With judgment no. 789 of 3 September 2025, the Lombardy Regional Administrative Court, Brescia, Section I, partially annulled Regional Resolution no. XII/2783 of 15 July 2024, concerning the “Approval of guidelines for the installation of agrivoltaic systems in agricultural areas” (the “Resolution”), by means of which the Lombardy Region, pending the adoption of ministerial decrees for the identification of uniform principles and criteria for identifying areas and surfaces suitable and unsuitable for the installation of RES plants, designated the guidelines for the aforementioned installation.
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:
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);
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.
