ORDER NO. 18
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: 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, Massimo LUCIANI, Maria Alessandra SANDULLI, Francesco Saverio MARINI,
has issued the following
ORDER
in the constitutional legitimacy proceeding concerning Article 1 of the Law of the Province of Trento of December 7, 2022, no. 16, regarding "Industrial plan for the improvement of large hydroelectric derivation plants: integration of Article 26-septies of Provincial Law of March 6, 1998, no. 4 (Provisions concerning large hydroelectric derivations and other related provisions),” initiated by the President of the Council of Ministers with an appeal served on February 7, 2023, filed with the Registry on the following February 8, registered under no. 3 of the appeal registry for 2023, and published in the Official Gazette of the Republic no. 9, first special series, of 2023.
Having seen the statement of appearance of the Autonomous Province of Trento;
having heard in the private hearing of January 26, 2026, the Reporting Judge Emanuela Navarretta;
deliberated in the private hearing of January 26, 2026.
Whereas, with an appeal served on February 7, 2023, and filed on the following February 8, the President of the Council of Ministers, represented and defended by the Attorney General’s Office, initiated constitutional legitimacy challenges against the Law of the Province of Trento of December 7, 2022, no. 16, regarding "Industrial plan for the improvement of large hydroelectric derivation plants: integration of Article 26-septies of Provincial Law of March 6, 1998, no. 4 (Provisions concerning large hydroelectric derivations and other related provisions)”;
that the challenged provincial law consists of a single article, which amended Article 26-septies of Provincial Law no. 4 of 1998, by inserting paragraphs 2-bis to 2-sexies;
that these provisions pursue the objective of mitigating the effects of the energy crisis by allowing concessionaires of large hydroelectric derivations to submit, before the expiration of the concession, an industrial plan aimed at implementing efficiency and production improvement measures (Article 2-bis);
that the plan – subject to the Province’s approval (Article 2-ter) – is structured in two phases: the first expiring on December 31, 2024, the second to be concluded within the deadline established by Article 12, paragraph 6, of Legislative Decree of March 16, 1999, no. 79 (Implementation of Directive 96/92/EC concerning common rules for the internal market in electricity), i.e., within the thirtieth year from the entry into force of Legislative Decree no. 79 of 1999;
that, with the submission of the plan, the concessionaire undertakes to pay an additional fee, indexed to market energy values, the proceeds of which are allocated by the Province to support energy consumption costs (Article 2-quater);
that paragraph 2-quinquies provides for the suspension, for the duration of the industrial plan, of the assignment procedures for large hydroelectric derivation concessions concerning the plants covered by the plan;
that paragraph 2-sexies finally establishes that the industrial plan includes investments to be amortized within the duration of the plan itself and that, in the event of early termination prior to the amortization of investments related to the so-called "wetted works” referred to in Article 13, paragraph 2, of the Decree of the President of the Republic of August 31, 1972, no. 670 (Approval of the consolidated text of constitutional laws concerning the special statute for Trentino-Alto Adige), the Province shall pay compensation equal to the value of the non-amortized portion of the investments;
that the President of the Council of Ministers holds that the challenged provincial provisions, by introducing a suspension of the assignment procedures for concessions relating to plants for which an industrial plan has been submitted, grant an advantage to the current concessionaires, which consists of the possibility to continue the concessions under a substantial extension, and that this conflicts with multiple constitutional parameters;
that the appeal first alleges the violation of Article 13 of the Special Statute, which – as amended by Article 1, paragraph 833, of Law no. 205 of December 27, 2017 (State Budget for the financial year 2018 and the multi-year budget for the three-year period 2018-2020), and by Article 7, paragraph 2, of Law no. 118 of August 5, 2022 (Annual Law for the market and competition 2021) – grants the Autonomous Province of Trento the legislative competence to regulate, in compliance with the European Union order and international agreements, as well as the fundamental principles of the State legal order, the methods and procedures for assigning large hydroelectric derivation concessions;
that, in particular, it is inferred from Article 13 of the Statute that large hydroelectric concessions must be awarded through selection procedures that provide adequate guarantees of impartiality, transparency, and publicity, and also that "the procedure for automatic renewal, or the granting of other advantages, to undertakings whose concessions have expired or are about to expire, cannot be provided for”;
that, secondly, according to the Attorney General’s Office, the suspension of assignment procedures conflicts with Article 117, first paragraph, of the Constitution, in relation to both Article 49 of the Treaty on the Functioning of the European Union, which establishes the freedom of establishment in the territory of the European Union, and Article 12 of Directive no. 2006/123/EC of the European Parliament and of the Council, of December 12, 2006, concerning services in the internal market, according to which enabling measures for the economic exploitation of quantitatively scarce public goods must be adopted following selection procedures supported by adequate guarantees of impartiality and transparency;
that, finally, the appeal identifies in the challenged provincial provisions a conflict with Article 117, second paragraph, letter e), of the Constitution, as they are capable of causing an intrusion into the State's exclusive legislative competence in the matter of "protection of competition,” also with reference to Article 12 of Legislative Decree no. 79 of 1999, given that this latter provision – recently amended by Law no. 118 of 2022 – constitutes both an implementing provision for the EU Directive on the internal electricity market and a fundamental principle of the State legal order, capable of acting as an interposed norm;
that, in fact, according to the appellant, large hydroelectric derivations are a scarce resource, requiring the holding of a public tender in order to protect and promote competition;
that, therefore, the challenged provincial law, by introducing a surreptitious form of extension of existing concessions, would have the effect of postponing the holding of public evidence procedures, thus conflicting with both internal and supranational parameters;
