Judgment;Summary — ECLI:EU:C:2024:209
Date: 2024-03-07
Language of the case: Italian
Court formation: Second Chamber
Subject matter: State aids;Competition;Taxation;Free movement of goods;Quantitative restrictions;Customs Union;Anti-discrimination;Charges having an equivalent effect
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-558/22 – 1 
Case C-558/22 
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:  
19 August 2022 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
16 August 2022 
Appellant:  
Autorità di Regolazione per Energia Reti e Ambiente (ARERA) 
Respondents:  
Fallimento Esperia SpA 
Gestore dei Servizi Energetici – GSE SpA 
  
Subject matter of the main proceedings 
Appeal before the Consiglio di Stato (Council of State, Italy) brought by ARERA 
against the judgment of the Tribunale Amministrativo Regionale per la Lombardia 
(Regional Administrative Court, Lombardy, Italy) partially upholding the action at 
first instance brought by the respondent, Fallimento Esperia SpA, by which that 
party challenged the penalty measure imposed on it by ARERA for failing to fulfil 
its obligation to purchase certificates proving that energy imported into Italy in 
2010 originated from renewable sources (Green Certificates). 
Subject matter and legal basis of the request 
Compatibility of the Italian legislation, which imposes on importers of green 
electricity a financial burden that does not apply to domestic producers of the 
same product, with Articles 18, 28, 30, 34, 107, 108 and 110 TFEU, and with 
Directive 2009/28/EC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-558/22 
 
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Question referred for a preliminary ruling 
‘Do the following provisions: 
- Article 18 TFEU, in so far as it prohibits any discrimination on grounds of 
nationality within the scope of the Treaties; 
- Articles 28 and 30 TFEU, in so far as they provide for the abolition of customs 
duties on imports and measures having equivalent effect; 
- Article 110 TFEU, in so far as it prohibits taxation on imports in excess of those 
imposed directly or indirectly on similar domestic products; 
- Article 34 TFEU, in so far as it prohibits the adoption of measures having 
equivalent effect to quantitative restrictions on imports; 
- Articles 107 and 108 TFEU, in so far as they prohibit the implementation of a 
State aid measure not notified to the Commission and incompatible with the 
internal market; and 
- Directive 2009/28/EC, in so far as it seeks to promote intra-Community trade in 
green electricity, thus promoting, moreover, the production capacity of individual 
Member States, 
preclude national legislation such as the one described above, which imposes on 
importers of green electricity a financial burden that does not apply to domestic 
producers of the same product?’ 
Provisions of European Union law relied on 
Articles 18, 28, 30, 34, 107, 108 and 110 TFEU. 
Directive 2001/77/EC of the European Parliament and of the Council of 
27 September 2001 on the promotion of electricity produced from renewable 
energy sources in the internal electricity market. This introduced the ‘guarantee of 
origin’, a means of certifying that electricity produced by Member States 
originates from renewable sources.  
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. 
Provisions of national law relied on 
Decreto legislativo del 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 16 March 1999 – Implementation of Directive 96/92/EC 
concerning common rules for the internal market in electricity), in force until 
ARERA 
 
3 
1 January 2016. In particular, Article 11 of that decree required undertakings 
importing or producing electricity produced from non-renewable energy sources 
to also feed a predetermined share of green energy into the national electricity 
system in the following year or, alternatively, to purchase renewable energy 
certificates (green certificates) for the equivalent value from other producers. 
Decreto legislativo del 29 dicembre 2003, n. 387 – Attuazione della direttiva 
2001/77 (Legislative Decree No 387 of 29 December 2003 – Implementation of 
Directive 2001/77) (repealed from 1 January 2012). In particular, Article 20(3) of 
that decree established that undertakings importing electricity from EU Member 
States, subject to the obligation laid down in the abovementioned Legislative 
Decree No 79/1999, could apply to the system operator for an exemption from 
said obligation in relation to the share of imported electricity produced from 
renewable sources. Furthermore, Article 11(6) of that decree lays down the 
requirements that must be met by a guarantee of origin of electricity produced 
from renewable sources, and Article 4 establishes that the system operator is 
responsible for verifying that the requirements laid down in Article 11 have been 
met and reporting any non-compliance to ARERA. 
Decreto legislativo del 3 marzo 2011, n. 28 – Attuazione della direttiva 
2009/28/CE sulla promozione dell’uso dell’energia da fonti rinnovabili 
(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). In 
particular, Article 25(11) repealed Article 20(3) of Legislative Decree 
No 387/2003 with effect from 1 January 2012. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By a decision of 28 June 2016, ARERA ordered Esperia SpA – an undertaking 
involved in importing electricity on behalf of industrial customers and end 
consumers – to pay a financial penalty of EUR 2 803 500 for failing to fulfil its 
obligation to purchase certificates proving that energy imported in 2010 originated 
from renewable sources (Green Certificates). 
2 Esperia, which had gone bankrupt in the meantime (‘Fallimento Esperia’), 
challenged that measure by an action before the Lombardy Regional 
Administrative Court (‘the TAR’). By a judgment of 8 August 2018, that court 
upheld the action solely in relation to the amount of the penalty, ordering ARERA 
to reduce its amount.  
3 That judgment was appealed as a principal action by ARERA, which contested the 
reduction in the amount of the penalty, and on an incidental basis by Fallimento 
Esperia, which requested that the appeal court uphold in its entirety the claim 
made in the proceedings at first instance. 
4 The appeal was assigned to the Sixth Chamber of the Council of State, which 
noted that the Fourth Chamber, by an order of 3 September 2019 in a similar 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-558/22 
 
