Opinion of the Advocate General — ECLI:EU:C:2025:966
Date: 2025-12-11
Language of the case: Italian

Summary C-653/24 – 1 
Case C-653/24 
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:  
7 October 2024 
Referring court:  
Corte costituzionale (Italy) 
Date of the decision to refer:  
7 October 2024 
Applicant:  
Presidente del Consiglio dei Ministri 
Defendant:  
Regione Emilia-Romagna 
  
Subject matter of the main proceedings 
Action brought by the Italian State before the Corte costituzionale (Constitutional 
Court, Italy) against a law introduced by the Region of Emilia-Romagna, alleging 
infringement of the legislative competences of the State in several respects and 
seeking annulment of that law in so far as it provides that, where the 
concessionaire of small-scale water diversion channels for hydroelectric use 
(small-scale diversions) has been granted incentives for the production of 
electricity from renewable sources, the concession nearing expiry is to be 
extended, at the request of the concessionaire, for the duration of those incentives, 
up to the maximum duration of thirty years prescribed by national legislation for 
that type of concession. 
Subject matter and legal basis of the request 
Under the second paragraph of Article 267 TFEU, the interpretation of Article 12 
(1) and (2) of Directive 2006/123/EC of the European Parliament and of the 
Council of 12 December 2006 on services in the internal market is sought, in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-653/24 
 
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order to clarify whether or not that directive applies to concessions of small-scale 
diversions and the related power plants. 
Questions referred for a preliminary ruling 
(1) Must Article 12(1) and (2) of Directive 2006/123/EC of the European 
Parliament and of the Council of 12 December 2006 on services in the internal 
market be interpreted as meaning that it also applies to power plants engaged in 
the mere production of electricity, such as small-scale diversion hydroelectric 
plants? 
(2) If the answer to the first question is in the affirmative, must Article 12(1) 
and (2) of Directive 2006/123/EC be interpreted as meaning that the reference to 
the condition of scarcity of natural resources precludes legislation of a Member 
State which is based on – as an abstract and general criterion for determining 
whether or not diversion plants are capable of causing water scarcity – the 
difference between large and small-scale plants (which produce motive power 
with an annual average nominal power exceeding 3000 kW, and motive power 
with an annual average nominal power inferior or equal to 3000 kW, 
respectively)? 
(3) Last, if the answer to the first and second questions is in the affirmative, 
must Article 12(2) of Directive 2006/123/EC be interpreted as meaning that it 
precludes legislation of a Member State which provides for an extension of the 
duration of the concession in order to allow the concessionaire to make full use of 
incentives granted for the production of energy from renewable sources, up to the 
maximum duration (thirty years) which may, from the outset, be granted to a 
concession of a small-scale diversion? 
Provisions of European Union law and case-law relied on 
Article 4 and Article 12(1) and (2) of Directive 2006/123/EC of the European 
Parliament and of the Council of 12 December 2006 on services in the internal 
market. 
Article 49 (freedom of establishment) and Article 57 (definition of services) of the 
Treaty on the Functioning of the European Union 
Judgments of the Court of Justice of 27 April 1994, Municipality of Almelo and 
Others (C-393/1992, EU:C:1994:171); of 28 May 2020, ECO-WIND Construction 
(C-727/17, EU:C:2020:393); of 20 April 2023, Autorità garante della 
concorrenza e del mercato (C-348/22, EU:C:2023:301); and of 14 July 2016, 
Promoimpresa and Others (C-458/14 and C-67/15, EU:C:2016:558). 
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Directive 2019/944/EU of the European Parliament and of the Council of 5 June 
2019 on common rules for the internal market for electricity and amending 
Directive 2012/27/EU. 
Provisions of national law relied on 
Article 3 of legge della Regione Emilia-Romagna n. 17 del 2023 (Emilia-
Romagna Regional Law No 17 of 2023), under which, where the concessionaire 
of small-scale diversions has been granted incentives for the production of 
electricity from renewable sources, the concession nearing expiry is to be 
extended, at the request of that concessionaire, for the duration of those 
incentives, up to the maximum duration of thirty years prescribed by national 
legislation for that type of concession. 
Regio Decreto 11 dicembre 1933, n. 1775 – Approvazione del testo unico delle 
disposizioni di legge sulle acque e sugli impianti elettrici (Royal Decree No 1775 
of 11 December 1933 – Adoption of the consolidated text of the legislation on 
water and electricity plants).  
