TRANSFERABILITY OF “PROJECT-STAGE” PLANTS AND BIOMETHANE INCENTIVES

ANDREA FANTAPPIE’, LAWYER

GIULIO CARANO, LAWYER

ABSTRACT

This paper examines the prohibition, laid down in Article 6(4) of the Ministerial Decree of 15 September 2022, on transferring to third parties the ownership of biomethane production plants that have been successful in competitive procedures, before they enter into operation and the contract with the GSE is executed. Having established that the prohibition has no basis in EU law or in primary legislation, and having traced its precedents in the incentive schemes for renewable electricity, the paper assesses whether the provision can withstand scrutiny in light of the constitutional case law on the transferability of plants and of judgment No. 758/2025 of the Council of Administrative Justice for the Region of Sicily (C.G.A.R.S.), which upheld the annulment of the obligation, laid down in the regulations of the Sicilian Region, to build plants directly.

Summary: 1. Introduction. – 2. The Prohibition in the 2022 Biomethane Decree and in the GSE Implementing Rules. – 3. The (Missing) Basis for the Prohibition in EU Law and Primary Legislation. – 4. Holder-Invariability Clauses in the Incentive Schemes for Renewable Electricity. – 5. The “Direct Construction” Requirement under the Sicilian Rules: TAR Catania No. 530/2025 and C.G.A.R.S. No. 758/2025. – 6. Applicability of the Principles to the 2022 Biomethane Decree. – 7. Share Transfers and Change of Beneficial Owner. – 8. Conclusions and Outlook.

 

1. Introduction

By the decree of 15 September 2022[1], the Ministry of Ecological Transition (now the Ministry of the Environment and Energy Security, “MASE”) regulated support for the production of biomethane injected into the natural gas grid, implementing Articles 11(1) and 14(1)(b) of Legislative Decree No. 199 of 8 November 2021 and consistently with Mission 2, Component 2, Investment 1.4 of the National Recovery and Resilience Plan (PNRR). The decree (hereinafter also the “2022 Biomethane Decree” or “MD 2022”) provides for a capital grant of up to 40% of eligible costs and an incentive tariff applied for fifteen years to net biomethane production, available to new plants and to the conversion of biogas plants that rank in an eligible position in the rankings drawn up at the end of competitive procedures run by Gestore dei servizi energetici – GSE S.p.A. (“GSE”).

Among the provisions of MD 2022, this paper focuses on Article 6(4), under which “the transfer to third parties of ownership of a plant awarded under a procedure is not permitted before it enters into operation and the standard contract with the GSE referred to in Article 12(2) is executed”[2].

This provision is of considerable practical importance. The development of renewable energy plants typically relies on the transfer of projects – and, together with them, of permits, grid connection offers and positions secured in incentive procedures – between developers, special purpose vehicles and industrial or financial investors; project financing, in turn, requires the initiative to be ring-fenced within a special purpose company. On the other hand, for most biomethane plants the economic viability of the investment depends on the incentives being granted: their loss as a consequence of a transfer amounts, in practice, to a prohibition on selling the plant throughout the period between award and entry into operation.

The paper first examines how the prohibition has been articulated in the GSE implementing rules and whether it has any basis in EU or national sources, whether primary or secondary, also in light of the precedents found in the incentive schemes for renewable electricity (sections 2–4). It then reviews the Sicilian case law which, with regard to a constraint of similar content imposed by the regional rules on single authorisations, held that constraint unlawful in judgment No. 530/2025 of the Regional Administrative Court for Sicily, Catania (“TAR Catania”), upheld by the Council of Administrative Justice for the Region of Sicily in judgment No. 758/2025 (section 5). Finally, it assesses the extent to which the principles laid down in those judgments can be applied to MD 2022 (section 6).

 

2. The Prohibition in the 2022 Biomethane Decree and in the GSE Implementing Rules

Article 12(1) of MD 2022 entrusts the approval of the implementing rules to a Ministry decree, on a proposal from the GSE; under paragraph 2, those rules must comply, among other things, with the principles governing the PNRR. The Implementing Rules, approved on 13 January 2023, have been updated several times, most recently by the versions of 30 May 2024 and 13 May 2025[3]; as far as we are aware, none of the many legislative and regulatory measures affecting MD 2022 has altered the prohibition under examination.

For present purposes, the Implementing Rules provide three sets of clarifications, concerning:

– the transfer of ownership of the plant before participation in the competitive procedure (para. 2.2);

– transfers after admission to the ranking (para. 7.3.3);

– the identification of the beneficial owner as the final recipient of PNRR funds (para. 2.3.1).

