Prepared by Energy Team
The Law Decree 17 March 2020, no. 18, containing measures to enhance the National Health Service and economic support for families, workers and businesses connected to the epidemiological emergency from COVID-19 (the “Decree” or the “Cura Italia Decree“), introduces specific measures concerning both the pending administrative proceedings and the effects of the administrative acts in expiration.
The reference standard is Article 103 of the Decree, which, with regard to administrative procedures, initiated on the request of a party or ex officio, establishes the suspension, starting from 23 February 2020 until 15 April 2020, of all the peremptory, preparatory, final and executive terms. In this way, the Legislator, to face the COVID-19 emergency, suspended administrative procedures – with the exception of urgent cases – with the effect that the relative terms will resume from 16 April 2020. This suspension affects also on the activity of all private operators who have obtained authorizations or other types of administrative measures, containing specific prescriptions and/or obligations to do.
Although, in fact, the expression “executive term” is not generally used “in the regulatory language”, as noted in the Senate dossier no. 1766, concerning measures to enhance the National Health Service and economic support for families, workers and businesses connected to the epidemiological emergency by COVID-19, with this expression it would seem possible to refer also to the terms of provisional execution through activities remitted to private subjects. Think, for example, of the obligations envisaged by the single authorizations within which the private individual must build a plant powered by renewable energy or other energy infrastructure. In this way, the Legislator has therefore extended the effects deriving from the suspension of administrative procedures also to the activities of private individuals and not only, therefore, to those of public administrations.
In this context, it is clear that any – but probable – delays that could occur due to the suspension in question should not have consequences for the public administration or, even less, for the private sector.
With the Decree, the Legislator also invites public administrations to adopt any organizational measure suitable for ensuring the reasonable duration and speedy conclusion of the procedures, with priority for those to be considered urgent, also on the basis of motivated requests by the interested parties. The reference could be, for example, to the procedures for which the synchronous conferenze di servizi would be required, which can also be carried out via telematic methods, as provided for by Article 14-ter of the Law of 7 August 1990, no. 241 (the “Administrative Procedure Law“). However, in consideration of the difficulties that could be encountered at this particular moment, the Legislator provides for the extension or postponement of the terms for the configuration of the so called silenzio significativo (the silenzio significativo is formed when the law attributes a statement of will to the failure to pronounce of the public administration). In this regard, one of the hypotheses of silenzio significativo is undoubtedly that one provided for by Article 17-bis of Administrative Procedure Law, entitled “Silence of consent between public administrations and between public administrations and managers of public goods or services“. According to this rule, in the event that public administrations have to issue opinions, way-leaves or other kind of acts, on the basis of individual cases, they have 30 or 90 days to provide; in case of silence, the opinion is considered acquired (the so-called silenzio assenso).
In this context, it emerges that if on one hand the Legislator seems to want to allow, even if electronically, a continuation of the activities of public administrations – where possible and provided that it does not compromise the protection of the health of the affiliates – on the other hand it introduces an element of uncertainty – that is the extension of the term of expression of will in the form of silenzio significativo – which may however not allow the continuation of the activity of public administrations themselves. Taking into account the exceptional and unpredictable situation which the Country is facing, such rule, although for a short period of time, will entail a profound uncertainty for private operators. And this in relation, first of all, to the continuation of the ongoing proceedings and, then, to the regular continuation of the same procedures in the period between 23 February 2020 and 15 April 2020.
An example of these problems could be found in the communications that, in general, commercial and/or artisanal operators have to file with the so called Sportello Unico per le Attività Produttive (“SUAP”) in the event of suspension of the activity carried out. In this circumstance, there are already discordant behaviors from Municipality to Municipality. Actually, it can find, infact, both municipal administrations that invite these operators not to transmit any communication, precisely because of the suspension ordered by the Government, and municipal administrations that in any case advise the operators to carry out this fulfillment, as a potential proof document when the State should foresee aid and/or benefits of any kind, to compensate for the damage caused to the related activities by the spread of COVID-19.
