Opinion of Advocate General Saugmandsgaard Øe delivered on 29 October 2020.

• Jurisdiction: European Union
• Date: 29 October 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 29 October 2020 (1)

Joined Cases C‑798/18 and C‑799/18

Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others

(C‑798/18),

Athesia Energy Srl and Others,

(C‑799/18)

v

Ministero dello Sviluppo Economico,

Gestore dei servizi energetici (GSE) SpA,

interveners:

Elettricità Futura – Unione delle Imprese Elettriche italiane,

Confederazione Generale dell’Agricoltura Italiana – Confagricoltura

(Requests for preliminary rulings from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy))

(Reference for a preliminary ruling – Environment – Directive 2009/28/EC – Promotion of the use of energy from renewable sources – Production of electrical energy from solar photovoltaic installations – Support scheme – Alteration of incentives already granted but not yet due for payment – Articles 16 and 17 of the Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to property – Concept of ‘possessions’ – Legitimate expectations – Energy Charter – Article 10)

I. Introduction

1. In 2014, against a background of rapid growth in the photovoltaic energy sector, the Italian legislature sought to reduce the incentives payable to photovoltaic energy operators within its territory.

2. The present references for preliminary rulings, made on 17 December 2018 by the Tribunale ammistrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy), relate to the compatibility of such an alteration with EU law, and more specifically to any limits which may be imposed by Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which relate, respectively, to the freedom to conduct a business and the right to property.

3. The references have been made in proceedings between a significant number of operators of photovoltaic installations in Italy, together with the Federazione Nazionale delle Imprese Elettrotecniche ed Elettroniche (national federation of electronic and electric undertakings; Anie), (2) and the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) and Gestore dei servizi energetici (GSE) SpA (‘GSE’), a company in which the Ministero dell’Economia e delle Finanze (Ministry of the Economy and Finances, Italy) has a 100% shareholding.

4. What makes the present cases particularly noteworthy is the fact that GSE entered into agreements with those operators under which they were to be paid incentives for a period of twenty years, in the context of a support scheme intended to transpose, into Italian law, successive European directives on the promotion of the use of renewable energy. (3)

5. The reform introduced by the Italian legislature was effected against that specific legislative background, with a view to altering, to the disadvantage of the operators referred to above, the incentives payment of which had been provided for in those agreements, but had not yet fallen due.

6. As requested by the Court, this Opinion will focus on the interpretation of Articles 16 and 17 of the Charter, and of Article 10 of the Energy Charter, (4) read in conjunction with Article 216(2) TFEU. (5)

7. At the conclusion of my analysis, I will suggest that the Court should rule that Articles 16 and 17 of the Charter do not preclude a reform of the kind instituted by the Italian legislature. I will also explain why I do not consider that Article 10 of the Energy Charter, read in conjunction with Article 216(2) TFEU, is applicable in the present cases.

II. Legal background

A. International law

8. Article 10(1) of the Energy Charter, which is headed ‘Promotion, protection and treatment of investments’, provides as follows:

‘1. Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for investors of other Contracting Parties to make investments in its area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal …’

B. European Union law

9. Recital 25 of Directive 2009/28 provides as follows:

‘Member States have different renewable energy potentials and operate different schemes of support for energy from renewable sources at the national level. … For the proper functioning of national support schemes it is vital that Member States can control the effect and costs of their national support schemes according to their different potentials. One important means to achieve the aim of this Directive is to guarantee the proper functioning of national support schemes, as under Directive 2001/77/EC, in order to maintain investor confidence and allow Member States to design effective national measures for target compliance …’

10. Article 3 of that directive, which is headed ‘Mandatory national overall targets and measures for the use of energy from renewable sources’, provides:

‘1. Each Member State shall ensure that the share of energy from renewable sources … in gross final consumption of energy in 2020 is at least its overall target for the share of energy from renewable sources in that year, as set out in the third column of the table in Part A of Annex I. …

…

3. In order to reach the targets set in paragraphs 1 and 2 of this Article Member States may, inter alia, apply the following measures:

(a) support schemes;

…’

C. Italian law

11. Article 26 of Decree Law No 91/2014 (6) is in the following terms:

‘1. So as to optimise the periods for collection and payment of the incentives, and promote a more sustainable policy of support for renewable energy, the feed-in tariffs for electrical energy produced by solar photovoltaic installations … shall be paid in the manner set out in this article.

2. With effect from the second half of 2014, [GSE] shall pay the feed-in tariffs referred to in paragraph 1 by way of equal monthly payments, based on 90% of the estimated average annual production capacity of the relevant installation and made during the calendar year of production, and shall adjust the final amount, on the basis of actual production, before 30 June of the following year. The practical arrangements shall be defined by GSE within 14 days of the publication of this decree and approved by decree of the Minister for Economic Development.

3. From 1 January 2015, the feed-in tariff for energy produced by installations with rated power of more than 200 kW shall be restructured, at the discretion of the operator, on the basis of one of the following options to be notified to GSE by 30 November 2014:

(a) the tariff shall be paid for a period of 24 years, from the date on which the installation commences operation, and shall consequently be recalculated using the percentage reduction indicated in the table provided in Annex 2 to this decree;

(b) without prejudice to the 20-year payment period, the tariff shall be restructured, resulting in an initial period of application of an incentive reduced in comparison with the current amount and a second period of application of an incentive increased in equal measure. The percentages used to restructure the tariffs shall be determined by means of a decree issued by the Minister for Economic Development, following consultation with the Autorità per l’energia elettrica, il gas e il sistema idrico (the electricity, gas and water regulator), to be issued by 1 October 2014 so as to enable, if all those eligible sign up for the option, a saving of at least EUR 600 million each year for the period 2015-2019, in comparison with payments under the currently applicable tariffs;

(c) without prejudice to the 20-year payment period, the tariff shall be reduced by a percentage value of the incentive granted on the date on which this decree enters into force, for the residual duration of the incentive period, according to the following quantities:

(1) 6% for installations with rated power of more than 200 kW up to rated power of 500 kW;

(2) 7% for installations with rated power of more than 500 kW up to rated power of 900 kW;

(3) 8% for installations with rated power of more than 900 kW

If no notification is provided by the operator, GSE shall apply the option described under (c).

…’

III. The main proceedings, the question referred for a preliminary ruling and the procedure before the Court

12. In the context of the Italian support scheme for the production of renewable energy (implemented by Decree Laws Nos 387/2003 (7) and 28/2011), (8) GSE entered into private law agreements with operators of photovoltaic installations with rated power of over 200 kW, drawn up on the basis of a standard form produced by the Italian electricity and gas regulator. (9) Those agreements, which were intended to run for a period of 20 years, provided for the regular payment of feed-in tariffs to such operators.

13. It was against that background that, in 2014, the legislation was reformed so as to change the incentives the payment of which was provided for by those agreements, but had not yet fallen due. There were two aspects to this reform, which was effected by Article 26(2) and (3) of Decree Law No 91/2014. (10)

14. First, Article 26(2) of the decree provided that, with effect from the second half of 2014, the incentives would be paid in the form of equal monthly payments, which would be based on 90% of the estimated average annual production capacity for the relevant installation, and made during the calendar year of production. The adjustment to reflect actual production would not, henceforth, be made until a later date...