62023CJ0514_RES
Case C‑514/23
Tiberis Holding Srl
v
Ministero dello Sviluppo Economico
and
Gestore dei servizi energetici (GSE) SpA
and
Ministero dell’Ambiente e della Sicurezza energetica
(Request for a preliminary ruling from the Consiglio di Stato)
Judgment of the Court (Fourth Chamber) of 1 August 2025
(Reference for a preliminary ruling – Environment – Promotion of the use of energy from renewable sources – Directive 2009/28/EC – Article 3 – Directive (EU) 2018/2001 – Article 4 – National incentives for the production of energy from renewable sources – Aid scheme – State aid – Article 108 TFEU – Exclusive competence of the European Commission to rule on the compatibility of aid measures with the internal market – Commission decision finding such an aid scheme compatible with the internal market – Action brought before a national court by a beneficiary of aid under that scheme challenging a modality of that scheme which is inextricably linked to its functioning – Inadmissibility, in the context of that action, of a request for a preliminary ruling concerning the interpretation of those provisions of those directives)
Questions referred for a preliminary ruling – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context – Statement of the reasons justifying the need for an answer to the questions referred for a preliminary ruling
(Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 94)
(see paragraphs 30, 31)
Questions referred for a preliminary ruling – Admissibility – Limits – Questions seeking to ascertain whether an incentive mechanism for the production of energy from renewable sources is compatible with Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001 – Mechanism inextricably linked to the functioning of an aid scheme that has been declared compatible with the internal market by a Commission decision – Exclusive competence of the Commission to rule on the compatibility of that aid scheme with the internal market – Lack of jurisdiction of the referring court to assess whether the mechanism at issue complies with those provisions – Interpretation sought not necessary for the resolution of the dispute in the main proceedings – Inadmissibility
(Arts 107(3)(c), 108(3) and 267 TFEU; Council Regulation 2015/1589, Art. 1(b)(ii) and (c); European Parliament and Council Directives 2009/28, Art. 3, and 2018/2001, Art. 4)
(see paragraphs 33-63)
Résumé
The Court declares inadmissible the request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy) seeking an interpretation of provisions of Directive 2009/28 (
1
) and Directive 2018/2001, (
2
) on the ground that the clarification sought is irrelevant for the purposes of resolving the dispute in the main proceedings. Indeed, that dispute concerns a challenge to a modality of implementation of a State aid scheme that is inextricably linked to the operation of that scheme even though the compatibility of that scheme with the internal market has been established by means of a Commission decision. The referring court cannot assess that compatibility in the light of the provisions of the directives to which the question referred relates without encroaching on the Commission’s exclusive competence to assess the compatibility of an aid scheme with the internal market.
By its decision of 28 April 2016, (
3
) the Commission declared, pursuant to Article 107(3)(c) TFEU, an aid scheme notified by the Italian Republic and intended to promote the production of electricity from renewable energy sources other than photovoltaic energy to be compatible with the internal market.
Following that decision, the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) adopted the decree of 23 June 2016, (
4
) which introduced a system of incentives for the production of electricity subject to various access procedures, including entry in the appropriate register, determined according to the energy source and type of installation, and participation in descending auction procedures.
To that end, producers who sell energy on the free market and who benefit from the incentive by virtue of their entry in the register are required to reimburse Gestore dei servizi energetici (GSE) SpA the difference between the market price and the incentive tariff guaranteed by GSE where the former is higher than the latter (‘the negative incentive mechanism’). That mechanism does not apply to producers that are eligible for the incentive by participating in an auction procedure.
Tiberis Holding Srl (‘Tiberis’) operates a hydroelectric power plant on the River Tiber. In September 2017, GSE granted its application to benefit from the abovementioned incentive scheme by virtue of its entry in a register. From 2017 to 2021, Tiberis received a total of EUR 4044 340.75 in aid under that scheme. However, in 2022, GSE demanded repayment of part of the aid received, in the amount of EUR 1224 210.86.
Tiberis challenged the requests for repayment and the contractual and regulatory provisions on which they were based before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), alleging infringement of Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001. That action was dismissed as unfounded. Tiberis then brought an action against that judgment before the Conseil d’État (Council of State), the referring court, on the same grounds.
