Judgment;Summary — ECLI:EU:C:2024:555
Date: 2024-06-27
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Environment;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-148/23 – 1 
Case C-148/23 
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: 
10 March 2023 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
27 February 2023 
Appellant: 
Gestore dei Servizi Energetici SpA – GSE 
Respondents: 
Erg Eolica Ginestra Srl and Others 
  
Subject matter of the main proceedings 
Appeal brought by GSE, an operating company for energy services, against a 
judgment of the Tribunale Amministrativo Regionale per il Lazio (Regional 
Administrative Court, Lazio), which upheld an action brought by the respondents, 
renewable energy producers, for the annulment of a ‘draft agreement’ for the 
economic regulation of an incentive granted to plants which have acquired the 
right to benefit from ‘green certificates’ (certificates confirming that a quota of 
energy generated from renewable sources has been produced, which can be used 
by importers and producers of electricity from non-renewable sources to discharge 
the obligation to feed a certain amount of ‘clean’ energy into the national power 
grid), with reference to the remaining period after 2015. 
Subject matter and legal basis of the request 
Article 267 TFEU 
Compatibility of national legislation which makes the granting of incentives for 
the production of electrical energy from renewable sources subject to the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-148/23 
 
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condition that a private-law contract be concluded between GSE and the entity 
responsible for the plant, including plants which began operating before 
31 December 2012, with Directive 2009/28/EC. 
Question referred for a preliminary ruling 
Must Directive 2009/28/EC of the European Parliament and of the Council of 
23 April 2009 on the promotion of the use of energy from renewable sources, 
amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, in 
particular recitals 8, 14, 25 and Articles 1 and 3, and Article 16 of the Charter of 
Fundamental Rights of the European Union, read in the light of the principles of 
legal certainty and the protection of legitimate expectations, be interpreted as 
precluding a rule of national law, such as that resulting from the provisions of 
decreto legislativo 3 marzo 2011, n. 28 (Legislative Decree No 28 of 3 March 
2011) and decreto ministeriale 6 luglio 2012 (Ministerial Decree of 6 July 2012) – 
as interpreted by the settled case-law of the Consiglio di Stato (Council of State) – 
which makes the granting of incentives subject to the conclusion of private-law 
contracts between GSE and the entity responsible for the plant, including plants 
for the production of electricity powered by renewable sources which began 
operating before 31 December 2012? 
Provisions of European Union law and case-law relied on 
Directive 2009/28/EC of 23 April 2009; recitals 8, 14 and 25, Articles 1 and 3 
Judgment of the Court of 22 September 2022, Admiral Gaming Network (Joined 
Cases C-475/20 to C-482/20) 
Judgment of the Court of 15 April 2021, Federazione nazionale delle imprese 
elettrotecniche ed elettroniche (Anie) and Others (C-798/18 and C-799/18) 
Judgment of the Court of 11 June 2015, Berlington Hungary and Others 
(C-98/14) 
Principles of the protection of legitimate expectations and of legal certainty 
Charter of Fundamental Rights of the European Union; Article 16 (right to 
freedom to conduct a business) 
Provisions of national law and national case-law relied on 
LEGISLATION 
In order to support the use of renewable energies, Article 11 of Decreto legislativo 
16 marzo 1999, n. 79 – Attuazione della direttiva 96/92/CE recante norme comuni 
per il mercato interno dell’energia elettrica (Legislative Decree No 79 of 
GESTORE DEI SERVIZI ENERGETICI 
 
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16 March 1999 transposing Directive 96/92/EC concerning common rules for the 
internal market in electricity), introduced an obligation in Italy, for importers and 
entities responsible for plants that import or produce electricity from non-
renewable energy sources, to feed into the national power grid, during the 
subsequent year, a quota generated by plants from renewable sources that began 
operating or increased their production or, alternatively, to acquire, in whole or in 
part, the equivalent quota or related rights, either from other producers, on the 
condition that they feed energy from renewable sources into the national power 
grid, or from the national transmission network operator. 
