Judgment;Summary — ECLI:EU:C:2020:733
Date: 2020-09-17
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: State aids;Competition;Energy;Environment;Internal market - Principles
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
5 February 2019 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
11 October 2018 
Appellant:  
Burgo Group SpA 
Respondent:  
Gestore dei Servizi Energetici — GSE SpA 
  
Subject matter of the main proceedings 
Benefits provided for cogeneration installations consisting in an exemption from 
the purchase of ‘green certificates’ — Cogeneration installations and high-
efficiency cogeneration (HEC) installations — Conformity of the latter with the 
energy-saving requirements in Annex III to Directive 2004/8/EC and Annex III to 
Legislative Decree No 20/2007 — Refusal by the competent national authority to 
permit cogeneration installations not conforming to the requirements in Annex III 
of Legislative Decree No 20/2007 to enjoy the benefits provided for in Article 11 
of Legislative Decree No 79/1999, with effect from 1 January 2011. 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-92/19 
 
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Questions referred 
(a) Does Directive 2004/8/EC (in particular Article 12 thereof) preclude an 
interpretation of Articles 3 and 6 of Legislative Decree No 20/2007 as allowing 
the benefits referred to in Legislative Decree No 79/1999 (in particular in 
Article 11 thereof and in Decision No 42/02 of 19 March 2002 of the Autorità 
dell’energia elettrica e del gas (Electricity and Gas Authority) which constitutes 
implementation of the preceding provision) to be granted also to non-high-
efficiency cogeneration installations even beyond 31 December 2010? 
(b) Does Article 107 TFEU preclude an interpretation of Articles 3 and 6 of 
Legislative Decree No 20/2007, in the sense set out under (a) above, in so far as 
those provisions, as thus interpreted, might constitute ‘State aid’ and therefore be 
incompatible with the principle of free competition? 
(c) In line with what is set out under (a) and (b) above, and having regard to 
what is expressly put forward by the appellant, does a provision of national law 
which allows support schemes to continue to be granted to non-high-efficiency 
cogeneration until 31 December 2015 comply with the EU-law principles of equal 
treatment and non-discrimination, since that could be the interpretation of 
domestic Italian law as a result of Article 25(11)(c)(1) of Legislative Decree 
No 28 of 3 March 2011, which repeals the abovementioned provisions of 
Article 11 of Legislative Decree No 79/1999 with effect from 1 January 2016, or 
rather now by 19 July 2014 (as a result of Article 10(15) of Legislative Decree 
No 102 of 4 July 2014)? 
Provisions of EU law relied upon 
Directive 2004/8/EC of the European Parliament and of the Council of 
11 February 2004 on the promotion of cogeneration based on a useful heat 
demand in the internal energy market and amending Directive 92/42/EEC, in 
particular Article 12(3) and Annex III  
Article 107 TFEU 
Provisions of national law relied on 
Legislative Decree No 79 of 16 March 1999 on implementation of Directive 
96/92/EC concerning common rules for the internal market in electricity, in 
particular Articles 2(8) and (10), 3 and 11(1) to (4), and Annex III  
Decision No 42/02 of the Autorità per l’energia elettrica ed il gas (AEEG) of 
19 March 2002, No 42/02 laying down the conditions for recognising the 
combined production of energy and heat as cogeneration within the meaning of 
Article 2(8) of the Legislative Decree of 16 March 1999 
BURGO GROUP 
 
3 
Legislative Decree No 20 of 8 February 2007 on implementation of Directive 
2004/8/EC on the promotion of cogeneration based on a useful heat demand in the 
internal energy market and amending Directive 92/42/EEC, in particular 
Articles 3 and 6 
Legislative Decree No 28 of 3 March 2011 on implementation of Directive 
2009/28/EC on the promotion of the use of energy from renewable sources and 
amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, in 
particular Article 25(11)(c)(1) 
Legislative Decree No 102 of 4 July 2014 on implementation of Directive 
2102/27/EU on energy efficiency, amending Directives 2009/125/EC and 
2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC, in particular 
Article 10(15) 
Succinct presentation of the facts in the main proceedings 
1 The referring court is requested to rule on various appeals lodged against 
judgments of the administrative court of first instance (Tribunale amministrativo 
regionale del Lazio (Regional Administrative Court for Lazio)) which dismissed 
nine actions brought by the present appellant against decisions of the Gestore dei 
servizi energetici (GSE — the national grid manager) refusing to recognise as 
cogeneration the combined production of electricity and heat in a number of the 
appellant’s installations in respect of production in 2011, 2012 or 2013 
(Avezzano — production in 2012; Duino Aurisina — production in 2011; 
Avezzano — production in 2011; Chiampo, Lugo di Vicenza, Sarego, Sora, 
Tolmezzo, Toscolano Maderno, Villorba — production in 2011; Duino 
Aurisina — production in 2012; Chiampo, Lugo di Vicenza, Sarego, Sora, 
Tolmezzo, Toscolano Maderno, Villorba — production in 2012; Duino 
Aurisina — production in 2013; Chiampo, Lugo, Sarego, Sora, Tolmezzo, 
Toscolano Maderno, Villorba — production in 2013; and Avezzano — production 
in 2013). 
