With a recent pronouncement the Council of State intervenes on the question of the legitimacy of regional regulatory interventions, clarifying that the territorial bodies cannot impose further restrictive constraints than those already established by national legislation. The decision was issued following the appeal filed by Chiron Energy SPV 15 srl against the Umbria Region. Appeal in which the company contested the decision of the TAR for Umbria that had rejected its appeal against some regional provisions aimed at aggravating the authorization procedure for the installation of a new photovoltaic system, issued pursuant to a regional regulatory provision that introduced additional constraints and restrictions with respect to those established by national legislation.
The Case and the Decision of the Council of State
The specific case concerns an application for authorization to build a photovoltaic system in the municipality of Umbertide. The Umbria Region had declared the application “not admissible”, requesting additional documentation and introducing compliance with additional requirements not provided for by national legislation, such as “photovoltaic potential” and the stipulation of an agreement/obligatory deed.
The Council of State, overturning the TAR's decision, accepted the economic operator's appeal. In particular, the judgment states the following principles:
- the Regions cannot put up obstacles not foreseen by the state legislator to the installation of photovoltaic systems;
- the expiry of the 180-day deadline from the date of entry into force of Legislative Decree 199/2021 for the adoption by the Ministry of the decrees aimed at dictating “homogeneous principles and criteria” for the identification of surfaces and areas suitable and unsuitable for the installation of systems powered by renewable sources does not legitimise the Regions to introduce autonomous regulation on the point, such as “necessary integration” of the system, in the meantime the transitional regime provided for by art. 20, paragraph 8, of Legislative Decree 199/2021 must be applied;
- regional intervention, through the regulatory instrument, is permitted only after the establishment, by ministerial decree, of the “homogeneous principles and criteria” for the identification of surfaces and areas suitable and unsuitable for the installation of the systems themselves, for the sole purpose of ensuring uniform application of energy regulations;
- the substantial liberalization of the activity of installing photovoltaic systems in industrial areas, brought about by art. 22, must be recognized.bis, of Legislative Decree 199/2021;
- the coherence of this interpretation of the national regulatory framework on the procedures for the construction of new RES plants with European law and decarbonisation objectives.
Key Points of the Judgment
- Prohibition of procedural aggravations: the Regions cannot add further procedural requirements to those provided for by state legislation.
- Liberalization of the installation of new photovoltaic systems in industrial areas: recognition of the substantial value of art. 22-bis of Legislative Decree no. 199/2021, which qualifies the installation of photovoltaic systems in industrial areas as ordinary maintenance activities, not subject to authorizations.
- Limitation of regional autonomy: it is reiterated that the Regions cannot autonomously identify independent restrictive criteria for the establishment of new plants and create preclusions that inhibit a priori the construction of new plants.
- Compliance with EU law: the ruling underlines how important it is for the Regions to move in harmony with European law and with the decarbonisation objectives set.
If, from a formal point of view, the issue addressed by the Council of State with the ruling examined here can be considered overcome by the adoption of the so-called "Suitable Areas" decree of 21 June 2024, which came into force on the following 3 July (containing the “Regulations for the identification of surfaces and areas suitable for the installation of renewable energy systems”), from a substantial point of view, unfortunately the same cannot be said.
The decree in fact delegates to the Regions the task of identifying, within 180 days of its entry into force, the areas where it is possible to build new RES plants and those where it is prohibited, establishing criteria that are anything but clear and uniform. The impression one gets, reading the ministerial decree is that at the state level it was intended to leave the Regions broad autonomy and discretion in identifying suitable and non-suitable areas, thus implementing a policy that (at least at the central government level) does not seem to want to pursue with the determination and firmness expected by economic operators the Euro-unitary objectives most recently reaffirmed by the European Commission with recommendations no. 822 of 18 May 2022 and no. 1343 of 13 May 2024 by virtue of which the “Member States should limit to the minimum necessary the exclusion zones in which renewable energy cannot be developed.”.
The absence of a clear and univocal state regulatory framework therefore leads to the belief that issues such as the one addressed by the Council of State with the ruling under examination may recur in the future and that administrative litigation regarding authorization procedures for plants powered by renewable sources is inevitably destined to grow in any case in the event of regional legislative interventions that do not comply with Community principles and objectives or, in any case, aim to further aggravate the conditions for the feasibility of this type of plant.
Content by the Lawyer. Giuseppina Incorvaia