The certification of the production of energy from renewable sources was referred 
to as the ‘green certificate’ in Decreto 11 novembre 1999 – Direttive per 
l’attuazione delle norme in materia di energia elettrica da fonti rinnovabili di cui 
ai commi 1, 2 e 3 dell’articolo 11 del decreto legislativo 16 marzo 1999, n. 79 
(Decree of 11 November 1999  laying down rules for the implementation of 
standards on electricity produced from renewable energy sources under 
Article 11(1), (2) and (3) of Legislative Decree No 79 of 16 March 1999), adopted 
by the Ministero dell’industria, del commercio e dell’artigianato (Ministry of 
Industry, Commerce and Craft Trade). 
Decreto legislativo 3 marzo 2011, n. 28 – Attuazione della direttiva 2009/28/CE 
sulla promozione dell’uso dell’energia da fonti rinnovabili, recante modifica e 
successiva abrogazione delle direttive 2001/77/CE e 2003/30/CE (Legislative 
Decree No 28 of 3 March 2011 transposing 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), provided for the 
gradual reduction, with effect from 2013, of the mandatory quota for the purchase 
of energy from renewable sources, until it was completely eliminated by 2015. 
The obligation for producers (or importers) of energy from non-renewable sources 
to purchase green certificates was similarly abolished by Legislative Decree 
No 28/2011 and the incentive scheme was also altered. 
Article 24 of Legislative Decree No 28/2011 regulated incentive mechanisms for 
plants for the production of electricity from plants powered by renewable sources, 
which began operating after 31 December 2012, laying down certain criteria. 
Those criteria included, inter alia, the granting of incentives by means of private-
law contracts between GSE and the entity responsible for the plant. 
Pursuant to those rules, the Ministry of Economic Development adopted decreto 6 
luglio 2012 – Attuazione dell’art. 24 del decreto legislativo 3 marzo 2011, n. 28, 
recante incentivazione della produzione di energia elettrica da impianti a fonti 
rinnovabili diversi dai fotovoltaici (decree of 6 July 2012 implementing Article 24 
of Legislative Decree No. 28 of 3 March 2011 promoting the production of 
electricity from renewable energy plants other than photovoltaic plants), which 
laid down the calculation methods for the conversion of green certificates into 
incentives. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-148/23 
 
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Article 21(8) of that decree provides that, for each plant, the entity responsible is 
required to conclude a private-law contract with GSE. 
Article 30 of the decree provided for a gradual transition from the old to the new 
mechanism, also allowing plants which began operating by 30 April 2013 to opt 
for the incentive mechanism. 
By decision of 16 May 2013, the Autorità per l’Energia Elettrica e il Gas (AEEG) 
(Italian Authority for Electricity and Gas) approved the draft model contract 
drawn up by GSE for the purpose of paying the envisaged incentives. 
CASE-LAW 
The Council of State has repeatedly ruled on appeal on the issue in question, 
altering rulings at first instance similar to that in the present case. 
That court took the view that Article 24 of Legislative Decree No 28/2011 
regulates the new incentive mechanism in a general manner and is taken to 
incorporate the transitional system for plants already admitted to the green 
certificate scheme, in respect of which the general rules – with the exception of 
the specific provisions relating to the procedures for converting certificates into 
incentives – must also therefore be regarded as applicable,. 
The conversion of green certificates does constitute an incentive which, even if 
regulated in a different manner – with particular regard to the calculation methods 
adopted – is subject to the same procedures as those applied by GSE to plants 
which began operating after 31 December 2012. 
Consequently, the Ministerial Decree of 6 July 2012 correctly applied the 
legislation, expressly directing that only the provisions applying to plants 
switching to the new scheme are the special provisions that relate to them, 
whereas all the other regulations contained in the decree are applicable to them 
only to the extent that they are not incompatible with those special provisions. 
This is confirmed, moreover, by the fact that, whenever the regulations under 
consideration have intended to exclude the general rules, provision has been 
expressly made that they do so. 
Article 24(2)(d) of Legislative Decree No 28/2011 and Article 21(8) of the 
Ministerial Decree of 6 July 2012, which provide for private-law contracts to be 
entered into, could therefore both be correctly applied. 