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action, had ordered that a question be referred to the Court of Justice for a 
preliminary ruling intended to determine whether the Italian legislation ‘which 
imposes on importers of green electricity a financial burden that does not apply to 
domestic producers of the same product’ conflicts with Directive 2009/28/EC and 
whether that purchase obligation for energy importers constitutes State aid for the 
benefit of operators not involved in importing. 
5 Believing it necessary to await the Court of Justice’s decision before determining 
whether the penalties imposed on Esperia were also lawful, the Sixth Chamber 
adjourned the case until after a decision was reached on the preliminary question 
(Case C-705/19, Axpo Trading AG). However, the domestic case was dismissed 
due to the appellant’s withdrawal, and as a result, the Court of Justice removed 
Case C-705/19 from the register.  
6 ARERA then requested that a new hearing be scheduled for discussion of the case 
under consideration here, and that hearing was held on 12 April 2022. In its 
judgment of 26 May 2022, the Council of State noted that a decision could only be 
reached in the case when the issue of the compatibility with EU law of the 
national provisions requiring the purchase of green certificates for imported 
energy had been resolved, a situation already recognised in the context of the 
judgment from which Case C-705/19 emerged. The Council of State therefore 
once again referred the question to the Court of Justice for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
7 Fallimento Esperia is asserting that the European Commission, in a letter dated 
7 August 2019 (GV/ic ener.c.1(2019)4406481) responding to a complaint, has 
already pointed out that the Italian legislation on promoting green energy was not 
in compliance with EU law until 2015, namely until the adoption of Legislative 
Decree No 28/2011, which repealed green certificates.  
8 It is also alleging that the doubt as to the compatibility of Article 11 of Legislative 
Decree No 79/1999 and Article 25 of Legislative Decree No 28/2011 with the 
relevant EU directives, understood, when read together, as imposing penalties on 
energy companies that fail to purchase green certificates and/or guarantees of 
origin even after 1999, is supported by the order issued by the Council of State 
from which Case C-705/19 emerged, as the obligation to purchase green 
certificates: (a) constitutes State aid to the benefit of green energy producers 
operating in Italy that was not previously notified to the Commission, in breach of 
Articles 107 and 108 TFEU; (b) imposes a tax having equivalent effect to a 
customs duty, to the detriment of importers into Italy of green energy produced in 
other Member States, in breach of Articles 28, 30 and 110 TFEU; and (c) 
constitutes a measure equivalent to a quantitative restriction on imports and on the 
free movement of green energy produced in other Member States, in breach of 
Articles 34 and 36 TFEU.  
ARERA 
 
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9 Gestore dei Servizi Energetici (GSE SpA) is asserting that it is specifically the EU 
legislation that recognises the need to promote renewable energy sources as a 
priority measure (Directive 2001/77/EEC), that priority may be given to the 
production of electricity from renewable energy sources for reasons of 
environmental protection, and that a Member State may require the system 
operator to give priority to generating installations using renewable energy 
sources or waste (Directive 96/92/EC). In its view, the contested national 
regulation is therefore in line with the directives. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 In the present case, the Council of State was awaiting the decision of the Court of 
Justice on the question referred for a preliminary ruling in Case C-705/19, a case 
that was, however, removed from the Court’s register. However, the Advocate 
General did provide his views in that case, stating in his Opinion that the 
provisions of EU law do not preclude the Italian green certificate purchasing 
scheme which is imposed on importers. 
11 Specifically, the Advocate General suggested that the Court of Justice respond, in 
so far as is relevant here, in the following terms: 
‘1) 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 and 
amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC 
does not preclude legislation under which a Member State decides not to exempt 
importers of electricity generated from renewable sources in other Member States, 
or in third countries, from the obligation to purchase green certificates linked 
exclusively to the national production of that type of electricity. 
2) A system of support via green certificates such as that at issue in this dispute 
is not a customs duty on imports or a charge having equivalent effect contrary to 
Articles 28 and 30 TFEU, nor a discriminatory internal tax contrary to Article 110 
TFEU. That system does, however, constitute a measure having an effect 
equivalent to a quantitative restriction on imports which is contrary in principle to 
the prohibition contained in Article 34 TFEU, but justified by the overriding 
requirement to preserve the environment and the need in the general interest to 
protect the life and health of humans, animals and plants, as permitted by 
Article 36 TFEU. 
3) The obligation to buy green certificates which is imposed by the Italian State 
on importers of electricity, and the issue of those certificates free of charge to 
national producers of electricity generated from renewable sources do not amount 
to the transfer of State resources within the meaning of Article 107(1) TFEU. The 
obligation on the publicly owned company Gestore servizi energetici (Energy 
Services Management) to buy back surplus green certificates using the proceeds 
from tariff component A3 might entail a transfer of public resources, a question 
which falls to be determined by the referring court. Such a transfer would not be 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-558/22 
 
