The amendments introduced by Conversion Law no. 108 dated 29 July 2021 to Law Decree no. 77 dated 31 May 2021 (“Simplifications Decree Bis”)

Prepared by Energy Team

Further to the Alert published on July 1, 2021 regarding the changes in the energy sector made by the Simplification Decree no. 77/2021 (“Simplification Decree Bis”) and Decree Law no. 92/2021, it should be noted that on last July 31 the Conversion Law no. 108 dated 29 July 2021 (the “Conversion Law”) was published in the Official Gazette, which has introduced several modifications.

Below we provide details of the main and additional innovations of the Simplification Decree as amended by the Conversion Law.

1. Amendments to the capacity threshold for the purposes of submission to the Environmental Impact Assessment (screening) procedure for plants producing renewable energy from solar sources.

The Conversion Law introduces an amendment to letter b) of Annex IV of part II of the Legislative Decree no. 152/2006 (“Environmental Code”), relating to the thresholds to be taken into consideration for the purposes of submitting projects to the regional screening procedure, providing that for the following types of renewable energy production plants from solar sources, and the related connected and necessary works

  • plants located within sites of national interest;
  • plants located in areas involved in industrial plants for the energy production from conventional sources;
  • plants in industrial areas

the threshold referred to in letter b) of the above Annex is raised to 10 (ten) MW.

For these types of plants to produce renewable energy from solar sources, therefore, for the purposes of submission to regional screening, it should no longer refer to the threshold of 1 (one) MW but 10 (ten) MW.

2. Existing plants’ repowering and substantial modifications

The Simplification Decree Bis, through the amendment to art. 5 of Legislative Decree no. 28 of 3 March 2011, has provided for the identification of works, with particular reference to the rules for repowering works, which can be defined as “non-substantial” and for which it is only necessary, for authorization purposes, to submit a communication to the relevant Municipality.

Indeed, the Conversion Law has specified, as regards the size of the new wind turbines, that the maximum height of the new plants may not be:

  • greater than twice the height of the existing wind turbine (if the pre-existing wind turbine was already higher than 70 mt);
  • greater than 2.5 times the height of the existing wind turbine (in the case of wind turbines smaller than 70 mt).

In addition, the Conversion Law has provided for the possibility to proceed with the repowering intervention on renewable energy production plants from wind sources by means of a communication to the Municipality also for those interventions involving a reduction of the occupied surface area or volumes, even in the absence of replacement of the wind turbines.

3. Agricultural areas and incentive tariffs

The Simplification Decree Bis, through the amendment of art. 65 of Law Decree, 24 January 2012, no. 1 has provided for the opportunity, inter alia, that the agrovoltaic plants with integrative solutions, with vertical mounting of the modules, which do not jeopardize the continuity of agricultural growing activities, even if with ground modules in agricultural areas, may benefit from incentive tariffs.

The Conversion Law has also specified that this type of plant may be eligible to receive incentive tariffs “even allowing the application of digital and precision farming tools” and that access to incentive tariffs will be subject to “the simultaneous implementation of monitoring systems that allow to verify the impact on crops, water savings, agricultural productivity for different types of cultivation and activities’ continuity of the related farms.

Moreover, should these conditions not be met, the benefits received will no longer apply.

4. Protected sites’ adjacent areas

The Simplification Decree Bis has provided that a mandatory, but not binding, opinion will be required from the Ministry of Archaeological Heritage, Culture and Tourism (“MIBACT”), in the procedures for the Sole Authorization referred to in art. 12 of Legislative Decree no. 387 of 29 December 2003 relating to projects both located in areas subject to protection, also in itinere, pursuant to Legislative Decree no. 42/2004, and in areas adjacent to these areas.

In this context, through the Conversion Law, it has been specified that the participation of the MIBACT will be mandatory not only when the proceedings relate to the plants, but also in any proceedings relating to connection works and infrastructures necessary for the construction of the same plants.

5. Simplified authorization procedure (PAS) up to 20 MW

The Simplifications Decree Bis has provided, through the amendment of art. 6 of Legislative Decree 28/2011, the possibility to proceed with a simplified authorization procedure (“PAS”) for the construction and entry into operation of plants for the production of renewable energy from solar sources with nominal power up to 10 (ten) MW, connected to the medium voltage electricity grid and located in areas with industrial, productive or commercial use.

In this respect, the Conversion Law has made two important amendments to art. 6 of Legislative Decree no. 28/2011

  • the threshold has been raised from 10 (ten) MW to 20 (twenty) MW for cases in which it is possible to proceed with PAS;
  • as well as localization in areas with industrial destination, the possibility to proceed with PAS is also foreseen for projects included in landfills or caves where the environmental restoration activity has been completed.

It should be noted, however, that the threshold provided for the activation of the regional screening procedure, equal to 10 (ten) MW, has not changed.

In fact, Annex IV to Part II of the Environmental Code concerning “Projects subject to the Screening verification under the responsibility of the regions and Trento and Bolzano provinces” provides that for projects relating to the energy and mining industry “letters b) and c) are to be considered integrated by Article 6, paragraph 9-Bis, of Legislative Decree no. 28 of 2011, introduced by art. 31, paragraph 2, of Legislative Decree no. 77 of 2010, which provides: “9-Bis. For the construction and operation of photovoltaic plants with a power up to 10 MW connected to the medium voltage electricity grid and located in areas of industrial, productive or commercial use, the simplified authorization procedure set forth in the following paragraphs is applied. The thresholds referred to in Attachment IV, point 2, letter b), to Part II of the legislative decree of 3 April 2006, no. 152, for the Screening verification procedure referred to in article 19 of the same decree, are meant to be raised to 10 MW […]”.

Also Annex II to Part II of the Environmental Code concerning “Projects of State competence” still requires a threshold higher than 10 (ten) MW for the attribution of state competence for photovoltaic plants.

6. Biofuels and the biogas sectors

The Conversion Law has established, in the field of biofuels, that the by-products used as feedstock for biogas plants to produce biomethane through the purification of biogas, are recognized as feedstock also suitable to produce advanced biofuel.

Moreover, the Conversion Law has provided for a new possibility for biogas plants:

  • with electric power not exceeding 300 kW;
  • which are part of the production cycle of an agricultural or farming business, carried out by agricultural entrepreneurs also in consortium structure;
  • at least 80% of their feed derives from wastewater and materials deriving from the agricultural companies that produce them, and the remaining 20% from their second-harvest crops

access to the incentives set forth in the Ministerial Decree of 23 June 2016.

7. Charging infrastructures for electric vehicles

The Conversion Law has intervened on art. 32 of the Simplification Decree Bis, through the identification of the points and charging stations for electric vehicles’ realization activity as a free building activity.

In addition, the subject intending to carry out the installation of infrastructures for the recharging service of electric vehicles on public land, will have to submit to the Public Administration owning the road both the application for the occupation of public land and for the realization of the recharging infrastructure and the related works of connection to the distribution grid.

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Tommaso Tomaiuolo

PwC TLS Avvocati e Commercialisti



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