The Cassazione a Sezioni Unite (Supreme Court of Cassation, Combined 
Chambers) also expressed the same view. 
According to the Council of State, GSE was therefore entitled to use the standard 
scheme approved by the Italian Authority for Electricity and Gas, subject to 
making any necessary modifications linked to the specific nature of the transition. 
GESTORE DEI SERVIZI ENERGETICI 
 
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To conclude, the Council of State has held in its case-law that the publication of 
the draft agreement and the imposition of the obligation to enter into such a 
contract came within the scope of GSE’s powers. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The respondents, owners of plants producing renewable energy from non-
photovoltaic sources, already eligible for the green certificate incentive scheme, 
challenged the draft agreement drawn up by GSE to regulate the transition from 
the system of green certificates to that of feed-in tariffs before the Regional 
Administrative Court, Lazio. 
2 That court held, as the appellant companies maintain, that neither Legislative 
Decree No 28/2011 nor the Ministerial Decree of 6 July 2012 expressly provided 
for the conclusion of an agreement between GSE and the energy producer. 
3 In the view of that court, Article 24(2)(d) of Legislative Decree No. 28/2011, in so 
far as it makes the granting of incentives subject to a private-law contract, 
introduces a valid criterion applicable only to plants powered by renewable 
sources which began operating after 31 December 2012, and therefore not to 
plants which began operating before that date and already benefiting from the 
green certificates mechanism. 
4 GSE appealed against the judgment of the Regional Administrative Court, Lazio, 
before the Council of State, the referring court. 
5 The respondents submit that, if interpreted in the manner suggested by GSE and 
by the settled case-law of the Council of State referred to above, the legislation in 
question is incompatible with EU law and therefore ask for the case file to be 
referred to the Court of Justice for a ruling on the question of interpretation. 
The essential arguments of the parties in the main proceedings 
6 GSE considers that the national law, as the Council of State has consistently 
interpreted it, is legitimate and claims that the judgment of the Regional 
Administrative Court, Lazio, is incorrect, on several points. 
7 It maintains that, since 2016, for reasons connected with the rationalisation of the 
mechanisms for promoting the production of energy from renewable sources, 
Legislative Decree No. 28/2011 provided for the transition from the right to 
collect green certificates to the right to a feed-in tariff. 
8 This transition was fully regulated by the Ministerial Decree of 6 July 2012, which 
confirmed the need for the payment of the incentive to be regulated specifically by 
a dedicated agreement. 
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9 The respondents dispute that argument, asserting that the obligation to sign the 
agreement covering ongoing relations is not provided for by the relevant 
legislation, contained in Legislative Decree No 28/2011, which very clearly 
provides for two distinct schemes, one applicable to plants which began operating 
after 31 December 2012, and the other concerning plants already in operation on 
that date, which had already been granted green certificates. 
10 They claim that GSE has no power to draw up the declaration of acceptance of the 
clauses of the agreement, which includes clauses that are particularly detrimental 
to the position of the undertakings involved, some of which may be described as 
unfair, such as the obligation imposed on the manufacturer to allow GSE to collect 
metering data and to install new smart metering devices; the constraints laid down 
for the assignment of credits; GSE’s unilateral power to alter or terminate 
incentives in the event that the plant is transferred to third parties; the right, on the 
part of GSE, to terminate the agreement merely on the ground that false or 
inaccurate data exist; GSE’s right to terminate and suspend the agreement. 
11 In addition, the aforementioned undertakings claim that the legislation – if 
interpreted as making access to incentives conditional upon the conclusion of a 
private-law agreement, not only for plants built after 31 December 2012, but also 
for plants subject to the transitional scheme – is contrary to the rules of EU law 
laid down in Directive 2009/28/EU, recital 8 thereof in particular. 
12 The respondents point out that the draft agreement at issue unilaterally redefined, 
in non-negotiable and unalterable terms, the rules regulating the payment of 
incentives to all producers of electricity from non-photovoltaic renewable sources, 
which had acquired the right to an incentive through the green certificate scheme, 
placing the beneficiaries, in the absence of any actual negotiation between the 
parties, at a crossroads: either to comply with those rules or to renounce the 
incentive to which they are entitled. 