2 The cogeneration installations in question were deemed not to satisfy the 
requirements in Annex III to Legislative Decree No 20/2007 and therefore were 
not permitted to enjoy the benefits set out in Article 11 of Legislative Decree 
No 79/1999, with effect from 1 January 2011. 
3 Those benefits consist in dispatching priority and exemption from the purchase of 
green certificates and, according to the administrative decisions under appeal, are 
reserved, starting from production in 2011, solely to high-efficiency installations 
which comply with the energy-saving requirements set out in Annex III to 
Directive 2004/8/EC and in Annex III to Legislative Decree No 20/2007. 
4 The referring court points out that the ‘green certificates’ were introduced into 
Italian law by Article 11 of Legislative Decree No 79/1999, paragraph 1 of which 
provides that ‘the importers and persons responsible for the installations which, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-92/19 
 
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each year, import or generate electricity from non-renewable sources, shall be 
required to feed into the national grid, during the following year, a quota 
generated by installations from renewable energy sources’, but clarifies in 
paragraph 3 that ‘those persons may also discharge that requirement by 
purchasing all or part of that quota or the relevant rights from other producers’, 
which is precisely what the ‘green certificates’ are. 
5 Under paragraph 2 of that Article 11, that requirement applies to imports and 
production of electricity ‘net of the cogeneration’ — ‘electricity from 
cogeneration’ being that produced in installations which generate electricity and 
useful heat at the same time — with consequent exemption of producers of 
electricity from cogeneration from the requirement to purchase green certificates. 
6 Pursuant to Article 2(8) of Legislative Decree No 79/1999, the Autorità per 
l’energia elettrica ed il gas (AEEG), laid down, by Decision No 42/02 of 
19 March 2002, the minimum requirements necessary for an installation in order 
for the production of electricity to be regarded as ‘cogeneration’ and as such 
permitted, inter alia, to benefit from the exemption from purchasing green 
certificates. 
7 Directive 2004/08 has been inserted into this domestic legal position. That 
directive states in recital 1 that ‘[p]romotion of high-efficiency cogeneration based 
on a useful heat demand is a Community priority’ and in recital 11 that ‘[h]igh 
efficiency cogeneration is in this Directive defined by the energy savings obtained 
by combined production instead of separate production of heat and electricity. 
Energy savings of more than 10% qualify for the term “high-efficiency 
cogeneration”.’ The directive goes on to state, in recital 14, that, ‘[t]o ensure that 
support for cogeneration in the context of this Directive is based on the useful heat 
demand and primary energy savings, it is necessary to set up criteria to determine 
and assess the energy efficiency of the cogeneration production identified under 
the basic definition’ and, in recital 26, that ‘Member States operate different 
mechanisms of support for cogeneration at the national level, including 
investment aid, tax exemptions or reductions, green certificates and direct price 
support schemes. One important means to achieve the aim of this Directive is to 
guarantee the proper functioning of these mechanisms, until a harmonised 
Community framework is put into operation, in order to maintain investor 
confidence’. 
