Temporary Business Associations for the Agri-Photovoltaic Filed

Relevant Legislation: Guidelines on Agri-Photovoltaic Matters, Art. 65 Law Decree No. 1/2012; Legislative Decree No. 199/2021.

What happened?

On June 27, 2022, the MiTE (Ministry of Ecological Transition) published (i) the Guidelines on Agri-Photovoltaic Matters (“Guidelines”), drafted by the Council for Agricultural Research and Agricultural Economy Analysis (“CREA”) in collaboration with the Gestore dei Servizi Energetici S.p.A. (“GSE”); and (ii) the document launching a public consultation aimed at sharing the underlying principles of the future decree (“MiTE Decree”), which shall states the criteria and modalities to grant incentives for agri-photovoltaic plants (“Apv Plants”), in accordance with article 14, paragraph 1, letter c) Legislative Decree No. 199/2021. The Guidelines address the requirements that Apv Plants have to meet in relation to the authorization proceeding and in order to receive the incentives by GSE. However, only the publication of MiTE Decree will introduce a binding regulation in order to clarify the requirements necessary to the authorization and incentive procedure. Nevertheless, it is reasonable to expect that the MiTE Decree will incorporate the provisions of the Guidelines, as also affirm in the document opening the public consultation.

The Guidelines identify two types of subjects eligible to carry out the production of the electricity and, at the same time, the agricultural activities on the same land: (i) agricultural entrepreneur (individual or associated) pursuant to the article 2135 of the Italian Civil Code (“Subject A”); and (ii) temporary business association (associazione temporanea di imprese) (“TBA”), whose member has “energy sector companies and one or more agricultural enterprises that, through a specific agreement, make their own land available for the construction of the Apv Plant” (“Subject B”).

Regarding Subject B, the Guidelines refer to a particular legal form introduced by Art. 3, paragraph 1, letter u) of Legislative Decree No. 50/2016 (“D.Lgs. 50/2016”). Pursuant to D.Lgs. 50/2016, the TBA consist in a temporary contractual structure that allows cooperation between companies that aim at participating to, and awarding the, public tender. In order to establish an TBA the members have to conclude the following agreements: (i) a special collective mandate without consideration and with representation, granted to the legal representative of the leading company of the TBA (“Mandator”) pursuant to article 48, paragraph 13 of the D.Lgs. 50/2016; (ii) an internal regulation that governs the relationships and cooperation between the participants in the TBA. Moreover, in accordance with article 48, paragraphs 1 and 2 D.Lgs. 50/2016, the TBA may have an horizontal or vertical form: the main difference consists in the expertise brought to the TBA by the members. In the first case (horizontal TBA), the members bring the same technical knowledge and skills; while, in the second type (vertical TBA), the Mandator brings the knowledge and technical skills necessary to fulfil the main performance object of the contract, whereas the other associated member bring the knowledge and technical skills necessary to fulfil the accessory services.

Another difference between the two aforesaid configurations concerns the different liability regime provided by article 48, paragraph 5 of the D.Lgs. 50/2016. In the horizontal TBA, all participants are jointly liable to the contracting station (stazione appaltante), subcontractors, or suppliers for all services set forth by the contract. On the other hand, in the vertical TBA, where the execution of the services is separated and specifically attributable to each member, each company will be responsible for the service assigned to it, with the joint liability towards third parties of the Mandator. However, in any two configurations with regard to internal relationships, the non-compliant company shall indemnify the other members of the TBA.

As anticipated, the Guidelines suggest the use of the TBA scheme for managing Apv Plants, without considering the different (public) context within which the TBA was developed. Firstly, it is necessary to focus on the configuration - horizontal or vertical - that the TBA could assume in this specific context. Indeed, the Guidelines mention TBA as a form of cooperation between one or more energy producers and one or more agricultural enterprises, which bring to the TBA a different kind of non-interchangeable skills related to energy production and agricultural activities. Having said that, the TBA in the agri-photovoltaic field could be qualified as vertical, although some inconsistencies persist: firstly, the impossibility to distinguish between main and accessory services, as defined by the contracting station (or client). Indeed, in the agri-photovoltaic sector this kind of distinction would be problematic: both energy production and agricultural activities are considered essential elements for authorization and incentive procedures. Lastly, concerning the special mandate, it should also be noted that, on one hand, in the public context the mandate was granted “in order to participate in the public tender for the procurement of a specific public contract by means of the filing of a bid”. On the other hand, in the agri-photovoltaic field, the mandate would be granted to entrust the Mandator with the development of the project and the acquisition of incentives, as well as the relationships with the authorities.

Why is it important?

The Guidelines finally identify the characteristics and requirements that an photovoltaic plants must possess, firstly, to be qualified as agri-photovoltaic and, secondly, to access to the incentives provided for in the National Recovery and Resilience Plan (NRRP) and in accordance with the article 65, paragraph 1-quater of Law Decree No. 1/2012. Although they provide indications regarding the contractual structures, many aspects remain unresolved and it is hoped that they will be addressed through the approval of the MiTE Decree.