In its ruling no. 2252 of 19 March 2025, the Council of State clarified that in order to have an artful splitting, which constitutes a violation of the criterion of fair return on investment, it is not sufficient that two plants (in this case, authorised at a distance of time and located in two different municipalities), owned by the same party, share the same connection point.
The Court held that this circumstance alone cannot integrate the hypothesis of artful splitting, given that Article 29 of the Ministerial Decree of 23 June 2016, in its entirety, provides that this element may be considered, at most, as ‘circumstantial’ and not as a constitutive element of the abusive case.
In particular, in the view of the Council of State, from the analysis of Article 29 of the Ministerial Decree of 23 June 2016, which provides that the GSE ‘in applying the provisions of Art. 5, paragraph 2, verifies, moreover, the existence of elements indicative of an artificial fractioning of the power of the plants’, it becomes clear that ’the uniqueness of the node for the collection of the energy produced can at most be assessed as a possible element indicative of an artificial fractioning, but cannot in any way be considered - by virtue of an unforeseen absolute presumption - an element alone sufficient to configure an artificial fractioning’.
In this perspective, for the Court, the interpretation given by the GSE first, and by the TAR, then, being focused on the enhancement of Article 5, paragraph 2, letter b)[1], of the Ministerial Decree of 23 June 2016 according to which there would always and in any case be a ‘single plant’ in the case of ‘plants located in the same cadastral parcel or on contiguous cadastral parcels’, only because both PODs are located in the same cadastral parcel, would entail the inadmissible abrogation of the part in which the same art. 5, paragraph 2 makes art. 29 of the Ministerial Decree of 23 June 2016 save, generating ‘an inadmissible logical-legal short circuit’.
Another very interesting point of the ruling concerns the breach of the principle of legitimate expectations by the operator owner of the two wind plants which, at first, had been challenged by the GSE in its rejection notice, among other impeding reasons, on the possibility of an artful splitting, whereas the final rejection measures adopted by the GSE did not contain such complaint.
This had led the company to believe that its plants were no longer considered by the GSE to be interconnected, with the result that, following the publication of the new calls for the incentives, it had decided to participate, subject to registration in the Register of the two plants (with a capacity of 3 MW and 2.4 MW, respectively) instead of the tender procedure (provided for plants with a capacity of over 5 MW).
It follows that the conduct of the GSE was censured by the Council of State as being contrary not only to the literal datum and ratio of the provisions on the subject of artful splitting but also to the principle of the legitimate expectation engendered in the operator, which is configured ‘by reason of the reasonable belief in the legitimate exercise of public power and the reasonable belief in the work of the administration in accordance with the principles of fairness and good faith, identifying in this the twofold parameter ’to which to anchor‘ the ’trust‘, ’belief‘ or ‘expectation’ of the private individual’ (ex multis, Council of State, Sec. IV, 27 December 2024, no. 10415).
[1] According to which ‘without prejudice to Article 29, the following shall be considered for the purposes of determining the power output of the plant, including the threshold value referred to in paragraph 1: ... b) several plants supplied by the same source, at the disposal of the same producer or traceable, on corporate level, to a single producer and located in the same cadastral parcel or on contiguous cadastral parcels shall be understood as a single plant, with a cumulative power equal to the sum of the individual plants’.
