In judgment No. 6267 of 3 August 2026, the Second Division of the Council of State upheld the application brought at first instance and revoked the payment order issued against the operator that had taken over ownership of a photovoltaic plant.
The Council of State held that the repayment obligation arising from the forfeiture of the incentives with ex tunc effect falls within the scope of restitution of an undue payment under Article 2033 of the Italian Civil Code and rests solely with the person who actually received the relevant sums. References made by the GSE to the assignment of the contract under Article 1409 of the Italian Civil Code were held to be irrelevant.
The decision is of significant systemic importance for the renewable energy sector, as it calls into question the GSE’s established practice and reshapes the allocation of risks in transactions involving the acquisition and disposal of energy assets.
1.The regulatory framework and GSE practice regarding changes in ownership
In transactions involving the transfer of ownership of renewable energy generation plants, the transfer of the relevant agreement is normally carried out through a change-of-ownership procedure managed by the GSE.
In its notice accepting the transfer of ownership under the agreement (which constitutes an “addendum” to the original agreement), the GSE includes a standard clause providing that “pursuant to Article 1409 of the Italian Civil Code, the transferee assumes the rights and obligations of the transferor under the assigned contract, continuing all legal relationships existing prior to the transfer of ownership”.
On the basis of this wording, the GSE has historically taken the position that the transferee is directly liable for any repayment obligations incurred by the transferor as a result of breaches occurring prior to the change of ownership, and has sought to recover from the new plant owner sums previously paid in respect of the plant from the date on which it entered into operation.
The judgment under consideration redefines the scope of this approach and establishes that this enforcement mechanism is invalid.
2.The proceedings and the innovative implications of the judgment
2.1The proceedings
The dispute arose from an opposition to the payment order whereby the Lazio Regional Administrative Court ordered the transferee of a photovoltaic plant to repay to the GSE the sums paid as incentives since the plant entered into operation.
The transferee had acquired ownership of the photovoltaic plant following the transfer of a business unit.
As part of that transaction, the parties had expressly excluded from the transfer all debts and receivables arising prior to the transfer. The parties subsequently jointly submitted an application to the GSE for the transfer of the agreement.
Pending the conclusion of the transfer procedure, following on-site inspections, the GSE identified significant breaches and, consequently, ordered the forfeiture of the incentive tariffs with retroactive effect.
Upon finalisation of the addendum to the agreement, the GSE accepted the transfer, relying on Article 1409 of the Italian Civil Code, pursuant to which the transferee assumes all the rights and obligations of the transferor and therefore succeeds to the contractual relationships existing prior to the transfer of ownership. This approach means that the GSE may enforce against the transferee all claims and defences arising from the contract, including any claim for recovery of sums unduly paid to the transferor.
Following a demand for payment and the failure to pay the amount claimed (approximately €397,000), the GSE obtained a payment order against the transferee, which it regarded as the sole party liable by virtue of the discharging effect of the assignment of the contract.
The Council of State, overturning the decision of the court of first instance on this point, rejected this interpretation, upheld the appeal brought by the transferee and, consequently, revoked the payment order.
2.2 The innovative implications: the applicability of Article 2033 of the Italian Civil Code
The central issue addressed by the judgment concerns the proper legal characterisation of the GSE’s claim for repayment following the forfeiture of the incentive tariffs.
The Council of State referred to established case-law according to which forfeiture of the right to incentive tariffs results in the retroactive (ex tunc) elimination of the beneficiary’s entitlement. Consequently, a claim for repayment of incentives paid does not constitute the exercise of a public-law power, but rather a claim for restitution of an undue payment within the meaning of Article 2033 of the Italian Civil Code. As a general principle, such claim lies exclusively against the party that actually received the sums without legal basis (see Council of State, Second Division, judgment No. 3773/2026).
In the present case, the repayment obligation is not a contractual debt arising from the agreement (to which the appellant company had succeeded), but rather the direct consequence of the retroactive removal of the public-law entitlement that had provided the legal basis for payment of the incentives. Accordingly, the repayment obligation rests solely with the original holder that received the sums.
In support of this conclusion, the Council of State relied on the provisions of the agreement entered into with the producers, namely:
Accordingly, the repayment obligation arising from an undue payment cannot be imposed on the transferee in respect of sums that it never received.
Nor can the succession of the new owner to the agreement be regarded as having transferred to it the transferor’s repayment obligation.
The action for restitution under Article 2033 of the Italian Civil Code does not follow the ownership or transfer of the asset (in this case, the plant), but remains inextricably linked to the actual receipt of the payment, which was made without legal basis.
3. Concluding remarks
This decision represents a fundamental turning point in the protection of investors in the renewable energy sector, as it excludes the unjustified risk of automatically passing on to purchasers of existing plants the repayment risks relating to periods preceding the acquisition, ensuring that a purchaser or transferee that never received the sums in question is not exposed to claims for repayment of amounts it never received.
