Several months after the release of the first draft (originally named the 'Energy Decree' and subsequently renamed the 'Utilities Decree'), Decree-Law No. 21/2026 (the 'Decree') finally entered into force on 21 February last, introducing a number of legislative and regulatory developments of considerable significance for the energy sector.
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.
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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.
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