AG Opinion in Joined Cases C 798/18 and C 799/18 - Article 10 of the Energy Charter Treaty does not apply in disputes between EU investors and the EU - EU Member States or between investors and their own Member State
Joined Cases C 798/18 and C 799/18
Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others
Athesia Energy Srl and Others,
Ministero dello Sviluppo Economico,
Gestore dei servizi energetici (GSE) SpA,
Elettricità Futura - Unione delle Imprese Elettriche italiane,
Confederazione Generale dell’Agricoltura Italiana - Confagricoltura
(Requests for preliminary rulings from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy))
(Reference for a preliminary ruling - Environment - Directive 2009/28/EC - Promotion of the use of energy from renewable sources - Production of electrical energy from solar photovoltaic installations - Support scheme - Alteration of incentives already granted but not yet due for payment - Articles 16 and 17 of the Charter of Fundamental Rights of the European Union - Freedom to conduct a business - Right to property - Concept of ‘possessions’ - Legitimate expectations - Energy Charter - Article 10)
1. In 2014, against a background of rapid growth in the photovoltaic energy sector, the Italian legislature sought to reduce the incentives payable to photovoltaic energy operators within its territory.
2. The present references for preliminary rulings, made on 17 December 2018 by the Tribunale ammistrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy), relate to the compatibility of such an alteration with EU law, and more specifically to any limits which may be imposed by Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which relate, respectively, to the freedom to conduct a business and the right to property.
3. The references have been made in proceedings between a significant number of operators of photovoltaic installations in Italy, together with the Federazione Nazionale delle Imprese Elettrotecniche ed Elettroniche (national federation of electronic and electric undertakings; Anie), (2) and the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) and Gestore dei servizi energetici (GSE) SpA (‘GSE’), a company in which the Ministero dell’Economia e delle Finanze (Ministry of the Economy and Finances, Italy) has a 100% shareholding.
4. What makes the present cases particularly noteworthy is the fact that GSE entered into agreements with those operators under which they were to be paid incentives for a period of twenty years, in the context of a support scheme intended to transpose, into Italian law, successive European directives on the promotion of the use of renewable energy. (3)
5. The reform introduced by the Italian legislature was effected against that specific legislative background, with a view to altering, to the disadvantage of the operators referred to above, the incentives payment of which had been provided for in those agreements, but had not yet fallen due.
6. As requested by the Court, this Opinion will focus on the interpretation of Articles 16 and 17 of the Charter, and of Article 10 of the Energy Charter, (4) read in conjunction with Article 216(2) TFEU. (5)
7. At the conclusion of my analysis, I will suggest that the Court should rule that Articles 16 and 17 of the Charter do not preclude a reform of the kind instituted by the Italian legislature. I will also explain why I do not consider that Article 10 of the Energy Charter, read in conjunction with Article 216(2) TFEU, is applicable in the present cases.
97. In the light of all the considerations set out above, I suggest that the Court of Justice should answer the question referred for a preliminary ruling by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) in the following terms:
1. Articles 16 and 17 of the Charter of Fundamental Rights of the European Union do not preclude a national provision, such as those at issue in the main proceedings, by which a Member State seeks to reduce the incentives provided for by a support scheme intended to promote, on its territory, the use of energy produced from renewable sources, and, more specifically, by private law agreements concluded between the beneficiaries of that scheme and a company owned by that Member State, where those beneficiaries have no legitimate expectation that the amount of the incentives will remain unchanged for the entire duration of those agreements, which is a matter for the referring court to verify.
2. Article 10 of the Energy Charter Treaty, signed in Lisbon on 17 December 1994 and approved on behalf of the European Union, ECSC and Euratom by Council and Commission Decision 98/181/EC of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects, read in conjunction with Article 216(2) TFUE, is not applicable in disputes between investors in the energy sector and their own Member State.