Article 6, which defines as ‘small-scale’ water diversions those which supply 
electricity generating power plants whose average annual nominal power is less 
than or equal to 3000 kW. Those with a greater nominal power are referred to as 
‘large-scale’ derivations. 
Articles 7, 8, 9 and 12-bis, which provide that, for the use of public water 
resources for hydroelectric purposes, a concession must be granted by the 
administration, which sets the relevant time limits and procedures. 
Article 21, according to which concessions of small-scale diversions are to be 
temporary and their duration may not exceed thirty years, on the expiry of which, 
under Article 30 of that royal decree, those concessions may be renewed in 
accordance with Article 28 of that royal decree, which requires verification of the 
actual water needs, in relation to the specific activity carried out, and of the further 
public interest conditions. 
Decreto legislativo 26 marzo 2010, n. 59 (Attuazione della direttiva 2006/123/CE 
relativa ai servizi nel mercato interno) (Legislative Decree No 59 of 26 March 
2010 (Transposition of Directive 2006/123/EC on services in the internal market). 
Article 117 of the Constitution 
Brief summary of the main proceedings and essential arguments of the 
parties  
1 The President of the Italian Council of Ministers challenged Article 3 of the 
Emilia-Romagna Regional Law No 17 of 2023 before the Constitutional Court, 
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alleging infringement of the legislative competences of the State in several 
respects and seeking its annulment in so far as that law provides that, where the 
concessionaire of small-scale diversions has been granted incentives for the 
production of electricity from renewable sources, the concession nearing expiry is 
to be extended, at the request of that concessionaire, for the duration of those 
incentives, up to the maximum duration of thirty years prescribed by national 
legislation for that type of concession. 
2 In the first place, the applicant notes that concessions of small-scale diversions are 
part of the field of ‘national production, transport and distribution of energy’, over 
which there is shared legislative competence between the State and the Regions, 
which means that regional legislation must respect the fundamental principles 
governing that field laid down in national legislation. 
In particular, unlike the contested regional provision, which introduces an 
automatic extension for concessions of small-scale diversions for the entire 
duration of any economic incentives granted, national legislation allows such 
concessions to be renewed only after the competent authority has verified the 
actual water needs in relation to the specific activity carried out, and the continued 
existence of further public interest conditions, such as, for example, 
environmental remediation measures, investments intended to improve the 
conservation of reservoirs and ensuring the protection of employment levels 
(Article 28 of Royal Decree No 1775/1933). 
3 In the second place, the applicant claims that, in adopting the contested provision, 
the Region failed to comply with the constraints arising from EU law. 
In that regard, while acknowledging that that national legislation does not provide 
for a public selection procedure to be conducted upon the expiry of concessions of 
small-scale diversions, the applicant takes the view that such a procedure for the 
award of the concession upon its expiry is required under EU law, and in 
particular by Article 49 TFEU and Article 12(1) of Directive 2006/123/EC of the 
European Parliament and of the Council of 12 December 2006 on services in the 
internal market (‘the Services Directive’) 
The applicant draws arguments in support of that applicability, inter alia, from the 
judgments of the Court of 20 April 2023, Autorità garante della concorrenza e del 
mercato (C-348/22, EU:C:2023:301, paragraphs 36 and 37), and of 14 July 2016, 
Promoimpresa and Others (C-458/14 and C-67/15, EU:C:2016:558, 
paragraphs 50, 51 and 61). 
By contrast, the contested regional provision allows the holder of the expiring 
concession which has been granted financial incentives to benefit from an 
automatic extension of the concession, without that break from the principle of 
competition being counterbalanced by the assessment of the need to serve the 
public interest referred to in the preceding paragraph. 
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4 In the third place, the applicant asserts that the contested regional provision 
encroached on the field of ‘safeguarding competition’, which falls within the 
exclusive legislative competence of the State. It is therefore for the national 
legislature alone to set the rules governing public selection procedures in the event 
of expiry, revocation or renunciation of concessions. 
5 The defendant, the Region of Emilia-Romagna, joined the proceedings before the 
Constitutional Court, arguing that the issues raised were unfounded. 
6 First of all, the defendant denies having infringed the fundamental principles in 
the field of ‘national production, transport and distribution of energy’, since any 
opposition to the extension in question with respect to overriding reasons relating 
to the public interest can be assessed during the examination of the request for an 
extension of the concession for the entire duration of the incentive, a request 
which must be submitted by the outgoing concessionaire, such that, contrary to 
what the applicant maintains, there is no automatic extension. 
