JUDGMENT NO. 165
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Justices: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has delivered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 2, paragraph 1, letter c), of the Law of the Puglia Region No. 27 of November 10, 2023, entitled «Amendments to the Regional Law No. 28 of November 7, 2022 (Provisions on incentives for energy transition)», initiated by the President of the Council of Ministers with appeal notified on January 11, 2024, filed with the Registry on January 16, 2024, registered under No. 3 of the 2024 appeal register, and published in the Official Gazette of the Republic No. 7, special series I, of the year 2024.
Having seen the act of appearance of the Puglia Region;
having heard at the public hearing of September 24, 2024, the reporting Judge Giovanni Pitruzzella;
having heard the State Attorney Maria Luisa Spina for the President of the Council of Ministers and the Attorney Tiziana Teresa Colelli for the Puglia Region;
Deliberated in the council chamber of September 24, 2024.
Considered in fact
1.– With an appeal filed on January 16, 2024, and registered under No. 3 of the 2024 appeal register, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, initiated questions of constitutional legitimacy of Article 2, paragraph 1, letter c), of the Law of the Puglia Region No. 27 of November 10, 2023, entitled «Amendments to the Regional Law No. 28 of November 7, 2022 (Provisions on incentives for energy transition)», with reference to Articles 3, 41, 42, 97, and 117, third paragraph, of the Constitution, the latter in relation to Article 1, paragraph 5, of Law No. 239 of August 23, 2004 (Reorganisation of the energy sector, as well as delegation to the Government for the reorganisation of the current provisions on energy).
1.1.− The appellant states that the Puglia Region Law No. 27 of 2023 contains amendments to the Puglia Region Law No. 28 of 2022 and that its Article 2, paragraph 1, letter c), in particular, replaces paragraph 4 of Article 2 of the latter regional law.
The aforementioned Article 2, paragraph 4, read as follows: «[t]o the territorial compensation measures referred to in this article, limited to gas plants and infrastructures, including those in operation, are added the environmental compensation and rebalancing measures with the procedure referred to in Article 1».
It, as replaced by the contested provision, provides, instead, that «[t]o the territorial compensation measures referred to in this article, limited to gas plants and infrastructures that have acquired the permit for construction on the date of entry into force of these provisions and for which no compensation measures have been applied, the compensation measures referred to in paragraph 1 of Article 1 are added and with the procedure referred to in Article 1. With the same procedure, the measures provided for in Article 1 also apply to the plants and infrastructures referred to in paragraph 1 of this article».
1.2.− Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, according to the appellant, would conflict, in the first place, with Article 1, paragraph 5, of Law No. 239 of 2004, «especially if read in conjunction» with Article 1, paragraph 1, letter b), of the same Puglia Region Law No. 27 of 2023, which amended Article 1, paragraph 2, of the Puglia Region Law No. 28 of 2022, which, in its current wording, subjects to environmental and territorial compensation and rebalancing measures (hereinafter, also: compensation measures) exclusively the proponents of new energy plants and infrastructures on the Apulian territory, or the upgrading and transformation of those already existing.
The reformatory intention underlying the aforementioned Article 1, paragraph 1, letter b), of the Puglia Region Law No. 27 of 2023 would be «in fact circumvented», in the gas sector, by the contested provision, where it subjects to compensation measures «also gas plants that are in fact “existing” on the date of entry into force of the regional law, as they are authorized (and even if not yet built)».
In this way, Article 2, paragraph 4, of the Puglia Region Law No. 28 of 2022, as replaced by Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, would violate Article 117, third paragraph, of the Constitution, conflicting with the fundamental principle in the matter of national production, transportation and distribution of energy, established by Article 1, paragraph 5, of Law No. 239 of 2004, according to which: «[t]he regions and local authorities territorially interested in the location of new energy infrastructures or in the upgrading or transformation of existing infrastructures have the right to enter into agreements with the proponents that identify compensation and environmental rebalancing measures, consistent with the general objectives of national energy policy, without prejudice to the provisions of Article 12 of Legislative Decree No. 387 of December 29, 2003».
