Opinion of the Advocate General — ECLI:EU:C:2020:876
Date: 2020-10-29
Language of the case: Italian
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-798/18 — 1 
Case C-798/18 
Request for a preliminary ruling 
Date lodged: 
17 December 2018 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
28 September 2018 
Applicants: 
Federazione nazionale delle imprese elettrotecniche ed elettroniche 
(Anie) and Others 
Defendants: 
Ministero dello Sviluppo Economico 
Gestore dei Servizi Energetici (GSE) SpA 
  
[…] 
ITALIAN REPUBLIC 
The Tribunale Amministrativo Regionale per il Lazio 
(Lazio Regional Administrative Court, Italy) 
(Chamber IIIb) 
makes the following 
ORDER 
on the action […] brought by: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2018 — CASE C-798/18 
 
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Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and 
Others […] [Or. 2] […] [Or. 3] […]; 
versus 
Ministero dello sviluppo economico (Ministry of Economic Development), […]; 
GSE — Gestore dei Servizi Energetici SpA; 
requesting the annulment 
- of d.m. 16 ottobre 2014, recante ‘Approvazione delle modalità operative per 
l’erogazione da parte del Gestore Servizi Energetici SpA delle tariffe incentivanti 
per l’energia elettrica prodotta da impianti fotovoltaici in attuazione dell’articolo 
26, comma 2, del decreto legge 24 giugno 2014, n. 91, convertito, con 
modificazioni, dalla legge 11 agosto 2014, n. 116’ (Ministerial Decree of 
16 October 2014, ‘Approval of the operating procedures for the payment by 
Gestore Servizi Energetici SpA of the feed-in tariffs for electricity generated by 
photovoltaic installations in implementation of Article 26(2) of Decree-Law 
No 91 of 24 June 2014, converted, with amendments, by Law No 116 of 
11 August 2014’); 
- of d.m. 17 ottobre 2014, recante ‘Modalità per la rimodulazione delle tariffe 
incentivanti per l’energia elettrica prodotta da impianti fotovoltaici, in attuazione 
[Or. 4] dell’articolo 26, comma 3, lett. b), del decreto legge 24 giugno 2014, 
n. 91, convertito, con modificazioni, dalla legge 11 agosto 2014, n. 116’ 
(Ministerial Decree of 17 October 2014, ‘Procedures for restructuring the feed-in 
tariffs for electricity generated by photovoltaic installations, in implementation of 
Article 26(3)(b) of Decree-Law No 91 of 24 June 2014, converted, with 
amendments, by Law No 116 of 11 August 2014’); 
- of any other prior, associated or subsequent measure. 
[…] [proceedings] 
1. Subject matter of the dispute and relevant facts 
The Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) 
represents the undertakings in Italy that perform ‘activities associated with the 
production of goods and/or services in the electrotechnical and electronics sector, 
or in related sectors’ (Anie states that it is a ‘top-level federation’ comprising the 
relevant industry associations, including the association ‘Anie Energie 
Rinnovabili’, which works to ‘provide technical and economic safeguards and 
protection for the image of the renewable energy industry sector and the resolution 
of problems of specific interest for the sector’). 
The other applicants (companies and sole traders) are the owners and managers of 
one or more photovoltaic installations with a power rating of more than 200 kW, 
located in various areas throughout Italy, which have concluded 20-year 
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agreements (classified as ‘private contracts’ by Article 24(2)(d) of d.lgs. 
n. 28/2011 (Legislative Decree No 28/2011)) with Gestore dei Servizi Energetici 
(GSE SpA, a public company fully controlled by the Ministero dell’economia e 
delle finanze (Ministry of Economic Affairs and Finance), which has been 
assigned a range of public-law functions in the energy sector) for granting the 
feed-in tariff for the generation of [Or. 5] electricity by means of photovoltaic 
conversion. The agreements were concluded in implementation of the national 
legislation adopted to transpose the European directives on the promotion of the 
use of energy from renewable sources (first Directive 2001/77/EC, now replaced 
by Directive 2009/28/EC). 
By the present action, the applicants have sought the annulment of the Ministerial 
Decrees of 16 and 17 October 2014 implementing Article 26(2) and (3) of Decree-
Law No 91/2014, converted by Law No 116/2014. 
The parties take issue with the prejudicial effects of Article 26 of that decree-law 
and the associated implementing decrees, alleging that the provision concerned 
has an adverse impact on existing relationships, already defined by the respective 
granting decisions and by the corresponding agreements concluded with the 
Public Operator, and therefore substantially undermines the expectations of the 
operators. The ‘restructuring’ of the incentives, imposed by law, in fact constitutes 
a change for the worse to the incentives previously granted by the public 
authorities for the production of photovoltaic energy. 
