companies with annual revenues exceeding $100 million. The survey was also accompanied by a series of in-depth qualitative interviews with GC in France, Germany, Italy, the United Kingdom and the United States.

According to the panel surveyed, Europe confirms its position as a solid region: indeed, 82% of General Counsel believe the area may benefit from new inflows of international investment. Furthermore, 66% of respondents rank Europe as their top destination for international expansion: some 83% expect to consolidate their presence in European markets where they already operate, while a similar share (82%) plan to expand their presence to new European countries over the next three to five years. This view is also shared by the Italian General Counsel interviewed: 69% believe the Old Continent is ready to benefit from globally driven growth opportunities. Europe as a whole is therefore considered an important source of new opportunities for all companies planning to launch internationalisation programmes in its market and key countries, such as Italy.

The ADVANT survey covered four key areas:

1) European stability as a competitive advantage

The results show a high level of confidence in the European environment: 84% of GC consider it stable and reliable. US General Counsel surveyed are even more optimistic than their European counterparts: 87% believe that Europe will benefit from global business expansion, compared to 71% in France, 76% in Germany and 69% in Italy.

2) Regulatory simplification

Alongside confidence in the European system, the report highlights the need to move forward decisively with regulatory simplification and harmonisation, identified by General Counsel as the main area for action to strengthen the EU’s competitiveness and encourage investment. One in five respondents (20%) identify simplification and greater regulatory uniformity as the most urgent reform priorities, followed by more effective tax incentives (16%) and greater support for innovation (15%). Although the European legal and regulatory framework is generally considered to be reliable and stable, there is a perception of relative weakness in terms of its ability to stimulate innovation and facilitate business. However, Italian General Counsel show a countetrend compared to the rest of the sample interviewed, expressing a more positive view of the European legal system’s openness to innovation (39%, compared to 33% in Germany and 31% in France). There is, moreover, a strong belief in Europe’s leading role in ESG: 85% of respondents think that the EU will continue to be a global leader in sustainability regulation.

3) Priorities: AI and cybersecurity 

Artificial intelligence and cybersecurity emerge as central issues at both the regulatory and operational levels. 41% of GC indicate AI as an area requiring urgent regulatory intervention, particularly in light of Europe’s structural lag behind the United States and China, while 38% point to cybersecurity, in a context where the continent is widely considered a prime target for cybercrime. At the same time, 42% consider such areas to be among the main internal risks for legal teams, which are called upon to ensure compliance and risk management in a rapidly evolving technological environment. In this context, however, the Italian General Counsel in the sample show a more positive attitude towards innovation and artificial intelligence, which only 38% perceive as a possible “threat” to their daily work. 

4) Evolution of the General Counsel’s role and expectations 

The report highlights the growing evolution of the role of General Counsel, who are increasingly involved in strategic business decisions. Indeed, 72% of General Counsel say they regularly support management in assessing geopolitical risks, confirming an expansion of responsibilities beyond the traditional legal function. In this scenario, technological innovation also becomes a distinctive factor in the choice of external legal advisors: 36% of General Counsel say that the use of technology, including AI, significantly affects the selection of external advisors, a percentage that rises to 40% for Italian General Counsel. This transformation is also reflected in the expectations towards external advisors: 39% of GC prefer a hybrid model of legal support, combining a regional presence with specialist expertise. In this context, breadth of expertise, sector experience and coverage of key European countries emerge as the most relevant criteria when selecting legal advisors.

Guido Fauda, Partner at ADVANT Nctm and member of the ADVANT Steering Group for Italy, commented: “The EU has set clear objectives to boost competitiveness and future prosperity by simplifying regulation and aligning EU and national policies.  However, it remains to be seen whether these actions will be truly sufficient and implemented swiftly. There is a real risk that the volume and complexity of regulation may disadvantage companies operating in Europe compared to jurisdictions with less burdensome rules. At the same time, the EU remains one of the world’s leading economies, with a reliable and predictable legal and regulatory system, and continues to offer a resilient and attractive environment for investment and business, even in a rapidly changing global scenario marked by geopolitical and economic uncertainties, as is clear from the assessments of the General Counsel called upon to lead the legal departments of the companies involved in our research. In particular, the report also clearly shows that Italian General Counsel continue to believe in the strong potential of European development, proving to be even more open - compared to their colleagues interviewed - on some of the most decisive issues, such as the role of technological innovation. These are extremely important drivers that are already part of our daily lives and which, at ADVANT Nctm, we are translating into concrete actions to continue supporting our clients with advice that is closely aligned with their real needs and capable of internalising and turning the continuous evolution of the market into actionable strategies”.

“Furthermore, this survey – carried out by ADVANT, our European law firm association – once again confirmed the importance of sharing insights and reflections that can help foster a common vision and approach”, added Guido Fauda. “This work revealed some extremely important findings, on the basis of which we can develop shared approaches aligned with the needs of businesses, which will increasingly require specialised and tailored advice on the most decisive and strategic aspects, as highlighted by our survey.”

For further information and access to the full report: www.advantlaw.com/europe

ADVANT Nctm takes a further step in strengthening its expertise with the appointment of Luigi Ardizzone and Francesco Follieri, both previously Of Counsel and members of the Scientific Committee, as Partners. 

Luigi Ardizzone serves as a Full Professor of Commercial Law at the Department of Law at the University of Brescia. His expertise lies primarily in corporate law and financial markets, encompassing both litigation and M&A transactions.

Francesco Follieri serves as a Full Professor of Administrative Law at the Department of Legal Sciences of LUM “Giuseppe Degennaro.” He has extensive experience in both court and out-of-court matters across multiple areas of administrative law, including contracts and public services, healthcare, infrastructure, urban planning and construction, publicly-owned companies, energy, environment, cultural heritage, and public financial liability.

The appointment of Luigi Ardizzone and  Francesco Follieri as Partners reflects ADVANT Nctm’s long-term vision, which considers the synergy between professional practice and academic work as a distinctive element of the Firm’s identity. 

Such approach is expressed both at a technical level —through its Scientific Committee, composed of leading university professors from Italy’s top universities—and through ongoing internal and external training initiatives such as the awarding of scholarships and graduation prizes to university students, following a path aimed at contributing to the growth of new generations and the continuous enrichment of the Firm’s knowledge base. 

“The inclusion of Luigi Ardizzone and Francesco Follieri in our partnership marks an important step forward, consistent with our growth path and with the attention we have always devoted to the academic world as a key reference point for promoting a scientific and rigorous approach to professional practice. Strengthening the relationship between academia and the profession means investing in the quality of our advisory services and in the future of our community, fostering a paradigm that allows us to stand out significantly in the market”, commented Paolo Montironi, Senior Partner of ADVANT Nctm.

“We are very pleased to contribute, also as Partners, to a project that concretely promotes the synergy between academic work and legal practice. We believe that the ongoing dialogue between scientific research and professional activity is a decisive factor in developing innovative solutions and fostering growth.”, commented Luigi Ardizzone and Francesco Follieri.

Given the scope of the changes introduced, with this editorial series, Energy Law Italy launches a dedicated space for the analysis of the key measures brought in by the Decree, with a focused commentary on each legislative amendment and particular attention to their potential practical implications.

In this article, we focus on the impact of the Decree with regard to the measures aimed at reducing costs for electricity generation from gas-fired thermoelectric sources.

***

Article 6 of Decree-Law No. 21/2026 (the so-called "DL Bollette") introduced a reimbursement mechanism for gas-fired thermoelectric producers that, in terms of both structure and scope, is without precedent in the European regulatory landscape. The measure, which provides, inter alia, for the compensation of direct costs incurred for the purchase of emission allowances under the EU ETS system, raises questions of primary importance regarding its compatibility with the legal order of the European Union. This contribution aims to examine the principal areas of concern arising from the provision, from its classification as State aid to its implications for the functioning of the single energy market, offering a systematic interpretive framework for a legislative intervention that is destined to fuel a debate transcending national borders.

1. Background and Purpose of the Legislative Intervention

On February 18, 2026, the Italian Government adopted Decree-Law No. 21/2026 (published in the Official Gazette No. 42 of February 20, 2026), entitled "Urgent measures for the reduction of electricity and gas costs for households and businesses, for the competitiveness of enterprises and for the decarbonization of industries, as well as urgent provisions regarding the resolution of virtual saturation of electricity grids and the integration of data processing centers into the electricity system."

Beyond the stated and commendable objective of containing energy costs for households and businesses, among the provisions that have attracted the greatest interest – and the most heated debate – within the sector are those contained in Article 6 of the decree, entitled "Urgent measures for the reduction of charges on natural gas withdrawn for the purpose of electricity generation and for the strengthening of competitiveness in wholesale electricity markets." Said Article introduces a dual reimbursement mechanism for gas-fired thermoelectric producers: (i) the reimbursement of specific components of the natural gas transportation tariff applied to withdrawals for the production of electricity injected into the grid; (ii) an additional reimbursement commensurate with the expected cost of emission allowances under the EU ETS system for an efficient combined cycle gas turbine (CCGT) plant. The latter measure is expressly conditioned upon the prior authorization of the European Commission pursuant to Article 108(3) TFEU.

2. The EU ETS System: Architecture and Fundamental Principles

The European Union Emissions Trading System (EU ETS), established by Directive 2003/87/EC, constitutes the principal instrument adopted by the European Union for the achievement of CO₂ emission reduction targets in the major industrial sectors and in the aviation sector. Operational since 2005 as the first and largest carbon market worldwide, the system was conceived to implement the commitments undertaken by the EU under the Kyoto Protocol and was subsequently aligned with the objectives of the Paris Agreement.

The system is founded upon the "polluter pays" principle enshrined in Article 191(2) TFEU, which requires the internalization of environmental costs by those responsible for emissions. The market-based approach was selected in order to achieve emission reductions in the most cost-efficient manner, allowing the market to determine the carbon price and to incentivize emission abatement wherever it proves least economically burdensome.

It is a cap-and-trade mechanism that sets an overall ceiling (cap) on the emissions permitted across European territory in the covered sectors, to which corresponds an equivalent number of emission allowances (where 1 ton of CO₂eq. equals 1 allowance), which may be purchased or sold on a dedicated market (trade). Each industrial operator active in the sectors covered by the scheme is required to offset, on an annual basis, its actual emissions – as verified by an independent third party – with a corresponding quantity of allowances. The accounting of offsets is maintained through the Union Registry, while oversight of compliance with the deadlines and rules of the mechanism is entrusted to the National Competent Authorities (NCAs).

The system has evolved through four successive phases (Phase I: 2005–2007; Phase II: 2008–2012; Phase III: 2013–2020; Phase IV: 2021–2030), with progressively more stringent caps. The overall quantity of allowances available to operators (cap) decreases over time, effectively mandating a reduction in greenhouse gas emissions in the ETS sectors: in particular, by 2030, the mechanism will ensure a 43% reduction compared to 2005 levels. The system is an integral component of the achievement of the EU's binding climate targets, including the 55% emission reduction by 2030 pursuant to the European Climate Law (Regulation 2021/1119) and climate neutrality by 2050. The Market Stability Reserve absorbs surplus allowances (24% annually) or releases them in the event of scarcity, ensuring price stability and the proper functioning of the market.

Allowances may be allocated on an onerous or gratuitous basis. In the former case, they are sold through public auctions in which accredited entities participate, purchasing primarily to offset their own emissions, but which may also supply the secondary carbon market. In the latter case, allowances are allocated free of charge to operators at risk of relocating production to countries characterized by less stringent environmental standards than those of the EU (so-called carbon leakage). Free allocations are the province of the manufacturing sectors and are calculated by reference to the emissions of the most "virtuous" installations (so-called benchmarks, predominantly based on the most efficient production processes).

For the purposes of this analysis, it is appropriate to distinguish between direct carbon leakage and indirect carbon leakage. The former refers to the risk of relocation of European enterprises to third countries with less stringent environmental standards, driven by the high direct cost of emission allowances. The latter concerns the increase in electricity prices caused by the pass-through of ETS costs by thermoelectric producers into the prices of electricity sold to end consumers, with a consequent increase in costs for European electro-intensive enterprises exposed to international competition.

The system is structured so as to incentivize greenhouse gas emission reductions and energy-efficient techniques, considering available technologies, substitute products and alternative production processes, high-efficiency cogeneration, efficient energy recovery from waste gases, the possibility of using biomass, and carbon capture and storage.

A crucial aspect for understanding the criticalities of the Italian measure concerns the regime applicable to electricity producers. Within the framework of the EU ETS, electricity producers do not benefit from the free allocation of allowances, with the exception of the specific cases provided for in Article 10c of the ETS Directive and for electricity produced from waste gases. The exclusion of the electricity sector from free allocation is based on the premise that electricity producers can pass through the cost of ETS allowances in the prices of electricity sold to end consumers (the pass-through or carbon cost transfer phenomenon), unlike other industrial sectors exposed to international competition that face the risk of emission relocation (carbon leakage).

As of 2019, Member States shall auction all allowances that are not allocated free of charge pursuant to Articles 10a and 10c of the ETS Directive and that are not placed in the Market Stability Reserve.

Accordingly, thermoelectric producers (gas-fired CCGTs, coal-fired plants, etc.) are required to:

• obtain an authorization to emit greenhouse gases and surrender emission allowances equal to the total emissions released by the installation during each calendar year, as verified pursuant to Article 15 of the Directive, by September 30 of the following year.

• bear the actual economic cost for each ton of CO₂ emitted, equal to the price of allowances purchased at auction.

• purchase ETS allowances through auctions organized by the Member States, rather than receiving them free of charge.

   

3. Anatomy of Article 6: Structure and Mechanism

Article 6 of Decree-Law No. 21/2026 is structured in six paragraphs (commi), each of which warrants detailed examination.

• Paragraph 1 – Strengthening of competition in the wholesale electricity market. For the purpose of strengthening competition in wholesale electricity markets and promoting the pass-through in offer prices of the valuation of variable costs of non-programmable renewable energy sources, ARERA is required to adopt, within three months of the entry into force of the decree, in implementation of Regulation (EU) No. 1227/2011 (REMIT), one or more measures for the assessment of economic capacity withholding conduct by wholesale market operators. In particular, the provision stipulates that, with reference to sell offers submitted in the Day-Ahead Market (MGP), opportunity costs estimable at the time of negotiation shall constitute the sole legitimate economic grounds for offering at a price above the marginal cost of generation capacity, in line with the guidelines of the European Union Agency for the Cooperation of Energy Regulators (ACER) of December 18, 2024.

• Paragraph 2 – Reimbursement of natural gas transportation tariff components. ARERA, through one or more measures, shall define the modalities by which, effective January 1, 2027, the variable unit charges of the natural gas transportation tariff – other than those serving to cover costs of a variable nature – and the additional tariff components of the natural gas transportation tariff covering general system charges of the gas system, applied to natural gas withdrawals for the production of electricity injected into the grid, in addition to those already subject to reimbursement pursuant to ARERA Resolution of March 26, 2020, No. 96/2020/R/eel, shall be included among the charges subject to reimbursement to thermoelectric producers. The shortfall in revenue resulting from the reimbursement shall be covered through components applied to electricity withdrawals, in accordance with the modalities defined by ARERA, which shall, where necessary, update the provisions set forth in Resolution 96/2020/R/eel.

• Paragraph 3 – Additional reimbursement for ETS costs. In addition to the provisions of Paragraph 2, ARERA, by means of a dedicated resolution, shall regulate the reimbursement to thermoelectric producers, for natural gas withdrawals for the production of electricity injected into the grid, of an amount determined by the Authority with adequate advance notice and for predefined time periods, in order to maximize the benefits for Italian consumers, also taking into account the expected impacts on cross-border exchanges, and in any event within the limit of the expected cost, for the same period, for an efficient combined cycle gas turbine (CCGT) plant for compliance obligations connected to ETS emissions. The shortfall in revenue resulting from such reimbursement shall be covered pursuant to Paragraph 2, last sentence.

• Paragraph 4 – Verification of full pass-through of reimbursements in sell offers. ARERA shall verify that the reimbursements referred to in Paragraphs 2 and 3 are fully passed through in the sell offers pertaining to the thermoelectric plants benefiting from said reimbursements. In the event of a negative verification, the producer shall be required to return the relevant reimbursements, increased by any penalties imposed by the Authority pursuant to Law No. 481 of November 14, 1995. To this end, ARERA, through the same measures referred to in Paragraph 1, shall define the modalities and criteria for verification procedures, as well as the offer behaviors to be deemed in any event compliant with the pass-through obligation.

• Paragraph 5 – Adjustment of the capacity market. ARERA shall adjust the economic conditions provided for in the capacity market framework pursuant to Legislative Decree No. 379 of December 19, 2003, to take into account the effects arising from the implementation of Paragraphs 1, 2, and 3.

• Paragraph 6 – Subordination clause requiring prior European authorization. The effectiveness of the provision set forth in Paragraph 3 is conditioned upon the prior authorization of the European Commission pursuant to Article 108(3) of the Treaty on the Functioning of the European Union.

   

4. Systemic Implications of the ETS Reimbursement

The reimbursement provided for under Article 6, Paragraph 3, of the decree to thermoelectric producers for ETS costs incurred in electricity generation presents particularly significant areas of concern from a systemic standpoint.

First, the measure neutralizes the decarbonization incentive inherent in the ETS system, which requires thermoelectric producers to internalize emission costs, thereby incentivizing the transition toward lower carbon-intensity generation sources.

Second, the mechanism transfers the cost of emissions from the producers – who bear direct responsibility therefor – to end consumers, through tariff components applied to electricity withdrawals, thereby inverting the logic of the "polluter pays" principle.

Third, the measure contradicts the principle of excluding the electricity sector from the free allocation of allowances, reintroducing de facto a form of economic compensation that eliminates the exposure of thermoelectric producers to the carbon price.

5. Classification as State Aid Pursuant to Article 107(1) TFEU

For a measure to constitute State aid within the meaning of Article 107(1) TFEU, four cumulative conditions must be satisfied: (i) the measure must be granted by the State or through State resources; (ii) it must confer a selective advantage on certain undertakings or the production of certain goods; (iii) it must affect trade between Member States; (iv) it must distort or threaten to distort competition.

The reimbursement to thermoelectric producers provided for under Article 6 of the decree satisfies all of the foregoing criteria:

• State resources. The shortfall in revenue resulting from the reimbursement is covered through components applied to the electricity withdrawals of end customers, in accordance with modalities established by ARERA, thereby constituting a transfer of resources from consumers to producers mediated by a public mechanism (regulated tariff components).

• Selective advantage. The measure confers an economic advantage on thermoelectric producers by compensating costs (ETS and gas transportation) that said producers would have borne under normal market conditions. The advantage is selective insofar as it is granted exclusively to undertakings active in a specific sector of electricity generation.

• Effect on trade. The electricity sector is fully integrated at the European level through the Single Day-Ahead Coupling (SDAC), market coupling, and cross-border interconnections. Any advantage conferred on domestic producers therefore affects trade between Member States.

• Distortion of competition. The measure alters the relative competitiveness of Italian thermoelectric producers vis-à-vis those of other Member States and vis-à-vis other generation technologies (renewables, nuclear, hydroelectric).

   

6. The Notification Obligation and the Risk of Unlawful Aid

Regulation (EU) 2015/1589 provides that plans to grant new aid shall be notified to the Commission and shall not be put into effect before the Commission has taken a decision authorizing such aid (standstill obligation pursuant to Article 108(3) TFEU). Implementation of the measure in violation of the notification obligation would constitute unlawful aid, subject to a recovery order – inclusive of interest – should the Commission adopt a negative decision.

From a temporal standpoint, it is observed that the effective date of the mechanism is set at January 1, 2027, rendering uncertain the completion of the European authorization process in time for the commencement of the measure.

An aspect warranting particular attention concerns the scope of the subordination clause. Paragraph 6 of Article 6 conditions upon the prior authorization of the European Commission only the effectiveness of Paragraph 3 (reimbursement of ETS costs). However, Paragraph 2 – which provides for the reimbursement of natural gas transportation tariff components to thermoelectric producers – likewise presents the same constituent elements of State aid analyzed above (State resources, selective advantage, effect on trade, distortion of competition). The implementation of Paragraph 2 without prior notification to the European Commission therefore entails a concrete risk of illegality of the measure.

7. Principal Areas of Incompatibility with European Union Law

a. Structural Divergence from the ETS Guidelines

The European Commission's Guidelines (2022 Guidelines on State aid for climate, environmental protection and energy) authorize aid to compensate for indirect emission costs, defined as the costs of emissions passed through in electricity prices and borne by undertakings active in sectors or subsectors deemed to be exposed to a significant risk of carbon leakage due to indirect costs, as listed in the relevant Annex. The stated objective is to prevent the significant risk of carbon leakage for sectors exposed to international competition that cannot pass through such costs in product prices without losing significant market share.

The Italian measure, by contrast, provides for a direct reimbursement to thermoelectric producers for ETS costs incurred in electricity generation.

Such scheme: (i) does not fall within the category of indirect emission costs contemplated by the ETS Guidelines; (ii) compensates energy producers – who are direct participants in the ETS – rather than industrial consumers; (iii) risks undermining the carbon price signal that underpins the functioning of the ETS as a cost-effective emission reduction mechanism. The divergence is structural and without precedent among the schemes authorized by the European Commission.

The Italian measure furthermore appears to constitute a violation of marginal pricing and the Single Day-Ahead Coupling (SDAC).

The statutory imposition on gas-fired thermoelectric producers to offer in the MGP at prices stripped of actual cost components (ETS and gas transportation) conflicts with the uniform marginal pricing principle of the European day-ahead market, as established by the CACM Regulation (Capacity Allocation and Congestion Management), which may not be unilaterally derogated by a Member State. The impact of such mechanism on wholesale price formation is all the more significant given that, as noted by ARERA, in the Italian electricity market CCGT/gas plants were at the margin (price setting) in 68% of hours in 2023 and 71% of hours in 2024, confirming their determinative role in zonal price formation in the MGP.

Finally, an intervention that compels operators by law to offer prices different from those justified by actual costs creates an "artificial" price in the day-ahead market, distorting the European market coupling mechanism.

In this regard, it is significant to observe that the analogy with the "Tope Ibérico" of 2022 – the Spanish-Portuguese mechanism capping the price of gas used for electricity generation – is only partial: the Tope Ibérico was authorized by the European Commission as a temporary and exceptional derogation from the SDAC in the context of an extraordinary energy crisis (the Russian invasion of Ukraine, the surge in gas prices), whereas Article 6 of the decree appears to constitute a structural intervention without an explicit temporal limitation.

b. Incompatibility of Paragraph 1 with the Legal Order of the European Union

The provision contained in Paragraph 1 of Article 6 is entirely unprecedented and peculiar in character. For the first time, the national legislature imposes upon the national regulatory authority (ARERA) the obligation to conform to a specific interpretive reading of a European Union regulation – REMIT – prescribing that, in the exercise of its supervisory function over the conduct of operators in the wholesale market, offers formulated at prices above marginal cost shall be presumed illegitimate, unless the operator provides adequate economic justifications based on opportunity costs estimable at the time of negotiation.

This provision is consistent with the position recently expressed by ARERA in Resolution No. 302/2025/R/eel, adopted following a fact-finding inquiry into the outcomes of national short-term delivery auction electricity markets. The position taken by the Authority has provoked strong reactions from sector operators, who contend that the marginal cost criterion does not permit the recovery of fixed costs, including investment costs. This has given rise to litigation, currently pending before the Milan Administrative Court (TAR Milano), in which the applicants challenge the interpretation of Article 5 of REMIT advanced by ARERA, deeming it inconsistent with the guidance provided by ACER in its own Guidelines.

The legislative imposition upon the national regulatory authority of the obligation to interpret REMIT in conformity with governmental directives is difficult to reconcile with the normative architecture of the European Union. Within the system of EU law, a regulation is binding in its entirety and directly applicable in each of the Member States, and the competence to provide its authentic and binding interpretation rests exclusively with the Court of Justice of the European Union, in safeguard of the principles of the primacy of EU law, the autonomy of the European legal order, and the uniform application of common rules. The national legislature, while empowered to regulate aspects left to the discretion of Member States, may not therefore impose a binding interpretation of a Union regulation.

Article 6, Paragraph 1, of the decree, moreover, in prescribing a particular interpretation of REMIT, encroaches upon the sphere of independence that EU law reserves to national regulatory authorities. Pursuant to Article 57 of Directive (EU) 2019/944 concerning common rules for the internal market for electricity, such authorities shall neither seek nor take instructions from any government or from any other public or private entity when carrying out their regulatory tasks. The Court of Justice has further clarified that EU law guarantees such authorities "full independence from economic operators and public bodies, whether administrative or political, and in the latter case whether holders of executive or legislative power" (judgment of September 2, 2021, Commission v. Germany, C-718/18).

c. The Risk of Market Manipulation Under REMIT

The REMIT Regulation (1227/2011) prohibits any transaction, order to trade, or offer which secures or attempts to secure the price of one or more wholesale energy products at an artificial level, unless the person demonstrates that its reasons for doing so are legitimate and that the transaction conforms to accepted market practices.

A normative paradox arises: in the event that ARERA has identified possible discrepancies between market prices and marginal costs attributable to bidding strategies of thermoelectric producers, the statutory obligation to offer at prices stripped of actual cost components (ETS and gas transportation) could paradoxically itself constitute an "institutionalized" price manipulation, creating an artificial price level by operation of law.

The decree entrusts ARERA with the task of verifying – also on the basis of Articles 2 and 5 of Regulation (EU) 1227/2011 (REMIT) – that the reimbursements are fully passed through in the sell offers pertaining to the relevant installations, and of adopting measures to assess "economic withholding" conduct in wholesale markets. However, the verification of "full pass-through" of reimbursements in offers presents significant operational and enforcement difficulties: (i) difficulty in granular monitoring of hourly bidding strategies; (ii) risk of overcompensation if the pass-through does not occur in full; (iii) potential distortions if operators adopt arbitrage strategies between reimbursements and market prices.

d. Cross-Border Distortions and the Risk of "Energy Dumping"

ARERA is required to regulate the "additional" reimbursement taking into account the expected impacts on cross-border exchanges (market coupling). The Italian day-ahead market is part of the European Single Day-Ahead Coupling (SDAC), with rules – including uniform marginal pricing – of EU origin that may not be unilaterally derogated.

The artificial reduction of the Italian price through the stripping out of ETS and gas transportation costs would entail the following distortions:

• Increase in Italian exports: artificially lower Italian prices would render Italy a net exporter to neighboring countries (France, Austria, Slovenia, Switzerland, Greece), increasing domestic gas-fired thermoelectric production, with consequent higher emissions and ETS costs.

• Cross-subsidy paradox: Italian consumers would pay, through the components applied to electricity withdrawals, the reimbursement costs including for exported production, thereby effectively subsidizing foreign consumers – who are potentially competitors of Italian industry.

• Incompatibility with the SDAC: ARERA has indicated that in its own simulations it was not possible to fully account for cross-border exchanges due to the complexities of modeling European market coupling. A mechanism that unilaterally modifies price formation could require Italy's exit from the SDAC or the creation of "two prices" (domestic and export), both solutions of difficult compatibility with EU law. The European Parliament, in its resolution of January 18, 2024, on the reform of the EU electricity market, emphasized the importance of preserving the integrity of the single energy market and of avoiding distortions arising from unilateral national price interventions.

8. Implications for the Retail Market and Distributional Concerns

The reimbursement is financed through components applied to the electricity withdrawals of end customers, in accordance with modalities defined by ARERA. However, the decree provides no details as to how such components would be apportioned among different categories of customers (fixed-price vs. indexed contracts, "renewable" vs. conventional supplies).

With respect to the critical issues, it is observed first that customers with fixed-price contracts have already incorporated in their contractual prices the expected ETS cost for the contractual period: requiring them to contribute again to the same costs through system charges could constitute double taxation and generate litigation. Similarly, customers with certified renewable supplies could legitimately contend that they should not be required to contribute to ETS costs, inasmuch as their demand is not served – at least from a contractual standpoint – by emitting installations. Requiring such parties to pay system charges intended to reimburse the ETS costs of thermoelectric producers could therefore constitute a violation of the "polluter pays" principle enshrined in the ETS Directive.

Should the Commission declare the mechanism unlawful on grounds of incompatibility with State aid rules, customers who have already paid the tariff components could seek reimbursement, with consequent litigation and legal uncertainty.

9. Absence of Environmental Conditionalities

The indirect ETS compensation schemes authorized by the Commission for the 2021–2030 period provide for stringent conditionalities: (i) mandatory implementation of certified energy management systems (ISO 50001) or environmental management systems (EMAS); (ii) implementation of energy efficiency measures with a payback period not exceeding three years; (iii) investments equal to at least 50% of the aid received in decarbonization or energy efficiency, or coverage of at least 30% of electricity consumption from renewable energy sources.

The DL Bollette does not provide for analogous conditionalities for the thermoelectric producers benefiting from the reimbursement. Such lacuna could be regarded by the Commission as: (i) a lack of proportionality of the aid relative to the objectives pursued; (ii) an absence of incentives for the energy transition and emission reduction; (iii) incompatibility with the objectives of the European Green Deal and with the "do no significant harm" (DNSH) principle. The 2022 Guidelines recall the general principle that State aid must be necessary, proportionate, and such as not to cause undue distortions of competition, and must contribute to the objectives of the European Green Deal.

10. Comparison with Schemes Adopted in Other European Countries

To fully appreciate the innovative – and problematic – scope of the Italian measure, it is useful to compare it with the ETS cost compensation schemes authorized by the European Commission in other Member States, which present a radically different structure.

Germany: Scheme SA.36103 (2013) for the period 2013–2020, with an estimated total budget of approximately EUR 1.6 billion; Scheme SA.100559 (2022) for the period 2021–2030, with an estimated budget of EUR 27.5 billion.

Poland: Scheme SA.53850 (2019) for the years 2019–2020, with a budget of approximately EUR 417.5 million.

United Kingdom (pre-Brexit): Scheme SA.35543 (2013) for the period 2013–2020, with a budget of GBP 113 million (approximately EUR 143 million in 2013).

Other countries: The Netherlands, Finland, Spain, Belgium, France, and other Member States have notified analogous indirect ETS compensation schemes.

Fundamental common characteristic: all authorized schemes compensate the indirect ETS costs borne by electro-intensive industrial consumers – i.e., the costs of emissions passed through in electricity prices – and not the direct ETS costs borne by energy producers. None of the schemes authorized by the European Commission provides for the compensation of thermoelectric producers for direct ETS costs.

11. Concluding Observations and Outlook

In light of the analysis conducted herein, the likelihood that the European Commission will authorize the measure set forth in Article 6, Paragraph 3, of the decree appears objectively very low, although the final outcome will also depend on the definitive formulation of the measure and the implementing modalities to be defined by ARERA, as well as on the political dialogue regarding the reform of the ETS mechanism.

The criticalities emerging from the analysis may be summarized as follows. First, there is a radical structural divergence from the schemes authorized by the European Commission: the measure compensates thermoelectric producers for direct ETS costs, rather than industrial consumers for indirect ETS costs, without any precedent in the Commission's decisional practice. Second, the statutory imposition to offer at prices stripped of actual costs conflicts with the uniform marginal pricing principle of the CACM Regulation, which may not be unilaterally derogated by a Member State, thereby constituting a violation of the SDAC and of marginal pricing. Third, Paragraph 1 of Article 6 presents areas of incompatibility with the legal order of the European Union, insofar as the national legislature imposes upon ARERA a binding interpretation of REMIT – a directly applicable regulation whose authentic interpretation is reserved to the CJEU – in violation of the primacy of EU law and of the independence of national regulatory authorities pursuant to Article 57 of Directive (EU) 2019/944 and the case law of the Court of Justice (judgment of September 2, 2021, C-718/18, Commission v. Germany). To this must be added the risk of potential market manipulation under REMIT, given that the statutory obligation to offer at artificially low prices could itself constitute "securing the price at an artificial level" prohibited by Article 5 of REMIT. On the plane of cross-border effects, the artificial reduction of the Italian price would entail an increase in exports, with Italian consumers financing through system charges the emissions attributable to exported production, giving rise to distortions and cross-subsidies. There is further the absence of any environmental conditionality whatsoever, the decree providing for no obligation in terms of energy efficiency, decarbonization, or investment in renewable sources, in contrast with the requirements of the 2022 Guidelines and the DNSH principle. Finally, Paragraph 2 of the same Article, concerning the reimbursement of natural gas transportation tariff components to thermoelectric producers, in all likelihood satisfies the requirements of State aid, yet is not conditioned upon the prior authorization of the European Commission, with a consequent risk of illegality, compounded by the temporal uncertainty connected to the effective date of the mechanism of January 1, 2027.

In conclusion, in light of the comprehensive legal analysis conducted herein, the measure introduced by the Italian Government would appear destined not to withstand scrutiny by the European institutions, presenting areas of incompatibility so radical and structural as to render its approval an entirely improbable outcome. It would, however, be reductive to confine the assessment to one of mere legality. On the political-institutional plane, Article 6 of the DL Bollette represents an unequivocal signal of the growing pressure exerted by Member States for a profound revision of the current architecture of the EU ETS system – a pressure that could find its first, decisive manifestation as early as the European Council of March. The debate that will ensue, at both the national and European levels, is destined to redefine, perhaps in ways unforeseen today, the boundaries of the relationship between national energy policy and the constraints of the single energy market.

LONDON (ICIS)–Legal experts told ICIS that article 6 of the Italian “DL Bollette” energy decree – which introduces an ETS-linked compensation mechanism for gas-fired power producers – is unlikely to be approved by the European Commission because of its selective and structural, rather than exceptional, nature.

ICIS spoke to Piero Vigano, partner and coordinator of the energy and infrastructure department, and Francesco Mazzocchi, counsel in competition and European Union law at law firm ADVANT Nctm, who said that, as the decree stands, “the likelihood that the European Commission will authorize the measure does not appear to be high.”

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The financial allocation of EUR 900 million is divided into:

• 500 million euros for private parties, of which 150 million are allocated to companies.

• 400 million euros for Public Administrations (“PA”), of which 20 million are allocated to Energy Audits[3].

Compared to the Conto Termico 2.0, the new Conto Termico provides for:

• the extension of the scope of PAs that may access the mechanism (by way of a new definition under Article 2, lett. c) of the Decree).

• the expansion of eligible technologies (Articles 5 and 8 of the Decree).

• the eligibility for efficiency interventions also to private parties on buildings belonging to the tertiary sector (Articles 4 and 7 of the Decree).

• the advance payment for the preparation of the energy audit reserved for PAs and non-economic Third Sector Entities (“ETS”), equal to 50% of the expense to be incurred (Article 15).

• the possibility of accessing the mechanism through Renewable Energy Communities or self-consumption groups of which PAs, ETS or private parties are members (Article 13).

• the possibility of accessing the mechanism through a private party within the framework of a public-private partnership configuration, exclusively for PAs (Article 13).

• the increase of the incentivised quota to 100% of the expense, for interventions carried out on buildings owned by Municipalities with a population of up to 15,000 inhabitants and used by them (Article 11).

• the increase of the incentive for certain categories of energy efficiency interventions that use components exclusively produced in the EU or that provide for the installation of systems with photovoltaic modules registered in the “photovoltaic technology register”[4], without prejudice to compliance with the maximum incentive percentages of 65% or 100% mentioned above.

Types of Eligible Interventions

The types of interventions eligible for the benefits of the Conto Termico 3.0 are[5]:

1. Small-scale interventions for the increase of energy efficiency (Title II, Article 5, para. 1, lett. a)-h)), namely:

• Thermal insulation of opaque surfaces delimiting the climatised volume.

• Replacement of transparent closures including fixtures delimiting the climatised volume.

• Installation of shading and/or shielding systems and/or external solar filtering systems for transparent closures with exposure from ESE to W, fixed or mobile, non-transportable.

• Transformation of existing buildings into “nearly zero-energy buildings”[6];

• Replacement of existing lighting systems for interiors and external appurtenances with efficient lighting systems.

• Installation of automated management and control technologies (building automation) for thermal and electrical systems, including the installation of thermoregulation systems and heat accounting.

• Installation of infrastructure elements for private charging of electric vehicles, at the building and its appurtenances, carried out in conjunction with the replacement of existing winter air-conditioning systems with winter air-conditioning systems equipped with electric heat pumps.

• Installation of solar photovoltaic systems and related storage systems, at the building or in its appurtenances, carried out in conjunction with the replacement of existing winter air-conditioning systems with winter air-conditioning systems equipped with electric heat pumps.

2. Small-scale interventions for the production of thermal energy from renewable sources and high-efficiency systems (Title III, Article 8, para. 1, lett. a-g)), namely:

• Replacement of existing winter air-conditioning systems with winter air-conditioning systems, also combined for the production of domestic hot water, equipped with electric or gas heat pumps, using aerothermal, geothermal or hydrothermal energy (with nominal useful thermal power up to 2 MW).

• Replacement of existing winter air-conditioning systems with factory-made hybrid systems or bivalent heat pump systems (with nominal thermal power up to 2 MWt).

• Replacement of existing winter air-conditioning systems or heating of greenhouses and existing rural buildings or for the production of thermal energy for production processes or input into district heating and cooling networks with biomass-fuelled heat generators, including factory-made hybrid systems or bivalent heat pump systems (with nominal thermal power up to 2 MWt).

• Installation of solar thermal systems, also combined with solar cooling systems (with gross solar surface up to 2,500 m2).

• Replacement of electric and gas water heaters with heat pump water heaters.

• Replacement of winter air-conditioning systems with connection to efficient district heating systems (with nominal useful thermal power up to 2 MW).

• Total or partial functional replacement of existing winter air-conditioning systems with micro-cogeneration units fuelled by renewable sources.

It is noted that the incentives are determined according to the eligible expenses envisaged for the implementation of the intervention, in compliance with the specific caps for: (i) unit of surface; (ii) unit of power; (iii) producibility of the systems (i.e., “physical dimension” of the property subject to intervention, surface of the property or of the roof, floor or wall subject to intervention or of the heat/energy production system) with the consequence that in order to maximise the incentive that can be received (with favourable economy of scale) it is necessary to focus on medium/large-scale interventions which are numerically limited.

Overview of PPP in the Context of the Conto Termico 3.0

PAs may access the incentives by availing themselves of a private party that assumes the capacity of Responsible Party[7], with whom a public-private partnership contract (so-called PPP) has been entered into pursuant to Article 174 et seq. of Legislative Decree No. 36 of 2023 (Public Contracts Code), excluding the social partnership. The private party that will act as Responsible Party must meet the subjective requirements indicated from time to time by the award procedure initiated by the PA pursuant to Legislative Decree 36/2023 and, in particular:

• not to incur any of the grounds for exclusion referred to in Articles 94, 95 and 98 of Legislative Decree No. 36/2023.

• to be in possession of the economic-financial and technical-professional capacity requirements proportionate to the subject matter and value of the contract, pursuant to Articles 100 et seq. of Legislative Decree No. 36/2023.

• where the contract includes the execution of works, to be in possession of SOA certification in the relevant categories and classifications, where required by applicable law^[8].

The determination of the incentives, in terms of intensity and cumulability, is carried out within the limits of the expenses attributable to the PA within the framework of the PPP contract, both in the case where the PA is directly configured as the Responsible Party and in the case where the private party is identified as the Responsible Party. All eligible expenses pursuant to the Decree that are envisaged by the executive project approved pursuant to Legislative Decree No. 36/2023 are attributable to the PA, even if falling wholly or partly within the private party's investment, or that are indicated by the Financial Economic Plan (FEP) certified by a third party.

At the stage of submission of the application for the granting of incentives, the Responsible Party must provide:

• the PPP contract, duly signed by the parties and drafted pursuant to Article 174 et seq. of Legislative Decree 36/23, having the minimum requirements provided for by the implementing rules, namely:

  • the contractual relationship established between the public party and the private party must be long-term and aimed at satisfying a public interest, including in any case the energy refurbishment of the building subject to the intervention.

  • the coverage of the necessary financial needs must come to a significant extent from resources of the private party also by reason of the operational risk assumed.

  • the executive design, realisation and management of the project must be entrusted to the private party, whilst the public party is responsible for defining the objectives and verifying their implementation.

  • the construction and operational risk connected to the realisation and management of the project must fall predominantly on the private party.

  • a duration compatible with the achievement of the public interest underlying the award and, in any case, not less than the disbursement period of the incentive increased by five years, corresponding to the term for maintaining the requirements and preserving the documentation.

  • transfer of operational risk borne by the private party, on which the investment also falls in whole or in part, without prejudice to subsequent access to incentive mechanisms.

  • attribution to the private party of the task of realising and managing the work(s) subject to award, according to methods and requirements prescribed by the public party, which defines the objectives and verifies their implementation.

  • “termination clauses” which, in the event of early termination of the contract for reasons attributable to the private party, guarantee the restitution to GSE of the incentives already disbursed or the waiver of incentives not yet received;

  • the contract must be signed on a date prior to that of submission of the application for access to the incentives (in the case of interventions with direct access);

  • the contract must be effective, at the latest, on the date of acceptance of the application for access to the incentives.

• the executive project verified and approved pursuant to Legislative Decree 36/2023 with the indication of the eligible expenses for the purposes of the Conto Termico referred to in Articles 6 and 9 of the Decree, VAT and revenues including the Conto Termico incentive and finally the expected profit;

• the Financial Economic Plan (FEP) certified by a third party containing the total amount of expenses incurred for the realisation of the intervention by way of public-private partnership, with the indication of the eligible expenses for the purposes of the Conto Termico referred to in Articles 6 and 9 of the Decree, VAT and revenues including the Conto Termico incentive and finally the expected profit;

• the payment schedule envisaged by the contract;

• declaration containing the breakdown of eligible and non-eligible expenses, signed by the PA and the Private Party, drafted according to Model 10. The value of the eligible expenses indicated must correspond to that reported on the Portaltermico;

• in the case of multi-building contracts, allocation of costs for each individual building subject to the intervention, signed by both parties.

In order for an EPC to enable the ESCO to access, on behalf of the Eligible Party, the support mechanism of the Conto Termico 3.0, it must comply with the minimum requirements provided for in Annex 8 of Legislative Decree 102/2014 and must be consistent with the provisions of the Decree. In particular, the contract:

• must present the requirements referred to in Annex 8 of Legislative Decree No. 102 of 2014;

• must comply with the provisions of standard UNI CEI EN 17669:2023;

• must comply with the provisions of Article 2, paragraph 2, lett. n), of Legislative Decree No. 102 of 2014 and, therefore, be founded on guaranteed energy savings and not exclusively on economic effects;

• must provide for clear and consistent procedures for the determination of the energy baselines and for the identification of the normalisation methods of the boundary parameters;

• must provide for a measurement system that is clear and consistent with the algorithms of the savings to be determined and guaranteed;

• must refer to a single building or property unit on which the interventions are carried out, except for the exception provided for PAs (for which multi-building EPC is permitted);

• must provide for a contract duration compatible with the provisions of Article 13, paragraph 6, lett. a) of the Decree, (i.e., incentive period + five years following the disbursement period of the incentives);

• must be drafted in such a way that the link established between the parties is not fictitious, but must materialise with a periodic recognition of a fee, for the entire contractual duration, in consideration of a service/function to be maintained until the end of the contract;

• must provide for a clear and consistent indication of expenses, revenues and profit, in line with the provisions of Article 13, paragraph 6, letter b) of Ministerial Decree of 7 August 2025.

Although project financing (currently governed by Article 193 of Legislative Decree 36/2023), one of the methods of selecting the private partner in contractual PPPs, has been the subject of a recent ruling by the Court of Justice of the European Union which established the incompatibility of the right of pre-emption recognised as guarantor to the promoter, provided for by the previous Legislative Decree No. 50/2016[9] (but still reproduced in the current Legislative Decree No. 36/2023), and is (also in other respects) the subject of examination in an infringement procedure initiated by the European Commission on 8 October 2025, the conclusion of EPCs with public administrations is configured as an option which, whilst requiring careful planning and solid contractual structuring, appears destined to assume an increasingly central role in the coming years, alongside other instruments (such as, for example, the Energy Service Plus).

Indeed, the use of EPCs for the energy refurbishment of public buildings represents a significant economic driver for the supply chain of companies involved and, considering the extent of public real estate assets, an equally significant environmental driver, in terms of reduction of climate-altering emissions consequent to the achievable energy savings, as recently highlighted also by ENEA.

It must in fact be considered that Legislative Decree No. 36/2023 dedicates a specific provision to EPCs (Article 200), laying down detailed rules regarding certain contractual obligations and related methods of execution[10].

Moreover, access to the PPP instrument for the purposes of admission to the Conto Termico constitutes a further element of attractiveness, also in light of the joint preparation, by the National Anti-Corruption Authority, the State General Accounting Office and ENEA, of a standard energy performance contract or energy performance contract (EPC) for public buildings, pursuant to Article 200 of Legislative Decree No. 36/2023 and the related annexes (including the technical specification and the risk matrix).

This initiative assumes particular systematic importance: on the one hand, it promotes the homogeneity and standardisation of contractual clauses, reducing application uncertainties and structuring times for operations; on the other hand, it strengthens the bankability of projects, thanks to a clearer allocation of risks between the contracting administration and the economic operator, in consistency with the principles proper to PPP and provides a more stable and predictable regulatory framework for investors.

In order to make the structure and logic of PPP and EPCs consistent in the context of the Conto Termico 3.0, built on a logic of incentive referring to the individual intervention understood in the strict sense, it is necessary to adopt a different paradigm. In particular, it is necessary to enhance interventions, understood in the broad sense, of wider scope, which provide for a plurality of works and/or systems, and which are founded on an overall improvement of the energy performance of the system subject to intervention. Such performance, if realised in accordance with the contractual provisions and with equal cost of the energy vector, is capable of generating a measurable and advantageous saving both for the public administration and for the private partner.

In conclusion, the integration between the discipline of PPPs, the standard EPC scheme and the incentive mechanisms of the Conto Termico appears capable of promoting a wider dissemination of energy refurbishment interventions of public assets, with positive effects both on the financial and on the environmental level.

Terms of Payment of Incentives

Based on the Implementing Rules (Point 4.3), the incentive amounts are disbursed by the last day of the month following that of the end of the two-month period in which falls the date of completion of the Contract-Form[11], which coincides with the date of the communication by GSE to the Responsible Party of the provision for admission to the incentives referred to in the Decree.

For amounts up to EUR 15,000, the Decree provides for the disbursement of the incentive in a single instalment. Amounts exceeding this threshold are disbursed in constant annual instalments for the duration defined in Table 1 referred to in Article 11, paragraph 3 of the Decree (i.e., between 2 and 5 years)[12].

Pursuant to Article 11, paragraph 6 of the Decree, in relation to interventions carried out by the PA and Third Sector Entities (“ETS”), also through ESCOs or other authorised parties, disbursement in a single instalment is also provided for incentives of amounts exceeding EUR 15,000 when they opt for the direct access procedure (i.e., upon completion of the works) and not in the case of reservation (i.e., for works yet to be started or in the course of realisation, reserved for PAs and ETS).

For interventions carried out by economic ETS, also through ESCOs or other authorised parties, disbursement in a single instalment also for incentives of amounts exceeding EUR 15,000 is possible exclusively for Title III interventions[13].

Upon acceptance of reservation applications, GSE commits in favour of the requesting Responsible Party the sum corresponding to the maximum recognisable incentive. This amount is to be understood as a maximum estimated amount. The act of confirmation of the reservation issued by GSE represents a commitment to the disbursement of resources, without prejudice, in any case, to compliance with the eligibility conditions and the requirements provided for by the Decree.

The amount of the reserved incentive represents a maximum and may be subject to remodulation by GSE as a result of the investigative activities conducted on the declarations and documentation submitted by the Responsible Party for the purposes of the disbursement of the incentive.

In the case of access to incentives by way of reservation, also through an ESCO or other authorised party referred to in Article 13 of the Decree, where requested, the disbursement of the incentive may take place by way of:

• a down payment instalment[14], requested by the Responsible Party with the communication of the commencement of works.

• a possible intermediate instalment[15], which may be requested upon reaching 50% of the amount of the eligible expenses envisaged for the realisation of the intervention subject to the reservation.

• a final balance instalment, requested by the Responsible Party upon completion of the intervention, following the submission of the direct access application for accounting (so-called post-reservation).

The disbursement of the aforesaid instalments is carried out by the last day of the month following that of the end of the two-month period in which falls the date of activation of the contract, to be understood as the date of dispatch of the provision for admission to the incentives.

Where expressly provided for in certain of the contractual cases referred to in Article 14, paragraph 2, letter b) no. i., iii., iv.), namely: (i) presence of an energy audit and of a provision or other administrative act certifying the commitment to the execution of at least one of the interventions included therein; (ii) presence of an energy performance contract or another integrated supply contract for the energy refurbishment of the systems concerned; (iii) presence of a provision or other administrative act certifying the award of the works subject to the application-form, together with the minutes of delivery of the works drawn up by the works supervisor, the PA or the ETS may request that the sums reserved in its own favour be disbursed, also partially, by GSE to the ESCO signatory of the contract, under its own responsibility regarding the correct execution of the works and the quantification requested (subject to formal joint and several obligation between the parties).

It is noted that (i) a private party selected by the PA within the framework of public-private partnership forms that submits an application for a contribution under the Conto Termico - qualifying as the Responsible Party - on behalf of a PA, as well as (ii) an ESCO that submits an application for a contribution under the Conto Termico - qualifying as the Responsible Party on behalf of another party, through the signing of an EPC contract or Energy Service contract, cannot avail itself of the irrevocable collection mandate (Point 12.12.3.2. of the Implementing Rules).

It is specified, in fact, that the irrevocable collection mandate is an instrument by which payment for a good is effected, like a bank transfer receipt. In cases where the ESCO is configured as the Responsible Party, in fact, invoices and related bank transfer receipts must not be transmitted to GSE, and consequently the instrument of the irrevocable collection mandate cannot be adopted (Point 12.12.4 of the Implementing Rules).

The incentive will therefore be paid to the PA which will share it - if and to the extent agreed - with the ESCO but thereby rendering less attractive for financing entities such a type of financial structure.

On the other hand, the assignment of credit is permissible, exclusively for applications submitted in direct access mode and with instalment payment of the incentive and must relate to the totality of credits, present and future, held by the assignor against GSE by virtue of the Convention in force between the parties, until the expiry thereof or possible retrocession (Point 12.3.3. of the Implementing Rules). Furthermore:

• the credits must be assigned to a single assignee;

• the application for admission to the incentive must be made exclusively in Direct Access mode;

• the disbursement of credits must be in instalments;

  • it is necessary that the deed of assignment of credits be:

  • drafted on the basis of the standard GSE model in the form of a notarial deed or private deed authenticated by a notary and executed on a date subsequent to the acceptance provision issued by GSE.

  • complete with the Convention as an integral part of the deed of assignment of credits.

  • expressly accepted by GSE following notification, by registered letter with return receipt or certified email, to the principal and the agent.

The assignment of credit is valid until the acceptance, by GSE, of any deed of retrocession of the credit. The retrocession of the entire residual credit to the original assignor must take place in the same form, complying with the same conditions set out above, with which the deed of assignment of credits to which it refers was executed.

GSE will pay the residual credits to the original credit holder from the second month following the acceptance of the retrocession. GSE is not liable in the event of non-receipt, erroneous and/or delayed receipt of the deed.

The acceptance, both of the assignment and of the retrocession of credits, does not prejudice the power of GSE to oppose to the assignee the set-off that it could have opposed to the assignor.

[1] Pursuant to the Decree of the Ministry of the Environment and Energy Security of 7 August 2025 (“Ministerial Decree of 7 August 2025” or “Decree”) in force from 25 December 2025 (i.e., 90 days from publication in the Official Gazette). On 5 December 2025, GSE published the related implementing rules (the “Implementing Rules”).

[2] Insofar as they present technical, economic and procedural characteristics such as to justify a simplified authorisation and incentive regime, alternative to structural instruments (for large centralised production network energy infrastructures, complex industrial programmes) or complex incentives.

[3] Audits and preparation of the energy performance certificate are incentivised to the extent of 100% of the expense incurred by the public administration or by the ESCO that performs the intervention on its behalf, excluding housing cooperatives and social cooperatives.

[4] Referred to in Article 12 of Decree-Law 9 December 2023, No. 181, and in particular 5% for systems with photovoltaic modules produced in Member States of the European Union (“MS”) with module-level efficiency of at least 21.5% (lett. a); 10% for systems with photovoltaic modules with cells, both produced in MS, with cell-level efficiency of at least 23.5% (lett. b); 15% for systems with photovoltaic modules produced in MS, composed of bifacial silicon heterojunction or tandem cells produced in the EU with cell efficiency of at least 24.0% (lett. c).

[5] It is specified that the interventions referred to in points 1 and 2 must necessarily be carried out in existing buildings, parts thereof or existing property units.

[6] The nearly zero-energy building (nZEB) is defined as “a building with very high energy performance in which the very low or almost zero energy requirement is covered to a significant extent by energy from renewable sources, produced on site” by the EPBD Directive (2010/31/EU).

[7] Pursuant to Article 2, paragraph 1, letter tt) of the Decree, the Responsible Party (SR) is “the party that has incurred the expenses for the execution of the interventions referred to in this Decree and that is entitled to the incentive and enters into the contract with GSE. For the completion of the application-form and for the management of contractual relations with GSE, it may operate through a delegated party”.

[8] For the purposes of access to the incentives referred to in the Decree, where the PPP contract also provides for the management of energy savings on the building subject to the intervention, the party must be in possession of UNI CEI 11352 certification, issued by an accredited body, valid at the date of submission of the application to GSE. The certification must be maintained for the entire incentive period and for the five years following the disbursement by GSE of the incentive or of any last instalment of the recognised incentive. In the case of a temporary grouping of enterprises, consortium or special purpose company pursuant to Article 194 of Legislative Decree No. 36/2023, the provisions already specified for the ESCO apply with respect to the enterprise that must be in possession of UNI CEI 13352 certification.

[9] By judgment of 5 February 2026, the Court of Justice of the European Union declared, in Case C-810/24, the incompatibility of the right of pre-emption recognised to the promoter within the framework of the project financing procedure referred to in Article 183, paragraph 15, of the previous Public Contracts Code (Legislative Decree No. 50/2016) with European Union law and, in particular, with Directive 2014/23/EU on the award of concession contracts. Indeed, the censured right of pre-emption attributed to the promoter not awarded the procedure initiated by the contracting administration the power to adapt its own offer to that of the successful tenderer or, in the event of failure to exercise the pre-emption, to obtain reimbursement of the expenses incurred for the preparation of the proposal.

[10] In particular, Article 200 of Legislative Decree No. 36/2023 provides that in energy performance contracts or energy performance contracts (i) the management revenues of the economic operator are determined and paid according to the level of improvement of energy efficiency or other energy performance criteria established by contract, provided they are quantifiable in relation to consumption; (ii) the measure of improvement of energy efficiency, calculated according to the standards regarding certification of the energy performance of buildings and other energy-intensive infrastructures, is made available to the contracting entity by the economic operator; (iii) the measure referred to in the preceding point must be verified and monitored during the entire duration of the contract, also availing itself of appropriate IT platforms designed for the collection, organisation, management, processing, evaluation and monitoring of energy consumption.

[11] Contractual document to be executed between the Implementing Party and GSE and containing the contractual clauses that regulate the relationship between the parties in the incentive period relating to the interventions subject to the application for the granting of incentives referred to in the Decree.

[12] In the case of multi-intervention, the number of instalments is identified as the maximum value among the instalment values of the individual interventions referred to in the aforesaid Table 1, distributing equally among them the sum of the total incentive due.

[13] For such parties, where multi-interventions are carried out with a combination of Title II interventions (on buildings falling within the tertiary sector) and Title III interventions, the disbursement of incentives of amounts exceeding EUR 15,000 is carried out in multiple instalments and standardised to the maximum duration provided for by Title II interventions.

[14] The amount of the down payment instalment is equal to 50% of the benefit overall recognised, if the duration of the incentive is 2 years, it is equal to two-fifths of the benefit overall recognised, if the duration of the incentive is 5 years, in reference to the years indicated in Table 12.

[15] The amount of any intermediate instalment is quantified according to the maximum reserved incentive, with deduction of the down payment disbursed and distributing uniformly the remaining quota due, to the extent of 50%, between the intermediate instalment and the balance to be accounted for at the end of the works.

Across the European Union (“EU”), the enforcement of restrictive measures has long been characterized by fragmentation. While sanctions are adopted at Union level, their implementation and enforcement remain the responsibility of Member States — resulting in a patchwork of divergent penalties, investigative approaches and ‘levels’ of enforcement.

Indeed, in some jurisdictions, breaches are treated merely as administrative violations; in others, they are prosecuted as criminal offences, often entailing imprisonment and/or corporate liability. This lack of uniformity has raised persistent concerns in Brussels, primarily because it encourages forum shopping by economic operators attempting to seek jurisdictions with softer enforcement. In this context, many called for deeper harmonisation, advocating for shared investigative standards and stronger cross-border coordination to close enforcement gaps.

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The chapter provides a comprehensive analysis of the Italian legal framework governing corporate investigations, addressing key aspects such as internal investigations, self-disclosure to enforcement authorities, investigation procedures and attorney–client privilege.

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As is well known, the draft decree law introducing urgent measures for the implementation of the National Recovery and Resilience Plan (PNRR) has recently been made public.

The decree gives effect to the sixth revision of the Plan, approved on 27 November by the European Council, which became necessary in light of the acknowledged impossibility of achieving, within the originally envisaged timeframes and modalities, also following previous revisions of the Plan, the objectives initially set for 30 June 2026.

A step back: the origin of the sixth revision of the PNRR

With the Communication NextGenerationEU, the road to 2026 (COM(2025) 310 final) of 4 June 2025, the Commission provided Member States with guidance on how to further rationalise their respective recovery and resilience plans (RRP).

