Plants registered in the Registry: (i) irrelevance of material errors concerning a priority criterion where such error does not provide any advantage in the ranking to the operator; (ii) applicability of the tariff reduction in place of revocation even before the execution of the GSE Agreement.
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:
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;
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.