In this context, they allege, inter alia, a breach of the EU principles of legal 
certainty and protection of legitimate expectations and of Directive 2009/28/EC: 
in their view, the EU legislation and guidelines in the area of renewable energy 
sources preclude situations in which national legislatures introduce harsher legal 
provisions in relation to renewable electricity and support schemes, contrary to the 
principles of legal certainty and protection of legitimate expectations. Article 26 
of Decree-Law No 91/2014, it is argued, conflicts with those principles, having 
introduced retroactive measures that subvert the initial conditions of investments 
already made, and should therefore be disapplied (or, alternatively, referred for 
assessment by the EU Court of Justice) because it conflicts with the primary and 
secondary legislation of the European Union. 
The Ministry of Economic Development has entered an appearance in the 
proceedings, requesting that the action be dismissed. 
[Or. 6] 
It should be added that the present dispute forms part of wider litigation, in which 
undertakings in a similar position to the applicants in this case are making the 
same claims. In some cases similar to the present case, therefore, the present 
Chamber, identifying possible issues of unconstitutionality in relation to 
Article 26(3) of Decree-Law No 91 of 24 June 2014, as converted, with 
amendments, by Law No 116/2014, has raised the question of the constitutional 
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legitimacy of that provision before the Italian Constitutional Court, which ruled in 
its judgment No 16/2017 that the case was without foundation. 
That decision having been published, the applicants are reiterating their request 
for the questions of EU law to be referred for a preliminary ruling to the Court of 
Justice of the European Union. 
At the hearing on 28 September 2018, the Court deferred its decision. 
2. Reference provisions of national law 
Article 26 of Decree-Law No 91 of 24 June 2014, converted into law, with 
amendments, by Law No 116 of 11 August 2014 (in force from 21 August 
2014) — with the stated aim, in paragraph 1, ‘of optimising the management of 
the periods for collection and payment of the incentives and to foster better 
sustainability of the policy to support renewable energies’ — lays down new 
procedures for payment of the feed-in tariffs for electricity generated by 
photovoltaic installations, granted on the basis of Article 7 of decreto legislativo 
29 dicembre 2003, n. 387 (Attuazione della direttiva 2001/77/CE relativa alla 
promozione dell’energia elettrica prodotta da fonti energetiche rinnovabili nel 
mercato interno) (Legislative Decree No 387 of 29 December 2003 
(Implementation of Directive 2001/77/EC on the promotion of electricity 
produced from renewable energy sources in the internal electricity market)) and 
Article 25(10) of 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 (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 line with those objectives, the abovementioned Article 26(2) states that, from 
the second half of 2014, GSE would pay the feed-in tariffs by means of equal 
monthly instalments [Or. 7], on the basis of only 90% of the estimated mean 
annual generation capacity of each installation within the relevant calendar year, 
and would perform an adjustment, in relation to actual generation, by 30 June of 
the following year. 
Paragraph 2 therefore modifies the existing contractual conditions, replacing the 
criterion of ‘actual generation’ — based on measuring the electricity generated — 
with that of ‘estimated mean annual generation capacity’, without considering that 
the individual beneficiary signed up for the support scheme believing that it was 
possible to have access to a cash flow commensurate with actual generation, on 
the basis of which it could meet its own financial needs, whether ongoing (such as 
repayment of financing) or contingent. In other words, the measure entails a 
change to the existing legal relationships represented by the delayed payment of 
10% of the feed-in amount payable, classified by law as an ‘adjustment’. 
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Article 26 then, in paragraph 3, states expressis verbis that ‘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 applicable tariffs; 
[Or. 8] 
(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).’ 
In other words, by virtue of the legal provision described above, the legislature 
has imposed a requirement whereby operators in the sector change to a different 
restructured tariff system according to one of the options described in paragraph 3, 
described here, each of which clearly has an adverse effect on their position as 
established in the incentive agreements concluded with GSE, which has the effect 
of superseding the duration or the amount of the feed-in tariffs or both. 
In fact, the scenario described under (c) provides for a sharp reduction of the 
tariffs and therefore has a clear negative impact. 
Subparagraph (a) applies an extension to the duration of the incentives, which is 
increased to 24 years, with a proportional reduction in the annual amounts 
(applying a reduction ranging from 25% for installations with a residual period of 
12 years and 17% for installations with a residual period of 19 years or more). In 
that case, the lengthening of the period not only entails a deferred payment of the 
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incentives but also has an effect on input costs (duration of any bank financing, 
contracts concluded for the availability of sites, insurance). 