In this context, the European Commission identified a number of possible actions, including: (i) strengthening existing measures, reallocating resources to measures that have delivered results beyond expectations; (ii) reducing resources allocated to measures that cannot be implemented within the required timeframes; (iii) using financial instruments managed by independent entities under the facility model, in order to stimulate private investment in response to market failures.

Within the scope of such investments, the RRP milestones would cover: (a) the transfer of funds to the implementing partner through the execution of implementation agreements; and (b) the execution of contracts with final beneficiaries for the use of the full amount of the transferred funds.

In order to introduce such a financial instrument or grant scheme, Member States should identify the market failure they intend to address and the related market demand, ensure that decisions on the award of the implementing partner are independent from the government and that financial management is separated from the Member State, as well as assess the operational capacity of the implementing partner to deploy the instrument.

The GSE facilities for biomethane, agrivoltaics and energy communities

Against this background, Article 29 of the draft decree introduces into the Italian legal system the facility mechanism envisaged by the European Commission for three strategic sectors: biomethane, agrivoltaics and energy communities (CACER).

The mechanism provides for the establishment of specific grant programmes financed by the PNRR and aimed at granting capital contributions.

Specifically, the measures already in place will be included in an incentive programme with a total value of EUR 4.130 billion in non-repayable grants, resources already allocated to Italy under the PNRR, broken down as follows: EUR 1.1 billion for agrivoltaics, EUR 795 million for energy communities and EUR 2.2 billion for biomethane.

The management of the programmes is entrusted to the GSE, and, for each measure, specific implementation agreements will be executed between the GSE and the Ministry for the Environment and Energy Security (MASE), setting out the rules for selection, assessment, control, monitoring, reporting and financial management.

The agreements must also provide for the substitution of the GSE for the MASE in the disbursement of grants and in relations with entities already selected or beneficiaries on the basis of measures adopted prior to the entry into force of the decree, as well as for the transfer of the related financial resources.

The investment programmes originally envisaged and governed by the relevant implementing decrees (namely, Ministerial Decree of 15 September 2022 for biomethane, Ministerial Decree of 22 December 2023 for agrivoltaics and Ministerial Decree of 7 December 2023 for energy communities) will remain unchanged in substantive terms, with regard to objectives, beneficiaries and eligible costs.

The novelty instead concerns the deadlines for entry into operation of the plants. The 30 June 2026 deadline set by the ministerial decrees is superseded. The new deadline will be established in the grant awards or in the related addenda and, in any event, may not exceed 24 months from the notification of such acts, under penalty of forfeiture of the incentives.

The date of 30 June 2026 remains relevant exclusively as a deadline for the execution of the financing agreements between the GSE and the operators

The entry into operation of the plants may therefore occur up to 24 months after notification of the contracts, potentially extending to 30 June 2028.

This approach reduces the risk that PNRR financed projects may fail to meet the 2026 deadlines, a risk widely highlighted in recent months in light of delays by suppliers, contractors and network operators, both gas and electricity, in the construction and energisation of the plants.

The facility system, managed by the GSE, in fact allows incentives to be effectively reserved until 2028, ensuring greater implementation flexibility for beneficiaries.

Decisions on the allocation of capital grants by the GSE will be adopted by majority vote of an independent investment committee established within the GSE, without government control.

Eligibility requirements 

In order to access the funding, beneficiary projects must comply with certain fundamental requirements. In line with the original decrees, the new measure provides for:

• the principle of do no significant harm (DNSH), therefore excluding projects involving fossil fuels, installations subject to the EU emissions trading system with emissions above permitted thresholds, as well as waste management facilities such as landfills and incinerators.

• the prohibition on cumulation of grants, whereby non repayable PNRR funding may not be combined with other European funding to cover the same costs.

Operational uncertainties

Despite the definition of the general framework, several uncertainties remain regarding the concrete operation of the measure.

On the one hand, the implementation agreements between the GSE and the MASE have yet to be executed, which will define the rules for selection, control and management of the grants. On the other hand, the operational regulations still need to be published, setting out, inter alia, detailed technical and procedural rules, including disbursement timelines, obligations of beneficiaries during and after the construction of the plants, procedures for reporting eligible costs, and the modalities and timing for the payment of capital grants, expected within 45 days from the execution of the agreements between the MASE and the GSE.

Pending the transfer of resources to the GSE, the latter is nevertheless entitled to advance the grants using resources at its disposal, up to a limit of ten per cent of the overall amount of the grant programmes, thereby providing some relief to the cash flows of awarded companies (it should be recalled that, under the operating rules of the Ministerial Decree of 15 September 2022 for biomethane, the capital contribution is recognised only upon completion of the works).

Until these instruments are defined, it is not possible to have a clear picture of the actual functioning of the facility, nor of the timing and modalities for the identification of any new beneficiaries, in particular with reference to the sixth biomethane auction, which was announced but never launched.

It should also be noted that on 19 June 2025 the MASE already intervened on agrivoltaic deadlines with ministerial decree no. 149 under which it was allowed to admitted companies to end the electric construction work by 30 June 2026, whereas commissioning of the plants was to achieve in the following 18 months. It shall now be clarified by the authorities whether this ministerial decree shall be considered entirely repealed by the new law-decree or coordination measures between the two provisions.

Finally, it is unclear what role will be assigned to the independent investment committee established within the GSE, considering that, at present, the beneficiaries of the biomethane and agrivoltaic measures have already been identified through the relevant competitive procedures.

It is therefore necessary to clarify whether such committee will operate exclusively with regard to CACER or whether it may also affect projects already admitted to incentives, notwithstanding that their bankability should be considered definitively secured due to the consolidation of the right to receive the incentive following successful inclusion in the ranking lists, as confirmed by the GSE in July 2025 with reference to plants ranked between positions 149 and 298 of the fifth auction[1].

A measure that circumvents, but does not resolve, structural problems

Beyond the uncertainties still surrounding the operational functioning of the facility, one key point emerges. The sixth revision of the PNRR makes it possible to formally comply with European deadlines but does not ensure the actual achievement of energy policy objectives.

The milestones set by the Plan are now limited to two formal steps: the transfer of funds to the implementing partner upon execution of the implementation agreements and the execution of contracts with final beneficiaries for the use of the full amount of allocated funds.

What is missing is the core objective, namely the entry into operation by 2026 of a defined capacity of renewable energy generation. In other words, resources are committed in the expectation that plants will be built, without any guarantee that all projects will be completed within the envisaged timeframe.

The central issue remains the complexity of the permitting framework and delays in grid connections by electricity and gas network operators, both transmission and distribution.

In particular, the gas network has proven insufficiently widespread and capable of absorbing new production capacity regardless of plant location. The electricity network, on the other hand, is affected by a high level of saturation and an ever-increasing number of connection requests (280,000 new connections for e distribution in 2024, an increase of 22.4 per cent compared to 2023[2]).

Significant technical difficulties associated with the development of advanced agrivoltaic plants should also not be overlooked.

All these factors have led to delays in achieving the relevant milestone and have made activation of the above-mentioned facility mechanism unavoidable.

Ultimately, the adopted strategy allows compliance with the letter of European deadlines but leaves the substance unresolved. Without structural interventions on permitting and infrastructure, there is a concrete risk that part of the estimated production capacity will fail to enter into operation even within the extended deadlines.

It should be noted that a further measure related to the implementation of the PNRR (Measure M7 6 Reform 3, scheduled for the third quarter of 2025) was adopted by the legislature through the 2026 Budget Law (Law no. 199 of 2025). Said law provides, with regard to connection to the natural gas transmission and distribution networks, and with the aim of addressing the current infrastructural constraints affecting the admissibility of biomethane into the networks and of promoting the widespread use of biomethane, for the following obligations to be imposed on network operators:

• on the one hand, the obligation to connect to their networks, within mandatory time limits and subject to penalties, with substitute procedures provided for in the event of inaction, both newly built biomethane production plants and plants resulting from the upgrading of pre-existing biogas production facilities, in accordance with the rules set out by the Regulatory Authority for Energy, Networks and Environment (ARERA);

• on the other hand, the allocation to transmission or distribution system operators of 70 per cent of the costs of investments for connection to transmission or distribution networks and 100 per cent of the costs relating to metering systems and compression, depending on the identified connection solution, with the remaining 30 per cent of the connection investment costs borne by producers.

ARERA is required to update its regulation concerning the technical and economic conditions for the provision of connection services for biomethane production plants to natural gas networks whose operators are subject to third party connection obligations by 15 February 2026.

Without prejudice to the clearly positive impact of this measure also with reference to ongoing and forthcoming extraordinary transactions, publication of the decree and, subsequently, of the agreements between the MASE and the GSE is awaited, as well as, with specific regard to the biomethane sector, the new ARERA regulation.

[1] https://www.gse.it/servizi-per-te/news/sviluppo-del-biometano-ok-del-consiglio-ue-a-risorse-aggiuntive.

[2] Source, e-distribuzione S.p.A., Annual Report and Financial Statements as at 31 December 2024: https://www.e-distribuzione.it/content/dam/e-distribuzione/documenti/e-distribuzione/Bilancio_esercizio_2024.pdf

With the enactment of Decree No. 175 of 21 November 2025, originally intended to regulate exclusively the tax credits under the Transition Plan 5.0 (the “Decree”), a sense of discouragement and disillusionment spread among market operators, due to yet another setback resulting from the new regime governing suitable areas for the development of renewable energy plants in Italy.

Specifically, the Decree

• repealed the provisions on suitable areas set out under Article 20, paragraph 8 of Legislative Decree No. 199 of 2021 (and, as a consequence, also the Agriculture Decree, which is currently pending constitutional review), as well as the criteria and parameters laid down in the Ministerial Decree of 2 July 2024 (the “Suitable Areas Ministerial Decree”, already partially annulled by the Lazio Regional Administrative Court in May 2025 and currently sub judice before the Council of State);

• introduced into Legislative Decree No. 190 of 2024, also known as the Consolidated Act on Renewable Energy Sources (“TU FER”), a new normative framework governing suitable areas (Articles 11-bis et seq. of the TU FER).

As noted, the amendments introduced by the Decree generated significant concerns and uncertainties, in particular, on the one hand, due to the introduction of the requirement of an Integrated Environmental Authorization (“AIA”) for industrial plants, within which a radius of suitability had to be assessed, and, on the other hand, due to the absence of a transitional regime applicable to projects already undergoing authorization procedures under the repealed framework.

With the conversion into law of the Decree, currently under publication in the Official Gazette (the ConversionLaw), while these critical issues have, on the one hand, been resolved, on the other hand further concerns of no minor relevance have emerged for future development initiatives.

In this respect, the full list of the various categories of suitable areas, as amended by the Conversion Law, is set out below.

Specifically, the following are deemed suitable areas.

• Sites where plants producing energy from the same renewable source are already installed and where modification works, including substantial ones, are carried out, provided that they do not entail an increase in the occupied area exceeding 20 percent, with the clarification, not included in the previous Article 20 of Legislative Decree No. 199 of 2021, that such variation in area is not permitted for ground mounted photovoltaic plants installed in agricultural areas. In addition, for the newly occupied areas, compliance is required with the provisions of Legislative Decree No. 42 of 2004 concerning cultural heritage and landscape authorizations (see Article 11-bis, paragraph 1, letter a of the TU FER).

• Sites subject to remediation identified pursuant to Legislative Decree No. 152 of 2006 (the Environmental Code), exhausted quarries and mines, not restored or abandoned or in conditions of environmental degradation, or portions of quarries and mines no longer capable of further exploitation, as well as, in addition to what was previously provided for under Legislative Decree No. 199 of 2021, closed or remediated landfills or landfill lots (see Article 11-bis, paragraph 1, letters b, c and d of the TU FER).

• Sites and facilities available to companies of the Ferrovie dello Stato group, railway infrastructure operators, motorway concessionaires, airport management companies, as well as State owned assets used by the Ministry of Defense or the Ministry of the Interior, and certain real estate assets identified by the State Property Agency, after consultation with the Ministry of Economy and Finance, and, as introduced at conversion stage, the Ministry of Agriculture, Food Sovereignty and Forestry, in the case of State owned assets with an agricultural designation not included in enhancement or disposal programs falling within their respective competences (see Article 11-bis, paragraph 1, letters e, f, g, h and i).

Photovoltaic plants

Article 11-bis, paragraph 1, letter l provides for further and additional cases of suitability specific to photovoltaic plants. These include

• areas adjacent to the motorway network within a distance not exceeding 300 meters.

• buildings, constructed structures and their related external appurtenant surfaces.

• areas designated for industrial, office, artisanal, commercial and logistics uses, as well as areas intended for the installation of Data Centers.

• areas used as parking facilities, limited to covering structures.

• water reservoirs, quarry lakes and decommissioned mines or mines in conditions of environmental degradation.

• areas within the perimeter of competence of the integrated water service.

• areas located within industrial plants and facilities not intended for agricultural or livestock production, nor for the production of energy from renewable sources pursuant to Article 268 of the Environmental Code, as well as agricultural zones enclosed within a perimeter of 350 meters from such plant or facility (during the conversion process the requirement that the relevant facility be authorized by means of an AIA was removed, while the reduction of the buffer zone from 500 to 350 meters was confirmed).

Even at conversion stage, the previous Article 20, paragraph 8, letter c-quater, considering as “suitable” those areas not included within the perimeter of assets subject to protection pursuant to Legislative Decree No. 42 of 2004, was not reinstated. This provision was recently confirmed by the Lombardy Regional Administrative Court, Milan, Section III, judgment No. 4300 of 30 December 2025, in continuity with other administrative case law (see Piedmont Regional Administrative Court, Section II, 19 October 2023, No. 808 and Tuscany Regional Administrative Court, Section II, 8 July 2024, No. 844), as constituting an additional category of suitable area, expanding the list set out in paragraph 8.

Furthermore, the text approved by Parliament eliminated existing renewable energy plants from among the reference points for identifying suitable areas for the development of new renewable plants, thus curbing the expansive interpretation that had consolidated following the MASE ruling No. 130318 of 8 August 2023 and had subsequently been endorsed by administrative case law as well (inter alia Regional Administrative Court of Lazio, Rome, judgment No. 4994 of 2025, and Regional Administrative Court of Lecce, judgment No. 1113 of 2025).

Agricultural areas and agrivoltaic plants

As is well known, the Decree finally introduced the long-awaited definition of standard agrivoltaic plants, defined as “photovoltaic plants that preserve the continuity of agricultural and pastoral activities at the installation site. To ensure such continuity, the plant may provide for the rotation of modules installed in an elevated position above ground and the application of digital and precision agriculture tools”.

On this point, the Conversion Law introduces important clarifications to be borne in mind during the authorization phase:

• For the installation of agrivoltaic plants, project developers are required to obtain a sworn technical statement, to be attached to the project submitted during the authorization phase and in any event to be made available to the administration for control activities, drafted by a qualified professional, certifying that the plant is suitable to preserve at least 80 percent of the gross marketable production.

• The municipality with territorial jurisdiction is granted a five-year power, following the construction of an agrivoltaic plant, to verify the continued suitability of the installation site for agricultural and pastoral use.

• The restoration of the site is provided for, together with the application of an administrative pecuniary sanction ranging from EUR 1,000 to EUR 100,000, in relation to agrivoltaic installations that do not ensure the preservation of the continuity of agricultural and pastoral activities at the installation site[1].

These amendments raise significant concerns, given the structural limitations in terms of resources and expertise of municipal technical offices, as well as the intrinsic difficulty of certifying ex ante a value that is heavily influenced by unpredictable factors, such as climate, and that can only be determined ex post, all the more so in relation to land currently uncultivated or where crop use will change.

Further critical issues arise from the novelty related to the five year verification power granted to municipal administrations which, in addition to being potentially used instrumentally by local authorities, risks conferring considerable uncertainty on the robustness of projects acquired or developed by market players, precisely due to the generic and abstract nature of the parameters to be applied under the Conversion Law.

Biomethane production plants

Regarding biomethane production plants, the amendments to the regulatory framework introduced by the Decree appear limited but not without consequences. In particular, the following are deemed suitable.

• Agricultural areas within 500 meters of zones designated for industrial, artisanal and commercial use, corresponding to the former Article 20, paragraph 8, letter c-ter, number 1 of Legislative Decree No. 199 of 2021, which, as noted, no longer applies to photovoltaic plants.

• Areas located within industrial plants and facilities referred to in Article 268 of the Environmental Code, as well as areas classified as agricultural enclosed within a perimeter whose points are no more than 500 meters from the same plant or facility.

• Areas adjacent to the motorway network within a distance not exceeding 300 meters.

As with photovoltaic technology, also for biomethane production projects the areas referred to under the former Article 20, paragraph 8, letter c-quater, namely areas not included within the perimeter of assets subject to protection pursuant to Legislative Decree No. 42 of 2004, are no longer included among suitable areas.

The role of the Regions

In line with the provisions of the former Article 20, paragraph 4 of Legislative Decree No. 199 of 2021, read in conjunction with the Suitable Areas Ministerial Decree, it is provided that within 120 days from the entry into force of the Decree, that is by 22 March 2026, the Regions, and within 180 days from the same date, that is by 21 May 2026, each autonomous province, ensuring the appropriate involvement of local authorities, shall identify suitable areas by means of their own legislation, on the basis of the principles and criteria set out in the new Article 11-bis, paragraph 4 of the TU FER, including, inter alia, the following:

• Regions may not qualify as suitable those areas included within the perimeter of assets subject to protection pursuant to the Cultural Heritage and Landscape Code, nor those included within a buffer zone of three kilometers, in the case of wind plants, and 500 meters, in the case of photovoltaic plants, from the perimeter of such assets, nor may they identify suitable areas where the characteristics of the plants to be developed conflict with the implementing rules provided for under landscape plans (see Article 11-bis, paragraph 4, letter m of the TU FER).

  On this point, industry associations have also expressed their views, highlighting the critical issue reported by certain Regions regarding the difficulty of identifying enough suitable areas in relation to the assigned regional targets. In practice, these difficulties result in a substantial impossibility of achieving renewable energy development targets within the prescribed timeframes, with the consequent risk of undermining national and European objectives.

• To preserve the agricultural designation of land, agricultural areas that may be classified as suitable areas at regional level must not be less than 0.8 percent nor more than 3 percent of the utilized agricultural area (SAU)[2], including the surface occupied by agrivoltaic plants, as specified by the Conversion Law.

• A different maximum limit may be provided for each municipality, without prejudice to the regional limits set out above, namely between 0.8 percent and 3 percent of the SAU. This wording was introduced during parliamentary review to replace the previous formulation which merely stated that specific percentages of SAU exploitation could be defined at municipal level, to expressly attribute such competence to regions and autonomous provinces and to overcome potential interpretative uncertainties as to the authority responsible for determining thresholds at municipal level.

• The introduction of general and abstract prohibitions on the installation of renewable energy plants is precluded, without prejudice to the prohibitions and limitations prescribed for the installation of photovoltaic plants in agricultural areas pursuant to Article 11-bis, paragraph 2, and to the provisions of Article 11-quinquies of the Decree, pursuant to which within the protection zones of UNESCO sites only renewable energy plants eligible for authorization under free building activity pursuant to Annex A of the TU FER are permitted.

Offshore suitable areas

The Decree introduces the concept of offshore suitable areas, pursuant to Article 11-ter of the TU FER, providing that these include areas identified by maritime spatial planning management plans, as well as decommissioned oil platforms and ports. The latter are eligible for wind plants with a capacity of up to 100 MW, subject to a port master plan amendment to be approved within six months from the submission of the application for the single authorization.

Simplified regime

In line with the former Article 22 of Legislative Decree No. 199 of 2021, Article 11-quater of the Decree provides that a simplified authorization regime applies to projects located entirely, and not partially, within suitable areas.

Specifically, for such projects it is not necessary to obtain a landscape authorization. Any opinion issued by the competent authority is not binding. Moreover, in the case of projects subject to a single authorization, the procedural time limits are reduced by one third.

The introduction of transitional provisions and the disappearance of the former c-quater areas

Initially, the Decree repeated the same error as the Suitable Areas Ministerial Decree, by failing to provide any safeguarding regime for ongoing procedures, thus giving rise to a potential retroactive effect of the new limitations on numerous pipeline projects not compliant with the revised siting criteria. It should be recalled that the Regional Administrative Court of Lazio, by judgment No. 9155 of 2025, partially annulled the Suitable Areas Ministerial Decree on this very point. Parliamentary review has now introduced a transitional regime aimed at safeguarding all projects whose authorization procedures were already underway as of the entry into force of the Decree.

Specifically, it is established that the provisions set out under Articles 11-bis, paragraph 1, and 11-quater of the TU FER, as introduced by the Decree, do not apply to procedures pending as of the date of entry into force of the Decree, that is 22 November 2025, which shall therefore continue to be governed by the previous regulatory framework. It is further clarified that pending procedures include enabling or authorization procedures, including environmental assessment procedures, for which the verification of the completeness of the documentation submitted in support of the project has been completed as of the date of entry into force of the Decree. In addition, in cases of high agricultural value of the area, the competent Region or autonomous province may resort to the opposition remedy provided for under Article 14-quinquies of Law No. 241 of 7 August 1990.

However, the issue immediately arises as to how to determine when the completeness of the documentation submitted in support of the project is deemed to be completed for all simplified procedures, such as the simplified authorization procedure (PAS), for which the completeness check is not, in practice, formally carried out. Depending on a systematic or literal interpretation of the provision, this could lead either to considering as safeguarded all projects whose filing was completed at least thirty days prior to 22 November 2025, in compliance with Article 8 of the TU FER, or, conversely, to considering the completeness of documentation not verified for all those procedures for which no formal confirmation of completeness has been issued, even though the thirty day term has already elapsed.

Finally, about the former c-quater provision, which had been the basis for numerous project initiatives since its introduction, the exclusion from the list of suitable areas of those not included within the perimeter of assets subject to protection pursuant to Legislative Decree No. 42 of 2004 has been confirmed.

Agricultural areas

Although the Agriculture Decree is currently subject to constitutional review, the Decree unfortunately appears to essentially reintroduce the same general prohibition on the construction of ground mounted photovoltaic plants in agricultural areas.

The only positive difference lies in the introduction of the long-awaited definition of standard agrivoltaic plants, which should be eligible for installation in agricultural areas by way of derogation from the prohibition.

Nevertheless, significant margins of uncertainty remain also in this respect. Indeed, the derogation applies only where the modules are installed in a position adequately elevated above ground, which leaves extensive discretion to local administrations as to what should be considered an adequately elevated position.

It is appropriate, if not necessary, for clear and concrete technical criteria and parameters to be provided, aimed at limiting the uncertainty of administrative procedures and, at the same time, facilitating operators in planning their investment strategies.

Particularly perplexing are the constraints imposed on Regions in terms of agricultural areas that may be classified as suitable within their territory, which, as noted, must not be less than 0.8 percent nor more than 3 percent of the SAU, that is the aggregate surface area designated for agricultural production, while also providing for the possibility for municipalities to define a different maximum limit, without prejudice to the regional limits set out above.

This mechanism risks triggering, within each Region, a genuine race to initiate authorization procedures on agricultural land to prevent potential risks of refusal deriving from the erosion of the 3 percent threshold.

Although the range identified for suitable areas, while presented as a measure to protect agricultural land, does not in reality constitute an effective constraint on the growth of utility scale photovoltaic installations from a purely quantitative perspective, given that 3 percent of the SAU would be sufficient to develop far more capacity than required to meet energy demand, it is reasonable to expect that a significant portion of the areas theoretically deemed suitable will not present technically and economically sustainable grid connection conditions. This would result, as is already the case, in opportunistic project development, excessive micro zonal concentration and a loss of efficiency of the authorization and energy system, to the detriment of the community as a whole.

Conclusions

The regulatory framework outlined by the Conversion Law undoubtedly marks a turning point in the discipline of suitable areas for the development of renewable energy sources, addressing some of the most evident critical issues that emerged in the original version of the measure.

In particular, the introduction of a transitional regime for ongoing procedures and the removal of disproportionate requirements, such as the mandatory possession of an AIA for the identification of industrial buffer zones, represent corrective measures that are both welcome and, in several respects, necessary to restore a minimum level of legal certainty for operators.

Nevertheless, the overall structure of the reform continues to present significant areas of friction.

The definitive exclusion of the former Article 20, paragraph 8, letter c-quater of Legislative Decree No. 199 of 2021 significantly reduces the scope of areas that may be classified as suitable, in apparent misalignment with the case law that had emphasized its expansive and systematic function. Similarly, the continuing general prohibition on ground mounted photovoltaic plants in agricultural areas, mitigated only by the derogation for standard agrivoltaic plants, continues to rely on elastic and indeterminate formulations that risk translating, in practical application, into an excessive expansion of administrative discretion.

The decision to bind Regions to rigid percentage thresholds of SAU qualifying as suitable areas also appears particularly delicate.

Although formally oriented towards the protection of agricultural land, this mechanism risks producing distortive effects, encouraging anticipatory competition among projects, suboptimal locational concentration and an increase in initiatives lacking genuine technical and economic sustainability, with negative repercussions on the overall efficiency of the authorization system and on the achievement of decarbonization objectives.

In conclusion, the legislator has taken a step forward in the attempt to rationalize a stratified and highly contentious field. However, the outcome still appears far from a framework that is truly stable, coherent and functional to national and European objectives, and responsive to the concerns of market operators.

Much will depend, in the coming months, on the regional implementation of the new regulatory framework, on the adoption of digital tools supporting territorial planning and, not least, on the clarifying contribution that may be provided by administrative case law.

In the absence of further fine-tuning interventions, the risk remains that the discipline of suitable areas will continue to represent not so much a factor of acceleration, but rather an additional source of uncertainty for the orderly development of renewable energy sources in Italy.

[1] Such administrative sanction is also provided for the construction of ground mounted photovoltaic plants carried out in breach of the prohibition set forth under Article 11-bis, paragraph 2 of the TU FER.

[2] Currently equal to 12,3 million hectares, source ISTAT (2025): https://www.istat.it/storage/ASI/2025/capitoli/C13.pdf compared with a renewable energy generation target for 2040 ranging between 144 GW and 170 GW, source Terna (2025): https://download.terna.it/terna/Terna_Prospettive_Sviluppo_Sistema_Energetico_2050_Copertura_domanda_elettrica_8de15802728e7d1.pdf.

Morelli comes from CRCCD and has extensive experience in advising on debt capital markets transactions, both domestically and internationally, as well as on subordinated debt issues, company law and corporate governance.

The arrival of the new partner also sees Martina Baldi, managing associate, and Federica Alici Biondi, senior associate with expertise in equity capital markets (ECM), join ADVANT Nctm. 

Morelli’s entry also responds to the new market trend involving an increasingly widespread use of Italian law to regulate bond issues, with a consequent repatriation of bonds from Italian issuers.

As part of this development strategy, the firm also announces the entry, as counsel, of Gaetano Petroni, a professional who, in addition to dealing with real estate finance, has solid experience in high-yield instrument issues.

“The arrival of Federico Morelli – comments Paolo Montironi, Senior Partner at ADVANT Nctm – confirms the firm’s desire to continue along a path of strengthening through the addition of professionals with distinctive experience and strong development skills. This enables us to further enhance the quality of the assistance we provide to our clients and to make our service offering increasingly comprehensive and responsive to changes in the economic environment. It is through this type of investment that we continue to evolve our advisory model, putting our expertise, vision and innovation at the service of our clients’ challenges.”

The ruling originates from an appeal against the refusal to grant an extension pursuant to Article 10-septies of Decree Law No. 21/2022 (also known as the “DL Ucraina”), based on (i) failure to meet the deadline for the start of works authorised in PAS and (ii) non-compliance of the project with the new urban plan adopted. 

The Court clarified that: 

• pursuant to Article 10 septies of Decree Law No. 21/2022, “the extension constitutes a mandatory act and does not require formal approval by the proceeding authority” (see TAR Campania, Salerno, Section II, 17 October 2025, No. 1701) upon the occurrence of the strictly prescribed conditions, including that the deadline to be extended has not expired and that “the authorisations are not in conflict, at the time of notification by the subject, with new urban planning instruments approved”; 

• for works that can be authorised with a PAS (generally assimilated in case law to a SCIA), there is no deadline for the start of works under Article 6 of Legislative Decree 28/2011, while it is required that they be completed within three years of their finalisation; 

• the mere “adoption” of an urban planning variation (not yet approved) that conflicts with the authorisation already issued is not sufficient to prevent the extension of the authorisation itself ex lege. 

This is clearly a ruling of considerable importance, especially in light of the significant practical and economic implications for players in the sector, as it clarifies fundamental aspects – which until now have remained uncertain – that are destined to have a concrete impact on projects currently under development. 

We are now waiting for the hearing, scheduled for 18 June. 

Below is a summary of the main arguments put forward by the Court, together with our preliminary considerations on the implications of the ruling in question.

* * *

On the application of the Law to authorisation procedures that have already been completed

The Court deemed unlawful the provision (Article 1, paragraph 2) of the Law that required its application also to procedures already completed. 

This provision would, in fact, violate the principles of legitimate expectations and free economic initiative, as well as that of maximum dissemination of renewable energy sources.

In the Court's opinion, the regional provision “goes beyond a regulation that unreasonably limits legitimate expectations, conflicting with the principle of legal certainty as it nullifies all authorisation measures issued for the construction and operation of plants powered by renewable sources, without this reversal being justified by technical or scientific reasons (ex plurimis, judgment no. 88 of 2025)”.

With regard to the prohibition on the construction of plants in areas classified as unsuitable

In line with the Court’s position, it was reiterated that ”unsuitability can never be equivalent to an absolute and a priori prohibition (judgment no. 134 of 2025)”.

The classification of an area as unsuitable determines, at most, the impossibility of accessing the simplified authorisation procedures provided for by the national legislator in suitable areas to speed up the spread of renewable sources.

In such areas, in fact, the installation of a plant may be authorised, but on the basis of an appropriate assessment and a reinforced justification.

According to the judges, “the final decision on the construction of RES plants in areas designated as unsuitable must, in any case, be taken at the end of the individual authorisation procedure concerning the specific plant project, within which reasons in favour of its construction could still be highlighted”.

In fact, it is during the procedure that the objective reasons preventing the construction of the plant in an unsuitable area must emerge. In the Court's opinion, the authorisation procedure allows for a concrete assessment of the relationship between suitable and unsuitable areas, as well as a complete balance between nature conservation and environmental protection through the reduction of polluting energy sources.

This approach makes it possible to counteract the Nimby phenomenon and thus prevent the wishes of certain regional political bodies seeking to obstruct the construction of plants in their respective territories from being indulged.

In light of these arguments, the provision imposing an absolute ban on the installation of RES plants in unsuitable areas was therefore declared unconstitutional.

On the limits for revamping and repowering interventions

The regional regulation introducing different types of limits on repowering and revamping activities, based both on the size of the areas concerned and, in fact, on the number of new-generation wind turbines that can be authorised, is constitutionally illegitimate due to its violation of the division of legislative powers, thus adopting a criterion that differs from and conflicts with that established by the state legislator. 

Offshore plants and state jurisdiction

The Court clarified that the identification of suitable areas for the installation of offshore RES plants falls under the jurisdiction of the Ministry of Infrastructure and Transport.

It follows that the regions, including Sardinia, cannot independently identify suitable sites for the installation of such plan.

* * *

The Court upheld most of the objections raised by the Government against the Sardinian regional law, confirming and reinforcing the national and European approach in support of the energy transition.

In this regard, it is desirable that some of the ideas offered by the ruling in question be taken up and incorporated into the current conversion of Decree Law 175/2025 into law.

As is well known, this decree has significantly redefined the legislation on suitable areas, leaving some significant concerns, especially with regard to certain aspects examined in depth by the constitutional judges, including the absence of transitional provisions and the regulation of projects that only partially fall within unsuitable areas.

The shared objective must be to achieve a regulatory framework that is as clear and unambiguous as possible in order to prevent operators from constantly resorting to the courts to assert principles that should be undisputed. 

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The launch of Fer Z depends on EU clearance, which Viganò describes as “the key step in the process of starting the Fer Z mechanism, without which it cannot be implemented”. He recalls that the European Commission has “expressed reservations about the technological efficiency and compatibility of Fer Z with the EU State Aid Guidelines, as well as the effectiveness of the mechanism in relation to the planned maintenance aspects of the facilities”. Given the innovative nature of the model, he also expects that approval of the GSE and ARERA operating rules “could take quite a long time”.

As for its interaction with existing schemes, Viganò sees Fer Z not as conflicting with Fer X but as “competition among operators for the capacity quotas offered by the various schemes, and of simultaneous competition between the schemes themselves”. He adds that while “the Fer X capacity quota could over time decrease and be partially transferred to Fer Z”, “for the moment it is not possible to envisage migration scenarios because reference tariffs are not known”.

Published in icis.com:

New Fer Z incentive mechanism could reduce renewable curtailment in Italy

Complexity of new Italian Fer Z mechanism could delay implementation

The Amendment, published just six days after the recent measures on suitable areas (for further details, please refer to our previous article Suitable areas: significant regulatory changes are underway. News and impacts on future investment strategies) and which will come into force on 11 December 2025, further amends the TU FER with potential significant implications that are far from marginal on current market practices. 

Below is a summary of the main regulatory changes, together with some preliminary considerations on their potential practical implications.

1. Storage systems

At the express request of industry associations, the Amendment modifies Article 1, paragraph 1 of the TU FER by introducing an explicit reference to storage systems.

This definitively clarifies that the administrative regimes provided for in the TU FER also apply to this type of asset, which, moreover, by virtue of the reference in Article 2, paragraph 2, must be considered to be of public utility, urgent and cannot be postponed.

As is well known, the annexes to the TU FER already covered interventions on electrochemical storage systems, but there was no provision that unequivocally confirmed the extension of the administrative regimes to them.

2. Titles suitable for the availability of the area

The amendments introduced to Articles 8 and 9 of the TU FER (relating to PAS and AU procedures) definitively clarify that preliminary contracts are suitable titles to demonstrate the legitimate availability of the area.

This is, of course, the concrete transposition into law of recent court rulings on the subject.

Finally, the Regional Administrative Court of Palermo, in its rulings nos. 2131 and 2133 of 30 September 2025, confirmed that preliminary contracts duly registered and transcribed in accordance with Article 2645-bis of the Italian Civil Code may also be considered suitable, since “with regard to the principle of proportionality, requiring the conclusion and production of final contracts even before the authorisation is issued would place an unjustified burden on the operator, forcing it to incur costs and financial constraints without any certainty of a favourable outcome to the proceedings, with an excessive sacrifice in relation to the protection sought by the legislator. In this sense, [...], the filing of final contracts may be postponed until after the authorisation has been issued”.

These principles have also already been implemented at regional level, by Circular No. 39593 of 14 November 2025, in which the Sicilian Region ordered the adaptation of the checklist of documentation required for authorisation procedures to the aforementioned rulings.

3. Environmental compensation

Article 7 of the Amendment introduces changes to letter m) of paragraph 4 of Article 8 of the TU FER, providing for new methods for determining the amounts to be allocated to finance the territorial compensation programme to the municipality in whose territory the plant will be installed.

As is well known, the previous regulatory framework (represented by the Ministerial Decree of 10 September 2010 and the TU FER) generically provided that this percentage should be calculated on the basis of “revenues including current incentives, deriving from the valorisation of the electricity produced annually by the plant” without, however, clarifying the scope of this term (e.g., whether it referred to annual revenues, revenues from energy production or company profits).

As a result of the changes introduced by the Amendment, in the case of projects subject to the PAS regime, the previous "territorial compensation programme for the municipality concerned of not less than 2 per cent and not more than 3 per cent of the income" is replaced by the new thresholds, not less than 1 per cent and not more than 3 per cent, taking as a benchmark the "value of expected production during the useful life of the plant, net of the value of any energy consumed by the plant itself".

The same applies to projects subject to the Single Authorisation regime, with the difference that the maximum percentage threshold has been raised to 4% (see Article 9, paragraph 10, letter d, TU FER).

The amendments will enter into force on 11 December 2025 and further criteria regarding the application of compensation measures will be specified when the 2010 Guidelines will be updated pursuant to Article 14, paragraph 5, of the TU FER. 

4. Alternative Dispute Resolution 

With the inclusion of Article 12-ter in the TU FER, the Amendment introduces a significant innovation to reduce litigations.

A new dispute resolution mechanism has been introduced, which will be managed by the Single Buyer and defined by ARERA with other measures.

This mechanism should be applied with reference to the administrative regimes connected with interventions on renewable energy plants, settling disputes relating, for example, to the assessment of the existence of territorial constraints, the verification of the completeness of the documentation accompanying the PAS or the AU application, and the application of the simplified rules for interventions in suitable areas.

5. Application of the abbreviated procedure pursuant to Article 119 of the Administrative Procedure Code

In order to ensure the fastest possible resolution of disputes relating to procedures and measures adopted by the public administration in relation to RES plants, the Amendment introduces Article 10-bis into the Consolidated RES Act. 

This article establishes that the provisions of Article 119 of the Administrative Procedure Code (relating to the summary procedure for administrative proceedings) apply to the aforementioned disputes.

As a result of this provision, all ordinary procedural deadlines are halved, except, in first instance judgment, those for the notification of the appeal, the incidental appeal and the additional grounds, as well as those for the filing of a precautionary appeal.

6. Further changes

Other new changes worth mentioning include:

• the increase from 10 to 12 MW of the threshold for the application of the PAS regime with regard to photovoltaic solar plants located in areas suitable pursuant to Article 11-bis of the TU FER, to be submitted to PAS (Annex B, Section I of the TU FER) in order to bring the text into line with the provisions of Article 13 on the exemption of such projects from environmental procedures;

• the introduction of the definition of “connected works” to be understood as 'the works connecting the plant to the electricity distribution network or to the national transmission network necessary for the injection of the energy produced or stored into the aforementioned networks, as well as the works connecting to the natural gas or hydrogen distribution network for biomethane or hydrogen production plants, with the exception of building works';

• The clarification that the assessment of EIA applicability, where necessary, must precede the beginning of the AU proceding and must last no longer than 90 days from the verification of document completeness referred to in Article 19, paragraph 2 of the Environmental Code.

Conclusions

The innovations introduced by the Amendment – although not equal with those recently discussed in relation to suitable areas – would appear to have a significant impact on the regulatory framework for the sector and, consequently, on future investments in the renewable energy sector.

Certainly, the provisions aimed to clarify (once and for all) that preliminary contracts can be used to demonstrate the availability of the area could be seen positively.

Another positive change could be the raising of the threshold for interventions subject to PAS and the definition of related works.

On the other hand, the following provisions are questionable:

• the negative changes made, compared to the latest version of the Amendment circulated in recent weeks, with regard to environmental compensation measures. In fact, compared to the previous text, at the instigation of ANCI:

  • the minimum threshold applicable to projects authorised in PAS has been raised from 0.5% to 1% and the maximum threshold for projects in AU from 3% to 4%. In this regard, in the absence of clear transitional provisions, it will be necessary to understand, at the time of application, whether the new 4% threshold for AU will be taken as a reference by municipal administrations only with regard to future authorisation procedures or, conversely, also with reference to procedures already in progress and to procedures for the revision/renegotiation of agreements concerning exclusively financial measures in violation of Law No. 145/2018 (later deemed legitimate by the Constitutional Court in its ruling No. 46 of 23 March 2021).

  • the reference parameter has returned to being 'the value of expected production during the useful life of the plant' instead of the previous 'value of expected production for the first five years of operation of the plant';

• the changes introduced on the judicial and extrajudicial fronts. On the one hand, there are the provisions that recognize the application of a summary procedure (without prejudice to the 60-day deadline for notification of the appeal) and even an alternative dispute resolution mechanism; on the other hand, it has once again confirmed the possibility of challenging both administrative measures and those issued by the Single Buyer through the extraordinary appeal to the President of the Republic (which must be filed within 120 days from the date of full knowledge of the act presumed to be harmful), with a considerable expenditure in terms of time and costs for operators in the sector;

• the introduction of storage systems among those to which the TU FER expressly applies, without however specifying which areas are suitable for this type of asset, with considerable uncertainty regarding the application of the law in the context of scouting for land to be dedicated to such initiatives.

Without wishing to overlook the legislator's commendable ambitions for regulatory reform and the aforementioned potential clarifying effects that could result from the Amendment, for now, it seems that has been done 'too little, too late'.

In fact, in view of the ambitious targets set for 2030, the regulatory framework for the sector still appears to be marked by numerous inconsistencies and grey areas that are likely to continue to have a negative impact on the investment strategies of market operators. 

In any case, in order to have a clear, complete and comprehensive picture of the future new regulations (and the resulting reactions of market players), it will still be necessary to wait and see if and how local administrations will implement these regulatory changes and, as regards the new form of ADR, the subsequent implementing measures of ARERA.

Written by Giovanni Battista De Luca, Lorenzo Piscitelli and Ludovica Petrucci.

The measure introduces significant amendments to Law No. 130 of 30 April 1999 (the "Securitisation Law"), with the aim of expanding access to credit for Italian businesses through the monetisation of inventory.

The legislator’s stated intent is to enable companies to unlock the financial value of their inventory, promoting more efficient use of stock and making the securitisation framework more flexible, without altering the capital structure or corporate control.

1. Amendments and Innovations to the Securitisation Law

The legislative intervention focuses on three core provisions of the Securitisation Law — Articles 7, 7.1 and 7.2 — significantly redefining their scope and thereby allowing entities (including those other than banks and licensed financial intermediaries) to finance inventory monetisation by subscribing the notes issued by the securitisation vehicle, for the purpose, as applicable, of:

(i) financing a segregated pool (in the form of a designated pool (patrimonio destinato) or supporting vehicle companies) to which the inventory has been allocated; or

(ii) purchasing the inventory itself,

whose proceeds from sale and management will be applied to remunerate and redeem the issued notes.

First, Article 7, paragraph 1, letter a) is amended to specify that securitisation may concern "receivables, including future receivables". This is a systematic clarification that reflects what was already implicitly provided under Article 1 of the Securitisation Law. This amendment should also be read in conjunction with the "rolling" nature of inventory, whose monetisation through securitisation is subject to the further changes summarised below.

At the same time, letter b-bis) of the same paragraph is supplemented to extend securitisations to "non-registered movable goods" (beni mobili ner registrati), with a corresponding change to the heading of Article 7.2, now titled "Securitisations of Real Estate and Movable Goods, Including Registered Assets" (“Cartolarizzazioni immobiliari e di beni mobili anche registrati”). This amendment allows replication, for inventory and other non-registered movable goods, of the structure already provided for real estate and registered movable assets, opening the way to securitisations of industrial stock (destocking).

The most substantial change, however, appears to be that introduced in paragraph 2-octies of Article 7, which redefines the concept of designated pool (patrimonio destinato).

2. The New Concept of Designated Pool in the Context of Securitisations

In its original formulation, the designated pool could include only receivables and, as ancillary, assets or rights pledged as collateral for such receivables.

Under the new version, the financed entity may allocate not only receivables but also rights and assets related to those receivables, including products resulting from their transformation or combination, as well as substitute assets.

In this way, the designated pool assumes a dynamic configuration, capable of representing the company’s entire production cycle: from raw materials to finished goods, including substitute assets. This evolution makes it possible to include in the segregated pool all economic elements contributing to the generation of receivables, effectively making work-in-progress or transforming inventory in a securitisation product.

3. Supporting SPVs and New Operational Opportunities

The regulation introduces a significant procedural innovation: the possibility of establishing the designated pool also through transfer to a special purpose vehicle (“SPV”), pursuant to Article 7.1, paragraph 4 (without, however, having to comply with the condition set forth in paragraph 1 of the same article, which limited this option to non performing loans transferred by banks or financial intermediaries established in Italy).

In this way, even non-financial companies—such as SMEs—can access this tool to securitize ordinary receivables or inventory-related assets.

The transaction can benefit from the tax breaks provided for in paragraphs 4-bis, 4-quater, and 4-quinquies of the Securitization Law, which provide, among other things, for exemption from transfer taxes and the application of simplified regimes for direct and indirect tax purposes.

The SPV can thus be used to manage, enhance and segregate the assets involved in the transaction, similar to what is already provided for so-called ReoCo in real estate securitizations, but now also in ordinary transactions, strengthening the flexibility and efficiency of the model.

4. Clarification on the scope of Articles 7.1 and 7.2

It should be noted that the structure under Article 7.1 is particularly suited to transactions where, in addition to inventory stock, receivables (whether existing or future) are also included, thereby allowing goods and receivables to be combined within a single framework and optimising segregation and deconsolidation.

By contrast, Article 7.2 applies exclusively to movable goods, such as inventory stock, and offers the most straightforward solution for companies seeking to securitise only stock. The choice between the two structures will ultimately depend on the composition of the assets and the tax and regulatory efficiency objectives pursued.

5. Final Considerations

Overall, the measure – once the relevant approval process is concluded - will significantly expand the potential scope of the Securitisation Law and will introduce a specific mechanism for inventory monetisation.

This tool is undoubtedly more efficient than the structures seen so far in the market, which either treated inventory merely as "collateral" for financing or required the transfer of inventory to a third party under arrangements allowing continued management by the transferor. Moreover, the new structure substantially overcomes certain operational difficulties related to dispossession under inventory pledges or other types of hard security over inventory, which often created limitations or excessive management burdens for both the financing entity and the inventory owner — issues that even the introduction of the non-possessory pledge had not fully resolved.

Companies will thus be able to obtain financial resources through the securitisation of inventory stock, including not only existing receivables but also future receivables connected to the production and sale of goods. Conversely, financiers will benefit from the protections provided under the securitisation framework, including, inter alia, segregation of the financed pool in favour of the investor/noteholder, without the need to establish specific guarantees over the inventory.

Written by Roberto de Nardis di Prata, Matteo Gallanti and Luigi Dugato. 

In recent weeks, a new draft of the aforementioned decree has circulated which, if on one hand it did not seem to bring substantial changes on the saturation and DC front, on the other hand it has been enriched, introducing a substantial reorganization of the so-called "suitable areas" for the installation of renewable plants.

From the "Energy Decree" the measures in question have now formally migrated to Decree no. 175 of 21 November 2025 also known as "Transition 5.0 Decree" and originally intended, precisely, to regulate only the tax credits referred to in the Transition 5.0 Plan (the "Decree").

The Decree, published in the Official Gazette on November 21 last, introduces multiple amendments to Legislative Decree no. 190/2024 (also known as "TU Renewables") substantially going to abrogate the rules of the game as we currently know them and, in detail:

• the discipline of suitable areas ope legis referred to in art. 20, co. 8 of Legislative Decree 199/2021 (and, consequently, also the DL Agriculture, pending, as is known, constitutional scrutiny);

• the criteria and parameters referred to in the DM of July 2, 2024 (the "DM Suitable Areas") already partially annulled by the TAR Lazio in May of this year and currently sub judice before the Council of State.

The new regulation is now set out in arts. 11-bis and following of the TU Renewables.

Notably, similar to what was provided by Legislative Decree 199/2021, the following are considered suitable areas:

• sites where plants of the same source are already installed and where modification interventions are carried out, even substantial ones, that do not involve a variation of the occupied area exceeding 20%, with the specification (this not present in the previous Art. 20 of Legislative Decree 199/2021) that such variation of the area is not allowed for photovoltaic plants installed on the ground in agricultural areas and that, for the new occupied areas, what is provided by Legislative Decree 22/2004 regarding cultural and landscape authorizations must be observed (cf. Art. 11-bis, co. 1, lett. a) of the TU Renewables);

• sites subject to remediation identified pursuant to Legislative Decree 152/2006 (the "Environmental Code"), ceased quarries and mines, not recovered or abandoned or in conditions of environmental degradation, or portions of quarries and mines not susceptible to further exploitation as well as (in addition to what was provided by Legislative Decree 199/2021) landfills or closed or restored landfill lots (cf. Art. 11-bis; co. 1, lett. b), c) and d) of the TU Renewables);

• sites and plants available to companies of the State Railways group, railway infrastructure managers, highway concessionaires, airport management companies as well as state property assets in use by the Ministry of Defense or the Ministry of the Interior and certain real estate assets identified by the State Property Agency (cf. Art. 11-bis, co. 1, lett. e), f), g), h) and i)).

Photovoltaic plants

The Decree then provides in art. 11-bis, co. 1, lett. l) ad hoc provisions for photovoltaic plants.

In essence:

• areas adjacent to the highway network within a distance not exceeding 300 meters, buildings and industrial areas (to which are added areas destined for Data Center installation, areas used as parking lots, water reservoirs and areas within the perimeter of competence of the integrated water service) are confirmed as suitable areas;

• the prohibition of installation of photovoltaic plants in agricultural areas within 500 meters from zones with industrial, artisanal and commercial destination appears confirmed (i.e., the previous prohibition introduced as a result of the DL Agriculture and relating to Art. 20, co. 8, lett. c-ter), 1) of Legislative Decree 199/2021);

• the suitable areas referred to in the previous art. 20, co. 8, lett. c-ter, n. 2) are remodulated, in a restrictive key, (i.e., areas internal to establishments referred to in art. 268 of the Environmental Code and agricultural zones enclosed in a perimeter of 500 meters from the establishment) providing as conditions: (a) that the relative establishment is not destined for agricultural production and has been authorized with Integrated Environmental Authorization ("IEA"); (b) for agricultural zones a compression of the buffer zone from 500 to 350 meters;

• those referred to in the previous Art. 20, co. 8, lett. c-quater (i.e., areas not included in the perimeter of assets subject to protection pursuant to Legislative Decree 42/2004) no longer appear to figure among the suitable areas.

Agricultural zones and agrivoltaic plants

The Decree appears to provide (finally) a definition aimed at identifying the so-called agrivoltaic plants different from advanced ones (for which an analytical illustration has been provided from the beginning for access to PNRR measures).

Specifically, the new art. 4, co. 1, lett. f-bis) defines as "agrivoltaic plants" photovoltaic plants that preserve the continuity of cultivation and pastoral activities on the installation site and that may (not must) provide for the rotation of modules placed in elevated position from the ground and the application of digital and precision agriculture tools.

This is a novelty of non-marginal importance considering that if, on one hand, the new discipline substantially confirms in art. 11-bis, co. 2, the generalized prohibition of installation of photovoltaic plants in agricultural areas, on the other hand, it provides an express derogation (in addition to CER and advanced agrivoltaic plants like the previous regulation) also for "standard" agrivoltaic plants as defined above provided that the modules are "placed in adequately elevated position from the ground".

Plants for biomethane production

With reference to plants for biomethane production, the previous discipline is essentially confirmed, although with some clarifications. In particular, the following continue to be suitable:

• agricultural areas within 500 meters from zones with industrial, artisanal and commercial destination (i.e., the previous Art. 20, co. 8, lett. c-ter), 1) of Legislative Decree 199/2021);

• areas internal to industrial plants and establishments referred to in art. 268 of the Environmental Code as well as areas classified as agricultural enclosed in a perimeter whose points are no more than 500 meters from the same plant or establishment with the specification, already mentioned for photovoltaic plants, that such establishments must be authorized under the IEA regime;

• areas adjacent to the highway network within a distance not exceeding 300 meters.

As seen for photovoltaic technology, also for the projects in question those referred to in the previous art. 20, co. 8, lett. c-quater (i.e., areas not included in the perimeter of assets subject to protection pursuant to Legislative Decree 42/2004) no longer appear to figure among the suitable areas.

Regional Implementation

Following the pattern of what was provided by the previous art. 20, co. 4 of Legislative Decree 199/2021 in combination with the DM Suitable Areas, it is provided that within 120 days from the entry into force of the Decree (i.e., indicatively by May 22, 2026) the Regions shall provide, with their own law, for the identification of suitable areas based on the principles and criteria referred to in the new art. 11-bis, co. 4 of the TU Renewables, among which it is worth mentioning the following:

• Regions cannot qualify as suitable areas included in the perimeter of assets subject to protection pursuant to the Code of cultural heritage and landscape nor those included in a buffer zone of three kilometers, in the case of wind plants, and five hundred meters, in the case of photovoltaic plants, from the perimeter of the same assets, nor identify suitable areas where the characteristics of the plants to be built are in contrast with the implementation rules provided by landscape plans (cf. Art. 11-bis, co. 4, lett. m) of the TU Renewables);

• in order to preserve the agricultural destination of soils, agricultural areas qualifiable as suitable areas at regional level must not be less than 0.8% of the Utilized Agricultural Surfaces (UAS) nor more than 3% of the same UAS and specific percentages of UAS exploitation can be defined at municipal level;

• impossibility of providing general and abstract prohibitions on the installation of renewable energy plants, without prejudice to the prohibitions and limitations prescribed for the installation of photovoltaic plants in agricultural areas pursuant to art. 11-bis, co. 2 and what is provided by article 11-quinquies of the Decree (according to which within the protection zones of UNESCO sites only the installation of renewable energy plants authorizable in free construction pursuant to Annex A of the TU Renewables is allowed).

In order to facilitate the identification of suitable areas (as well as acceleration zones), with a Decree of the MASE to be adopted within 60 days from the entry into force of the Decree, the operating procedures of a digital platform aimed at qualifying the territory and classifying areas and zones will be regulated.

As regards the 2030 targets for renewable energy capacity to be installed in each territory, the previous regional distribution referred to in the DM Suitable Areas remains confirmed.

Suitable areas at sea

The Decree introduces the concept of "suitable areas at sea" (cf. art. 11-ter of the TU Renewables) providing that such areas are those identified by maritime spatial management plans as well as disused oil platforms and ports (the latter, for wind plants with power up to 100 MW and subject to a variant of the port master plan to be approved within six months from the submission of the single authorization application).

Regime semplificato

Similar to what was provided by the previous art. 22 of Legislative Decree 199/2021, art. 11-quater of the Decree provides that for interventions falling (entirely and not partially) on suitable areas a simplified authorization regime applies.

Specifically, for such interventions it is not necessary to acquire landscape authorization (the opinion of the competent authority, where expressed, is not binding) and, in the case of projects subject to single authorization, the procedure terms are reduced by one third.

Preliminary considerations and market impacts

After approximately four years spent waiting for a concrete paradigm shift together with clear, precise and unambiguous indications on how and where to direct their investment strategies, it is highly probable that the Decree in question will lend itself to multiple criticisms from market operators, some of which can be easily anticipated from a plain reading of the discipline under examination.

The absence of transitional provisions and the disappearance of former c-quater areas

As is known, the TAR Lazio with sentence 9155/2025 partially annulled the DM Suitable Areas for the absence of a transitional discipline aimed at safeguarding proceedings in progress at the date of entry into force of the decree and pending the promulgation of Regional Laws.

The Decree appears to repeat exactly the same error, not providing any safeguard regime for consolidated legal positions and determining a potential retroactive effect of the new limitations on the multiple projects in the pipeline not in line with the renewed locational criteria (think, by way of example only, of the significant number of projects to be installed in former c-quater areas or former c-ter, 2) whose plants are not authorized under the IEA regime).

Furthermore, the rule does not appear to provide for an express repeal of the previous provisions while providing, in fact, their evident replacement with the new regime.

It is hoped that – in order to prevent the proliferation of litigation, likely to be accepted given also the precedent of the TAR Lazio – during the conversion into Law (i.e., by January 22 next) the course will be corrected, introducing the aforementioned safeguard clause; however, even in such an (optimistic) hypothesis, the result would consist of 60 days of total freezing of development initiatives, with inevitable negative effects on investments currently under evaluation or implementation by market players.

The same applies to buffer zones for protected assets.

The TAR Lazio, with the above-mentioned sentence, branded the DM Suitable Areas as illegal for an evident lack of proportionality in the part where it gave Regions the possibility to provide for buffer zones for protected assets up to 7 kilometers from the relative perimeter.

The Decree seems to resolve this issue at the root, striking out the previous c)-quater and providing, even, the impossibility for Regions to qualify as suitable the areas included in the perimeter of assets subject to protection regardless of the buffer zones that no longer have any relevance.

In other words, the realization of projects in proximity to protected assets is prevented once and for all regardless of any buffer zone.

The above would seem, barring changes during conversion, to considerably compromise the multiple initiatives previously suitable under art. 20, co. 8 lett. c)-quater currently under evaluation and, even, in the absence of transitional provisions, under authorization.

The IEA filter

Pursuant to the previous art. 20, co. 8, lett. c-ter) it was possible to install photovoltaic plants or for biomethane production on areas internal to industrial plants and establishments as well as in areas classified as agricultural enclosed in a perimeter whose points are no more than 500 meters from the same plant or establishment.

In compliance with the principle of maximum diffusion of renewable energies, the provision in question has been the subject of multiple extensive interpretations both by the executive and in judicial proceedings, going so far as to classify as "plant" even photovoltaic installations with power exceeding 20 kW as well as power plants and electrical substations (cf. MASE interpellation n. 130318 of August 8, 2023; TAR Lazio, Rome, Sentence n. 4994/2025; TAR Lecce, Sentence n. 1113/2025).

The above by virtue of a substantialist approach, aimed at considering as suitable areas with strong urban impact which, conversely, appears entirely neglected by the Decree.

The new art. 11-bis, co. 1, lett. l), num. 1) of the Decree, in fact, on one hand, circumscribes the radius of suitability of agricultural areas for photovoltaics to 350 meters (instead of 500) and, on the other hand, expressly requires (both for photovoltaics and for biomethane) that the relative plant or establishment be subject to IEA, significantly restricting the pool of usable sites compared to previous extensive readings.

This regulatory contradiction generates legal uncertainty and risks nullifying the interpretative efforts made to expand developable surfaces, creating an evident short circuit between the hermeneutic evolution favorable to renewables and the new restrictive discipline.

Consider, in fact, that many industrial plants, despite having a significant territorial impact, are not necessarily subject to IEA, which exclusively concerns facilities of considerable size and dedicated to activities with high and significant environmental impact, including, by way of example, the production and transformation of metals or the chemical industry.

Agricultural areas

Despite the DL Agriculture currently being pending constitutional judgment, the Decree appears, unfortunately, to essentially repropose the same generalized prohibition on the realization of ground-mounted photovoltaic plants in agricultural areas.