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capable of being classified as State aid incompatible with Article 107(1) TFEU in 
so far as it does not confer a selective advantage on Italian producers of electricity 
obtained from renewable sources’ … 
12 Nevertheless, the Council of State considers that it is still necessary to refer the 
matter to the Court of Justice. To that end, it has reproduced below the grounds of 
the abovementioned order of 3 September 2019. 
13 The referring court notes that Directive 2009/28 focuses on national targets for the 
production and use of green energy. That approach, whereby the individual targets 
for each Member State are set on the basis of the specific characteristics of each 
national situation, is illustrated in particular in recitals 15 and 25 of the 
abovementioned directive. 
14 National support schemes and measures of cooperation between Member States, 
governed by Article 3(3) of the directive in question, are the means by which 
Member States can achieve their goals of increasing the production and 
consumption of green energy. In particular, measures of cooperation between 
Member States are optional, as confirmed by Article 3 of Directive 2009/28. 
15 The referring court states that Legislative Decree No 28/2011, which implements 
Directive 2009/28, provided for the system of green certificates to be phased out 
and replaced from 2016 by feed-in premium (FIP) tariffs. It also notes that 
Article 25(11) of the legislative decree eliminated the possibility of green energy 
produced abroad counting towards the national quota; a possibility that, under the 
previous rules, created an exemption from the obligation to purchase a pro-rata 
quantity of green certificates. 
16 Regarding the alleged State aid nature of the rules in question, the referring court 
notes that in the present case there is no transfer of State resources to producers of 
green energy operating in Italy. Even if it is assumed that State aid exists also 
where purchase obligations are imposed on operators in the sector or a financial 
burden is imposed on consumers, the fact that Directive 2009/28 focuses on 
national targets for the production and use of green energy, requiring each 
Member State to achieve an ever-increasing share of green energy, and the 
entirely optional nature of the measures of cooperation between Member States, 
taken together, might suggest that the adoption by Member States of measures 
aimed solely at assisting domestic producers of green energy comply with the 
directive in question. The increase in national consumption of green energy is 
undoubtedly facilitated by the increase in domestic production of green energy 
(see judgment of 29 September 2016, Essent Belgium NV, C-492/14, 
paragraphs 105 to 110). To that effect, by facilitating the domestic production of 
clean energy, each Member State is promoting the environmental health of its 
territory, as intended by EU legislation (see judgment of 1 July 2014, Ålands 
Vindkraft AB, C-573/12, paragraphs 53, 54, 94, 95 and 130). 
ARERA 
 
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17 Moreover, by definition, the national support schemes covered by Directive 
2009/28 provide for special treatment in favour of domestic producers of green 
energy and therefore do not derogate from the reference system established by that 
directive, but rather allow for its effective implementation. The reference system 
provided for in the directive in question is therefore openly and deliberately 
selective in itself, since it is aimed at encouraging the production of green energy 
rather than energy from non-renewable sources. 
18 The referring court observes that the Italian Republic was therefore not obliged to 
notify the Commission in advance of the rules contained in Legislative Decree 
No 28/2011, since these did not constitute State aid. Furthermore, the rules in 
question do not constitute a tax having equivalent effect to a customs duty to the 
detriment of importers into Italy of green energy produced in other Member States 
or a measure equivalent to a quantitative restriction on imports and on the free 
movement of green energy. 
19 The obligation for importers of energy produced abroad to purchase green 
certificates is therefore functional to the overall design of the support scheme 
established in Italy, which in turn complies with Articles 18 and 110(1) TFEU, 
since it reserves the same treatment for all operators in the electricity sector, 
Italian or otherwise, who feed into the grid electricity which is not produced from 
Italian renewable sources. 
20 The judgment of the Court in Case C-213/96, cited by the appellant in support of 
its arguments, concerns taxation, whereas the present case concerns facilitating 
measures, and in any event was delivered before Directive 2009/28 entered into 
force. Likewise, the abovementioned judgment in Case C-492/14, which relates to 
the question of the permissibility of national legislation providing for energy 
distribution that is selectively free of charge, applies the previous EU legislation. 
21 Since the question at issue is decisive for the settlement of the dispute and there is 
a specific request from the appellant, the referring court, which is the court of last 
instance, submits the reference for a preliminary ruling to the Court of Justice.