Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others v Ministero dello Sviluppo Economico and Gestore dei servizi energetici (GSE) SpA.
Date: 2021-04-15
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 purpose of promoting the use of energy produced using renewable sources, to adopt support schemes. They 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 that directive, read in conjunction with Annex I thereto. That discretion means that Member States are free to adopt, alter or withdraw support schemes, provided that, inter alia, those targets are met (judgment of 11 July 2019, Agrenergy and Fusignano Due, C‑180/18, C‑286/18 and C‑287/18, EU:C:2019:605, paragraph 27).
Moreover, it should be emphasised that, as can be seen  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 principles of legal certainty and of the protection of legitimate expectations (see, to that effect, judgment of 11 July 2019, Agrenergy and Fusignano Due, C‑180/18, C‑286/18 and C‑287/18, EU:C:2019:605, paragraph 28 and the case-law cited).
As regards, in the second place, Articles 16 and 17 of the Charter, it should be noted that, as is apparent from their respective titles and wording, Legislative Decree No 387/2003 transposes Directive 2001/77 and Legislative Decree No 28/2011 transposes into Italian law Directive 2009/28, which repealed that first directive. It follows that the provisions of those legislative decrees are implementing EU law within the meaning of Article 51(1) of the Charter, so that that charter is applicable to the disputes in the main proceedings. Consequently, the level of protection of fundamental rights provided for in the Charter must be achieved in such a transposition, irrespective of the Member States’ discretion in transposing the directive (see, to that effect, judgment of 29 July 2019, Pelham and Others, C‑476/17, EU:C:2019:624, paragraph 79).
It is apparent from the Court’s case-law that the protection afforded by that article does not concern mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity, but concerns rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his or her own benefit (judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 34, and of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraph 69).
However, in the light of the case-law cited in paragraph 33 of the present judgment, it is also necessary, for the right to receive incentives such as those at issue in the main proceedings to be eligible for  the protection offered by Article 17 of the Charter, to examine whether that right constitutes an established legal position within the meaning of that case-law (see, by analogy, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 36).
In accordance with the Court’s settled case-law, 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. 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 (judgment of 11 July 2019, Agrenergy and Fusignano Due, C‑180/18, C‑286/18 and C‑287/18, EU:C:2019:605, paragraphs 29 and 30 and the case-law cited).
Also in accordance with the Court’s settled case-law, the principle of the protection of legitimate expectations 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 or her interests, he or she 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 11 July 2019, Agrenergy and Fusignano Due, C‑180/18, C‑286/18 and C‑287/18, EU:C:2019:605, paragraph 31 and the case-law cited).
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 of Justice, 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. The referring court may take into account, for that purpose, all relevant factors which are apparent in particular from the terms, objectives or general scheme of the legislation concerned (see, in particular, judgment of 11 July 2019, Agrenergy and Fusignano Due, C‑180/18, C‑286/18 and C‑287/18, EU:C:2019:605, paragraphs 33 and 34 and the case-law cited).
As regards, next, Legislative Decree No 28/2011, which repealed Legislative Decree No 387/2003, the Court of Justice has previously made, in essence, the same finding, by ruling, in paragraph 44 of the judgment of 11 July 2019, Agrenergy and Fusignano Due (C‑180/18, C‑286/18 and C‑287/18, EU:C:2019:605), that the provisions of national law adopted pursuant to that decree were of such a kind as to indicate at once to prudent and circumspect economic operators that the support scheme applicable to solar photovoltaic installations might be altered, or even withdrawn, by the national authorities in order to take account of changes in certain circumstances.
In that regard, it is apparent from the Court’s case-law that the protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42 and the case-law cited).
Freedom of contract, for the purposes of Article 16 of the Charter, concerns, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service (judgment of 20 December 2017, Polkomtel, C‑277/16, EU:C:2017:989, paragraph 50).
Furthermore, the freedom to conduct a business enshrined in the latter provision also includes the right for any business to be able freely to use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it (judgments of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 49, and of 30 June 2016, Lidl, C‑134/15, EU:C:2016:498, paragraph 27).
A restriction of that right is, inter alia, the obligation to take measures which may represent  a significant cost for an economic operator, have a considerable impact on the organisation of his or her activities, or require difficult and complex technical solutions (see, to that effect, judgment of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 50).