2.1.- As to the first aspect, the Implementing Rules provide that, “where ownership of a plant, including a plant at project stage, is transferred before participation in the competitive procedure, the following must, at the time of the application, have been transferred into the name of the Applicant: − the authorisation/permit; − the grid connection quote/offer with third-party connection obligation”. More specifically, the same provision clarifies that, for permits issued by express measure, such as the single authorisation, the competent Authority must have acknowledged the transfer (voltura) by its own measure, after verifying that the transferee meets the subjective and objective requirements on which the permit was granted; for permits formed by tacit approval (silenzio-assenso), the transfer is deemed consolidated as of the date on which it was filed. The provision therefore formalises the possibility of transferring the plant, including at project stage, but only until the application to participate in the competitive procedure has been filed.

2.2.- As to the second aspect, paragraph 7.3.3 of the Implementing Rules requires the producer to notify the GSE of any transfer of ownership of, or of the right to use, the plant, failing which the contracts cannot be transferred to the transferee. In detail, para. 7.3.3 provides that

–           “the Producer must notify the GSE of any transfer of ownership/right of use of the biomethane production plant. Failure to notify prevents the contracts from being transferred to the transferee”;

–           where, following such notification and in the course of the resulting checks, the GSE finds that the transferee does not meet the subjective eligibility requirements for the incentive scheme, the GSE may amend and/or terminate the contracts in force;

–           in any event, the Rules reiterate that “pursuant to Article 6(4) of MD 2022, the transfer to third parties of ownership of a plant awarded under a procedure is not permitted before it enters into operation and the contract with the GSE is executed; accordingly, any transfer will result in forfeiture of admission to the ranking”.

This clarification thus makes clear that ownership of a biomethane production plant may be transferred once the plant has entered into operation and the contract with the GSE has been executed, whereas the prohibition on transfer continues to apply from participation in the competitive procedure until the contract with the GSE is executed and the plant enters into operation.

The result is a three-stage system: free transfer of the project until the application to participate is filed, subject to the transfer of the permit and of the grid connection offer; non-transferability, sanctioned by forfeiture, from admission to the ranking until entry into operation and execution of the contract (while, in the interval between the application and the drawing-up of the ranking, succession to the position of the Applicant, to whom the checks on the requirements relate, is not contemplated); and a return to free transferability after entry into operation, subject to notification to the GSE and verification of the transferee’s requirements. It is significant that, in this last stage, the public interest is considered adequately safeguarded by the check on the transferee’s requirements.

2.3.- As to the third aspect, para. 2.3.1 of the Implementing Rules – consistently with Article 22(2)(d) of Regulation (EU) 2021/241, which, in order to protect the financial interests of the Union, requires Member States to collect, for audit and control purposes, data on the final recipient of funds and its beneficial owner – requires an Applicant established as a company to indicate in its application its beneficial owner as defined by Article 20 of Legislative Decree No. 231 of 21 November 2007, namely the natural person or persons to whom direct or indirect ownership or control of the entity is ultimately attributable.

Under para. 2.3.1 of the Implementing Rules, direct ownership is indicated by a natural person holding more than 25% of the share capital, and indirect ownership by holding more than 25% through subsidiaries, fiduciary companies or nominees; failing that, the relevant factors are control of the majority of the votes exercisable at the ordinary shareholders’ meeting, of votes sufficient to exercise a dominant influence at that meeting, or of contractual ties capable of achieving the same result; as a residual criterion, the holding of powers of legal representation, administration or management. The recitals of MD 2022 expressly refer to Article 22(2)(d) of Regulation (EU) 2021/241, which requires the collection of, among other things, the first name, surname and date of birth of the beneficial owner of the recipient of funds within the meaning of Article 3(6) of Directive (EU) 2015/849.

It might be inferred that, within the procedure, the beneficiary is identified both formally (the applicant company) and substantively (the beneficial owner), and that a corporate event capable of changing the beneficial owner, occurring between admission to the ranking and entry into operation, might amount to a “substantive” transfer of the plant relevant under Article 6(4). As will be seen (section 7), this cautious reading must be partly set aside.

 

3. The (Missing) Basis for the Prohibition in EU Law and Primary Legislation

MD 2022 follows in the wake of the biomethane incentive regimes stemming from the European directives on the promotion of the use of energy from renewable sources. Under the system of Legislative Decree No. 28 of 3 March 2011, implementing Directive 2009/28/EC, Article 21 (now repealed) imposed no restriction on the transfer of plants for the purposes of biomethane incentives; nor did the implementing ministerial decrees contain any such restriction[4].

