DL Semplificazioni: changes in the sanctioning discipline of the GSE

Prepared by Energy Team

The conversion into Law of no. 120 of September 11, 2020 of Legislative Decree no. 76 of July 16, 2020 (the so-called Decreto Semplificazioni), has introduced specific amendments relating to the sanctioning power recognized to the Gestore dei Servizi Energetici – GSE S.p.A. (GSE).

In particular, Article 56, paragraph 7, letter a) (Simplification provisions regarding interventions on projects or plants powered by renewable energy sources and some new plants, as well as spreading incentives) has amended Article 42 of Legislative Decree no. 28 of March 3, 2011. As per effect, should the GSE acknowledge significant violations in its inspection activities it shall verify the existence of the conditions provided for under Article 21 nonies, Law 241/1990 for the exercise of self-intervention right (potere di autotela), namely (a) the compliance with a reasonable period (in any case not exceeding eighteen months) from the time the energy producer has been granted the feed-in tariff, (b) the occurrence of a public interest and (c) a careful evaluation of the interest of the relevant energy producer (and any other interested party).

With respect to the term set under Article 21 nonies, the provision of paragraph 2-bis of the Article 21 nonies could apply. In particular, according to Article 21 nonies, paragraph 2-bis administrative acts implemented on the basis of false representations of facts or false declarations of certification (constituting a criminal offence as ascertained in court with a final decision), can be revoked by the relevant public authority even after the expiry of the term of eighteen months, without prejudice to the application of the criminal sanctions as well as the sanctions provided for in Chapter VI of the Consolidated Act (testo unico) of the President of the Republic Decree of December 28, 2000, no. 445.

Therefore, the above-mentioned amendments seem to confirm that the GSE should exercise its powers in compliance with the principles of logic, adequacy and proportionality.

Such approach could have a positive effect on the secondary market, which has been always adversely affected by uncertainties in the regulatory framework.

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Tommaso Tomaiuolo

PwC TLS Avvocati e Commercialisti