Another example could be connected to the submission of the so called Comunicazione Inizio Lavori Asseverata (“CILA”) for the completion of interventions related to the construction and/or maintenance of plants powered by any kind of sources, for which the suspension in question may not apply since, technically, the CILA does not fall within the scope of the procedures administrative but represents a mere communication to be submitted by private individuals to the competent administration.
Given this, it is considered probable, again due to the continuous evolution of the social situation, that, unless we are faced with extremely urgent administrative procedures, the public administrations themselves take a precautionary attitude, waiting for the extension to expire before continuing to carry out an administrative procedure that could be characterized by many uncertainties. This, however, is already happening with reference to the procedures initiated by the public administration in order to apply administrative sanctions (including any forfeiture), in the event of failure by private individuals to respect the terms and/or deadlines to which they were bound.
As proof of the above, just note the recent provisions published on 16 March 2020 by the Gestore per i Servizi Energetici – GSE S.p.A.GSE S.p.A. (“GSE”) and by the Regulatory Authority for Energy, Networks and Environment (“ARERA”), which have provided for a suspension of administrative procedures (including sanctions) in the sectors of their competence.
These provisions allow, in particular for operators in the sector who must obtain a specific authorization or who, otherwise, must implement the provisions contained therein or, who must renew the authorizations already held, not having to suffer prejudicial consequences deriving from the spread of the epidemic and, consequently, the impossibility, both on their part and on the part of public administrations, of being able to carry out their activities regularly at this time.
It should be noted, however, that the suspension of the terms of the administrative procedures does not result in their cancellation; on the contrary, in calculating the terms, it must be considered both the period elapsed from the date of submission of the application or the communication initiating the procedure to that of the suspension, and the subsequent period that begins to run from the date on which the suspension itself ends (in this case, from 16 April 2020 provided that there will be no further extension).
For the purposes of calculating the relative terms, therefore, on the basis of the provision in question, the period for which the suspension is ordered is not taken into account, which runs from 23 February (or from the subsequent date on which the procedure was started) to 15 April 2020.
Notwithstanding the aforementioned uncertainties, however, these measures represent a lifesaver, aimed at protecting the activity that both public and private entities must provide within the scope of their interests and powers. A lifesaver that, in particular, is aimed to prevent further economic burdens, causing the lapse of administrative procedures not yet concluded, which, to date, inevitably suffer a slowdown.
In light of above, please note that on 24.03.2020, the GSE, in accordance with the Italian Ministry of Economic Development (the “MISE”), published the list of the extension ordered with reference to the procedures and related obligations of economic operators.
First of all, please note that no extension will be applied to the administrative procedures which the GSE will be able to positively conclude, on the basis of the documents already held.
For all the other cases, the list published by the GSE, together with the MISE, provides a detailed description of the extension periods arranged with regard to each type of procedure.
In particular, both the (a) deadline to submit requests for high-efficiency cogeneration (“CAR”), for the White Certificates for the CAR and for the Fuel mix disclosure and (b) the date of publication of the notice foreseen by article 40-ter of Law 28.02.2020, no. 8, concerning biogas power plants, have been extended to 22.05.2020.
On the other hand, within 22.07.2020, therefore more than two months from the originally scheduled date of 31.05.2020, the electricity and gas distribution companies must fulfill the communication obligations regarding the achievement of the national quantitative energy saving goals.
Lastly, several specific extensions have been defined for the submission of the documentation, by the economic operators, regarding the: (i) electric renewables by means of RES Decrees of 2012, 2016 and 2019; (ii) Thermal Account; (iii) Biomethane and (iv) White Certificates.
For a detailed understanding of the provisions adopted by the GSE and the MISE, we suggest to check the aforementioned list at the following link: https://www.gse.it/documenti_site/Documenti%20GSE/Archivio/DL%20CuraItalia_Sospensione%20termini 20procedimenti.pdf%.
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