EUROPEAN DIRECTIVE 2018/2001
On December 1, 2021, the Legislative Decree no. 199/2021, implementing the European Directive 2018/2001 on the promotion of the renewable energy ("RED II Directive"), was published on the Official Gazette, ordinary supplement no. 42/L (the "Decree").
The RED II Directive aims at complying with the decarbonization objectives set forth by the European Union. The main purpose of the Decree is (i) the compliance between the national and European objectives under an environmental and energy development perspective and (ii) the achievement of the goals provided for by Piano Nazionale per la Ripresa e Resilienza (PNRR) and Piano Nazionale Integrato per l'Energia e il Clima (PNIEC).
The development of the energy sector constitutes the key point for the achievement of those objectives; the institutional, economic and financial instruments provided for by the Decree are focused on the administrative simplification and the ecological and environmental transition.
The main news and provisions introduced by the Decree are listed below.
Public incentives granted by the Gestore dei Servizi Energetici (GSE)
Articles 4 and 5 of the Decree provide the purposes that the public incentives shall aim to and the application perimeter of the GSE regulation. In detail, the access to public incentives is aimed at ensuring a fair return of both investment and operation costs for the developer of a renewable energy plant. The Decree provides, inter alia:
- the definition of the general characteristics for incentive instruments to produce electricity from plants powered by renewable sources.
- The access to the public incentives by means of competitive bidding procedures (downward auctions - aste al ribasso), carried out with reference to power contingents, for renewable energy plants having a power planned capacity over a threshold of at least 1 MW.
- The award of the public incentives, for renewable energy plants having a power planned capacity of less than 1 MW, according to the following criteria:
a) for power plants with generation costs closer to market competitiveness, through an application to be made directly at the date of entry into operation, subject to compliance with technical and environmental protection requirements;
b) for innovative power plants and power plants with high generation costs, in order to control the costs, the incentive is allocated by way of call for tender, carried out with reference to power contingents (contingenti di potenza) and based on selection criteria for the compliance with technical, environmental and land protection and cost-efficiency requirements.
- The direct access to the public incentives for the renewable energy plants hving a power planned capacity equal to or less than 1 MW, which are part of energy communities or collective self-consumption configurations. Such kind of incentive rewards instantaneous self-consumption of energy through a specific tariff, which can also be graduated based on the power of the plants. The incentive is allocated directly, with a request to be made on the date of entry into operation.
- In addition, further specific criteria apply to the incentive mechanisms, including inter alia the following:
- the combination between storage systems and renewable sources is highly recommended and promoted;
- in case the public incentives can be granted by means of downward auction and by means of a call for tender, carried out with reference to power contingents, the renewable energy plants located in the so called "suitable areas" (as defined in the following), with the same economic offer, will have a priority access to the public incentives;
- the voluntary fractioning of a single economic initative (artato frazionamento), in order to increase the profits and bypass the incentives mechanism is not allowed;
- the development of renewable energy plants following the asbestos removal allows a simplified access to the public incentives;
- measures can be provided to integrate the income resulting from participation in the electricity market, in favour of renewable source plants that continue to be operated at the end of the period of entitlement to incentives, especially with reference to renewable source plants with generation costs linked to fuel supply costs, considering the need to contain costs based on efficiency and, in any case in compliance with a circular economy principle and the state aid rules.
The biomethane regulation, including the access to the public incentives granted by the GSE, was initially provided for by the Ministerial Decree enacted on March 2, 2018. The Decree has amended the previous regulation, introducing the following provisions.
- Public incentives granted by the GSE (Article 11 of the Decree):
(i) it is provided the issuance of specific ministerial decrees aimed at defining the implementation methods of the incentives and at coordinating the application of the incentive regime established by the Ministerial Decree dated March 2, 2018, during the period between December 31, 2022 and June 2026;
(ii) as to the power plants producing electricity from biogas, landfill gas, residual gas from purification processes subject to partial conversion for the production for biomethane that access the incentives, it is provided to verify the compliance with the requirements is based on the quantity and type of materials, as resulting from the authorization.