In particular, the Ministerial Decree of 5 December 2013, in regulating the qualification procedure (Article 7), attached weight to the start of works (paragraph 5) and to the entry into operation of the plant (paragraph 6), but made no provision on the transferability of plants going through the incentive process. The constraint under Article 6(4) of MD 2022 is therefore a novelty in the biomethane sector.

MD 2022 implements Legislative Decree No. 199/2021, which in turn transposes Directive (EU) 2018/2001 (the so-called RED II). The principles of that directive contain nothing from which it could be inferred that Member States are required to restrict the transferability of plants admitted to support schemes[5]. For present purposes, the picture has not changed as a result of Directive (EU) 2023/2413 (the so-called RED III).

Consistently, neither the 2019-2020 European Delegation Law (Law No. 53 of 22 April 2021)[6] nor Legislative Decree No. 199/2021 provides for any restriction on the transferability of incentivised plants. The latter, which pursues the aim of “accelerating the country’s path of sustainable growth” (Article 1), provides that incentives are intended to ensure a fair return on investment and operating costs (Article 4(2)(a)) and, in Article 11(1), leaves it to ministerial decrees to define the terms, in value and duration, of the biomethane incentive tariff, without conferring on the Ministry any power to impose constraints on the transfer of plants.

Nor has the picture changed with Legislative Decree No. 5 of 9 January 2026, transposing RED III, which, in amending Article 11 of Legislative Decree No. 199/2021, merely – as far as is relevant here – changed its heading and allocated a share of the proceeds from emission allowance auctions to measures for renewable fuels of non-biological origin[7].

In conclusion, there are no provisions of primary legislation, nor any EU principles, capable of providing an express basis for Article 6(4) of MD 2022.

It might be objected that, conversely, there are equally no provisions prohibiting the Ministry, when setting the conditions for access to a public benefit, from imposing restrictions of this kind. The objection, however, is unpersuasive. The Constitutional Court has made clear that a prohibition on transferring renewable energy plants “cannot legitimately be based on the silence of the State legislature”, since it amounts to a restriction of a right – the right to transfer the plants – that is an expression of freedom of economic initiative (Article 41 of the Constitution) and is connected to the right of property (Article 42 of the Constitution), both of which are protected by a reservation of law (riserva di legge)[8].

 

4. Holder-Invariability Clauses in the Incentive Schemes for Renewable Electricity

While the prohibition is a novelty in the biomethane sector, clauses of similar content – which might be described as “holder-invariability” clauses – are not unknown to the incentive schemes for renewable electricity based on competitive procedures; and their evolution offers useful insights both for understanding their ratio and for delimiting their scope.

The Ministerial Decree of 4 July 2019 (the so-called FER 1 decree) provided that the transfer to third parties of a plant entered in the registers, or successful in the auction procedure, before its entry into operation and the execution of the agreement with the GSE entailed a 50% reduction of the tariff offered (Article 7(3)(f); see also Articles 9(5) and 14(7)). On this point, the GSE Operating Regulation specified as follows: “The 50% reduction of the Tariff offered for the purposes of determining the applicable Tariff applies in the event of transfer to third parties of a plant entered in the Registers or Auctions, in any form, to other companies, including companies belonging to the same group, including mergers, demergers, contributions or transfers of a business or business unit, which have the effect of changing the ownership of the plant. The transfer to third parties of all or part of the share capital of the company in whose name the entry is registered does not fall within the scope of the prohibition. The company in fact retains its legal identity unchanged, together with its ownership of all the business assets, including the entry in the Register or Auction and the plant covered by the entry”[9].

The Operating Rules for the Ministerial Decree of 30 December 2024 (the so-called transitional FER X, establishing a “Transitional support mechanism for renewable energy plants with generation costs close to market competitiveness under Articles 6 and 7 of Legislative Decree No. 199 of 8 November 2021, valid until 31 December 2025 at the latest”) subsequently listed (point A.4.6), among the grounds for forfeiture from the ranking, the transfer to third parties of a plant admitted in an eligible position before its entry into operation and the execution of the contract with the GSE. In particular, those Operating Rules (point A.4.8, in the version of 25 June 2026, approved by the Ministry on 10 July 2026) provide as follows: “Any form of transfer to third parties of the registration for the competitive procedure or of the registered plant is prohibited, on pain of loss of the rights deriving from the registration and from any admission in an eligible position, except for a transfer made after the plant has entered into operation and the contract with the GSE has been executed. The transfer of all or part of the share capital of the company in whose name the registration is held does not fall within the scope of the prohibition. The company in fact retains its legal identity unchanged, together with its ownership of all the business assets, including the registration for the competitive procedure and the plant covered by the registration”.