The President of the Council of Ministers then recalls that:
− according to the constant jurisprudence of the Constitutional Court, in the matter of national production, transportation and distribution of energy, the regions are required to respect the fundamental principles established by state legislation (see Judgments No. 11 of 2022, No. 177 of 2021, No. 106 of 2020, No. 177 and No. 14 of 2018), among which is the aforementioned Article 1, paragraph 5, of Law No. 239 of 2004;
− pursuant to Article 1, paragraph 4, letter f), of the same Law No. 239 of 2004, compensation measures may be required, «if needs related to national strategic guidelines require territorial concentrations of activities, plants and infrastructures with a high territorial impact».
1.3.− The State Attorney General's Office complains, in the second place, about the violation of the principle of legitimate expectation, since the contested provision would introduce an «additional burden on those who have already obtained an authorization permit on the date of entry into force of the rules».
In particular, the reliance on legal certainty would be violated, constituting a «fundamental value of the rule of law, constitutionally protected in our legal system» (see Judgments of this Court No. 39 of 1993, No. 155 of 1990, No. 822 of 1988 and No. 349 of 1985), «now even more relevant considering that the legislator himself prescribes that administrative activity is governed (also) by the principles of the Community legal system», in which the principle in question has been developed jurisprudentially, «with a view to an increased protection of private interest against the normative and administrative actions of the European institutions».
«At the constitutional level», legitimate expectation would be guaranteed by Article 3 of the Constitution (see the Judgment of this Court No. 149 of 2017) and, insofar as it «guides the individual disciplines concerned», it would also find protection in Articles 41, 42 and 97 of the Constitution, with reference, respectively, to «reliance on the exercise of economic activities, […] to the regime of goods» and to the «relationships with public administrations».
In this case, the subjection to compensation measures of already authorized gas plants and infrastructures would harm the freedom of economic initiative, «understood as the entrepreneur's ability to organize the factors of production and to determine himself autonomously within a stable and certain legal framework with the public administration, without the conditioning of supervening regulations that alter the original programs by introducing unforeseen burdens».
2.− With an act filed on February 16, 2024, the Puglia Region appeared in the proceedings, raising an objection of inadmissibility and the unfoundedness of the opposing appeal.
2.1.− The respondent observes, in the first place, that the contested provision, in eliminating the «wording “also in operation”», «categorically excludes that the legislation can be applied to already existing plants (the operation of a plant must necessarily presuppose that the plant exists, i.e. is built)».
The alleged conflict with state legislation, therefore, would not exist, hence, according to the Puglia Region, the inadmissibility of the first question.
2.2.− From another perspective, the latter would be inadmissible due to the generic identification of state legislation «used as an interposed parameter», given that the appellant merely alleges the violation of Article 1, paragraph 5, of Law No. 239 of 2004, without however clarifying why «the wording “subjects who have acquired the permit for construction on the date of entry into force of these provisions” is to be understood as “existing plants”, i.e. in what terms the contested regional rule would be configured as a derogation».
2.3.− As for the unfoundedness, according to the Puglia Region, the objections raised by the State Attorney General's Office would stem «from a partial and tendentious reading of the regional provisions, extrapolated from the broader regulatory context, both national and regional, in which they are inserted».
In this regard, the respondent observes that the Puglia Region Law No. 27 of 2023 «is part of the framework of the “framework” law of the energy sector», i.e. Law No. 239 of 2004, which, in Article 1, paragraph 4, provides, in the first place, that (the State and) the regions ensure throughout the national territory the essential levels of services concerning energy in its various forms and under homogeneous conditions, both with regard to the methods of use, and with regard to the criteria for setting tariffs and the consequent impact on the formation of prices.
Secondly, by virtue of the aforementioned state provision, (the State and) the regions are called to guarantee the adequate territorial balance in the location of energy infrastructures, within the limits permitted by the physical and geographical characteristics of the individual regions and, if needs related to national strategic guidelines require territorial concentrations of activities, plants and infrastructures with a high territorial impact, to regulate compensation and environmental and territorial rebalancing measures.