The referring court considers that the decree of 23 June 2016, in so far as it provides for a negative incentive mechanism, appears to fail to comply with the cumulative criteria laid down in Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001 for the purpose of ensuring that incentives are lawful. In those circumstances, it asks the Court whether those provisions preclude national legislation that provides for such a mechanism, which applies only to producers benefiting from an incentive as a result of their entry in the relevant register and does not apply to those who access the incentive by participating in an auction procedure.
Findings of the Court
The Court notes, first of all, that it is in principle bound to give a preliminary ruling on questions concerning the interpretation of EU law, but that it must examine the circumstances in which cases are referred to it by a national court, in order to assess whether it has jurisdiction or whether the request submitted to it is admissible.
In the present case, the action in the main proceedings concerns a challenge to the lawfulness, in the light of Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001, of the negative incentive mechanism provided for by the decree of 23 June 2016, which constitutes a modality of the application of the scheme for the promotion of electricity produced from renewable sources other than photovoltaic energy, established by that decree. However, that scheme constitutes a State aid scheme which the Italian authorities notified to the Commission and which the Commission declared compatible with the internal market by Decision SA.43756.
Consequently, the Court considers that it must determine whether a national court before which such an action has been brought by a beneficiary of that scheme may assess that action in the light of the provisions of Article 3 of Directive 2009/28 and Article 4 of Directive 2018/2001.
In that regard it recalls that, within the system established by the FEU Treaty for monitoring State aid, the national courts and the Commission fulfil complementary but separate roles. In particular, national courts ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition on putting measures into effect until the conclusion of the Commission’s preliminary examination procedure referred to in Article 108(3) TFEU. By contrast, they do not have jurisdiction to give a ruling on whether aid measures or a State aid scheme are compatible with the internal market, since that assessment falls within the exclusive competence of the Commission, subject to review by the EU judicature.
It also notes that the preliminary examination procedure provided for in Article 108 TFEU must never produce a result which is contrary to the specific provisions of the FEU Treaty. Accordingly, State aid which, as such or by reason of some modalities thereof, contravenes provisions or general principles of EU law cannot be declared compatible with the internal market.
Where the modalities of an aid measure or an aid scheme are so indissolubly linked to the object of the aid or the scheme, or to their functioning, that it is impossible to assess them separately, their effect on the compatibility or incompatibility of the aid or scheme viewed as a whole must necessarily be assessed by means of the procedure prescribed in Article 108 TFEU. The assessment of such modalities therefore falls outside the jurisdiction of the national courts.
The Court also recalls that the application of EU rules on State aid is based on an obligation of sincere cooperation between, on the one hand, the national courts and, on the other hand, the Commission and the Courts of the European Union, in the context of which each acts on the basis of the role assigned to it by the FEU Treaty. Therefore, national courts must, in particular, refrain from taking decisions which run counter to a decision adopted by the Commission, pursuant to its exclusive jurisdiction, on the compatibility of State aid with the internal market.
In the present case, the negative incentive mechanism at issue in the main proceedings ultimately determines the amount of aid granted individually to economic operators benefiting from the aid scheme in question by virtue of their entry in a register. It was thus that mechanism which enabled the Commission to conclude that, precisely for projects entered in a register, that aid scheme satisfied the condition of proportionality. Accordingly, that mechanism constitutes a modality that is inextricably linked to the functioning of the aid scheme that is the subject of Decision SA.43756 and cannot be assessed in isolation from that scheme.
It follows that, if a national court were allowed, in turn, to rule on the lawfulness of that negative incentive mechanism in the light of Article 3 of Directive 2009/28, it could substitute its own assessment for that made by the Commission in Decision SA.43756. The court concerned would thus encroach on that institution’s exclusive competences as regards the assessment of the compatibility of State aid with the internal market and would breach its duty of sincere cooperation.
Furthermore, the Commission could not declare the aid scheme at issue compatible with the internal market, pursuant to Article 107(3)(c) TFEU, without first ensuring that it does not infringe other relevant provisions or general principles of EU law.