Three points emerge from this brief overview.

The first is that holder-invariability clauses have by now become a constant feature of competitive incentive schemes, reflecting a common ratio: to prevent an eligible position in the ranking – obtained on the basis of a discount offer and within predetermined capacity quotas – from becoming the object of a secondary market, possibly for speculative purposes.

The second is that such clauses are rooted in ministerial decrees or operating rules, not directly in national legislation, let alone in EU law.

The third is that the sanction for breach of such clauses has become more severe (from a tariff reduction to forfeiture), whereas the exclusion of share capital transfers from the prohibition has remained constant: a point that will be taken into account in section 7.

 

5. The “Direct Construction” Requirement under the Sicilian Rules: TAR Catania No. 530/2025 and C.G.A.R.S. No. 758/2025

The issue of the transfer of projects not yet built has recently been addressed by the Sicilian administrative courts, with reference not to an incentive scheme but to the regional rules on single authorisations.

Article 4(1)(c) of the regulation issued by Decree of the President of the Sicilian Region No. 48 of 18 July 2012 (“D.P.Reg. No. 48/2012”), implementing Article 105(5) of Regional Law No. 11 of 12 May 2010, required applications for a single authorisation under Article 12 of Legislative Decree No. 387 of 29 December 2003 – a provision now incorporated in Article 9 of Legislative Decree No. 190 of 25 November 2024 – to be accompanied, among other things, by a “declaration by which the applicant undertakes vis-à-vis the Administration to build the plant directly up to its start-up”[10]. In the practice of the regional Administration, that declaration translated into the insertion, in authorisation decrees, of clauses ruling out the transfer of the permit until the plant entered into operation.

Called upon to rule on a refusal to transfer a single authorisation for a photovoltaic plant – a refusal based on the premise that the plant first had to be built directly by the authorised party – the TAR Catania, Section I, in judgment No. 530 of 10 February 2025, found that the regulatory provision at issue “ends up – implicitly – precluding the transfer of the authorisation (and its voltura) for the time needed for the ‘direct construction of the plant up to its start-up’”, and, further, that “Article 4(1)(c) of D.P.R.S. No. 48 of 18 July 2012, in imposing on the applicant for the permit ‘the obligation to build the plant directly up to its start-up’, ends up conflicting with the principle of freedom of economic initiative laid down in Article 41 of the Constitution, since it precludes outright and automatically (that is, without allowing the competent Administration to assess in concrete terms the reasons – economic or financial, relating to corporate or group organisation, etc. – underlying the request for transfer) the transfer of the authorisation until the plant’s start-up”. The TAR therefore annulled both the refusal and the regulatory provision on which it was based, observing that “the removal of the obligation (laid down at regulatory level) on the authorised party to carry out the ‘direct construction of the plant up to its start-up’ does not give rise to a risk of indiscriminate trading in authorisations, because in any event, at any stage – before or after the construction and start-up of the plant – the transfer of the single authorisation would still remain subject to strict scrutiny by the competent Administration, with the result that the removal of that obligation does not weaken the need to check the transferee’s requirements and to verify the reasons underlying the transfer of the permit”. The same Court ruled to similar effect in judgment No. 1314/2025.

The decision was upheld by the Council of Administrative Justice for the Region of Sicily, sitting in its judicial capacity, in judgment No. 758 of 13 October 2025, published together with the contemporaneous judgment No. 759/2025.

On the merits, the C.G.A.R.S. observed that “the subject matter of the dispute does not relate primarily to the procedural rules governing the single authorisation, but concerns the energy sector, competition and corporate organisation; – the sectors identified cannot be governed by rules conflicting with the principles laid down at national and European level”; it therefore concluded that the regulatory provision introduces an “unjustified restriction in relations between private operators, which has no legal justification in either national or regional legislation, and which therefore amounts to a breach of the principles of simplification and of the deployment of renewable energy sources, as well as to a restriction of freedom of establishment and of competition”.

