Avv. Andrea Fantappiè
Legislative Decree 190/2024 regulates the administrative procedures for the construction and modification of renewable energy sources (RES) plants, with the aim of simplifying and speeding up the authorisation process. The text is intended to serve as a reference for renewable energy sources, but it will need to be coordinated and examined in conjunction with other regulations in the sector. Three regimes are regulated: free-to-implement activity (AL), the simplified authorisation procedure (PAS), and the single authorisation (AU), based on the complexity of the proposed intervention.
The decree also provides that the Regions and Autonomous Provinces may adapt their regulatory framework to the provisions at the national level, as well as the identification by the GSE of so-called acceleration zones to facilitate the construction of plants. A significant new development is the power of municipalities to raise reasoned objections within the services conference, which decides on authorisation, even for purely urban planning reasons, with the possibility of appealing to the President of the Council of Ministers. However, this power could conflict with the overriding public interest, greatly limiting the need, expressed throughout the reform, for the maximum spread of RES plants.
Summary: 1. Purpose – 2. Adjustments by the Regions, Autonomous Provinces and the GSE – 3. The different administrative regimes – 3.1. Free-to-Implement activity (AL), 3.2. The simplified authorisation procedure -3.3. The Single Authorisation (AU) – 4.0 Opposition proposed by a dissenting municipality
- PURPOSE
1.1.- Legislative Decree No. 190 of 25 November 2024 aims to standardise the administrative procedures related to the construction and operation of renewable energy production plants (also known as RES plants), as well as all modifications, upgrades, total or partial refurbishments and related works.
However, contrary to some opinions, this is not a Testo Unico (an exhaustive text) on renewables, but rather a focused legislative framework on the administrative regimes for obtaining or changing authorisations for RES installations. It is complemented by the entire regulatory framework, broader policies, and sector-specific regulations such as:
-Legislative Decree 199 of 2021, Decree Law No. 17 of 1 March 2022, known as the ‘Energy Decree’;
-Ministerial Decree No. 297 of 2 August 2022,
-Decree of 21 June 2024, known as the ‘Suitable Areas’ on the promotion of the use of energy from renewable sources (see Ministerial Decree No. 297 of 2 August 2022),
as well as sector specific regulations (see, for example, Ministerial Decree No. 340 of 15 September 2022 on biomethane).
Therefore, applicants for new or modified RES plants must refer not only to the recent Legislative Decree (which does not exhaust the sources of reference) but also to the various specific regulations laid down by the legislator to regulate individual renewable energy sources.
1.2.- The decree, aligned with the guidelines set out in the enabling law, is primarily aimed at promoting the widespread adoption of RES technologies by: streamlining, reorganising, and simplifying administrative procedures, respecting the principles of subsidiarity, reasonableness, and proportionality.
The direct result of these principles is:
- Classification of RES facilities as urgent public works, permitting installations even in agricultural areas, adhering to current urban planning instruments.
- The provision that, when weighing up the various interests underlying their implementation, the administration must take into account the fact that these projects are considered to be of overriding public interest within the meaning of Article 16-septies of Directive (EU) 2018/2021 of the European Parliament and of the Council of 11 December 2018 (Article 3).
Sub i) The decision to declare the interventions in question to be in the public interest is certainly not new, as it was already provided for in Presidential Decree No. 327 of 8 June 2001 and, in particular, Article 12 of the Consolidated Law on Expropriation, which identifies the acts that may give rise to a declaration of public utility, as well as Article 12 of Legislative Decree 387/2003, which is now expressly repealed with the entry into force of the Legislative Decree in question.
The possibility of implementing interventions in agricultural areas is explicitly provided for, on condition that the parameters laid down in Article 20, paragraph 1 bis, of Legislative Decree 199/2021 are complied with.
Sub ii) The concept of overriding public interest has already been explored in the case law of the Council of State, which recently clarified that the transition to electricity production from renewable sources is in national interest. This principle gives rise to the obligation on the part of the administration to exercise its power in such a way as to strike a balance, supported by appropriate reasoning, between the aforementioned national interest and the other interests involved in the proceedings.
- ADJUSTMENTS BY THE REGIONS, AUTONOMOUS PROVINCES AND THE GSE
As is well known, in the field of energy, on the basis of Constitutional Law No. 3/2001, which amended Title V of the Constitution, the State and the Regions cooperate in the drafting of the relevant legislation. Specifically, the State must determine the fundamental principles, while the Regions and Autonomous Provinces must legislate in accordance with the State guidelines.
