With judgment No. 828 published on 3 February 2025, the Council of State, Section II, ruled that the right to recovery of unduly paid incentives, claimed by the GSE in the event of tariff reduction or loss of the benefit, upon the outcome of the verification and control activity pursuant to Article. 42, Legislative Decree No. 28/2011, is to be subject to the ordinary ten-year limitation period under Article 2946 of the Italian Civil Code, the term of which runs from the day on which the sums were materially paid.
The judgment is in accordance with a well-established in case law (on this point, ex multis, Regional Administrative Court of Lazio Region nos. 10162/2024, 11508/2024, 1385/2023, 12196/2023, 12641/2023; Council of State, no. 6060/2018) according to which the GSE's right of claim is subject to the ten-year limitation period and the day from which such right may be asserted cannot be postponed to the outcome of the verification and control proceedings but runs from the date of disbursement of each single payment made in favour of the incentivized plant, the public nature of the function concerning the regulation of the internal energy market and its incentive system being of no relevance. The only exception (expressly provided by Article 2941 no. 8 of the Italian Civil Code) is represented by the fraudulent intent of the beneficiary, which entails the suspension of the limitation period term until the fraud is discovered.
The task of verification and control can, in fact, be exercised by the GSE immediately after admission to the incentives, so only the GSE itself must be held liable for the failure (or delay) in exercising such powers. It follows that the timing and date of the start of the proceedings cannot result in the forward shifting of the dies a quo of the limitation period, on penalty of an undue postponement of the limitation period left to the discretion of the GSE.
Therefore, as things now stand, there is no dispute about the principle, which has already been established several times by administrative case law, according to which, on the one hand, in the presence of a verified circumstance of undue payment of the incentive tariff, the GSE cannot recover the sums paid out in respect of which the ten-year limitation period has already expired pursuant to Article 2946 of the Italian Civil Code, on the other hand, that that limitation period does not run from the date on which the GSE adopted the tariff reduction measure, but from the date of each single payment.
