Law decree 16 July 2020, No. 76 (“Simplifications Decree”), converted into law on 11 September 2020, No. 120, introduced several provisions aimed at simplifying authorisation procedures and promoting investments in Italy.
We summarise below the most relevant provisions enacted in the energy and infrastructures sectors.
Article 38 contains several provisions that are relevant for this sector, including:
(a) Fibre-optic infrastructures. The installation of these infrastructures can be carried out in derogation to the relevant construction and town-planning legislation. It is required only the filing of a single application for road excavations, soil occupation and execution of the works.
(b) Temporary infrastructures of mobile telephone services. These works, if necessary to develop electronic communications in emergency or safety situations or in case of seasonal events, performances, and removed within 120 days from their installation, can be performed if, after the filing of the relevant communication, the relevant Municipality does not raise any objection within 30 days. The same procedure is further simplified (filing of a self-certified declaration) if the installation and operation of the temporary infrastructures do not exceed 7 days.
(c) Installation of radio equipment stations. The Municipalities are not allowed to enact general limitations to the installation of radio equipment stations within their territories and do not have the authority to suspend performance of such works or the operation of these stations on the basis of the alleged violation of the limits of exposure to electric and electromagnetic fields.
(d) Installation of underground or overhead cables within public areas. The installation of these infrastructures within ports, interports, hydric and maritime state-owned areas and other areas and buildings owned by public authorities has been simplified by providing the possibility to start the works if the relevant authorities do not raise any objection within 8 days (instead of 30) after the filing of the relevant application.
Article 48 concerns the procedure of cold ironing, which is the process of supplying shoreside electrical power to a ship at dock while its main and auxiliary engines are turned off. The previous legislation already regulated such procedure by providing, for the supply of electricity from plants with a power higher than 35 kW, a specific tariff and a favourable excise rate. With the purpose of facilitating the use of such procedure, the mentioned Article 38 provides that such supply is also exempted from paying general system charges.
Article 50 focuses on the need of simplification and acceleration of environmental impact assessment procedures, which are key to the construction of energy plants and infrastructures.
The following points are worth noting:
(a) By no later than 120 days from the entry into force of the Simplifications Decree, the Government will draw up a list of projects necessary for the implementation of the Integrated National Energy and Climate Plan (NECP) and the indication of areas which are not suitable for such projects, including onshore and offshore sites and contaminated areas qualified as Site of National Interest (SIN).
(b) The establishment of an ad hoc Technical Commission for the implementation of the Integrated National Energy and Climate Plan (NECP) to carry out environmental impact assessment procedures of energy projects falling under the authority of the State.
(c) The reduction of the procedural terms of the screening, environmental impact assessment, PAU (provvedimento unico in materia ambientale) and PAUR (provvedimento autorizzatorio unico regionale) procedures.
(d) In case the mandatory term to conclude the screening procedure is not complied with, the power of the relevant entity entrusted with substitutive authority to step in and conclude the procedure within the following 30 days.
Article 50-bis introduces a fast-track procedure for the filing, analysis, and decision of claims filed against authorisations and environmental impact assessment decrees for the construction and operation of linear energy infrastructures (gas pipelines, power lines, oil pipelines, transmission network of thermal fluids). According to this simplified procedure, all the procedural terms are reduced by half and the courts are required to render a prompt decision on the merits of the relevant case.
Article 51 simplifies the environmental impact assessment procedures to be carried out for the construction of interventions of such nature to be identified by 31 December 2020 by means of one or more ministerial decrees. According to this provision, the Ministry of Environment, Land and Sea Protection shall decide, within 30 days from the application, if such interventions would be subject to the environmental impact assessment procedure, to the environmental screening procedure or to neither of them.
Another novelty is that the term of the environmental impact assessment procedure decree and of the landscape authorisation for the execution of the examined infrastructures is increased from 5 years to 10 years. This means having a longer term to build these infrastructures without th need to apply for an extension to the relevant region.
Article 56 of the Simplifications Decree aims at simplifying and rationalising the authorisation procedures for the construction of renewable energy projects and some types of new plants.
In particular, in case of projects for the variation of renewable energy plants deriving from integral reconstruction, refurbishment, reactivation or repowering, the environmental impact assessment shall cover only the environmental assessment of the proposed changes compared with the ex-ante situations. This provision has the purpose of facilitating the environmental impact assessment procedures concerning modifications to existing plants by avoiding that, in case of modifications, the environmental impact assessment procedure would re-examine the plant as a whole.