- Authorization procedure (Article 24 of the Decree):
(i) the so called Procedura Abilitativa Semplificata (PAS) - according to Article 6, Legislative Decree no. 28/2011 - can be applied to the new power plants with a production capacity not exceeding 500 standard cubic meters/hour;
(ii) with reference to the conversion measures to biofuels production of electricity generation plants fed by biogas, landfill gas and residual gases from purification processes (in case of the variations are not substantial), a communication to the competent authority is necessary in order to update the existing authorization and to specify the quantity by weight and type of material to be used exclusively for biomethane production;
(iv) the biomethane produced from substances classified as waste, ceases to be considered "waste", in accordance with Article 184-ter, Legislative Decree no. 152/2006
3. Suitable areas for the installation of renewable energy plants (Articles 20-22 of the Decree)
The Decree provides the general criteria concerning the classification of the suitable areas for the installation of the renewable energy plants. In detail, the identification of the suitable areas needs to balance the environmental and landscape safeguard and the increase of the energy production from renewable sources, pursuant to the objectives set forth by PNRR and PNIEC.
- The criteria aimed at identifying the suitable areas for the installation of renewable energy plants will be provided for by ministerial decrees. Pending the identification at the ministerial level, the Decree states as follows:
(i) any moratoria or suspension of time limits for authorization procedures shall not be imposed;
(ii) areas that are not included in the list of suitable areas cannot be considered as unsuitable in the context of territorial planning or individual procedures, only because they are not included in the list of suitable areas;
(iii) the following areas are considered suitable:
a) sites where power plants, having the same renewable source, are already installed and where non-substantial variations are carried out;
b) areas deriving from restored sites:
c) quarries and mines that have been closed, not restored, or abandoned or are in a status of environmental degradation.
- A digital platform created by the GSE is provided to support the Regions and Provinces in the process of identifying suitable areas.
- The Decree set forth specific rules having as object the authorization procedures relating to the construction and operation of renewable energy plants on suitable areas. In particular:
a) with reference to the authorization procedures for electricity production plants fed by renewable sources on suitable areas, the competent landscape authority issues a non-binding mandatory opinion. If such opinion is not be released within the term provided for by the law, the competent authority shall nevertheless decide on the issuance of the authorization;
b) deadlines for authorization procedures for installations of renewable energy plants on suitable areas are reduced by one third.
Authorization procedures for off-shore power plants (Article 23 of the Decree)
- The authorization for off-shore power plants, that includes the concession for the use of the maritime domain, is issued by the Ministry for Ecological Transition in collaboration with the Ministry for Infrastructure and Sustainable Mobility and the Ministry for Agricultural, Food and Forestry Policies.
- The management plan of the maritime space to produce energy from renewable sources (piano di gestione dello spazio marittimo produzione di energia da fonti rinnovabili), that will be adopted within 180 days from the coming into force of the Decree, shall identify the suitable areas for the construction of off-shore power plants.
- Pending the adoption of the above-mentioned plan, the following areas are considered suitable:
a) oil and gas platforms and related infrastructure, disused oil platforms and the area two nautical miles away from each platform - subject to the provisions of the national guidelines for the off-shore decommissioning;
b) ports, for wind farms of up to 100 MW installed capacity, subject to a potential variation of the port master plan (piano regolatore portuale), to be adopted within six months from submission of the application.
- During the authorization process for the installation of off-shore power plnts located in the aforementioned areas:
a) the competent landscape authority shall issue a non-binding mandatory opinion identifying, where necessary, specific prescriptions for the best balance between the safeguard of the landscape and the assets of archaeological interest;
b) the procedural deadlines for granting the authorization are reduced by one third.
- With regard to the applications already submitted pending the identification of suitable areas, any moratoria or suspension of the terms of authorization procedures shall not be imposed.
- Within 90 days from the coming into force of the Decree, guidelines for the performance of authorization procedures will be adopted by the Ministry for Ecological Transition, the Ministry of Culture and the Ministry of Infrastructure and Sustainable Mobility.