The only positive difference is represented by the introduction of the long-awaited definition of standard agrivoltaic plants which should be able to be realized in agricultural areas in derogation of the aforementioned prohibition.

Nevertheless, even in relation to this profile, significant margins of uncertainty appear to remain; in fact, the derogation finds application only where the modules are "placed in an adequately elevated position from the ground", which leaves immense spaces of discretion to the relative local administrations on what should be understood as "adequately elevated position".

During conversion it is appropriate, if not necessary, that clear and concrete technical criteria and parameters be provided aimed at limiting the randomness of administrative procedures and, at the same time, facilitating operators in planning their investment strategies.

Particularly perplexing are the constraints imposed on Regions in terms of agricultural areas qualifiable as suitable in their territory which, as seen, must not be less than 0.8% nor more than 3% of the UAS (i.e., the sum of company surfaces destined for agricultural production), also providing the possibility for municipalities to define specific percentages of UAS exploitation.

This is a mechanism that risks triggering, for each Region, a real race to start authorization procedures on agricultural areas in order to prevent possible risks of denial deriving from the erosion of the aforementioned 3% threshold.

Conclusions

The new regulation appears to close the circle of suitable areas returning, essentially, to the starting point with conditions and criteria, unfortunately, further restrictive compared to the previous legislation, going to defuse the positive effects introduced with Legislative Decree 199/2021.

This is clearly a discipline that is worse than the previous one and which, quite unexpectedly, appears not to have grasped – unlike national jurisprudence – the urgent need to definitively adopt an approach consistent with European principles of maximum diffusion of renewable sources, proportionality and environmental integration, making the achievement of the objectives set by the PNIEC by 2030 almost impossible.

Such a scenario consisting of yet another change in peius of sector legislation – in the absence of a substantial reforming intervention during conversion into Law – risks further fueling the current climate of regulatory uncertainty with inevitable negative effects on the entire sector as well as, in general terms, on the common objective of progressively building a solid and independent energy system.

A leap forward was needed and, unfortunately, for now, it seems that the executive, ignoring the signals coming from the market and administrative judges, has taken an unexpected step backward.

Article by Giovanni Battista De Luca, Piero Viganò and Lorenzo Piscitelli. 

This structure was incorporated into Decree No. 204 of 29 July 2025, published on the MASE website on 28 October ("Corrective Decree"), following registration by the Court of Auditors.

Finally, the MASE Directorial Decree published on 19 November 2025 approved the expected operating rules and contract templates prepared and submitted by the GSE ("Operating Rules"). 

These sources confirm that energy-intensive end customers - registered on the CSEA list as of 18 January 2025 - will be able to receive, for a period of thirty-six months ("Advance Period") starting from 1 January 2025, volumes of energy from Gestore dei Servizi Energetici S.p.A. (“GSE”) for a period of thirty-six months starting on 1 January 2025, through a two-way contract for difference with a reference price of €65/MWh based on monthly quotas of the total volume awarded to energy-intensive customers at the end of the allocation procedure, but introducing some significant provisions.

These include the Competitive Procedure, as defined below, for the allocation of volumes to be returned to the GSE and the regulation of the so-called Claw Back: the GSE's right to have the residual advantage corresponding to the lower of the present value of cash flows during the advance period and the difference, if positive, between the present value of cash flows during the advance period and the present value of cash flows during the return period, returned by the counterparty. 

The repayment period still lasts twenty years, but this is supplemented by a further period of up to 20 years during which the aforementioned repayment may take place.

The Contract and the related Addendum governing the advance period and the repayment period

The energy consumer (or aggregator) is required to sign a contract (corresponding to the previous Advance Contract) aimed at regulating its relationship with the GSE by the deadline of 31 January 2026 ("Contract").

This contract covers:

i. the regulation of the differential for the advance payment to the operator of electricity volumes and the related guarantees of origin;

ii. the obligation to build new generation capacity from renewable sources within forty months of signing the single contract;

iii. the obligation to return the advance electricity and related Guarantees of Origin;

iv. the obligation to return the residual benefit.

Except as provided for in certain cases of award following the Competitive Procedure, the new generation capacity must be operational no earlier than 30 April 2025 and in any case no later than forty months after the date of signing the Contract, without prejudice to any extension due to force majeure or in cases of delay in the conclusion of administrative procedures. In any case, the final deadline already set for 31 December 2030 remains unchanged.

The contractual obligations relating to the entry into operation of the new capacity and the return obligations may be transferred by the energy consumer (or aggregator), with the relative release, to the delegated third party by signing the so-called Addendum, even after the Competitive Procedure has been carried out and in any case within forty months of the signing of the Contract.

With regard to the adjustment of the differential during the return period, it should be noted that for each month of the return period, the GSE calculates the difference between the Transfer Price and the higher than zero Day-Ahead Market price, determined in the relevant transaction period and in the market area where the plant is located, in relation to the monthly energy to be returned. A floor of zero has been included for the calculation of the differential. In the event of negative prices, the producer will receive the transfer price from the GSE and therefore the previous provision stating that 'the adjustment is suspended in the relevant periods when zero or negative prices are recorded on the MGP' no longer applies.

Advance settlement of accounts relating to the advance period 

With regard to the payment of amounts relating to 2025, the GSE will make a single payment after the first invoice has been issued.

Guarantees of Origin cancelled by 31 March of year 'n' may be used to certify consumption for year 'n-1', but Guarantees of Origin recognised under the Contract that are cancelled by 30 April 2026 may be used to certify consumption for the year 2025.

The first guarantee relating to 2025 and 2026 must be provided by the energy-intensive consumer (or aggregator) for an amount calculated by the GSE on the basis of the amounts advanced with reference to the year 2025 and the estimate for 2026, and submitted by 28 February of the same year. 

Competitive Procedure

Within ninety days of the date of publication of the new Operating Rules and following the signing of the Contract by energy-intensive end customers or aggregators, the GSE will publish the notice for the competitive procedure referred to in Article 6-bis of the Energy Release 2.0 Decree, as amended by the Corrective Decree, in order to select the third parties who will assume the obligation to build new generation capacity from renewable sources that will enable the already known requirement of producing at least double the volumes advanced to energy-intensive end customers during the advance period to be met ("Competitive Procedure").

The GSE will launch the Competitive Procedure no less than fifteen days after the date of publication of the notice. The procedure will remain open for the following thirty days and the outcome will be published within forty-five days of its closure. 

The following entities may participate: (i) energy-intensive customers (or aggregators) who have signed the Contract (within the limits of the energy quota subject to advance payment); (ii) delegated third parties (within the limits of the energy quota covered by the Contract for which they have been delegated); (iii) third-party producers, energy-intensive customers (or aggregators) and delegates for an energy quota in addition to that covered by the Contract, who, in order to participate, meet the following requirements: a) availability of the licence to build and operate the plant and concessionaires; b) availability of a definitively accepted estimate for connection to the electricity grid and registration of the plant on Terna's GAUDI system validated by the grid operator; c) compliance of the plant with the performance requirements and environmental protection standards necessary to comply with the 'Do No Significant Harm' (DNSH) principle. 

Participants will submit bids for the premium they are willing to receive or pay for the creation of the new generation capacity required for access to the mechanism, it being understood that participants may therefore also offer negative premiums. It is also envisaged that energy-intensive users (or aggregators) and delegates, with reference to the volumes covered by the advance contract signed, may, while participating, avoid submitting a bid. In this case, for the purposes of ranking, the GSE will also consider these volumes, assuming that, with reference to them, a bid equal to the minimum bid allowed has been submitted.

Participation, in turn, may be treated in two different ways depending on the participant and the volume for which they submit a bid.

The so-called 'Cluster A' will include requests for participation submitted without making an offer by (i) energy-intensive users, for all or only a portion of the energy covered by the Contract; (ii) energy-intensive customers in aggregate form, for all or only a portion of the energy covered by the contract; (iii) delegates, for all or only a portion of the energy covered by the Contract. 

The so-called "Cluster B" will include requests for participation submitted with the intention of making an offer by: (i) energy-intensive customers, for all or only a portion of the energy covered by the Contract; (ii) energy-intensive customers, for the portion of energy exceeding the Contract; (iii) aggregators, for all or only a portion of the energy covered by the Contract; (iv) aggregators, for the portion of energy exceeding the Contract; (v) delegates for only the portion of energy exceeding the Contract, (vi) third-party producers without any quota limit. 

Ranking and conclusion of the Award Contract

The ranking list shall be published within forty-five days of the closing date of the Competitive Procedure. The following shall be awarded: (i) all requests for participation in Cluster A; (ii) all bids in Cluster B that are lower than or equal to the value of the last accepted bid. 

After the publication of the ranking, only the successful third-party producers, in addition to energy-intensive users (or aggregators) and delegates, will be required to sign the so called Award Contract, but only for the portion of energy exceeding the Contract. 

Commissioning of plants following the competitive procedure

For energy-intensive users (or aggregators) who remain obliged to produce and return the quantity of energy covered by the Contract, the capacity must become operational within forty months of the signing of the Contract.

The plants relating to the 'Cluster B' bids and owned by energy-intensive users (or aggregators) or delegates, both for the portion of energy exceeding the Contract, or for third parties, must enter into operation within 36 months of the publication of the Competitive Procedure ranking and in any case no later than 31 December 2030. 

Residual Advantage adjustment method 

No later than the nineteenth year from the start of the repayment period, the GSE calculates the value of the Residual Advantage. If positive, one of the following solutions may be adopted: 

i. immediate settlement of the amount;

ii. free transfer to the GSE of ownership of the plants and the areas on which they are located, subject to the presentation of a sworn appraisal; 

iii. extension of the contractual obligations until the Residual Advantage has been fully settled for a period not exceeding a further twenty years under a further two-way CfD.

The scenario and the possible competitive context between Energy Release and Fer X

Even in the scenario outlined by the new regulatory framework, the so-called Claw Back continues to be an element of uncertainty for producers, but it cannot be ruled out that this may prejudice the interest of all producers in concluding agreements with energy-intensive customers and aggregators.

Taking into account the rules relating to the Competitive Procedure and the possibility of transferring all responsibilities relating to the entry into operation of the new capacity directly to the delegate, the conditions could be created for a frenetic phase of negotiations aimed at concluding agreements between energy-intensive customers and aggregators on the one hand and producers on the other, to allow the former to exclude any risk and the latter to secure the volume to be returned, against the release of guarantees to the GSE instead of to energy-intensive users.

It remains to be seen whether producers will also be willing to give up a useful position in the transitional FER X ranking in order to access the benefits of the new version of Energy Release assessing the conditions under which it will be possible to obtain the return of the security deposit. 

Article written by Piero Viganò and Valentina Castelli. 

[1] For further information, please refer to our article Discounted energy price will be offered to Energy Intensive Companies under the MASE Energy Release Decree

As a professional with an extensive track record in the telecommunications and ICT sector, Antonio Corda has gained significant experience in national and international contexts, holding executive positions in legal, compliance, privacy, regulatory affairs and security in companies in the ITC and telecommunications sectors: most recently, Chief Legal, Compliance & Security Officer at Fastweb+Vodafone.

In his new role, Antonio will work with ADVANT Nctm teams involved in M&A transactions and commercial projects in the telecommunications and ICT sector, both in the retail and infrastructure segments. 
Paolo Montironi, Senior Partner at ADVANT Nctm, said: “We are delighted to welcome Antonio to our firm. His expertise in the TMT sector and in compliance and cybersecurity is a valuable asset for the assistance we offer to our clients in highly technological and regulatory transactions”.

"Joining ADVANT Nctm”, Corda added, “is an opportunity for me to contribute my experience in a multidisciplinary and international context, helping to develop strategic projects in the telecommunications and ICT sector”.

With this new entry, ADVANT Nctm confirms its commitment to providing specialist expertise in sectors marked by strong technological innovation, with a particular focus on regulatory, compliance, privacy and security issues.

Presented as a historic turning point aimed at simplifying, rationalizing, and speeding up proceedings, the reform has raised high expectations — but also questions and practical challenges.

We discuss it in our new video insight with Ivan Lamponi.

In the context of a simplified judgment, the Court took the opportunity to clarify that, for the purposes of lodging an appeal before the administrative courts,  the publication of a decision in the Regional Official Bulletin does not deprive the previous individual notification of the same decision, guaranteed by digital communication pursuant to Article 47 of the Digital Administration Code and Article 14 bis of Law No. 241/1990, which is decisive for achieving “full knowledge” of the decision and, consequently, for the start of the time limit for challenging it. 

In the case in question, following the opposition to the hearing of the extraordinary appeal filed by the other party, the Court, thus moving on to the decision on the appeal in court, declared inadmissible the extraordinary appeal to the President of the Republic filed by the Municipality of Corropoli (TE), notified on 18 July 2025, for the annulment of the single authorisation issued by the Abruzzo Region for the construction and operation of a plant for the production of electricity from renewable sources and the related connection works. 

However, the decision containing the aforementioned single authorisation had been notified via certified email to the proponent and the Municipality of Corropoli (TE) on 3 March 2025, the date from which, according to the panel of judges, the appellant had full knowledge of the decision in question and, therefore, the starting date for the 120-day period provided for the appeal to the President of the Republic, pursuant to Article 9, paragraph 1, of Presidential Decree No. 1199 of 24 November 1971, according to which “the appeal must be lodged within 120 days of the date of notification or communication of the contested act or from when the interested party became fully aware of it”.

For the appellant body, therefore, the subsequent publication of the decision in the BURAT is irrelevant, not least in terms of postponing the starting date for the submission of the appeal to the President of the Republic for the annulment of the single authorisation: the Court therefore specifies that this publication does not supersede the previous certified email communication through which the Municipality of Corropoli (TE) had already been made aware of the harmful nature of the contested measure, as well as the reasons underlying its adoption.

The time limit for appealing, starting from the date of publication of the measure in the BUR, therefore applies only to entities or interested parties who have not already received notification of the measure itself. However, the principle set out in Article 41 of the Code of Administrative Procedure remains valid for all parties (public and private) who have received notification, according to which “the appeal must be notified, under penalty of forfeiture, to the public administration that issued the contested act [...] within the time limit provided for by law, starting from the notification, communication or full knowledge, or, for acts that do not require individual notification, from the day on which the publication deadline expired, if this is provided for by law or based on the law”.

Written by Giovanni Battista De Luca, Lorenzo Piscitelli and Elisa Tunno. 

Street art, by its very nature ephemeral and located in public space, forces a balancing of competing interests: on the one hand, the author’s moral right to the integrity of the work; on the other, the prerogatives of the property owner, who may decide to remove, cover, or even destroy the work. Italian copyright law (Law No. 633/1941) protects the artist from the very moment of creation, yet unauthorized execution on another’s property may constitute an infringement of ownership rights and limit protection.

Part of the scholarship invokes the doctrine of accessione (Article 936 Civil Code), whereby the mural becomes an integral part of the building; others refer to commistione (Article 939 Civil Code) or to the dicatio ad patriam, namely the dedication of the work to collective use. In any event, the act of removal introduces an element of transformation: the work, conceived as site-specific, loses part of its original meaning once detached.

The debate is not confined to Italy. From a comparative perspective, Germany adopts an approach similar to the Italian one, generally recognizing the primacy of property rights – and treating unauthorized street art as damage to the property – while nonetheless preserving copyright protection where the requirements of originality are met. Consequently, if the property owner decides to remove the portion of the wall and sell it, such conduct may conflict with the author’s exclusive right of “distribution,” unless the artist has implicitly accepted the prospect of future alienation. Equally noteworthy is the French system, which, much like the Italian and German models, grants copyright protection to all works reflecting the artist’s personality, regardless of the medium. Original street art thus falls within the creations protected by the Intellectual Property Code, without prejudice to the fact that its unauthorized execution may amount to a criminal offence of degradation.

The Venetian case illustrates this tension well: the collective interest in preserving an artistic language born on the margins of legality clashes with the dominical prerogatives of the property owner, who may perceive removal as a form of protection or as an economic opportunity. Nor are precedents lacking.

In the absence of ad hoc legislation, the issue remains entrusted to evolving interpretations of long-standing civil law doctrines, conceived for very different contexts. The removal of The Migrant Child demonstrates how urgent a systematic reflection on street art has become: who may truly dispose of it? And how can cultural value, public interest, and individual rights be reconciled, regardless of the artist’s fame?

In his address, Angelo Anglani explored how Artificial Intelligence can serve as a brilliant associate, pose potential perils, and — when responsibly governed — become a trusted partner for arbitrators.

In his address, he explored how AI can serve as a brilliant associate, a potential peril, and — when responsibly governed — a trusted partner.

"AI will not replace the international arbitrator, but the arbitrator who understands and governs AI will replace the one who does not.”

Drawing inspiration from the great Italian explorers, Angelo Anglani underlined the need to navigate this “digital ocean” with professional judgment, ethical principles, and transparency — ensuring that technology enhances, rather than diminishes, the human essence of justice.

Read the full text published on AIA Online. 

The law includes 28 articles that define how AI can be used in different sectors. It also introduces rules for protecting minors under 14, requiring parental consent before any data linked to them can be processed. Italian lawmakers say the goal is to make AI systems fair and safe for citizens while allowing companies to keep innovating responsibly.

According to Giulio Uras:

“The Italian government’s effort has been both remarkable and, for once, genuinely timely. It sets a clear benchmark for EU countries aiming to complement the AI Act at the national level. Its approach is founded on three key pillars: innovation, transparency, and criminal protection. 

On innovation, the Italian law conveys a clear and forward-looking policy direction. By authorising the secondary use of pseudonymised personal data for research purposes, it adopts a functional and proportionate regulatory model designed to foster scientific and technological development. This approach implicitly acknowledges that Europe’s ability to compete in the global AI landscape depends on avoiding an overly dogmatic interpretation of fundamental rights (particularly in the field of data protection) that could unduly restrict legitimate research and innovation. 

As for transparency, the Italian law is more debatable. The law extends disclosure obligations across several sectors (including employment and intellectual professions) without following the AI Act’s risk-based approach. Such a broad rule may overburden low-risk systems and, paradoxically, stifle innovation.

The criminal protection provisions yield mixed results. The new offense addressing deepfakes(Art. 612-quater of the Italian Criminal Code) effectively targets a growing threat. More broadly, introducing criminal law safeguards was undoubtedly necessary, as it reinforces protection against the unlawful use of AI to obtain unfair profits or inflict harm. However, criminal provisions are effective only when they can be concretely enforced. In this regard, the drafting technique adopted for the new aggravating circumstance (Art. 61, no. 11-decies of the Italian Criminal Code) raises issues of legal clarity and operational effectiveness, which may ultimately limit its enforceability in practice.

The real challenge for EU Member States that wish to follow Italy’s example will be to do so without adding unnecessary layers of bureaucracy or new burdens on businesses. Otherwise, the drive for innovation risks being lost in translation.” 

Full article published in TechRound. 
 

This is not a one-off compliance task, but rather a new standard for business-as-usual. It requires a continuous and dynamic process of reviewing and enhancing internal policies, risk management frameworks, and incident response procedures, as well as revising contractual arrangements with ICT service providers.

The article explores how institutions can bridge the legal, technical, and contractual complexities that arise in this ongoing phase of compliance, focusing on sustainable operational resilience and effective governance models across the financial ecosystem.

By Fabio Coco – published in Mealey’s Litigation Report: Cyber Tech & E-Commerce

Read the full Article 

Through Draft Legislative Decree No. 317/2025, Italy introduces a new Chapter I-bis in the Criminal Code on “Crimes against the Common Foreign and Security Policy of the European Union” and extends corporate criminal liability under Legislative Decree 231/2001.

The contribution examines the key features of the reform — including new offences, liability extensions, and coordination mechanisms — and highlights the compliance implications for companies, emphasizing the need for robust risk assessment, due diligence, and an integrated trade compliance culture.

Read the full article by Ornella Belfiori.  

The new structure will focus on the design of the Tax Control Framework and on advising on the adoption of organisational models that facilitate transparent and collaborative dialogue with tax authorities, assisting in particular businesses through all stages of the process of joining and managing the Cooperative Compliance regime. The launch of such practice area places ADVANT Nctm among the first Italian law firms to have a team dedicated to Cooperative Compliance, allowing businesses to benefit from the scheme as early as the 2026 financial year.

A professional with over 20 years of proven experience in the tax field - gained in leading industrial and fashion companies and strenghtened  at Accenture as Managing Director Tax for Southern & Central Europe & Middle East for more than fifteen years, Luca La Barbera has developed leading expertise in the creation and implementation of tax control frameworks (TCFs) and in the Cooperative Compliance admission and management process, helping to define standards that are now benchmarks for Italian and international businesses.

The Cooperative Compliance regime is set to play a central role in the coming years and represents one of the most promising areas for Italian tax law, renewing and innovating the relationship between tax authorities and businesses according to the principles of transparency and mutual trust and promoting preventive and shared tax risk management. The prospects for the development of the scheme are particularly significant thanks to the gradual reduction of the access threshold, which will be €500 million in turnover from 2026 and €100 million from 2028, significantly increasing the number of eligible businesses.

The entry of Luca La Barbera and the creation of the new business area strenghten ADVANT Nctm’s growth strategy, achieved through the aggregation of boutiques or teams of highly specialised professionals in complementary and synergistic fields. Over the last year, the firm has sped up this process with significant transactions involving regulatory, corporate criminal and labour law, which also led to the creation of dedicated practice areas.

Today, with Luca La Barbera and the launch of the practice area dedicated to Cooperative Compliance, such strategic development approach, including lateral hires, extends to the tax department (currently comprising around 30 professionals), an area experiencing strong growth and increasingly crucial in the field of client advisory services. 

“The arrival of Luca La Barbera is further confirmation of our targeted growth strategy, based on attracting professionals or firms with highly distinctive skills and high development potential. Such approach allows us not only to continue investing in talents and specialisations capable of bringing immediate and long-term value, but also to constantly expand our range of services and anticipate the needs of a rapidly evolving market, focusing on innovation and high-quality advice to respond effectively to the businesses’ challenges” said Paolo Montironi, Senior Partner at ADVANT Nctm.

“I am particularly proud to join ADVANT Nctm, a firm that has proven its ability to grow with vision, investing in areas with great prospects. Collaborative compliance is set to become a pillar of the Italian tax system, and I believe that our work can make a real contribution to spreading tax risk management models based on transparency and dialogue with the authorities, creating value for businesses and for the country. Being able to develop such project within a firm of the calibre of ADVANT Nctm is a strong incentive for me to contribute concretely to the growth and strengthening of the firm in the long term,” said Luca La Barbera.

With Luca La Barbera joining the firm, the total number of partners at ADVANT Nctm rises to 85.

With decision No. 7414 of 19 September 2025, the Council of State established important and innovative principles concerning plants accessing incentives through registration in the GSE electronic register (in this case, Ministerial Decree of 6 July 2012). 

In particular, the two main novelties introduced by the aforementioned decision are: 

1. the irrelevance of the material error related to the indication of the plant’s capacity as a priority criterion where such an error does not result in any undue advantage for the operator and, indeed, may prove disadvantages for its ranking position for having indicated a capacity higher than that authorised; 

2. the applicability of tariff reduction instead of revocation for plants included in the ranking even in the absence of the execution of the GSE Agreement.

In this case, the applicant Municipality, in its application for registration under the incentive scheme provided by the Ministerial Decree of 6 July 2012, due to a mere typing error, indicated a higher capacity than that resulting from the concession title (namely, 226 kW instead of 152 kW). 

For this reason, following the checks carried out after the inclusion of the plant in an eligible position in the ranking, the GSE, having found a discrepancy between the capacity declared during registration (226 kW) and the authorised nominal capacity (152 kW), declared the revocation of the incentives for having provided untruthful information concerning the priority criterion laid down in Article 10 paragraph 3 letter g) of the Ministerial Decree of 6 July 2012, relating to the ‘lower capacity of plants’. 

According to the judges of the Council of State, the error made by the operator in indicating the actual capacity of the plant (226 kW instead of 152 kW) did not entail any violation of the priority criterion set out in Article 10 paragraph 3 letter g) of the Ministerial Decree of 6 July 2012, nor any undue advantage for the Municipality in the ranking, since the indication of a higher capacity than that actually authorised disadvantaged the entity in its ranking position (as lower capacity is one of the hierarchical criteria to be followed in drawing up the ranking), to the point that it moved from position No. 111 (which it would have obtained by indicating the correct capacity) to No. 135. 

In essence, the administrative judges, adopting a substantive approach, held that there was no relevant violation by the Municipality, which had not gained any competitive advantage as a result of a material error in typing the capacity, since ‘the error committed was not decisive in obtaining any concrete advantage over other competitors and must reasonably be regarded as the result of an involuntary occurrence’. 

In the same decision, the Court also addressed the issue of the interpretation of Article 42 paragraph 3 of Legislative Decree No. 28/2011, which provides that ‘in order to safeguard the production of energy from renewable sources, thermal energy and the energy savings resulting from efficiency measures, for plants which at the time of verification of the violation receive incentives, the GSE shall apply a reduction of the incentive between 10 and 50 per cent depending on the seriousness of the violation’. 

In this case, the Municipality, following its admission to the ranking list, set the investment in order to activate the plant, whereas it was then subject to the measure by which the GSE imposed the forfeiture of incentives. 

For the Council of State, there is no doubt that the plant falls within the scope of Article 42 paragraph 3 of Legislative Decree No. 28/2011, which governs ‘the fate of plants receiving incentives at the time of verification of the violation, without requiring that for the application of the reduction the agreement must already have been executed’, and therefore ‘a different interpretation intended to add a factual element not provided by the legislator, besides being praeter legem, would arbitrarily and unreasonably prejudice the purposes of safeguarding the production of energy from renewable sources, expressly referred to by Article 42 paragraph 3’. 

Indeed, based on the literal wording of the provision, the administrative judges held that the GSE should have applied a reduction of the incentive instead of revocation, since excluding the reduction in favour of revocation would prejudice the purposes of safeguarding the production of energy from renewable sources referred to in Article 42 paragraph 3 of Legislative Decree No. 28/2011, considering irrelevant the actual receipt of the incentives but focusing instead on conduct that induced the operator to believe the plant was eligible to receive them. 

These are highly relevant principles that protect the operator’s good faith, who possesses all the necessary requirements to access the incentives and who, due to a mere material error, has not gained any competitive advantage, excluding the applicability of the more severe sanction of revocation in favour of a reduction of the incentive, even for those who have been admitted to an eligible position in the ranking but have not yet executed the related agreement with the GSE.

The most significant change is the introduction of the CSIRT Contact Person.

Who is the CSIRT Contact Person?

The CSIRT Contact Person is the individual responsible for managing communications with CSIRT Italia (the national Computer Security Incident Response Team) and for transmitting notifications of significant incidents (as defined in Determination ACN No. 164179) as well as voluntary reports of relevant cybersecurity information.

To ensure prompt and continuous communication with the CSIRT, the regulation allows the appointment of one or more deputies to the CSIRT Contact Person. These deputies support the Contact Person in their duties and can act on their behalf in cases of absence or impediment.

Unlike the Point of Contact and the Deputy Point of Contact, the CSIRT Contact Person (and their deputy) may also be an external individual (for example, a consultant).

In any case, designated persons must possess basic skills in cybersecurity and incident management, along with an in-depth knowledge of the information systems and networks of the NIS entity for which they operate.

The designation must be carried out by the Point of Contact through a dedicated procedure. This procedure will be active from 20 November 2025 and must be completed by 31 December 2025 via the service portal accessible through the ACN website.

At first glance, the introduction of the CSIRT Contact Person represents an important support tool for NIS entities, as it allows them to delegate the management of incident notifications to external individuals. This relieves NIS entities from particularly burdensome and time-consuming activities for which it may be preferable to rely on external consultants with specific expertise.

This is particularly useful for:

• NIS entities that lack adequate internal structures or resources to manage the requirements related to incident notification;
• foreign organizations under national jurisdiction (for example, providers of public electronic communications networks and publicly available electronic communications services) that may face challenges due to language barriers or time zone differences.

If you need assistance and support in fulfilling the obligations under the NIS framework, click here

Read the October 2025 issue

Stay Update! 

We would like to point out that Decree-Law No. 116 of 8 August 2025 (“Decree-Law” or “Decree-Law 116/2025”) containing “Urgent provisions for combating illegal activities relating to waste, for the reclamation of the area known as Terra dei Fuochi, and for assistance to the population affected by natural disasters”, was published in the Official Gazette No. 183 of 8 August 2025.

The measure introduces important changes in the environmental field, amending, inter alia, Legislative Decree No. 152 of 3 April 2006 (the so-called “Consolidated Environmental Act” and, hereinafter, “TUA” - Testo Unico Ambientale -), the Italian Criminal Code and Article 25-undecies (“Environmental Offences”) of Legislative Decree No. 231 of 8 June 2001 (“Legislative Decree 231/2001”). 

As far as is relevant here, the Decree-Law tightens the penalties for environmental offences, modifies certain offences already referred to in Article 25-undecies of Legislative Decree 231/2001[2] and introduces additional offences among the predicate offences provided for by Article 25-undecies.

First, it is necessary to mention the two offences summarised below, as their inclusion in the list of predicate offences under Legislative Decree 231/2001 is of significant systemic importance, putting an end to a regulatory anomaly that has long been criticised in legal doctrine[3]. 

• “Obstruction of inspections” (Article 452-septies of the Italian Criminal Code), which punishes anyone who, by denying access, creating obstacles or artificially altering the state of the places, prevents, hinders or evades environmental, occupational health and safety inspections and controls, or compromises their results. 

• “reclamation ” (Article 452-terdecies of the Italian Criminal Code), which punishes anyone who, being obliged by law or by order of the authorities, fails to voluntarily reclaim or restore a site. 

  It should be noted that said offence differs from the contravention referred to in Article 257 of the TUA (“Site reclamation”) – historically assumed to be the responsibility of entities pursuant to Article 25-undecies of Legislative Decree 231/2001 – as a special case, which punishes omissive conduct within a specific and structured administrative procedure. The offence only occurs when the person who caused the pollution (by exceeding the so-called “CTCs”[4] /”RTCs”[5] ) fails to comply with the obligation to reclaim the site in accordance with the operational plan approved by the competent authority, as provided for in the procedure set out in Articles 242 et seq. of the TUA.

  Article 452-terdecies of the Italian Criminal Code, on the other hand, has a broader and subsidiary scope, allowing for a significantly greater punitive claim. The rationale is to penalise failure to comply with an environmental restoration obligation regardless of its specific source[6] ; 

Particular attention should also be paid to the inclusion in the 231 catalogue of the following additional offences regarding waste:

• “abandonment of non-hazardous waste in specific cases” and “abandonment of hazardous waste” (Articles 255-bis and 255-ter of the TUA). Decree Law 116/2025 thoroughly revises the matter, turning the abandonment of waste from an administrative (or minor) offence to a criminal offence, even in the case of non-hazardous waste, where the specific cases referred to in Article 255-bis of the TUA are applicable[7]. If the act is committed by business owners or managers of organisations, the penalties are increased. The connection with the institution of temporary storage (Article 183, paragraph 1(bb) of the TUA) has a crucial operational impact on both provisions.

Indeed, as is well known, exceeding the time and volume limits established for the “temporary storage prior to collection”[8] of waste may constitute one of the above offences, giving now rise also to liability of the entity pursuant to Legislative Decree 231/2001.

• “Illegal combustion of waste” (Article 256-bis of the TUA). This provision, which has also been raised to the level of a criminal offence and falls within the scope of 231 liability, is intended to curb the practice of illegal “thermal management” of waste. This is a type of offence determined by the occurrence of a criminal event (reato a condotta libera) and implying an abstract danger, differing from the common crime of arson (Article 423 of the Italian Criminal Code), which requires the emergence of a danger to public safety. Its inclusion in the catalogue aims to combat conduct which, while not reaching the threshold of environmental disaster (Article 452-quater of the Italian Criminal Code), represents a particularly harmful form of illegal disposal, often aimed at drastically reducing company costs.

Pending the conversion of Decree Law 116/2025 into law (expected by 7 October 2025), it is essential that companies do not underestimate the scope of the changes introduced. As we have seen, the new provisions raise the threshold for criminal liability for conduct, particularly in relation to waste, which previously could amount to minor offences and did not give rise to liability on the part of the Entity.

The impact on Legislative Decree 231/2001 is, on this occasion, direct and immediate, as it provides companies with an important opportunity to assess the preventive adequacy of their internal control systems concerning the environment. Such activity could lead to the need to carry out targeted updates of organisation, management and control models (“Models 231”).

The assessment should focus, first and foremost, on highest-risk processes, such as, for example, waste cycle management. In this regard, it would be particularly useful to verify the “robustness” of the company's regulatory and organisational tools relating to waste management, with particular attention to the implications associated with temporary storage.

The adaptation of Model 231 and the relevant internal protocols is, in fact, the technical prerequisite for aligning the compliance system with the new predicate offences. Such updating, together with the consequent activities for the effective implementation of Model 231 (such as supervision by the Supervisory Body, audits and training), is therefore functional to preserving the requirements of suitability and effective implementation imposed by Legislative Decree 231/2001 for the purposes of potential recognition of the effect  of exempting the entity from  liability in court.

We remain at your disposal to carry out the necessary in-depth analysis to understand the practical impact of the regulations in question on your business.

[1] The content of this article is for informational purposes only and does not constitute professional advice.

[2] The Decree Law deals, in particular, with the following cases, increasing penalties and providing for new aggravating circumstances: (i) “Trafficking and abandonment of highly radioactive material” (Article 452-sexies of the Italian Criminal Code); (ii) “Offences relating to unauthorised waste management activities” (Article 256 of Legislative Decree No. 152/2006); (iii) “Illegal shipment of waste” (Article 259, paragraph 1, Legislative Decree No. 152/2006); (iv) “Organised activities for the illegal trafficking of waste” (Article 452-quaterdecies of the Italian Criminal Code).

^[3] This exclusion appeared particularly problematic and critical with regard to the offence of “omitted reclamation” (Article 452-terdecies of the Italian Criminal Code), as its omission fuelled intense debate about the consistency of the repressive system. Authoritative doctrine had repeatedly emphasised that such gap undermined the very rationale of Law No. 68 of 22 May 2015, which was to strengthen criminal protection of the environment, including through the involvement of legal persons. C. Ruga Riva, I nuovi delitti contro l’ambiente, in G. L. Gatta (ed.), La riforma dei reati ambientali. Commento alla legge 22 maggio 2015, n. 68, Dike Giuridica, Rome, 2015, pages 115 et seq.. Decree Law 116/2025 finally repaired this systematic fracture, realigning the catalogue of predicate offences with the actual offensiveness of the conduct and the need to punish not only polluting actions but also omissions that perpetuate their harmful effects in the interest of companies.

[4] Contamination Threshold Concentrations

[5] Risk Threshold Concentrations

[6] In this regard, see, among others, G. Gallone, L’individuazione del responsabile della bonifica: giudice amministrativo e giudice penale a confronto, in Urb. e App. 4/2020, pages 449 et seq.

See also Report No. III/04/2015 of the criminal sector of the Office of the Massimario of the Court of Cassation, where, precisely in relation to the case referred to in Article 257 of the TUA, it is specified that “the introduction of the reservation clause “Unless the act constitutes a more serious offence” ensures [..] that it can only apply in cases where the risk thresholds have been exceeded but have not reached (at least) the level of pollution, i.e. where there has been no significant and measurable impairment or deterioration of the assets (water, air, etc.) listed in Article 452-bis”.

^[7] «If the act results in danger to the life or safety of persons or danger of compromise or deterioration:

1) of water or air, or of extensive or significant portions of the soil or subsoil;

2) of an ecosystem, biodiversity, including agricultural biodiversity, flora or fauna;

b) if the act is committed in contaminated or potentially contaminated sites within the meaning of Article 240 or in any case on roads to access the aforementioned sites and related appurtenances» 

^[8] In a nutshell, pursuant to Article 185-bis of the TUA, temporary storage of waste is only permitted if (i) it is done at the production site (or, for farmers, at cooperatives or consortia) and, in specific cases, also at points of sale (for waste with extended producer responsibility or construction/demolition waste); (ii) safety standards for hazardous and pollutant-containing waste (storage, packaging and labelling) are complied with; (iii) waste is collected at least every 3 months or when a total of 30 m³ (of which a maximum of 10 m³ is hazardous) is reached, and in any case within one year; (iv) waste is grouped into homogeneous categories. The Supreme Court case law consistently affirms that exceeding the quantitative or time limits set out therein results in the activity being reclassified as “uncontrolled storage” or “abandonment”.

The final approval
On September 17, 2025, the Senate, with 77 votes in favor, 55 against and 2 abstentions, definitively approved the law on artificial intelligence (hereinafter, the “Law”).
Italy thus becomes the first EU country to integrate the rules set out in the AI Act with national legislation on artificial intelligence. The aim of the national legislator is to further strengthen the level of protection from risks connected with the use of artificial intelligence in certain areas and sectors.

The structure of the Law
The Law is composed of 28 articles divided into six titles.
Title I, programmatic in nature, establishes the principles to be respected and the purposes that artificial intelligence should pursue.
Title II lays down specific provisions regarding the use of artificial intelligence systems in certain sectors such as the healthcare sector, scientific research, the world of employment, intellectual professions, public administration and the administration of justice.
Title III sets out the procedures for drafting and updating the national strategy for artificial intelligence, which must foster public-private collaborations and promote research and training.
Title IV is dedicated to copyright protection and Title V to criminal protection.
Finally, Title VI contains the financial and final provisions.

The competent authorities
With the approval of the Law, the Agency for Digital Italy (AgID) and the National Cybersecurity Agency (ACN) have been officially designated as the national competent authorities in the field of artificial intelligence.
AgID, as the notifying authority, will define the procedures and exercise the functions and tasks relating to notification, assessment, accreditation and monitoring of the entities appointed to verify the compliance of high-risk artificial intelligence systems.
Meanwhile, ACN, as the supervisory authority, will be responsible for monitoring artificial intelligence systems, with inspection and sanctioning powers.
Both authorities will also contribute to the definition and updating of the national strategy for artificial intelligence in agreement with the Department for Digital Transformation.
In addition, within the Presidency of the Council, the following are established:

• the Steering Coordination Committee, with functions of coordinating steering action and promoting research, experimentation, development, adoption and application activities of artificial intelligence systems and models;
• the Coordination Committee among the authorities, with the task of ensuring coordination and cooperation between national competent authorities, other public administrations and independent authorities.

The main innovations sector by sector
Healthcare and research. Art. 8 of the Law authorizes the secondary use of personal data (including special categories) for research purposes, provided they are free of identifying elements and without prejudice to the obligation to inform the data subject. The use of artificial intelligence in healthcare will be allowed as support for prevention, diagnosis, care and treatment processes, on condition that the final decision remains with the doctor.

Employment. A ministerial observatory on artificial intelligence is established to monitor risks and opportunities of artificial intelligence in the employment context. Any automated assessment of workers’ performance without the possibility of contestation is prohibited, while employers are required to inform and train staff on the use of technological tools.

Intellectual professions. Art. 13 of the Law limits the use of artificial intelligence systems in intellectual professions to instrumental and support activities for professional work, with prevalence of the intellectual work being performed. In addition, professionals are required to inform the client about the artificial intelligence systems used, with clear, simple and exhaustive language.

Justice. Art. 15 of the Law prohibits the use of artificial intelligence systems for the adoption of judicial decisions in an automated way; however, they may be used for analysis and support in the drafting of documents, without prejudice to the responsibility of magistrates.

How the criminal code changes
Title V introduces certain amendments to the criminal code. In particular, the Law introduces a new type of offence and a new common aggravating circumstance.
The new offence, which is included in Art. 612-quater c.p., punishes the dissemination of falsified content, capable of misleading (so-called deep fakes), through artificial intelligence systems.
On the other hand, the Law establishes an articulated system of aggravating circumstances, the core of which is the introduction of a common aggravating circumstance in Art. 61, no. 11-decies c.p., which provides for an increased penalty where the use of an artificial intelligence system constitutes a treacherous means to facilitate the offence, hinder the defence or aggravate its consequences.

Implementation of the Law
For the entry into force of the Law, it remains only to await promulgation by the President of the Republic and its publication in the Official Gazette, from which the 15 days of vacatio legis will begin.
In any case, once the Law has entered into force, it will be up to the Government to complete the framework through the adoption, within twelve months, of one or more legislative decrees. These will regulate aspects of particular importance, including:

• the definition of an organic framework concerning the use of data, algorithms and mathematical methods for the training of artificial intelligence systems;
• the attribution to the competent authorities of supervisory, inspection, sanctioning and other administrative powers provided for by the AI Act;
• the regulation of measures for updating the existing legislation on banking, financial, insurance and payment services;
• the definition of rules on civil liability for damages resulting from the use of artificial intelligence;
• the definition of criteria for imputing criminal liability of natural persons and administrative liability of entities, taking into account the actual level of control over systems.

The unresolved issues
Some critical issues highlighted during the parliamentary process remain in the text of the Law definitively approved by the Senate.
In particular, in its detailed opinion C(2024)7814, the Commission had “rejected” the first draft of the Law for three main reasons:

1. definitions cannot deviate from those used in the AI Act;
2. the healthcare, intellectual professions and judicial administration sectors risk being subject to excessive obligations;
3. AgID and ACN are government authorities and therefore do not ensure full independence.
   While the first issue had already been resolved by referring to the AI Act definitions, the other two areas of potential incompatibility with EU legislation do not appear to have been addressed.

The challenge is now
The final approval of the Law represents an important milestone for Italy, which takes the lead among other European countries with regard to artificial intelligence. But the real challenge begins now with the implementation of the legislation.
The success of the Law will in fact largely depend on the quality of the legislative decrees that the Government will have to adopt within the next year; a crucial test to translate the programmatic objectives into operational rules that can adequately balance the needs of operators, technological progress and the protection of fundamental rights and freedoms.

The ruling was handed down in the proceedings brought by following the dismissal by the Province of Mantua of the application for the issue of the single regional authorization (PAUR), pursuant to Article 27 bis of Legislative Decree No. 152/2006, for the construction in the Municipality of San Giorgio Bigarello (MN) of an agrivoltaic plant with a power equal to 13.56 MWp and the related connection works.

In the aforementioned ruling, the Court deemed the provision in Annex A, paragraph 6, letter D) of the Resolution to be unlawful, as it introduced “restrictions not provided for by national legislation, limiting its scope of application in the absence of any legitimizing conditions contemplated by the relevant regulations and therefore in conflict with them”. 

It should be noted, in fact, that the contested provision of the Resolution stipulated that, first of all, “the agricultural land (all cadastral parcels) on which the agrivoltaic plant will be installed must be managed by an agricultural enterprise with a valid title (ownership, lease, loan for use) for the entire period of operation of the agrivoltaic plant itself”, as well as stipulating that “the following subjects may apply for obtaining the permit:

1. individual or associated agricultural enterprises with a chamber of commerce certificate, which carry out the project in order to contain their production costs. The requirement is verified through the turnover of the energy produced (which is considered a related activity, i.e., complementary and ancillary to the main agricultural production) which must not exceed the value of agricultural production, in order to maintain the status of agricultural entrepreneur, in compliance with current legislation on the definition of agricultural entrepreneurs and agricultural activities (Legislative Decree No. 228 of 18 May 2001 - Guidance and modernization of the agricultural sector);

2. corporate joint ventures with electricity producers to which the farm or branch of the farm is transferred by the same agricultural entrepreneurs who are responsible for the management of the business, except for the technical aspects of the operation of the plant and the sale of energy”.

None of this, as correctly pointed out by the Court (referring to a recent ruling by the Lombardy Regional Administrative Court, Milan, of 20 February 2025, No. 1825) , is required by national legislation, which does not introduce any subjective requirements for the applicant with regard to the legal form or purpose of the enterprise, nor does it impose particular models of aggregation/joint ventures between economic operators. Nor is the introduction of specific subjective requirements introduced by Ministerial Decree no. 436 of 22 December 2023 (the so-called “Agrivoltaic Decree”) relevant, as these are provided for “solely for the purposes of accessing incentives for the construction of agrivoltaic systems” and are, in any case, less burdensome than the subjective requirements set out in the Resolution. The same considerations, as highlighted by the Court, also apply to the subjective requirements set out in the Guidelines published by MASE on 27 June 2022, which are also relevant “solely as bonus factors or priority selection criteria”, concluding that no additional subjective requirements are prescribed for the purposes of applying for authorizations for the construction of the plant.

In conclusion, the ruling of the Lombardy Regional Administrative Court is part of a case law which, on a case-by-case basis, identifies — and hopefully annuls — the limitations, obstacles, and constraints that the Regions unreasonably intend to introduce with regard to the installation of RES plants and, as in the case at stake, with regard to the construction of agrivoltaic plants in agricultural areas.

Written by Giovanni Battista De Luca, Ernesto Rossi Scarpa Gregorj and Elisa Tunno.  

In a new legal briefing, our professionals Filippo Maria Federici, Simone Gaggero and Paolo Gallarati from ADVANT Nctm, together with Prof. Dr Rainer Bierwagen and Prof. Dr Hans-Josef Vogel from ADVANT Beiten and Morgane Gandaubert and Marie Hindré from ADVANT Altana, examine the implications of this evolving framework – including:

• A new 15% tariff benchmark for most EU products
• Sector-specific exclusions (e.g. aircraft parts, generics) and pending arrangements on steel and aluminium
• The scrapping of the $800 de-minimis rule and its consequences for direct sales
• Diverging national reactions from France, Germany, Italy, and Spain
• Legal guidance on contractual risk mitigation for EU companies exporting to the US

Read the full analysis here. 

Legislative Decree No. 116/2024 (the “Decree”) transposed in Italy Directive (EU) 2021/2167 (the “Directive”) on credit servicers and credit purchasers, aimed at standardise the rules governing servicers and purchasers of non-performing loans and to foster the development of a secondary market for non-performing loans in the European Union. The main contents and preliminary considerations on the transposition of the Directive in Italy were discussed in detail in our previous newsletter dated 19 February 2024. 

In particular, the Decree amended Legislative Decree No. 385 of 1 September 1993 (Consolidated Banking Act, “TUB”) by introducing a new Chapter II of Title V (Articles 114.1 to 114.10) entitled “Purchase and management of non-performing loans and non-performing loan servicers”, introducing a number of legislative changes with respect to the provisions of the Directive.

At the level of secondary legislation, Article 3(1) of the Decree assigned the Bank of Italy the task of issuing further provisions transposing the Directive and implementing the new Chapter II, Title V, of the TUB. In accordance with such task, on 13 February 2025, the Bank of Italy published on its website the new supervisory provisions (the “Implementing Provisions”) which include specific provisions for the management of non-performing loans, regulating in particular the role of the non-performing loan servicer, as a new entity supervised by the Bank of Italy. 

This analysis concerns the main changes introduced by the Decree and the Implementing Provisions, with particular reference to the new role of non-performing loan servicer.

2. Scope 

The Decree limits the scope of the new legislation to “non-performing loans”, defined by the Implementing Provisions as “all cash and off-balance sheet credit exposures to an entity in a state of insolvency (even if not legally established) or in substantially comparable situations, regardless of any loss forecasts made by the bank. Exposures whose anomaly is attributable to country risk profiles are excluded”. [1]

Contrary to the provisions of the Directive, not only all performing loans but also UTP (Unlikely to Pay) and past due loans, as well as commercial loans (e.g. utilities, loans deriving from business activities, etc.) must therefore be excluded.

Furthermore, national lawmakers have decided, in accordance with the Directive, to extend the scope of the Decree to include non-performing financial loans originated by non-bank entities registered in the register under Article 106 of the TUB, investment funds or securitisation special purpose vehicles (SPVs). 

However, the new legislation does not apply to the purchase and management of non-performing loans by: (i) managers of collective investment undertakings in relation to the funds they manage; (ii) banks (including in relation to loans granted or purchased by them); (iii) intermediaries registered in the register under Article 106 of the Consolidated Banking Act (including with regard to loans granted or purchased by them), if carried out in Italy[2].

Finally, the Bank of Italy has clarified that securitisation transactions characterised by risk segmentation (e.g., transactions with subordinated/senior tranches) are excluded from the scope of the new rules on the management of impaired loans: the decision to keep servicing activities reserved for supervised and qualified entities (i.e. banks and intermediaries under Article 106 of the TUB) is intended to protect the soundness and transparency of transactions, for the benefit of both investors and the entire financial system.

3. Purchasers of non-performing loans

The Decree and the Implementing Provisions, transposing the Directive, clarify that purchasers of non-performing loans may be either natural persons or legal entities, provided that they are not banks[3], and that they purchase non-performing loans as part of a commercial or professional activity, and not on a personal or occasional basis.

The legislation does not require purchasers to meet minimum capital requirements or obtain prior authorisation, but such entities must nevertheless act in compliance with the general rules of transparency, fairness and diligence.

4. Information for purchasers of non-performing loans 

As of 19 October 2023, Commission Implementing Regulation (EU) 2023/2083 of 26 September 2023 (the “Regulation”) applies, which lays down technical implementing standards for the application of Article 16(1) of the Directive with regard to the templates to be used by credit institutions for the provision to buyers of information on their credit exposures in the banking book.

Article 3 of the Regulation sets out the categories of information that must be provided (counterparty; credit agreement, guarantees and historical collection of repayments), the details of which are then contained in the annexes, which set out criteria, tables, definitions, data and instructions to be followed in providing the information. From a confidentiality perspective, the Regulation provides that credit institutions shall (i) identify the information that must be considered confidential under applicable EU law and (ii) ensure adequate protection of such information, including by putting in place appropriate confidentiality arrangements with transferees before sharing personal data prior to the conclusion of the contract.

The Regulation does not apply to the following:

(i) sales of non-performing credit agreements as part of sales of branches, sales of business lines or sales of clients’ portfolios which are not limited to non-performing credit agreements and transfers of non-performing credit agreements as part of an ongoing restructuring operation of the selling credit institution within insolvency, resolution or liquidation proceedings; 

(ii) sales or transfers of non-performing credit agreements through securitisation, where Regulation (EU) 2017/2402 applies and the provision of the related information is governed by Delegated Regulation (EU) 2020/1224 and Implementing Regulation (EU) 2020/1225;

(iii) sales of non-performing credit agreements pursuant to credit default swap, total return swap and other derivative contracts, contracts of insurance and sub-participation contracts; 

(iv) sales of non-performing credit agreements pursuant to a financial collateral arrangement or a securities financing transaction.

5. Non-performing loan servicers and authorisation to carry out management activities

One of the main changes brought by the Decree is the introduction of the figure of the non-performing loan servicer, who joins banks and intermediaries pursuant to Article 106 of the TUB as a person authorised to manage non-performing loans on behalf of their purchasers. 

Purchasers of non-performing loans cannot, in fact, manage the acquired loans directly, but must rely on a supervised entity to be identified among banks, intermediaries pursuant to Article 106 of the TUB or, precisely, managers registered in the special register established pursuant to Article 114.5 of the TUB and authorised by the Bank of Italy[4].

Unlike the provisions of the Directive[5], which requires the appointment of a person carrying out credit management activities only with regard to the purchase of non-performing loans owed by consumers, the Decree provides that the purchaser of non-performing loans is always required to appoint a non-performing loan servicer (i.e. a bank or financial intermediary pursuant to Article 106 of the TUB), thus regardless of the type of entities to which such non-performing loans are owed.

The Implementing Provisions[6] provide for the management of non-performing loans to include the collection and recovery of payments due from the debtor, the renegotiation of the terms and conditions of the agreement with the assigned debtor[7], the management of complaints from assigned debtors and the provision of information to the debtor with respect to any changes in interest rates and charges or any payments due.

In addition, pursuant to Part One, Chapter 4, Section II of the Implementing Provisions, the activities of an authorised servicer may include the outright purchase and management of non-performing loans for its own account, provided that this is done ‘'subordinately to the management of non-performing loans on behalf of third-party purchasers”.

The reason for such limitation lies in the lawmakers’ desire to ensure that the corporate purpose of the non-performing loan servicer (i.e. servicing on behalf of third-party purchasers) is consistent with the activities actually carried out (also in view of the absence of quantitative prudential requirements for servicers, which is based on the assumption that debt collection is carried out on behalf of third parties)^[8].

In order to be registered in the register of servicers, an adequate organisational structure, the adoption of effective operating procedures and an internal control system capable of ensuring the proper servicing of non-performing loans are required. Moreover, the servicer must be able to perform a significant part of the servicing activities directly, avoiding delegating them entirely to third parties without ensuring internal supervision. 

The Bank of Italy verifies the applicant's financial and managerial soundness, assessing its ability to operate sustainably in the long term, as well as the business plan submitted by the servicer, which must illustrate the operational strategies and methods of credit management. Applications for registration in the register of servicers by new entities must be submitted to the Bank of Italy, which has 90 days from receipt of the documentation to make a decision.

6. Protection of assigned debtors

One of the objectives of the Directive is certainly to ensure adequate and enhanced protection for assigned debtors. Such principle, endorsed by national lawmakers, is substantiated in specific individual information obligations. In particular, the servicer of non-performing loans, or the bank or financial intermediary pursuant to Article 106 of the TUB appointed by the purchaser to manage such loans, must directly and personally notify the debtor of the assignment of the debt.

The obligation to inform the debtor arises immediately after the assignment of the debt and, in any case, always before any recovery actions are taken against the debtor. The information to be provided to the assigned debtor must meet specific content requirements in order to ensure full transparency and protection of the debtor.

7. The role of licence holders pursuant to Article 115 of the TULPS

The new regulations introduced by the Decree and the Implementing Provisions also redefine the role of authorised entities pursuant to Article 115 of the Consolidated Law on Public Security (“TULPS”). Such companies, traditionally active in out-of-court debt collection, may now choose whether to apply for authorisation as non-performing loan servicers pursuant to Article 114.6 of the TUB or to limit themselves to carrying out collection activities on behalf of third parties or as providers of specialised services under the responsibility of a non-performing loan servicer within the framework of outsourcing agreements, it being understood that the servicer must in any case ensure compliance with the governance and supervisory rules set out in the Implementing Provisions.

According to the Bank of Italy’s guidelines, if the classification as non-performing occurs after the out-of-court collection activity has been entrusted to a person licensed under Article 115 of the TULPS, the latter may continue to manage such loans without requesting authorisation under Article 114.6 of the TUB. Conversely, if the debt is subsequently assigned to a purchaser of non-performing loans, the recovery activity falls within the scope of Chapter II of Title V of the TUB. The purchaser will therefore be required to entrust the management to a bank, an intermediary or an authorised non-performing loan servicer.

Furthermore, in the context of securitisation transactions involving exclusively non-performing loans carried out pursuant to Law 130/1999 and without risk segmentation, the master servicer (bank, financial intermediary or non-performing loan servicer) may, in compliance with the applicable sectoral regulations and on the basis of an outsourcing agreement, use entities licensed pursuant to Article 115 of the TULPS for the out-of-court recovery of securitised non-performing loans.

Regulatory references

• Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and credit purchasers and amending Directives 2008/48/EC and 2014/17/EU.

• Implementing Regulation (EU) 2023/2083 of 26 September 2023 laying down implementing technical standards for the application of Article 16(1) of Directive (EU) 2021/2167 as regards the templates to be used by credit institutions for the provision to buyers of information on credit exposures in the banking book.

• Legislative Decree No. 385 of 1 September 1993 (Consolidated Law on Banking), Chapter II of Title V (Articles 114.1 to 114.10).

• Legislative Decree No. 30 of 30 July 2024, No. 116 implementing Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and credit purchasers and amending Directives 2008/48/EC and 2014/17/EU.

• Consultation document containing the provisions of the Bank of Italy for the implementation of the Directive.

• Provisions of the Bank of Italy for the transposition of Directive (EU) 2021/2167 on purchasers and servicers of non-performing loans.

• Summary table of the public consultation launched on 24 July 2024 by the Bank of Italy, published on the Bank of Italy website.

• Workshop for operators interested in applying for authorisation as “non-performing loan servicers”, 6 March 2025, slides published on the Bank of Italy website.

Written by Matteo Gallanti and Stefano Padovani.

[1] The Implementing Provisions, in line with the provisions of the TUB, identify the scope of “non-performing loans”, the definition of which coincides with that contained in Circular No. 272 of 30 July 2008 (Accounting Matrix).

[2] Article 114.2, paragraph 1, of the TUB.

[3] Article 114.1 of the Consolidated Banking Act.

[4] Article 114.3, paragraph 2 of the Consolidated Banking Law.

[5] Article 17, paragraph 1, a) of the Directive.

[6] See the definition of “Management of non-performing loans” provided for in the Implementing Provisions.

[7] Such renegotiation shall not be considered a lending activity within the meaning of Article 106 of the Consolidated Banking Act; for such purposes, early repayment and postponement of payment terms shall not be considered lending activities.

[8] As emerged during the consultation by the Bank of Italy, the subordination criterion is considered as met if the gross book value of loans serviced on behalf of third parties exceeds 50% of the total gross book value of non-performing loans serviced, including those purchased for one’s own account. For the purposes of said calculation, both non-performing loans purchased before the entry into force of the legislation and those purchased at a later stage, provided they are still in the servicer’s portfolio, are to be included; non-performing loans managed out-of-court are excluded from the calculation.

Non-performing loan servicers must verify compliance with the subordination criterion on a quarterly basis, reporting any deviations to the Bank of Italy.

Regulation (EU) 2023/1115, known as “EUDR”, entered into force on 29 June 2023 and will apply from 30 December 2025 for most operators (30 June 2026 for micro and small undertakings). 

The legislation aims to minimize global deforestation and forest degradation, reduce greenhouse gas emissions, and protect biodiversity. In addition to environmental objectives, the EUDR integrates social considerations, requiring compliance with the legislation of the country of production, including land use rights, forest-related rules, human rights, and indigenous peoples’ laws.

It should be noted that this is a sectoral regulation compared to the “horizontal” framework provided for in the field of “due diligence” by Directive 2024/1760 on corporate sustainability due diligence (the so-called “CSDDD”); therefore, in case of conflict, the EUDR prevails over the CSDDD.

