1. New legislation
D.L. Simplification - Conversion into law - Law no. 12 of 11 February 2019
Law no. 12 of 11 February 2019 was published in the Official Gazette, entitled "Conversion into law, with amendments, of Decree Law no. 135 of 14 December 2018, containing urgent provisions on support and simplification for businesses and public administration" (Law Decree Simplification).
Certificati Bianchi - Published quantitative savings obligations for 2019 - GSE Communication
The GSE has communicated that ARERA has sent the Ministry of Economic Development and the GSE the data relating to the obligations of primary energy savings for distributors of electricity and natural gas for the year of obligation 2019, pursuant to Article 4, paragraph 9, of the Ministerial Decree 11 January 2017 (Determines 29 January 2019 1/2019 - DMRT).
Photovoltaic plants - The production and sale of photovoltaic energy produces agricultural income up to a limit of 260,000 kWh - Clarification of the Revenue Agency
In response to a question posed by an agricultural company, the Revenue Agency, in its reply no. 33 of 12 February 2019, provided clarification on the correct taxation of energy produced by photovoltaic plants.
In particular, on the basis of Article 1, paragraph 910, of Law No. 208/2015 (which replaced Article 1, paragraph 423 of Law No. 266/2005), according to which "the production and sale of electricity and heat from [...] photovoltaic plants, up to 260,000 kWh per year, as well as fuels and chemical products of agro-forestry origin coming mainly from the fund, carried out by farmers, constitute connected activities within the meaning of Article 2135, third paragraph, of the Civil Code and are considered to produce agricultural income".
The production and sale of energy from photovoltaic plants produces agricultural income up to a limit of 260,000 kWh, while the production and sale of energy in excess of that limit gives rise to business income.
Biomethane and advanced biofuels - First rankings for incentives published - GSE Communication
The GSE has published the first rankings for incentives for advanced biomethane (2019) and advanced biofuels other than biomethane (2018 and 2019). The rankings contain the list of qualified plants in operation with evidence of plants that are in a useful position for access to the incentives provided for in Articles 6 and 7 of Decree No. 2 March 2018, based on the relative "estimate of the maximum annual quantity that can be retired".
Conto Energia - New functionalities of the Portal - Section Management of plant components and RAEE quotas - GSE communication
The GSE has announced that the new section "Management of plant components and RAEE quotas" is online in the FTV-SR Portal aimed at improving the management of information relating to the main components of photovoltaic plants with incentives. This section helps the owners of photovoltaic plants to prepare communications for maintenance and technological modernization.
The new functionalities allow the visualization of the guarantee shares retained by the GSE, intended to ensure the coverage of the costs of management of waste electrical and electronic equipment (RAEE) from photovoltaic panels.
Renewables - Security deposit to guarantee the execution of decommissioning - Specifications - Umbria Region
With Deliberation no. 52 of 21 January 2019 the Umbria Region has provided some specifications on security to ensure the execution of the decommissioning works relating to plants for the production of energy from renewable sources, to complement the provisions of Regional Regulation n. 7/2011.
The clarifications are aimed at clarifying the regulatory framework, facilitating the cost-effectiveness of administrative action, as well as contributing to the simplification of formal requirements for companies.
2. New case law
Photovoltaic plants - Concession fees and royalties are not due - TAR Lazio
The Lazio Regional Administrative Court has established that, for the construction of a photovoltaic park, a municipality may not impose the payment of royalties or the construction contribution and urbanization charges referred to in the Consolidated Building Act (Presidential Decree 380/2001).
In the present case, the applicant company had challenged, with its application, the acts by which the Municipality had: i. ordered the suspension of work on the construction of a new photovoltaic plant for the production of electricity from renewable sources; ii. made the start of work subject to the signing of an agreement prepared by the Administration and approved by the City Council; iii. demanded payment of the construction fee as well as an annual royalty in the amount of 1.20% of the economic income of the plant.
In the opinion of the Regional Administrative Court, if it is true that "the case in question falls in principle within the scope of building regulations, which are general regulations of the territory and apply even in the presence of the procedure for the issue of a single authorisation such as that referred to in Article 12 of Legislative Decree no. 387/2003", it is also true that it is necessary to consider "the exemption from the construction fee provided for in Article 17 of the same Consolidated Act. (and also referred to in article 123 below)".
The Regional Administrative Court also quotes Constitutional Court ruling no. 383 of 2005, which, "in deeming the exclusion of plants powered by renewable sources to be illegitimate, must therefore be understood as meaning that compensatory measures of an environmental and territorial nature may be imposed, but not merely as a financial measure, and provided that all the other conditions indicated in the cited art. 1, paragraph four, of Law no. 239 of 2004 are met (State Council, section III, 14 October 2008 no. 2849/08)".
According to the latter decision, the compensatory measures applicable by local authorities must be 'concrete and realistic, that is to say, determined taking into account the specific characteristics of the wind farm and its specific environmental and territorial impact', and it cannot legitimately give rise to compensatory measures, automatically, the mere fact that a wind farm is built in the municipality, regardless of any consideration of its characteristics and size and its impact on the environment. And such compensatory measures, in any case, are the responsibility of the State or the Region, at the conference of services for the granting of the single authorization, and may not be unilaterally established by a single municipality.
Moreover, the conclusions reached with reference to the construction contribution are also valid with reference to the royalties (even if no longer due in the present case, since the Municipality subsequently eliminated the annual royalty on the plant's) (TAR Lazio, Section II-Quater, Sentence no. 1595 of 7 February 2019).