Italy’s proposed carbon costs reimbursement for gas-fired power producers may…
In Advisory Opinion no. 464/2023, rendered at the outcome of the Sectional Meeting of November 21, 2023, the Council of Administrative Justice for the Sicilian Region (CGA), at the request of the Regional Department of Energy, ruled on a series of questions in light of the recent changes, concerning the following two issues:
i. applicability of the three-year deadline for the commencement of the construction works under Articole 15, para. 2, of Presidential Decree no. 380/2001 (as amended by Articicle 7-bis of Decree Law no. 50/2022) also to the authorizations under Article 12 of Legislative Decree no. 387/2003;
ii. applicability, also to the authorizations under Article 12 of Legislative Decree no. 387/2003, of the two-year extension under art. 10-septies of Decree Law no. 21/2022 of the deadline for the commencement and end of construction works for authorizations issued or formed by December 31, 2023.
With reference to the first point, the CGA clarified that the provision of Article 7-bis of Decree Law no. 50/2022, although included in the framework of Article 15 of Presidential Decree no. 380/2001, also refers to the titles provided for in Article 12 of Legislative Decree no. 387/2003, “since there can be no doubt that the same concerns the authorizations (or, in the same way, the authorization titles) for the realization and the exercise of IAFR” and not being able to accept the thesis sustained by the regional Administration according to which, being the urban planning matter of exclusive competence of the Region, the provisions of Presidential Decree no. 380/2001, if amended, should be implemented with a special rule by the regional legislator.
The administrative judges, adhering to the precedent of the Marche Regional Administrative Court (ruling no. 110/2023 of February 20, 2023), clarified that Article 7-bis of Decree Law no. 50/2022, although it amended Presidential Decree no. 380/2001 in Article 15, para. 2, where it provided that: “for interventions carried out under a permit issued pursuant to Article 12 of Legislative Decree December 29 2003, no. 387, the deadline for the commencement of works is set at three years from the issuance of the title”, must be applied without a doubt ipso iure also to the authorization ex art. 12 of Legislative Decree 387/2003 and not only to the building permit.
With reference to the second point, that is, to the two-year extension pursuant to Article 10-septies of Decree Law no. 21/2022 of the deadline for the commencement and completion of works for the authorization certificates issued or formed by December 31, 2023, the judges of the CGA held that the postponement of the deadline for the commencement and completion of works of 2 years also applies ispo iure to the authorizations issued pursuant to Article 12 of Legislative Decree no. 387/2003 as well as “to the terms relating to certified reports of commencement of activities (SCIA), as well as to landscape authorizations and environmental declarations and authorizations however named”.
Also in this case, the CGA, adhering to ruling no. 110/2023 rendered by the Marche Regional Administrative Court, clarified that Article 10-septies, although it textually concerns only building permits proper, taking into account the circumstances that had prompted the legislature to intervene (difficulties in the supply of materials as well as by the exceptional increases in their prices), also affects other sectors, including the construction of plants for the production of electricity energy from renewable sources.
In such a case, in order to take advantage of the ex lege extension, the operator must submit an appropriate notice to take advantage of the extension.
Ultimately, although the advisory activity rendered by the CGA is not intended to support the choices of the Regional Administration, taking into account that such a task is institutionally the responsibility of the Avvocatura di Stato, it is believed that the clarification provided by the CGA represents an important signal for operators holding authorizations issued before December 31, 2023, who will be able to submit to the Regional Energy Department a communication requesting to avail themselves of the 2-year extension provided by Article 10-septies of Decree Law no. 21/2022, without the need for prior investigation resulting in the issuance of a discretionary measure by the Administration.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Giovanni Battista De Luca