Recently, the European Commission published (in OJ C of 12 August 2025) a new guidance document (C/2025/4524), aimed at clarifying the provisions of the EUDR (hereinafter, the “Communication”). The Communication – which is not legally binding – provides operational indications on key aspects such as the differences between the obligations of various operators, due diligence, the submission of the due diligence statement (“DDS”), the role of certifications, and the timing of the EUDR’s entry into force.

The scope of the EUDR covers seven commodities considered at risk: cattle, cocoa, coffee, palm oil, soy, wood, and natural rubber, as well as numerous derived products listed in Annex I, including leather, chocolate, paper, furniture, and pneumatic tyres.

The EUDR applies in particular to operators and traders, distinguishing between SMEs and non-SMEs. In short, the operator is the one who first places a relevant product on the EU market or exports it, while the trader is the one who makes it available on the market after the initial placing.

Non-SME operators must implement a three-step structured due diligence process: collection of detailed product information (description, quantity, country of production, geolocation of plots of land, supplier and buyer data, proof of compliance); risk assessment of possible non-compliance, considering elements e.g. the assignment of risk to the relevant country of production, prevalence of deforestation or forest degradation in the country of production, the complexity of the relevant supply chain, and risk of mixing with products of unknown origin; and, if necessary, adoption of mitigation measures to reduce the risk to a negligible or zero level, such as requests for additional information or independent audits.

A positive conclusion of the due diligence process is possible only if the residual risk is zero or negligible. Otherwise, the product cannot be placed on the market or exported.

Operators must submit the DDS through the Information System provided for in Article 33 and keep the related documentation for at least five years.

They are also required to set up an internal due diligence system, with formalized procedures and controls, as well as a periodic review (at least annually).

It should be pointed out that the EUDR provides for a classification of countries of origin based on risk level: low, standard, or high. Generally speaking, for low-risk countries, operators may apply simplified due diligence, limited to collecting basic information and submitting the DDS, without in-depth assessment and mitigation. For high-risk countries, on the other hand, checks and inspections are more stringent and frequent.

Competent authorities carry out documentary and physical checks, including at customs. In case of non-compliance, corrective measures may be adopted, such as immediate withdrawal or recall of products, donation for charitable purposes, or disposal. Sanctions may amount to at least 4% of the annual turnover achieved in the EU, in addition to confiscation of products or revenues, temporary exclusion from public procurement and public funds, and, in the most serious cases or in case of repeat offences, temporary prohibition from placing or exporting relevant commodities and products.

The Communication acknowledges the usefulness of voluntary environmental certifications; however, these may supplement – but not replace – mandatory due diligence. In particular, certifications based on mass balance models or mixed product percentages do not in themselves guarantee compliance with the EUDR. Only products fully compliant with legality and zero-deforestation criteria in all their components may be placed on the EU market. The operator must therefore verify the certifications’ compliance with the EUDR.

To prepare for the 30 December 2025 deadline, companies should implement as soon as possible a series of actions: mapping their supply chains, identifying suppliers and risk areas; establishing a centralized database for information management; as well as adapting supply contracts with specific clauses on compliance with the EUDR.

It is also essential to train the staff involved, particularly in the purchasing, quality, and sustainability departments, and to implement a structured internal due diligence system. Finally, it is essential to maintain constant monitoring of regulatory developments and best practices, to ensure timely compliance and prevent legal and reputational risks.

The main reference is to Edge DCs (ranging from 400 to 1,800 sqm with energy consumption under 5MW), which differ from Medium DCs (2,000 to 9,000 sqm with consumption over 5MW) and Hyperscale DCs (over 9,000 sqm with consumption exceeding 100MW).

In this context, recent weeks have seen significant developments that may impact the future deployment of DCs across the country. In particular:

• the introduction of a “new” single authorization procedure for the construction of DCs, as laid out in the draft of the so-called "Energy Decree", circulated on 24 July and expected to enter into force by the end of August;

• the release of a strategic plan for attracting foreign industrial investments in DCs by the Ministry of Enterprises and Made in Italy (MIMIT) on 16 July, currently under public consultation until 16 August (the “Strategy”).

The Single Authorization Procedure for DCs

To expedite the administrative processes required to obtain authorizations for operating DCs, Article 3 of the Energy Decree introduces a single permitting procedure.

Following the example of recent simplification measures for renewable energy plants, a similar “single authorization” or PAUR is now envisaged for DCs, aimed at streamlining and accelerating the acquisition of all permits and approvals necessary for construction and operation.

Specifically, Article 3 provides that:

• authorization for the construction or expansion of DCs (corporate, co-located, co-hosted, or campus-based) and their connected user networks (regardless of voltage) will be granted through a single permitting process by the authority responsible for issuing the Integrated Environmental Authorization. For projects up to 300 MW, this authority is the relevant Region or delegated Province; for projects exceeding that threshold, it is the Ministry of the Environment and Energy Security (MASE);

• in accordance with the principle of subsidiarity, the role of competent authority at the regional or provincial level cannot be delegated to sub-provincial bodies;

• the application for the single authorization must include all documentation and technical project materials required under applicable sector legislation, including – where necessary – authorizations for environmental impact assessments, landscape or cultural heritage clearance, water use permits, and air emissions;

• the authorization must be granted following a formal conference of services, and the process must be completed within 10 months from verification of complete documentation. Extensions are allowed only under exceptional circumstances and for no more than three months;

• if the project is subject to EIA screening and a full EIA is required, the related application must be submitted within 90 days, after which the request is deemed withdrawn;

• for DCs deemed of national strategic interest by the Council of Ministers, a special government commissioner will issue the authorization in accordance with the provisions of Decree Law 104/2023;

• for DCs that, as of the decree’s entry into force, have already obtained the necessary permits (including environmental approvals) but not the authorization for grid connection works, such authorization must be issued by the competent Region. This applies only to grid works above 220 kV, excluding lower-voltage infrastructure.

Mechanisms for Attracting New Investments

With its Strategy, MIMIT has launched a sectoral analysis to identify Italy’s strengths and weaknesses and implement all necessary measures to attract foreign investment, accelerate installation procedures, and create an attractive ecosystem for potential stakeholders.

The main areas of action include:

• defining the industrial classification of DCs, beginning with the introduction of a specific ATECO code (63.10.10) from 1 January 2025, under the broader category for “IT infrastructure, data processing, hosting and related activities”, with a dedicated ATECO code expected in 2027;

• introducing a specific land-use designation for DCs;

• simplifying the authorization processes (presumably through the Energy Decree);

• identifying the most suitable development areas, leveraging the National Federated Infrastructure Information System (SINFI) through multi-layer georeferencing of submarine landings, power grids, industrial brownfields, cabling, and renewable sources.

The Strategy is currently under public consultation, and all interested parties may submit proposals or comments by 16 August.

In parallel, it is essential to promote and incentivize the development of energy networks and renewable energy sources, in line with the expected growth in energy demand. Consideration should be given to a formal classification of DCs as energy-intensive consumers, subject to green conditionalities but also eligible for system charge reductions and lower energy costs.

This article is written by Piero Viganò, Giovanni Battista De Luca, Lorenzo Piscitelli, Ernesto Rossi Scarpa Gregorj and Paola Putignano. 

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Based on currently available information, the Decree is expected to be presented to the Council of Ministers at the end of August, following the summer break.

The Current Draft of the Decree

For the purposes relevant, the Decree propose the introduction of Article 10-bis into Legislative Decree No. 190/2024 (the so-called TU FER), which aims to regulate grid connection solutions for: (i) renewable energy plants (excluding offshore wind farms); and (ii) storage systems (BESS and pumped hydro storage).

According to the current draft:

• ARERA is required to issue, within 180 days from the Decree’s entry into force, the technical and economic terms and conditions for the connection of the aforementioned types of plants. Specifically, Terna on one hand, and local distribution system operators on the other, must allocate both available and surplus grid capacity through transparent and non-discriminatory procedures;

• As of the date ARERA issues the above regulations, connection solutions for unauthorized renewable energy and storage projects (again, excluding offshore wind) will lose their validity, unless the final design of the grid works has already been approved by Terna or the relevant DSO;

• The loss of effectiveness of a connection solution cannot be used as grounds to suspend ongoing environmental or permitting procedures related to the project;

• By way of derogation, connection solutions remain valid for projects that have already obtained an EIA screening determination (so-called “VIA Screening”) or a full Environmental Impact Assessment (EIA) approval, provided such approvals also cover the associated grid works;

• Even if a connection solution remains valid under the above derogation, definitive grid capacity allocation still requires the project to obtain full authorization for construction and operation.

Preliminary Observations

The draft Decree—excluding offshore installations—appears to introduce a fundamentally revised regulatory framework for grid connection to the National Transmission Network (RTN), likely to have significant short-term impacts on both ongoing and soon-to-be-launched initiatives.

Should the current provisions remain unchanged, it is reasonable to expect a rush in the coming months among more advanced projects to obtain VIA Screening, full EIA approval, or final grid work validations, in order to avoid the expiration of their STMG.

Notably, the Decree’s derogation provision may prove discriminatory, as it allows certain projects - subject to environmental procedures due to their characteristics - to “preserve” their STMG despite lacking validation of their final grid design.

Additional uncertainties pertain to the nature and implementation of the aforementioned “transparent and non-discriminatory” procedures. In principle, and in line with the obligation to grant third-party access to the RTN, such procedures should not be “competitive” in the traditional sense. Doubts also arise regarding how permitting authorities will handle projects whose STMGs have expired, given that both the simplified procedure (PAS) and the single authorization process typically cover both generation plants and associated grid infrastructure.

It is also clear that it will become even more crucial to speed up and streamline the authorisation procedures related to the development of renewables, given that the projects that obtain the authorisation more quickly will be the ones that will be the first to obtain definitive network capacity, to the detriment of unauthorised projects.

Even projects nearing the end of their permitting process face increased risks of losing allocated capacity due to potential saturation of the relevant micro-zone. This could result in higher connection costs—for example, if the previously identified substation becomes fully saturated and a more distant, costlier alternative must be considered.

This scenario will likely lead to numerous legal litigations from affected operators, who may contest the sudden loss of their previously secured grid capacity rights.

In any case, a complete and conclusive understanding of the new regulatory framework - and market reactions - will only be possible once the Decree enters into force and ARERA issues its implementing measures (expected by February 2026, assuming the Decree is enacted by the end of this month).

This article, written by Piero Viganò, Giovanni Battista De Luca, Lorenzo Piscitelli and Ernesto Rossi Scarpa Gregorj, is the third in a series of articles published on the topic of virtual grid saturation. The previous ones are:

Virtual grid saturation: micro-zones and transparent procedures. Potential impacts on current and future development initiatives

Italy, electricity grid under pressure: the challenge of saturation between input and output

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The Court, after preliminarily distinguishing biomass plants from other renewable energy installations[1] – which generally entail a lower environmental impact – found that although the Calabrian law does not impose a general ban on the construction of renewable energy plants throughout the region[2], it nevertheless violates Article 117, paragraph 3, of the Constitution. This article pertains to the matter of “production, transportation, and national distribution of energy” an area of concurrent legislative competence between the State (which sets the fundamental principles) and the Regions (which legislate in compliance with those principles)[3].

Indeed, while the new national regulatory framework assigns Regions a key role in identifying suitable and unsuitable areas for the installation of RES plants[4], the Court held that such declarations of unsuitability may not amount to a blanket, a priori prohibition. Rather, they merely indicate areas where installation may still be authorized, provided that an adequate assessment and strengthened justification are provided.

According to the Constitutional Court, any broader interpretation of the Regions’ power would directly conflict with the imperative to develop renewable energy sources, an objective that is crucial to environmental protection and to safeguarding the interests of future generations.

This is the first time the Court has ruled based on the principles set out in the Ministerial Decree on Suitable Areas (DM of 21 June 2024), issued pursuant to Article 20, paragraph 1, of Legislative Decree no. 199 of 2021. The decree established uniform principles and criteria for regional identification of areas suitable and unsuitable for RES plants, with the important clarification that unsuitability can never equate to an absolute and a priori prohibition.

In essence, while the new legislation enhances regional autonomy, it also aims to prevent unjustified restrictions - especially where there are no compelling reasons related to territorial or ecosystem preservation - which would run counter to the urgent need to develop renewable energy sources. This objective is of “crucial importance” precisely with regard to the “vital aim of environmental protection, also in the interest of future generations” (see decision no. 216 of 2022).

All this, while awaiting the Court’s decision on the Sardinian Regional Law (L.R. no. 20/2024), which, it is worth recalling, has effectively prohibited the installation of renewable energy plants on 99% of Sardinia's territory.

Written by Giovanni Battista De Luca, Paola Putignano and Ernesto Rossi Scarpa Gregorj.

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[1] The environmental issues associated with the installation of biomass plants, as highlighted in the National Integrated Energy and Climate Plan (PNIEC), which, on page 58, provides that their installation should be “guided in such a way as to favour high environmental quality and high efficiency plants, also considering the possibility of introducing restrictions on new installations in areas characterised by critical air quality situations”.

[2] The law only applies to biomass-fuelled plants in contexts where the need to protect the natural habitat is particularly strong – i.e. national and regional parks – and sets a power limit of 10 MW thermal.

[3] For the sake of completeness, it should be noted that the Constitutional Court also declared Article 14(2) of the regional law unconstitutional for violation of Articles 3 and 41 of the Constitution. According to the Court, this provision has the character of a legislative measure, since it refers solely to the Mercure power plant (the only biomass plant currently located in a national or regional park in Calabria) and is therefore intended to affect a single legal position, with the regional legislator intervening in matters normally entrusted to the administrative authority.

[4] The previous legislation allowed the identification of unsuitable areas exclusively “through a specific investigation” and, therefore, not by law but following an administrative procedure (paragraph 17 of the Guidelines referred to in the Ministerial Decree of 10 September 2010).

Published in The Legal 500 Country Comparative Guides 2024 - Italy: Patent Litigation  

Structural and procedural framework

1. What is the forum for the conduct of patent litigation? 

Patent litigation is subject to the jurisdiction of specialized business sections established in first and second instance courts of major Italian cities, namely Bari, Bologna, Catania, Florence, Genoa, Milan, Naples, Palermo, Rome, Turin, Trieste, and Venice. Generally, actions related to patents (and other IP rights) are filed in the jurisdiction where the defendant resides or is domiciled (forum rei). If the defendant lacks residence, domicile or abode in Italy, actions may proceed in the jurisdiction of the plaintiff’s residence, domicile or abode (forum actoris). If neither party is domiciled in Italy, the Court of Rome has jurisdiction. For invalidity actions, the competent forum is based on the patentee's chosen domicile upon registration, serving as an exclusive domicile for jurisdiction and document service.

In addition, infringement and non-infringement actions can be initiated at the court where the infringement occurred (forum commissi delicti). This system allows parties to choose between general forums or the forum commissi delicti for infringement cases. If the chosen court lacks a specialized business section, the case is deferred to a regional court with such a section. Specialized judges bring significant expertise in patent and IP litigation, though they typically lack technical backgrounds and rely on court-appointed experts.

2. What is the typical timeline and form of first instance patent litigation proceedings? 

Patent litigation can proceed as either interim or main proceedings, depending on the claim.

In interim proceedings, claimants can seek urgent relief measures, such as preliminary injunctions, seizure, and description orders, to secure immediate protection and evidence of infringement or non-infringement which can be then used in following main proceedings to get a declaration of liability and compensation for damages. Interim proceedings require fumus boni juris (likelihood of the right's existence) and periculum in mora (risk of prejudice implied in waiting a decision on the merits). Interim proceedings apply to infringement or non-infringement claims but not to validity or revocation actions.

Certain interim measures, like preliminary injunctions, do not require follow-up confirmation in main proceedings, while others, such as seizure or description, require main proceedings within the timeframe set by the judge or, if unspecified, within 20 working days or 31 calendar days, whichever is longer. Without main proceedings, the granted measures (seizure and description) become ineffective.

Main proceedings cover the full scope of the case, allowing judges to issue judgments on validity, revocation, infringement, or non-infringement and address compensation for damages and other remedies like a final injunction. Typically, infringement and invalidity proceedings are bifurcated, though infringement cases often see a counterclaim for invalidity. If separate invalidity proceedings begin, the infringement trial is usually stayed pending the validity decision, as the assessment on validity precedes both logically and legally the assessment on possible infringement (Italian Supreme Court No. 15339/2016).

Rulings on liability and damages are typically issued together, but courts may deliver a partial ruling on liability, with the trial proceeding to quantify damages. A first-instance decision in interim patent litigation proceedings generally takes about a year (possibly including a witness expertise), while a decision on the merits can take around three years.

3. Can interim and final decisions in patent cases be appealed? 

Both interim and final decisions can be appealed under general Italian civil procedure rules. Interim decisions are appealable to the first instance Court in a collegial seatwithin 15 days of issuance. Final decisions can be appealed to the Court of Appeal within 30 days of service by either party or, if not served, within six months of publication (save for a suspension of the deadline from the 1^st to the 31^st of August).

No permission is required for appeal, but appellants must have an “interest”, meaning they cannot appeal a case they have completely won. Furthermore, Italian law provides mechanisms to streamline appeals, whereby judges of the Court of Appeal can dismiss an appeal deemed inadmissible or manifestly unfounded.

The typical appeal timeframe in interim proceedings is about two months, whereas main proceedings appeals take approximately three years. First-instance judgments are provisionally enforceable. The appellant may request the judge to suspend the provisional enforceability or execution of the appealed judgment only for serious reasons.

Basic legal framework

4. Which acts constitute direct patent infringement?

Under Article 66.2 of the Italian Industrial Property Code, the exclusive rights of a patent owner include:

• For a product patent: the right to prevent third parties from making, using, marketing, selling, or importing the product for such purposes.

• For a process patent: the right to prevent third parties from applying the process and from using, marketing, selling, or importing the product obtained directly from the process.

These actions constitute direct patent infringement if they exploit all the essential and typical elements of the patented invention, excluding secondary or ancillary elements.

5. Do the concepts of indirect patent infringement or contributory infringement exist? If so, what are the elements of such forms of infringement? 

The Italian Industrial Property Code addresses contributory infringement in Article 66, paragraphs 2 bis-2 quater. Contributory infringement occurs when the conduct, while not being a direct infringement nor a preparation to it, is instrumental to enabling the infringing activity of others. This the case when a party supplies or offers to supply third parties with essential elements of a patented invention, knowing the means are suited for implementing the invention.

Essential elements include:

1. A direct infringement.

2. An act contributory to the infringement by a different person.

3. Awareness by the contributor of facilitating infringement.

Article 66.2 ter clarifies that the supply to third parties of means relating to an indispensable element of the invention and necessary for its implementation does not qualify as contributory infringement if such means are common commercial items, unless the contributory infringer knowingly induces the recipient to perform acts of direct infringement.

6. How is the scope of protection of patent claims construed? 

Under Article 52 of the Italian Industrial Property Code, the scope of a patent is strictly defined by the claims. Independent claims must include all essential features of the invention, while dependent claims cover specific embodiments. The description and drawings in the patent document aid in interpreting claims, as they provide context on how the invention is to be executed and help clarify claim content.

In Italy, there is no file-wrapper estoppel; statements made by the patent owner during prosecution do not generally affect the scope of the patent. However, some case law treats these statements as presumptive evidence in restricting the patent’s scope.

Italian law also recognizes infringement by equivalents, whereby a product or process can infringe a patent if it incorporates elements functionally equivalent to those claimed. Italian courts have recently adopted the “triple-test” approach to determine equivalence, which requires that the product or process in question performs the same function, in the same way, and achieves the same result as the patented invention.

7. What are the key defences to patent infringement? 

Key defenses against patent infringement claims include:

1. Possible invalidity of the patent: Defendants often argue that the enforced patent lacks novelty, inventive step, or other validity requirements.

2. Non-infringement: The defense asserts that the requirements for direct, contributory, by equivalent or evolutive infringement are not met in the case at hand.

3. Legal exclusions: Italian law provides specific exceptions to infringement under Article 68 of the Industrial Property Code, such as:

• Acts performed privately and for non-commercial purposes.

• Acts performed on an experimental basis relating to the subject matter of the patented invention, or to the use of biological material for cultivation purposes, or to the discovery and development of other plant varieties.

• Studies and experiments aimed at obtaining a marketing authorization for a medicine.

• Preparation of medicines in pharmacies on a per-unit basis based on prescriptions.

• Actions on software allowed under copyright law.

• Use of a dependent patent (i.e. a patent for invention, the implementation of which involves the use of inventions protected by earlier patents still in force, with the consent of the owners of those patents).

• Prior secret use (any person who, during the 12-month period prior to the filing date of the patent application or priority date, has made use in his business of the invention may continue to use it within the limits of the prior use).

8. What are the key grounds of patent invalidity? 

Under Article 76 of the Italian Industrial Property Code, a patent is invalid if:

• The invention is not patentable as: 

• it has a subject matter which cannot constitute patentable invention (e.g., discoveries, scientific theories, mathematical methods, etc.); and/or

• it lacks patentability requirements (novelty, inventive step, industrial application, lawfulness).

• The invention is not described in a sufficiently clear and complete manner to enable an experienced person to implement it.

• The subject matter of the patent extends beyond the content of the initial application or the patent protection has been extended.

• The patentee was not entitled to obtain the patent.

The Italian case law considers the invalidity grounds above exhaustive.

9. How is prior art considered in the context of an invalidity action? 

Under Article 46 of the Italian Industrial Property Code, prior art includes everything made publicly available in Italy or abroad before the patent application date. This can include written or oral descriptions, uses, or any means of disclosure.

Prior art is evaluated differently for assessing novelty and inventive step:

• Novelty: Prior art is assessed on an absolute basis, meaning it includes all publicly known information across fields. A single prior art reference must entirely coincide with the patented invention to negate novelty, while consideration of multiple prior art documents is not allowed. Prior art relevant for the assessment of novelty includes:

• common general knowledge (all that is generally known to an expert);

• enhanced knowledge (which is obtained though research);

• hidden knowledge (which is theoretically possible - but unlikely - to obtain); and

• prior applications (which includes non-published prior Italian, EU – designating Italy – and international – designating and effective in Italy – patent applications).

• Inventive step: the assessment of inventive step (so called inherent novelty) aims at understanding whether the solution presented to the problem in the patent application is obvious or not to the person skilled in the art. Differences with novelty assessment are the following: a) prior art sub iii) and iv) are not considered; b) different and unrelated prior documents can be combined with a mosaic approach to exclude inventive step; and c) the person skilled in the art is an expert of the field(s) to which the invention belongs, while for novelty reference is made to a cross-fields expert. 

In order to assess inventive step, Italian courts have recently started to adopt the EPO method called “problem-solution approach”, which consists of (i) determining the “closest prior art”, (ii) establishing the “objective technical problem” to be solved, and (iii) then inferring whether or not, starting from the closest prior art and the objective technical problem, it would have been obvious for the expert of the field to land on the claimed invention. According to this approach, the closest state of the art for assessing inventive step should be represented by a document, which, with regard to the claimed invention and from the point of view of a skilled person at the priority date applicable, pertains to the same or to a closely related technical field, discloses subject-matter conceived for the same purpose, has most technical features in common, i.e. requires the minimum of structural modifications, and relates to the same or a similar technical problem (Board of Appeal EPO, 14 October 2004, T 650/01).

10. Can a patentee seek to amend a patent that is in the midst of patent litigation? 

Under Article 79 of the Italian Industrial Property Code, a patent owner may seek to limit the patent. This can be done either through the Italian Patent and Trademark Office, submitting a modified description, claims, and drawings, or directly in court during an invalidity trial by proposing a reformulation of claims. These amendments must not extend the protection originally conferred by the granted patent.

No opposition mechanism is available to third parties against limitations. Limitation requests are examined by the Office, which usually focuses on avoiding that limitations extend the scope of the claims or merely consist in formal amendments. 

However, when amendments are made in court, the opposing party may still challenge the validity of the patent as amended.

Amendments are effective from the date they are requested and do not retroactively affect the scope of the patent.

11. Is some form of patent term extension available? 

Under Article 60 of the Italian Industrial Property Code, the term of a patent for invention is 20 years from the filing date, while utility model patents last 10 years. Extensions are not available, except for pharmaceutical patents, which can be extended via a supplementary protection certificate (SPC). The SPC provides additional protection for the time between the patent application filing and the date the product received market authorization, with a maximum extension of 5 years.

Evidence

12. How are technical matters considered in patent litigation proceedings? 

In patent litigation proceedings, technical matters are typically assessed through expert opinions. Court-appointed experts provide an impartial evaluation of the patent’s validity or infringement. Parties may nominate their own technical consultants to assist them during this process.

As the expert opinion is not a means of evidence available to the parties, the judge retains a discretionary power of appointment, independently from parties’ request. However, a judge, upon receiving a party’s request explaining why the expert opinion is material for the decision on the matter, cannot reject the request without justification.

Experts generally submit a written report after considering written input from the parties’ experts. Given that judges usually lack technical backgrounds, they significantly rely on the court-appointed expert’s findings. Witness testimony and documentary evidence are also admissible, but expert opinion remains central due to the technical complexity of patent cases.

13. Is some form of discovery/disclosure and/or court-mandated evidence seizure/protection (e.g. saisie-contrefaçon) available, either before the commencement of or during patent litigation proceedings? 

Yes, Italian law allows for urgent measures for preservation of evidence (e.g., description order, seizure, information orders), obtainable through interim proceedings. To grant such measures, the court requires fumus boni juris (likelihood of the right’s existence) and periculum in mora (risk of prejudice in waiting for legal protection until the decision on the merits).

More specifically, description orders aim at obtaining visual evidence of the infringement by means of a bailiff’s report describing, also with images, the infringing items and the means to create them, while seizures preserve evidence by putting goods under custody; information orders are meant to obtain information on the origin, on distribution networks of infringing products or on infringing services supply networks.

Another measure for gathering evidence, which prevailing case law deems admissible only in main proceedings and not in interim ones, is the exhibition order. This order may be issued by the judge upon the parties' request to obtain specific documents. 

To grant an exhibition order, the requesting party must provide compelling evidence supporting the merits of their claim and specifically identify the document in question, including details on its origin and content. In this sense, the exhibition order differs from description: while description seeks to uncover evidence, the exhibition order aims to introduce already identified evidence into the trial.

The urgency measures above, if obtained in interim proceedings, must be followed by main proceedings initiated within the timeframe set by the interim judge or, if no timeframe is specified, within twenty working days or thirty-one calendar days, whichever is longer. If main proceedings are not started within this period, the granted measures become ineffective, resulting in their revocation and the return of any seized materials to the defendant.

14. Are there procedures available which would assist a patentee to determine infringement of a process patent? 

Article 67 of the Italian Industrial Property Code presumes that a product identical to one obtained through a patented process was made using that process, unless proven otherwise. This happens if, alternatively, a) the product obtained by the process is new in the market, or b) despite reasonable efforts, the patentee could not prove that the process used to manufacture the identical product corresponded to the patented one but, nonetheless, provided evidentiary elements for a substantial likelihood that the identical product was manufactured through the patented process.

The defendant can rebut this presumption by providing evidence of an alternative manufacturing process. In these circumstances, courts are required to respect the defendant’s trade secrets and typically use confidentiality measures to protect sensitive information shared by the defendant.

15. Are there established mechanisms to protect confidential information required to be disclosed/exchanged in the course of patent litigation (e.g. confidentiality clubs)? 

Italian law provides mechanism to protect confidential information. 

Article 121 ter of the Italian Industrial Property Code contains a special provision for proceedings concerning the unlawful acquisition, use or disclosure of trade secrets. Trade secrets are defined by Articles 98-99 of the Italian Industrial Property Code as information which are secret, have economic value as secret and are subject to appropriate secrecy measures. 

In trade secrets proceedings the judge may prohibit individuals appointed or delegated by him, the parties and their representatives and consultants, defense counsel, administrative personnel, witnesses, and other persons who in any capacity have access to the measures, acts and documents in the office file, from using or disclosing the trade secrets deemed confidential. This prohibition order, issued upon request of a party, remains effective even after the conclusion of the proceedings in which it was issued. The court may also adopt additional confidentiality measures, such as restricting access to hearings, records and documents to a limited number of individuals and redacting or omitting portions containing trade secrets in the final orders.

These measures become ineffective if, through a final judgment, it is determined that the trade secrets at issue in the case do not meet the requirements of Article 98 or if they become generally known or easily accessible to experts and practitioners in the field.

Jurisdiction and other fora

16. Is there a system of post-grant opposition proceedings? If so, how does this system interact with the patent litigation system? 

Italian law does not provide for post-grant opposition proceedings, however European patents can be opposed before the European Patent Office within 9 months of the grant. Since European patents designating Italy can be challenged before Italian courts under the transitional regime of Article 83 the UPCA and Article 345 bis of the Italian Industrial Property Code, if the EP is opposed, an EPO opposition proceeding may overlap with a pending patent litigation in Italy. 

In such cases, Article 120 of the Italian Industrial Property Code provides that the court shall, taking into account the circumstances, order the suspension of the trial, once or several times, and set the date for the trial’s resumption. This allows litigation to be stayed pending administrative opposition proceedings. 

As for the interaction between the opposition proceedings against a European patent and proceedings before the Unified Patent Court, Article 33.10 of the UPCA requires that parties shall inform the UPC of any opposition, limitation or revocation proceedings pending before the EPO. The UPC may stay proceedings when a rapid decision may be expected from the EPO. The Court may also request that the EPO expedite opposition proceedings.

17. To what extent are decisions from other fora/jurisdictions relevant or influential, and if so, are there any particularly influential fora/jurisdictions? 

Italian courts are not bound by foreign decisions, but they may consider them to support their reasoning, if the matter at stake has been already decided by a foreign jurisdiction (especially if by the court of another EU country or by the EPO Board of Appeal).

18. How does a court determine whether it has jurisdiction to hear a patent action? 

General rules on jurisdiction dictate that patent actions must be brought before the court in the jurisdiction of the defendant's residence, domicile or abode (forum rei). If the defendant lacks residence in Italy, the action may proceed where the plaintiff is domiciled (forum actoris), or in Rome if neither party is domiciled in Italy. For infringement cases, the action may also be filed where the infringement occurred (forum commissi delicti).

With respect to foreign patents, under international law rules, Italian courts do not have jurisdiction over actions concerning validity and registration. However, they may assert jurisdiction in cases if where the defendant is domiciled in Italy. For infringements occurring within EU member states Article 4.1 of Bruxelles I bis Regulation applies, while for infringement occurred in non-EU member states jurisdiction is governed by Article 3.1 of Law no. 218/1995).

Italian Courts do not grant anti-suit injunctions.

19. What are the options for alternative dispute resolution (ADR) in patent cases? Are they commonly used? Are there any mandatory ADR provisions in patent cases? 

Patent cases in Italy can be subject to arbitration, provided they involve rights that can be freely transferred or waived (diritti disponibili). Issues such as authorship or inventorship, therefore, are excluded from arbitration.

In general, arbitration is not commonly used in patent cases, which are typically handled through lengthy and complex trials.

However, there are specific instances in patent law where arbitration is explicitly provided for. For example, Article 64.4 of the Italian Industrial Property Code stipulates that, while the ordinary court retains jurisdiction to determine the existence of the right to fair premium, fee or price, if the parties cannot agree on the amount, it may be set by a panel of arbitrators. This panel is composed of three members: one appointed by each party and a third member chosen by the first two. In the event of disagreement, the third arbitrator is appointed by the president of the specialized section of the competent court where the service provider regularly conducts their duties.

Commencing patent litigation

20. What are the key procedural steps that must be satisfied before a patent action can be commenced? Are there any limitation periods for commencing an action?

Patent actions can be initiated at any time once the patentee has sufficient evidence of infringement (for infringement actions) or upon filing the patent (for invalidity actions). There are no procedural preconditions, such as pre-litigation steps, before commencing a patent action in Italy.

The statute of limitations for patent infringement follows general Italian law on non-contractual damages, with a five-year limit. The period begins when the patentee is reasonably informed of the act of infringement and its potential damage, requiring an active role in monitoring the market for unauthorized uses.

21. Which parties have standing to bring a patent infringement action? Under which circumstances will a patent licensee have standing to bring an action?

Licensees can bring infringement actions. Exclusive licensees, who hold the sole economic exploitation rights over the patent, may initiate actions independently unless the license agreement states otherwise. Non-exclusive licensees may only bring an infringement action with the patent owner’s consent. The patentee does not need to join an action brought by the licensee.

In addition, assignees of a patent may bring actions for infringements that occurred prior to the assignment.

22. Who has standing to bring an invalidity action against a patent? Is any particular connection to the patentee or patent required?

Under Article 122 of the Italian Industrial Property Code, invalidity claims against a patent for failure to meet mandatory requirements can be brought by i) any party with a legal interest including any entrepreneur – current or potential – who perceives the patent as an obstacle to their business; and ii) the Public Prosecutor. Invalidity claims based on the ground that the registration was granted to a non-entitled person may only be brought by the rightful owner within two years of the patent grant. After this two-year period, such claims can be initiated by any party with a legal interest. 

Examples of plaintiffs in invalidity claims for lack of mandatory requirements include i) the licensee of the patent (seeking to avoid paying royalties under the license); ii) the assignee of the patent (to avoid the consideration for assignment); iii) the defendant in infringement cases; and iv) “enti esponenziali di interessi di categoria” (i.e., entities legally dedicated to defending specific public interests.).

Remedies 

23. Are interim injunctions available in patent litigation proceedings? 

Yes, interim injunctions are available in Italian patent litigation and are commonly granted when there is a significant risk of irreparable harm or economic prejudice that could escalate uncontrollably. Standard requirements for interim relief (fumus boni juris and periculum in mora) must be met.

Interim injunctions can be obtained on an ex parte basis if the court believes that notifying the opposing party may compromise the effectiveness of the measure. Ex parte injunctions are relatively rare (orders for evidence preservation - e.g., description - to prevent tampering are more likely to be granted ex parte).

Inter partes injunction, instead, are generally granted when Courts make a positive assessment of patent infringement.

Typically, an ex parte injunction can be granted within two weeks, while an inter partes injunction usually takes three to six months. Courts do not require cross-undertakings for damages before granting interim injunctions.

24. What final remedies, both monetary and non-monetary, are available for patent infringement? Of these, which are most commonly sought and which are typically ordered? 

The final remedies available for patent infringement include:

1. Injunctions: Prohibit manufacturing, marketing, or using infringing products, often with penalties for non-compliance.

2. Market removal orders: Mandate the removal of infringing items from the market.

3. Destruction orders: Require the destruction of infringing goods.

4. Assignment orders: Transfer ownership of infringing items to the right holder.

5. Seizure of infringing products and manufacturing equipment.

6. Publication of the decision: Public disclosure of the judgment.

7. Compensation for damages: Monetary relief for losses incurred.

Injunctions, removal orders, and compensation for damages are the most commonly sought remedies, with injunctions and damages typically granted.

25. On what basis are damages for patent infringement calculated? Is it possible to obtain additional or exemplary damages? Can the successful party elect between different monetary remedies?

Under Article 125 of the Italian Industrial Property Code, infringers can be held liable for both monetary and non-monetary damages.

Monetary damages are calculated by considering both actual loss (danno emergente) and loss of profit (lucro cessante). 

In patent litigation, actual losses typically include:

• Enforcement costs: Expenses incurred for enforcing rights, including investigative activities, monitoring and gathering evidence of infringement, legal and technical consultancy fees, and costs for analyses and technical tests, as well as internal expenses dedicated to patent enforcement.

• Investment costs: Costs incurred for investments jeopardized by the infringement, such as advertising expenses and venue rentals.

• Remedial expenses: Costs for mitigating the negative effects of the infringement, including press releases and promotional activities.

• Commercial standing damage (danno normativo): Detriment to the patentee’s monopoly position in the market.

Loss of profit in patent cases is typically calculated using one of three alternative methods:

• Lost profit of the patentee: Calculated by multiplying the quantity of infringing products sold by the price set by the patentee, minus manufacturing costs. Case law sometimes adds additional profit considerations, such as:

  • Convoyed sales: Sales of ancillary products.

  • Price erosion: Discounts applied by the patentee to compete with infringing products.

  • Bridge-head sales: Losses due to the infringer’s market positioning at the patentee's expense.

• Infringer’s profits: Calculated based on gross operating margin or net profit.

• Royalty rate: Applying an industry-standard royalty rate (typically 5% for mechanical patents) to the infringer’s revenue generated by exploiting the infringing product.

The patentee can also request restitution of profits (retroversione degli utili) as an alternative to loss of profit or to cover any excess profit not accounted for by this type of damages.

Non-monetary damages in patent cases account for non-economic harm suffered by the patentee, which the court can grant only “where appropriate.” Examples include inconvenience caused by infringement to the patentee’s internal operations and harm to the patentee's reputation or public image.

If damages cannot be precisely quantified, despite the patentee demonstrating harm, the court may assess them based on equitable considerations. Additional or exemplary damages are not available under Italian law.

26. How readily are final injunctions granted in patent litigation proceedings? 

Final injunctions are generally granted if the court finds infringement and valid patent rights. Public interest or proportionality considerations do not typically affect the decision. The scope of the injunction is tailored to prevent ongoing infringement. 

27. Are there provisions for obtaining declaratory relief, and if so, what are the legal and procedural requirements for obtaining such relief? 

Under Italian law, there are no specific provisions concerning actions for a declaration of non-infringement; however, Italian case law has recognized such actions, and they are referenced in Article 120.6 bis of the Italian Industrial Property Code regarding jurisdiction criteria.

Non-infringement action generally requires that the claimant demonstrate a legal interest in obtaining clarification, often by showing that the existence of the patent creates significant uncertainty about the legality of their business activities.

Costs

28. What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?

Typical costs in first instance proceedings including a witness expertise are approximately EUR 30,000-50.000 for interim measures and EUR 40,000-70.000 for main proceedings, plus 10.000-25.000 for technical consultants. Appeals to the Court of Appeal cost between EUR 45,000 and EUR 75.000, while appeals to the Italian Supreme Court generally cost over EUR 50,000. Costs are indicative only and may increase due to the complexity of the matter, amount of evidence to be examined, and in case of multiparty litigation. Court fees may vary, up to a maximum of EUR 2,072 for cases with an unidentifiable monetary value, with higher fees applying to cases with a specified value.

29. Can the successful party to a patent litigation action recover its costs? 

Under Italian procedural law, the losing party is typically required to cover the winning party’s costs, including legal fees, as calculated by an official table of fees approved by the Italian State. However, these reimbursable costs are generally lower than the actual expenses incurred. 

Policy

30. What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?

The main growth areas in Italian patent litigation currently include mechanical engineering, pharmaceuticals and biotechnology.

31. How has or will the Unified Patent Court impact patent litigation in your jurisdiction? 

The UPC is expected to centralize and streamline patent litigation across multiple jurisdictions. However, Italian SMEs, who may struggle to sustain the costs of opting into the UPC, might still prefer traditional national litigation.

32. What do you predict will be the most contentious patent litigation issues in your jurisdiction over the next twelve months?

Foreseeable new contentious issues in Italian patent litigation in the coming year may include AI-related inventions and enforcement of biotech patents. Additionally, the UPC practice will bring new procedural challenges and possibly influence also the case law of national courts.

33. Which aspects of patent litigation, either substantive or procedural, are most in need of reform in your jurisdiction?

Introducing an administrative opposition system for patent challenges would streamline patent invalidation and reduce the burden on the courts. Establishing such a mechanism would lower costs for plaintiffs and make patent disputes more accessible, especially for small companies. 

34. What are the biggest challenges and opportunities confronting the international patent system?

A unique challenge for the international patent system will be how to handle inventions created autonomously by AI. AI systems challenge the concept of human inventorship, which is the legal cornerstone of current IP frameworks, and requires new solutions. Patent system may then need to adopt new legal definitions of inventorship, that might include qualifying AI as co-inventor.

From the upcoming FER X auctions to the latest clarifications on the PPA market, and updates on agrivoltaics, white certificates, and Data Centers — this newsletter provides timely insights for energy market operators and stakeholders.

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• provided specific guidance to the Gestore dei Mercati Energetici S.p.A. (“GME”) for the establishment and launch of an organized market dedicated to the negotiation of PPAs (“MPPA”);

• defined the criteria and conditions under which the Gestore dei Servizi Energetici S.p.A. (“GSE”) shall act as provider of last resort for PPAs negotiated on the MPPA.

The European and National Regulatory Context

The Decree is part of an evolving European regulatory framework aimed at fostering investment in renewable energy and ensuring price stability. Starting with Regulation (EU) 2024/1747, the European Union has encouraged Member States to remove existing constraints to the negotiation and execution of PPAs, promoting, among other measures, the use of security in support of market participants, with specific reference to the small and medium-sized enterprises and entities with limited access to energy markets.

At the national level, the Decree aligns with the objectives set out in the National Integrated Energy and Climate Plan (PNIEC) and Mission 7 of the REPowerEU initiative under Italy’s National Recovery and Resilience Plan (PNRR). These policies seek to reduce dependency on fossil fuels, accelerate the development of renewable energy sources and support the promotion of long-term agreements (5–10 year) between renewable energy producers and buyers.

More specifically, the primary objective of the MPPA and of GSE’s role as provider of last resort is to lower key barriers to the access and development of PPAs, and, more in details, the high financial cost of the security required to manage the risk associated with the relevant PPA’s position of each Party.

In recent weeks, GME and GSE have launched two public consultations concerning, respectively: (i) the proposed operational model for the MPPA; and (ii) the proposed operational rules governing the qualification of participants in the MPPA and the implementation of GSE’s last resort guarantee mechanism (the “Operational Rules”), as set forth in Article 8 of the Decree. The GME consultation closed on 24 July 2025, while the deadline for the GSE consultation is set for 4 August 2025.

The MPPA structure pursuant to the Decree and the GME consultation document

The MPPA will be a new trading platform forming part of the broader electricity market managed by GME (the “Electricity Market”), and will be functionally integrated with the forward market (the “MTE”)[1].

Accordingly, the Decree provides that the products eligible for trading on the MPPA must have “standardized characteristics that are similar to, or otherwise compatible with, those of the contracts traded on the MTE.”

Indeed, pursuant to the Decree and the consultation documents of GME and GSE, only agreements related to baseload and peakload profile will be eligible for trading on the MPPA, as actually provided on the MTE.

Furthermore, contracts eligible for trading on the MPPA must:

• relate to volumes of energy that have not already been subject to previously executed contracts and that are not covered by other incentive schemes and/or services provided by GSE (including with reference to the corresponding share of the facility’s capacity);

• have a duration of no less than 5 and no more than 10 years.

It is also envisaged that PPAs may be negotiated directly on the MPPA through an auction-based mechanism with a mutual acceptance process, or outside the market (“OTC Clearing”), provided that such OTC PPAs are compatible with the products tradable on the MPPA.

Participation in the MPPA will be on a voluntary basis; however, access and participation will be subject to both subjective and objective eligibility requirements.

In addition to the objective requirements related to the plants, subjective requirements are imposed both by GME, with reference to participation in the Electricity Market, and by GSE, concerning its role assumed within the MPPA.

Indeed, all participants in the MPPA, in addition to being companies registered with the competent Chamber of Commerce and having a credit rating not lower than the so-called investment grade, must:

1. qualify as market operators pursuant to the Electricity Market regulations (GME);

2. if sellers, be dispatching users of one or more renewable energy production plants that are in operation or authorized (GSE);

3. if buyers, be dispatching users of one or more withdrawal points as defined in the Integrated Text on Dispatching (GSE).

GME will act as the central counterparty for participants on the MPPA, while GSE will intervene in the event of default by one of the parties of the PPA to ensure the continuity of the relevant agreement, upon decision of the non-defaulting party, as further detailed below.

The role of GSE as provider of last resort pursuant to the Decree and the GSE consultation document

Any entity meeting the requirements set forth in the GSE Operational Rules shall enter into an adhesion contract with GSE in order to obtain the guarantee of last resort by the GSE.

In the event that a party is in breach of its obligations towards GME pursuant to the Electricity Market regulations or towards GSE pursuant to the adhesion contract[2], the non-defaulting party may decide either to continue with the PPA and benefit from GSE’s last resort service or to terminate the the PPA negotiated on the MPPA and withdraw from the adhesion contract signed with GSE.

Should the non-defaulting party decide to activate GSE’s guarantee, GSE shall step into the position of the defaulting party for the remaining duration of the PPA and in relation to the volumes are not already subject to delivery on the MCT.

Furthermore, in the event of seller default, GSE, by virtue of a mandate granted by the seller, shall assume the role of dispatching user for injection of the plant(s) subject to the PPA.

Upon GSE’s takeover, the contractual positions of the parties shall be settled by applying the so-called “reserve price” (Prezzo di riserva), as determined pursuant to the Operational Rules, rather than the contractual price previously agreed upon by the Parties in the PPA.

A strategic change?

The requirements and burdens (including professional and organizational obligations) associated with participation in the Electricity Market, and, consequently, in the MPPA, may represent a constraint for special purpose vehicles that typically own the production plants, as well as for energy-intensive companies that participate directly into the Market.

However, according to the GSE consultation document, it appears that both generators and the energy intensive companies may participate in the MPPA through their designated trader, to whom they have granted the mandate for dispatching.

This would allow such limitations to be overcome by enabling participation through qualified users to whom multiple producers or customers may confer dispatching mandates, similarly to what currently occurs in the dispatching services market managed by Terna and with reference to the Capacity Market. Nonetheless, in such a context, the potential risks arising from aggregation will need to be carefully assessed.

Similar considerations may apply with respect to the participation of energy intensive companies in the MPPA.

The Reserve Price has also raised a number of concerns, as it may not allow the parties to maintain the same cash flow originally envisaged at the time of PPA execution.

It will therefore be necessary to await the publication of the results of the GSE and GME consultations to determine whether the concerns and suggestions raised by market participants will be taken into account in the design of the MPPA and in the structuring of GSE’s role as provider of last resort.

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[1] In particular, the MTE is expected to be divided into two segments: the Forward Contracts Market (the “MCT”), where the contracts currently traded on the MTE will continue to be negotiated, and the MPPA.

[2] For example, in case of breach of the obligations under the adhesion contract.

According to the Court, imposing a rigid cap on the indemnity without allowing the Tribunale any room for further evaluation of the specifics of the case undermines the effectiveness of the protection afforded to employees and does not serve as a deterrent against unlawful terminations.

The ruling does not challenge the legitimacy of a system that, for smaller companies, provides a differentiated regime based on reduced indemnity. That choice by the legislator is not questioned per se; rather, it is the rigidity of the upper limit that is deemed incompatible with constitutional principles, as it prevents any real assessment of the damage based on the peculiarities of the case.

As a result of the unconstitutionality of Article 9(1), limited to the words "and may not in any case exceed the limit of six months' salary", the indemnity in the case of smaller companies may now be adjusted by a judge between 3 and 18 months’ salary—i.e., half of the range provided for companies that exceed the numerical threshold.

The decision also notes that the number of employees is no longer a reliable indicator of a company’s real economic strength in the current economic scenario. As a result, the Court invites the legislator, in the event of a review of the applicable laws, to consider the introduction of additional parameters to calibrate the size of compensation in a manner more consistent with the actual characteristics of the employer.

The Constitutional Court had already raised concerns on the matter with decision No. 183 in 2022 and emphasized the existing misalignment between the rules applicable to smaller employers and constitutional principles. At that time, however, the Court decided not to intervene with a ruling and instead called for a reform of the matter, which has not been implemented.

Article edited by the Labor Department. For more information click here

What the Sezioni Unite decided

Why this matters

1. Precedent for strategic litigation – The ruling is Italy’s first high-level endorsement of climate tort claims against a fossil-fuel producer, echoing landmark cases like Urgenda(NL) and Milieudefensie v. Shell (NL), but within a civil-law jurisdiction.
2. Expands the net of liability – By recognising claims against shareholders, the Court broadens potential defendants to include investors with controlling stakes, strengthening the hand of activists and minority shareholders alike.
3. Aligns with EU sustainability agenda – The reasoning dovetails with the forthcoming Corporate Sustainability Due Diligence Directive (CS3D) and the revised EU Emissions Trading Scheme, adding judicial pressure to legislative and market forces.
4. Heightens directors’ duties – Executives now face clearer litigation exposure if corporate transition plans fall short of the best available climate science, raising the bar for disclosure and risk management.

Action points for boards, banks, and investors

• Stress-test transition plans against a 1.5 °C pathway; ensure emission-reduction targets are credible, time-bound and science-aligned.
• Map group-wide exposure — include subsidiaries and joint ventures — and embed climate clauses in intragroup governance documents.
• Document stewardship by significant shareholders (not only state entities) to demonstrate active oversight of portfolio companies’ climate performance.
• Update litigation risk registers to reflect potential tort claims under ECHR-based arguments, not just statutory environmental breaches.
• Banks and investors to assess direct and indirect liability from financing hard-to-abate and carbon-intensive sectors and to include related risk in PD, LGD and EV/NPV considerations.

Looking ahead

The case now returns to the Rome Civil Court for a merits trial that could impose operational emissions caps on ENI or mandate shareholder-driven policy shifts. Regardless of the outcome, the Supreme Court has already reshaped Italy’s climate-litigation landscape: corporations can no longer rely on jurisdictional or political-question defences to sidestep ambitious climate suits. Expect a surge in filings targeting high-emitters (including companies active in hard-to-abate and carbon-intensive sectors), shareholders and potentially lenders, heightened investor engagement, and closer integration between EU regulatory reforms and domestic judicial enforcement.

Key Figures of 2024: A Year of Challenges and Actions

The report clearly highlights how complex and interconnected the landscape of data protection has become:

• 2,204 data breaches were reported across both public and private sectors—evidence of increasing exposure to risk and the need for a rigorous, proactive approach from all actors, especially in light of the Authority's increasingly strict sanctions in serious cases.
• 130 inspections were carried out, focusing on highly innovative areas: digital identity systems (SPID), facial recognition, video surveillance, and artificial intelligence applications. These audits underscore how the privacy challenge is increasingly intertwined with technological innovation and cybersecurity.
• 835 collegial decisions were adopted, including 468 corrective and punitive measures—a strong signal of the Authority’s growing attention to both repressive and preventive efforts concerning the most relevant violations. Sanction-related payments amounted to €24,430,856.45.
• Over 16,000 inquiries were handled by the Authority, reflecting a growing and tangible interest in data protection and the need for clear and authoritative communication to support citizens and businesses.

Privacy and Artificial Intelligence: Assessments and Perspectives

In 2024, the Authority focused on the profound implications of adopting artificial intelligence in key sectors: from digital healthcare to age verification, digital identity management, and the risks linked to web scraping for algorithm training. The dialogue between technological evolution and legal regulation is becoming increasingly intense, leading the Authority to reaffirm the need for strict, up-to-date governance in response to emerging digital scenarios.

Audit activities and decisions also addressed the sensitive issues of automated decision-making and profiling, as well as the cybersecurity of public and private infrastructures. The report calls on all data controllers to maintain a high level of awareness and responsibility in terms of both technical and organizational security.

Culture of Compliance: Rights and Trust at the Core

The Authority’s assessment is clear: building a culture of compliance and data security is no longer a mere regulatory requirement. It is a safeguard for the fundamental rights of individuals and an essential foundation for digital trust in society and the marketplace.

A renewed call is made to all stakeholders—public and private—to invest in training, continuous process updates, and transparency, in order to strengthen a digital ecosystem that protects the dignity, freedom, and security of every individual.

The 2024 Annual Report of the Italian Data Protection Authority portrays a country where personal data protection is no longer just a technical issue, but a social, legal, and ethical matter. From managing data breaches to AI innovation, the challenge is ongoing and demands that all players rise to the occasion—working together to build a safer, more inclusive, and more transparent digital future.

The dramatic increase in the volume and complexity of international intra-group trade, coupled with increased scrutiny of transfer pricing issues by tax authorities, makes transfer pricing documentation one of the top tax compliance priorities on the agendas of both tax authorities and businesses. 

Drafting comprehensive transfer pricing documentation is now considered the ‘minimum standard’ for ensuring tax compliance, managing tax risk and promoting tax transparency purposes in multinational groups. However, transfer pricing audits are increasingly scrutinizing the consistency between a company’s transfer pricing policies and the documentation provided.

As a result, it has become crucial for multinational groups to proactively assess and validate their transfer pricing arrangements through stress testing, ensuring robust compliance and minimizing potential audit risks.

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Comments from Paolo Lazzarino, Partner at ADVANT Nctm (Italy):

“The new Code of Practice released by the European Commission on July 10, 2025, marks a significant step toward transparency in artificial intelligence. One of its core elements is the requirement for developers of generative AI models to disclose what data was used to train them. This isn’t just a formality—it allows users, journalists, and other developers to understand the foundations behind AI-generated content. Think of it as a nutrition label for AI: knowing what a model was ‘fed’ helps to assess the reliability of what it produces.

“This focus on transparency is aimed to build public trust and increase corporate accountability. If we know whether the data comes from a certain media or archives, we can better evaluate the model’s potential biases and limitations. While the Code is voluntary, companies that adopt it show a commitment to responsible AI, anticipating the binding requirements that will come into force under the EU AI Act in the coming years.”

Comments from Paolo Gallarati, Partner at ADVANT Nctm (Italy):

“This will also contribute to raise awareness on the fair processing of personal data in AI training models, with a view to preserving the right balance between the legitimate interest of AI developers and data subjects’ consent: in fact, big data and machine learning can pierce the veil of anonymous data enabling the identification of individuals with technical means whose affordability was unimaginable just a few years ago.”

Comments fromGiulio Uras, Counsel at ADVANT Nctm (Italy):

“From a compliance standpoint, the EU’s newly released code of practice for general-purpose AI systems reveals not only the technical direction of AI Act enforcement, but also the political and economic balancing act the Union is currently engaged in.

“While framed as a voluntary tool, the code is clearly intended to become the de facto compliance path for major AI providers. For legal and compliance professionals working within the AI Act’s risk-based framework, the immediate challenge is operational: how to ensure conformity and due diligence in an environment where upstream transparency — particularly in relation to model documentation and training data — remains discretionary and, in many cases, asymmetrical.

“Beyond the legal mechanics, however, the broader picture is harder to ignore. The EU’s attempt to ‘simplify’ compliance via soft law mechanisms is, in reality, a defensive maneuver. With geopolitical uncertainty increasing — and transatlantic tensions, industrial policy shifts, and global AI races accelerating — Europe’s regulatory approach risks becoming both overly cautious and structurally rigid. The code’s voluntary nature may ease the short-term burden on industry, but it also delays legal certainty and fosters fragmented compliance strategies across jurisdictions and actors.

“Moreover, the EU’s efforts to accommodate industry concerns, while politically expedient, arguably dilute the AI Act’s foundational promise of trustworthy and safe AI. In practice, this risks creating a compliance framework that is neither robustly enforceable nor truly innovation-friendly — particularly for EU-based firms that do not have the scale or leverage of the major GPAI developers.”

Particularly, with this ruling, the Regional Administrative Court clarified that the primary legislation – represented, in this case, by Article 20 of Legislative Decree 199/2021 on suitable areas – as it comes from a legislative source, makes any landscape restrictions regulated by territorial plans and NTA requirements “yielding”.

As a result, it was established that, where the relevant project falls within an area suitable ex lege, the PAS cannot be denied on the basis of pre-existing territorial constraints without taking into account the national legislation.

In the case at stake, the Municipality of Larino had disregarded the national legislative context (in particular, Article 20, paragraph 8, c-ter, nos. 1 and 2) by considering a photovoltaic project with a capacity of approximately 5 MW incompatible with the Territorial Landscape Plan (denying the relevant PAS) despite the fact that it fell within a suitable area.

In this regard, the Molise Regional Administrative Court pointed out that the regional and municipal regulations referred to in the contested measures must be considered superseded by both the state regulations on suitable areas and the regional regulations (i.e., Regional Council Decree No. 158/2023, which adapted the location criteria to national provisions).

It was therefore reiterated that regional or local provisions imposing restrictions or requirements on the installation of RES plants may remain valid, pending the issuance of implementing decrees pursuant to Article 20 of Legislative Decree 199/2021, exclusively for those parts that do not conflict with national legislation (on this point, see also the note from the Ministry of the Environment and Energy Security, ref. no. 124474 of July 28, 2023, provided in response to a request for clarification on a similar case).

The administrative judges also focused on two further aspects of non-negligible importance in the context of the development of renewable projects, emphasizing that:

• in the context of authorization processes, local authorities cannot simply accept the negative opinions of the Superintendency uncritically, especially if the projects fall within a suitable area and, therefore, pursuant to Article 22 of Legislative Decree 199/2021, the latter are ‘non-binding’;

• a reasonable assessment of the ‘cumulative effect’ on the landscape can only take into account, for the purposes of assessing the real perceived impact of a photovoltaic project, neighboring plants that are already existing and/or approved, and not those still in the authorization phase.

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Looking in detail at the evolution of the market in the past year and in the first quarter of 2025, it was certainly possible to see that the ongoing transition process is now no longer only about generating energy from renewable sources and reducing emissions, but more generically about diversifying generation sources and prospectively modernizing grid infrastructure, given the growing need for flexibility, resulting from the diversification of non-programmable generation sources-along with the integration of digital infrastructure into the grids, which is also likely to play a significant role in improving the grids management.

New directions for growth: storage and biomethane.

In this general framework, alongside major operations in the electricity and methane and LNG sectors, the attention of investors has therefore gradually turned to the electrochemical storage market (storage, BESS) and the development and/or conversion of projects dedicated to the production of biomethane from organic waste and agricultural wastes/by-products, the latter supported of the MASE Decree September 15, 2022, which has been able to benefit from the European resources made available by the National Recovery and Resilience Plan, while the approaching of the related terms of entry into operation is reducing the prospects of return on investment and therefore the valorizations.