8 Article 12(3) of Directive 2004/8 provides: ‘Until the end of 2010, Member States 
may, using an alternative methodology, define a cogeneration as high-efficiency 
cogeneration without verifying that the cogeneration production fulfils the criteria 
in Annex III(a), if it is proved on national level that the cogeneration production 
identified by such an alternative calculation methodology on average fulfils the 
criteria in Annex III(a). If a guarantee of origin is issued for such production then 
the efficiency of the cogeneration production specified on the guarantee shall not 
exceed the threshold values of the criteria in Annex III(a) unless calculations in 
accordance with Annex III prove otherwise. However, specification of the 
BURGO GROUP 
 
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quantity of electricity from cogeneration produced in such a production, for 
issuing a guarantee of origin and for statistical purposes, shall be determined in 
accordance with Annex II’. 
9 Essentially, the rule provides for a transitional period during which Member States 
may define a cogeneration as high-efficiency cogeneration without verifying that 
the production fulfils the criteria in Annex III(a), provided that it is proved at 
national level that the cogeneration production identified by such an alternative 
calculation methodology on average fulfils the criteria therein. 
10 That transition period was fixed by Article 3(1) of Legislative Decree No 20/2007, 
which provides that: ‘Until 31 December 2010, except as provided under 
paragraph 2, cogeneration which meets the definition set out in Article 2(8) of 
Legislative Decree No 79 of 16 March 1999 shall be regarded as high-efficiency 
cogeneration’. 
11 Article 6 of Legislative Decree No 20/2007, which contains forecasts relating to 
the ‘High-efficient cogeneration support scheme’, provides that the provisions laid 
down in Articles 3(3), 4(2) and 11(2) and (4) of Legislative Decree No 79/1999 
are to apply to high-efficiency cogeneration and that it, together with cogeneration 
linked to district heating, is to be entitled to the benefits deriving from application 
of the measures implementing Article 9(1) of Legislative Decree No 79 of 1999 
and Article 16(4) of Legislative Decree No 164 of 23 May 2000. 
Judgments under appeal and arguments of the parties in the main 
proceedings 
12 As grounds for its judgments dismissing the actions brought, the administrative 
court of first instance reasoned inter alia as follows: 
‘there is no doubt that the benefits of dispatching priority and exemption from 
green certificates, with effect from 1 January 2001, are applied to installations 
which use renewable sources of energy, high-efficiency cogeneration and 
cogeneration linked to district heating’; ‘although it is further possible to agree 
with the applicant that there is no rule which expressly provides for an end to 
those benefits for cogeneration installations which do not satisfy the requirements 
in Annex III to Directive 2004/8, it is also true that the clear deadline of December 
2010, contained in Article 12 of the directive, for regarding installations which do 
to fulfil the criteria in Annex III as high-efficiency cogeneration, would be 
rendered completely meaningless, and, above all, undermine the validity and 
scope of the requirements laid down therein, thereby entirely negating the 
technological and economic effort of those who have invested to adapt 
cogeneration installations to make them comply with the energy efficiency 
requirements in Annex III’; ‘a different interpretation … would not appear to be 
consistent with what the national legislature intended in transposing the 
Community directive where it fixed a transitional period during which the 
definition of high-efficiency cogeneration is to be left to the Member States, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-92/19 
 
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provided that it is proved on national level that the cogeneration production 
identified by such an alternative calculation methodology on average fulfils the 
criteria in Annex III(a)’; ‘the decision of the AEEG of 19 March 2002 therefore 
fits in with the Member States’ ability to adopt an alternative methodology to 
define high-efficiency cogeneration, which was limited temporally to 
31 December 2010, under Article 12 of the directive and Article 3 of Legislative 
Decree 20/2007’; therefore, ‘the applicant’s argument that Article 25 of 
Legislative Decree 28/2011, where it repeals, from 1 January 2016, paragraphs 1, 
2, 3, 5 and 6 of Article 11, entitled ‘Energy from renewable sources’, of 
Legislative Decree 79/1999, forms the legal basis for the claim to an exemption 
from the purchase of green certification also in respect of non-high-efficiency 
cogeneration, is unconvincing’. 