that the Autonomous Province of Trento appeared in the proceeding with a filing on March 17, 2023, raising certain exceptions of inadmissibility of the appeal and contesting its substantive content;
that, in particular, the Province observes that the appellant directs its challenges only towards the provision contained in paragraph 2-quinquies of Article 1 of the challenged provincial law, which governs the suspension of assignment procedures, whereas the appeal lacks any argumentation concerning the remaining paragraphs: if, therefore, it were to be held that the President of the Council of Ministers challenged the entirety of Article 1, the appeal would be inadmissible due to lack of reasoning;
that, with reference to the interposed parameter invoked, constituted by Article 12 of Directive 2006/123/EC, the provincial defense raises a lack of reasoning, regarding two aspects: on the one hand, Article 12 concerns the methods for initiating tender procedures, whereas the challenged provisions do not regulate this aspect, being limited to providing for "a temporally limited suspension of the procedures themselves,” nor does the appeal otherwise explain the reason for the conflict between the provincial provisions and the interposed norm; on the other hand, the appeal does not indicate the reasons why large hydroelectric derivations would fall within the scope of application of Article 12 of the Services Directive itself, which requires the initiation of selection procedures characterized by impartiality, transparency, and adequate publicity "where the number of authorizations available for a given activity is limited owing to the scarcity of natural resources or technical capacities available”;
that, on the merits, the provincial defense maintains that the challenged provision falls within the primary legislative competence of the Province and respects the limits imposed by Article 13 of the Statute;
that the provincial defense observes, in any case, that, should this Court deem the question of constitutional legitimacy of Article 26-septies, paragraph 2-quinquies, of the challenged provincial law to be well-founded, the resulting declaration of unconstitutionality should not extend to the remaining paragraphs concerning the industrial plan;
that, in fact, even if, as a consequence of the judgment of acceptance, the suspension of procedures for the new assignment of concessions were to cease and new tenders were to be initiated, the implementation of the industrial plan, potentially submitted by the current concessionaires, could be undertaken by the succeeding concessionaires, thus avoiding the paralysis of investments aimed at improving plant efficiency;
that, finally, according to the provincial defense, should this Court deem the entirety of Article 1 of Provincial Law no. 16 of 2022 to be challenged, including the part concerning the industrial plan, this challenge should be deemed unfounded, as this provision conforms to Article 13 of the Special Statute, whose limits it respects;
that two private associations filed written opinions as amici curiae, pursuant to Article 6 of the Supplementary Rules for proceedings before the Constitutional Court: on March 20, 2023, the association Elettricità futura – Unione delle imprese elettriche italiane, and on March 21, 2023, the association Utilitalia;
that both associations presented considerations on the subject matter of the appeal, expressing confidence in a declaration of inadmissibility or, in any event, of non-foundation of the same;
that both opinions were admitted by presidential decree on September 12, 2023;
that both associations asserted the extraneousness of the subject matter of the challenged provincial law to the scope of application of Union law and, in particular, to the operational scope of Directive 2006/123/EC: the measures, which constitute the "energy package,” are not subject to European-style competitive pressure, and their regulation is therefore left to the national legislators, as evidenced by the fact that the European Commission has closed the infringement procedures opened on this point against various EU Member States, including Italy;
that, moreover, the two associations asserted that energy is extraneous to the notion of "service,” falling rather – according to the case law of the Court of Justice – under that of "good”;
that, finally, with regard to the national parameters, the amici curiae recall that the challenged provincial provisions do not entail any derogation from the rule of public tender for the assignment of large hydroelectric concessions. The principle of tendering is not challenged, but "it is only the subject of a different, contingent, temporal sequencing – dictated, moreover, by the exceptional nature of the historical moment – which is nevertheless contained within the time horizon established by the State Legislator”;
that on April 16, 2024, a request for adjournment was filed by the Autonomous Province of Trento, with the adhesion of the President of the Council of Ministers, given the intention of the former to amend the challenged provincial law, which had not been applied in the interim;
that on February 5, 2025, the Autonomous Province of Trento filed a brief raising an exception of inadmissibility due to the supervening lack of concrete and current interest to prosecute the appeal: the challenged norms provided for the deadline of December 31, 2024, for the completion of the works that would have allowed for an increase in power and energy storage capacity, a deadline that has passed without the provisions having found application in the meantime;
that subsequently, on February 12, 2025, the Autonomous Province of Trento – with the adhesion of the appellant – submitted a request for adjournment, considering the commitment to repeal the challenged provincial law;
that, finally, on October 20, 2025, the President of the Council of Ministers, following the resolution of the Council of Ministers of October 17, 2025, filed a withdrawal of the appeal, following the repeal of the challenged provisions;
that the withdrawal was accepted by the Autonomous Province of Trento on November 5, 2025, following the resolution of the Provincial Executive Board of October 31, 2025.
Considering that the President of the Council of Ministers has withdrawn the appeal indicated in the heading;
that the withdrawal has been accepted by the Autonomous Province of Trento;
that the withdrawal of the appeal, accepted by the opposing party that has appeared, results, pursuant to Article 25 of the Supplementary Rules, in the extinction of the proceedings (most recently, Orders no. 194 and no. 92 of 2025).
for these reasons
THE CONSTITUTIONAL COURT
declares the proceedings extinguished.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 26, 2026.
Signed:
Giovanni AMOROSO, President
Emanuela NAVARRETTA, Reporting Judge
Valeria EMMA, Registrar
Filed in the Registry on February 19, 2026