The regulatory framework for variations to existing plants and projects has been significantly innovated as outlined below:
(a) variations qualified as substantial are authorised by means of the single authorisation;
(b) variations qualified as non-substantial are authorised by means of the PAS (Procedura Abilitativa Semplificata), including, if necessary any environmental impact assessment permit, to be filed with the relevant Municipality 30 days before the actual start of the works;
(c) variations to photovoltaic and hydroelectric plants and project, which do not entail changes to the physical dimensions of the devices, to the volumes of the facilities and of the area where the plants and infrastructures for the connection are located, are not considered substantial variations and can be authorised by means of a simple communication to be sent to the relevant Municipality.
The Simplifications Decree also provides for minor variations that are neither subject to environmental impact assessment and landscape authorisation procedures nor to any other permits and can be authorised pursuant to a new simplified authorisation procedure called sworn declaration of start of works (dichiarazione asseverata di inizio lavori). These interventions shall be carried out on existing plants or authorised projects and must not entail an increase of the area occupied by the plants and infrastructures for the connection, regardless of the final power resulting from the intervention and must fall within one of the following categories:
(a) wind plants: interventions, consisting of the substitution of the type of rotor and resulting in the increase of the physical dimensions of blades and of ancillary volumes not exceeding 15%;
(b) ground-mounted photovoltaic plants: interventions that – even subsequently to modules replacement and substitution of other components and through the variation of the plant’s layout – result in a variation to the volumes not exceeding 15% and a variation to the maximum height not exceeding 20%;
(c) photovoltaic plants installed on buildings: interventions of modules replacement on buildings having a productive use, as well as, in the case of buildings having a residential use, interventions that do not result in any variation or that result in a decrease of the angle between the modules and the surface on which they are installed; and
(d) hydroelectric plants: interventions that, without increasing the derivative flow rate, result in a variation of the physical dimensions of components and of the volumes of the constructions in which they installed not exceeding 15%.
The same procedure of the sworn declaration of start of works (dichiarazione asseverata di inizio lavori) applies to the construction of new photovoltaic plants, with modules installed on rural buildings, on buildings having a productive use and on residential buildings having a residential use, as well as projects for the realization of new plants with modules installed in substitution of eternit or asbestos, with the sole exception of buildings located in historical centres or buildings subject to cultural/landscape restriction.
Article 56 introduces significant novelties allowing two new categories of renewable plants to access to the relevant incentive regime.
In general, photovoltaic plants installed on agricultural lands cannot have access to the relevant incentives. According to Article 56, this restriction does no longer apply if:
(a) the relevant area is qualified as Site of National Interest (SIN); or
(b) the relevant area is a former landfill, which has been closed and restored, or a quarry for which all the required interventions of environmental restorations have been carried out and acknowledged by the relevant public authority.
In addition, Article 56 focuses on renewable plants, different from the photovoltaic ones, that did not opt for the so-called “Spalma Incentivi FER” introduced by Article 1, para. 3, of law decree No. 145/2013 (Spalma Incentivi FER was a voluntary remodulation of the relevant incentives granted to renewable plants different from the photovoltaic ones).
These plants, which according to the previous legislation could not access to any kind of incentive regime for a period of 10 years after the expiry of the incentive regime they were benefitting from, can now participate in the auctions and registries run by the GSE if interested by interventions of repowering, reconstruction, reactivation. These plants can be included in the rankings published by the GSE within the limit of the capacity not assigned to other plants and with an incentive reduced by 5% (in case of auctions) and 3% (in case of registries) in respect of the offer submitted by the relevant operator.
No limits or reductions apply for renewable plants that did opt for the Spalma Incentivi FER.
Article 56 also introduces important restrictions to the power of the Gestore dei Servizi Energetigici GSE S.p.A. (the Italian public entity that manages incentives granted to renewable plants) to apply sanctions to operators that benefit from incentives for renewable plants. The new provisions aim at guaranteeing more stability and legal certainty to investments made by investors in the renewable energy sector.
The first novelty establishes that the GSE can declare the forfeiture of incentives and order the reimbursement of all the payments only within the limits set out in Article 21-nonies of law No. 241/1990. This means that the mere alleged unlawfulness of the situation would not be sufficient to declare the forfeiture of the incentives. The other conditions are:
(a) the existence of a prevailing public interest over the interest of the relevant investor to keep the incentives and safeguard the investment; and
(b) the lapse of a period not longer than 18 months from the grant of the relevant incentive (unless the forfeiture is due to false declarations or false representation of the facts made by the operator).
The second novelty concerns the TEEs (energy efficiency certificates, also known as white certificates) by clarifying that the annulment of the grant of TEEs or the denial of a final balance of energy savings does not affect the incentives previously paid by the GSE for the same interventions. This rule can be derogated only if the GSE’s decision is based on untrue documents or false declarations made by the operator.
