Opinion of the Advocate General — ECLI:EU:C:2021:517
Date: 2021-06-24
Language of the case: Italian
Subject matter: Energy;Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-110/20 — 1 
Case C-110/20 
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:  
27 February 2020 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
23 January 2020 
Applicant:  
Regione Puglia 
Defendant:  
Ministero dell’Ambiente e della Tutela del Territorio e del Mare and 
Others 
  
Subject of the action in the main proceedings 
Actions for annulment of four judgments issued by the TAR Lazio (Regional 
Administrative Court, Lazio) which confirmed the legality of four ministerial 
decrees finding that four seismic surveys to be carried out in adjacent  maritime 
areas, submitted by a single hydrocarbons research company, are environmentally 
compatible. 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Is Directive 94/22/EC of the European Parliament and of the Council of 30 May 
1994 to be interpreted as precluding national legislation such as that described 
which on the one hand recommends, for the purpose of issuing a hydrocarbons 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-110/20 
 
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exploration permit for an area of a specified extent, granted for a specific period 
of time — in the present case, an area of 750 square kilometres for six years — 
and on the other hand allows those limits to be exceeded by the issue of multiple 
exploration permits for adjacent areas to the same legal entity, provided that they 
are issued following separate administrative procedures? 
Provisions of EU law cited 
Directive 94/22/EC of the European Parliament and of the Council of 30 May 
1994 on the conditions for granting and using authorisations for the prospection, 
exploration and production of hydrocarbons: recitals 5, 6 and 8 and Articles 3(2) 
and 4. 
Provisions of national law cited 
Article 6 of Legge. 9 gennaio 1991, n. 9 in materia di permesso di ricerca degli 
idrocarburi (Law No 9 of 9 January 1991 on the hydrocarbons exploration permit, 
as amended by Decreto legislativo. 25 novembre 1996, n. 625 (Legislative Decree 
No 625 of 25 November 1996) transposing Directive 94/22/EC:  
‘1. The exploration permit shall be granted by decree of the Ministro 
dell’industria, del commercio e dell'artigianato (Minister for Industry, Trade and 
Crafts), after consulting the Technical Committee for Hydrocarbons and 
Geothermal Energy and the relevant region or the autonomous provinces of 
Trento or Bolzano, in agreement with the Ministro dell’ambiente (Minister for the 
Environment) and the Ministro della marina mercantile (Minister for the Merchant 
Navy), according to their respective spheres of competence …  
2. The area covered by the exploration permit shall be such as to permit the 
rational development of the exploration programme and in any case may not 
exceed 750 square kilometres; adjacent land and sea areas may be included in the 
area covered by the permit. 
3. If the Minister for Industry, Trade and Crafts does not consider the area 
requested to be of a sufficient dimension or rational configuration for the purpose 
of optimal exploration, he may decide not to grant the exploration permit until it is 
possible to combine the area under consideration with neighbouring areas. 
4. The duration of the permit shall be six years. 
5. The permit holder shall be entitled to two successive extensions of three 
years each, provided he has fulfilled the obligations under the permit. 
6. The permit holder may be granted a further extension if … works are still in 
progress … for reasons not attributable to his inactivity, negligence or 
incompetence …’ 
REGIONE PUGLIA 
 
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Article 9(1) of Decreto Direttoriale 22 marzo 2011 (Departmental Decree of 
22 March 2011) and, identically, Article 14(1) of Decreto Direttoriale 15 luglio 
2015 (Departmental Decree of 15 July 2015):  
‘During the exploration phase, more than one  exploration permit or individual  
licence  may be granted to the same legal entity, either directly or to parent 
companies, subsidiaries or entities within the same corporate group, provided that 
the total area does not exceed 10 000 km2.’ 
Outline of the facts and the main proceedings 
1 On 27 August 2013, Global Petroleum Ltd, an Australian company operating 
worldwide in the offshore hydrocarbons sector, submitted four applications to the 
Ministero per lo Sviluppo economico (Italian Ministry of Economic 
Development) for four exploration permits in adjacent areas located off the coast 
of Puglia, each with an area of just under 750 square kilometres. 
2 At the time, the procedure for issuing permits was governed by the Departmental 
Decree of 22 March 2011, and subsequently by the Departmental Decree of 
15 July 2015, both of which provided that, following publication of the 
application and completion of the examination phase in respect of any 
applications from other applicants, the interested party was required to submit a 
separate application for a positive environmental impact assessment (EIA) of its 
project. 
3 Thus, on 30 May 2014, Global Petroleum submitted four applications to the 
Ministero dell’Ambiente e della Tutela del Territorio e del Mare (Italian Ministry 
of the Environment and Protection of Land and Sea — MATTM) to obtain the 
necessary decisions on environmental compatibility pursuant to Article 22 et seq. 
of Decreto Legislativo  3 aprile 2006, n. 152 (Legislative Decree No 152 of 
3 April 2006), relating to two-dimensional and possibly three-dimensional seismic 
surveys to be carried out using the ‘air gun’ technique in the areas concerned. 
This technique uses a high-pressure compressed air generator, known as an ‘air 
gun’, to generate seismic waves that hit the seabed; by analysing the return echo, 
it is possible to reconstruct the subsea rock formation and identify any 
commercially viable hydrocarbon deposits. Unless it is controlled, this activity can 
be harmful to marine life, which is why an environmental assessment is necessary. 
4 With four separate decrees, the MATTM, in agreement with the Ministro dei Beni 
e delle Attività culturali e del Turismo (Minister for Cultural Heritage and 
Activities and Tourism), found that the projects were environmentally compatible 
, specifying that the appropriate technical committee for environmental impact 
assessments (EIA and SEA) had also assessed their cumulative effect. 
5 Regione Puglia (Puglia Regional Authority) — the authority invited to take part in 
the procedure — challenged those decrees by separate actions before the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-110/20 
 
