For the first time the Administrative Tribunal has accepted the use of the injunction relief for recovery of feed-in-tariffs paid on the basis of the production of energy from renewable sources. At the present date, there are two cases where such instrument has been adopted in two disputes in which GSE S.p.A. was party.
In a first case, concerning the breach by the GSE of the payment of Feed-in-tariffs due to a photovoltaic operator, the TAR Lazio, with the sentence no. 149/2016 of 5 February 2016, admitted the request for payment of the company and consequently ordered GSE payment of the amount due, plus interest up until settlement and costs.
In the second case, however, it was the GSE to initiating the procedure of injunction relief in order to recover the feed-in-tariffs overpaid to a municipality. Also in this case the Lazio Regional Administrative Tribunal ordered the municipality to pay the amount due, plus default interest and costs.
The cases outlined above seem to confirm that for the recovery of feed-in-tariffs not received or wrongly paid, the Administrative Tribunal has exclusive jurisdiction. The action for the issuance of the injunction order is, in fact, admitted in the administrative process only if the subject-matter falls within one of the matters assigned to the administrative judge. Indeed, the Lazio Regional Administrative Tribunal, while accepting the request made by GSE, expressly stated that “such a request falls within the exclusive jurisdiction […]”, under which they are under the exclusive jurisdiction of the administrative court disputes, including those damages, concerning the procedures and measures of public administration related to energy production. That said, the issue is evolving, and it is possible that in the coming judgments the upper level courts will accept the lack of jurisdiction of the Administrative Tribunal.
With reference to the possible opposition, finally, it should be noted that, given the specific nature of the credit sought, in the opposition proceedings against an injunction order for the payment or restitution of feed-in-tariffs, the defendant has no right to challenge the measure by which the GSE has canceled and / or withdrawn the feed-in-tariffs, unless such a measure has been challenged within 60 days from its communication to the operator.