The rules above apply also to pending proceedings and, upon the relevant operator’s request, also to proceedings already concluded for which a judiciary claim is pending. In this case, the GSE shall answer the application within the following 60 days and revoke its unfavourable act, unless the operator’s conduct has resulted in a criminal conviction (even if the decision is not final). Therefore, the described novelty has introduced an amnesty of all the benefits granted by the GSE prior to its negative decision.
Article 57 contains several provisions with the purpose of simplifying the relevant regulation for the construction of parking areas equipped with one or more charging stations for electric vehicles.
(a) these infrastructures can be built on public and private areas or buildings, including those of social housing, as well as on private roads opened to public use, on private roads not opened to public use, on public and private parking areas;
(b) Municipalities shall adopt resolutions within 6 months from the entry into force of the Simplifications Decree to regulate the installation and operation of charging stations within their territory with the purpose of guaranteeing an adequate number of infrastructures in relation to the demand (if possible 1 charging station per 1,000 inhabitants);
(c) Municipalities can allow, under a concession or authorisation regime, public and private entities to carry out the installation and operation of charging stations, even by providing a subdivision of the areas into lots;
(d) Municipality can reduce or exclude the tariff paid for the occupation of public areas if the charging stations supply electricity produced from renewable sources;
(e) the grant of new concessions for fuel stations areas (and their renewal) is subject to the obligation to equip such areas with charging stations.
The most relevant novelties contained in Articles 60 and 62 are the following:
(a) Existing pipelines. Without prejudice to the application of the relevant environmental and landscape authorisation, the renovation of existing gas pipelines made on the same layout, as well as the dismantling of the same pipelines, can be authorised on the basis of a declaration of start of activity (dichiarazione di inizio attività).
(b) Gas transmission network in Sardinia. This provision introduces the concept of the so-called “virtual pipeline” in Sardinia, which is the system considered part of the national transmission network, also for tariff purposes, constituted by transmission and LNG regasification infrastructures necessary for the supply of natural gas by ship from Snam’s regasification terminals to the regasification terminals to be built in the regional territory. To this end, within 30 days from the entry into force of the Simplifications Decree, Snam shall start a procedure for the connection to the national transmission network by means of these infrastructures and start the preliminary activities to build such new infrastructures.
(c) Strategic gas storage. For the purpose of simplifying and promoting the transit through the Italian grid of natural gas imported from both UE states and non UE-countries, the Simplifications Decree has radically changed the mechanism of charging the strategic storage fee. Whilst the previous version of Article 12 para. 11-bis of legislative decree No. 164/2000 provided that the strategic storage fee was charged by Stogit to producers and importers of natural gas, the Simplifications Decree has changed such structure since it now imposes the burden of the strategic storage fee on the clients connected to the exit points of the Snam gas grid. A clarification on this new mechanism will be applied is expected from ARERA.
(d) Modifications to existing energy plants with a power higher than 300 MWt. The intervention of modifications to such plants are considered substantial if they entail negative and significant effects on the environment or an increase of the power by 5%. In this case, such interventions are authorised by means of a single authorisation issued by the Ministry of Economic Development. All the remaining interventions are considered as non-substantial and are subject only to a communication to be sent to the Ministry of Economic Development 60 days before the start of the works.
The Simplifications Decree provides a detailed regulation of energy storage systems.
For electric storage units, connected to plants producing electricity, the Simplification Decree provides that they are considered as ancillary infrastructures pursuant to Article 12 of legislative decree No. 387/2003 and authorised within the single authorisation procedure.
For electrochemical storage units, the applicable authorisation procedure depends on the area of location and the type and power of plants to which they may be connected.
(a) the regime of the single authorisation applies to:
- storage units to be located within areas where fossil fuel plants with a power equal or higher than 300 MWt in operation are located;
- stand-alone storage units located in areas not industrial and the related infrastructures for the connection to the grid;
- storage units, both combined or not with renewable energy plants not yet built with a power higher than 300 MWt;
- storage units, both combined or not with renewable energy plants, in case the plants are already existing and the storage unit does occupy new areas;
(b) the regime of the PAS (Procedura Abilitativa Semplificata) applies to:
- storage units to be installed within areas where industrial plants are located, even if not in operation or in course of being dismantled, or within areas where fossil fuel plants with a power lower than 300 MWt in operation are located, or within quarries or areas for the treatment of liquid and gaseous hydrocarbons in course of being dismantled, which do not occupy new areas or do not increase the height of the existing infrastructures. In case any of these conditions do not occur, the regime of single authorisation applies;
- storage units, both combined or not with renewable energy plants, in case the plants are already existing and the storage unit does not occupy new areas;
(c) the regime of free activity applies to:
- storage units with a power lower than 10 MW regardless of their location. Such systems can be installed without the obtainment of any authorisation, with the sole exception of landscape and environmental authorisations, safety and fire prevention permits, way-leave issued by the relevant electricity distributor.