With its recent judgment no. 190 of June 21, 2025, the Molise Regional Administr…
With judgement No. 19716/2023, the Lazio Regional Administrative Court (Section III-ter) upheld the appeal against the GSE's denial decision regarding a request for review lodged by the claimant company under art. 42, para. 3 of Legislative Decree No. 28/2011, as amended by art. 56 of Legislative Decree No. 76/2020, so annulling said denial decision due to the failure to give prior notice of rejection in accordance with art. 10-bis of Law No. 241/1990.
Following a decision on the forfeiture of incentives issued by the GSE, the claimant had applied for the special amnesty scheme under art. 42, para. 3 of Legislative Decree No. 28/2011, as amended by art. 56 of Legislative Decree No. 76/2020, aimed to obtain a reduction of the incentives instead of the forfeiture. A judicial appeal is still pending against the first-instance judgement rejecting the court action against the forfeiture measure.
The Lazio Regional Administrative Court (TAR Lazio)’s judgement provided a clear reconstruction of the regulations applicable to the appealed measure.
The legislator has repeatedly amended art. 42 of Legislative Decree No. 28/2011 to safeguard the production of energy from renewable sources and energy-saving measures.
Indeed, with art. 1, para. 960, lett. a), of Law No. 205/2017, a second clause was introduced into para. 3 of art. 42, stating that "to safeguard the production of energy from renewable sources, thermal energy, and energy-saving resulting from efficiency measures in plants receiving incentives at the time of the violation assessment, the GSE shall order a reduction of the incentive ranging from 10 to 50%, depending on the gravity of the violation."
Furthermore, art. 13-bis, para. 2 of Decree Law No. 101/2019, converted into Law No. 128/2019, not only reiterated the retroactive nature of the above provision, but it also specified that the reduction applies “to operating plants undergoing administrative proceedings and, upon request of the interested party, to those defined by GSE’s measures of forfeiture of incentives, subject to pending judicial proceedings, as well as those not defined by a final judgement.”
Art. 56, para. 7 of Legislative Decree No. 76/2020 further innovated art. 42 of Legislative Decree No. 28/2011, rendering the issuance of forfeiture measures for violations (relevant to the provision of incentives and found in the context of controls under paras. 1 and 2) contingent upon the existence of the prerequisites set out in art. 21-nonies of Law No. 241/1990.
The subsequent para. 8 of art. 56 states that “the provisions of this paragraph also apply to energy efficiency projects subject to ongoing administrative annulment proceedings and, upon the request of the party concerned, to those defined by GSE measures of forfeiture of incentives, subject to pending judicial proceedings, as well as those not defined by a final judgement at the date of entry into force of this decree-law [...]. The provisions of para. 7 do not apply in cases where the conduct of the operator that led to the GSE's forfeiture decision constitutes subject matter of an ongoing criminal proceeding concluded with a conviction, even if not final.”
In light of these provisions, companies receiving GSE measures of forfeiture of incentives still sub iudice at the time of the entry into force of Decree Law No. 76/2020 can submit a specific request to obtain the application of the supervening law, regulating the substantive relationship.
In the present case, the claimant had filed such a request, which however received a negative outcome expressed in the contested denial decision.
Firstly, the TAR Lazio clarified how the jurisprudence (TAR Lazio, seat of Rome, Section III-ter, January 14, 2022, No. 393; January 18, 2022, No. 525; No. 5602/2022; No. 7028/2022; No. 11452/2021) examined the nature and scope of art. 56, paras. 7 and 8 of Decree Law No. 76/2020, noting that the regulatory changes introduced an exceptional procedure, having amnesty purposes and inspired by the rationale of saving the renewable energy production capacity.
The same jurisprudence explains that the power vested in the GSE has characteristics of both duty, as it is obligated to rule on the request for review within 60 days from its submission, and discretion, as the GSE is entrusted with the assessment of the factual and legal situation and the balancing of public and private interests affected by the forfeiture decision. In fact, the interest in the mere restoration of “legality violated by the ascertained violation of sector regulations leading to forfeiture and loss of incentives” is not sufficient per se.
Hence, the obligation for the GSE to justify the acceptance or rejection of the review request with reference to the factual situation, considering not only the interest in the correct use of financial resources but also the interest in non-fossil energy production, the private party's interest, and the reliance generated in the beneficiary, and more generally the factual situation affected by the forfeiture decision.
This need for evaluating and balancing multiple interests in issuing the decision in response to a request under art. 56, para. 8 of Decree Law No. 76/2020, confers a discretionary power on the GSE, as it is invested with the question of whether the specific conditions for the application of the special regime of reduction in place of forfeiture are satisfied.
According to the TAR Lazio, this power constitutes a forfeiture power, that being an autonomous power of substantive assessment and a substantial reiteration of the power already exercised by the GSE.
Secondly, the TAR Lazio recalled how the discipline regarding the prior notification of grounds for refusal, in correlation with the principle of dequotation of formal defects of the measure, was amended by art. 12, para. 1, lett. i) of Decree Law No. 76/2020, converted into Law No. 120/2020, which, by modifying art. 21-octies, para. 2 of Law No. 241/1990, established that the measure adopted in violation of art. 10-bis is not subject to the rule according to which “the administrative measure is not annulled for failure to notify the commencement of the procedure if the administration proves in court that the measure’s content could not have been different from the one actually adopted.”
Therefore, in cases of omitted communication of the grounds for refusal of the request with regards to discretionary measures, the Administration is precluded from proving in court that the content of the decision could not have been different from the one actually adopted (cf. Administrative Supreme Court, Section II, March 14, 2022, No. 1790).
The TAR Lazio thus related the case at bar to art. 21-octies, para. 2, last sentence, of Law No. 241/1990, the lack of prior notice of rejection causing the annulment of the discretionary measure, considering the participatory guarantees underlying the provision of art. 10-bis of Law No. 241/1990, aimed at ensuring: the effective participation of the petitioner in the exercise of administrative power; a procedural contradiction in a collaborative and defensive function; and an anticipated acquisition in the procedural stage of objections capable of highlighting any illegitimacy of the grounds for refusal announced by the Administration.
The TAR Lazio’s judgement emphasized that the denial decision of the claimant’s request should have been preceded by a participatory procedural phase in which the GSE informed the claimant of the grounds for the refusal of its request, allowing the correct participation in the proceeding through the production of documents and the formulation of observations.
In conclusion, the TAR Lazio annulled the contested denial measure, with a consequent obligation for the GSE to reconsider the request respecting the adversarial proceeding.
The judgement in question certainly provides a valuable clarification for operators subject to GSE control proceedings, who have submitted a review request with respect to a forfeiture decision under art. 42, para. 3 of Legislative Decree No. 28/2011 and art. 56, paras. 7 and 8 of Legislative Decree No. 76/2020, with a view to obtain a reduction of incentives instead of a forfeiture.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Piero Vigano