In the first case, an element supporting investment was the favorable regulatory framework that introduced the new mechanism "MACSE" (Mechanism for the Supply of Electric Storage Capacity) to regulate the supply of storage capacity by Terna whose first auction will be held on September 30, 2025, but sources of cash flow could also be constituted by off take contracts, tolling agreements as well as Capacity Market also combined with each other as well as with a merchant approach thanks to the expected spread of optimization agrements. 

At the same time, in 2024 biomethane emerged as a strategic carrier thanks to the economic support offered by National Recovery and Resilience Plan, which provided about 1.7 billion euros to support renewable gas production, triggering investments on numerous industrial-scale projects, supported by incentive tariffs-the first two of which expire at the very end of 2024 in the first quarter priority access to the grid. 

Last June 7, the amount of resources was, moreover, increased thanks to the Commission's approval of the Italian request to proceed with the reallocation of 640 million euros from the measure originally dedicated to hydrogen in hard-to-abate industrial sectors toward the development of the biomethane market, with an expiration date of June 2026. This is a significant measure which may not, however, achieve its goals in view of the challenging deadline for the commissioning of the plants. 

When determining the cash flows of investments in biomethane production facilities, it should also be taken into account that Article 5-bis of DL Agricoltura introduced extension of the definition of self-consumed biomethane also to biomethane consumed, at a site other than the production site, by an end customer active in the so-called "hard to abate" sectors who has signed with the producer a special contract of purchase and sale of biomethane, i.e., a so-called  corporate BPA or CBPA, and that on May 16, 2025, the GSE published the new DM Biomethane application rules, which better detail the main terms and conditions of CBPAs, the main objective requirements to be met by the relevant biomethane plant from time to time, and the subjective requirements of the parties involved in signing a CBPA. These regulations have created the preconditions for a growing market that could result in a different valuation of assets in M&A transactions involving such assets.

The regulatory framework and additional tools to support renewable  energy 

The current regulatory framework, although complex, offers significant opportunities for industry players. Among the most relevant instruments are the FER X Transitional mechanism for incentivizing mature RES solar (wind, hydro and residual gas plants) and the expected definitive FER X, thus fostering the bankability of more projects hitherto based substantially only on poor access to FER 1 in addition to Long Term Trader PPAs and physical and virtual Long Term Corporate PPAs meeting specific requirements.

Regarding RES 2 - which aims to support the realization of 4.6 GW in total between 2024 and 2028 - just at the beginning of 2025 the operating rules were published disciplining the competitive procedures that will determine its allocation to vary between €100/MWh and €300/MWh depending on the technology and power and an obvious favorable regime for offshore wind with 3.8 GW. However, the great anticipation for the launch of tenders dedicated to off-shore wind is likely to persist pending an adequate number of projects that can participate in truly competitive auctions.

On the other hand, the Transitional FER X - whose approval decree dates back to last February - allocated 9.7 billion euros to a temporary mechanism designed to promote the construction of new plants whose notice will be published on July 14, 2025, as stated by GSE's head of regulatory affairs Davide Valenzano at a conference held at ADVANT Nctm's Milan office. This pending the definitive FER-X mechanism that is expected to be approved by the fall of 2025 and encourage the construction of additional plants for the period 2026 - 2029.

Equally focused on the mechanism of Contracts for Difference (CfDs) is the so-called Energy Release 2.0 mechanism, introduced by Decree Law No. 11 of December 9, 2023, as subsequently amended, for which we remain awaiting the definition of the rules at the outcome of the pending discussions between MASE and the European Commission 

Moreover, the aforementioned measures are part of a general regulatory framework reorganized by the Consolidated Text on Renewables, also adopted last year-which, on the input of European legislation, finally brought procedural simplifications and rationalization in the field of authorizations, simplifying processes and clarifying interpretative uncertainties, and for which further developments are awaited that will be included in the corrective decree expected by the end of the year.

Compared to forecasts, Italy will continue to be an attractive market for traditional and infrastructure fund investments due in part to the bankability of projects supported by incentive schemes and the significant number of route-to-markers made available by the MASE.

This attractiveness will also affect sectors serving new installations such as EPC Contractors and O&M Operators in addition to ESCOs and operators generically active in energy efficiency, but market fragmentation appears to be an obstacle.

Risks related to virtual grid saturation 

Given the early stage status of many RES plant development initiatives for which the capacity of grid has been booked (and the related project not yet validated), it is likely that many of these projects will never be implemented. 

In this context, in recent months the MASE and Terna have initiated the preparation of strategies to avert potential risks of virtual grid congestion related to the considerable amount of connection requests related to these embryonic projects. 

By the end of the year, therefore, an almost revolutionized grid connection regulatory framework compared to the current one is expected to be approved, which could have a major impact on current and future investments in the renewables sector.

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Among these, data centres represent the focus of the new pressure on the grid. According to industry estimates, by 2030, Lombardyalone – and in particular the Milan metropolitan area – could absorb several gigawatts of additional power to power cloud computing, artificial intelligence and advanced digital services. Such concentrated increases in demand risk exceeding the available withdrawal capacity in primary substations and high-voltage backbones.

Data centres, which are central to cloud computing, artificial intelligence, financial services and telecommunications, are multiplying in the Milan metropolitan area, attracted by the quality of the infrastructure, connectivity and proximity to major ICT operators. But this development comes at a significant energy cost.

The phenomenon is already emerging in assessments by Terna and local distribution companies, which are detecting bottlenecks and connection requests that exceed installed technical capacity. Unlike traditional power plants or industrial facilities of the past, data centres require constant, stable and high-intensity power, often with demands in the order of hundreds of megawatts per site.

At the same time, electricity demand will be amplified by the decarbonisation of consumption, with the electrification of sectors such as transport, heating and industrial processes. The result is a scenario in which the grid will not only have to accommodate more and more distributed renewable sources, but also distribute energy in a widespread and reliable manner to new demand centres, often located in areas already densely populated with loads.

This scenario makes urgent infrastructure investment, the upgrading of transmission and distribution networks, the adoption of digital solutions for the intelligent management of energy flows and planning consistent with urban and industrial development plans. The balance between electricity supply and demand is no longer just a question of production, but increasingly of the absorption capacity and resilience of the grid.

According to current information, in this context, Terna has considered a mechanism similar to the so-called “Open Season” mechanism, intended for feed-in requests, also for withdrawal requests from new data centres. In particular, during the Open Season period, potential withdrawal users will have to express their interest and commitment to use future capacity. This would not, therefore, be a real auction, but priority would be given to those who first obtain authorisation.

* This article is the second in a series of articles published on virtual network saturation. The first can be found at this address.

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This move is part of a strategic plan to strengthen the Labour department, which started a few months ago with the arrival of lawyer Patrizio Bernardo and his team. 

The new group will be based in Rome, ensuring better coverage of the area and an increasingly structured service that is closer to local clients.

ADVANT Nctm welcomes Enrico Boursier Niutta, Partner, and a team composed of Carlo Boursier Niutta (Of Counsel), an authoritative figure in the field, and Patrizio Maria Raimondi (Of Counsel), Antonio Armentano (Counsel), Paolo Angeli, Antonio La Bella and Mattia Grupposo (Advisors), Rosalina Panetta (Senior Associate) and Giulia Clementi (Associate), as well as two staff members.

As a result of the addition of Studio Boursier Niutta & Partners, ADVANT Nctm's Labour Department strengthens its position among the leading players in the sector, achieving a size and level of expertise among the most significant in the market, with 37 professionals. 

Enrico Boursier Niutta has significant experience in assisting domestic and international clients in the field of labour and trade union law and provides advice and assistance to companies in all areas of labour law, with particular focus on the following matters: corporate restructuring, incentive plans for executives, MBOs and fringe benefits, individual and collective dismissals, transfers of businesses, industrial relations and agency agreements.

Paolo Montironi, Senior Partner at ADVANT Nctm, comments: “We are thrilled to have reached this important deal with Enrico, Carlo, and their team. ADVANT Nctm keeps proving itself as an attractive place for boutique firms and well-known professionals, thanks to the quality of its organisation and a modern and transparent partnership model that values their skills while keeping their identity, offering at the same time the perfect space for growing business projects and professional relationships, as demonstrated by the recent additions of Studio Berlingieri (shipping, 2023) and Studio Zitiello (regulatory, 2024)”.

The total number of ADVANT Nctm partners now rises to 84.

We discussed this mechanism and its implications for the national electricity system at a conference organized by ADVANT Nctm's Energy & Infrastructure Department at its Milan headquarters on June 18, 2025 - attended by Mr .Federico Boschi head of the Energy Department of MASE and Mr. Davide Valenzano, head of regulatory affairs at GSE, as well as Tommaso Barbetti of Elemens - dedicated to the new Market Design and Route To Market alternatives available to producers from RES.

1. Nature and legal structure of the ERF Z

FER Z differs from previous models (such as FER X) in its decentralized architecture. Whereas in the FER X system there is a "pay-as-produced" approach between the state and the producer, FER Z introduces a contractual disintermediation between production asset and incentive, enhancing the role of aggregators, such as traders and utilities.

These entities will enter into a Contract for Difference (CfD) with the Gestore dei Servizi Energetici (GSE) based on predefined energy delivery profiles (e.g., baseload or peakload), and at the same time will have to procure energy from a heterogeneous portfolio of facilities, at least 70/80% of which will be from newly developed RES (solar, wind, hydro, and storage) to meet these obligations.

In turn, aggregators will have to stipulate: 

1. Virtual PPAs (CfDs) with the various producers that make up the aforementioned portfolio and who are now entities that would participate directly in FER X;

2. Storage availability purchase contracts or MACSE time-shifting contracts,

in order to compose and fulfill the profile promised in favor of the GSE.

Ultimately, it is a virtual baseload or peakload corporate PPA where the GSE has the role of the offtaking corporate.

2. Legal profiles and critical regulatory issues

FER Z involves greater contractual complexities and operational risk, as it requires the aggregator not only to ensure continuity of supply according to hourly profiles, but also to actively manage the production portfolio and the economic balance between CfD and market purchases.

From a legal point of view, this is a hybrid incentive system that incorporates elements typical of Corporate PPAs and Terna's capacity market. The incentive is no longer linked to mere production, but to compliance with a theoretical production profile, which will have to be guaranteed over a defined time horizon (likely annual).

As stated by Dr. Boschi, the European Commission has, for the time being, expressed reservations about the technological efficiency and compatibility of FER Z with the EU State Aid Guidelines, as well as the effectiveness of the mechanism in relation to the planned maintenance aspects of the facilities, an issue that is also relevant to FER X.

3. Market implications and regulatory perspectives

From an energy law perspective, FER Z represents a step toward greater competitive integration of renewables in energy markets. It is expected that this scheme can contribute about 5 GW of baseload, with an estimated required installed capacity of up to 20 GW.

In operational terms, a public consultation (which has not yet started) is planned and the first auctions will start no earlier than 2026, with a potential duration until 2029. The system will be modulated on the basis of complementarity with other instruments (FER X and PPAs) to avoid overlap or distortions, with the understanding that the various mechanisms/instruments will have to coexist

The term "BPA" (biomethane purchase agreement) refers to the category of long-term contracts having as their object the supply of a certain volume of biomethane produced by a generation plant - under development and, therefore, to be realized, or already realized - to a purchasing party. The purchaser may be, alternatively, a "trader" or a final customer, as of the effective date of Law No. 101/2024, which converted Decree-Law No. 64/2024 ("DL Agricoltura"). In particular, Article 5-bis of DL Agricoltura provides for the extension of the definition of self-consumed biomethane also to biomethane consumed, at a site other than that of production, by an end customer active in the so-called "hard to abate" sectors who has signed with the producer a special contract for the purchase and sale of biomethane, i.e., a so-called corporate BPA or CBPA. 

On May 16, 2025, the GSE published the new application rules ("Application Rules") under Article 12 of the MASE Decree of September 15, 2022 ("Biomethane DM"), which better details the main terms and conditions of CBPAs, the main objective requirements to be met by the relevant biomethane plant from time to time and the subjective requirements of the parties involved in signing a CBPA.

2. Characteristics of the Plant

With reference to the requirements for the facilities underlying a CBPA:

• the plant must produce biomethane from the anaerobic digestion of biomass from the performance of agricultural, forestry, livestock, food and agro-industrial activities, i.e., it must be a so-called agricultural plant;

• the plant shall be eligible for the incentive tariff under the Biomethane DM.

3. End-customer characteristics

With reference, on the other hand, to the subjective requirements relating to the parties to a CBPA, in the case where the plant underlying the CBPA is connected to a public network, the Application Rules have specified that the end customer must be primarily active in a sector identified as "Hard to Abate," which includes (by way of example) cement factories, steel mills, paper mills, glass mills, steel and chemical companies. In contrast, this subjective requirement is not required with reference to the case where the facility covered by the CBPA is connected to a closed network.

4. Features of the Biomethane Purchase and Sale Agreement

The biomethane purchase and sale agreement referred to in Article 5-bis of the DL Agricoltura may be signed either before or after the commissioning of the biomethane plant relevant from time to time and must be transmitted to the GSE. Moreover, said type of agreement will necessarily have to comply with minimum requirements and contents detailed in the Application Rules and listed below.

First, the CBPA should cover the entire volume of biomethane produced by the relevant plant from time to time and its guarantees of origin.

Second, the duration should be at least one year.

Finally, the CBPA will need to include additional of provisions to ensure that the producer is subject to the instructions of the final self-consumer customer.

5. Concluding remarks

In light of the above, the Application Rules make it possible to complete the panorama of regulatory and normative sources necessary for the negotiability of corporate biomethane purchase agreements, which could take on a fundamental and growing importance within the contractual landscape of the Italian energy market given both the spread of an increasing number of plants generating biomethane from the purification of biogas from anaerobic fermentation of agricultural biomass and the relevance that agreements of this type can have for end customers with particular reference to internal sustainability and decarbonization objectives as well as the fulfillment of obligations under the European ETS (Emission Trading Scheme).

Her arrival represents a further step in ADVANT Nctm’s growth in the area of corporate criminal law, also following the recent hiring of Luigi Orsi and Alice Baccin, which completes the structure of the current team, integrating synergistically with the firm’s existing expertise in compliance, thanks to the work of lawyers Paolo Gallarati, Raffaele Caldarone and Luca Cavagnaro. At the same time, a department specialising in White Collar Crime, Investigations & Compliance will be established, which will be coordinated by Raffaella.

This move strengthens the firm’s ability to provide clients with a fully integrated and strategic service in connection with the full spectrum of compliance activities and support in managing criminal risks related to their activities. 

With extensive professional experience in corporate criminal law, Raffaella Quintana is top-ranked in leading international directories and deals with white-collar crime issues of all varieties, with a particular focus on cases concerning crimes against the Public Administration, tax crimes, corporate and bankruptcy related criminal offences, as well as environmental and health & safety criminal matters, privileged internal investigations and quasi-criminal corporate liability pursuant to Legislative Decree 231/2001. 

Raffaella Quintana joins the ADVANT Nctm’s Rome office with a team that includes Francesco Lalli and Federico Lucariello (Managing Associates), Ornella Belfiori and Francesca Cannata (Senior Associates) and three Trainees (Matteo Nicolì, Paolo Vespa and Jacopo Nicolaj).

“We are delighted to welcome Raffaella and her team, and we are confident that this collaboration will enable the firm to strengthen and expand its offering, providing clients with increasingly comprehensive and solid legal assistance focused on complex transactions”, commented Paolo Montironi, Senior Partner at ADVANT Nctm. “In an increasingly complex regulatory environment, strengthening our criminal law practice will indeed enable us to better protect our clients, increase our competitiveness and offer high-level multidisciplinary solutions.” 

The regions with the highest number of applications are those in central and southern Italy, particularly Puglia, Sicily, Sardinia, Basilicata, and Lazio.

We are well beyond the decarbonization targets set by the PNIEC, according to which Italy is required to install “just” 65 GW of new renewable capacity by 2030, which is only one-fifth of the capacity currently reserved on the grid.

However, a significant percentage of connection applications are still in an embryonic or almost embryonic stage. In fact:

• for 59.47 GW, the relevant STMGs are still to be accepted;

• for 153.07 GW, the STMGs have been accepted (but the network works project is not yet under evaluation);

• for 72.63 GW, the network works projects are still being evaluated by the operator;

• for 57.96 GW, the relevant projects have received clearance (i.e., they have been “validated” or “approved”);

• for 8.11 GW, the STMD has been issued.

If the addends are changed and only projects that have been approved and for which the STMD has been issued are taken into account, the above figure falls to 66.07 GW, in line with the PNIEC targets but well below the capacity currently reserved.

Given their early stage, it is likely that many of the initiatives for which network capacity has been reserved (and the related project has not yet been validated) will not be successful; as a result, there is a potential oversizing of network infrastructure.

In this context, in recent months, MASE and Terna have been working to develop strategies to avert potential risks of virtual grid congestion linked to the considerable number of connection requests related to these embryonic projects.

In order:

• on March 14, Terna published its 2025 network development plan, dedicating a specific chapter to efficient territorial planning and connection measures;

• as part of the conversion into law of the so-called Bollette Decree, which took place on April 24, MASE presented an amendment (later withdrawn) aimed at making significant changes to the rules governing connection procedures through the introduction of new methods for reserving network capacity and specific priority criteria;

• on April 28, a rapid consultation process was launched for trade associations on the new rules proposed by MASE;

• at the beginning of this month, the Minister stated that the regulations in question – which should have the same features as those (almost) introduced by the DL Bollette – will soon be regulated by an amendment or an ad hoc decree (based on recent statements by the Director General for Energy Markets and Infrastructure of the MASE, this measure should enter into force by the end of 2025).

Well, from a joint analysis of the above documentation and the information available to date, it would appear – except for offshore plants, which should be excluded from the objective scope of application of the regulation – that the regulatory framework governing connection to the RTN has been almost completely revolutionized compared to the current one. 

The main features of this new framework that are relevant for current and future investments in the renewable energy sector are summarized here below.

• Microzones

For defining connection solutions, there will be a transition from the current “individual case” management system to a system based on the design of “comprehensive” solutions.

In this context, the concept of “micro-zone” is being introduced, i.e., a sub-regional (and therefore sub-zonal) portion of the RTN, which, according to an initial mapping carried out by Terna, sees the emergence of 76 different micro-zones.

The new connection process therefore involves an analysis: (i) inter-microzone, assessing the capacity that can be accommodated in each microzone, taking into account the exchange constraints between micro.zones and the degree of congestion in that particular micro-zone; and (ii) intra-microzone, designing an overall connection solution for each microzone that can accommodate the capacity estimated on the basis of the inter-microzone analysis.

The data relating to each micro-zone will be available to operators via the TE.R.R.A. telematic portal managed by Terna and subject to quarterly updates depending on the progress of the projects that have been allocated network capacity.

The portal will therefore provide a snapshot of the maximum additional capacity from renewable sources and storage – apart from offshore plants – that can be allocated in each microzone.

• Capacity allocation procedures

Based on the previous amendment, which was subsequently withdrawn:

• the allocation of available network capacity and the related connection solutions should be issued through transparent and non-discriminatory procedures to be established by ARERA within 180 days of the entry into force of the new regulations;

• for operators who, following competitive procedures, have been allocated network capacity and have already obtained the relevant permitting titles (PAS or Single Authorization), the relevant network capacity should be allocated on a definitive basis.

The current method of analyzing connection requests involves a sequential criterion for allocating connection solutions with one-to-one assessments conducted with operators for each request.

On the contrary, with the new provisions being introduced, it would appear that the operator will carry out an upstream assessment, defining an overall solution applicable to the relevant microzone, and will proceed with the allocation of network capacity not through individual procedures initiated at the request of the operators concerned, but through actual public procedures (which, in line with the obligation to connect third parties to the RTN, at least in theory, should not be “competitive”).

A significant advantage will be reserved for projects that have obtained authorization, for which the relevant capacity will be allocated definitively.

• Projects in progress and STMGs already issued

As mentioned above, the principles, functional criteria, and operating procedures for allocating network capacity through the above-mentioned transparent procedures should be detailed by ARERA in an ad hoc measure to be issued within 180 days from the entry into force of the new legislative framework.

In this regard, one of the most significant changes, especially for initiatives that have already been launched or are in the start-up phase, is the provision whereby, as of the date of publication of the measure adopted by ARERA, connection solutions relating to renewable projects or storage facilities that are not authorized and are already issued but not validated by the network operator, will cease to be effective.

In a nutshell, looking at the current situation, if this rule were already in force and the ARERA measure already adopted, the procedures relating to approximately 202 GW of power would be null and void, forcing operators to take part in the above-mentioned transparent procedures to reserve the capacity necessary to carry out their development initiatives. 

The innovations that MASE is about to introduce are clearly of considerable importance for current and future renewable project development initiatives.

In fact, if the provisions previously included and then withdrawn from the Bollette Decree were to be confirmed in their entirety:

• it will become even more crucial to speed up and streamline the authorization procedures related to the development of renewables, given that, in essence, the projects that obtain the authorization title more quickly will be those that will be the first to obtain definitive network capacity, to the detriment of projects that are slow to get off the ground, which will see an increased risk of losing the capacity allocated in the context of the procedure launched by Terna in the event of definitive saturation of the relevant micro-zone;

• it is likely that, in the coming months, there will be a real rush for approval for initiatives at a more advanced stage in order to try to prevent the risk of forfeiture of the STMG obtained;

• it is equally likely that, if the absence of any safeguard clause for projects for which the STMG has already been accepted or the related network works project is currently being evaluated by the operator is confirmed, there will be multiple disputes by the operators concerned due to the sudden loss of their acquired right to the previously reserved network capacity. In this regard, it should be noted that the possible termination of the STMG should not be immediately consequent upon the entry into force of the regulation. It will be necessary to wait for the subsequent ARERA regulation (assuming that the regulation enters into force by the end of June, the subsequent ARERA regulation should be available by December 2025 – i.e., within 180 days).

It should be noted that these are merely preliminary considerations. In fact, to have a clear, complete, and comprehensive picture of the future new regulations, it will be necessary to wait for the entry into force of the legislation and the subsequent implementing measures of ARERA.

The practical implications of the new legislation will also need to be observed to assess whether it is actually suitable for ensuring efficient planning of the RTN infrastructure while protecting market players by preventing and not creating new bottlenecks.

[1] Data taken from Terna's econnextion platform.

These appointments are part of the firm's internal growth strategy, aimed at enhancing its talents and building solid career paths. They represent a further step in strengthening ADVANT Nctm's competitiveness and professionalism.

Giuseppe Buono has extensive experience in banking and finance law and capital markets, with a particular focus on leveraged finance, real estate finance, project and corporate finance, as well as debt capital markets. He regularly assists banks, funds, and companies in both domestic and cross-border financing operations, overseeing their structuring and documentation. He has also managed numerous basket bond transactions in the Italian market.

Andrea Iovieno is an expert in corporate and capital markets law, with a focus on both equity and debt capital markets. He advises issuers, banks, and financial intermediaries on IPOs, capital increases, extraordinary transactions, and the issuance of debt instruments. He also provides legal assistance in public M&A transactions, as well as in matters concerning corporate governance and regulatory compliance.

Filippo Ughi has solid experience in corporate finance, M&A, private equity, and corporate law. He advises Italian and international industrial companies and investment funds in M&A, private equity, and corporate finance transactions, also offering ongoing corporate consultancy, from bylaws and governance to the operation of corporate bodies.

In this Decision, the IDPA reiterated that metadata generated by email management systems and Internet browsing logs are personal data and that their generalized collection, as it enables remote monitoring of work activity, requires the employer, under certain circumstances, to follow the procedures set out in Article 4(1) of the Workers’ Statute.

The IDPA’s Position Paper dated June 6, 2024, had already established this position, specifying that metadata generated by employee email systems may be retained only for limited periods, generally not exceeding 21 days. If retention exceeds 21 days, it is necessary—according to the IDPA—to follow the procedures under Article 4(1) of the Workers’ Statute. This is unless the data controller can concretely demonstrate specific technical or organizational reasons (e.g., related to the cybersecurity of the email service) that justify the extension of the retention period beyond 21 days.

Such reasons were not found in this case.

The Region, moreover, through three external providers, was able to combine IP addresses, MAC addresses, and employee identities, thus having full access to information that enabled potential profiling and individual monitoring of employees. The IDPA considered such processing disproportionate and excessive relative to the principles of data minimization and storage limitation. It therefore mandated, among other things, the anonymization of attempts to access blacklisted websites, the reduction of Internet browsing log retention from 365 to 90 days (with retention beyond this limit allowed only after anonymization), restricted access to data to expressly authorized personnel, and encryption of data enabling the association between device and employee.

The IDPA also clarified that, considering the fact that processing metadata from employee email systems potentially involves “high risks” to the rights and freedoms of the individuals concerned (since it entails systematic monitoring of employees—deemed vulnerable due to their subordinate employment status), conducting a DPIA is mandatory, and failure to do so constitutes a violation of Article 35 of the GDPR.

The IDPA’s stance is thus clear: metadata should not be retained for more than 21 days, and doing so without following the procedures under Article 4(1) of the Workers’ Statute is only legitimate in the presence of proven technical reasons related to the functioning and cybersecurity of the service (which cannot be based on generic IT security concerns of the employer’s networks and systems). Where such reasons are lacking, it is necessary, depending on the case, to reach an agreement with union representatives or obtain authorization from the competent Labor Inspectorate. In all cases, a DPIA and a Legitimate Interest Assessment (LIA) must be conducted and documented, relevant information notices on the processing of personal data and internal policies and procedures updated, and appropriate technical and organizational measures adopted to ensure an adequate level of personal data protection.

If you need assistance and support in complying with the obligations related to the collection and retention of metadata generated by corporate email systems, contact your trusted professionals.

The recent launch of the International Organization for Mediation (IOMed) in Hong Kong has led to greater media attention on mediation for disputes involving China. At the same time, mediation has received significant attention by the legislators, judiciary and government agencies in China as a viable way to resolve also civil and commercial disputes.

China's judiciary has experienced unprecedented growth in caseloads, reflecting heightened public trust in legal institutions and expanded access to justice. From 2019 to 2024, courts witnessed a 67% increase in accepted cases—from 28.7 million to 48 million—signaling both progress and systemic pressure. This surge intersects with the statutory six-month adjudication deadline for domestic cases, creating the current operational challenges in the judicial system that litigants have to face. One of the ways in which the Chinese government is trying to resolve this impasse is by promoting mediation.

Mediation is essentially assisted settlement negotiations. More specifically, it is a voluntary and confidential non-litigation dispute resolution mechanism, in which two or more parties to a dispute attempt to reach an settlement with the assistance of a neutral and impartial third party, known as the mediator. The mediator does not have the authority to impose a binding decision on the parties but facilitates communication, promotes understanding, normally by focusing on the parties’ interests rather than on the legal details, and helps the parties identify mutually acceptable solutions.

Mediation is recognized under international legal frameworks, such as the UNCITRAL Model Law on International Commercial Mediation and the Singapore Convention on Mediation, as a flexible, party-centered method of dispute resolution. In China, it is used in both domestic and international disputes across commercial, civil, and other legal contexts.

1. China Mediation History

From a historical perspective, and without delving into imperial past, contemporary China has a long tradition of commercial mediation. 

• In 1987, the China Council for the Promotion of International Trade (CCPIT) Mediation Center was established, marking the beginning of specialized foreign-related mediation. 

• After China joined the WTO in the 21st century, institutions like the Shanghai Economic and Trade Commercial Mediation Center (SCMC) emerged, shifting commercial mediation from being mainly handled by business associations to a more diversified model, including centers like the “Belt and Road” International Commercial Mediation Center.

• Following the signing of the Singapore Mediation Convention in 2019, the judicial confirmation system enhanced the enforceability of mediation agreements, aligning cross-border mediation mechanisms with international standards. 

• In 2020, the Supreme People's Court launched a "one-stop" platform for international commercial dispute resolution. With the integration of online litigation-mediation connections, commercial mediation case volumes grew by over 30%.

   

2. The Current Legal Framework

2.1 Supportive Legislation 

The PRC foundational legal framework for mediation can be summarized as set out below.

The last piece of legislation is particularly significant, as it enables parties involved in institutional mediations in the PRC to apply for judicial confirmation of their settlement agreement. Judicial confirmation allows the court to formally endorse the agreement, thereby granting it the same legal force and enforceability as a court judgment. Naturally, this mechanism has its limitations: courts may decline confirmation if the settlement contains provisions that are overly complex or difficult to enforce. Nonetheless, it offers a valuable tool for reducing time and costs in cases where one party fails to comply with the terms of the agreement.

In addition, China is one of the signatories of of the Singapore Convention on Mediation which provides that certain international commercia settlement agreements resulting from mediation may be directly enforceable in member countries.

2.2 Recent Policies

China has recently introduced a range of policies to support and promote the development of mediation. For instance, the 2024 Legislative Work Plan of the State Council lists the Regulations on Commercial Mediation as a key legislative project. Central policy documents, such as the Decision on Further Deepening Reform Comprehensively to Promote Chinese-Style Modernization, call for the improvement of international commercial arbitration and mediation systems.

The Supreme People’s Court and the Ministry of Justice have also issued opinions on further strengthening institutional mediation under the new circumstances. These aim to expand the scope and coverage of mediation, enhance the coordination and integration between mediation and litigation procedures, promote innovation and efficiency in mediation mechanisms, and advance the legalization of mediation.

Institutions such as the CCPIT Mediation Center the Shanghai Commercial Mediation Center and the more recent Shanghai International Commercial Mediation Center have also received strong support and development. 

On 21 November 2024, the local legislature of Zhuhai, Guangdong Province (the Standing Committee of the Zhuhai Municipal People’s Congress) adopted the “Commercial Mediation Regulation of the Guangdong-Macao In-Depth Cooperation Zone in Hengqin” which came into effect on 1 January 2025.

3. Characteristics and Function of Mediation 

Mediation conducted within a legal framework—particularly in the commercial context—offers distinct advantages that make it an increasingly attractive method of dispute resolution.

First, mediation is voluntary. Unlike litigation, no resolution is imposed; a settlement is reached only if both parties agree, preserving autonomy and fostering cooperative solutions.

Second, mediation is confidential. Proceedings are not open to the public, documents remain confidential, and mediators are bound by duties of confidentiality. It is important to note, however, that while the information and documents exchanged in mediation are confidential, they are not privileged—meaning that parties may still rely on them in any subsequent litigation.

Third, mediation is both cost-effective and flexible. It typically allows for faster resolution than litigation, conserving time and resources—an essential feature in commercial disputes that often require prompt outcomes. While litigation may involve complex procedures and unpredictable outcomes, commercial mediation offers a streamlined process, usually concluding within 30 days.

Mediation is particularly well-suited to cases where both parties are acting in good faith—when each genuinely believes they are in the right, or when both wish to resolve the dispute amicably and preserve an ongoing business relationship. It is also especially valuable in disputes involving complex issues, where a negotiated solution may be more appropriate than a rigid legal judgment, and where the amount at stake may not justify the high costs of protracted litigation.

Most significantly, mediation agreements that receive judicial confirmation carry the same legal force as court judgments. This ensures not only the authority but also the enforceability of the settlement, providing parties with both certainty and finality.

In sum, when supported by a robust legal framework, commercial mediation stands as a powerful alternative to litigation—offering efficiency, confidentiality, and enforceability, particularly in cases where mutual understanding, complexity, or cost considerations make traditional proceedings less appropriate.

In the proceedings concluded with judgments no. 324 and 325/2025, the situations were symmetrical. An application had been submitted for the issuance of the Single Regional Authorization Measure under Article 27-bis of Legislative Decree no. 152/2006 for the construction of a photovoltaic plant and related works to connect it to the national electricity grid. The Administration responded only three years later, requesting supplementary documentation. Although the applicant complied with the request, the Administration remained inactive, thereby failing to meet the 230-day deadline for concluding the procedure.

In the case decided by judgment no. 326/2025, an application had been filed for the issuance of a Single Authorization for the construction and operation of a photovoltaic plant, to which the Region responded only two years later with a request for supplementary documentation. Here too, the Administration remained inactive, violating the 90-day deadline for concluding the procedure.

Article 31, paragraph 2 of the Administrative Procedure Code (Codice del Processo Amministrativo – c.p.a.) states that an action against administrative silence “may be brought as long as the failure to act persists and, in any case, no later than one year from the deadline for concluding the procedure.”

In all three cases, this forfeiture period had long expired, but the TAR of Basilicata nonetheless upheld all the appeals. This was because it considered that the Administration’s request for supplementary documentation constitutes an event that interrupts the time limit, whereas the request for suspension under Article 27-bis, paragraph 5, second sentence, of Legislative Decree no. 152/2006 — made by the private party and granted by the Administration — is irrelevant.

Therefore, since the remaining procedural deadline for convening the Conference of Services began to run from the date on which the applicant responded to the request for supplementary documentation, the TAR, in all three judgments, ordered the Region of Basilicata to convene the Conference of Services and conclude the procedure.

Specifically, various stakeholders involved in such configurations may benefit from:

• Incentives in the form of a feed-in tariff on the shared portion of energy, up to a maximum capacity of 5 GW;

• under certain conditions (especially for CERs developed in municipalities with populations under 5,000), non-repayable grants under the National Recovery and Resilience Plan (“PNRR”), covering up to 40% of investment costs, with €2.2 billion allocated and a target of 1.73 GW of installed capacity.

As of today, applications under the PNRR only total 420 MW of capacity (averaging 90 kW per CER), of which less than half (43%) approved.

With about five months remaining before the final application deadline (November 30^th, 2025), the goal of 1.73 GW set at the end of 2023 still seems distant, approximately 1.3 GW is still missing.

Unfortunately, the situation is no brighter regarding feed-in tariffs. Applications submitted for this mechanism total around 130 MW (averaging 120 kW per CER). Although the deadline for this incentive is extended until December 31^st, 2027, the estimated quota still appears far from being reached, with a shortfall of roughly 4.9 GW.

This scenario seems to stem, on one hand, from overly ambitious political targets and, on the other, from well-known bureaucratic and operational hurdles that complicate the establishment and management of CERs, significantly hindering their spread.

In this context, following recent public statements by Minister Pichetto Fratin, the legislator and the Ministry of Environment and Energy Security (MASE) have recently sought to give a fresh push to energy communities by making significant changes to the regulatory framework.

These changes concern two key areas:

• Expanded eligibility for CER participation, introduced via Decree-Law No. 19 of March 29, 2025, converted into Law No. 60 of April 24, 2025 (also known as the “DL Bollette”).

• Updated access rules for PNRR non-repayable grants, under a new ministerial decree currently awaiting approval from the Court of Auditors.

DL Bollette: Key Changes

To broaden access to CERs, DL Bollette significantly expanded the types of entities allowed to establish or join a CER. In addition to individuals, SMEs, local authorities, religious and third-sector organizations, the following are now also eligible:

• Public service agencies (ASP);

• Land reclamation consortia;

• Public housing authorities;

• Recognized environmental associations.

The law also appears to reflect GSE’s clarifications regarding “national CERs.” Specifically, the phrase “located in the same municipalities as the plants” has been removed from Article 31(1)(b) of Legislative Decree 199/2021. This suggests that CER members may now reside in different municipalities from those hosting the energy installations.

However, entities holding “control powers” (i.e., powers that guide the CER and ensure its statutory purpose) must still be located where the plants are situated.

The amendment seems aimed at accommodating a shift toward multi-configuration models, enabling greater flexibility in member selection (no longer restricted to municipal boundaries) and governance structures (e.g., control committees representing local interests).

Nonetheless, it’s too early to draw final conclusions. Further clarification from ARERA, MASE, and GSE is needed, along with analysis of the regulation’s practical implications.

The MASE Decree: New PNRR Grant Rules

To help meet 2023 targets, on May 16th, MASE issued a decree that revises how incentives and grants for CERs are accessed.

Key updates include:

• Expanded eligibility to CERs in municipalities up to 50,000 residents (previously limited to under 5,000), vastly broadening potential applicants. Approximately 7,750 Italian municipalities fall under the new threshold versus about 5,500 under the old one.

• Advance payments: Up to 30% of the PNRR grant may now be requested in advance (previously capped at 10%).

• Incentive compatibility: When combining capital grants with feed-in tariffs, individuals in CERs no longer face reduced tariff rates (previously halved if the grant covered 40% of investment costs).

• Extended timelines: While the installation must begin by June 30, 2026, projects may become operational as late as December 31, 2027. This aims to accommodate delays related to grid works and connection processes.

These changes have significant implications for business plans and project financing (if any) especially for third-party producers. Beneficiaries can now receive more upfront funding, retain higher tariff revenues, and manage timelines with more confidence.

Final implementation depends on publication in the Official Gazette following review by the Court of Auditors.

Remaining Challenges

Despite new opportunities, several concerns remain. Applications for PNRR funding must be submitted by November 30, 2025, and projects must already have accepted grid connection quotes and all necessary permits.

Even after recent streamlining under the Consolidated Renewable Energy Act, these steps remain time-consuming and clash with the tight PNRR deadlines.

Assuming the decree takes effect in early June, market players will have just six months to conduct feasibility studies, assess financial viability, and complete bureaucratic procedures with grid operators and public administrations, not to mention forming CERs or negotiating contracts with third-party producers.

For existing CERs, the inclusion of new eligible participants, especially public entities, raises legal and operational questions, such as whether existing statutes must be amended to reflect changes in objectives, participation criteria, or decision-making processes. All this while preserving the local dimension emphasized by both EU and national regulations.

This scenario highlights the urgent need for a fundamental shift in how CER regulations are designed, no longer as barriers to investment, but as enablers, allowing small producers and consumers to actively contribute to decarbonization.

While recent developments are promising and point in the right direction, a comprehensive review of the current legislative and regulatory framework shows that the expansion and consolidation of collective self-consumption in Italy’s energy landscape is still progressing far too slowly.

In the case at hand, the Municipality of Nardò merely stated that the project was incompatible with the General Urban Development Plan (PRG) and the Regional Landscape Territorial Plan (PPTR), and thus the relevant areas could not be classified as suitable under Article 20, paragraph 8, letter a) of Legislative Decree 199/2021 (i.e., sites where plants of the same energy source are already installed and where modifications are carried out— including substantial ones—for refurbishment, enhancement, or complete reconstruction, without increasing the occupied area by more than 20 percent).

The Court found that the administration had based its conclusions on a partial (and incorrect) interpretation of the regulatory framework concerning suitable areas.

Specifically, while the Municipality focused on the suitable area referred to in Article 20, paragraph 8, letter a), it failed to acknowledge that the project also involved areas covered by Article 20, paragraph 8, letter c-ter), no. 2—areas also deemed suitable for the installation of renewable energy plants and explicitly mentioned by the applicant during the authorization process.

These areas, in particular, include those within industrial facilities and plants, as well as agricultural areas located within a perimeter whose points are no more than 500 meters from the same facility or plant.

As the Court emphasized, this led to a lack of proper investigation and reasoning in the Municipality’s decision-making process, since Article 20, paragraph 8, letter a) of Legislative Decree 199/2021 is not the only rule identifying ex lege suitable areas, and the administration failed to assess whether the project area could fall under other categories governed by the same legislative framework.

Additionally, the Court criticized the challenged decision insofar as it deemed the project incompatible with the PPTR provisions. It stressed that, in terms of justification, the administration must conduct a case-by-case assessment, taking into account the specific features of the location and the public interest, while keeping in mind the European regulations promoting renewable energy sources.

This ruling aligns with a growing body of case law according to which any reasons for denying authorization for renewable energy projects must be particularly stringent (see, among others, Council of State, Section VI, June 9, 2020, no. 3696, and Section II, May 2, 2025, no. 3701).

I. What Is the Legislative Work Plan? 

The PRC is a country in a state of journeying, aiming at an ultimate ideal which is identified with communism through a series of intermediate steps. From a legal point of view, the underlying mindset implies on one hand the CPC leadership as a constitutional principle, on the other hand a legislation work that by meeting annual objectives and systematically implementing successive five-year plans.

In this step-by-step journey mindset, the last intermediate, the CPC regards that the goal of “solving the problem of extreme poverty and creating a moderately prosperous society” has been achived in 2021. The current goal will be to achieve “basic socialist modernization” by 2035, i.e., in the space of two five-year plans.

The broader vision extends to the middle of the century, with the goal of “transforming China into a modern socialist country that is prosperous, democratic, culturally advanced, harmonious, and beautiful—ultimately contributing to the realization of national rejuvenation”, which in more immediately practical terms will probably mean:

• increasing per capita GDP, avoiding significant income imbalance
• broadening society’s participation in decision-making processes and creating a more rule-based, predictable environment
• promoting education, technology, talents, sports and fine arts
• promoting personal development, social equity fair income, and accessible public services
• ensuring environmental protection and sustainability
• raising the PRC’s profile in the international community.

II. What Are the Highlights of This Year’s Plan?

The 2025 legislative plan carries particular significance. As the final year of the 14th Five-Year Plan (2021–2025), it not only marks the conclusion of existing initiatives but also sets the stage for the next phase of national development. This year's legislative work shows not just the direction of 2025 but also hints at the country’s longer-term priorities.

In fact, based on the mid-term evaluation of the 14th Five-Year Plan and the 2035 long-range goals, initial directions for the 15th Five-Year Plan (2026-2030) are already taking shape. These include a continued emphasis on innovation-driven growth, green and low-carbon development, and the digital transformation of industries. Broader strategies aim to boost domestic consumption, unlock investment potential, and strengthen research in core technologies for strategic sectors. China is also expected to deepen support for enterprise innovation, enhance talent attraction, and further improve the overall business environment.

In line with these strategic objectives, the 2025 legislative plan has been structured to reflect and support national priorities. It is divided into six sections, with the second section—Drafting and Reviewing Legislation—serving as the core component. The laws listed in this section are closely tied to the major goals of the 14th Five-Year Plan. I summarize them as follows:

III. How Should We View This Year’s Plan?

First, the key focus remains economic development and high-quality growth. That is also the legislative priority.

After the Deng Xiaoping’s reforms, China’s rapid growth came from structural acceleration—more labour, more factories, and better use of resources. Labour participation rose, industrial technology spread, and capital moved from agriculture to manufacturing. In recent years, China has entered a phase of structural slowdown. Labor participation is falling. Returns on capital are declining. Innovation in manufacturing is hitting limits. Service industries and traditional sectors face increasing pressure to upgrade. As quantity reaches a ceiling, quality must take over.

China’s most pressing economic challenge probably lies in structural overcapacity—an excess of production capacity relative to domestic demand. This imbalance, I believe, underscores that selling to China is harder than buying from China. Should foreign enterprises nevertheless seek to enter this market, the critical question becomes: What unique value can they offer?

Examining China’s legislative priorities provides clarity. While certain themes—such as democratic governance, national unity, and security frameworks—lie beyond the immediate concerns of foreign investors, others align directly with evolving societal aspirations, with increase emphasis on quality of life, cultural enrichment, and environmental stewardship. In particular:

1. Healthcare and lifestyle: Demand persists for advanced medical technologies, precision diagnostic tools, and nutrient-rich functional foods tailored to wellness-conscious consumers.
2. Sustainability and outdoor living: China now promotes the idea that “green mountains and clear waters are mountains of gold and silver.” This shift favors European manufacturers of premium bicycles, electric off-road vehicles, and durable outdoor equipment. Urban development patterns reflect this ethos: vacant parcels are increasingly repurposed as green corridors, riverfront trails, and communal parks rather than residential complexes.
3. Cultural enrichment: Opportunities abound in touring theatrical productions, arts education partnerships, and cross-cultural performances. Shanghai Culture Square, adjacent to our offices, exemplifies this trend through its 2025 lineup featuring European productions like Molière, l'opéra urbain and Mozart.

To stand out in the Chinese market, a product must offer a clearly articulated advantage over domestic alternatives. Competing on price alone is difficult. Instead, emphasis should be placed on what sets your product apart—whether in quality, distinctiveness, or overall appeal.

IV. Conclusion 

In recent years, China has continued to move gradually forward with its policy of reform and opening-up, taking steps to enhance its legal and regulatory environment in ways that facilitate greater international engagement. While the country is steadily expanding its cooperation with foreign partners and easing access for international business and travel, it continues to maintain a distinction between purely domestic matters and those with a foreign or cross-border dimension. In Particular:

• The 2020 Foreign Investment Law abolished the legal distinction between foreign-invested companies and purely domestic companies.

• From 2021 to 2022, China amended many laws to deepen reform and opening-up. Examples include the Hainan Free Trade Port Law and the Customs Law. 

• In 2024 and 2025, foreign-related legislation is gaining momentum. The 2024 legislative plan emphasized improving foreign-related legal frameworks. New laws and amendments focused on customs, quarantine, anti-money laundering, and foreign-related provisions.

• In 2025, China has submitted to the NPC Standing Committee amendments to the Foreign Trade Law. It has also issued regulations on foreign-related intellectual property disputes, mediation guidelines, and new rules for using the national emblem abroad. Further revisions are expected to laws on immigration, customs, technology imports and exports, labour cooperation, and international shipping. Legislation on outbound investment is underway. China is also engaging in treaty review and international legal reform to promote peace and global development. 

• Additionally, China is implementing visa-free and visa facilitation policies: it has signed comprehensive visa exemption agreements with 26 countries, unilaterally offers 30-day visa-free entry to citizens of 43 countries including France, Germany, and Italy, and from 17 December 2024, China will introduce a new transit visa exemption policy for citizens of 54 countries. This policy extends the transit stay period to 240 hours (10 days) and adds 21 new ports for visa-free transit entry and exit.

Overall, China's ongoing legal reforms demonstrate a constructive openness toward international cooperation, particularly in areas such as trade, investment, intellectual property, and people-to-people exchanges. 

The ruling regards a request to annul a note from the Energy Department of the Sicilian Region which required the operator to submit, before the issuance of the authorization title, copies of duly registered and recorded (registrati e trascritti) definitive agreements to prove the legal availability of the lands involved by the relevant project.

The Court clarified that, in line with Art. 2, Par. 2 of the Regional Law no. 29/2015, it is sufficient to submit the relevant preliminary agreements (duly registered and recorded) to demonstrate the fulfillment of the land availability requirement.

The submission of the definitive agreements, on the contrary, may be postponed to the phase following the issuance of the authorization title.

As emphasized by the administrative judges, preliminary agreements — also considering Article 2932 of the Italian Civil Code, concerning specific performance of the obligation to conclude a contract — are, then, suitable for proving the availability of the relevant projects’ land.

This is clearly a highly significant ruling, particularly in light of its practical and financial implications for market operators which, in the last few months, had to endure with significant investment costs in the framework of the development of renewable projects, given the significant expenses associated with the execution of definitive agreements prior to the successful completion of the authorization process.

The next hearing for discussing the merits of the case has been scheduled on next September 24^th, 2025, even though, as underlined above, the Court position on the matter at the stake already appears quite clear.

Who is obliged to comply with the regulations?

Digital accessibility obligations apply specifically to: 

- Private economic operators providing digital services to the public, including but not limited to:

• banks, insurance companies, transportation companies and telecommunications operators;
• e-commerce platforms, providers of audiovisual content, marketplaces and online services;
• operators of ATMs, self-service terminals, electronic ticketing and postal services.

- Entities involved in the design, production and marketing of digital tools intended for the general public, including but not limited to:

• web sites and mobile applications;
• electronic devices with user interfaces;
• management or application software accessible by end users. 

Who supervises and what do those who fail to comply risk?

The Agency for Digital Italy (AgID) is responsible for supervising the implementation of the regulations: it can carry out audits, inspections and, in case of non-compliance, take sanctioning and inhibitory measures.

Specifically, in case of violation, AgID can:

- issue a warning setting a deadline for compliance; 

- apply fines:

• up to 5% of the average annual turnover for serious violations committed by entities offering services to the public through websites or mobile applications, with an average turnover, in the last three years of activity, exceeding €500 million;
• between €5,000 and €40,000 for the other subjects, taking into account the seriousness of the violation, the number of users involved and the scope of the inaccessible services;
• additional sanctions of €2,500 to €30,000 in case of non-compliance with AgID warnings or obstruction of inspection activities. 

AgID can also take particularly strong administrative inhibitory measures, including: 

- website blackout or removal of applications from digital stores; 

- temporary or permanent ban on access to non-compliant digital services.

In this regard, the following is a concise and schematic summary of the main regulatory changes that have taken place along with some preliminary comment about their potential practical implications.

*** 

1. Thermomechanical electric storage systems 

Pursuant to Art. 3-quinquies of the Bollette Decree, in addition to electrochemical storage systems, thermomechanical electric storage systems are also expressly included among the interventions subject to the PAS regime set forth in All. B, Sec. I, lett. aa) and the Single Authorization regime set forth in All. C of the Renewables Consolidated Decree. To that effect:

• interventions related to thermomechanical electric accumulators located within specific areas (e.g., within the perimeter of existing industrial plants or power generation facilities; within quarry areas, etc.) and upon the fulfillment of certain conditions (e.g., the intervention does not require variations to adopted urban planning instruments, etc.) are subject to PAS;

• shall be subject to AU of regional competence the interventions related to thermo-mechanical electric accumulators: (a) connected or subservient to electric power generation plants with a capacity of 300 MW or less authorized but not yet built; (b) located in areas other than those described above and related to the PAS regime and capable of autonomously providing services for the benefit of the national electricity grid, with a capacity of 200 MW or less;

• shall be subject to AU of state jurisdiction the interventions related to thermomechanical electric accumulators: (a) connected or subservient to electric power generation plants of more than 300 MW authorized but not yet built; (b) located in areas other than those described above and related to the PAS regime of more than 200 MW. 

Furthermore, as to storage systems Art. 3-sexies of the Bollette Decree provides that the MASE, subject to the stipulation of a special agreement, can make use of the GSE in relation to authorization procedures concerning so-called storage systems.

The above with the aim of streamlining the related administrative processes.

Therefore, on the one hand, the categories of storage systems subject to the regulations of the Renewables Consolidates Decree are expressly supplemented and, on the other hand, the assistance of the GSE is provided to expedite the administrative proceedings functional and related to the implementation of such projects. 

2. Hydropower storage through pure pumping

Art. 4-bis, co. 1, lett. a, num. 2, of the Bollette Decree amends art. 9, co. 13 of the Renewables Consolidated Decree, the provision of which now stipulates that, also for hydroelectric storage plants through pure pumping, within the scope of the relevant AU proceedings (of state competence) both the Ministry of Infrastructure and Transport and the region concerned shall express their opinion in the services conference.

In this case, too, therefore, the range of public administrations to be involved is extended by expressly stipulating that the region affected by the relevant project must also be heard for the purposes of the permitting process.

3. Offshore power plants

Similar amendments are introduced with regard to offshore projects.

Specifically, it is provided that in AU proceedings related to off-shore facilities (under state jurisdiction) not only the Ministry of Infrastructure and Transport and the Ministry of Agriculture and Food Sovereignty (for aspects related to marine fisheries) but also the relevant coastal region concerned must be heard at the service conference. 

The same applies to upgrades, repowering, refurbishment, reactivation and reconstruction, replacement or reconversion of existing or authorized plants involving a total capacity of more than 300 MW (see Art. 9, para. 13, TU Renewables as amended by Art. 4-bis, para. 1, letter a), num. 1 of the Bollette Decree).

4. Hydroelectric  

It extends the regime of free activity to hydroelectric plants with a generating capacity of less than 500 kW of concession power and that comply with specific technical-urban requirements (e.g., built on existing pipelines without increase nor of the existing flow rate; do not involve changes to the intended use, etc.) (see Art. 4-bis, co. 1, letter b) of the Bollette Decree). 

The objective is to attempt to facilitate the development of certain hydropower projects that, due to their technical/design characteristics, are suitable to undergo a particularly simplified process.

In general terms, it should be noted that the PAS regime is provided for hydropower plants of <100 kW capacity and the AU in the case of plants above this threshold.

5. Agri-voltaic power plants 

Art. 4-bis, para. 1, lett. c) of the Bollette Decree removed the reference to agri-voltaic plants from Annex B, Sec. I of the Renewables Consolidated Decree.

The previous version established that solar photovoltaic or agrivoltaic systems with a capacity of up to 1 MW were subject to PAS.

This change would seem to have been made essentially to address the discordance of this provision with All. A of the Renewables Consolidated Decree, according to which the “free activity regime” applies to agri-voltaic plants of less than 5 MW, and which allows for the continuity of agricultural and pastoral activity.

6. Wind power plants 

As anticipated, the amendments introduced through the Bollette Decree produce reflections not only on permitting processes but also on environmental ones.

Specifically, Art. 4-bis, para. 2, supplemented Annex IV of the Environmental Code by providing that projects for the refurbishment or repowering of existing, licensed or authorized wind power plants to be built on the same site and involving an increase in capacity of more than 30 MW are subject to regional EIA screening. 

It should be noted that this capacity threshold, in line with what was clarified by the MASE (Protest Prot. 65335 of April 24^th, 2023) shall be calculated on the basis of the project under evaluation only and excluding any plants or projects located in contiguous areas or that have the same center of interest or the same connection point and for which an environmental impact assessment is already underway or an environmental compatibility measure has already been issued.

It should also be noted that under recent administrative jurisprudence (Lecce Administrative Court, Judgments Nos. 11/2025 and 935/2024), for the purposes of cumulation, only projects undergoing authorization should be considered, and not also plants insisting in contiguous areas already built and in operation.

7. EIA priority projects

Pursuant to Art. 4-quater of the Bollette Decree, the list provided under Art. 8 of the Environmental Code is supplemented by establishing that power generation plants from renewable sources subject to single authorization under state jurisdiction as per All. C, Sec. II of the Renewables Consolidated Decree (e.g., plants with a capacity >300MW; offshore, etc.) are also to be considered as priority projects. 

Thus, the list of project categories to be prioritized in the context of the order of processing EIA proceedings under the responsibility of the PNRR-PNIEC Technical Commission is expanded.

***

The innovations introduced by the Bollette Decree would seem to be largely directed at broadening the range of institutional actors to be involved in the context of relevant authorization procedures for the development of renewable projects.

The reference is to the projects of thermomechanical electric storage, hydroelectric storage through pure pumping, and off-shore plants for which the involvement of the GSE and/or interested regions is envisaged.

Purely theoretically, the increase in institutional stakeholders at the authorization tables could make the completion of administrative processes less expeditious.

On this point, however, it seems premature to take a definitive position; in fact, the application implications of the regulatory innovation will have to be observed in order to assess whether it will benefit market operators in terms of greater efficiency and speed of the procedures of their interest.

Of a different tenor and of no marginal importance appear to be the changes concerning environmental proceedings.

In fact, the introduction of the 30 MW threshold for EIA screening of wind farm modifications would seem to sharpen the application perimeter of the rule, previously made opaque by, among other things, unspecified references to the production of significant and negative environmental impacts (see Art. 6, para. 6 of the Environmental Code).

One can also look favorably on the inclusion among the priority projects, for the purposes of EIA proceedings, of those subject to state AU under the Renewables Consolidated Decree.

In relation to this last profile, however, it seems appropriate to emphasize that this amendment is in the wake of recent administrative jurisprudence, which has clarified on several occasions that this priority criterion is not in itself capable of derogating from the obligation to conclude all EIA proceedings instituted before the Technical Commission (i.e., not only those "priority" proceedings) within the peremptory deadlines established by law (on this point, see our commentary on the recent Council of State ruling, April 22, 2025, no. 3465). 

Sharing agreements are governed by Article 17 of Legislative Decree No. 138/2024 and concern the (voluntary and optional) sharing between NIS entities or between NIS entities and other entities (e.g. suppliers of NIS entities) of information relating to cybersecurity, such as cyber threats, near misses, vulnerabilities, techniques and procedures, security alerts, etc. Such agreements are functional to the prevention of incidents as well as to the management, containment and mitigation of their consequences, and contribute to raising collective cybersecurity standards.

The participation of a NIS entity in one or more sharing agreements must be notified to the ACN via the service portal, providing the text of the agreement and indicating its name and the list of the entities that are a party to it.

As regards the notification deadlines, for agreements entered into after the entry into force of Legislative Decree 138/2024 (i.e. after 16 October 2024), notification must be made promptly and therefore at the same time or immediately after the conclusion of the agreement. In any event, sharing agreements signed before the entry into force of Legislative Decree 138/2024 (and still in force on 31 May 2026) must be notified by 31 May 2026.

The list of sharing agreements to which the NIS entity is a party notified to the ACN must always be checked and updated over time: in particular, pursuant to Resolution 136118, any changes (e.g., the signing of a new agreement, the termination of an agreement in place, or changes to the text or parties to the agreement) must be notified to the ACN within 14 days of the date of the change.

The list of sharing agreements must be updated at least once a year: between 15 April and 31 May of each year, NIS entities shall update, again via the portal, the list of sharing agreements to which they are a party.

Should you need any assistance and support in complying with the obligations under the NIS regulations, please contact your professional advisors.

Particularly, the Judges once again clearly reiterated that the priority criterion governed by Article 8 of Legislative Decree 152/2006 is not suitable to derogate from the obligation to conclude EIA proceedings within the peremptory terms established by law (cf. Article 25, par. 7, Legislative Decree 152/2006 - the "Environmental Code").

The conclusions reached by the court of first instance (TAR Basilicata, Sec. I, Judgment n. 598/2024), according to which, on the contrary, the rule of peremptory deadlines should have been recessive with respect to the need to give priority to the procedures of plants with greater power, are thus fully reformed.

This ruling is in line with recent administrative case laws, which has repeatedly clarified that all EIA deadlines are peremptory (see, among others, Council of State, Sec. IV, Dec. 4, 2024, No. 9737 and Council of State, Sec. IV, Dec. 6, 2024, No. 9791). 

In fact, consistent with Art. 3-bis, para. 3 of Legislative Decree 152/2006, the rules of the Environmental Code can be derogated only by express declaration by subsequent laws.

Otherwise, as noted by the Council of State, in the case at hand, the criterion of priority in the processing of applications (connected ratione temporis to the greater power to be installed) is not only not supported by any express derogation from the peremptory nature of the deadlines for the conclusion of the relevant procedures but is not even incompatible with such discipline.