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competent Regional Administrative Court. It argued that the decrees infringed 
Article 6(2) of Law No 9/1991, interpreting the limit of 750 square kilometres as 
referring not only to individual permits, but also to individual operators. 
Therefore, in its opinion, an individual operator could not obtain permits for a 
total area exceeding that limit. 
6 In each of the proceedings, the Regional Administrative Court dismissed the 
allegation that the ban had been circumvented. It ruled that Law No 9/1991 was 
designed not to protect the environment (which was protected by other laws), but 
to promote the rational exploitation of hydrocarbon resources and thus 
competition between operators in the sector. Consequently, individual operators 
were entitled to receive multiple permits, even for adjacent areas, provided that 
each application submitted was for an area of less than 750 square kilometres and 
each authorisation was obtained following a separate procedure. 
7 Puglia Regional Authority appealed against the judgments of the lower court 
before the Consiglio di Stato (Council of State, Italy). All three ministries 
concerned, as well as the Presidenza del Consiglio dei Ministri (Office of the 
Italian Prime Minister) and the other party to the proceedings, Global Petroleum, 
joined the proceedings. 
Main arguments of the appellant 
8 According to the appellant, it is precisely because of the need to promote 
competition in the sector that the maximum extent of the permits that can be 
issued to an individual operator should be limited to 750 square kilometres; 
otherwise such an operator could, paradoxically, occupy with its activities the 
entire maritime area to be exploited.  
Succinct presentation of the reasons for the request for a preliminary ruling 
9 The Council of State questions the interpretation adopted by the Regional 
Administrative Court and submits to the Court the question of the conformity of 
the national legislation in question with Directive 94/22/EC, and in particular 
Article 4 thereof. 
10 The Council of State starts by noting that, in principle, Directive 94/22/EC should 
be interpreted as encouraging competition in the sector (fifth recital). More 
specifically, it seeks to promote ‘market’ competition — in other words, based on 
the presence of the largest number of competing operators — and not competition 
simply ‘for the market’, in which applicants are selected by means of competitive 
mechanisms to operate a particular market in the broadest sense, in a de jure or de 
facto monopoly (eighth recital), in order to avoid any inefficiency (Article 4). 
Indeed, the allocation of a given economic asset by means of a competitive 
mechanism among several applicants allows competition to take place 
(Article 3(2)). However, there is no mention of the final outcome, which could be 
REGIONE PUGLIA 
 
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a situation in which competition exists, but equally could be a monopoly, if the 
economic asset to be allocated is the only one of its kind available.  
11 However, the implementation of the Directive, transposed in national law by 
means of the amendment of Article 6 of Law No 9/1991 pursuant to Legislative 
Decree No 625/1996, does not comply with that interpretation of the Directive.  
12 Indeed, Article 6, as amended, lays down a maximum extent and duration for 
individual exploration permits that may be issued. However, it does not expressly 
prohibit — and so it allows, in the Council of State’s opinion —  more than one 
permit to be issued to the same legal entity, each for an area corresponding to the 
maximum extent, provided that these are issued, as in the present case, following 
an equivalent number of administrative procedures. 
13 First, a literal and logical argument applies here: if the law is silent, then what is 
not prohibited must be considered to be permitted. 
14 In the same vein, a systemic/historical argument can be made, since the national 
legislation on hydrocarbons prior to Directive 94/22/EC, from legge n. 6/1957 
(Law No 6/1957) to the original version of Article 6 of Law No 9/1991, has 
always set two distinct limits: the first relating to the maximum extent of 
individual permits (first 50 000 hectares, then 70 000 hectares, and finally 100 000 
hectares); the second relating to the maximum total extent of permits that can be 
issued to a single legal entity (from 300 000 hectares throughout national territory 
and 150 000 hectares in the same region, to 1 million hectares for more than one  
permit issued to a single entity other than the Ente nazionale idrocarburi (National 
Hydrocarbons Authority, now ENI), with a specific ban on permits for adjacent 
areas). 
According to the Council of State, it is evident, therefore, that the removal of the 
reference to limits for each operator in the new legal framework should be taken 
to mean that those limits have been abolished, with an end result at odds with the 
aim of promoting competition, which Directive 94/22/EC seeks to achieve. 
15 The same conclusion will be reached even with a limit of 10 000 square 
kilometres per operator, as laid down in the Departmental Decrees of 22 March 
2011 and 15 July 2015. That limit is more than 13 times the individual maximum 
extent, and could therefore frustrate the aim of promoting competition as 
construed by the Council of State. 
16 The question raised is relevant for the purposes of the decision in the main 
proceedings. Indeed, if the Council of State’s interpretation is correct and 
Article 6 of Law No 9/199, as amended, is found to be contrary to Directive 
94/22/EC in so far as it allows multiple exploration permits to be issued to the 
same legal entity for a total area exceeding 750 square kilometres, the permits 
issued to Global Petroleum, as well as the contested EIA decrees, will be unlawful 
since they relate to projects that are not permissible.