13 The appellant raised a variety of grounds against the judgments under appeal, inter 
alia: 
– error in reasoning and failure to state reasons for the judgment; infringement 
and incorrect application of Articles 2 and 11 of Legislative Decree 
No 79/1999, AEEG Decision No 42/02, and Directive 2004/8, and Articles 3 
and 6 of Legislative Decree 20/2007; that is because Legislative Decree 
No 20/2007 is concerned primarily with establishing that the new form of high-
efficiency cogeneration (HEC) may enjoy the same scheme of benefits which 
Legislative Decree No 79/1999 laid down for ordinary cogeneration; in that 
sense Article 3(1) of Legislative Decree No 20/2007 does not relate to ordinary 
cogeneration, but exclusively to HEC, and provides that, for a transitional 
period and until 31 December 2010, activities which satisfy the requirements 
relating to ordinary cogeneration are to be regarded as HEC, pending the entry 
into force of the implementing decree defining the operational arrangements for 
recognition of the HEC requirements. There is no arrangement at all whereby 
the rules in question exclude application of the benefits to other forms of 
cogeneration. Such exclusion was effected solely as a result of the adoption of 
Legislative Decree No 102/2014; 
– error in reasoning and failure to state reasons for the judgment; infringement 
and incorrect application of [EU] law, such as Directive 2004/08 and 
Articles 20 and 21 of the Charter of Fundamental Rights of the European 
Union; that is because the judgments under appeal failed to take into account 
the fact that, by its judgment in Industrie du bois de Vielsalm, C-195/12, 
EU:C:2013:598, the Court of Justice ‘found that Article 7 of the directive 
(concerning the support schemes implemented in the Member States) is to 
apply to all cogeneration installations and not only high-efficiency 
cogeneration installations’. In the final analysis, the appellant considers that, 
‘by applying the support schemes to cogeneration in general and not to HEC 
alone, the European position is clearly to support both forms of cogeneration 
and not to substitute the former with the latter’; 
BURGO GROUP 
 
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– error in reasoning and failure to state reasons for the judgment; infringement 
and misinterpretation of Article 29 of Legislative Decree No 28/2011, 
Article 10(15) of Legislative Decree No 102/2014 and Directive 2012/27/EU, 
in that, according to the appellant, the judgement ‘confuses and mixes the 
ordinary rules governing HEC (Legislative Decree No 20/2007) and the 
transitional rules governing non-HEC cogeneration’, whilst ‘they are two sets 
of rules which are not interlinked and follow parallel routes: the rules laid down 
in Legislative Decree 79/1999 and implemented by AEEG Decision No 42/02 
must be applied to ordinary cogeneration plants already in operation since they 
were not repealed by Legislative Decree No 20/2007’; and that is the case until 
the entry into force of Legislative Decree No 102/2014. 
Succinct presentation of the reasons for the request for a preliminary ruling 
14 In dismissing the actions brought by the present appellant, the judgements under 
appeal held — interpreting Article 12(3) of Directive 2004/8 to that end — that 
‘the benefits of dispatching priority and exemption from green certificates, with 
effect from 1 January 2001, are applied to installations which use renewable 
sources of energy, high-efficiency cogeneration and cogeneration linked to district 
heating’. The judgments under appeal acknowledge the gaps which exist in 
national law when they state that ‘it is further possible to agree with the applicant 
that there is no rule which expressly provides for an end to those benefits for 
cogeneration installations which do not satisfy the requirements in Annex III to 
Directive 2004/8’. However, the court of first instance clarified that ‘it is also true 
that the clear deadline of December 2010, contained in Article 12 of the directive, 
for regarding installations which do to fulfil the criteria in Annex III as high-
efficiency cogeneration, would be rendered completely meaningless, and, above 
all, undermine the validity and scope of the requirements laid down therein, thus 
entirely negating the technological and economic effort of those who have 
invested to adapt cogeneration installations to make them comply with the energy 
efficiency requirements in Annex III’. 
