On 2 December 2015 has been published in the Official Gazette of Italian Republic the order of T.A.R. Lazio that – in the month of July 2015 – had suspended all the litigations pending and had referred to the Italian Constitutional Court the issue of constitutional legitimacy of art. 26, paragraph 3, D.L. No. 91/2014, better known as “Spalma Incentivi”, which unilaterally reduced the feed-in-tariff granted to the operators of the photovoltaics[1].

The T.A.R. Lazio, after numerous litigations promoted in this context, has referred to the Italian Constitutional Court the decision on the constitutional legitimacy of such rule. In fact many producers of electrical energy from solar photovoltaic source, which had relied upon incentives granted by the national legislator, have afterward suffered a unilateral decrease of such incentives by reason of the application of the art. 26, paragraph 3, D.L. No. 91/2014.

Specifically, such incentives (in the form of a feed-in-tariff), provided by five different ministerial decrees containing the so-called “Conto Energia”, consist in a private law agreement (Convenzione) executed with a public institution as the GSE. The Convenzione recognizes to the producers a given and a predetermined amount of monetary incentive for each Kwh produced by the PV Plants.

In all cases provided by cited art. 26 paragraph 3, the incentive scheme granted to the producers is, on the opposite, worse than what the Convenzione with the GSE.

The provision – which shall be subject to Constitutional Judges’ ruling – provides that from 1 January 2015, all the incentives granted to photovoltaic plants with a nominal peak power exceeding 200 Kwp shall be reshaped on the basis of three options: (a) the elongation of the incentive period to 24 years (instead of 20 years), with simultaneous direct reduction of the incentives; (b) the reshaping of the feed-in-tariff with a reduced incentive during a first period and an incentive increased in the same size in the second period; (c) a single cutting of the rate up to 8 % depending on the peak power of the PV Plant.

To the belief of operators, the reduction of incentives is unlawful for several reasons: because it has been applied to investments already carried out (which have fixed and constant costs, such as the cost of authorizations, the construction costs and the costs of lands), because it infringes the freedom of enterprise protected by the art. 41 of the Italian Constitution, and because is discriminatory as compared to other operators of PV plants with power lower than 200 Kwp that – on equal terms – did not see a cut in their incentives.

Waiting to know the date of the hearing in which the question of constitutional legitimacy will be decided, we outline that, should the Constitutional Court accept the arguments of the operators, “Spalma Incentivi” would be repealed with retroactive effect. This means that operators should be restored of all the incentives not paid. This will occur if the Court will decide to not apply a (new) legal principle already applied with the Court Judgment n. 10-2015, published in the “Official Gazette” on 12 February 2015, which enshrined the unconstitutionality of the so called “Robin Tax”. The ruling has, in fact, abolished the additional IRES and it has lowered the tax rate applicable to Energy operators to 27.5%, but with effects only starting from the day following that of its publication in the Official Gazette, without possibility of retroactivity of the rule. This peculiar decision of the Court has been adopted to guarantee compliance with the constitutional provision that imposes the balancing of the State accounts.