Subparagraph (b) results in a reduction in the amounts for the four-year period 
2015-2019 (in order to generate a saving of ‘at least EUR 600 million’ in the 
event that all those eligible sign up for the scheme) and an increase in the 
subsequent period (according to the algorithm defined in the Ministerial Decree of 
17 October 2014). 
[Or. 9] 
The solution does not take into account the natural ageing of installations, which 
are subject over time to reduced production, so that, if the incentive is determined 
on the basis of production, the reduction applied in a period of greater efficiency 
of the installations (2015-2019) cannot be offset by the increases in the rates 
calculated for the subsequent period (in which the installations are less efficient). 
3. Relevance of the issue 
Article 26(2) and (3) of Decree-Law No 91/2014, the compatibility of which is in 
doubt in terms of EU law, is the necessary legislative parameter, given the content 
of the pleas in law serving as the basis for the action, for the purposes of assessing 
whether the claims made by the applicants are well founded, in the light of the 
(uncontested) ownership of plants for the production of energy with rated power 
of more than 200 kW, which take advantage of the incentives laid down in 
Article 7 of Legislative Decree No 387/2003 and in Article 25 of Legislative 
Decree No 28/2011, covered by agreements concluded with GSE. 
The claims asserted in the case seek the annulment of the implementing decrees 
for the legal texts described, which impose a review of the incentives and the 
corresponding methods of payment. 
By judgment No 16/2017 cited above, in relation to aspects of EU law and in 
terms of the prejudice caused to the expectations of those undertakings receiving 
the incentives, the Constitutional Court determined that the intervention by the 
Italian legislature in relation to those consolidated positions was neither arbitrary 
nor unreasonable — and was therefore legitimate. 
In the opinion of the Constitutional Court, the actions in question constitute ‘an 
intervention that addresses a public interest, in terms of fair balancing of the 
opposing interests at stake, intended to link the policy to support the production of 
energy from renewable sources with the greater sustainability of the related costs 
payable by end users of electricity.’ 
[Or. 10] 
In particular, the Constitutional Court noted that ‘the principle of protection of 
property’, extended to rights of claim, laid down in Article 1 of Protocol No 1 to 
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the European Convention on Human Rights (ECHR), signed in Rome on 
4 November 1950, ratified and rendered enforceable by means of legge 4 agosto 
1958, n. 848 (Law No 848 of 4 August 1958), does not preclude interference by 
the public authorities where there is a general interest (European Court of Human 
Rights, Decision of 14 February 2012, Arras and Others v. Italy) and that each 
Member State enjoys a wide discretion to determine the existence of such an 
interest and the appropriateness of its actions. 
In the grounds for its decision, the Constitutional Court also stated that ‘the Court 
of Justice of the European Union, in the well-known judgment in Plantanol 
GmbH & Co. KG v Hauptzollamt Darmstadt (C-201/08, judgment of 
10 September 2009), also cited in the referral orders, has recognised that the 
withdrawal of a favourable scheme before the date announced falls within the 
discretion of the national authorities, with the sole limitation on that discretion 
being an expectation on the part of a “prudent and circumspect operator” that the 
scheme will be maintained. And, in terms of the above, the intervention by the 
legislature being discussed here was neither unforeseeable nor unexpected, and a 
“prudent and circumspect operator” would have been able to foresee the possible 
change in the legislation, considering the temporary and changeable nature of 
support schemes.’ 
The present Court, finding that certain issues not covered by the Constitutional 
Court’s decision remain unresolved, believes it necessary, in any event, in the 
light of the following considerations, to obtain a decision from the Court of Justice 
on the compatibility of the national provisions described above with EU law. In 
the view of the referring court, it is necessary to clarify, in particular, also in the 
light of secondary EU law in relation to energy production, whether the national 
legislature is permitted — following a different and supervening assessment of the 
interests at [Or. 11] stake that may lead to a ‘fair balancing’ of those interests — 
to intervene in situations already established on the basis of measures enabling 
payment of the incentives and on the basis of agreements already concluded with 
the public authorities. 
4. Applicable provisions of EU law 
4.1. In the light of the above, it should be noted firstly that Article 26 of Decree-
Law No 91/2014 might be at variance with certain general principles of EU law, 
which, according to the settled case-law of the Court of Justice, constitutes the 
basis for the EU’s legal system. 
From that point of view, it is possible that there could be a conflict between 
Article 26 of Decree-Law No 91/2014 and the general principles of legitimate 
expectation and legal certainty, because the action in relation to the national 
legislation has unilaterally modified the legal conditions serving as the basis for 
the applicant undertakings to establish their specific economic activities (for a 
statement of this principle, inter alia, Court of Justice, judgment of 21 February 
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2008, Netto Supermarkt GmbH & Co. OHG, Case C-271/06; judgment of 
10 September 2009, Plantanol GmbH & Co. KG, Case C-201/08).  
It should also be noted that in the present case the legislative amendment does not 
impact solely on the general legal framework applicable to the undertaking (as in 
the Plantanol case relating to the change in a specific tax scheme) but impacts on 
the corresponding agreements concluded individually with the public company 
GSE for the determination of the incentives, changing those agreements adversely 
and before their expiry. 