The Puglia Region continues by observing that Article 1, paragraph 5, of the same Law No. 239 of 2004 provides that the regions, the territorial public bodies and the local authorities territorially interested in the location of new energy infrastructures or in the upgrading or transformation of existing infrastructures, have the right to enter into agreements with the proponents that identify compensation and environmental rebalancing measures.
This latter provision – the respondent continues – is without prejudice to the provisions of Article 12 of Legislative Decree No. 387 of December 29, 2003 (Implementation of Directive 2001/77/EC on the promotion of electricity produced from renewable energy sources in the internal electricity market).
In particular, the «reference» would be to paragraph 6 of the aforementioned Article 12, which – in providing that «[t]he authorization may not be subordinated nor provide for compensation measures in favour of the regions and provinces» – would prohibit that the single authorization for the construction of an energy plant can be granted only if compensation measures are provided by the proponent.
In the recognition of the fundamental principles in the matter, the decree of the Minister of Economic Development of September 10, 2010, containing «Guidelines for the authorization of plants powered by renewable sources», which, in Annex 2, defines the «Criteria for the possible setting of compensatory measures», should also be considered.
The Annex in question – the Puglia Region continues – reiterates that, pursuant to Article 12, paragraph 6, of Legislative Decree No. 387 of 2003, the authorization may not be subordinated nor provide for compensation measures in favour of the regions and provinces. It also establishes, at point 2, that «for the activity of producing electricity from renewable sources, no monetary consideration is due in favour of the Municipalities, the single authorization may provide for the identification of compensatory measures, of a non-merely patrimonial nature, in favour of the same Municipalities and to be oriented towards environmental improvement interventions related to the mitigation of the impacts attributable to the project, energy efficiency interventions, the dissemination of installations of plants using renewable sources and the awareness of citizens on the aforementioned issues», in compliance with the criteria expressly indicated therein (from letter a to letter h).
This being the regulatory framework, the alleged violation of Article 117, third paragraph, of the Constitution, in relation to Article 1, paragraph 5, of Law No. 239 of 2004, would not exist, given that the recalled paragraph 4, letter f), of the same article recognises the regions' right to request compensatory measures, in order to guarantee the adequate territorial balance in the location of energy infrastructures.
The contested provision, in fact, would be directed exclusively to plants and infrastructures «for which no compensation measures have been applied», although they were already required to do so by virtue of Law No. 239 of 2004, when the conditions provided therein are met.
The question, in conclusion, would be without foundation due to the incorrectness of the interpretative premise, since the regional rule would be a mere application of what was provided by the state legislator as early as 2004, and for this reason alone unsuitable «to invade areas constitutionally reserved to the State».
2.4.− In relation to the alleged violation of the principle of legitimate expectation, the Puglia Region raises an objection, in the first place, of the inadmissibility of the question due to lack «of specific motivation».
The appellant, in fact, would have failed to indicate «the concrete terms in which the contested provision would violate the constitutional parameters invoked and the rules referred to as an interposed parameter, nor would it be clarified in what the vulnus caused to economic operators in terms of freedom of economic initiative would consist».
According to the respondent, then, the regional rule under examination would not represent «the logical and legal premise of an additional burden, such as environmental compensations», given that the latter had been provided in favour of the regions by the state legislator as early as 2004: the question would therefore be inadmissible also because no freedom of economic initiative would be violated «as a result of supervening rules».
3.− With a memorandum filed on September 2, 2024, the Puglia Region reiterated the objections of inadmissibility of the appeal and the arguments in support of its unfoundedness.
4.− With a memorandum filed on September 3, 2024, the President of the Council of Ministers, in turn, further illustrated the reasons given in support of the appeal.
Considered in law
l.− The President of the Council of Ministers has initiated a question of constitutional legitimacy of Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, with reference to Articles 3, 41, 42, 97, and 117, third paragraph, of the Constitution, the latter in relation to Article 1, paragraph 5, of Law No. 239 of 2004.
2.− The contested provision replaces paragraph 4 of Article 2 of the Puglia Region Law No. 28 of 2022, according to which, in the wording prior to the intervention of the regional legislator challenged by this appeal, «[t]o the territorial compensation measures referred to in this article, limited to gas plants and infrastructures, including those in operation, are added the environmental compensation and rebalancing measures with the procedure referred to in Article 1».