Legislative Decree 190/2024 thus provided for:
- In Article 1, that the Regions and Local Authorities may adapt the regulations on administrative regimes within 180 days of the date of entry into force of the Decree, which took place on 30 December 2024, establishing, however, that in the event of failure to adapt within the prescribed period, Legislative Decree 190/2024 shall apply in full;
- In Article 12, the so-called acceleration zones, and assigned:
– the GSE until 21 May 2025 to publish on its website a map of the national territory identifying renewable energy potential areas suitable for the installation of renewable energy production plants, related infrastructure and storage facilities;
– the Regions and Autonomous Provinces until 21 February 2026 to adopt a plan for identifying terrestrial acceleration zones for renewable energy plants and co-located renewable energy storage facilities.
Sub i) In fact, to date, some regions have already taken steps to adapt their regulations, either by simply transposing national provisions or by providing detailed provisions on, for example, guarantees or preliminary costs. In other cases, however, there has been a real institutional conflict, as in the case of the Region of Sicily, which has lodged an appeal on grounds of constitutional legitimacy in relation to Article 9 of Legislative Decree 190/2024.
Sub ii) The GSE complied with the deadlines assigned and, within the set deadline, identified on its institutional website the so-called acceleration zones, i.e. specific areas identified to facilitate and speed up the installation of renewable energy production plants.
- THE DIFFERENT ADMINISTRATIVE REGIMES
With a view to simplifying and rationalizing administrative action, Article 6 of the new legislation identified three administrative regimes that can be used for the construction or modification of RES plants:
-free-to-implement activity (AL)
-the simplified authorization procedure (PAS)
-the single authorization (AU)
The Decree then, by referring to Annexes A, B and C, specifically identifies the interventions that can be carried out under each of the aforementioned regimes.
3.1.FREE-TO-IMPLEMENT ACTIVITY (FREE FROM AUTHORISATIONS) (AL)
3.1.1.-Article 7 of legislative decree 190/2024 defines the free-to-implement activities (AL) for renewable energy plants as listed in annex A.
For projects and related works listed in annex A of the decree, permits, authorisations and consent are not required.
Essentially, they may be implemented without any prior notification or reporting. Compliance is limited to submitting a simplified single form pursuant to paragraph 10 of Article 7 by decree of the Ministry of Environment and Energy Security.
3.1.2.- However, the extreme simplification regime granted to the works in question assumes the following:
- the compatibility of the project with urban planning instruments and building regulations, and
- the availability of the area by the proponent.
The article also specifies that the availability of the area may be acquired by the proponent for any reason.
This provision aligns with existing case law, according to which, in matters of environmental authorisations, ‘availability of the area ‘ means the existence of a legal title of a real or personal nature on the part of the proponent that can be said to be suitable for non-precarious use (ie. secure established and legally recognized right to use or occupy the area, such as ownership, long-term lease or other assured right of the area affected by the plant).
3.1.3.- Under the new regulations, it is possible to use the free to implement activity (AL) process even for interventions in areas subject to landscape restrictions specified in Article 136, paragraph 1, letters b) and c) of the code of Cultural Heritage and Landscape.
In such cases, however, prior authorisation must be obtained from the authority responsible for protecting the landscape, which is required to give its opinion within thirty days of receiving the application for authorisation, subject to a binding opinion from the (Soprintendenza) Superintendency for the Cultural Heritage and Landscape to be given within twenty days.
Once the thirty-day period has elapsed, and unless the Superintendency has issued a refusal, the authorisation is deemed to have been granted and without restrictions.
No prior Landscape authorisation is required for works to be carried out on areas and buildings subject to restrictions pursuant to Article 136, paragraph 1, letter c) of the Code of Cultural Heritage and Landscape that are not visible from outdoor spaces and panoramic viewpoints, or, for photovoltaic systems, whose roofs and coverings are made of traditional local materials.
Finally, for projects involving the occupation of land that has not yet been developed, the legislative decree requires the proponent to pay a deposit to guarantee the execution of decommissioning and restoration works, to be paid by submitting a bank or insurance guarantee to the municipality or municipalities with territorial jurisdiction.
3.2 THE SIMPLIFIED AUTHORISATION PROCEDURE
3.2.1.- Article 8 of the legislative decree in question subjects the following to the PAS:
– the works described in Annex B and
– those that cannot be subject to the free-to-implement activity (AL)
In accordance with the provisions of the aforementioned Article 7.
The administrative regime functions as an intermediate step between a freely implementable activity and a single authorisation. It does not require issuing an explicit decision; instead, it occurs automatically if a specified deadline passes without any refusal.
3.2.2.-The criteria for qualifying for the PAS regime are, once again:
– the availability of the areas and
– the compatibility of the project with urban planning and building regulations.
According to Article 8 of the PAS regulations, the project proponent must submit their project to the municipality along with several substitute declarations and affidavits. These documents should certify that the project site is available, compliant with urban planning and building regulations, and include details such as the project timeline, environmental mitigation measures, and commitments to restore the sites involved.