7 The Region then argues, with regard to the alleged infringement of Article 49 
TFEU and Article 12 of the Services Directive, that concessions of small-scale 
diversions do not fall within the scope of the Services Directive, since those 
concessions are used for the production of electricity, which is a ‘good’, and not 
for the supply of services. 
8 It adds that there is no definite legal basis on which action can be taken to promote 
competition on the market for the production of hydroelectric energy, irrespective 
of the size of the plant. As confirmation of that, the Region observes that, by its 
decision of 23 September 2021, the European Commission closed certain 
infringement proceedings against several Member States concerning the 
insufficiently competitive regulation of large-scale diversions. 
9 Last, as regards the alleged infringement of the State’s exclusive legislative 
competence in the area of safeguarding competition, it does not arise because the 
contested regional provision merely aligns the duration of the concessions at issue 
with the duration of any economic incentives received, in order to be able to 
benefit from them fully, while maintaining the maximum duration of thirty years 
authorised by national legislation for those concessions. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The Constitutional Court doubts that the scope of the Services Directive includes 
concessions of small-scale diversions or that it precludes regional legislation such 
as that contested before it. 
11 By the first question referred for a preliminary ruling, it asks whether the 
activity of generating energy by means of small-scale diversion hydroelectric 
plants may be classified as a supply of services, subject as such to the Services 
Directive and, in particular, to the selection procedure provided for in Article 12 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-653/24 
 
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of the Services Directive, or as the production of a good, subject only to criteria of 
non-discrimination safeguarding the freedom of establishment for the purposes of 
Article 8 of Directive (EU) 2019/944. 
12 In that regard, the Constitutional Court notes that diversion hydroelectric  plants 
are used to generate electricity and that EU law appears to classify electricity as a 
‘good’. 
13 It refers, in the first place, to the case-law of the Court of Justice, in particular the 
judgments of 27 April 1994, Municipality of Almelo and Others (C-393/1992, 
ECLI:EU:C:1994:171, paragraph 28), according to which, under EU law, and 
indeed under the national laws [of the Member States], electricity constitutes a 
‘good’, and of 28 May 2020, ECO-WIND Construction (C-727/17, 
EU:C:2020:393, paragraphs 53 to 57), in which the Court, recalling that recital 76 
of the Services Directive states that restrictions on the freedom to provide services 
cover the requirements applicable to access to service activities or to the exercise 
thereof and not those applicable to goods as such, it held that the installation of 
wind turbines concerns the activity of producing a product, namely electricity, 
which cannot be regarded, in itself, as a service. The Court added, in paragraph 59 
of that judgment, that it is irrelevant, for those purposes, that the activity of 
generating electricity was accompanied by the provision of network regulation 
services and energy price security services, since those services are ancillary to 
the principal activity of generating electricity. 
14 The Constitutional Court refers, in the second place, to certain sources of EU law 
which confirm such a classification. In particular, Article 2 of Council Directive 
85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and 
administrative provisions of the Member States concerning liability for defective 
products, which includes electricity among those products. 
In addition, electricity is classified as tangible property both in Article 15 of 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax – in which electricity is treated as tangible property – and 
Annex I, Code 09310000-5, to Commission Regulation (EC) No 213/2008 of 
28 November 2007 amending Regulation (EC) No 2195/2002 of the European 
Parliament and of the Council on the Common Procurement Vocabulary (CPV) 
and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of 
the Council on public procurement procedures, as regards the revision of the CPV. 
In addition, EU law provided for a regime based on the need to liberalise and 
separate ownership of energy generation activities from the ownership of activities 
related to the provision of services such as the operation of transmission grids, 
storage, distribution and other ancillary services (so-called ‘unbundling’), first in 
Articles 14 and 15 of Directive 96/92/EC, then in Article 10 of Directive 
2003/54/EC and, most recently, in Articles 35 and 43 of Directive (EU) 
2019/944/EU of the European Parliament and of the Council of 5 June 2019 on 
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common rules for the internal market in electricity that amends Directive 
2012/27/EU. 
Unbundling was implemented in Italy by requiring an undertaking formerly 
holding a monopoly to separate, in terms of organisation and decision-making, 
ownership of the energy production activity from that of transmission and 
distribution of energy, on the one hand, and sales activities, on the other, in the 
case of undertakings serving at least one hundred thousand final customers. 
Last, Article 17(1)(b) of the Services Directive excludes from its scope services of 
general economic interest which are provided in the energy sector covered ‘by 
Directive 2003/54/EC’. 