In its current wording, the aforementioned Article 2, paragraph 4, of the Puglia Region Law No. 28 of 2022 provides, instead, that «[t]o the territorial compensation measures referred to in this article, limited to gas plants and infrastructures that have acquired the permit for construction on the date of entry into force of these provisions and for which no compensation measures have been applied, the compensation measures referred to in paragraph 1 of Article 1 are added and with the procedure referred to in Article 1. With the same procedure, the measures provided for in Article 1 also apply to the plants and infrastructures referred to in paragraph 1 of this article».
The «territorial compensation measures referred to in this article» are those specifically provided for in the gas sector by Article 2, paragraph 1, of the Puglia Region Law No. 28 of 2022, according to which, «in order to contain the cost of gas borne by Apulian families» (and when the conditions referred to in Article 1, paragraph 4, letter f, of Law No. 239 of 2004 are met), «for each new energy plant and infrastructure or for the upgrading or transformation of existing energy plants and infrastructures, in the amount of up to 3 percent of the commercial value of the volume of gas produced, transported or imported into Italy, the territorial compensation and rebalancing measure is established to be borne by the proponents, producers, carriers and managers of gas plants and infrastructures on the Apulian territory».
Article 1, paragraph 1, of the Puglia Region Law No. 28 of 2022, also referred to by the contested provision, in turn, provides that «[t]he Region, in harmony with European, state and regional legislation on the protection of the environment, health and the quality of life of the population, in application of the principles of efficiency and reduction of climate-altering emissions and in order to mitigate the negative effects of the energy crisis, in compliance with the principle of non-aggravation of the procedure, regulates compensation and environmental and territorial rebalancing measures between levels and costs of performance and impact of energy plants».
These latter measures may be provided «to be borne by the proponents of new energy plants and infrastructures or of the upgrading or transformation of existing plants and infrastructures on the Apulian territory» (Article 1, paragraph 2, of the Puglia Region Law No. 28 of 2022).
3.− According to the appellant, Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, in allowing the imposition of compensation measures in relation to «gas plants that are in fact “existing” on the date of entry into force of the regional law, as they are authorized (and even if not yet built)», would violate, in the first place, Article 117, third paragraph, of the Constitution, in relation to Article 1, paragraph 5, of Law No. 239 of 2004.
The latter, containing a fundamental principle in the matter of national production, transportation and distribution of energy, would, in fact, give the regions and the territorially interested authorities the right to enter into agreements that identify compensation and environmental rebalancing measures exclusively with the proponents of new infrastructures, or the upgrading or transformation of existing ones.
4.− Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, in the second place, in introducing an «additional burden on those who have already obtained an authorization permit on the date of entry into force of the rules» would harm, in violation of Articles 3, 41, 42 and 97 of the Constitution, their reliance and their freedom of economic initiative, «understood as the entrepreneur's ability to organize the factors of production and to determine himself autonomously within a stable and certain legal framework with the public administration, without the conditioning of supervening regulations that alter the original programs by introducing unforeseen burdens».
5.− Preliminarily, the *thema decidendum* must be delimited.
Article 2, paragraph 4, of the Puglia Region Law No. 28 of 2022, as replaced by the contested Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, consists of two sub-paragraphs.
The first regulates compensation measures for «gas plants and infrastructures that have acquired the permit for construction on the date of entry into force of these provisions and for which no compensation measures have been applied». The second, instead – through the reference to Article 2, paragraph 1, of the same Puglia Region Law No. 28 of 2022 − concerns the compensation measures applicable (again in the gas sector) to «each new energy plant and infrastructure» or to those already existing and affected by upgrading or transformation.
Although the President of the Council of Ministers has challenged the aforementioned regional provision without any specification, it is clear, in light of the overall tenor of the appeal, that it focuses exclusively on the first sub-paragraph, which therefore constitutes the sole object of the present questions of constitutional legitimacy.
6.– Also preliminarily, the objections raised by the Puglia Region must be examined, according to which both questions would be inadmissible due to the generality of the motivation and due to the absence of a conflict between the contested provision and the state legislation of reference.
The objections are not well-founded.