The fact that Decision SA.43756 does not expressly mention Directive 2009/28, in particular Article 3 thereof, mentioned in the question referred, is irrelevant in that regard, since the Commission necessarily took that directive into account when it assessed the compatibility of the aid scheme at issue with the internal market.
Indeed, the notified scheme, which corresponds to the scheme at issue in the main proceedings, was assessed in particular in the light of the Guidelines on State aid for environmental protection and energy 2014-2020. (
5
) Those guidelines, to which Decision SA.43756 refers, note that the European Union has set itself ambitious climate change and energy sustainability targets, that several EU legislative acts, such as Directive 2009/28, already support the achievement of those objectives, and that State aid can be an appropriate instrument to contribute to the achievement of the EU objectives.
As regards the assessment of the compliance of the negative incentive mechanism with Article 4 of Directive 2018/2001, the Court notes that that directive admittedly was adopted subsequently to Decision SA.43756, with the result that it cannot be considered that, by that decision, the Commission necessarily assessed that mechanism by ensuring that it does not infringe that provision.
However, since the aid scheme established by the decree of 23 June 2016 was authorised by the Commission under that decision, it comes within the concept of ‘existing aid’ within the meaning of Article 1(b)(ii) of Regulation 2015/1589. (
6
)
Article 108(1) TFEU confers competence on the Commission to keep existing aid under constant review, in cooperation with the Member States. That review may prompt the Commission to propose to the Member State concerned the appropriate measures required by the progressive development or by the functioning of the internal market and, if necessary, to decide to abolish or alter aid which it considers to be incompatible with the internal market. In the context of that review, the legal situation does not change until such time as the Member State concerned accepts proposals for appropriate measures or the Commission adopts a final decision.
Consequently, the assessment of the compatibility of an existing aid scheme, such as that at issue, with the internal market continues to come within the exclusive competence of the Commission, subject to review by the EU judicature.
Moreover, any amendment to the negative incentive mechanism at issue in the main proceedings would, as a result of any increase in the aid intensity which might result from it, be liable to affect the assessment of the compatibility of the aid scheme at issue with the internal market. Indeed, in the absence of that mechanism, which is inextricably linked to the functioning of that scheme, it is possible that the Commission would have considered that that aid scheme was not proportionate and, therefore, not compatible with the internal market. Such an amendment would therefore amount to an alteration to existing aid constituting ‘new aid’, within the meaning of Article 1(c) of Regulation 2015/1589, subject to the notification obligation laid down in Article 108(3) TFEU, the compatibility of which with the internal market falls within the exclusive competence of the Commission.
That also applies in the event that the amendment to the incentive mechanism is not made erga omnes, but solely for the benefit of a particular beneficiary, such as Tiberis, since an aid scheme implemented at an individual level which does not correspond to the aid scheme notified to and authorised by the Commission could also be considered to be ‘new aid’. The establishment as such of State aid cannot result from a judicial decision but entails a decision as to the appropriate course of action, which falls outside the scope of a court’s powers and obligations.
In the light of those considerations, the Court concludes that EU law precludes the referring court from assessing whether the negative incentive mechanism at issue complies with the provisions of Article 3 of Directive 2009/28 or Article 4 of Directive 2018/2001. Since the interpretation sought is therefore not relevant to the resolution of the dispute in the main proceedings, the Court declares the preliminary ruling inadmissible.
(
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 (OJ 2009 L 140, p. 16).
(
2
)	Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82).
(
3
)	Decision C(2016) 2726 final of 28 April 2016 on State Aid SA.43756 (2015/N) – Italy, Support to electricity from renewable sources in Italy (‘Decision SA.43756’).
(
4
)	Decreto del Ministero dello Sviluppo Economico – Incentivazione dell’energia elettrica prodotta da fonti rinnovabili diverse dal fotovoltaico (Decree of the Ministry of Economic Development on the promotion of electricity produced from renewable sources other than photovoltaic energy), of 23 June 2016 (GURI No 150 of 29 June 2016, p. 8; ‘the decree of 23 June 2016’).
(
5
)	Communication from the Commission – Guidelines on State aid for environmental protection and energy 2014-2020 (OJ 2014 C 200, p. 1).
(
6
)	Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).