As a result of the foregoing, the Council of State ordered the Ministry of Environment and Energy Security to act on the EIA petition within a period of thirty days from the communication of the judgment with the warning that in case of further inaction it will proceed with the appointment of a commissioner ad acta.

This is another important point of clarification in the context of the multifaceted environmental procedures that characterize the renewables sector and draws attention to the current delicate balance between the internal organizational complications of the competent authorities and compliance with procedural safeguards as well as the weight of litigation within these procedures.

On these aspects and on the latest pronouncements of administrative jurisprudence, on the other hand, the PNRR-PNIEC Technical Commission itself has just recently dwelt on the matter, emphasizing the need to remedy as soon as possible the now well-known organizational-administrative issues of the Ministry and pointing out that a percentage of 41.4% of the applications received to date is conditioned by the incidence of litigation in determining the order of processing (see on this point the recent report first quarter 2025 of the PNRR-PNIEC Technical Commission transmitted to MASE on April 17^th, 2025).

In summary, these Instructions are merely clarifications and adjustments to regulatory updates that have occurred since the last revision of the Instructions, dated October 2023. 

Firstly, two formal modifications have been introduced. Where the previous version referred explicitly to “photovoltaic panels”, the new Instructions use the term “photovoltaic modules”, while retaining the same meaning previously assigned to “panel,” referring to “the photovoltaic panel installed in systems with a nominal power lower than (i.e., in the case of a ‘domestic photovoltaic module’, ed. note) or equal to/greater than (i.e., in the case of a ‘professional photovoltaic module’, ed. note) 10 kW.” Also, where the waste identification code was previously referred to as the “CER code” (European Waste Catalogue), it is now correctly referred to as the “EER code” (European List of Waste).

Beyond these formal amendments, the Instructions implement the updated amount withheld by GSE pursuant to Legislative Decree No. 49/2014. This amount is intended to fully cover the environmentally compliant end-of-life management and disposal costs of photovoltaic modules. Previously, the withheld amount was EUR 10/module for any type of photovoltaic WEEE, whether domestic or professional. Under the new Instructions, this amount is now equal to twice the contribution cost paid to Collective Systems, which is identified as EUR 10/module. Therefore, the new withheld amount is EUR 20/module.

For professional-type plants commissioned between 2006 and 2012, where the withholding process had already begun based on the former EUR 10/module rule, “the increased amount shall apply starting from the remaining installments of the withholding period”, and GSE will proceed with “the rescheduling of the remaining installments of the payment plan.”

Regarding provisions introduced by Legislative Decree No. 118/2020 and subsequent amendments, the Instructions also reflect the clarification introduced by Law Decree No. 13 of 24 February 2023, which states that the contribution payable to the Collective System may be paid in installments over a maximum of five years (and, in any case, not exceeding the remaining incentive period for the specific plant).

The new Instructions also incorporate provisions from Law Decree No. 84/2024, titled “Urgent Provisions on Strategic Critical Raw Materials,” introducing two additional time windows for submitting the application to join a Collective System:

• from 1 April 2025 to 31 May 2025 (currently ongoing);

• from 1 July 2025 to 30 September 2025.

These override the previous application deadline, which was set for 31 December 2024.

As for the timing of refunding previously withheld guarantee amounts by GSE, the Instructions stipulate:

• for domestic-type plants, the refund will be made in the year following the submission of the application to join a Collective System;

• for professional-type plants, the refund will be made within 180 days from the end date of the time window in which the application was submitted.

Lastly, in line with the provisions of Law Decree No. 84/2024, MASE may now rely on GSE to perform verification and control activities over the operations of the Collective Systems.

The annexes to the Instructions remain unchanged, as do the previous provisions, which remain valid following the adoption of Decree No. 45/2025 and the new Instructions for the end-of-life management of incentivized photovoltaic modules under the Energy Account scheme.

The term “tolling” derives from the word “toll”, originally meaning a fee, charge, or, in the industrial field, the compensation paid for the use of a processing facility. A tolling agreement, therefore, is a contract whereby one party, the owner of the raw material, entrusts another party, the owner of the facility, with the processing of such material while retaining ownership over it.

In the context of generation or cogeneration facilities, the tolling agreement is structured as a contract pursuant to which one party, known as the toller, supplies the raw material (typically, the fuel) to another party, known as the processor, who owns the facility. The processor, by using the raw material provided by the toller, produces electricity and thermal energy, which will subsequently be returned to the toller against payment of a fee.

More recently, market operators have extended the application of the tolling agreement to energy storage systems (“Tolling Agreement”). In this context, the Tolling Agreement is structured as a contract pursuant to which the owner of the storage facility, referred to as the asset owner (“Asset Owner”), makes the facility's storage capacity available to another party, the toller (“Toller”), enabling the latter to inject, store, and withdraw electricity from the storage facility at its own discretion, against payment of a fee to the Asset Owner for the availability of such capacity. The Toller retains exclusive ownership of all electricity injected, stored, and withdrawn from the facility throughout the term of the Tolling Agreement.

Under a Tolling Agreement relating to storage systems, therefore, there is no supply of raw materials nor any electricity generation activity. Instead, the storage facility is made available to the Toller to enable it to store electricity and subsequently sell it to the market according to its own strategies. 

The Rationale behind the Tolling Agreement

Through the Tolling Agreement, the parties aim to allocate the risks and responsibilities associated with the construction and subsequent operation of the storage system.

Going into detail: 

(i) the Asset Owner undertakes to construct and commission the facility within a certain term and to make its storage capacity available to the Toller. Upon commissioning, the Asset Owner remains responsible for the maintenance, availability, and management of the facility for the benefit of the Toller, receiving from the Toller a fee ensuring the Asset Owner's cash flow, which may be necessary to fulfil its obligations under any project financing agreement (if any); while

(ii) the Toller undertakes to use the facility in accordance with the operational cycles and procedures set forth in the Tolling Agreement, having the right to store electricity at its discretion. With respect to the storage facility, the Toller does not assume any construction or maintenance risk.

Tolling Fee Structure 

As outlined above, the Toller pays the Asset Owner a fee to compensate the availability of storage capacity. 

The fee may be determined according to different models:

(i) fixed fee – a set amount in Euro per MW of capacity made available under the Tolling Agreement. While the fee is fixed, the parties may however agree on adjustment mechanisms to account for actual availability and efficiency of the facility during the relevant period;

(ii) variable fee – an amount in Euro per MWh of energy injected and stored in the facility during a reference period. This variable fee may be the sole form of compensation or in addition of the fixed fee;

(iii) revenue sharing – a percentage of the profits generated by the Toller through optimization activities, including participation in electricity markets, allocated to the Asset Owner. This can be structured as the sole compensation or as a supplement to the fixed and/or variable fees. Revenue sharing may apply starting from the effective date of the obligation to make capacity available and pay the associated fee, or even earlier if the facility becomes operational before such obligations commence.

The Relationship between the Tolling Agreement and the Capacity Market

The obligations of the parties under the Tolling Agreement, as well as the remuneration mechanism addressed above, may become more complex in case the Asset Owner intends to participate in the capacity market with the same capacity made available to the Toller under the Tolling Agreement.

The capacity market, as set forth in Article 1 of Legislative Decree No. 379/2003, as subsequently amended, is a market organized and operated by Terna, based on the capacity made available in favour of the electricity system. Such market purposes to ensure adequacy of the available generation capacity within the electricity system, also guaranteeing the continuous satisfaction of national electricity demand with adequate reserve margins.

This market is structured as a system of auctions (so-called procedure concorsuali) aimed at determining the capacity commitments undertaken by each market participant. At the conclusion of such auctions, the successful bidders are required to enter into an agreement with Terna (“Capacity Market Contract”). Pursuant to this agreement, the awarded participant – that we assume to be the Asset Owner – undertakes to make the awarded capacity available to Terna, and to enhance the corresponding electricity volumes on the electricity market through the Toller, against a consideration paid by Terna to the Asset Owner. Such consideration consists of both a fixed and a variable component.

In light of the foregoing, and considering that the storage facility’s capacity is managed and enhanced by the Toller, the coexistence of the Capacity Market Contract and the Tolling Agreement requires that the latter also govern the additional commitments in this regard of the Asset Owner and the Toller. Furthermore, the Tolling Agreement shall address a flow structure and compensation framework that properly reflects the more complex legal and factual context related to the storage facility owned by the Asset Owner in this situation. 

Indeed, the Toller, also acting as the dispatching user of the facility, will be responsible for the injection and withdrawal of electricity from the storage facility, for managing the facility’s availability, as well as for submitting offers in the electricity market.

More specifically, with respect to participation in the capacity market, the Tolling Agreement shall govern: 

(i) the participation in the Auction Procedures, possibly restricting the Asset Owner’s ability to participate in certain auctions depending on the different delivery periods;

(ii) the Asset Owner’s undertaking not to participate in the Mechanism for the Procurement of Electric Storage Capacity (“MACSE”)[1], nor in any other mechanisms, including incentive schemes, and/or in any market that could be incompatible with the commitments undertaken under the Tolling Agreement and the Capacity Market Contract;

(iii) the specific obligations that the Toller must undertake in order to enable the Asset Owner to comply with the obligations assumed under the Capacity Market Contract;

(iv) the allocation of the risk associated with the variable fee to be paid to the Transmission System Operator in the event that bids are executed at a price higher than the strike price;

(v) the contractual remedies applicable in the event the Asset Owner fails to comply with its obligations under the Capacity Market Contract, where such failures are attributable to acts, omissions, or defaults of the Toller under the Tolling Agreement.

In general, the Toller shall have the right to dispatch the facility, at its own discretion, on all available markets, provided that participation in such markets remains compliant with the Capacity Market rules and does not adversely affect the Asset Owner’s participation therein.

The above and other aspects related to investments in Storage and the associated cash flows in the context of bankability will be discussed with our guests at the conference BESS: profili di bancabilità tra regole e mercato, to be held at our Milan office. Through the link you can register. Places are limited and we suggest you register as soon as possible.

[1] The MACSE was introduced by ARERA Resolution No. 247/2023, implementing Article 18 of Legislative Decree No. 210/2011. 

The widespread diffusion and incidence of energy production from renewable sources has made the introduction of a storage system for energy production and, therefore, centralised storage capacity essential to ensure flexibility and maximise the use of renewables.

The Mechanism, the rules of which Terna published on 22 October 2024, subject to the approval of the Ministry for the Environment and Energy Security with Ministerial Decree No. 346 of 10 October 2024, is based on the opportunity of entering into standard contracts for the procurement of electricity storage capacity with counterparties selected through competitive procedures, who receive a determined premium expressed in euro/MWh per year: in exchange for the premium, the awarded producer only has to make the contracted capacity available to third parties who have purchased, through Terna, the so-called time-shifting products, i.e., the right to store the energy produced at a specific time in one or more storage plants that were awarded the auctions in the previous phase, and then feed it into the grid at a later time.

These standard contracts prescribe specific obligations for the subscribers, i.e. (i) the actual realisation of the committed storage capacity within the terms provided for by the same contract; (ii) the obligation to make the committed storage capacity available to Terna, for the entire delivery period, in order to allow third-party market operators to exercise time-shifting contracts (iii) the obligation to make available to Terna on the Dispatching Services Market ("DSM"), for the entire delivery period, individually or through aggregates defined by Terna in the Grid Code, the committed storage capacity, complying with the minimum technical performance defined in the contract and the economic constraints.

As mentioned above, therefore, in order to enter into standard contracts, Terna organises special competitive procedures, periodically making available incremental capacity quotas to guarantee the availability of certain quantities of electricity storage in different and future periods, taking into account various variable components: such competitive procedures may only be attended by storage facility owners who meet appropriate subjective and objective requirements, but not limited to.

1.1 About the guarantee system

As part of the above-mentioned competitive procedures, in compliance with the provisions of the ARERA Resolution, Terna organises and manages a system of guarantees to which the participants are required to join, under penalty of being excluded from the same procedures or preventing the participant from proceeding with the stipulation of the standard contract for the procurement of electricity storage capacity. This guarantee system consists of (i) pre-auction guarantees; (ii) post-auction guarantees; and (iii) the guarantee fund. 

1.1.1. Pre-auction guarantees 

Pursuant to the provisions of Chapter II of the Terna Rules, for each auction the participant must, at least 40 (forty) days prior to the date of execution of the auction for which it intends to qualify the storage system, provide a pre-auction guarantee in an amount equal to the sum of 

(i) the qualified capacity[1] of each qualified storage system, expressed in MWh;

(ii) the reserve premium[2] of the open auction to the reference technology with the shortest planning period[3] among those admitted to the competitive procedure;

(iii) a percentage equal to 10 percent.

Said pre-auction guarantee, in the form of a non-interest deposit, will be returned by Terna to each successful participant within 15 (fifteen) days from when Terna sends a countersigned copy of the contract and/or implementation agreement, and to each unsuccessful participant within 15 (fifteen) days from notification of the auction results.

If the assignee participant fails to fulfil the obligations of the assignees identified by Terna, and/or if, following specific checks carried out prior to the signing of the contract and/or the implementation agreement, it emerges that the declarations made and/or the documentation provided are not truthful, Terna may enforce the pre-auction guarantee provided by the participant.

1.1.2. Post-auction guarantees

In the same manner as the pre-auction guarantee, for each contract, the successful participant shall, within 15 (fifteen) days from the communication of the auction results, set up or supplement one or more post-auction guarantees, for a total amount equal to the sum between:

(i) the committed capacity[4] of each contracted storage system, expressed in MWh;

(ii) the reserve premium of the open auction to the reference technology with the shortest planning period among those admitted to the competitive bidding process in which the storage system was contracted;

(iii) the number of years, rounded down, of the planning period of the reference technology with the shortest planning period among those admitted to the competitive bidding process in which the storage system was contracted;

(iv) a percentage equal to 15 percent. 

This post-auction guarantee, in the form of a non-interest deposit or a first-demand bank guarantee, will be returned by Terna, at the request of the assignee, following the complete settlement of the economic items arising under the contract and related implementation agreements.

Even in the case of post-auction guarantees provided by the assignee, if the latter fails to fulfil its payment obligations under the contract and related implementation agreements, Terna may enforce the post-auction guarantee provided by the assignee. 

1.1.3. The guarantee fund 

For each contract stipulated with Terna, the assignee is obliged to pay to Terna, within 15 (fifteen) days from the communication of the auction results, a contribution to the guarantee fund equal to the sum of the products between: 

(i) the committed capacity of each contracted storage system, expressed in MWh;

(ii) the reserve premium of the open auction to the reference technology with the shortest planning period among those admitted to the competitive procedure in which the storage system was contracted;

(iii) a percentage equal to 15 percent.

The contribution to the guarantee fund, like the pre and post-tender guarantees, in the form of an interest deposit, will also be returned, at the request of the assignee, following the complete settlement of the economic items arising from the contract and its implementing agreements. 

Terna's recourse to the guarantee fund is subject to the prior enforcement of all post-auction guarantees set up by the assignee under the contract to which the performance refers, resorting, in an orderly manner, first to contributions to the guarantee fund paid by the defaulting assignee, then to contributions to the guarantee fund paid by the other assignees.

1.2. The first auction

On 7 March 2025, through an appropriate notice for operators, Terna announced the timeline for the first MACSE auction: in fact, the auction for 2028 for the forward procurement of new storage capacity related to lithium-ion batteries and electric storage technologies other than lithium-ion batteries and hydro storage will take place on 30 September 2025.

Therefore, according to the schedule set by Terna itself, participants are required to apply for admission, in the manner defined by Terna, by June 3 and submit the necessary data and documentation on the MACSE portal by July 17, with payment of the deposit as a pre-auction guarantee by August 21 and uploading of the authorization documentation by the following August 26.

As an estimate, the current authorized capacity is expected to be about 9 GWh, thus below the demand of 10 GWh, but still having to consider that all finally authorized plants will be able to participate by the end of August 2025.

The above and other aspects related to investments in Storage and the associated cash flows in the context of bankability will be discussed with our guests at the conference BESS: profili di bancabilità tra regole e mercato, to be held at our Milan office. Through the link you can register. Places are limited and we suggest you register as soon as possible.

[1] Pursuant to Article 2, para. 1, letter i) of Terna's MACSE Regulation, for each storage system, this is the capacity, expressed in whole MWh values, that Terna qualifies for auction.

[2] Pursuant to art. 2, para. 1, letter aaa) of Terna's MACSE Regulation, this means the maximum value that can be taken by the adjusted premium (i.e., for each storage system, the amount equal to the product between the premium and precise coefficients referred to in the same regulation adopted by Terna), as defined by the Authority in relation to a competitive procedure.

[3] Pursuant to Article 2, para. 1, letter jj) of Terna's MACSE Regulation, this means the period, defined in the technical report, between the date of communication of the auction results and the start of the delivery period (i.e., the period during which the contracted storage system is subject to the availability obligation and the restitution obligation, beginning on January 1).

[4] Pursuant to Article 2, para. 1, letter g) of Terna's MACSE Regulation, for each storage system is the capacity, expressed in whole MWh values, that is contracted as a result of participation in the auction.

In the case at hand, the GSE had initially approved an energy efficiency project and three RCVs, but later rejected the fourth by annulling the approval decision concerning the PPPM and the previously accepted RCVs, on the grounds of non-compliance with the applicable legislation (Ministerial Decree of 28 December 2012).

The Court held that the annulment order did not fall within the category of forfeiture but rather constituted an exercise by the GSE of its self-defense powers, and as such was subject to the requirements laid down in Article 21-nonies of Law no. 241 of 1990. The decision was based on a reassessment of elements previously examined with a positive outcome, in the absence of any new facts or documentation having emerged in the meantime.

Forfeiture, by contrast, is characterized by the nature of the defect, which may consist of: (i) false or inaccurate declarations by the applicant; (ii) breach of administrative conditions deemed essential for the continued enjoyment of benefits; or (iii) loss of eligibility requirements necessary for the establishment or continuation of the relationship (Plenary Session, 11 September 2020, no. 18). In such instances, the GSE exercises a binding ascertainment power, issuing a decision that declares the absence of objective requirements which were a prerequisite ab initio for access to the incentive (Council of State, Section IV, 12 January 2017, no. 50; 24 January 2022, no. 462; 20 January 2021, no. 594; Section VI, 3 January 2022, no. 9; 28 September 2021, no. 6516; Constitutional Court, 13 November 2020, no. 237), following a new procedural path in which further evidence is gathered.

Conversely, where the absence of eligibility for the incentive mechanism is declared on the basis of a mere reconsideration of the same evidentiary material already in the possession of the GSE, the measure must be regarded as a self-defense annulment (annullamento d’ufficio in autotutela).

The conduct of assessments based on newly acquired evidentiary elements thus marks the dividing line between self-protection and forfeiture.

The judges of the Council of State emphasize that, once the administrative procedure has concluded with a positive evaluation of the information provided by the private party, any subsequent review—absent new circumstances, omissions, misrepresentations, or breaches of undertaken obligations—must necessarily comply with the conditions and limitations applicable to the exercise of self-protection powers, pursuant to Article 21-nonies of Law no. 241/1990.

Currently, the SSPC (Simple Production and Consumption System) is defined as the system in which a power line connects one or more production units managed, as producers, by the same natural or legal person or by different legal persons provided they all belong to the same corporate group, to one or more consumption units managed, as final customers, by the same legal person or by legal persons of the same group. This configuration thus imposes a subjective constraint among producers, effectively limiting, on the consumption or production side, access to the SSPC regime to parties linked by formal corporate relationships (Art. 16, para. 1, Legislative Decree No. 210/2021 and Art. 1.1, letter nn) of Annex A to ARERA Resolution of December 12, 2013, No. 578/2013/R/eel, the so-called TISSPC).

2. Amendment Proposal

The new formulation proposed during the conversion into law of Decree Law No. 19/2025 (the so-called Energy Bills Decree) provides for the removal of the requirement for producers to belong to the same corporate group, while leaving this requirement unchanged for consumers. The revised text would allow producers not belonging to the same corporate group to contribute to electricity generation within the same SSPC.

New proposed definition:

“The system in which a power line connects one or more production units managed, as producers, by the same natural or legal person or by different legal persons, to a consumption unit managed by a natural person as final customer or to one or more consumption units managed, as final customers, by the same legal person or by different legal persons provided they all belong to the same corporate group [...]”.

3. Proposal Rationale

The aim of the amendment is to:

• promote the integration of production plants by third parties, including independent ones, within an SSPC, while maintaining the unity of the consumption system;

• overcome the current corporate rigidities, which often do not reflect the operational reality of companies that share spaces, interests, or common energy goals, even if they do not formally belong to the same group;

• stimulate energy efficiency and self-production behind a single POD, avoiding the need to adopt configurations that use the public grid (Energy Communities, remote self-consumption via public line, collective self-consumption).

4. Conclusions

The proposed amendment is in line with recent regulatory developments on self-consumption and distributed energy systems, aiming to make the SSPC framework more inclusive and versatile while preserving the safeguards of managerial responsibility and administrative simplification inherent in the current configuration.

By no later than April 29, 2025, the proposed amendment must (or must not) be definitively approved by Parliament during the conversion of the Energy Bills Decree into law.

Should this proposal be effectively and definitively approved, pending further adoption by ARERA within the framework of the TISSPC, for those SSPC configurations that wish to add one or more production plants owned by parties other than the current plant owners, the procedure provided for communicating SSPC configuration changes in accordance with the relevant GSE Technical Rules is deemed applicable.

The regulation requires providers of such models to make publicly available a sufficiently detailed summary of the data used for training – that is, the informational corpus employed to tune and optimize the model’s parameters. From the outset, the expression “sufficiently detailed” has sparked intense debate: what does “sufficient” mean, exactly? And more importantly, what criteria should guide providers in drafting this summary?

It is precisely on the elasticity or rigidity of the interpretation of what constitutes “sufficiently detailed” that a decisive legal battle will unfold between content owners and AI platforms. On one side, rights holders demand meaningful and verifiable access to information about the data used, as a prerequisite for enforcing their rights. On the other, providers will likely advocate for a more flexible approach that protects their strategic assets and avoids disclosing too much, also for competitive reasons. The boundary between genuine transparency and mere formal compliance will be fine, and it will inevitably be drawn by the first court rulings.

The rationale behind the obligation is clear: to enable holders of legitimate interests to more effectively exercise their rights. The most immediate reference is, of course, to copyright holders, who may use the disclosed information to verify whether and how their content was used without authorization.

But the scope of protected interests goes well beyond copyright. Also at stake are personal data protection, the right to scientific research, and the increasingly urgent need to detect and mitigate bias – with implications across a wide range of contexts, from service platforms to public decision-making systems, to commercial AI products.

Recital 107, in laying out the modalities of compliance, also underscores the need to strike a balance: on one hand, the interest of stakeholders in knowing what data was used; on the other, the legitimate concern of providers to avoid disclosing strategic assets such as trade secrets, algorithms, or data collection and processing methods.

To offer initial practical guidance, the European Commission published in January 2025 a template designed to assist providers in preparing the required summary. The model was developed through a broad consultation process involving both AI sector representatives and rights holders already engaged in drafting the Code of Practice on General-Purpose AI (CPAI).

The template guides providers through all stages of the data lifecycle – from pre-training to fine-tuning – and requires clear and comprehensible language, designed to be accessible even to those without advanced technical knowledge.

It is structured into three sections:

1. General Information
   This section collects general details about the model: who developed it, when it was released, and what the knowledge cut-off date is (i.e., the date of the last content update). It also requires information on the overall size and characteristics of the data (number of images, minutes of audio, languages, and geographic origin).
2. List of Data Sources
   Here, providers must list the sources of data used: public datasets, third-party datasets, data collected via web crawling (with an indication of the tools used), user-submitted data, or data self-generated by the provider.
   A controversial aspect is that the template focuses only on “major” or “large” datasets – defined as those representing more than 5% of the total. This could distort the picture, as:
   • some providers might artificially split large datasets into smaller subsets to avoid disclosure;
   • visual datasets (images/videos), due to their nature, are larger than textual ones, potentially leading to unjustified technical discrimination.
3. Relevant Data Processing Aspects
   This section requires a description of the measures taken to protect copyright, such as the identification and removal of protected content, as well as the handling of inappropriate materials.
   However, some criticisms have emerged: the section appears overly focused on copyright protection, while overlooking crucial aspects such as pre-processing steps – particularly methods of anonymization or data filtering.

The final publication of the template and accompanying guidelines is expected in the second quarter of 2025, ahead of the full entry into force of the obligations, scheduled for August 2, 2025.

What is certain is that this regulation, and its practical implementation, will have a significant impact on the choices of AI providers worldwide. Some countries may choose to align with the European model, thereby creating an international standard. Others, conversely, may opt for more flexible regulations to attract research, investment, and development to their own jurisdictions.

However, the real test will come with the first legal disputes, which will give concrete form to the principles currently set forth in the regulation. Those rulings will shape the future direction of European AI regulation.

• Determination ACN No. 136117 of April 10, 2025 — Platform, Point of Contact and Substitute, Information Update and NIS Representative under Article 7 of the NIS Decree (“Determination 136117”);
• Determination ACN No. 136118 of April 10, 2025 — Notification of Cybersecurity Information Sharing Agreements under Article 17 of the NIS Decree (“Determination 136118”); and
• Determination ACN No. 164179 of April 10, 2025 — Basic Specifications for Fulfilling Obligations under Articles 23, 24, 25, 29, and 32 of the NIS Decree (“Determination 164179”).

Determination 136117, which updates and replaces Determination ACN No. 38565 of November 26, 2024, governs access to the services portal and the procedures for registration and information updates, as well as the designation of the point of contact and other persons authorized to operate on the ACN services portal on behalf of NIS entities.

The main new features introduced by Determination 136117 concern:

• the substitute point of contact;
• the secretariat;
• the operators; and
• the process for the annual update of information.

The substitute point of contact is a natural person, different from the main point of contact, designated by the NIS entity pursuant to Article 7(4)(d) of Legislative Decree No. 138/2024, whose role is to support the point of contact in carrying out its functions (except for registration, which remains solely with the point of contact).

The secretariat, on the other hand, is the natural person who supports the point of contact and the substitute point of contact in interactions with ACN.

Finally, the operators are those who support the point of contact and the substitute point of contact in operating on the portal.

As with the point of contact, the functions of the substitute point of contact may only be carried out by the legal representative, a general attorney (registered in the business register), or an employee delegated by the legal representative. However, it is unclear whether this also applies to the secretariat and operators.

To operate on the portal, the substitute point of contact, the secretariat and the operators must be invited by the point of contact, complete registration and associate their user account with that of the NIS entity. However, the secretariat and operators may not use the portal to send communications to ACN regarding the fulfilment of obligations under Legislative Decree no. 138/2024. The role of secretariat may only be assigned to a single user.

It should be noted, in any case, that while the designation of the substitute point of contact is mandatory, the involvement of the secretariat and operators is purely optional.

With regard to the process of updating information, Determination 136117 requires that between April 15 and May 31 of each year, the information required by Article 7(4 and 5) of Legislative Decree no. 138/2024 be submitted via the portal section called "NIS Service/Annual Update".

In particular, all NIS entities must, as applicable, provide or verify the update of the following information:

• personal and contact details of the point of contact and, where applicable, data contained in the power of attorney conferred by the legal representative;
• personal and contact details of the substitute point of contact and, where applicable, data contained in the power of attorney conferred by the legal representative;
• personal and contact details of the secretariat;
• personal and contact details of the NIS entity (at a minimum, tax code, company name, registered office address, legal representative, list of general attorneys, telephone number, certified email address and ordinary email address must be provided);
• list of the members of the administrative and management bodies, to be identified based on Article 38(5) of Legislative Decree no. 138/2024 (at a minimum, name and surname, tax code and certified email address must be provided);
• list of the services falling within the scope of Legislative Decree no. 138/2024 provided by the NIS entity, indicating the EU Member States in which they are provided;
• public IP address space in use or available to the NIS entity (i.e. public and static IP addresses used or available to a NIS entity through contracts or agreements with Internet service providers, Regional Internet Registries or other organizations responsible for providing IP addresses based on national, European and international regulations and agreements);
• domain names in use or available to the NIS entity (i.e. domain names used or available to a NIS entity through contracts or agreements with domain name registration service providers or other organizations responsible for providing domain names based on national, European and international regulations and agreements); and
• list of information sharing agreements (i.e. voluntary arrangements between NIS entities to exchange relevant cybersecurity information under Article 17 of Legislative Decree no. 138/2024).

Providers of domain name system services, top-level domain name registry operators, domain name registration service providers, cloud computing service providers, data center service providers, content delivery network providers, managed service providers, managed security service providers, online marketplace providers, online search engine providers, and social network platform providers must also, where applicable, provide or verify the update of information relating to their EU establishments. Furthermore, if they are established outside the national territory and have appointed their representative in Italy, they must provide and verify the update of the personal and contact details of the representative in Italy.

Detailed analyses of Determination 136118 and Determination 164179 will be available shortly.

If you need assistance and support in fulfilling the obligations set out in the NIS legislation, please contact your professional advisers.

In force since 14 February 2025, the day of publication in the Official Bulletin of the Veneto Region, the regulatory provision unifies the three previous legislative proposals (i.e., nos. 221, 283, and 291) and introduces a key extension for the operation of small expired hydroelectric derivations: under the previous text, the expiration date was set at 31 July 2024, but, as a result of the amendment, this date has been replaced with "31 July 2029."

Indeed, Regional Law no. 1/2025 extends by five years the small concessions that expired in July 2024, aiming to provide the State with technically sufficient time to identify and implement a proper regulatory framework for the allocation of small hydroelectric derivations, as considered by the Regional Council.

In fact, the rationale of the amendment lies in the awareness of the current absence, at the national level, of a regulation aimed at managing the renewal of small concessions through competitive procedures: in this regard, reference is made to European directives, such as the "Bolkestein" Directive, for which the calling of tenders for awarding hydroelectric derivations to new concessionaires ensures fair competition but, consequently, requires extensive time during which, as stated by the president of the Second Council Committee, "we cannot leave uncovered an essential service such as electricity production, especially considering how problematic and economically costly other forms of energy supply are, primarily those from fossil fuels."

Furthermore, with the same Regional Law no. 1/2025, the Veneto Region also intervened on concessions for large plants, assigning – from the effective date of the amendment – to the Regional Government the possibility to allow, for concessions expired before 31 December 2024, the temporary continuation by the concessionaire of the operation of large hydroelectric derivation plants for the time deemed necessary to complete the procedures for the allocation of those same large hydroelectric derivations.

The aim of this provision is to ensure the continuity of electricity production, considering the time needed to carry out the inventory of the works, assets, and plants related to large hydroelectric derivations, as well as to guarantee the execution of the tender procedures.

Although, therefore, this is a “transitional” legal provision, whose introduction, moreover, allows for the possibility of knowing, in the meantime, the ruling of the European Court of Justice on the applicability of the aforementioned “Bolkestein” Directive also to small hydroelectric derivations, the Council of Ministers, in the session of 9 April, decided to challenge the same Regional Law no. 1/2025, considering some of the provisions contained therein illegitimate with respect to Articles 11 and 117, paragraphs 1 and 2, letter e), of the Italian Constitution.

In particular, the Council considered that “the regional provision under examination outlines a specific case of renewal that deviates from competitive principles, thereby crystallizing the implicit recognition of a renewal, in evident contrast with the principles of publicity, transparency and non-discrimination provided for by EU legislation and in particular by Article 12 of the Bolkestein Directive which, according to consistent jurisprudence, constitutes a self-executing rule of the EU legal order and, as such, is directly applicable, requiring the disapplication of any conflicting national legislation.”

The Court, while confirming that Regions may introduce proportionality and subsidiarity criteria to promote balanced RES development at the regional level, ultimately ruled that Resolution no. 171/2023 constitutes a true “a priori ban on initiating the necessary procedural assessment”, resulting in “an inevitable illegitimacy due to violation of fundamental principles governing the sector”.

By order issued by the President of the United States on April 2, the U.S. government adopted new tariffs which provide for additional ad valorem duties on imports of products from all foreign countries.

The new protectionist policies adopted by the U.S. government – which took effect at midnight on April 2 – also apply to imports from the European Union.

Below are the main provisions introduced by the new measures:

• in the automotive sector, a 25 percent tariff is introduced on imports of cars, trucks and related components from all foreign countries (for components, the measures will take effect by May 3);

• imports of all goods from foreign countries into the U.S. customs territory are subject to an additional ad valorem rate of duty of 10 percent, effective April 5;

• for many countries, the rate was set to increase starting from April 9. In particular, the order issued by the White House stated that the European Union (and, consequently, Italy) would be subject to a rate of duty of 20 percent; for China, the rate would go up to 34 percent;

• however, on April 9 the President of the United States announced a 90-day pause on the new tariffs, dropping reciprocal duties to 10% for all countries;

• the only exception is China, which has responded to the new U.S. measures by approving counter-tariffs at 84%: against it, the U.S. government has ordered an increase in duties to 125% for goods imported from China;

• certain products are currently excluded from the new tariffs. These include pharmaceuticals, lumber and semi-conductors, several precious metals (including gold, silver, platinum and copper), energy products (including oil) and critical minerals, as well as all goods subject to specific measures.

The new provisions complete an initial set of measures previously issued on February 10, whereby the U.S. government had imposed a rate of duty of 25 percent on steel and aluminum imports.

2. THE IMPACT OF CUSTOMS TARIFFS ON COMMERCIAL AGREEMENTS

Besides the clear economic and commercial impact, the introduction of additional duties may have a direct effect on all commercial agreements - whether existing or yet to be signed - involving the supply of goods to the United States.

In particular, for agreements already in place, fulfilling contractual obligations in light of the increase in tariffs may prove to be significantly more burdensome than expected – or reasonably foreseeable – at the time of signing.
First and foremost, it is advisable to conduct a preliminary review of the individual contractual clauses, checking for the presence of:

• provisions on governing law and jurisdiction, to determine whether the agreement is subject to Italian law (and, consequently, to the possible remedies provided by the Italian Civil Code);

• any delivery terms (so-called “Incoterms”) to verify the allocation between the parties for customs duties related to import/export;

• any clauses on renegotiation and/or early termination upon occurrence of certain circumstances (e.g. force majeure clauses or hardship clauses).

In addition, the recent 90-day pause on the new tariffs confirms the current instability and uncertainty in international trade relations. We believe this calls for even greater caution in negotiating new agreements and special attention in managing existing ones.

2.1 Remedies under the Italian Civil Code

For commercial agreements subject to Italian law – lacking specific contractual remedies agreed upon by the parties – the Italian Civil Code provides for certain legal instruments that may mitigate the impact of the new tariffs on the original contractual terms. In particular:

• supervening impossibility of performance due to causes not attributable to the debtor (pursuant to Articles 1218, 1256 and 1463 et seq. of the Italian Civil Code);

• supervening hardship (pursuant to Article 1467 et seq. of the Italian Civil Code);

• provisions on supplementary equity (pursuant to Article 1374 of the Italian Civil Code) and obligations to interpret and perform the contract in good faith (pursuant to Articles 1366, 1375 of the Italian Civil Code).

Supervening impossibility of performance refers to any situation preventing performance that cannot be foreseen and cannot be overcome with the effort that may be legitimately required of the debtor. According to the general principle laid down in Article 1218 of the Italian Civil Code, if the non-performing party proves that the default was a consequence of the impossibility of performance for “reasons not attributable to such party”, the latter may be held not liable.

In cases of definitive supervening impossibility, the contractual obligation is extinguished, resulting in the automatic termination of the agreement (either in full or partially, if the impossibility affects only part of the performance). If the impossibility is only temporary, the performance of the obligation may be legitimately suspended.

That said, while each commercial agreement should be assessed on a case-by-case basis, the new tariffs (at least in general terms) do not seem to constitute a genuine case of supervening impossibility. However, a temporary impossibility may be invoked in specific circumstances, resulting in a suspension of the contractual obligation.

It is arguably more feasible to rely on the instrument of supervening hardship. This remedy allows the termination of agreements whose balance is altered by supervening events – extraordinary and unpredictable when the agreement was entered into – which do not fall within the normal contractual risk and which make the performance of any of the obligations underlying the contract excessively burdensome or objectively debased in value and/or usefulness.

In such a case, the counterparty that is interested in maintaining the contractual commitment in place may offer to rebalance the relevant agreement within the limits of normal risk, thus avoiding termination.

In any event, it is worth noting that both remedies – aside from the option to take the contract back to fairness – often face a practical obstacle: in the context of commerce, contract termination may not be a suitable remedy, as it would completely erase the business relationship. In this regard, during the Covid-19 pandemic (an exceptional event par excellence), the Italian Supreme Court expressed support for the existence of an obligation to renegotiate the contract rather than seeking termination (see Corte di Cassazione, Ufficio del Massimario, relazione tematica no. 56/2020).

An alternative might be to invoke the application of general principles of supplementary equity and good faith in contractual performance, with respect to which scholars has already acknowledged the possibility of claiming a general duty to renegotiate the contract upon the occurrence of supervening circumstances.

2.2 Contract remedies

As discussed, the provisions of the Italian Civil Code mainly offer remedies that lead to contract termination, which often do not align with the commercial need to preserve existing business relationships.

To encourage the use of conservative remedies, one solution may lie in the prior arrangement of specific contractual renegotiation clauses.

In this regard, commercial contracts often include certain clauses that are commonly used in both domestic and international commercial practice, that contractually regulate the effects of supervening events that may impact the contractual balance.

The most common contractual provisions in business practice include:

• force majeure clauses;

• hardship clauses;

• material adverse change (MAC) clauses.

Force majeure clauses regulate cases in which the contractual obligation becomes impossible due to the occurrence of an event specified in the relevant agreement. The application of the force majeure clause results in the suspension of the affected party’s obligations and may, subsequently, lead to the termination of the contract or grant the parties the right to terminate it.

The applicability of such clauses in relation to the introduction of tariffs must be assessed in light of their precise wording, even though – as previously noted – the new customs duties generally do not result in an actual impossibility of performance. A detailed review of the specific events covered by the clause is therefore necessary.

On the other hand, hardship clauses place an obligation to renegotiate contractual terms upon the occurrence of certain circumstances that make it excessively onerous for either party to perform the contract.

This remedy seems to offer a more viable solution in the context of the newly introduced tariffs. First, hardship clauses do not strictly refer to impossibility of performance (similarly to the Italian remedy of supervening hardship). Second, the preservative nature of the remedy may represent a more suitable solution for commercial purposes.

Finally, MAC clauses entitle one party to terminate the contract upon the occurrence of a specified “material” event (unless a so-called “right to cure” is provided, allowing the other party to remedy the consequences of the supervening event. However, it is still appropriate to undertake a case-by-case assessment to determine the actual applicability of the clause.

3. CONCLUSIONS

The introduction of the new customs tariffs by the United States raises several questions regarding the future of trade relations between the United States and Italy.

Pending the developments of the policies undertaken by the U.S. government, it is advisable to consider the inclusion – in commercial agreements under negotiation – of adequate provisions aimed at mitigating the risks arising from the high degree of uncertainty in the international context, with an eye to any potential mitigants that may be adopted by the European Union – such as providing specific clauses that clearly allocate the burden of newly imposed customs duties and/or provide for price revision mechanisms.

As for commercial agreements already signed, the performance of which may be impacted by the tariffs, it will be necessary to assess on a case-by-case basis the potential triggering of legal and contractual remedies.

Legislative Decree No. 138/2024 generally applies to medium and large enterprises in 17 critical and highly critical sectors (besides public administrations and certain other types of entities identified directly by the National Cybersecurity Agency (ACN)) and imposes on NIS entities obligations that can be grouped into the following categories:   

• obligations to register and update information: every year NIS entities must register or update their registration on the ACN web portal, specifying their point of contact and providing a series of information relating, among other things, to the activities carried out and services provided;

• obligations relating to security measures: NIS entities are required to adopt appropriate and proportionate technical, operational and organisational measures to manage the risks posed to the security of the information and network systems used in their activities or in the provision of their services;

• obligations relating to incident notifications: NIS entities must notify the CSIRT, according to a multiple-stage approach and without delay, of security incidents that have a significant impact on the provision of their services;

• obligations for administrative and management bodies: administrative and management bodies, which are responsible for breaches of NIS regulations, are required to undergo training in IT security and to promote the periodic offer of IT security training for their employees.

If your organisation is an NIS entity or you assume it will become one during the course of this year, here is a calendar with the dates to remember to ensure compliance with Legislative Decree No. 138/2024.

If you need assistance and support to fulfil the obligations of the NIS regulations, please contact your reference professionals. 

Accepting the objection raised by the counter interested party, the Regional Administrative Court ruled that pursuant to Article 119, paragraph 1(f) and paragraph 2 of the Code of Civil Procedure in judgments concerning disputes relating to measures concerning the procedures of occupation and expropriation of areas intended for the execution of public works or of public utility, all the ordinary procedural terms are halved (except, in first instance judgments, those relating to the notification of the appeal and the additional grounds), including the term for the transposition of the extraordinary appeal to the court by filing the notice of constitution pursuant to Article 48 of the Code of Civil Procedure, which constitutes a time limit of a procedural nature and must therefore be met under penalty of inadmissibility (see, ex multis, T.A.R. Veneto, Sec. II, 31 May 2024 no. 1251).

Pursuant to article 48, paragraph 1 of the Code of Civil Procedure, if the party against whom an extraordinary appeal has been filed lodges an opposition, the proceedings shall continue before the competent regional administrative court ‘if the appellant, within the peremptory term of sixty days from receipt of the notice of opposition, files with the relevant secretary's office the notice of appearance before the court, notifying the other parties thereof’.

It is, therefore, already with the opposition to the extraordinary appeal that the jurisdictional phase of the case opens, without the filing of the notice of appearance being considered as “service of the application initiating proceedings” - to which the shortened time limit would not apply -.

In fact, the notice of appearance is limited to re-submitting the appeal already lodged in the administrative proceedings, which cannot be supplemented or amended in its grounds and conclusions, and cannot, therefore, in any way be equated with the lodging of the appeal, which has already been lodged, with the result that, for matters subject to the special procedure under Article 119 of the Code of Administrative Procedure the filing of the writ of summons after the reduced term of thirty days from the date of opposition renders the appeal inadmissible due to the lateness of its filing for the purposes of transposition (see also Council of State, Section VII, 9 February 2023 no. 1443; Regional Administrative Court of Emilia-Romagna - Parma, 6 August 2024 no. 217).

While Article 15 provides, in fact, that the procedural provisions repealed by Annex D shall continue to apply to ongoing procedures, i.e. to those procedures for which the verification of the completeness of the documentation submitted in support of the project is in progress, “without prejudice to the right of the proponent to opt for the application of the provisions of this decree”, Article 1, paragraph 3, provides that, pending the implementation to the principles set forth in the new regulation by the Regions and local authorities (which must take place within 180 days of its entry into force), the rules previously in force shall continue to apply. 

In its reply of 26 March to Question No. 5-03777, the X^th Commission of the MASE clarified that, as of 30 December 2024, “any new initiative that is not among those for which the verification of the completeness of the documentation accompanying the project is complete at the date of entry into force, is subject to the new provisions as regards both the type of administrative regime and the competent administration”.

The MASE also clarified that, with reference to the provision in Article 1, paragraph 3, the aforementioned “implementation” refers to merely organisational aspects of the individual competent administrations, with regard to, inter alia, the complete digitalisation of administrative procedures.

In conclusion, the provisions of the TU FER shall be considered immediately applicable with respect to “new initiatives”, which include, in addition to applications for authorisation submitted after 30 December 2024, also those submitted prior to that date but for which the verification of the completeness of the documentation has not been completed by 30 December 2024.

The Court held that this circumstance alone cannot integrate the hypothesis of artful splitting, given that Article 29 of the Ministerial Decree of 23 June 2016, in its entirety, provides that this element may be considered, at most, as ‘circumstantial’ and not as a constitutive element of the abusive case.

In particular, in the view of the Council of State, from the analysis of Article 29 of the Ministerial Decree of 23 June 2016, which provides that the GSE ‘in applying the provisions of Art. 5, paragraph 2, verifies, moreover, the existence of elements indicative of an artificial fractioning of the power of the plants’, it becomes clear that ’the uniqueness of the node for the collection of the energy produced can at most be assessed as a possible element indicative of an artificial fractioning, but cannot in any way be considered - by virtue of an unforeseen absolute presumption - an element alone sufficient to configure an artificial fractioning’.

In this perspective, for the Court, the interpretation given by the GSE first, and by the TAR, then, being focused on the enhancement of Article 5, paragraph 2, letter b)[1], of the Ministerial Decree of 23 June 2016 according to which there would always and in any case be a ‘single plant’ in the case of ‘plants located in the same cadastral parcel or on contiguous cadastral parcels’, only because both PODs are located in the same cadastral parcel, would entail the inadmissible abrogation of the part in which the same art. 5, paragraph 2 makes art. 29 of the Ministerial Decree of 23 June 2016 save, generating ‘an inadmissible logical-legal short circuit’.

Another very interesting point of the ruling concerns the breach of the principle of legitimate expectations by the operator owner of the two wind plants which, at first, had been challenged by the GSE in its rejection notice, among other impeding reasons, on the possibility of an artful splitting, whereas the final rejection measures adopted by the GSE did not contain such complaint. 

This had led the company to believe that its plants were no longer considered by the GSE to be interconnected, with the result that, following the publication of the new calls for the incentives, it had decided to participate, subject to registration in the Register of the two plants (with a capacity of 3 MW and 2.4 MW, respectively) instead of the tender procedure (provided for plants with a capacity of over 5 MW).

It follows that the conduct of the GSE was censured by the Council of State as being contrary not only to the literal datum and ratio of the provisions on the subject of artful splitting but also to the principle of the legitimate expectation engendered in the operator, which is configured ‘by reason of the reasonable belief in the legitimate exercise of public power and the reasonable belief in the work of the administration in accordance with the principles of fairness and good faith, identifying in this the twofold parameter ’to which to anchor‘ the ’trust‘, ’belief‘ or ‘expectation’ of the private individual’ (ex multis, Council of State, Sec. IV, 27 December 2024, no. 10415).

[1] According to which ‘without prejudice to Article 29, the following shall be considered for the purposes of determining the power output of the plant, including the threshold value referred to in paragraph 1: ... b) several plants supplied by the same source, at the disposal of the same producer or traceable, on corporate level, to a single producer and located in the same cadastral parcel or on contiguous cadastral parcels shall be understood as a single plant, with a cumulative power equal to the sum of the individual plants’.

With the arrival of Patrizio Bernardo and his team, which includes Claudia Schmiedt (senior associate), Francesca Retus (associate), two trainees (Sara Salmeri and Emiliano Ferrari) and one staff member (Angelica Tamburrano), the practice is further enhanced, reaching a total of 28 professionals.

Patrizio Bernardo has a solid experience in labour law, both at national and international level, assisting medium and large-sized companies in all matters relating to the management of employment relationships, both in and out of court, including, in particular, the drafting of employment contracts for managers and post-contractual non-compete agreements, remuneration policies, health and safety at work, individual and collective dismissals, management of social shock absorbers, industrial relations and negotiation of collective agreements.

"With his expertise, Patrizio Bernardo will further contribute to the strengthening of ADVANT Nctm's position as a reference point in the field of labour law. We are excited to welcome him and his team and are certain that this collaboration will bring further added value to both our firm and our clients, while contributing to ADVANT Nctm's continued growth" commented Paolo Montironi, Senior Partner of ADVANT Nctm. 

With Patrizio Bernardo, the total number of ADVANT Nctm partners rises to 79.

Legislative procedure

On the night of Thursday 20 March 2025, the Senate of the Italian Republic approved the bill on artificial intelligence (the “AI Bill”) that will supplement, at domestic level, the rules laid down in Regulation (EU) 2024/1689 (better known as “AI Act”). 

Almost a year after it was submitted to Parliament, the AI Bill has been given the green light by the Senate with minor amendments. The ball is now in the Chamber of Deputies’ court. However, in order for the provisions to be actually implemented, it will be necessary to wait (even after final approval by Parliament) for the Government to adopt legislative decrees on the matters delegated to it. 

The (long) time taken by the Senate to approve the AI Bill can also be explained in light of the opinion issued by the European Commission, which identified a number of inconsistencies with the AI Act. As outlined below, such inconsistencies have been only partially resolved.

The bill

The objective of the AI Bill is to further strengthen the level of protection in relation to the use of artificial intelligence with specific reference to certain areas and sectors.

The structure of the AI Bill is as follows.

The first part establishes the guiding principles and defines the national strategy in relation to the use of artificial intelligence.

The second part instead contains specific-sector provisions, aimed at increasing the level of transparency in the following areas and sectors:

• healthcare  and scientific research;
• world of work and intellectual professions;
• judicial activities;
• public administration;
• national security;
• user protection and copyright.

The third section is dedicated to governance and identifies the competent national authorities in this regard, namely:

• the Italian Agency for Digital Italy (AgID), as notifying authority; and
• the Italian Agency for National Cybersecurity (ACN), as supervisory authority.

Finally, the fourth part is dedicated to criminal protection and establishes a series of aggravating circumstances in relation to the use of artificial intelligence systems in the commission of certain crimes, while introducing a new type of crime that punishes the unlawful dissemination of so-called deep fakes.

Changes to the original text

Compared to the original version of 23 April 2024, the new text of the AI Bill has undergone few changes, all of minor importance, including, in particular, the following:

• the removal of autonomous definitions of the terms “artificial intelligence systems” and “artificial intelligence models”, while referring to the definitions in the AI Act;
• the processing of personal data for research and clinical trial purposes will be specifically regulated by a decree issued by the Ministry of Health;
• the granting of specific powers to the government to set out comprehensive regulations on the use of data, algorithms and mathematical methods in the training of artificial intelligence systems.

The Commission’s remarks

As mentioned above, the EU Commission made a number of remarks to the Government about the original text of the AI Bill, deemed to be excessively restrictive. 

More specifically, in its detailed opinion C(2024)7814, the Commission  voted down the bill for three reasons:

• definitions cannot deviate from those used in the AI Act;
• intellectual professions, judicial activities and healthcare are at risk of being overburdened by excessive obligations;
• the appointed governance authorities, AgID and ACN, are governmental authorities that cannot ensure full independence.

Final considerations

While the first issue has been addressed and resolved, the remaining issues do not appear to have been taken into consideration. Areas of potential incompatibility with European regulations on artificial intelligence therefore persist.

The question at this point is: will the AI Bill be approved as it stands, or will lawmakers take the Commission’s opinion into account and revise its content? All we can do is wait for the decision of the Chamber of Deputies.

The increasing reliance on digital services is driving an unprecedented demand for data processing and storage infrastructure. Data centres, some of the most energy-intensive infrastructures globally, are central to the digital and artificial intelligence revolution. Their energy and water consumption can no longer be overlooked. 

Despite their high energy consumption, data centres remain ineligible for benefits designated for companies at high risk of relocation.

Furthermore, the ATECO code (63.11), assigned to data centres as of 1 January 2025, does not qualify for the benefits available to energy-intensive companies.

The European and National Regulatory Framework

With Regulation (EU) 2024/1774 of 13 March 2024, the European Commission has set up a new data centre sustainability rating system aimed at enabling comparisons between data centres and promoting new or appropriate efficiency measures in new or existing data centres, which may result not only in a considerable reduction of water and energy consumption, but also in a wider use of renewable energies, increased network efficiency or the re-use of waste heat in surrounding facilities and heating networks. 

Notably, the regulation specifies the information and key performance indicators (KPIs) that data centre operators with an installed IT power demand of at least 500 kW must report to the European database. These metrics are essential for establishing a classification system for data centre sustainability and a standardized EU-wide measurement and calculation methodology.

To date, there are no regulations specifically dedicated to data centres in Italy.

The first legislative proposal on this topic, known as “DDL Pastorella,” dates back to 24 June 2024. It grants the government authority over the organization, enhancement, and technological advancement of data processing centres, aiming to

a) provide for a general regulation of data processing centres, in compliance with constitutional principles, European Union law and international law, defining, in this context, simplified authorisation procedures for the construction of new infrastructures and a related ATECO code; 

b) ensure the strengthening of the national electricity grid to guarantee the concrete implementation of infrastructural development;

c) promote technological development and support the digital economy, by encouraging public and private investments in technological innovation for the data processing centre sector;

d) encourage the recognition and growth of the sector, optimising the use of resources and reducing the environmental impact, in compliance with the principles of bureaucratic simplification and the provisions on IT security and data protection; 

e) define the parameters and levels of security, resilience, recovery and energy efficiency of data processing centres, in compliance with the relevant international standards and provisions;

f) facilitating the digital transformation of public administrations and enterprises and the provision of high-performance services to citizens through the development of design, construction and maintenance skills for high-technology infrastructures;

g) adopting initiatives to ensure Italy's competitiveness in European infrastructural and digital strategies and technological sovereignty for data processing centre infrastructures; 

h) promoting training and the development of specific skills in the data processing centre sector, also by envisaging the establishment of specific educational programmes in cooperation with higher education institutions.

Bill no. 1259 of 2025 (“DDL Basso”) largely incorporates the provisions of DDL Pastorella while introducing additional objectives, specifically

a) to facilitate the reuse and redevelopment of sites with the presence of disused or decommissioned coal-fired power plants for the construction of new data processing centres and supporting energy infrastructures, also through financial incentives;

b) to create an inter-ministerial steering committee composed of the Ministry of Business and Made in Italy and the Ministry of the Environment and Energy Security, to coordinate the development of data processing centre infrastructures;

c) consider the acceleration of applications for new data centre projects involving the use of clean energy solutions, innovative experiments in district heating and cooling, and the reduction of water demands;

d) support environmentally friendly energy storage systems to make data centres more sustainable and efficient. 

Both bills do not indicate what type of incentive mechanism should be adopted, nor the types of authorisation procedures to be implemented in the abstract. Neither do they indicate on the basis of which principle the incentive would be compatible with EU state aid rules.

Existing Incentives and PPAs

Currently, no incentive mechanisms are specifically designed for data centres. However, from a regulatory point of view, data centres constitute “consumption units”. As such, they can constitute a configuration of self-consumption (individual or, if the relevant conditions are met, collective), with direct connection or via the public grid to plants producing electricity from RES.

Self-consumption via the public grid is incentivized by Ministerial Decree No. 414 of 7 December 2023 (“DM CACER”). This decree establishes the framework for granting incentives, promoting the development of renewable energy plants integrated into energy communities, self-consumer groups, and remote self-consumption setups. 

In particular, the CACER Ministerial Decree incentivises the share of energy “self-consumed” by the consumption unit and produced by the production unit. The same energy is also subject to a contribution for the valorisation of self-consumed electricity.

Individual self-consumption with direct connection to the production unit, on the other hand, may alternatively configure, at the choice of the parties and according to the greater convenience

• a Simple System of Production and Consumption pursuant to the Integrated Text of Simple Systems of Production and Consumption, which, in a nutshell, benefits from a discount on system charges;

• a remote self-consumption with a direct line pursuant to the Integrated Text of Diffuse Self-Consumption, which benefits only from the contribution for the valorisation of the self-consumed energy.

Obviously, the two latter configurations allow the end customer, in addition to the above-mentioned advantages, a direct saving in the bill equal to the lesser amount of energy not withdrawn from the grid and self-consumed.

Lastly, major tech companies frequently rely on virtual Power Purchase Agreements (PPAs) to secure fixed energy prices from new renewable energy plants. With the implementation of regulations designating GSE as the guarantor of last resort and the anticipated growth in electricity storage capacity, the role of PPAs could expand and diversify further, shifting from volume-based to profile-based contracts.

***

This contribution follows others in which environmental authorisations (https://www.advant-nctm.com/news-e-approfondimenti/energia-tra-innovazione-tecnologica-e-impatto-ambientale) and urban planning aspects in the Lombardy Region (https://www.advant-nctm.com/en/news/guidelines-for-the-implementation-of-data-centers) were analysed.

As is known, in EIA procedures under state jurisdiction, the Ministry of the Environment and Energy Security (MASE), as the competent authority, adopts the measure of environmental compatibility on the project after obtaining the agreement of the MiC, in accordance with the provisions of Article 25 of Legislative Decree No. 152/2006.

In particular, with reference to the PNRR projects, art. 25, paragraph 2 bis, of the Legislative Decree no. 152/2006, establishes that the PNRR-PNIEC Technical Commission expresses its opinion ‘within the term of thirty days from the conclusion of the consultation phase referred to in Article 24 and in any case within the term of one hundred and thirty days from the date of publication of the documentation referred to in Article 23, preparing the outline of the EIA measure. Within the following thirty days, the director general of the Ministry of Ecological Transition adopts the EIA measure, after obtaining the agreement of the competent director general of the Ministry of Culture within twenty days'.

In other words,the aforementioned provision outlines a procedure whereby, once the preliminary investigation phase has been completed, the PNRR-PNIEC Technical Commission renders its opinion on the environmental compatibility of the project, which is then brought to the attention of the MiC for the relative assessment. The Ministry is called upon to express its opinion within the peremptory term of twenty days from receipt of the draft measure rendered by the PNRR-PNIEC Technical Commission.

Until the recent pronouncements, it often happened that the MASE waited for several months for the expression of the MiC's consent, the lack of which led to a real deadlock in the procedure that could not be overcome except by bringing an action on the silence before the Administrative Judge.

The most recent administrative case law, starting from the interpretation of the Council of State (cf., Sec. IV, sentence no. 8610/2023) with reference to the silence of the Superintendence within the landscape compatibility procedure, has, instead, deemed applicable the institute of the silence consent between Administrations (so-called horizontal silence consent) pursuant to Article 17 bis of Law 241/1990, also in the case of a Statal EIA procedure.

Article 17 bis, in regulating the effects of inaction between public administrations, introduces the institution of horizontal silence of consent once the time limits granted by law for the issue of an opinion have elapsed. This institute, by express provision of paragraph 3, also applies in cases where sensitive interests are at stake and, therefore, in cases where the acquisition of consents, concerts or nulla osta of administrations in charge of the protection of the environment, the landscape or the cultural heritage’ is required. 