15 In that context, it appears that small-scale diversion plants are engaged in the 
generation of electricity, which is mainly (or exclusively) aimed at self-
consumption and, to a lesser extent, at the sale of electricity. 
16 However, the Constitutional Court notes that doubts remain, since, inter alia, 
Annex I to Regulation (EC) No 213/2008 regards the operation of a power plant 
as a ‘service’ (under code 65410000-0). 
17 Consequently, for the purposes of the ruling in the main proceedings, the 
Constitutional Court takes the view that the Court must, as a preliminary point, 
clarify whether the activity of energy production at issue is to be classified as the 
production of a good or the supply of a service. 
18 By the second question, referred only in the event that the Court classifies the 
activity of energy production as the supply of a service, the referring court asks 
whether Article 12(1) of the Services Directive must be interpreted as meaning 
that the reference to the condition of ‘scarcity of … natural resources’ contained 
therein precludes legislation of a Member State which is based on – as an abstract 
and general criterion for determining whether or not diversion plants are capable 
of causing water scarcity – the difference between large and small-scale plants 
(which produce energy with an annual average nominal power exceeding 3000 
kW and an annual average nominal power inferior or equal to 3000 kW, 
respectively) thereby excluding, in the event of extension of the concession, 
small-scale diversion concessions from the selection procedure. 
19 In that regard, the Constitutional Court recalls that the Court of Justice, referring 
to concessions for the occupation of State-owned maritime property (‘beach 
concessions’), has recognised that the Member States have a certain degree of 
latitude as to the choice of criteria for assessing the scarcity of natural resources. 
That degree of latitude may lead them to give precedence to an abstract and 
general assessment that is valid for the entire national territory, but also, 
conversely, to favour a case-by-case approach (judgment of 20 April 2023, 
Autorità garante della concorrenza e del mercato (C-348/22, EU:C:2023:301, 
point 46)). 
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20 The Italian legislature regulated large-scale diversions in accordance with the 
principles of transparency, non-discrimination and competitiveness, applicable not 
only to the award of new concessions, but also to the phase following their expiry 
(Article 12 of Legislative Decree No 79 of 1999, as amended). Such plants require 
infrastructures, such as dams and reservoirs, the environmental impact of which is 
such as to limit the building of additional hydroelectric plants. 
21 By contrast, small-scale diversions normally use facilities with a low 
environmental impact and of a smaller size. For example, in order to supply a 
small-scale diversion plant, turbines are used for the most part, which operate not 
only watercourses but also pre-existing tanks, irrigated channels or drinking 
supply systems. 
22 By its third question, referred for a preliminary ruling in the event that the Court, 
in answer to the second question, considers that it is essential to assess the 
condition of scarcity of natural resources on a case-by-case basis, the referring 
court asks whether Article 12(2) of the Services Directive, in so far as it provides 
that ‘in the cases referred to in paragraph 1, authorisation shall be given for an 
appropriate limited period and may not provide for the automatic renewal 
procedure or grant any other benefits to the outgoing provider’, precludes an 
extension of the duration of the concession in order to allow the concessionaire to 
make full use of certain incentives, up to the maximum period of thirty years 
prescribed for a concession of a small-scale diversion. 
23 In that regard, the Court has stated that that provision precludes legislation ‘in so 
far as it provides for statutory extension of the date of termination of 
authorisations’ in so far as ‘it amounts to automatic renewal of those concessions, 
which is expressly excluded by Article 12(2) of Directive 2006/123’ (judgment of 
14 July 2016, Promoimpresa and Others (C-458/14 and C-67/15, EU:C:2016:558, 
paragraph 50)). In addition, ‘the automatic renewal of authorisations … does not 
allow a selection procedure to be organised as described in paragraph 49 above’ 
(Ibid., paragraph 51), that is to say, an impartial and transparent procedure. 
24 In the light of that information, the Constitutional Court has doubts as to whether 
the extension provided for in the contested regional law constitutes an advantage 
for the service provider within the meaning of Article 12(2) of the Services 
Directive, since that directive merely aligns the duration of the concession with 
that necessary in order to benefit fully from the incentives granted for the 
generation of energy from renewable sources, and is, moreover, limited to the 
maximum period which can, from the outset, be awarded, under national 
legislation, to a concession of a small-scale diversion, equal to thirty years (which 
is however a relatively limited period compared with that provided for by other 
Member States, such as that of 75 years in the case of Spain, France or Portugal, 
or of 90 years, in the case of Austria).