As a result of the two judgments (Nos. 758 and 759/2025), Article 4(1)(c) of D.P.Reg. No. 48/2012 has been definitively removed from the legal order. The regime requiring prior authorisation of changes of ownership under Article 5(8) remains in force; it embodies precisely the case-by-case check on the transferee’s requirements and on the reasons for the transfer which the administrative courts identified as an adequate and proportionate means of protecting the public interest (“the interests that the Administration seeks to protect are safeguarded by Article 5(8) of the same decree under examination, and by the necessary assessment of whether the requirements for acquiring ownership of the authorisation are met”, C.G.A.R.S., judgment No. 758/2025).

 

6. Applicability of the Principles to the 2022 Biomethane Decree

The parallel between the direct construction requirement under the Sicilian regulation and the prohibition laid down in Article 6(4) of MD 2022 is immediate.

Although the former (the Sicilian regulation) affected the transfer of the permit, whereas the latter (the prohibition in the Biomethane Decree) affects access to a public benefit, both prevent – the former in law, the latter in fact – the transfer of the project and of the legal relationships pertaining to it for the time needed to build and start up the plant.

In this regard, it need hardly be stressed that receipt of the incentives is often a condition for the economic viability of the project, so that precluding (or significantly restricting) entitlement to the incentives where the plant is transferred is often tantamount to preventing the transfer of project-stage plants or the construction of the plant itself.

Moreover, the structure of the constraint imposed by Article 6(4) of MD 2022 displays precisely the features that the Sicilian courts found objectionable. It operates in a generalised and automatic manner, without allowing any concrete assessment of the reasons – economic, financial, or relating to corporate or group organisation – underlying the transfer.

It can therefore be confirmed that Article 6(4) of MD 2022, insofar as it precludes in a generalised and automatic manner the transfer of awarded plants until their entry into operation, may raise serious issues of unlawfulness, owing to the lack of a legal basis in a matter covered by the reservation of law under Articles 41 and 42 of the Constitution and to a lack of proportionality.

 

7. Share Transfers and Change of Beneficial Owner

It was noted (rectius, suggested, section 2) that the rules on beneficial ownership contained in the Implementing Rules of the Biomethane Decree (in particular, para. 2.3.1) might be read as indicating that corporate events (capable of changing the beneficial owner of the awarded company during the non-transferability period) also amount to a “substantive” transfer of the plant, relevant under Article 6(4). In light of the framework outlined above, that reading now appears open to criticism, for at least two reasons.

First, on a textual level, Article 6(4) prohibits the “transfer to third parties of ownership of a plant”: in a mere transfer of shareholdings, by contrast, ownership of the plant – like that of the permits, the grid connection offer and the position in the ranking – remains with the same company, which retains its legal identity unchanged. Moreover, being a restrictive provision, it does not lend itself to broad interpretation.

Second, on a systematic level, all the holder-invariability clauses provided for in the electricity incentive schemes (section 4) expressly exclude from their scope the transfer of all or part of the share capital of the owning company. There is no reason to consider that the same notion of transfer to third parties should take on a broader meaning in the biomethane sector.

This does not mean, however, that share transfers are risk-free. First, transactions which, although carried out in corporate form, entail a change in the entity owning the plant – merger by incorporation of the awarded company, demerger, contribution or sale of a business unit, including intra-group – fall squarely within the prohibition: it would therefore not be possible, after participating in the competitive procedure, to effectively contribute the project to a special purpose vehicle (possibly followed by the sale of that vehicle’s shares).

Second, the arrival of a new beneficial owner exposes the beneficiary to GSE checks on conflicts of interest, double funding and anti-mafia requirements, as well as to the obligation to maintain the subjective eligibility requirements, which must be met throughout the incentive period. More generally, it cannot be ruled out that the GSE might assess, from an anti-avoidance perspective, capital transactions designed in practice to transfer the position in the ranking to a party lacking the requirements.

 

8. Conclusions and Outlook

In conclusion, the transfer prohibition under Article 6(4) of MD 2022 has no basis either in Directive (EU) 2018/2001, as amended by Directive (EU) 2023/2413, or in Legislative Decree No. 199/2021, even after the amendments made to it by Legislative Decree No. 5/2026. Similar clauses have, however, become commonplace in competitive incentive schemes, albeit always by virtue of secondary sources and with increasing intensity.

Constitutional case law (Constitutional Court No. 86/2019) and administrative case law (TAR Catania No. 530/2025; C.G.A.R.S. No. 758/2025) have established certain general principles, including the following:

• restricting the right to transfer plants and projects, since it affects freedom of economic initiative and the right of property, requires a legal basis;
• a generalised and automatic constraint, precluding any concrete assessment of the reasons for the transfer, is disproportionate where the public interest can be protected by checking the transferee’s requirements and by means of suitable guarantee instruments.