Substantially, the most recent administrative case law stigmatizes the illegitimacy of opinions and technical-instructional contributions adopted in violation of peremptory terms of the law, excluding their preclusive scope with respect to the conclusion of the procedure and, on the contrary, recognising that delay as silence consent between administrations once the terms for the issue of opinions have elapsed, since the delay cannot entail an indefinite suspension of the EIA procedure in damage of the applicant.

On 26 November 2024, at the GSE headquarters, the Ministry of the Environment and Energy Security presented the National Hydrogen Strategy (hereinafter, “Strategy”), a policy document outlining the objectives of the Country to enhance the role of hydrogen - and, in particular, green hydrogen[i] - in the Italian energy transition process, to achieve the decarbonization targets set out in the National Integrated Energy and Climate Plan (“PINIEC”) to 2030 and Net Zero to 2050.

As is well known, in fact, hydrogen is called upon to play a fundamental role in the so-called hard-to-abate (HTA) sectors of industry (steel, foundries, ceramics, glass cement) as well as in other more specific sectors such as mobility, heavy or long-haul land transport, the maritime sector and air transport.

Moreover, at present, its use is limited to that of a technical gas, i.e. a production factor used in some specific industrial processes (oil refining, fertilizer production, etc.) or to use as a fuel in sustainable mobility pilot projects but it has not yet found a significant use for heat production through combustion.

Contrarywise, this gas could take on an important role as an energy carrier, as it can potentially be produced from all primary energy sources - renewable (bio and non-bio), fossil and nuclear, and as it has a certain degree of universality for certain end uses.

The Strategy is therefore articulated along three fundamental lines, namely: (i) hydrogen demand; (ii) hydrogen production and supply; and (iii) hydrogen transport and infrastructure. In each of these areas, the Strategy has developed three scenarios, namely the “base” scenario, the “intermediate” scenario and a final “high employment” scenario, which are followed by a chapter on strategic actions, policies and supporting measures, setting different time horizons between now and 2050.

With regard to the short-term horizon (up to 2030), the Strategy envisages that hydrogen demand will be driven by the European obligations of RED III, in compliance with which Italy has already taken steps to support the emergence of an ad hoc market, thanks to the resources made available by the PNRR that will finance the first operational production projects by 2026. The Strategy aims to implement measures to facilitate the realization of such projects, working on incentive schemes to lower the cost of hydrogen, intervening to support the value chain up to the end user, as well as to simplify environmental and safety regulations and authorization paths. 

At this stage, production and consumption will be mainly concentrated in confined areas (so-called Hydrogen Valleys), capable of creating synergies between different sectors, from mobility to industry, and bringing supply and demand closer together. This embryonic development phase of the supply chain and market should make it possible to use renewable and low-carbon forms of hydrogen so that the first significant quantities of hydrogen with specific guarantees of origin will be available immediately. This development will also be accompanied by the development - at local level - of transport and logistics infrastructures.

The sector's potential growth in the medium term will instead be driven by emission reduction policies, favoured by the increasing availability of H2 technologies, as well as supported by measures designed to meet European obligations and by the National Recovery and Resilience Plan (“PNRR”) to allow the emergence of a true hydrogen market, including through the development of large-scale solutions capable of cutting operating costs. With respect to the short-term scenarios, in the medium term, demand is expected to increase in the maritime and air transport, HTA industry, heavy-duty and long-haul mobility sectors. 

In the long-term scenario, 2050 will represent the end point of Net Zero commitments, with hydrogen penetration reaching 18% of final consumption in the HTA industry and 30% of final consumption in the transport sector. The infrastructure will play a key role in the exchange of energy with other countries, consolidating Italy's role as a hydrogen import hub for Europe with gas network infrastructures connected to North Africa and a set of ports, enabled for the import of hydrogen (and other energy vectors, including ammonia, methanol, etc.).

The Strategy, considering the variability of production from non-programmable renewable sources, which makes it very useful to include different types of storage systems in the electricity grid, emphasizes the ability of hydrogen, by its very nature, unlike batteries and almost all technologies currently considered for storage, to allow the storage of large quantities of energy even over relatively long periods.

In the scenarios envisaged by the Strategy, importing hydrogen will be a necessary (as well as cost-effective) option to cover part of domestic demand.

In this regard, the construction of an Italian pipelines dedicated to hydrogen transport, part of the broader Southern Hydrogen Corridor, is particularly important in terms of infrastructure.

The demand for hydrogen could, in fact, be covered by a supply of hydrogen partly produced in Italy and partly imported; the subject of possible hydrogen imports has already found its way into the final version of the PNIEC sent to the European Commission on 1 July 2024. In fact, according to the PNIEC policy scenario, it is estimated that at least 70 per cent of demand will be met domestically, while the residual will be imported. Imports will therefore already play an important role in the short term for the spread of hydrogen, in the hope that an international market will develop.

In the long term (beyond 2030), it is also likely that both Italy and Europe will not be able to produce enough hydrogen, especially green hydrogen, locally to cover all future demand.

Thanks to its geographical location and the existing natural gas transport infrastructure network (to be adapted to hydrogen transport), Italy has the opportunity to become a hub for the import, production and export of renewable hydrogen, connecting North Africa with Europe. This role is further strengthened:

(i). by the number and distribution of natural gas storage sites available in the country, which could be converted to hydrogen storage, increasing the security and balancing of the system; 

(ii). by the availability of sea ports for imports from the Mediterranean and Middle East of energy carriers (e.g. ammonia) to be converted into hydrogen.

A major role in the supply of renewable hydrogen in the European Union could be played by the Southern Hydrogen Corridor (“SoutH2 Corridor”).

As part of the joint activities for the development of a SoutH2 Corridor (which, crossing Italy, Austria and Germany, will allow the import and supply of low-cost renewable hydrogen, produced in the countries of the southern Mediterranean probe, to the main demand clusters in Italy and Central Europe), the Ministry for the Environment and Energy Security has been working with the German and Austrian Ministries to evaluate hypotheses of collaboration on specific tools to support import. 

The latest act in this ambitious project dates back to 21 January 2025: Italy, Germany, Austria, Algeria and Tunisia have, in fact, signed a letter of intent committing to the construction of the South Hydrogen Corridor (about 4,000 km long), which will connect production centers in North Africa with the heart of Europe. 

Five sub-projects with a transport capacity of up to 163 TWh per year are planned for the realization of the South H2 Corridor. For Europe, 60-70% of the projects concern the conversion of existing pipelines. The various sections of the Corridor have been recognized by the EU as Projects of Common Interest (PCI) and have been granted “Global Gateway” status by Brussels.

In the declaration, the signatories pledged to strengthen cooperation for the development of the infrastructure through a joint working group of five members, which will meet every six months, in order to coordinate national policies, exchange experiences to ensure the effective implementation of the project, identify financing needs and risk-reducing mechanisms, and develop the necessary expertise.

Moreover, the supply of hydrogen from imported energy carriers would have a positive impact for Italy in terms of diversification of energy supplies, already in the short/medium term, and in terms of preparing for the widespread use of hydrogen, through dedicated infrastructures contributing to supplying renewable hydrogen at a more competitive price to Italian industries. Furthermore, the role of ports would be enhanced, converting them into new renewable energy hubs that would act as catalysts for the development of demand, similar to what is already happening in Northern Europe. This could also have positive spin-offs in terms of developing skills and a dedicated hydrogen logistics chain.

Related to the issues of the hydrogen supply and market is undoubtedly the issue of its traceability and certification of its origin. In May 2024, the Council of the European Union finally adopted a regulation and a directive (so-called hydrogen and gas market package), which aims, among other things, to create a regulatory framework for hydrogen infrastructure and markets and for integrated network planning. In particular, the package envisages the issuing of gas quality standards and its monitoring, also following blending; it also envisages the development of a low-carbon hydrogen certification scheme. The certification scheme (it also extends to derivative products) is to be developed in line with what is already envisaged for renewable hydrogen of non-organic origin, thus completing the regulatory framework for the traceability and certification of hydrogen and “low-carbon” fuels, whether produced in the EU or imported.

***

The Strategy envisages several scenarios, emphasising that the multiplicity and complexity of hydrogen development issues means that a number of factors must be taken into account that cannot be fully determined well in advance of the time when a broad deployment of technologies will be needed. Hence the choice of several scenarios to chart a medium- to long-term course on the use of hydrogen.

In the ‘high employment’ scenario, the hydrogen carrier is given a very important role, although differentiated sector by sector. In contrast, the ‘base’ scenario, while recognizing a significant contribution to hydrogen, assumes a longer delay in the maturation and achievement of competitiveness of this vector. 

The scenarios to 2050 estimate hydrogen consumption at between 6.4 and 11.9 million tonnes per year (6.39 million tonnes in the ‘base’ scenario, 9.08 million tonnes in the ‘intermediate’ scenario and 11.93 million tonnes in the ‘high employment’ scenario). The ‘high employment’ scenario envisages consumption covering 30% of transport, 18% of hard-to-abate industry and 0.7% in the civil sector in 2050. 

The projected investments vary according to the share of domestic production and import: a scenario with 70% domestic production and 30% import and a scenario with 80% import and 20% production. In the scenario with 70% domestic production, EUR 8-16 billion is estimated for 15-30 GW of electrolysis, while with 80% import the expenditure is reduced to EUR 2-5 billion for 4-9 GW.

[i] Hydrogen is often classified according to the production chain used. However, one may still come across terminology, which is not official, referring to colors: (i) grey hydrogen, produced from fossil sources without capturing the CO2 produced; (ii) blue hydrogen, produced from fossil sources but capturing the CO2 produced; (iii) green hydrogen, produced from renewable sources; (iv) pink hydrogen, produced from nuclear sources; (v) white hydrogen, of geological origin. The European Hydrogen Strategy (COM/2020/301), on the other hand, refers to different types of hydrogen, classifying them as follows 1) electrolytic hydrogen, produced through the electrolysis of water in an electrolyser powered by electricity, irrespective of the source of the latter; 2) renewable (or clean) hydrogen, produced through the electrolysis of water by electricity from renewable sources 3) hydrogen of fossil origin, produced through various processes whose raw materials are fossil fuels; 4) hydrogen of fossil origin with carbon capture, characterised by the capture of greenhouse gases emitted during the production process; 5) low carbon hydrogen, which includes hydrogen of fossil origin with carbon capture and electrolytic hydrogen.

The Regional Administrative Court, upholding the appeal brought against the denial measure issued at the end of the simplified authorization procedure for the construction of photovoltaic plant, with a nominal capacity of 4MW, rejected the Administration's argument that the project did not fall within a suitable area because it was more than 500 meters away from industrial plant, since the Terna station had to be consider as “technological infrastructure.”

Recalling some rulings of the Supreme Court that have recognized the “industrial” character of the activity related to the production of energy developed by wind farms and hydroelectric power plants (see Cass. civ, Sec. V, ruling Nos. 14042/2020 and 14007/2024), the Court considers that the notion “industrial plant” should be interpreted “not in a restrictive sense - that is, as an industrial activity functional to the transformation of materials into new products - but also as an activity aimed at the transformation of hydrostatic potential energy into kinetic energy and, therefore, into electrical energy”. 

The Regional Administrative Court points out how, the reason behind Art. 20 paragraph 8 letter c ter) Legislative Decree 199/2021 - which establishes, even if transitory, the criteria relating to the identification of areas suitable to host the installation of photovoltaic plants - is based on the need to “promote urban decorum and therefore to concentrate, where possible, renewable energy plants in areas already with a strong urban impact”.

The Lazio Regional Administrative Court, therefore, further extends the concept of “industrial plant”, in a sense not dissimilar to what the MASE had already done, with answer no. 130318 to the interpellation of the Municipality of Villalba, last 8 August 2023, recalling in the definition of “establishment” provided in art. 268, paragraph 1, letter h) of Legislative Decree, 3 April 2006, No. 152, recognizing the nature of “industrial establishment” also to ground-mounted photovoltaic plant with a nominal capacity exceeding 20 kW, considering that even a photovoltaic plant can be identified as a “unitary and stable complex or industrial establishment since it is made up of a set of, for example, modules, inverter, storage system, monitoring system that are interconnected as an overall production cycle, and that the qualification of establishment also refers to the place used in a stable manner for the exercise of one or more activities”.

Artificial intelligence is beginning to make a relevant contribution within the scope of its operations to players in the financial market. We try to take stock of the consequences with Fabio Coco, Partner at ADVANT Nctm.

Artificial intelligence use cases can bring great benefits to businesses in the financial world. Can we give some examples? In particular, artificial intelligence has been used to detect potential fraud against the payment service provider and customers. The ability to analyze large amounts of data makes it possible to identify anomalies in transactions to detect fraud attempts, but also to profile customer habits and identify transactions that deviate from these so-called patterns even through forms of “adaptive learning” i.e., tools that update their parameters, learning from the data in real time.

Full Article on Plus 24 - Il Sole 24 Ore

For a more complete analysis of the document, it seems useful to also delve into the contents of the related Illustrative report (“Illustrative Report”) for which the DDL delegates the government to define a regulatory framework for the production of energy from sustainable nuclear sources suitable for attracting private and public investment and is part of the strategic policies aimed at ‘ensuring the supply, economic development, national sovereignty and the country's independence’ in the geopolitical context, within the framework of decarbonization goals and also aiming at ‘cost sustainability for end users (domestic and non-domestic) and the competitiveness of the industrial system’.

SMR, AMR, microreactors, and fusion: new technologies that remove constitutional barriers and respect the principle of technology neutrality

In this broad scenario, the government considers it necessary to equip itself with a supply of electricity produced on a continuous basis over time being convinced that the goals of decarbonization and energy independence could hardly be achieved with renewable sources alone, which are characterized by the non-programmability and non-complete predictability of production, thus recalling the second scenario outlined in the PNIEC, according to which, by 2050, nuclear energy can cover between 11% and 22% of demand, with 8-16 GW of installed nuclear capacity.

The Illustrative Report points out that the technologies - SMRs (Small Modular Reactor), AMRs (Advanced Modular Reactors), microreactors and nuclear fusion power - besides still being under development should ensure high standards of safety and efficiency. It follows that, the current regulatory intervention would not find any obstacle in the referendums by which Italy renounced, in 1987 and 2011, the production of energy from nuclear sources, also in light of constitutional jurisprudence, which sees a limit descending from previous referendum abrogations, only if, over time, there had been ‘no change in either the political framework or the factual circumstances’ (Constitutional Court, Sent. 199/2012). 

The Illustrative Report also recalls the principle of technological neutrality for which it should be the market that chooses among the various options the most effective and competitive ones.  To date, however, there is no information available regarding the cost of new technologies.

Next steps: related terms exceed the duration of the legislature

Specifically, Article 1 of the DDL, recalling the purposes already analyzed, provides that the Government shall exercise the delegation of authority within 12 months of the law's entry into force, adopting one or more legislative decrees to regulate the production of nuclear energy in Italy, including for the purpose of hydrogen production. Within 24 months of the entry into force of each decree, the government may adopt one or more legislative decrees with supplementary and corrective provisions, including for the purpose of drafting a single text. 

There is therefore a very real likelihood that a complete regulatory framework applicable to new investments in energy production from renewable sources will not be defined during the current legislative term.

The provisions of the DDL

Among others, the delegation is concerned with: 

(i) the preparation of an organic regulation of the entire life cycle of nuclear, from experimentation and design to the licensing of plants, their operation, and the management, storage and disposal of radioactive waste and the decommissioning of plants, in compliance with quality and safety standards guaranteed and validated by international and supranational bodies; 

(ii) the delivery by project promoters of adequate financial and legal guarantees to cover the costs of construction, operation and decommissioning of the plant and for the risks, including those not directly attributable to them, arising from nuclear activity; 

(iii) the regulation of ways to support the construction of plants and the production of energy from sustainable nuclear sources; 

(iv) the regulation of the testing, siting, construction and operation of new plants for the production of energy from sustainable nuclear sources, plant for temporary storage as well as, if not processable, recyclable or reusable, final disposal, radioactive waste and spent fuel;

(v) the regulation of decommissioning and dismantling of existing nuclear plants on the national territory;

(vi) ways of promoting research and development activities, including through forms of incentives for related investments; 

(vii) the discipline on safety, supervision and control, including through the establishment of an independent administrative authority and the reorganization or abolition of the bodies and entities with competencies in this area.

In Article 3, the DDL sets guiding principles and criteria for the drafting of legislative decrees, including:

(i) as to authorization aspects: (a) the provision of a single permit for the construction and operation of the plants that also constitutes a variant to the urban planning instruments in force; (b) the provision that the interventions are of public utility, nondeferrable and urgent and that the permit may include, where necessary, the declaration of immovability and the affixing of the constraint preordained to the expropriation of the property included therein; (c) the provision of integrated enabling procedures involving the Ministry of the Environment and Energy Security, respecting the powers of the independent authority to be established; 

(ii) as to economic, guarantee and incentive aspects: (a) the provision of adequate financial instruments, with charges to be borne by the licensed entity, to guarantee the management of the entire life cycle of the plant itself, up to final decommissioning, including the management of radioactive waste and spent fuel; (b) the identification of the instruments of guarantee as well as financial and insurance coverage, to be borne by the operator of nuclear activities, against risks related to the operation of such activities, including for reasons independent of the operator himself; (c) the determination of the criteria for the allocation of any forms of support for operators.

The location of the plants

Then there remains the issue of the location of new power plants and nuclear waste repositories in a country where communities often struggle to accept even the installation of photovoltaic modules and wind turbines. It is no coincidence that there a number of references to territorial contexts such as the ‘promotion and enhancement of the territories concerned’, ‘the provision of modalities for the participation of the qualified entity in the promotion, development and enhancement of the territory affected by the location of the plant, giving preference to modalities based on agreements between the entity itself and the administrations concerned’;  the ‘strict observance of the principle of loyal cooperation with the ‘circuit’ of territorial authorities for all cases in which their involvement is constitutionally necessary’, the ‘provision of forms of capillary information towards the specific populations affected by the location of the facilities, as well as consultation with them’.

High-Risk AI systems under the EU AI Act In a employment context, the new regulation concerns foremost:
a) AI systems intended to be used for the recruitment or selection of natural persons, in particular to place targeted job advertisements, to analyze and filter job applications, and to evaluate candidates. 
b) AI systems intended to be used to make decisions affecting terms of work-related relationships, the promotion or termination of work-related contractual relationships, to allocate tasks based on individual behavior or personal traits or characteristics or to monitor and evaluate the performance and behavior of persons in such relationships.

The most important requirements for high-risk AI systems at a glance 

The providers of high-risk AI systems bear the following obligations: 

• Quality and risk management
• Technical documentation, record-keeping and logging obligations
• Consideration of accuracy, robustness, cybersecurity and accessibility during development
• Transparency and information obligations
• Registration in the relevant EU database and cooperation with the competent authority

Those who only deploy of high-risk AI systems generally have to fulfil fewer requirements than providers. However, there may be scenarios in which they can be subject to the same extensive obligations as the providers of high-risk AI systems.

Looking ahead, the AI Liability is poised to complement the EU AI Act. It aims to streamline legal pathways for individuals harmed by AI systems, including in employment related situations. However, the legislative process is still in its early stages and only rarely does a directive emerge from the legislative process in the form in which it was presented by the EU Commission.

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On February 13, the Bank of Italy published on its website the supervisory provisions for the transposition of Directive (EU) 2021/2167 (so-called Secondary Market Directive - “SMD”, implemented in Italian law by Legislative Decree 116/2024) on buyers and managers of impaired loans, which contain in particular the rules for the authorization and conduct of business by managers of non-performing loans.

The main objective of the aforementioned supervisory provisions is to ensure that the managers (a new figure of supervised entity introduced with the SMD) registered in the new register under Article 114.5 of the TUB operate in a competitive, prudent and transparent manner. The supervisory provisions focus on five key pillars:

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This guide provides a practical overview of patent litigation law across jurisdictions, covering key topics like:

• Patent infringement (direct and indirect)
• Patent invalidity
• Injunctions and opposition proceedings
• Future trends in litigation

Click here to view the guide

Full Article:https://www.we-wealth.com/news/dora-cybersicurezza-banche

The FER-X Transitional Decree has been signed but has not yet been published (and therefore has not yet come into force) by the Ministry of Environment and Energy Security in implementation of Articles 6 and 7 of Legislative Decree No. 199/2021. Its goal is to support the production of electricity from renewable energy sources with costs close to market competitiveness.

2. Scope of Application

The Decree applies to electricity generation plants powered by:

• Photovoltaic

• Wind

• Hydroelectric

• Residual gases from purification processes

Agrivoltaic systems are also eligible for incentives, as they fall under the photovoltaic category. However, they do not benefit from any additional incentives or priority criteria for admission to the incentive mechanism.

The scope of application also includes full and partial revamping, as well as upgrades of existing plants, but only for the newly added section attributable to the upgrade.

The validity of the Decree is transitional, expiring on 31 December 2025, unless the power quota for plants larger than 1 MW is exhausted earlier. For plants with a capacity below 1 MW, the Decree will cease to apply 60 days after reaching the 3 GW power quota, if this occurs before 31 December 2025.

3. Support Mechanism

The Decree provides two ways to access incentives:

• Direct access for plants with a capacity ≤ 1 MW (provided they began construction after the FER-X transitional decree came into force).

• Competitive procedures (reverse auctions) for plants with a capacity > 1 MW, with assignment based on economic bids.

For plants with a capacity > 1 MW, the incentive mechanism operates only for 95% of the energy produced by the eligible plants.

The power quotas for small-scale plants amount to 3 GW, while the quotas for competitive procedures are:

• Photovoltaic: 10 GW

• Wind: 4 GW

• Hydroelectric: 0.63 GW

• Residual gas from purification processes: 0.02 GW

• Total: 14.65 GW

4. Selection Criteria and Priorities

Access to incentives is subject to compliance with environmental, technical, and economic requirements.

For plants with a capacity greater than 1 MW, a key requirement is the mandatory participation in the Balancing and Redispatch Market.

Other key requirements for these plants include:

• A valid permit for the construction and operation of the plant (producers can apply for competitive procedures with an environmental impact assessment approval if required).

• A final connection agreement and registration of the plant in Terna’s GAUDI system, validated by the grid operator.

• Compliance with performance requirements and EU/national environmental protection standards, including the “Do No Significant Harm” (DNSH) principle and Annex 3 requirements.

• Proof of financial solidity, which can be demonstrated by: 

  • A bank statement confirming the financial and economic capacity of the applicant.

  • Capitalization requirements (fully paid-up share capital and/or capital increase deposits) based on the investment value: 

    • 10% for investments up to Euro 100 million.

    • 5% for investments between Euro 100 million and Euro 200 million.

    • 2% for investments above Euro 200 million.

Plants larger than 1 MW that started construction before submitting their competitive procedure application are not eligible for incentives.

In case of excess applications compared to available quotas, priority criteria include:

• Removal of asbestos/eternit for photovoltaic plants.

• Full refurbishments and upgrades in agricultural areas without increasing occupied land.

• Location in areas classified as suitable by national regulations.

• Inclusion of storage systems to improve production scheduling.

• Long-term supply contracts (minimum 10 years).

• Earlier application submission date.

Applicants for competitive procedures must provide a temporary guarantee as project quality assurance and commit to providing a final guarantee within 90 days of the final ranking's publication.

The final guarantee is set at 10% of the investment cost based on the following technology-specific investment costs:

The temporary guarantee equals 50% of the final guarantee.

If an applicant withdraws within six months, 30% of the final guarantee is forfeited. If withdrawal occurs between six and twelve months, 50% is forfeited. If the deadline is missed entirely, the full guarantee is forfeited.

5. Incentive Modalities and Pricing

For plants <200 kW, GSE directly purchases and sells the electricity, providing a flat-rate tariff based on the awarded price. However, applicants can opt for the scheme used for plants ≥200 kW.

For plants ≥200 kW, support is granted through a two-way Contract for Difference (CfD):

• If the market price is below the awarded price, GSE compensates the difference.

• If the market price is higher, the producer reimburses the difference.

The market price is the day-ahead market price (PZ) from GME.

The awarded price depends on competitive bidding, but current reference "ceiling prices" are:

• Photovoltaic & Wind: €95/MWh

• Hydroelectric: €105/MWh

• Residual gas: €100/MWh

Additional price corrections:

• +€27/MWh for photovoltaic plants replacing asbestos/eternit.

• +€5/MWh for installations on water surfaces.

Market-negative or zero-price situations:

• For plants participating in the Balancing Market, incentives apply only to the electricity that could have been produced.

• For plants not in the Balancing Market, incentives are suspended for the negative/zero-price period.

In case of curtailment (production cuts), incentives apply only to curtailed volumes.

6. Construction Deadlines and Penalties

Plants must be operational within 36 months of the ranking's publication (except in force majeure cases).

Delays result in progressive tariff penalties:

• 0.2% per month for the first 9 months of delay.

• 0.5% per month for the following 6 months.

• After 15 months, eligibility for incentives is revoked.

• If the plant later reapplies for support, the tariff is reduced by 5%.

Failure to meet deadlines results in the forfeiture of the final guarantee.

7. Publication and Next Steps

The decree has not yet been published and will come into force the day after its publication on the Ministry of Environment and Energy Security (MASE) website.

Within 90 days of its entry into force, further regulations will be issued by GSE and ARERA, covering:

• ARERA: Setting auction prices for plants ≤1 MW.

• ARERA: Publishing reference "ceiling prices."

• ARERA: Technical and procedural rules for: 

  • Managing negative/zero prices and curtailment.

  • Enabling plants to participate in the Balancing and Redispatch Market.

Within the scope of Regulation (EU) 2016/679 (“GDPR”), which introduces the concept for the first time, pseudonymisation is considered one of the technical measures that the data controller or processor can use to fulfil their obligations regarding personal data protection. Specifically, the pseudonymisation procedure consists of making personal data relating to a specific individual no longer attributable to that individual, except – and this is the substantial difference with anonymisation – through the use of additional information, including any additional information that is beyond the control of the party carrying out the pseudonymisation. Such additional information (so-called pseudonymisation secrets) must be stored separately and protected by adequate security measures. The aim is to ensure that those who process the pseudonymised data are not able to attribute it to the individual to whom the data belongs. 

As stated in the Guidelines, since pseudonymised data constitutes information relating to an identifiable natural person, it remains personal data to all intents and purposes and, as such, is subject to the provisions of the GDPR. 

In this regard, the EDPB seems to adopt a very broad notion of personal data, in contrast to the recent conclusions of Advocate General Dean Spielmann in case C-413/23 P of 6 February 2025. In fact, adopting a more restrictive approach, the Advocate General emphasises that, in order to determine whether pseudonymised data should be considered personal data and therefore fall within the objective scope of the GDPR, one must take into account the reasonable likelihood that the additional information can be used by the recipient of the data to identify the data subject, as the mere theoretical identifiability of the data subject is not sufficient.

Going back to the Guidelines, a fundamental concept introduced by the EDPB is that of “pseudonymised domain”, which can be defined as the set of authorised individuals and systems that can access the pseudonymised data. Within said domain, which is to be determined by the data controller/processor, the pseudonymised data can be processed minimising the risk of re-identifying the data subjects. This logically implies that pseudonymisation secrets must be kept separate from the pseudonymisation domain. 

Keeping in mind the accountability principle, the controller is required to evaluate, also through periodic risk assessments, the likelihood of re-identification within the pseudonymisation domain, so as to ensure that the risk remains negligible throughout the entire processing period.

On the other hand, the Guidelines also provide useful operational guidance for companies and operators, giving some examples of appropriate technical measures for pseudonymisation, including:

• advanced encryption techniques, such as SHA-3 hash functions, which can be used to create pseudonymised data. To increase the security of the process, it is possible to combine such functions with a salt, i.e. a randomly and securely generated data string;

• security measures relating to the IT infrastructure, such as limiting access to pseudonomysation secrets (in concrete terms, access could be limited to system administrators only, applying also to them the principle of least privilege);

• the use of data protection engineering tools on so-called quasi-identifiers (i.e. information that, if combined, can indirectly identify an individual), including techniques such as generalisation and suppression, which modify the level of detail of the data or eliminate highly risky data to reduce the risk of re-identification.

In conclusion, the analysis of the Guidelines highlights the fundamental role that pseudonymisation can play in the application of the principle of privacy by design, as well as in some areas of business activity that are extremely sensitive from a data protection point of view, such as the management of whistleblowing channels and the transfer of personal data outside the EU. As clarified by the Guidelines, pseudonymisation can also facilitate the use of legal bases such as the legitimate interest referred to in Article 6(1)(f) of the GDPR for the processing of personal data - an approach that is certainly useful when looking for an alternative to consent and balancing the interests of companies and the rights of individuals - and favour the compatibility of the data processed by any recipients with the evaluation of the original purpose of the processing, pursuant to Article 6(4) GDPR. 

The main issue raised by the two States (which had also voted against the Directive during the approval process) is whether it exceeds the division of competences between the European Union and its Member States, as defined by the Treaty on the Functioning of the European Union (TFEU). Denmark, the main complainant, argues that the Directive exceeds such limits.

According to the Advocate General, the Directive does indeed exceed them, in that it represents a “direct interference” in the area of “pay”, which Article 153(5) of the TFEU expressly excludes from the competence of the European Union.

In essence, according to such interpretation, what matters is not only the fact that the Directive does not directly set wages, but its objective of regulating pay, no matter how strictly or flexibly. Therefore, even a procedural action aimed at regulating “pay” would constitute direct interference and breach the TFEU, it being a matter of exclusive national competence.

The action was brought by Denmark and Sweden, while Germany, France and Spain (among others) took a stand against said position.

Are Denmark and Sweden against the minimum wage?

As underlined by the Advocate General, “The present action does not arise in a vacuum, as it is intrinsically linked to Denmark’s and other Nordic Member States’ constant opposition to European Union actions which they regard as interfering with their labour law and industrial relations systems”.

It is clear, in fact, that Denmark and Sweden are not opposing minimum guarantees for workers. Both countries have a collective bargaining coverage rate of over 80%, ensuring extensive protection for workers. However, their opposition is based on the established model of labour law and industrial relations, which emphasises the autonomy of the social partners. In both countries, wages and working conditions are not regulated by statutory act, but determined through collective bargaining.

The objection, therefore, does not concern the content and principles of the Directive – both countries being already bound by the International Labour Organization (ILO) Minimum Wage Fixing Convention of 1970 – but rather the principle of non-interference in the areas of pay and the right of association (another aspect under dispute).

Where does the European Union stand in terms of minimum wages?

To date, 22 of the 27 member states of the European Union have national minimum wages established by law. The five countries that still do not have minimum wages are Denmark, Italy, Austria, Finland and Sweden. The amounts vary considerably within the EU, ranging from 2,638 Euros per month in Luxembourg to 550.66 Euros in Bulgaria.

So what about Italy?

In Italy, the debate on the introduction of legal minimum wages has been a major topic of discussion in 2024, especially in light of news stories and court rulings that shed light on the problem of poor work and the shortcomings of certain collective agreements with respect to the constitutional principle of proportionality and adequacy of wages. Such a principle, according to established case law, is immediately enforceable.

The National Council for Economics and Labour (CNEL) – which many considered abolishing over time – played an important role in the debate. The CNEL carried out an investigation upon completion of which it issued an opinion, arguing that the phenomenon of poor work should be evaluated in broader terms than just the introduction of minimum wages, and emphasising the role of collective bargaining.

The opinion highlights that the Directive, as is known, does not impose on Member States an obligation to establish adequate minimum wages by law. Where a solid and comprehensive collective bargaining system is already in place, with pay rates defined by relevant representatives, no further checks or compliance measures are required. 

In Italy, the collective bargaining coverage rate is close to 100%. Nonetheless, some critical issues remain, such as the delay in collective bargaining renewals, although the CNEL believes that the system has corrective tools to manage periods of contractual vacancy. As far as the so-called “pirate bargaining” is concerned, 96.5% of the workers whose applied contract is known are covered by an agreement signed by the main trade unions (CGIL, CISL and UIL).

In any case, the CNEL concludes by suggesting the adoption of a plan to support collective bargaining, bearing in mind the wage issue and the existence of fraudulent and elusive practices.

***

According to the National Institute for the Analysis of Public Policies (INAPP), the introduction of a minimum wage of 9 Euros gross per hour would apply to about 21% of employees, equal to 2.6 million people. For companies, the estimated cost – excluding compulsory social security contributions and severance pay, calculated on the gross monthly salary – would be around 6.7 billion Euros.

The judgment is in accordance with a well-established in case law (on this point, ex multis, Regional Administrative Court of Lazio Region nos. 10162/2024, 11508/2024, 1385/2023, 12196/2023, 12641/2023; Council of State, no. 6060/2018) according to which the GSE's right of claim is subject to the ten-year limitation period and the day from which such right may be asserted cannot be postponed to the outcome of the verification and control proceedings but runs from the date of disbursement of each single payment made in favour of the incentivized plant, the public nature of the function concerning the regulation of the internal energy market and its incentive system being of no relevance. The only exception (expressly provided by Article 2941 no. 8 of the Italian Civil Code) is represented by the fraudulent intent of the beneficiary, which entails the suspension of the limitation period term until the fraud is discovered.

The task of verification and control can, in fact, be exercised by the GSE immediately after admission to the incentives, so only the GSE itself must be held liable for the failure (or delay) in exercising such powers. It follows that the timing and date of the start of the proceedings cannot result in the forward shifting of the dies a quo of the limitation period, on penalty of an undue postponement of the limitation period left to the discretion of the GSE.

Therefore, as things now stand, there is no dispute about the principle, which has already been established several times by administrative case law, according to which, on the one hand, in the presence of a verified circumstance of undue payment of the incentive tariff, the GSE cannot recover the sums paid out in respect of which the ten-year limitation period has already expired pursuant to Article 2946 of the Italian Civil Code, on the other hand, that that limitation period does not run from the date on which the GSE adopted the tariff reduction measure, but from the date of each single payment.

Pursuant to Regional Law  No. 19/2022, anyone may submit comments within 30 days from the date of publication of the notice of filing with the municipal secretary's office.

An analysis of the adopted text of the NTA reveals that among the most important novelties are:

• confirmation of the protection of the historic centre and of its residential nature: the current boundaries of the historic city are maintained and the possibility of implementing volumetric increases is excluded; 

• changes concerning intended use: a subdivision of uses on the basis of five “functional macro-categories” and their demand for infrastructure service is introduced, namely: (i) residential (which includes  single dwellings, collective dwellings and dwellings for accommodation use, including bed and breakfast facilities, guest houses and holiday homes); (ii) tourist and accommodation (hotel and non-hotel accommodation); (iii) production and office (including, inter alia, productive handicraft, wholesale trade, warehouses and storehouses; logistics; data centres); (iv) commercial; (v) rural. 

• removal of the provisions limiting hotel size to a maximum of 60 beds;

• restrictions on further transformations of the Roman countryside;

• regulations aimed at simplifying urban regeneration works, thus encouraging the recovery of the existing building heritage while respecting the principle of land consumption;

• specific rules for recovery of abandoned buildings – applicable regardless of the functional use - identified on the basis of minutes approved by a specific resolution of the Capitolin Council. Within three years from the date of approval of the aforementioned resolution, the owners of such buildings may submit a proposal for an implementation plan or an application for a suitable permit for works to be carried out directly aimed at the recovery of the property. Such works, moreover, may benefit from incentives and bonuses (including a reduction of the building charge); 

• specific rules for social housing, including student and senior housing; 

• provisions concerning the recovery of cinemas, sports facilities and the use of the coastline.

Resolution No. 169 of 11 December 2024 is available at the following link: Deliberazione Assemblea Capitolina n. 169-2024.

it should be noted that - following the publication of the adoption resolution - for the purpose of issuing/submitting the relevant building permits, the so-called “safeguard measures” will apply, which require verification of the compliance of each building work with the provisions set out in the town planning instrument in force and in the adopted one. 

Our firm is available for any clarification.

Procurement is a crucial sector for the economy and business strategies, but it has also sadly hit the headlines as a possible breeding ground for unfair practices, up to and including outright labour exploitation. The year 2024 saw the action of various institutions to counter such phenomena. In particular the judiciary (with the Court of Milan at the forefront) stood out for its initiatives, involving multiple sectors (especially fashion and logistics).

Investigations by Public Prosecutor's offices have uncovered phenomena in which companies that were the final beneficiaries of subcontracting chains were ultimately aware or unaware beneficiaries of labour exploitation schemes, not only in economically vulnerable sectors, but also in high-margin production sectors and with no geographical distinction across the country.

In the context of said renewed attention to the topic - which, to tell the truth, has been characterised for some time now by great regulatory vitality (suffice it to think of the countless amendments to the joint and several liability regime) - there arises, most recently, the action of lawmakers with Decree-Law No. 19 of 2024.

2. The reintroduction of criminal liability

Decree Law No. 19 of 2 March 2024, which was published in Official Gazette No. 52 of 2 March 2024 and came into force on the same day, has introduced significant changes in the field of procurement. Subsequently, it was converted into law, with amendments, through Law No. 56 of 29 April 2024, which was published in Official Gazette No. 102 of 29 April 2024 and came into force on 30 April 2024.

One of the most significant novelties introduced by the Decree Law is the reintroduction of criminal liability for infringements related to illegal employment of labour. The penalties, which were abolished or mitigated with the decriminalisation of 2016, are now reinforced to fight phenomena such as the abusive supply of labour, the unlawful use of labour and unlawful posting.

Said legislative choice aims to limit unfair and anti-competitive practices, while at the same time offering greater protection to workers even in situations where there is no labour exploitation, but where there are simulation phenomena or, in any case, the exercise of protected activities, such as staff leasing, without the necessary authorisations. 

3. In detail: penalties

The legislation establishes a detailed penalty system for specific breaches. 

Here is a summary:

a) Unauthorised staff leasing

• For the provider: imprisonment of up to one month or a fine of 60 Euro per day/worker, with aggravating circumstances in the case of minors.
• For users: a fine of 50 euro per day/worker, also applicable if the permitted limits are exceeded.

b) Non-genuine procurement and posting

• Imprisonment of up to one month or fine of 60 Euro per day/worker for both parties.

c) Fraudulent staff leasing

• Imprisonment of up to 3 months and/or fine of 100 Euro per day/worker for both parties.

d) Unauthorised mediation

• Imprisonment of up to 6 months and fine of between 1,500 and 7,000 Euro.

e) Unauthorised search and selection of personnel or outplacement

• Imprisonment of up to 3 months and fine of between 900 and 4,500 Euro.

4. Guarantees on minimum economic and regulatory treatment

In addition, a general rule has been introduced which states that “Personnel employed in the procurement of works or services and in subcontracting shall be entitled to an economic and regulatory treatment that is on the whole not lower than that provided for by the national and local collective bargaining agreement entered into by the trade unions of workers and employers that are comparatively more representative at national level, applied in the sector and for the area strictly related to the activity that is the subject of procurement and subcontracting”.

The provision is not easy to apply given the difficulty of defining the concept of comparatively most representative trade union, due to the variety and uncertainty of the criteria used. 

Moreover, also the reference to the collective bargaining agreement applied by sector and area represents a different concept from the concept used in other regulatory sources, with correlated doubts as to interpretation and application. Needless to say that, if one thinks of the “sector”, there are several national collective bargaining agreements (even considering those that are actually representative) that cover the same activities and could therefore be taken as a reference.

5. A fairer market?

Will the new rules succeed in improving working conditions and promoting a more transparent and truly competitive market? To answer the question, it will be necessary to evaluate the concrete effects of the application of the rules outlined above by the judiciary and inspection bodies.

In the meantime, the debate remains open. 

Below there are some of the most important novelties concerning environmental authorizations.

One of the aims of the Environmental Decree is to speed up the process of environmental assessments and authorizations by introducing a fast track for certain projects. On this point, by amending Article 8 of Legislative Decree No. 152/2006, the Environmental Decree includes among the projects to be given priority in the order of treatment by the State Technical Commission for Environmental Impact Assessment - EIA and SEA as well as by the PNRR-PNIEC Technical Commission, those “of pre-eminent national strategic interest pursuant to art. 13 of Decree-Law no. 104 of 10 August 2023, converted, with amendments, by Law no. 136 of 9 October 2023” and “those having the characteristics referred to in Article 30 of Decree-Law no. 50 of 17 May 2022, converted, with amendments, by Law no. 91 of 15 July 2022” . Among these, priority shall be given to the project types to be identified by decree of the Minister of the Environment and Energy Safety, in agreement with the Minister of Culture and the Minister of Infrastructure and Transport, taking into account the following criteria:

(a) reliability and technical and economic sustainability of the project in relation to its implementation;

b) contribution to the achievement of the decarbonization objectives set out in the PINIEC;

c) relevance to the implementation of the investments of the National Recovery and Resilience Plan;

d) enhancement of existing works, plants or infrastructure.

Pending the adoption of the decree, priority is to be given to, in order to: 

1. the projects of new hydroelectric storage plants by pure pumping that provide, also through the restoration of the conditions of normal operation of the existing reservoirs, an increase in the volumes of water that can be stored (provision added at the time of conversion);

2. the works and plants for geological storage, capture and transport of CO2, as well as their functionally connected plants, and industrial plants subject to conversion into biorefineries (provision added on conversion);

3. projects concerning green or renewable hydrogen installations referred to in number 6-bis) of Annex II to Part Two and related installations from renewable sources; 

4. projects for new installations concerning hydroelectric derivations with a capacity of up to 10MW (provision added on conversion);

5. revamping and repowering of plants powered by wind or solar sources;

6. on-shore photovoltaic and on-shore agri-voltaic projects with a nominal capacity of at least 50 MW and on-shore wind projects with a nominal capacity of at least 70 MW.

A quota of no more than three-fifths of the Commissions' processing is reserved for such projects, without prejudice to the chronological order of priority of the date of communication to the proponent of the publication of the documentation on the competent authority's website, which is valid for all projects, whether priority or not. 

To accelerating the assessment of projects, the Decree also provides that, in the event of delay in the issuance of the EIA measure, the President of the EIA-SIA Commission and the President of the PNRR-PNIEC Technical Commission may order the assignment of the project to the EIA-SIA Technical Commission, without prejudice to the application of the procedural discipline relative to the environmental impact assessments of PNRR and PNIEC projects.

Stringent and innovative provisions are introduced with reference to the EIA screening procedure pursuant to Article 19 of Legislative Decree No. 152/2006: 

(i) within fifteen days from the expiration of the term of 30 days from the communication to the interested administrations of the publication of the documentation on the portal, the competent authority may request clarifications and integrations from the proponent in order to exclude the submission of the project to the EIA procedure, assigning a term not exceeding thirty days, after which, in the absence of the requested integrations, the request is considered rejected

(ii) the competent authority adopts the measure of verification of subjection to EIA within 60 days from the date of expiration of the term of 30 days from the communication to the interested administrations of the publication of the documentation on the portal or, in the case of requests for clarifications or documental integrations, within 45 days from the receipt of the clarifications or integrations requested. In exceptional cases, the competent authority may extend, for a period not exceeding 20 days, the deadline for the adoption of the EIA screening measure, promptly notifying the proponent, in writing, of the reasons justifying the extension.

The Decree also provides that the measure of verification of subjectivity to EIA cannot have an effectiveness of less than five years, indicated in the measure itself, taking into account the expected time for the realization of the project, the necessary authorization procedures, and any proposal formulated by the proponent. Once this term has elapsed without the project having been carried out, the procedure must be repeated, without prejudice to the granting of a specific extension by the competent authority, at the request of the proponent accompanied by the relevant findings concerning the environmental context of reference and any changes, including design changes, that have occurred. Also in this case, within 15 days from the request, the competent authority may request additional documentation, assigning a peremptory term of no more than twenty days for the relative submission. If the documentation is again incomplete, the application shall be deemed withdrawn. Except in the case of a change in the environmental context of reference or modifications, including design modifications, the measure with which the extension is ordered does not contain prescriptions that are different and additional to those already provided for in the original measure of EIA subjectivity verification. If the petition is filed at least 90 days before the expiration of the effective date of the measure, the latter continues to be effective until the competent authority adopts the determinations relating to the granting of the extension. 

The Environmental Decree then introduces, as a partial exception to the general principle under Law No 241/1990 - according to which silence-consent does not operate in environmental matters -,  the mechanism of silence-consent in relation to the acceptance of the request to suspend the procedure up to a maximum of 12 days in the event that, as a result of the consultation or the submission of counter-deductions by the proponent, it becomes necessary to amend or supplement the project documents or the documentation acquired. The aforementioned request is deemed to have been granted if the EIA-SIA Commission or the PNRR-PNIEC Technical Commission remains silent after seven days from the suspension request.

A further novelty concerns the verification by the Ministry of Culture of the adequacy of the landscape report attached to the EIA (art. 24, paragraph 5, Legislative Decree 152/2006). Also in this case, with the identical mechanism foreseen before the Technical Commissions, in the event of a request for integration, if the proponent does not respond within the time limit indicated by the authority (in any case not exceeding 30 days, extended by a further 30 days at the proponent's request), the EIA petition is automatically considered rejected and the Ministry of Culture notifies the proponent and the competent authority, which is obliged to proceed with the filing.

With the aim of affecting the recent jurisprudential orientations of the Council of State (ex multis, Council of State. nos. 7299/2024, 4098/2022), for which it can be considered that the landscape authorization is included in the scope of the EIA measure issued by Resolution of the Council of Ministers pursuant to Article 5, paragraph 2, lett. c-bis) of Law 400/1988, the Decree also introduces art. 25, paragraph 2-quinquies of Legislative Decree 152/2006, providing that the agreement of the competent director general of the Ministry of Culture includes the landscape authorization where the landscape report allows a positive assessment of the landscape compatibility of the project. The Ministry of Culture is also required to adequately justify any rejection and, in the event of a favourable opinion of the VIA-VAS Technical Commission or PNRR-PNIEC Technical Commission, Article 5, paragraph 2, letter c-bis) of Law 400/1988 may be applied, overriding the disagreement with a Resolution of the Council of Ministers that replaces to all effects the favourable EIA measure and includes the landscape authorisation where the landscape report is complete and allows a positive assessment of landscape compatibility.

Lastly, the conversion law amended the provision of the Environmental Decree that had most worried operators in the version published in the Official Gazette, last 18 October: in paragraph 2 of Article 1 it was, in fact, provided that ”for projects of energy production from renewable sources, the proponent shall attach to the EIA application pursuant to Article 23 of Legislative Decree No. 152 of 2006 also a declaration certifying the legitimate availability, for any reason, of the surface and, if necessary, of the resources necessary for the implementation of such projects”.

The provision seemed to make it necessary for all renewable energy production projects involving recourse to the EIA procedure, the immediate demonstration of the availability of the surface area affected by the plants.

This claim, however, appeared, from the outset, to be completely unreasonable, considering the expense commitment (the acquisition of the availability of the land) in an completely transitory project phase, also considering that during the EIA procedure itself there are frequent requests by the authorities to move the plant components and the relative connection works. At the same time, the regulation appeared to fail to take due account of the circumstance that the availability of areas is often necessarily obtained after the authorization phase through subsequent expropriation - as often happens in the case of wind power - or public concession on state land - in the case of hydroelectric power -.

The conversion law has fully replaced the aforementioned paragraph 2 of Article 1, providing that for energy production projects from photovoltaic, thermodynamic solar, biomass or biogas sources, as well as the production of biomethane (thus excluding wind and water sources), the proponent of the EIA measure must attach a self-declaration attesting to the legitimate availability, for any reason whatsoever, of the area on which the plant is to be constructed, without prejudice to the consequent procedures for the interconnection works.

This article details the role of the Gestore dei Servizi Energetici – G.S.E. S.p.A. (“GSE”) as the guarantor of last resort and analyzes the anticipated impacts of this measure.

The Regulatory Context

As mentioned, the legislative measure aims to enhance the security and attractiveness of PPAs by amending Article 28 of Legislative Decree No. 199/2021 and removing certain legal, administrative, and financial barriers to their dissemination, thereby facilitating the achievement of decarbonization objectives through the use of renewable energy. Specifically, the first two paragraphs of the current Article 28[1] provide for the following:

• the establishment of a digital notice board by the Gestore dei Mercati Energetici – G.M.E. S.p.A. (“GME”) aimed at: (i) collecting announcements from operators interested in negotiating PPAs as sellers/producers or buyers, facilitating their interaction through the “Announcements Section”; (ii) enabling the registration of PPAs already concluded by operators registered on the notice board through the “Contracts Registration Section”; and (iii) managing the allocation procedures of electricity related to the so-called “energy release” mechanism as per the Ministerial Decree of 16 September 2022[2], through the “Energy Release Section” (“PPA Notice Board”).

• the establishment of an organized trading platform, managed by GME, based on voluntary participation and aimed at facilitating the signing and dissemination of PPAs among interested operators (sellers or buyers), thereby contributing to the achievement of decarbonization goals as encouraged by paragraphs (27) and (28) of Regulation (EU) 2024/1747 (“GME Platform”).

It is important to note that the GME Platform, at present, is not yet operational and is distinct from the PPA Notice Board, which is currently fully operational and functional. Article 8 of the Emergency Decree introduces two new paragraphs to Article 28 of Legislative Decree No. 199/2021. Specifically, the new paragraph 2-bis stipulates that, through a dedicated decree, the Ministry of Environment and Energy Security (“MASE”) will establish criteria and conditions for the GSE to assume the role of guarantor of last resort in PPA contracts, in line with a broader system of guarantees to be defined by the same decree through the identification of requirements and obligations for the contracting parties.

This initiative is part of the broader efforts under the Repower EU chapter of the PNRR to adopt primary and secondary legislation by 2024, aimed at increasing market operators’ confidence in negotiating PPAs, reducing perceived risks associated with PPAs, encouraging broader participation in the market, and stabilizing the market and prices related to long-term energy purchase agreements.

The Functions of the GSE as Guarantor of Last Resort

The new legislation provides that the GSE will step in for the defaulting party (producer or buyer) in a PPA to guarantee the fulfillment of the obligations undertaken by that party towards the non-defaulting counterparty.

It is worth noting that the new system appears to be limited in its scope to only PPAs concluded through the GME Platform. Supporting this are: (i) the reference in the opening lines of paragraph 2-bis of Article 28 of Legislative Decree No. 199/2021, which mentions the goal of the new guarantee system, namely, “the development of long-term contracts through the GME Platform referred to in paragraph 2, first sentence,” and (ii) the mention of the ministerial decree that will regulate the functioning of the GME Platform as the main implementing regulation of this new guarantee system.

Additionally, it should be clarified that the guarantee provided by the GSE, through stepping into the relevant contract, will only operate as a last resort. This means it will come into play only when the additional guarantees provided for in the ministerial decree fail to offer adequate coverage to the non-defaulting party in the event of the other party’s breach. In this regard, the second paragraph of the new Article 28, paragraph 2-bis, of Legislative Decree No. 199/2021 provides for the support of a guarantee system integrated with the rules of the GME Platform and potentially similar in operation to the mechanisms provided for participation in the Electricity Market.

Finally, as of now, as previously mentioned, the GME Platform has not yet been activated. Therefore, at this stage, the new guarantee system is not applicable to any PPA.

Estimates of the Economic Impacts at the Macro Level and on Individual PPAs

According to the technical report attached to the Emergency Decree, the guarantee system is designed to cover the needs associated with a total capacity of 10 GW[3] of renewable energy by 2030, equivalent to 15.7 TWh/year, about one-twentieth of the national electricity consumption.

The estimated costs for GSE (the energy services operator) are approximately €45 million per year for a five-year period, for a total of €224 million. These costs will be primarily covered by revenues from ETS auctions[4] and, to a limited extent, by system charges. Furthermore, as suggested by the technical report, the future guarantee mechanism, the subject of this contribution, could be less financially burdensome for GSE if the legislator were to provide for the availability of the energy subject to the PPA (Power Purchase Agreement) once GSE assumes the role of buyer rather than seller, eliminating the risk related to market fluctuations.

However, it is believed that the Italian legislator must carefully evaluate the feasibility and methods through which GSE can eventually obtain availability of the energy covered by the PPAs.

In this regard, less problematic seems to be the hypothesis of taking over the buyer’s contractual position, where it is assumed that, to obtain availability of the energy covered by the PPA:
(i) GSE could be appointed as the dispatching user concerning the plant covered by the relevant PPA, directly withdrawing the energy delivered to the plant’s POD (Point of Delivery) and thus obtaining its availability; or, in a less protective scheme for GSE,
(ii) the buyer could be required to transfer the energy produced and fed into the grid by the plant through the PCE (Energy Trading Platform) to GSE’s account, thereby making it available to GSE.

On the other hand, concerning the hypothesis of taking over the seller’s contractual position, it is hypothesized that: (i) GSE could be appointed as the dispatching user concerning the plant covered by the relevant PPA, directly withdrawing the energy delivered to the plant’s POD, thereby obtaining its availability, and then committing to transferring these volumes via the PCE to the buyer; or, in a less impactful scheme on the contractual structure,
(ii) GSE could take over the seller’s position only concerning the latter’s creditor position, giving up, however, the availability of the energy. In any case, the risk to which GSE would be exposed in this context is that the producer neglects the maintenance and management of the plant.

In any event, the possible availability of energy, combined with operational efficiency criteria, would contribute to minimizing the overall economic impact on the system, reducing price risk. Finally, the technical report attached to the Emergency Decree emphasizes that the effectiveness of the mechanism depends on conditions such as market price stability and the application of contractual clauses that limit the risk for GSE, ensuring a potentially zero economic impact[5].

As for the negotiation of individual PPAs, it will be necessary to verify how the implementing ministerial decree will effectively implement the guarantee mechanism and under what conditions. For now, it can be anticipated that the guarantee mechanism in question will not eliminate the need to require the parties to provide guarantees to support the fulfillment of contractual obligations, as the GSE guarantee will operate “as a last resort,” and therefore, likely, only after all other contractually provided forms of guarantee have been exhausted. In this regard, it will also be interesting to understand what type of guarantees operators will need to provide to access the GME Platform.

Moreover, it is expected that the measure in question will in any event have an impact on the costs relating to the guarantees that the parties will have to provide in the context of a PPA and, therefore, indirectly, also on the price of the energy subject to the PPA itself, even though, in this calculation, it must be taken into account that the guarantee of last resort mechanism will be the subject of a specific consideration.

Finally, as a negative side effect of the purpose of such guarantee system aimed also at breaking down the barriers to entry into the PPA market, there is the possibility of the spread of practices characterized by a higher degree of “moral hazard” dictated by the existence of a guarantee system based, in the last resort, on the takeover of a third entity as contracting party.

[1] These first two paragraphs remained unchanged from the text of Legislative Decree 199/2021 as originally published in the Official Gazette.

[2] Please note that this is not the recent energy release mechanism introduced by Decree Law No. 181/2023.

[3]Including 7 GW of photovoltaic capacity and 3 GW of wind power capacity.

[4] See paragraph 2-ter of the new Article 28 of Legislative Decree No. 199/2021.

[5] It should be noted that the new regulation was adopted considering price scenarios between 65 and 115 Euro/MWh on spot markets and an average PPA contract price of 90 Euro/MWh.

The Operating Rules, issued by the GSE, provide the necessary information for the fulfilment of the provisions of FER 2 and, in general, of the relevant legal and regulatory framework.

The document illustrates the timeframes and processes for conducting the planned competitive procedures, the modalities for reallocating any unallocated production capacity, and the terms and fulfilments required for participation in the procedures and for inclusion in the rankings. The criteria for the formation of the rankings and the reasons for exclusion are also regulated, as well as the effects of renunciations and the reasons which, if ascertained after the start of operation, during the evaluation phase of the request for access to the incentives, lead to the forfeiture of the ranking list.

Each competitive procedure corresponds to 

• a public tender;

• a production capacity quota, expressed in MW, for each procedure envisaged, to be allocated to the plants participating in the procedure;

• a ranking list, drawn up by the GSE as a result of the selection of projects and which takes into account any percentage reduction offered with respect to the reference tariff used as a basis for the competitive procedure and any application of priority criteria.

FER 2 provides for nine types of procedures, depending on the type of plant and the category of intervention. The types of plants allowed are

• biogas plants with a nominal capacity of no more than 300 kW of electricity

• biomass plants with a nominal capacity of no more than 1,000 electric kW;

• thermodynamic solar plants of any power;

• offshore floating wind power plants and offshore wind power plants on fixed foundations with a minimum distance from the coast of 12 nautical miles, of any power;

• off-shore floating photovoltaic installations and off-shore floating photovoltaic installations on inland waters, of any power;

• tidal, wave and other marine energy installations of any power; 

• geothermal plants, conventional with innovations or with zero emissions, of any power.

FER 2 aims to support the realization of a total of 4.6 GW between 2024 and 2028.

Feed-in tariffs vary between 100 €/MWh and 300 €/MWh depending on technology and power. The technology on which the Decree focuses most is offshore wind power with 3.8 GW.

In order to participate in the auctions, one must be in possession of a permit (or favourable environmental impact assessment, where applicable) and a definitively accepted interconnection solution. Certain minimum environmental and performance criteria must then be met. 

Both new construction projects and, for traditional geothermal plants with innovations only, projects for the revamping of existing plants are admitted to the procedures.

Each competitive procedure remains open for a period of 60 days from the date of publication of the notice on the GSE website, and the relative rankings are published within 90 days of the closing date.

In the event of non-saturation of the power quota, the GSE, for each type of procedure, in order to reallocate the available resources, provides for mechanisms to reallocate the unallocated power: in each competitive procedure the unallocated residual power quota is allocated to the quota of the first subsequent procedure, until the quotas are exhausted.

In addition, the GSE will assess the possibility of reallocating the power quota related to plants that were admitted in a useful position in a previous ranking and for which the applicant has submitted a waiver.

A mechanism for checking and supplementing applications is envisaged. Nonetheless, no responsibility can be attributed to the GSE, for failure to report inaccuracies or documental deficiencies, in respect of alleged errors committed at the time of the application for registration to the competitive procedures or of incorrect transmission of the mandatory documentation by the applicant, as the principle of ‘preliminary relief’ cannot be applied.