The article also recognises the proponent’s right to activate the procedures referred to in Presidential Decree No. 327 of 8 June 2001 where necessary for the implementation of related works.
3.2.3.- Any refusal must be expressed by the municipal administration within thirty days of the submission of the project; otherwise, the authorisation shall be deemed to have been granted without conditions. The aforementioned deadline may be suspended only once if, within thirty days of receiving the project, the administration justifies the need for additional documentation or further investigation, which the proponent is required to submit within a period not exceeding thirty days; otherwise, the project shall be deemed to have been abandoned. In the case of requests for further investigation, the deadline for the procedure shall start from the thirtieth day or from the date of receipt of the additional information from the proponent.
3.2.4.-If, on the other hand, the project requires one or more approvals from the municipal authorities, the local authority must decide on them within forty-five days of receiving the project. If no explicit refusal is issued within this period, the approval is automatically considered granted without any conditions. However, the competent administration may, on one occasion only, request additional documents or preliminary contributions from the project proponent. The proponent must submit these within the specified deadline, or else the project will be considered forfeited.
3.2.5 Finally, for interventions needing approval from authorities outside the municipality, the municipality must hold a services conference. However, following the streamlined approach introduced by the new legislation, the process for this conference is time-limited. Specifically, if sixty days pass after the project is submitted and the municipality has not communicated a refusal, the authorisation is automatically considered granted without any conditions.
3.2.6.- In any case, the Municipality is granted the right to exercise its power of annulment for self-protection within a peremptory period of six months.
The PAS shall lapse if the works are not started within one year of the completion of the procedure and if they are not completed within three years of their commencement.
3.3. THE SINGLE AUTHORISATION (AU)
3.3.1.- Article 9 regulates the administrative regime of the single authorisation, repealing the provisions of Article 12 of Legislative Decree No. 387 of 29 December 2003 .
The following are subject to single authorisation:
– the interventions referred to in Annex C and
– those which, although identified as subject to the free-to-implement activity (AL) and PAS, are in conflict with urban planning.
The procedure includes, where necessary, the environmental assessments referred to in Title III of Part Two of Legislative Decree No. 152 of 3 April 2006. However, the proponent has the right to request the competent authority for environmental assessments that the EIA ( Environmental Impact assessment) or EIA screening decision be issued outside the single authorisation procedure.
In the case of projects subject to regional EIA, the article gives the Regions and Autonomous Provinces the option of opting for the single authorisation procedure instead of the PAUR procedure provided for in Article 27-bis of Legislative Decree No. 152 of 3 April 2006, which, if chosen as the procedural model, must be completed within a total period of two years.
The proponent must submit a single authorisation application, along with the required documentation, including a certification from a qualified technician who provides a detailed report on the area’s qualification, in accordance with Article 20 of Legislative Decree No. 199 of 2021:
– to the Region, for plants under 300 MW, and
– to the Ministry of the Environment and Energy Security, for plants with a capacity exceeding 300 MW and for offshore plants.
3.3.2. For projects not requiring environmental assessments, the article states that within ten days of receiving the application for a single authorisation, the competent administration involved must make the received documentation available electronically to any other participating administrations.
Within the following twenty days, the competent administration and each concerned administration shall verify the completeness of the documentation within their respective areas of competence. If, as a result of this verification, further documentation is required, the competent administration shall request it from the proponent within the following ten days. The latter must respond to the request for documentation within thirty days; failing this, the application will be deemed inadmissible, except in cases where an extension is necessary for the production of such documentation, which, in any case, may not exceed ninety days.
Within ten days after the completion of the document verification phase, the competent administration shall hold a services conference. The conference must be completed within 120 days from the date of the first meeting.
3.3.3.- For projects subject to environmental assessment, Article 9 adds a further procedural step to the document assessment phase, aimed at complying, within thirty days, with the publication and consultation requirements set out in Legislative Decree No. 152 of 3 April 2006.
In this case, if, following the consultation, it is necessary to amend or supplement the documentation acquired, the administration responsible for environmental assessments shall notify the administration responsible for the single procedure, which, in turn, has the right to grant the proponent a period of thirty days to submit the requested amended or supplementary documentation.
If, within that period, the proponent does not file the supplementary documentation, the administration shall adopt a measure refusing the single authorisation without prior notice of rejection.
Within ten days of the outcome of the consultation or the date of receipt of the resulting supplementary documentation, the competent administration shall convene the services conference, whose work, again, must be completed within 120 days from the date of the first meeting. In this case, however, the deadline for the end of the works of the services conference may be suspended for a maximum of sixty days for projects subject to EIA screening or for a maximum of ninety days in the case of projects subject to EIA.