15 This is the case even though Article 25 of Legislative Decree No 28/2011 repeals, 
from 1 January 2016, paragraphs 1, 2, 3, 5 and 6 of Article 11 of Legislative 
Decree No 79/1999 (paragraph 2 is the provision which lays down the exemption 
from the purchase of green certificates for producers of electricity from 
cogeneration), a deadline subsequently brought forward to 19 July 2014 by 
Article 10(15) of Legislative Decree 102/2014. 
16 In the light of the foregoing, the appellant essentially contends, through the 
grounds of appeal raised, that: 
– there is no arrangement at all whereby the rules which grant benefits to high-
efficiency cogeneration producers ‘exclude application of the benefits to other 
forms of cogeneration’ (exclusion which was effected solely by Legislative 
Decree No 102/2014); 
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– the effectiveness of Article 11 (in particular paragraph 2 thereof) of Legislative 
Decree No 79/1999 (exemption from the purchase of green certificates) is not 
‘limited’ to 31 December 2010 since the rule is repealed with reference to a 
later date (first 1 January 2016, then 19 July 2014); 
– Article 3(1) of Legislative Decree No 20/2007 ‘does not relate to ordinary 
cogeneration, but exclusively to HEC, and provides that, for a transitional 
period and until 31 December 2010, activities which satisfy the requirements 
relating to ordinary cogeneration are to be regarded as HEC, pending the entry 
into force of the implementing decree defining the operational arrangements for 
recognition of the HEC requirements’; and 
– by the cited judgment of 26 September 2013 [in Case C-195/12], the Court of 
Justice of the EU ‘found that Article 7 of the directive (concerning the support 
schemes implemented in the Member States) is to apply to all cogeneration 
installations and not only high-efficiency cogeneration installations’. In the 
final analysis, the appellant argues that, ‘by applying the support schemes to 
cogeneration in general and not to HEC alone, the European position is clearly 
to support both forms of cogeneration and not to substitute the former with the 
latter’. 
17 In conformity with the judgements under appeal, the defendant GSE states inter 
alia that the judgment of the Court of Justice refers to a situation which differs 
entirely (logically and chronologically) from that in the present case. 
18 Therefore, the referring court considers that, in order to rule on the appeals, it is 
necessary to verify: 
(a) the compatibility with Directive 2004/8 of Articles 3 and 6 of Legislative 
Decree No 20/2007, if those articles can be interpreted as allowing the benefits 
referred to in Legislative Decree No 79/1999 (in particular the benefits referred to 
in Article 11 thereof), and Decision No 42/02 of 19 March 2002 of the Autorità 
dell’energia elettrica e del gas,, which constitutes implementation of the preceding 
provision) to be granted also to non-high-efficiency cogeneration installations 
even beyond December 2010; 
(b) the compatibility of the provisions referred to under (a) — if and in as far as 
it is possible to regard these as applicable also to non-high-efficiency cogeneration 
installations beyond December 2010 — with Article 107 TFEU, in that they might 
constitute ‘State aid’ and therefore be incompatible with the principle of free 
competition; and 
(c) whether, in line with what is set out under (a) and (b) above, and having 
regard to what is expressly put forward by the appellant, a provision of national 
law which allows support schemes to continue to be granted to non-high-
efficiency cogeneration until 31 December 2015 comply with the [EU]-law 
principles of equal treatment and non-discrimination, since that could be the 
interpretation of domestic Italian law as a result of Article 25(11)(c)(1) of 
BURGO GROUP 
 
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Legislative Decree No 28/2011, which repeals the abovementioned provisions of 
Article 11 of Legislative Decree No 79/1999 with effect from 1 January 2016, or 
rather now by 19 July 2014 (as a result of Article 10(15) of Legislative Decree 
No 102/2014).