Failure to prove possession of the requirements and/or priority criteria declared during the registration phase shall result in exclusion from the ranking list.

FER 2 provides for the possibility (for plants with a capacity of up to 300 kW) or obligation (for plants with a capacity of over 300 kW) for applicants to make an offer of a percentage reduction in the reference tariff. If the reduction offered is equal, and the quota is saturated, the other priority criteria provided for by the decree will be taken into account:

a. plants built in the areas identified as suitable in implementation of Articles 20 and 23 of Legislative Decree No. 199 of 2021;

b. earliest date of completion of the application for participation in the procedure.

The percentage reduction offer must be greater than or equal to 2%, for plants with a power exceeding 300 kW. For each type of procedure, the reference tariff is that set out in Annex 1 to FER 2, reduced by 3% per year from 2025. For plants with power up to 300 kW, this reduction applies from 2026.

For plants that have been placed in a good position in the rankings published after the respective competitive procedures, FER 2 envisages, based on the source, the category of intervention and the type of applicant, compliance with precise time limits for entry into operation for the purpose of accessing the incentives; subsequent to entry into operation, the applicant may apply for the incentive.

The document also regulates the phase of requesting recognition of the incentive, the relative procedure of evaluation and verification, the determination of the tariff, the activation of contracts, and the subsequent modalities for disbursement of the incentive, also providing for specific conditions of cumulability with other measures as well as the system of verifications and controls.

The FER 2 provides for two types of incentives: an all-inclusive tariff or an incentive, calculated as the difference between the due tariff and the hourly zonal energy price (referring to the market zone where the electricity produced by the plant is fed into the grid). In the event that the difference is positive, the GSE disburses the incentives in an amount equal to the aforementioned difference, on the incentivized energy, i.e. on the net production fed into the grid. In the event that the value of the incentive is negative, the GSE will request the restitution of this differential by means of an adjustment, offsetting against other items pertaining to the same entity or direct payment. Plants with a capacity of less than or equal to 300 kW may opt for one or the other type. For plants with an output of more than 300 kW, only the incentive will be recognized.

In the case of the all-inclusive tariff, the consideration paid includes the remuneration of the energy produced and fed into the grid, which is collected by the GSE; in the case of the incentive, the energy produced and fed into the grid instead remains at the producer's disposal.

The first tender for tenders opened on 16 December for biogas and biomass plants for a quota of 10 MW and will close at 12 noon on 14 February 2025.

The timetable for subsequent procedures will be approved by the Ministry, based on the proposal of the Manager, by 31 March 2025 and communicated by the GSE two months before the opening of each procedure.

The decree envisages at least one procedure per year for biogas and biomass and at least three procedures over the entire period, i.e. until the end of 2028, for other technologies.

The query, marked by divergent case law, was referred to the Plenary Meeting, which - by decision 14/2024 - provided important clarifications.

The case

The case submitted to the Plenary Meeting originates from a very complex situation: in 2010 a building permit was issued for the construction of an underground garage. 

Following a complaint, a criminal investigation was initiated, which resulted in a judgment containing, among other things, the condemnation of the ad acta commissioners who had issued the building permit and the assessment of the “absolute and macroscopic illegality of the building permit”.

Subsequently, the Municipality of Sorrento notified the owner of the land and the contractor of the measure (not challenged) acknowledging the lapse of the 2010 building permit, due to expiry of the time limit for completion of the works.

Then the Municipality ordered, pursuant to Article 31 of the Building Consolidation Act (Presidential Decree No. 380/2001), “the reinstatement of the state of places as it was prior to the execution of the works partially carried out under the building permit”, moreover holding that the lapse of the building permit “encompasses any immediate assessment as to the legitimacy of the building permit”.

The decision was challenged by the owners and the contractor before the Regional Administrative Court of Campania, claiming that the works, having been carried out in compliance with a permit valid at the time they were done, could not be considered illegal. The Regional Administrative Court of Campania confirmed the legitimacy of the demolition order, considering that the incomplete works were incompatible with urban planning regulations. 

The query and the views of case law 

The main query submitted to the Plenary Meeting was: what rules apply to works partially carried out under a lapsed building permit and not completed under a new permit?

The reference rules are contained in Article 15  of the Building Consolidation Act, providing for limited duration of building permits, with automatic forfeiture for works not completed by the deadline[1]. 

Article 15 of the Building Consolidation Act verbatim states that “(…) the time limit for the commencement of work may not exceed one year from the issuance of the permit; the time limit for completion, within which the work must be completed, may not exceed three years from the commencement of work. Once such terms have expired, the permit lapses automatically for the part not carried out, unless, before expiry, an extension is requested. An extension may be granted, by reasoned decision, for facts that have arisen that are extraneous to the will of the permit holder, or in consideration of the size of the work to be carried out, of its particular technical-constructive characteristics, or of technical-execution difficulties that have arisen after the beginning of the works, or in the case of public works whose financing is envisaged in several financial years. (…)

3. The execution of the part of the work not completed by the scheduled deadline is subject to the issue of a new permit for the work still to be carried out, unless the latter falls within those that can be carried out by certified notice of commencement of work (…)

4. The permit lapses with the entry into force of conflicting urban planning provisions, unless work has already begun and is completed within three years from the date of commencement”.

Therefore, what is the fate of works carried out under a lapsed permit?

Case law is split into two views:

• Conservative approach: works carried out in compliance with a valid permit cannot be considered illegal, even if the permit has lapsed: the lapse of the building permit applies ex nunc, preserving the legitimacy of the works already constructed[2];

• Demolition approach: works not completed and without autonomous functionality must be deemed illegal, since the lapse of the permit makes their permanence illegal[3].

• “in the case of buildings lacking autonomy and functionality, the Municipality must order their demolition and restoration to the original condition pursuant to Article 31 of Presidential Decree No. 380/2001, as being constructed in full conflict with the building permit;

• - if the building permit involved the construction of a plurality of functionally autonomous buildings (e.g. cottages) that are compliant with the building permit considering such permit as fractioned, the constructed buildings - without prejudice to the need to verify whether the urban development works have been carried out and without prejudice to the need for them to be carried out in any case - must be deemed to be based on a suitable permit, even if the constructed buildings are not fully completed, but - insofar as they are characterised by all the constitutive and essential elements - need only minor works that do not require the issuance of a new building permit;

  1. if the incomplete but functionally autonomous works have non-conformities that cannot be qualified as serious, the Administration may apply the sanction laid down by Article 34 of the Consolidation Act;

• the party concerned has the possibility, where all the conditions are met, to obtain a permit to preserve the existing structure and to request a conformity assessment pursuant to Article 36 of the Consolidation Act in the case of “minor” works (in terms of perimeter, volumes, heights) with respect to those authorised, so as to provide the building - which is per se functional and usable - with a suitable permit in terms of its regularity from an urban planning point of view”.

The judgement of the Plenary Meeting

The Plenary Meeting, in an articulate decision, while recognising the validity of some of the arguments of the conservative approach, established clear criteria for distinguishing the situations, emphasising that:

The Plenary Meeting emphasised some fundamental principles:

• compliance with the project: the carrying out of the works must strictly comply with the approved project. Partial constructions deviating from the permit are to be considered illegal;

• protection of the territory: the ruling highlights the importance of preserving the integrity of landscape and town planning, avoiding the permanence of incomplete and disfiguring buildings;

• tempus regit actum: new permits must comply with the town planning regulations in force at the time of issue, ensuring adequate control over the development of the territory.

[1] The recent publication of the “Milleproroghe 2025” decree (Decree-Law 202/2024, Official Gazette No. 302 of 27 December) further extended the deadlines for the start and end of construction works, which had already been subject to previous extensions since Decree-Law 21/2022 (Ukraine Decree). The decree provides for a 36-month extension for:

• works’ start date and end date  relating to SCIAs (certified notices of commencement of works) and building permits issued or formed until 31 December 2024.

• validity of town-planning conventions (e.g., parcelling out) and the relevant implementation plans, provided they are not in conflict with new planning instruments or liens for environmental and cultural protection.

The extension is not automatic:  the party concerned must submit an official notice to enforce the measure. Extention is subject to verification of certain requirements:

• building permits must not have expired at the time of the notice;

• there must be no incompatibility with new planning instruments or landscape or cultural liens;

• the measure applies also to SCIAs and landscape permits (standard and simplified) already extended under former rules, such as the extraordinary regime of Decree Law No. 69/2013 and the emergency rules of Law 27/2020.

[2]See Council of State 5258/2022; Council of State 5588/2019.

[3] See Council of State 8605/2019; Council of State 10291/2023. 

This extraordinary result rewards the professionalism and work of our team, always ready to face the challenges of a constantly evolving market.

Moreover, for the first time, ADVANT was ranked in the European top 20, an achievement that reflects the steady growth and consolidation of our international positioning.

More specifically, in the case at issue, a lessee brought legal proceedings on the assumption of having leased – under a contractual relationship that the lessor claimed being  “de facto” – a room in an apartment located in Rome, paying a rent of Euro 500.00 per month from October 2011 to June 2015.

Therefore, the claimant acted to obtain a declaration of invalidity of the lease agreement and an order for the lessor to reimburse the rents paid.

The Supreme Court set out the following legal principle: «in case of invalidity of a lease agreement, the lessee is entitled to reimbursement, pursuant to Article 2033 of the Italian Civil Code, of the rents paid to the lessor in implementation of the agreement, without prejudice to the latter’s right to claim, pursuant to Article 2041 of the Italian Civil Code, the existence of   unjustified enrichment, enforcing an indemnity credit to be, however, awarded to the extent of the decrease in assets suffered in providing the service and not in the measure of the loss of the profit that could have been obtained from the existence of a valid contractual relationship».

So, these are the conclusions that we can draw from the reading of the above judgment and legal principle:

• the lessee's claim for repayment falls within the scope of the rule set out in Article 2033 of the Italian Civil Code (undue payment) according to which “whoever has made an undue payment is entitled to be refunded the amount paid”;

• legislative scenarios in which, notwithstanding the cessation of the contractual obligation, the services cannot be repaid are to be considered exceptions to the general rule (this applies, for example, in the case of termination for non-performance of the agreement);

• since the lessee has, in any event, enjoyed the property - an undisputed historical fact - the lessor is entitled to claim compensation in order to correct the contractual imbalance created, on the basis of an objective assessment of the benefit obtained by the lessee and, therefore, within the limits of the financial loss suffered by the performer of the service rendered by virtue of the invalid agreement. Thus, the lessor is not entitled to obtain the profit lost that it could have obtained by entering into a valid agreement;

• The court cannot rule ex officio on unjust enrichment, which remains an exception reserved to the party (in the present case the lessor failed to appear in court).

The ruling in question also allows us to recall that, as stated by the Supreme Court in its judgment No. 9475 of 9 April 2021, a lease concluded in a verbal form and not registered, is affected by relative and protective nullity that can only be enforced by the lessee and cannot be established ex officio by the court.

The measure has been in force since 6 December, i.e. the day following its publication, and is applicable not only to plants whose authorization procedure was commenced after the date of entry into force of the law, but also to plants whose authorization procedure is underway and even to plants already authorized that have not implied an irreversible change to the state of the sites, whose authorization titles will be ineffective. 

The law provides for the abrogation of the previous regional law of 3 July 2024, no. 5, concerning ‘Urgent measures for the protection of the landscape and environmental assets’, introducing the so-called ‘Sardinian moratorium’, and, consequently, the withdrawal of the challenge to its legitimacy raised by the Council of Ministers before the Constitutional Court.

Sardinia is thus the first Italian region to have implemented the ‘Suitable Areas Decree’, with the ‘declared’ aim of identifying ‘suitable areas and suitable, unsuitable and ordinary areas, in order to favour the ecological, energy and climate transition’, guaranteeing the minimization of the environmental and landscape impact of renewable energy plants, as well as their spatial planning in compliance with both the EU's decarbonization and energy transition obligations and the regional overall power objectives, with the aim of maximizing the areas to be identified in order to facilitate the regional overall power objectives to be reached by 2030, as set out in the Decree on Suitable Areas.

In order to be able to identify the areas and surfaces suitable and unsuitable for the installation and promotion of renewable energy source plants, the measure firstly provides for the primary differentiation between plant sizes, identifying 

a. small size plants in photovoltaic, thermodynamic, and agri-voltaic plants with a nominal power less than or equal to 1 MW; wind power plants with a maximum overall height less than or equal to 20 meters; power generation plants from biomasses, landfill gas, residual gas from purification processes and biogas with a nominal power less than or equal to 200 kW; geothermal plants with a temperature of the fluid found less than or equal to 90 degrees centigrade; in storage plants with a nominal installed power less than or equal to 500 kW;

b. medium size plants in photovoltaic, thermodynamic, agri-voltaic plants with a nominal capacity greater than or equal to 1 MW and less than or equal to 10 MW; wind power plants with a total maximum height greater than 20 meters and less than or equal to 100 meters; biomass, landfill gas, sewage treatment plant gas and biogas power generation plants with a nominal capacity greater than 200 kW and less than or equal to 1 MW; geothermal power plants with a temperature of the fluid retrieved greater than 90 degrees centigrade and less than or equal to 150 degrees centigrade; storage plants with a nominal installed capacity greater than 500 kW and less than or equal to 1.2 MW;

c. large size plant in photovoltaic, thermodynamic, agri-voltaic plants with a nominal capacity exceeding 10 MW; wind power plants with a total maximum height exceeding 100 meters; power generation plants from biomass, landfill gas, sewage treatment plant gas and biogas with a nominal capacity exceeding 1 MW; geothermal power plants with a temperature of the fluid retrieved exceeding 150 degrees centigrade; storage with a nominal installed capacity exceeding 1.2 MW.

In consideration of the different plant sizes in Annexes A, B, C, D and E, as well as paragraphs 9 and 11, art. 1, L.R. 20/2024, unsuitable areas are therefore identified, in a far greater number than the suitable ones, identified, instead, in Annex F as follow

a) disused industrial areas, with the exception of large-scale wind farms

b) urban and special waste landfill areas, exclusively in the service areas outside the landfill body, limited to photovoltaic plants and small and medium sized wind farms

c) for the installation of photovoltaic plants, the sites and plants at the disposal of the Italian State Railways group companies and railway infrastructure managers

d) port areas, excluding marinas, limited to photovoltaic and wave energy production plants

e) airport areas, limited to photovoltaic plants

f) the areas pertaining to major roads already subject to transformation, limited to small-scale photovoltaic systems

g) limited to photovoltaic plants and small and medium sized wind power plants, first and second category quarrying areas

h) the areas of sites subject to reclamation proceedings, limited to photovoltaic plants and small and medium sized wind farms as well as biomass plants

i) the sections of water of the basins of the Regional Multi-sector Water System, as identified by the Water System's managing body, not used by fire-fighting aerial vehicles, and relevant appurtenances, limited to hydroelectric plants and floating photovoltaic plants up to 10 MW

j) for photovoltaic installations and small and medium-sized wind power plants, homogeneous urban planning zones D and zones G for commercial and logistical use

k) with the exclusion of large wind power plants, the industrial areas managed by the provincial industrial consortia, the industrial areas of regional interest, and the PIPs referred to in Article 27, Law No 865 of 22 October 1971

l) the homogeneous urban planning zones G referred to in Decree No 2266/U of 20 December 1983 of the Regional Councilor for Local Authorities, Finance and Town Planning for renewable energy, with the exception of large-scale wind farms

m) for the installation of photovoltaic systems, the infrastructure areas of the homogeneous urban planning zones G relating to the transport sector (roads, railways, ports and airports), excluding marinas, and to technological installations (waste cycle, water cycle, drinking water purifiers, sewage treatment plants, lifting plants, energy cycle)

n) limited to the installation of small and medium sized wind farms, the infrastructure areas of the homogeneous urban areas G, relative to technological plants (waste cycle, water cycle, drinking water purifiers, sewage treatment plants, lifting plants, energy cycle).

Each hypothesis contains specific technical conditions to which the construction of the plants is subject.

The construction of RES plants and storage facilities, regardless of whether they are located in eligible areas or in ordinary areas, is also subject to compliance with the requirements and prescriptions set forth in Annex G, as well as to compliance with the specific territorial, urban planning, construction, landscape, with particular reference to the Regional Landscape Plan, environmental and technical prescriptions pertaining to the area and the plant subject of the authorization application.

As provided for by Art. 1, paragraph 4, with regard to photovoltaic plants, without prejudice to compliance with the applicable territorial, town planning, building, environmental and landscape regulations, with particular reference to the provisions contained in the Regional Landscape Plan (PPR) and in the other town planning instruments, as well as the technical requirements per type of plant set forth in Annex G of the same regional law, suitable areas are identified as ‘the roofing surfaces of buildings, such as, by way of example and not limited to, buildings, canopies, pergolas, shelters, public and private, of any kind, legitimately built or to be built in compliance with the provisions of the town planning instruments, and the relevant cumulation systems’. Of particular relevance, moreover, is the subsequent clarification according to which, regardless of the recognition of suitable, unsuitable or ordinary areas (those for which the construction of RES plants is subject to case-by-case verification), ‘the construction of small-scale geothermal plants is always allowed, for which the authorisation discipline provided for by the regulations in force on suitable areas applies’.

The law also specifies, in the first part of paragraph 7, art. 1, that ‘if a plant project falls in an area included both in the areas defined as suitable, as per annex F, and in the areas defined as unsuitable, as per annexes A, B, C, D and E, the unsuitability criterion prevails’, while the restoration, complete reconstruction work on plants built before the law came into force and in operation in areas defined by the law as unsuitable, ‘are allowed only if they do not entail an increase in the gross occupied surface area and, in the case of wind farms, an increase in the total height of the plant’.

A further provision, Article 2 of the regional law, provides for the establishment, as from 2025, of a fund - fed by regional, national and European resources, with an initial endowment of Euro 678,000,000 for the years from 2025 to 2030 - for the granting of incentive measures, ‘both through the disbursement of non-repayable grants and through the use of financial instruments or through their combination’, in order to support the interventions aimed at the installation of photovoltaic and electricity storage systems for self-consumption and carried out by, in compliance with the requirements set forth in the same regulatory provision, (i) natural persons resident in Sardinia (ii) businesses and professionals with their operational headquarters in Sardinia; (iii) energy communities and other forms of self-consumption and sharing; (iv) municipalities, union of municipalities, provinces, metropolitan cities; (v) other regional, territorial public entities. These incentives are granted by means of an assessment procedure following a call for tenders, with special measures aimed at promoting energy communities.

The law also provides for simplification and acceleration measures for the promotion of RES plants, as well as measures to guarantee the implementation and reclamation of plant sites: firstly, in Article 3, municipalities are given the right to propose a preliminary application for the construction of a RES plant or storage within an area identified as unsuitable; this application, which is approved following a phase of ‘public debate’ by a qualified majority of the municipal council (or councils) whose territory is affected by the plant or storage, is finalized with the signing of an agreement with the Region; in the event that the aforementioned agreement is finalized, ‘the proponent has the option of submitting an application to the competent entities for the implementation of the intervention within the authorization regime envisaged for ordinary areas’, thus opting for the Simplified Authorization Procedure (PAS), or the Single Authorization (AU).

Secondly, for all RES plants and storage facilities and within one hundred and twenty days from the issuance of the authorization for their construction - and in any case before the submission of the notice of commencement of works -, Regional Law no. 20/2024 makes it incumbent on the authorized party to submit to the Regional Department of Industry a guarantee in an amount equal to the total value of the intervention in order to cover any failure to realize the plant or its realization in breach of the authorization issued, as well as to guarantee the decommissioning of the production plant, of the connected works and of the restoration works on the sites concerned. This provision also covers plants in the course of authorization and, with different mechanisms and timeframes, those already authorized for which work has not yet commenced, as well as plants for which work is in progress.

At the end of an overall analysis of the legislation (the destiny of which, in terms of a probable declaration of unconstitutionality, seems already sealed), the opportunities for building RES plants and accumulations appear, therefore, significantly reduced - as well as significantly conditioned by compliance with specific requirements - and it must be noted that the areas defined as ‘suitable’ represent only 1% of the entire regional territory: the law, whose application is foreseen, completely irrationally, even to plants that have already been authorized and whose works have already begun, manifests itself, therefore, as a further (illegitimate) restriction on the spread of renewables, constituting a new obstacle to the achievement of the imposed decarbonization objectives.

1. Plants on industrial areas, former quarries and landfills - Authorization with DILA without the need to obtain other opinions. 

In its decision no. 1922/2024, the Veneto Regional Administrative Court held that, according to Article 22 bis, Legislative Decree no. 199/2021, introduced by Article 47 paragraph 1 letter b) of Decree-Law no. 13/2023, being the installation of ground-mounted photovoltaic plant and the related connection works in areas for industrial, handicraft and commercial use or, again, in landfills or closed and restored landfill lots or lots or portions of quarries not susceptible to further exploitation, an ordinary maintenance activity, is not subject to the acquisition of any permit, authorization or act of consent. In such cases, any rejection measure adopted by the competent authority at the outcome of the PAS, (erroneously) activated by the operator, must be deemed unlawful. This also applies in the event that the aforesaid procedure was activated (in this case appropriately) prior to the entry into force of the aforementioned Article 22 bis, since, by virtue of the principle tempus regit actum, the new provision, in the absence of different transitional provisions, also applies to proceedings already pending at that date.

2. PAS in suitable areas - Related works may also be authorized in PAS where they are located in unsuitable areas.  

With order no. 605/2024, the Regional Administrative Court of Palermo, referring to the provision set forth in paragraph 1 ter, Article 22, Legislative Decree no. 199/2021, noted that the interconnection works of RES plants “may benefit from the simplified authorization rules provided for suitable areas, regardless of their location”. This implies that, even where such interconnection works are located in non-suitable areas, they can in any case - in abstract - be treated as insisting in suitable areas, with the procedural simplifications that comes therefrom, thus leaving it up to the Administration to justify the incompatibility of the works with the area in which they are to be located, having regard to the specific characteristics of the territory and the constraints that insist on it. The Regional Administrative Court comes to these considerations also by virtue of the well-established jurisprudence according to which areas not included in the list of suitable areas “cannot be declared unsuitable for the installation of renewable energy production plants, at the territorial planning stage or within the scope of individual proceedings, simply because they are not included in the list of suitable areas” (see ex multis, Palermo Regional Administrative Court, orders no. 3272 of 8 November 2023, no. 3814 of 20 December 2023, no. 95 of 11 January 2024 and, most recently, no. 87 of 22 February 2024).

In the same order, moreover, the Palermo Regional Administrative Court took the opportunity to give prominence to the periculum deriving from the delay that the competent Administration accumulates in the issuance of the authorization title, having to consider both the fact that the construction of the plant itself is connected to the grid capacity booked by the proponent through the acceptance of the interconnection solution, and the limited duration of the same reservation, equal to only 270 business days from the acceptance of the solution, failing which the reservation would lose its validity and the consequent exposure of the proponent to the risk of the possible exhaustion of the grid capacity.

3. Authorization in suitable areas - The opinion of the Superintendence is not binding. 

In its decision no. 867/2024, the Regional Administrative Court of Sardinia ruled that “if the EIA application concerns a project to be located in suitable areas according to the applicable law, as in the case now under examination, the opinion of the Superintendence is not binding, which is why the competent Ministries must adopt the final act of the procedure on the basis of an autonomous motivation, They cannot merely transpose the opinion expressed by the Superintendence itself, especially when, as in the case now under examination, its opinion is contradicted by the ones expressed by other offices that participated in the preliminary investigation”. In this case, the Court observes, the rejection measure adopted by the MASE is unlawful as it merely recall the negative opinion of the Special Superintendence for the PNRR, without adding anything and without even referring to the favourable opinions that had been expressed by other offices during the preliminary investigation, in particular the Technical VIA-VAS Commission of the same MASE.

4. Authorization in suitable areas - The Municipality cannot introduce new restrictions for the construction of RES plants. 

With ruling no. 3464/2024, the Lombardy Regional Administrative Court found that “the introduction, at a merely local level, of a system of rules aimed at restricting the scope of the areas concretely usable for the establishment of photovoltaic plants, without clear reasons justifying the introduction of such measures in function of the protection of potentially impaired competing interests that are equally worthy of protection as well as in breach of the principle of strict proportionality in relation to the protection requirements pursued, also runs counter to the favour expressed by European Union legislation, in particular Regulation (EU) 2022/2577 of 22. 12.2022, according to which ‘the planning, construction and operation of installations for the production of energy from renewable sources, their connection to the grid, the grid itself, and storage facilities shall be regarded as being in the overriding public interest and in the interest of public health and safety when balancing the legal interests in individual cases’”. Censuring the rules set forth in the municipal building regulations, the Regional Administrative Court specified that if the site chosen for the installation of the photovoltaic plant falls on an area declared suitable by law, the local authority has no chance for assessment as to the installation of the work. The only discretionary margin that remains to the municipal administration is the possibility of introducing a merely building regulation relating to construction aspects, which must, however, move within strict boundaries and be declined according to a principle of strict proportionality in order to remain so and not provide for criteria that prevent the installation of such energy sources.

5. Priority criterion in the EIA - The peremptory nature of the terms of the EIA procedure for non-priority projects does not disappear. 

In judgement no. 9793/2024, the Council of State reaffirmed the peremptory nature of all the terms of the EIA procedure (cf. art. 25, paragraph 7, Legislative Decree 152/2006). Questioning the interpretative scope of art. 8, paragraph 1, of Legislative Decree. 152/2006, as amended by Decree-Law 17/2022, in the part in which it establishes a criterion of priority in the assessment of projects with a significant economic and employment impact or with expiring authorizations, the Council of State, in fact, held that “in any case, even regardless of the methods used by the administration to give concrete expression to the legislative criterion of priority the Ministry should have adopted, under the legislation in force, organizational measures such as to allow the examination of priority projects, without prejudice to the observance of the deadlines for the conclusion of proceedings relating to non-priority projects inasmuch as they are not derogated from by any provision of law”. The criterion of priority thus assumes, therefore, mere internal relevance for the purposes of an orderly and effective management of the authorization procedures by the bodies deputed thereto, “but it is not such as to assume, at the same time, a derogatory scope to the legal regulation of the time limit for the conclusion of the proceedings”.

6. Tempus regit actum - Article 22 bis also applies to proceedings pending on the date of its entry into force. 

In its decision no. 790/2024, the Sardinian Regional Administrative Court upheld the appeal against the refusal of a single authorisation pursuant to Article 12 of Legislative Decree no. 387 of 2003 concerning the construction of a photovoltaic plant with a capacity of 104.076 MW in an industrial area, on the basis of the tempus regit actum principle, since, during the authorization procedure, Article 47 of L.D. no. 13 of 24.2.2023 (conv. L. no. 41 of 23.4.2023) entered into force, introducing art. 22 bis into the L.D. no. 199 of 2021, entitled ‘Simplified procedures for the installation of photovoltaic plants’.

In the opinion of the Court: “The regional refusal, in view of the new legislation, is not lawful”, since “the project in question is no longer subject to the single authorization regime” with the consequence that the procedure for its issue should have been closed since the activity can be qualified as ordinary maintenance not subject to authorization and, therefore, “free building activity” by virtue of the entry into force of Article 22 bis.

7. State EIAs - The priority criterion for the treatment of certain projects does not invalidate the peremptory nature of the deadlines for the conclusion of the proceedings for ‘non-priority’ projects.

With decision no. 830/2024, the Regional Administrative Court of Sardinia declared the illegitimacy of the MASE's silence with respect to the obligation to proceed in relation to the adoption of the Environmental Impact Assessment (EIA) measure within the terms provided for by Article 23 et seq. of Legislative Decree no. 152 of 2006 on the basis of the assumption that “the introduction of a priority criterion in the processing of applications based on the greater power of the plant (art. 8, para. 1, legislative decree no. 152/2006) cannot in itself legitimize the failure to comply with the deadline for the conclusion of the proceeding (art. 25, para. 7, legislative decree no. 152/2006) for other projects, also in view of the circumstance that they are aimed at satisfying interests attributable to the operation of the business”.

8. Cost-effectiveness of administrative action - Sardinian Moratorium - The operator may ask the municipal administration to correctly qualify its application in the light of the legislation that has come into force.

In its decision No. 844/2024, the Sardinian Regional Administrative Tribunal observes that, following the entry into force of Law No. 5/2024 (the so-called Sardinian Moratorium), the operator may ask the municipal administration to correctly classify its application in the light of the legislation that has come into force, providing the necessary documentation according to the clarifications provided by the regional law itself on the characteristics of the so-called ‘agri-voltaic’ projects exempt from the moratorium.

The different opinion, expressed by the administration, that the applicant could have made a new application in accordance with the new law, thus giving rise to a new procedure, is in contrary to concentration, economy and efficiency principle of administrative action requiring that when a procedural-communication channel is already open between the administration and private individuals, and a different and relevant piece of legislation comes into force, the same channel should be used to specify - in the light of the change that has taken place - the contents and characteristics for the recognition of the authorization / right that has already been requested.

9. In the case of areas to be acquired through an expropriation procedure, the non-availability of the areas is not an obstacle to the establishment of the tacit authorization.

In judgment No. 847/2024, the Sardinian Regional Administrative Court deemed the authorization to construct the repowering works for a wind farm consisting of 27 wind turbines with a total capacity of 121.5 MW to have been tacitly obtained following the expiry of the 60-day period provided for by Legislative Decree No. 50/2022 from the submission of the application.

On this point, the competent Authority objected to the failure to demonstrate the availability of the areas by the applicant, pointing out that the expropriation procedure could not be considered tacitly concluded.

This assertion, however, according to the Court, is not compliant with the applicable law, given that Article 12, paragraph 4 bis of Legislative Decree No. 387/2003 provides that for plants other than those indicated in the first paragraph (which does not include wind farms) the operator “[...] when submitting the application for authorisation referred to in paragraph 3, may request the declaration of public utility and the attachment of the pre-ordained expropriation of the areas affected by the construction of the plant and related interconnection works”.

It follows that the competent Authority could not have objected to the non-availability of the areas as an obstacle to the recognition of the tacit formation of the authorization, given that their actual availability will depend on the performance of the expropriation procedures following the conclusion of the authorization procedure. 

Nor can the tacit formation of the title be prevented by the Moratorium provided for by Regional Law No 5/2024, given that that law entered into force on 4 July 2024, therefore, long after the formation of the tacit authorization, on which it could not produce any preclusive effect.

10. The unsuitability of the areas due to the lack of the prerequisites for the application of one of the areas indicated in paragraph 8, Article 20, of Legislative Decree 199/2021, does not prevent the qualification of the areas as suitable due to the existence of the prerequisites relating to a different case under the same paragraph.

In this case, dealt with by the Regional Administrative Court of Tuscany with decision no. 1359/2024, the competent Authority had denied the authorization for the construction of a ground mounted photovoltaic plant, although it fell within a suitable area pursuant to letter c-ter, paragraph 8, of Article 20 of Legislative Decree 199/2021, as it did not fall within the suitable areas referred to in letter c-quater, since the area falls within the perimeter of a protected zone pursuant to Article 12, paragraph 1 of Legislative Decree 42/2004.

For the Regional Administrative Court of Tuscany: “The above provisions must be interpreted, as stated by recent jurisprudence (…), in the sense that they provide for two distinct hypotheses, cumulative among themselves, of ex lege suitability of territorial areas for the construction of photovoltaic plants. In other words, the ascertained existence of the prerequisites of one of the two provisions contained in letters c-ter and c-quater means that the area has to be deemed suitable. More specifically, with reference to the present case, the possible ineffectiveness of letter c-quater does not exclude that the plant is authorizable under letter c-ter, since the second of the two provisions (quater) adds a new hypothesis of legal eligibility, textually preserving the operability of the first provision (ter)’.

Objectives and Guidelines

The Unified Code addresses the regulatory fragmentation that has often hindered the development of renewable energy in Italy. Its main goals include:

• Reducing bureaucratic complexity;

• Ensuring greater operational certainty for investors and industry stakeholders;

• Supporting clearer and harmonized territorial planning;

• Promoting efficient land use through innovative tools such as “acceleration zones.”

Key Innovations of the Measure

1. Three Differentiated Administrative Regimes

To streamline authorization processes, the decree establishes three administrative regimes:

• Free Activity: Applies to minor interventions that do not interfere with protected properties or public works. Compliance with basic technical and environmental conditions is sufficient. For interventions on non-urbanized land, a financial guarantee for site restoration is required.

• Simplified Enabling Procedure (PAS): Designed for medium-complexity projects, this procedure involves submitting simplified technical documentation. It applies to interventions that do not require environmental assessments but still need specific monitoring. The proposer may request the publication of the PAS in the relevant Region's Official Bulletin.

• Unified Authorization: Required for complex and large-scale interventions. The regional authority is responsible for plants up to 300 MW, while the national Ministry of Environment oversees those exceeding this threshold. Regions may discretionarily activate the PAUR procedure under Article 27 bis of Legislative Decree No. 152/2006 for regional EIA (Environmental Impact Assessments), ensuring the final Unified Authorization also includes the EIA ruling. The Unified Authorization process now also encompasses any EIA Screening ruling, regardless of whether the PAUR process is initiated.

Publication of the Unified Authorization ruling on the relevant authority's website is mandatory.

New thresholds for EIA Screening procedures are introduced:

• The new thresholds of (>) 30 MW, above which national EIA (Environmental Impact Assessment) Screening applies, and (≥) 15 MW, above which regional EIA Screening applies, for ground-mounted plants located in areas designated for industrial, artisanal, and commercial use, as well as in landfills or closed and restored landfill lots or in quarries or quarry lots or portions of quarries that cannot be further exploited;

• The new threshold of (>) 25 MW, above which national EIA Screening applies for ground-mounted plants in suitable areas (the threshold remains at 10 MW for ground-mounted plants in areas not included among the suitable ones);

• The new threshold of (≥) 12 MW, above which regional EIA Screening applies for photovoltaic and agro-voltaic plants in agricultural areas that are compatible and allow integration with agricultural activity (to understand the meaning of such compatibility and integration);

• The new threshold of (≥) 15 MW, above which regional EIA Screening applies for rooftop plants.

2. Acceleration Zones

The decree introduces “acceleration zones,” geographical areas designated to expedite the plant of renewable energy systems. These zones will be mapped by the Energy Services Manager (GSE) by May 2025, with final regional plans expected by February 2026. Priority areas include:

• Artificial and built surfaces;

• Industrial areas and waste disposal sites;

• Artificial water basins and non-productive agricultural land.

This approach aims to avoid conflicts with other economic activities or landscape protection while promoting rational land use.

3. Land Availability

For free construction activities, the proposing entity must acquire the availability of the area before starting interventions, regardless of their type. Land availability for connection works is not required.

For PAS-regulated interventions, the proposing entity must also secure land availability at the time of the authorization request. Expropriation procedures are now allowed for network works.

Unified Authorization interventions can include expropriation for plant areas, except for new photovoltaic, solar thermal, biogas, and biomethane plants.

4. Start and Completion Deadlines

Free construction activities do not have specific start/completion deadlines.

PAS-regulated interventions must start within one year of PAS approval and conclude within three years of commencement.

Unified Authorization interventions have deadlines set by the authorization ruling, with a total minimum duration of four years. Authorization rulings must also specify the operational start date of the plant. Extensions are granted only for force majeure events, a narrower criterion compared to the current rules allowing extensions for events beyond the proponent’s control.

5. Codification of the Ban on Artificial Fragmentation

Regions are tasked with defining rules to combat artificial fragmentation of authorization requests, where formally different entities attempt to access less burdensome authorization procedures but share a common “center of interest.”

6. Strengthening the Sanctioning Framework

To ensure compliance, the decree introduces severe penalties for authorization-related violations, reaching up to Euro 150,000. Site restoration is always mandated.

Next Steps

According to the approved text, the decree will take effect on 30 December 2024. Its success will largely depend on the ability of regional and local authorities to swiftly adapt to the new provisions. Strong coordination between central and peripheral levels will be crucial to translating promised simplifications into tangible benefits for citizens and businesses.

Regions have 180 days to align with the provisions and principles of the decree. Until then, the previous regulations will continue to apply.

More specifically, constitutional illegitimacy allegedly arises from the conflict of the above mentioned twelve-month deadline for nullification by internal review with Articles 3, paragraph 1, 9, paragraphs 1 and 2, 97, paragraph 2 and 117, paragraph 1, of the Italian Constitution (in relation to Articles 1, points  b. and d. and 5  points a. e c. of the  “The Council of Europe Framework Convention on the Value of Cultural Heritage for Society" of 27 October 2005).

In particular, in the opinion of the Panel, the provision for a fixed and mandatory time limit under Article 21-nonies, paragraph 1, of Law No. 241/1990, allegedly prevents competent authorities from properly assessing “sensitive” interests such as, for example, the protection of the historical and artistic heritage. On the contrary, the provision for a “flexible deadline linked to the principle of reasonableness” might allow public authorities to adequately weigh up the interests at stake, avoiding that those of primary constitutional importance “always turn out to be mechanically recessive, as a result of the mere passage of time, with respect to the protection of a personal legal situation”.

Moreover, still according to the Panel’s interpretation, with regard to various administrative institutions, lawmakers have deemed it appropriate to establish a sui generis and temporally extended legislation to protect primary and super-individual interests. Such institutions, to give an example, stem from Article 20, paragraph 4, of Law No. 241/1990, which states that the provisions on “silence-consent” do not apply to proceedings concerning the cultural and landscape heritage; Article 19, paragraph 1, of Law No. 241/1990, which excludes from the scope of application of the SCIA (Certified Notice of Commencement of Works) the cases subject to environmental, landscape or cultural restrictions; Articles 14-bis, 14-ter and 14-quinquies of Law No. 241/1990, which establish (i) longer deadlines for the taking of decisions and for the conclusion of the works of service conferences in the cases involving administrations in charge of protecting the environment, landscape and territory and cultural heritage; (ii) as well as specific remedies against the final decision of the services conference in favour of the dissenting administrations in charge of protecting the aforesaid interests.

From a different perspective, the judges pointed out that the provision of a rigid time limit for the possibility of acting by internal review indirectly results in “the administration being prevented from using other special authoritative powers”, thus limiting the re-exercise of the administrative power resulting from the nullification of the previous measure.

We therefore await the decision of the Constitutional Court, which could call into question an important instrument of legal certainty and, as a result, trigger significant consequences for the private individuals affected by nullification by internal review.

Roma, 8 Novembre 2024

1. Introduction

The taxation for registration tax purposes of deeds creating rights of superficies on agricultural land is an issue of great relevance and interest for the renewable energy sector, since it is a contractual arrangement widely used in the context of the construction of plants for production of electricity from wind and photovoltaic sources. Such contractual agreements indeed allow producers of energy from renewable (specifically wind or photovoltaic) sources to secure the availability of the agricultural areas and land on which such plants are generally installed (and at the same time the “bankability” of the projects themselves), without acquiring full ownership of such land.

For registration tax purposes, a deed creating a right of superficies falls within the “deeds subject to registration within a fixed deadline”, in relation to which Article 1, paragraph 1, of the Tariff, Part One, attached as Annex A to Presidential Decree No. 131/1986 (“T.U.R.”) provides as follows:

• in the first sentence: “deeds transferring title to real estate in general for valuable consideration and deeds transferring or creating in rem rights of use, including pure and simple waiver thereof, measures of expropriation in the public interest and compulsory transfers” are subject to proportional registration tax determined at the rate of 9%;
• in the third sentence: “if transfer relates to agricultural land and its appurtenances in favour of persons other than farmers and professional agricultural entrepreneurs, registered in the relevant social security and welfare management system", the relevant deeds are subject to proportional registration tax determined at the rate of 15%.

In respect of deeds creating rights of superficies on agricultural land in favour of persons other than farmers and professional agricultural entrepreneurs, Italian tax authorities have historically stated their subjection to proportional registration tax at the rate of 15%¹, deeming such case comparable to the concept of “transfer” referred to in the third sentence of Article 1, paragraph 1, cited above².

The approach expressed on this point by the tax administration had already been disregarded by the case law of the Italian Supreme Court, based on considerations aimed at highlighting the impossibility of endorsing, from a legal perspective, the assimilation proposed by the tax authorities.

More specifically, by decision No. 3461/2021, the Italian Supreme Court, ruling on the registration tax applying to a deed creating rights of superficies on agricultural land for the construction of a photovoltaic plant, stated that  “From a plain reading of the provision [third sentence of Article 1 of the Tariff, Drafter’s note] it emerges  that the same applies to the transfer and not to the “creation” of an in rem right of use”, outlining the impossibility of assimilating the two cases, since  “the creation of a right of superficies on land by an assignor/creator is not regulated by the provisions applying to transfer deeds”, precisely because “a right of superficies is ‘created’, and not ‘transferred’".

Based on the above considerations, the Italian Supreme Court decided to endorse the approach previously expressed by judgment No. 16495/ 2003³, issued in a case concerning the creation of easement rights, considering it “similar to the one under consideration for tax purposes” [creation of right of superficies, Drafter’s note]”, deeming also the case of creation of the right of superficies under consideration falling within the scope of the provision set out in the first sentence of paragraph 1 of Article 1 of the Tariff, Part One, with consequent application of proportional registration tax at the rate of 9%.

2. The Reply to application for a ruling No. 365/2023.

Notwithstanding the clear interpretative/operational criterion outlined by the Italian Supreme Court, with respect to the right of superficies the Tax Authorities - unlike in relation to the right of easement - maintained the “assimilation” thesis, reaffirming their position in their Reply to application for a ruling No. 365/2023.

In such document, with respect to the legal principle stated by the Italian Supreme Court by decision No. 3461/2021, cit.  – referred to by the  applying Notary in support of its interpretation – the Revenue Agency stated that the  grounds expressed in such decision were not deemed prejudicial to its view  since “although concerning a dispute regarding the taxation of a deed of creation of the right of superficies, the Italian Supreme Court expressly recalls previous rulings on the right of easement as well as the concept according to which “it does not entail the transfer of rights or faculties of the owner of the servient estate”, which, as pointed out, is peculiar to the right of easement as defined by Articles 1027 et seq. of the Italian Civil Code and not to other in rem rights of use”.

Based on the above considerations, the Agency therefore concluded that “the taxation principles set out in the aforementioned Circular No. 18/E of 2013, for registration tax purposes, are still deemed applicable. Therefore, the deed of creation of the right of superficies in respect of the agricultural land at issue is subject to registration tax at the rate of 15%, in addition to mortgage and cadastral taxes at the fixed rate of EUR 50 each”.

3. Decision of the Italian Supreme Court No. 27293/2024.

In its very recent decision No. 27293/2024, the Italian Supreme Court ruled again on the taxation for registration tax purposes of deeds creating rights of superficies on agricultural land⁴, confirming the application of the rate provided for by the first sentence of Article 1, paragraph 1, of the Tariff, Part One, attached as Annex A to Presidential Decree No. 131/1986 (namely, 8% pursuant to the text applicable ratione temporis to the case at issue and 9% according to the text currently in force).

Consistently with the position previously held, the Italian Supreme Court - recalling that “In both scenarios contemplated by Article 952 of the Italian Civil Code, there is a separation between the legal ownership of the land and that of the building (to be constructed or already existing) [which, Drafter’s note ) does not entail, however, a splitting of the legal ownership of the land, which [...] remains with the grantor” - reiterated that “by reason of the intrinsically temporary nature of the right, surface tenure must be considered a right ontologically different from fee simple interest” and the consequent need, for tax treatment purposes, to keep the transfer deeds distinct from those creating in rem rights of use, considering also that “when the legislator wanted to tax also the deeds creating said rights, it made express provisions in such regard⁵”.

In confirming its position, the Italian Supreme Court expressly stated that the guidelines provided by the tax authorities⁶, traditionally invoked by them in support of the payment notices issued in relation to such particular case, are not binding.

It appears significant that the Italian Supreme Court not only expressly referred to and confirmed the view already laid down in decision No. 3461/2021, but de facto considered it as well established.

Indeed, following the appeal lodged by the Attorney General's Office, the Deputy Counsellor proposed an accelerated settlement pursuant to Article 380-bis of the Italian Code of Civil Procedure, due to the manifest unfoundedness of the grounds of complaint, noting that "The word transfer contained in Article 1 of the Tariff attached to Presidential Decree No. 131 of 1986 was used by the lawmaker to indicate all those deeds providing for the transfer from one party to another of the ownership of real estate or the holding  of in rem rights of use in real estate and cannot be referred to deeds creating in rem rights of use such as an easement, which does not entail the transfer of rights or faculties of the owner of the servient estate but the limitation of the latter's right of ownership to the benefit of a given dominant estate)". 

The decision in question, therefore, further contradicts the position reiterated in the Reply to application for a ruling No. 365/2023 cited above, whereby the Tax Administration had reaffirmed the application of the 15% rate to deeds creating a right of superficies on agricultural land, notwithstanding the fact that the notary public drawing up the deed had made express reference to the principle established by decision No. 3461/2021 cited above.

Considering the full compliance of the decision with the proposal of the Deputy Counsellor, the losing Public Treasury was, inter alia, ordered not only to pay the “increased” litigation costs, but also to pay the further sums provided for by Article 96, paragraphs 3 and 4 of the Italian Code of Criminal Procedure, an element that may lead the Tax Administration to consider ceasing recourse to litigation, as occurred with respect to deeds of easement ⁷.
 

¹ Resolution No. 92/E/2000, Circulars Nos. 18/E/2013 and 36/E/2013. According to the Agency’s view, although  the third sentence of Article 1 cit., as is worded, limits the application of the  15% rate to deeds involving the “transfer” of agricultural land, lawmakers (allegedly) intended to assimilate the concept of “transfer” to the concept of “deed of transfer” or “deed transferring or creating in rem rights of use in real estate, so that the term “transfer” should be deemed to also cover the “deeds creating in rem rights of use in real estate”  expressly mentioned in the first sentence of paragraph 1.

² Conflicting with such view was the more recent Resolution No. 4/E of 15 January 2021, which, endorsing the view taken by the Italian Supreme Court of the point, stated that, for the purposes of the registration tax, a  deed creating easement rights on agricultural land for persons other than farmers and agricultural entrepreneurs should fall within the scope of the general provision referred to in the first sentence of Article 1, paragraph 1, of the Tariff, Part One, declaring the indications contained in the former circulars de facto  superseded. (Cass. judgment No. 16495/2003, conf. Cass. judgments Nos. 22198/2019, 22199/2019, 22200/2019 e 22201/2019, Cass. decisions 6671/2020, 6677/2020 and 22118/2020).

³ According to which "The term “transfer” contained in Presidential Decree No. 131 of 1986, Article 1, of the attached tariff was used by lawmakers to indicate all those deeds that involve the transfer of title to real estate or of in rem rights of use in real estate from one person to another and cannot be referred to deeds  creating in rem rights of use such as right of easement, which does not involve the transfer or rights or faculties of the owner of the servient estate but the limitation of its ownership right in favour of a certain estate (dominant estate)"

⁴ In particular, the case ruled by the Italian Supreme Court concerned a deed creating a right of superficies on agricultural land for the construction of a photovoltaic plant.

⁵ Making reference, by way of example, to Article 9, paragraph 5 of Presidential Decree 917/1986. 

⁶ In particular, by Circular No. 36/E/2013 invoked by the applicant Authority in support of its appeal, in respect of which the Italian Supreme Court recalled “that the circulars whereby the Revenue Agency provides an interpretation of a tax provision, even if containing instructions to hierarchically subordinate departments, express exclusively a non-binding opinion, not only for the departments to which they are addressed, but also for taxpayers, for the same authority that issued them and for the court; therefore, the so-called ministerial interpretation of tax provisions, whether contained in circulars or resolutions, does not represent a source of law, nor is it subject to the review of legitimacy exercised by the Supreme Court (pursuant to Articles 111 of the Italian Constitution and 360 of the Italian Code of Civil Procedure), since they are not the expression of regulatory activity, but rather an internal activity of the public administration itself, intended to exercise a directive function with respect to the dependent departments, but having no effect on the tax relationship (Cass. en banc No. 23031 of 2007; Cass. No. 35098/2022; Cass. No. 18618 /2019; Cass. No. 10195 of 2016)”.

⁷  See above, Resolution No. 4/E of 15 January 2021.

EU Regulation 2022/2554, known as “DORA” (Digital Operational Resilience Act), which is scheduled to be implemented as of January 17, 2025, is the most important reform to date in the field of cybersecurity in banking, finance and insurance. As its recitals confirm, the increasing degree of digitization and interconnectedness has amplified cyber risks as a result of the essential role acquired by ICT services. With the increase in cyber threats and operational disruptions resulting from security incidents, the European legislature has recognized the importance of equipping the Union's financial, banking and insurance institutions with a regulatory framework that fosters their “digital operational resilience,” i.e., the ability to build, secure and review their operational integrity and reliability, ensuring through the ICT services of third-party providers, the security of their information systems even in the face of disruption. As such, it is crucial that financial entities and their ICT service providers take appropriate and adequate measures to ensure the security and reliability of their operations.

The main pillars underpinning DORA's discipline are essentially five:

(i) Risk management: obligation to map all functions and activities supported by ICT services and manage their risks, cybersecurity threats, and vulnerabilities by having internal governance structures and formalizing relevant policies to monitor them.

(ii) Operational resilience: requirement to provide a testing program to assess and remediate any cybersecurity gaps.

(iii) Third-party vendor relationships: risk assessment and monitoring of relationships with external vendors (particularly vendors with whom they have direct relationships and also subcontractors) through the drafting of contractual agreements that include the minimum requirements outlined in the regulation.

(iv) Incident management: obligation to inform the relevant authorities of any significant incidents and the measures taken to address them.

(v) Information sharing mechanisms: possibility of mutual exchange of information and analysis of cyber threats.

Impacts of DORA

The impact of DORA on the various types of financial entities will not be the same for all recipients, both in terms of internal governance safeguards (e.g., updating IT security policies) and in terms of reviewing contracts with ICT service providers supporting essential or important functions.

In particular, banks (given their relevance at the level of systemic risk) were already subject to a particularly advanced regulatory framework due to the transposition of both the EBA guidelines on outsourcing and the EBA guidelines on ICT and security risk management (both later recalled and implemented in Circular 285), which already anticipated some of the measures later reaffirmed by DORA.

Along with banks, insurance companies, as well as SGRs and AIF managers, are already currently required to adopt a number of safeguards when outsourcing essential or important functions. For insurance companies, there will be impacts on the activities to be carried out internally to adapt to and comply with the provisions of DORA, also in light of the now outdated industry regulation (i.e. IVASS Regulation No. 38 of 2018). SGRs, AIF managers, and investment firms in turn will have a significant impact (in terms of internal compliance efforts); current sources do not elaborate and do not comprehensively consider digital operational resilience rules (think of EU Regulation 2013/231 and the Bank of Italy and Consob Regulation of December 5, 2019, but also EU Regulation 2017/565; although partially, the only source that tries to regulate the topic are the ESMA cloud guidelines, applicable, moreover, only to cloud services).

In any case, each financial entity will first have to identify all contracts attributable to ICT services provided by third-party vendors; among these, services supporting essential or important functions will have to be distinguished, i.e., those functions whose interruption or interrupted, deficient or insufficient execution would substantially jeopardize the financial results or the soundness or continuity of its services and activities, or even the continued fulfillment of the conditions and obligations inherent in its authorization or other obligations under applicable industry regulations. Subsequently, it will be necessary to conduct a gap analysis in order to be able to properly assess the risks and actions to be taken in order to bring all internal policies and procedures and contracts in line with the new requirements of the DORA Regulations and delegated regulations.

In this sense, the DORA framework is far from being completed and, in particular, (i) most of the implementing technical standards are still missing (so-called RTS and ITS, think for example of accident classification, management of relations with subcontractors, methodologies for accident notification and reporting) and (ii) it will be necessary to issue a legislative decree to “harmonize” the Italian legal system to the new features introduced by the DORA package as provided for in Article 16 of Delegated Law No. 15/2024. Inevitably, all this makes this phase of implementation and progressive adaptation to this new “hyper-technical” legislation even more difficult.

Lorenzo Freddi brings with him a 16-year experience gained at Cleary Gottlieb Steen & Hamilton LLP, where he developed strong expertise in M&A and private equity. 

Throughout his career, he has assisted industrial clients and investment funds, both Italian and international, in a wide range of M&A transactions, joint ventures and partnerships. His professional background also includes an established expertise in commercial and technology contracts. 

With his experience and skills, Lorenzo Freddi will make a significant contribution to the needs of ADVANT Nctm’s clients in the most strategic and complex sectors. 

As a result of Lorenzo’s entry, ADVANT Nctm now has 78 partners.

Riccardo Sallustio will participate in the conference organized by the LMA (Loan Market Association) dedicated to sustainable finance.

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Summary

With ruling no. 12563/2024, the Italian Court of Cassation addressed the dispute between Duca di Salaparuta S.p.A., the Ministry of Agricultural Policies, various wine producers, and the Consortium for the Protection of Salaparuta PDO wines. Duca di Salaparuta argued that the registration of the term “Salaparuta” as a national DOC in 2006, and as a European PDO in 2009, conflicted with its well-known "Salaparuta" trademark, which had been used to identify its wines since the 19th century. The appellant claimed the national DOC and European PDO registrations were deceptive and/or made in bad faith. The Court of Cassation deemed it necessary to refer a preliminary question to the European Court of Justice (“CJEU”) to resolve the conflict between well-known trademarks and PDOs under EU law.

Legal Controversies and Background of the Proceedings

In 2016, Duca di Salaparuta sued various wineries in Milan that used the "Salaparuta" label, the Salaparuta PDO Wines Protection Consortium, and the Ministry of Agricultural, Food, and Forestry Policies (the authority that had granted the national DOC registration).

Firstly, the appellant argued that the defendants' use of "Salaparuta" on their labels constituted both trademark infringement and unfair competition. Duca di Salaparuta also sought the annulment of the Italian PDO granted in 2006 and the subsequent EU registration granted in 2009. It claimed these designations were deceptive and/or made in bad faith and, in any case, interfered with its prior trademarks.

In particular, the appellant based its nullity request on Article 43.2 of Reg. (EC) No. 479/08 – essentially reproducing Article 118 duodecies, 2, of Reg. (EC) No. 1234/07 – stating that “A name is not protected as a designation of origin or geographical indication if, due to the renown and reputation of a commercial trademark, such protection could mislead consumers about the true identity of the wine.”

In ruling no. 1384/21, issued on February 16, 2021, the Milan Court upheld the appellant's claims regarding trademark infringement and unfair competition. The Court believed that the defendants' use of "Salaparuta" on labels could mislead consumers about the origin of the wines.

However, the Milan Court dismissed Duca di Salaparuta's request to annul the national DOC and European PDO, as the provision invoked by the appellant – Article 43.2 of Reg. 43.2 (EC) No. 479/08, establishing the primacy of the well-known prior trademark over the subsequent PDO – was not in effect when "Salaparuta" received national DOC protection in 2006.

Duca di Salaparuta appealed the first-instance decision before the Milan Court of Appeal. In ruling no. 1453/23, the Court of Appeal dismissed the appeal, confirming the lower court's decision. The Court of Appeal noted that in this case, it was necessary to apply the transitional rule under Article 51 of Regulation (EC) No. 479/08, providing automatic EU protection for a national origin designation already protected under the previous regulation.

Additionally, the Court of Appeal emphasized that "Salaparuta" had been registered as a national designation of origin under Reg. (EC) No. 1493/1999, which – in section "F," paragraph 2(b) of Annex VII – established a principle giving precedence to the designation of origin over the trademark, even if the latter was prior and contained identical terms, provided that the well-known trademark had been registered at least twenty-five years before the official recognition of the geographical designation by the member state.

The appellant thus appealed the decision before the Court of Cassation, which suspended the proceedings and referred the following two questions to the CJEU:

1. Are PDO registrations for wine designations existing prior to EU Regulation 1234/2007 (later replaced by Regulation 1308/2013), like the "Salaparuta" PDO (registered in 2009), subject to the rule denying protection to a PDO/PGI if it could mislead consumers due to the renown and reputation of a previous trademark? Or does this rule not apply to designations already protected nationally before receiving EU recognition, based on the legal certainty principle (as mentioned in the CJEU’s Bayerischer Brauerbund ruling)?
2. If previous legislation (Regulation 1493/1999) applies to the facts of this case, can subsequent PDOs be invalidated or lose protection under the general principle of non-deception for distinctive signs?

Conclusions

This decision underscores the need for further clarification on how EU law should balance the interests of well-known trademarks and geographical indications.

Legislative Decree No. 138/2024 (“NIS2 Decree”), transposing Directive (EU) 2022/2555, known as the “NIS2 Directive” was published in the Official Gazette.

The NIS2 Decree, in addition to repealing Legislative Decree No. 65/2018 – which transposed Directive 2016/1148, the so-called NIS Directive –also provided for the repeal of Articles 40 (“Security of networks and services”) and 41 (“Implementation and control”) of Legislative Decree No. 259/2003 (“Electronic Communications Code”), with the consequence that now providers of public electronic communications networks or publicly available electronic communications services are subject only to the provisions set out in the NIS2 Decree.

To whom does it apply?

The NIS2 Decree applies to both public and private entities operating in “critical” sectors (e.g. energy, transport, banking, healthcare, digital infrastructure, space, waste management, manufacturing of medical devices, machinery, motor vehicles, etc.). 

Moreover, the obliged entities are distinguished into “essential” and “important”, according to their importance for the sector or type of services they provide, as well as their size. Belonging to one or the other category is relevant for the application of sanctions in the event of breach of the obligations under the NIS2 Decree, which are higher for essential entities (equal to a maximum of at least EUR 10 million or a maximum of at least 2% of the total worldwide annual turnover in the preceding financial year of the undertaking to which the essential entity belongs, whichever is higher).

What are the obligations?

The main obligations incumbent on the obliged parties are the adoption of IT security risk management measures and the notification of significant incidents.