Agrenergy Srl and Fusignano Due Srl v Ministero dello Sviluppo Economico.
Date: 2019-07-11
27


The Court has held that, as is apparent from the very wording of Article 3(3)(a) of Directive 2009/28 and, in particular, the word ‘may’, Member States are not under any obligation, for the purposes of promoting the use of energy produced using renewable sources, to adopt support schemes. They therefore have discretion as to the measures they consider appropriate for the purpose of reaching the mandatory national overall targets set in Article 3(1) and (2) of the directive, read in conjunction with Annex I thereto (see, to that effect, judgment of 20 September 2017, Elecdey Carcelen and Others, C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraphs 31 and 32). That discretion means that Member States are free to adopt, alter of withdraw support schemes, provided that, inter alia, those targets are met.
28


Moreover, it should be noted that, as is apparent from settled case-law, where Member States adopt, in that way, measures by which they implement EU law, they are required to respect the general principles of that law, which include the principle of legal certainty (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 125 and the case-law cited).
29


It is also the Court’s settled case-law that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires that rules of law be clear and precise and that the application of those rules be predictable for individuals, especially where they may have negative consequences for individuals and undertakings (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 77).
30


In particular, that principle requires that legislation enables those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons are able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see, inter alia, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 128 and the case-law cited).
31


With regard to the principle of the protection of legitimate expectations, it is the Court’s established case-law that that principle may be relied on by any economic operator on whose part national authorities have created reasonable expectations. However, where a prudent and circumspect economic operator could have foreseen the adoption of a measure likely to affect his interests, he cannot plead that principle if the measure is adopted. Moreover, economic operators cannot justifiably claim a legitimate expectation that an existing situation which may be altered by the national authorities in the exercise of their discretionary power will be maintained (judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraph 53 and the case-law cited).
32


Furthermore, as the case concerns a scheme introduced by national legislation, the procedures for dissemination of information normally used by the Member State which adopted it and the circumstances of the case must be taken into account when the referring court makes an overall and specific assessment of whether the legitimate expectations of the economic operators covered by that legislation were duly respected (judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraph 57).
33


It is for the referring court to determine whether national legislation such as that at issue in the main proceedings is consistent with those principles, as the Court, when giving a preliminary ruling under Article 267 TFEU, has jurisdiction only to provide the national court with all the criteria for the interpretation of EU law which may enable it to determine the issue of compatibility (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 126 and the case-law cited).
34


The referring court may take into account, for that purpose, all relevant factors which are apparent from the terms, objectives or general scheme of the legislation concerned (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 81 and the case-law cited).
44


Moreover, those provisions were of such a kind as to indicate at once to prudent and circumspect economic operators that the support scheme applicable to solar photovoltaic plants might be altered, or even withdrawn, by the national authorities in order to take account of changes in certain circumstances and that, consequently, it could not be claimed with any certainty, on the basis of those legislative provisions, that such a scheme would be maintained for a given period.