As we know, the principle of legitimate expectation has been established in the 
area of economic relationships, in relation to the criterion of the ‘prudent and 
circumspect’ economic operator, namely an operator who could have foreseen that 
the adoption of a measure is likely to affect his interests (paragraph 53 of the 
abovementioned judgment of the Court of Justice of 10 September 2009, 
Plantanol, C-201/08). In this case, this Court asks whether the fact that the 
adverse change was foreseeable can result in [Or. 12] a different assessment of 
the interests at stake by the legislature (intended, according to the Constitutional 
Court, to guarantee ‘the greater sustainability of the related costs payable by end 
users of electricity’), in the absence of exceptional circumstances that justify this 
and where there are agreements concluded between the public authorities and the 
operator that have pre-established a period of 20 years for the incentive measure. 
For the same reasons, the national provision might conflict with the Charter of 
Fundamental Rights of the European Union and, specifically, with its Articles 16 
(Freedom to conduct a business) and 17 (Right to property), because it alters the 
financial support measures already granted, interfering with the right to establish 
and conduct an economic activity on the basis of predetermined contractual 
positions and reducing the entitlement to receive the financial support measures 
already granted. 
4.2 Article 26 of Decree-Law No 91/2014 could possibly also conflict with 
secondary EU law, in particular with the directives adopted to harmonise national 
laws on the production of energy using renewable sources, intended to ensure the 
development of a common, more integrated energy policy.  
In establishing the framework for promoting the use of energy from renewable 
sources, Directive 2009/28/EC requires Member States to introduce measures 
effectively designed to ensure that they meet their specific share of energy from 
renewable sources (Article 3(2)) and, among those measures, indicates support 
schemes in particular (Article 3(3)(a)).  
In supporting the role of national schemes to support the production of renewable 
energy, the directive in question also emphasises the necessary characteristics of 
stability and legal certainty. 
[Or. 13] 
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Indeed, the directive recognises the need to ‘provide the business community with 
the long-term stability it needs to make rational, sustainable investments in the 
renewable energy sector’ (recital 8), also stating that ‘the main purpose of 
mandatory national targets is to provide certainty for investors’ (recital 14) and 
that ‘one important means to achieve the aim of this Directive is to guarantee the 
proper functioning of national support schemes … in order to maintain investor 
confidence’ (recital 25). 
The national provision in question — Article 26 of Decree-Law No 91/2014 — by 
having an appreciable adverse effect on current support schemes, which must be 
characterised by stability and consistency, not only has a financial effect on 
investors but could also undermine the energy-policy objectives of Directive 
2009/28/EC, frustrating its effectiveness and compromising the outcome sought 
by the directive. 
Similar principles in relation to the certainty of the investment are enshrined in the 
Energy Charter Treaty, signed on 17 December 1994 by the European Community 
(therefore to be considered an ‘integral part of Community law’; see Court of 
Justice, judgment of 30 April 1974, Haegeman, Case 181/73). 
Indeed, in accordance with Article 10 of the European Energy Charter, each 
contracting party shall ‘encourage and create stable, equitable, favourable and 
transparent conditions for investors … 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’ (Article 10(1)). 
5. Question referred 
The present court therefore believes, for the reasons set out above, that the 
following question should be referred to the Court of Justice: 
[Or. 14] 
‘Does EU law preclude the application of a provision of national law, such as that 
in Article 26(2) and (3) of Decree-Law No 91/2014, as converted by Law 
No 116/2014, which significantly reduces or delays the payment of incentives 
already granted by law and defined on the basis of corresponding agreements 
concluded by undertakings generating electrical energy by means of photovoltaic 
conversion with Gestore dei servizi energetici SpA, a public company responsible 
for that process? 
In particular, is that provision of national law compatible with the general 
principles of EU law relating to legitimate expectation, legal certainty, sincere 
cooperation and effectiveness, with Articles 16 and 17 of the Charter of 
Fundamental Rights of the European Union, with Directive 2009/28/EC and with 
the rules governing support schemes laid down in that directive, and with 
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Article 216(2) TFEU, in particular in relation to the European Energy Charter 
Treaty?’ 
[…] [instructions] 
ON THE ABOVE GROUNDS 
The Tribunale Amministrativo Regionale per il Lazio (Lazio Regional 
Administrative Court, Chamber IIIb: 
- refers for a preliminary ruling the question set out above to the Court of Justice 
of the European Union, in accordance with Article 267 of the Treaty on the 
Functioning of the European Union; 
[…] [stay of proceedings and instructions for the registry] 
[Or. 15] 
[…] Rome […] 28 September 2018 […]