The meaning of the first question is sufficiently clear: according to the appellant, the provision that compensation measures apply to «gas plants and infrastructures that have acquired the permit for construction on the date of entry into force of these provisions» conflicts with the interposed parameter, which contemplates those measures only for «each new energy plant and infrastructure or for the upgrading or transformation of existing energy plants and infrastructures».
Equally clear is the meaning of the second question: the regional provision – in providing for the measures under examination not only for new plants or for the upgrading or transformation of existing ones, but also for those already having a permit for construction before the entry into force of the regional law – would harm the reliance of economic operators, on whom, at the time of the issuing of the permit, those measures had not been imposed.
The existence or absence of a conflict with the interposed parameter and of the alleged violations, then, relates not to the procedure but to the merits of the questions.
7.− The question of constitutional legitimacy of Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023, for violation of Article 117, third paragraph, of the Constitution, in relation to Article 1, paragraph 5, of Law No. 239 of 2004, is well-founded.
The state provision last mentioned contains a fundamental principle in the matter of national production, transportation and distribution of energy (Judgments No. 124 and No. 119 of 2010, No. 248 of 2006).
By virtue of it, «[t]he regions, territorial public bodies and local authorities territorially interested in the location of new energy infrastructures or in the upgrading or transformation of existing infrastructures have the right to enter into agreements with the proponents that identify compensation and environmental rebalancing measures, consistent with the general objectives of national energy policy».
The interposed parameter therefore allows the imposition of compensation measures only in the case of new infrastructures or the upgrading or transformation of existing ones, i.e. in cases where authorization to carry out the activity (new, upgraded or transformed) is always necessary.
The same reference to «proponents» makes clear the will of the state legislator to provide for the stipulation of agreements having as their object compensation measures exclusively in the context of the authorization procedure, evidently in order to allow the entrepreneur to assess the convenience of their economic initiative.
This necessary contextualization, moreover, is expressly imposed by the aforementioned 2010 Guidelines, albeit in relation to the specific and different scope of plants and energy infrastructures powered by renewable sources, as well as by the same Apulian regional legislator in relation to all energy plants and infrastructures other than those of gas (Article 1, paragraph 2-bis, of the same Puglia Region Law No. 28 of 2022).
The contested provision, on the other hand, allowing the application of compensation measures, in the gas sector, also in relation to plants and infrastructures that have already obtained authorization («that have acquired the permit for construction on the date of entry into force of these provisions»), without the simultaneous provision of those measures («for which no compensation measures have been applied»), conflicts with the interposed parameter.
8.− Therefore, Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023 must be declared constitutionally illegitimate, for violation of Article 117, third paragraph, of the Constitution, in relation to Article 1, paragraph 5, of Law No. 239 of 2004, in the part where − in replacing Article 2, paragraph 4, of the Puglia Region Law No. 28 of 2022 − it provides that «[t]o the territorial compensation measures referred to in this article, limited to gas plants and infrastructures that have acquired the permit for construction on the date of entry into force of these provisions and for which no compensation measures have been applied, the compensation measures referred to in paragraph 1 of Article 1 are added and with the procedure referred to in Article 1».
9.− The remaining question of constitutional legitimacy of Article 2, paragraph 1, letter c), of the Puglia Region Law No. 27 of 2023 initiated with reference to Articles 3, 41, 42 and 97 of the Constitution remains absorbed.
for these reasons
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy of Article 2, paragraph 1, letter c), of the Law of the Puglia Region No. 27 of November 10, 2023, entitled «Amendments to the Regional Law No. 28 of November 7, 2022 (Provisions on incentives for energy transition)», in the part where − in replacing Article 2, paragraph 4, of the Puglia Region Law No. 28 of 2022 − it provides that «[t]o the territorial compensation measures referred to in this article, limited to gas plants and infrastructures that have acquired the permit for construction on the date of entry into force of these provisions and for which no compensation measures have been applied, the compensation measures referred to in paragraph 1 of Article 1 are added and with the procedure referred to in Article 1».
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 24, 2024.
Signed:
Augusto Antonio BARBERA, President
Giovanni PITRUZZELLA, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on October 18, 2024