The approval at the end of the services conference serves as the final authorisation. This includes the environmental impact assessment (EIA) measure or EIA screening, as well as any approvals—regardless of their specific name—that fall within the authority of the competent administrations and managers of public assets or services. These authorisations are necessary for the construction and operation of the project and may also involve amendments to the urban planning instrument requirements, if needed.
There is an obligation to restore the site to its original condition following the decommissioning of the plant, with an estimate of the related costs and the related financial guarantees to be provided at the time of issue of the single authorization, as well as any environmental compensation in favour of the municipalities.
The single-authorisation measure is immediately published on the institutional website of competent administration and is valid for a period of not less than four years. The single authorisation lapses if the works are not started, unless an extension is granted upon request submitted by the proponent at least ninety days before the expiry of the deadline.
4.0 OPPOSITION PROPOSED BY THE DISSENTING MUNICIPALITY
4.1.- In line with the previous legislation, the regulatory framework outlined in Article 9 confirms the decision-making services conference as the preferred procedural model for the joint and simultaneous examination of the public and private interests underlying the procedure.
In this procedural context, the competent administration is required to make an independent assessment of the prevailing positions expressed during the service conference, without considering dissent expressed by one of the participating administrations, even if binding, as preclusive to the adoption of the final favourable measure.
However, in a decidedly innovative contribution compared to the previous regulations, Article 9, paragraph 10, letter c), after stipulating that the single authorisation constitutes, where necessary, a variation to the urban planning instrument, now specifies that ‘ In the cases referred to in this letter, the opinion of the municipality is issued within the framework of the services conference. In the event of justified disagreement, the municipality can appeal against the decision pursuant to Article 14-quinquies of Law No. 241 of 7 August 1990 ‘ .
4.2.- Article 14-quinquies of Law No. 241 of 7 August 1990 already grants ‘administrations responsible for environmental protection, landscape and territorial protection, cultural heritage protection or the protection of public health and safety ‘ the right to lodge an appeal with the Presidency of the council of ministers, against the reasoned decision of the services conference, with the effect of suspending its effectiveness.
Following such opposition, the Presidency of the Council of Ministers invites the administrations that have expressed dissent and the others that participated in the conference to identify a shared solution to replace the opposed determination.
If an agreement is reached, the competent administration adopts a new reasoned decision concluding the conference. Otherwise, the matter is referred to the Council of Ministers, which may decide independently whether to accept or reject the opposition and, consequently, confirm, reform or partially amend the reasoned decision concluding the services conference.
According to administrative case law, the remedy of opposition pursuant to Article 14-quinquies of Law 241/90 can only be activated by the administration that, within the services conference, has expressed a qualified dissent. In other words, it must be dissent expressed by the administrations responsible by law for the sensitive interests of environmental protection, landscape and cultural heritage, health and public safety, as well as by the Regions and Autonomous Provinces of Trento and Bolzano in matters within their respective competences.
On this subject, the Council of State has ruled that municipalities are not entitled to raise the objection in question because, in general, and subject to verification on a case-by-case basis, these bodies cannot be defined as the administrations responsible by law for the aforementioned sensitive interests. According to administrative case law, a different opinion would lead to municipalities being granted a sort of veto power in any proceedings in which one of the various interests entrusted to their care by law is at stake.
4.3.- In light of the new regulatory provision, the question arises as to whether the clause inserted at the end of paragraph 10, letter c) of Article 9 of Legislative Decree 190/2024 is innovative with respect to the general rules laid down in Article 14-quinquies, Law No. 241/1990, in the sense of always legitimising the municipality to lodge an objection in the event that its dissent has been expressed within the services conference, even with regard to the urban planning aspects underlying the project of interest to the proponent.
This interpretation, which allows the municipality to always file an objection (provided it is justified), seems to be supported not only by the clear wording of the law but also by the systematic placement of the clause in question in Article 9, paragraph 10, letter c), i.e. after the specification that the single authorisation is intended to vary the urban planning instrument where necessary.
In this way, however, the new legislation grants local authorities a general power of opposition in urban planning matters, independent of the protection of sensitive environmental interests, which is difficult to reconcile with the need for acceleration and simplification underlying the entire regulatory framework introduced by the legislative decree in question.
Of course, in order to understand the exact scope of the application of the provision in question, we will have to wait for the first court rulings on the subject, which should better define the concept of justified dissent by the municipal administration.
What seems certain from the outset, however, is that the possibility for the municipality to oppose renewable energy projects proposed in its territory could significantly limit the requirement set out in Legislative Decree 190/2024 for the widespread implementation of these plants (Article 2) and, ultimately, the very concept of overriding public interest (Article 3).