13 Furthermore, in so far as they would also affect the ongoing relations with GSE, 
by introducing additional, detrimental expenses to be borne by one of the parties, 
the national provisions criticised also openly infringe the principle of the 
protection of the legitimate expectations of the respondents in the stability of the 
incentive mechanisms, a form of protection which the European legislature 
considers to be crucial for the achievement of objectives regarding the promotion 
of renewable energy sources. 
14 In that regard, the respondents state that, even if it is accepted that the legislature 
requires a transition to another incentive scheme, the introduction of heavy and 
unnecessarily detrimental expenses and obligations – such as entering into a 
standard agreement with conditions significantly less favourable for the private 
contracting party – for the transition to the new scheme, is, by contrast, clearly 
contrary to the need to ensure long-term stability, which undertakings need in 
order to make rational and sustainable investments in the renewable energy sector, 
and to the principle of the protection of legitimate expectations. 
GESTORE DEI SERVIZI ENERGETICI 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
15 The question under consideration here is whether the standard agreement for new 
plants can also be used to regulate the relationship between GSE and the 
companies operating plants which have already acquired the right to benefit from 
the previous legislation. 
16 The legislation and regulations applicable to the question at issue have given rise 
to two conflicting interpretations: that put forward by the respondents and adopted 
by the Regional Administrative Court, Lazio (which followed the interpretative 
approach based on the existence of a dual incentive scheme, the new general 
scheme and the special transitional system), and that put forward, on the other 
hand, by GSE (which refers to the approach taken since 2020 by the Council of 
State to support its claim), according to which the legislature defined the 
framework in general terms, applicable to all plants capable of benefiting from the 
incentive scheme. 
17 For a more detailed analysis of the case in question, the Council of State refers, in 
addition to recital 8 of Directive 2009/28/EC, to further provisions from the same 
directive (recitals 14 and 5, Articles 1 and 3) with which the national law may not 
be compatible. 
18 As regards legitimate expectations, the referring court has doubts as to whether 
the underlying conditions, which may found in the case-law of the European 
Union, for the view to be taken that a prudent and circumspect economic operator 
should have been perfectly capable of foreseeing the possible developments taking 
place in the sector and of thereby adopting suitable measures to safeguard its 
interests, have been met. 
19 The referring court refers to the judgment of the Court of 15 April 2021 (C-798/18 
and C-799/18), since the case in question in that action has certain links to the 
present case in so far as it concerns the incentives relating to photovoltaic plants 
which began operating after 31 December 2012, regulated by private-law 
contracts concluded between GSE and the owners of the plants in question, in 
which it had been expressly provided that GSE reserves the right to modify the 
contractual terms unilaterally, in order to take account of developments in the 
relevant legislative framework. In that case, it was stated that, as regards the type 
of standard contract drafted by the other party to the contract, ‘freedom of contract 
consists, essentially, in deciding whether or not to accept its terms’, including 
GSE’s right to introduce modifications to the contractual terms unilaterally, with 
the result that, since it was known or could have been apprehended that the 
operator may have modified the terms of the contract to reflect the introduction of 
national legislation altering the incentive, any breach of the principle of the 
protection of legitimate expectations must be excluded. However, the Council of 
State points out that, in the case under consideration, there does not appear to be 
any previous legislation that gives a sufficiently clear indication to economic 
operators that the incentives at issue can be altered or withdrawn. 
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20 In addition, the referring court envisages the possibility of an infringement of the 
freedom to conduct a business, enshrined in Article 16 of the Charter of 
Fundamental Rights of the European Union, with regard to the freedom to pursue 
an economic activity within the sphere of freedom of contract: in fact, the view 
could be taken that the national provisions relied on constitute an interference with 
the contractual freedom of operators of plants benefiting from the incentives, 
given that the legislature intervened directly in the incentive scheme by modifying 
the conditions on the basis of which the economic operators had organised and 
planned their economic activities, for a period which should have remained stable 
for a reasonable period of time. However, the freedom to conduct a business also 
includes the right of every undertaking to use the economic and financial 
resources available to it freely, to the extent that it is for its own actions.