The differences between the Sicilian regulation and MD 2022 – a State source, and a subject matter consisting of a public benefit – do not appear such as to preclude the application of those principles, so that Article 6(4) remains exposed to serious doubts as to its lawfulness.

From an operational standpoint, the following may be observed:

• any transfer of the project to a special purpose vehicle should take place before the application to participate is filed, when the transfer of the project for the purpose of obtaining biomethane incentives is expressly permitted, subject to the transfer of the permit and of the grid connection offer;
• during the non-transferability period (i.e. from admission to the ranking until entry into operation and execution of the contract), transactions can be structured only as transfers of shareholdings and not of assets.

In any event, changes of beneficial owner must be promptly notified to the GSE, including in the case of transfers of shareholdings that are relevant under the GSE Implementing Rules.

De iure condendo, it is submitted that the drafting of the new biomethane decree could provide an opportunity to reconsider the matter so as to reconcile the anti-speculative purpose with freedom of economic initiative and with the need, shared by the EU and national legal orders, to promote the widest possible deployment of renewable energy plants. More specifically, it may be appropriate to give due recognition to the expertise of operators that succeed in developing projects eligible for incentives, by allowing them to transfer plants even at project stage: this aim could be achieved by removing the prohibition in Article 6(4) of MD 2022, while regulating the GSE’s checks on successions between operators owning incentivised plants.

 

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[1] Ministerial Decree No. 340 of 15 September 2022, “Implementation of Articles 11(1) and 14(1)(b) of Legislative Decree No. 199 of 8 November 2021, in order to support the production of biomethane injected into the natural gas grid, consistently with Mission 2, Component 2, Investment 1.4 of the PNRR”, published in Official Gazette (G.U.) No. 251 of 26 October 2022.

[2] For completeness, the text of Article 6 of MD 2022 (“Project selection criteria”) is set out below: “1. The ranking referred to in Article 5(2) shall be drawn up by the GSE within the limits of the available capacity quotas and shall be based on the percentage discount offered on the relevant reference tariff. 2. Where the applications to participate in the procedure exceed the capacity quota made available for the individual procedure, the GSE shall apply, in the event of equal percentage discounts offered, the priority criterion of compliance with the requirement referred to in Article 4(1)(c) and, subordinately, that of the earlier date of final completion of the application to participate in the procedure. 3. The ranking referred to in Article 5(2) shall be published by the GSE on its website, indicating the criteria applied pursuant to paragraphs 1 and 2. 4. The transfer to third parties of ownership of a plant awarded under a procedure is not permitted before it enters into operation and the standard contract with the GSE referred to in Article 12(2) is executed”.

[3] The Implementing Rules were approved by decree of 13 January 2023. The version of 30 May 2024 incorporated, among other things, Article 18-bis of Decree-Law No. 104 of 10 August 2023, converted with amendments by Law No. 136 of 9 October 2023, and Articles 5(3-ter) and 5-bis(3) of Decree-Law No. 181 of 9 December 2023, converted with amendments by Law No. 11 of 2 February 2024; the version of 13 May 2025 incorporated Article 5-bis of Decree-Law No. 63 of 15 May 2024 and the Ministerial Decree of 8 August 2024 replacing Annex VIII to Legislative Decree No. 199/2021.

[4] Ministerial Decree of 5 December 2013 (“Arrangements for incentivising biomethane injected into the natural gas grid”), implementing Article 21 of Legislative Decree No. 28/2011; Ministerial Decree of 10 October 2014 (“Update of the conditions, criteria and arrangements for implementing the obligation to release biofuels, including advanced biofuels, for consumption”); Ministerial Decree of 2 March 2018 (“Promotion of the use of biomethane and other advanced biofuels in the transport sector”).

[5] Under Article 3(3) of Directive (EU) 2018/2001, “Member States shall take measures to ensure that energy from biomass is produced in a way that minimises undue distortive effects on the biomass raw material market and an adverse impact on biodiversity, the environment and the climate. (…) Member States shall design support schemes for energy from biofuels, bioliquids and biomass fuels in a way that avoids encouraging unsustainable pathways and distorting competition with the material sectors”; under Article 4(2), “support schemes for electricity from renewable sources shall provide incentives for the integration of electricity from renewable sources in the electricity market in a market-based and market-responsive way, while avoiding unnecessary distortions of electricity markets”.

[6] Article 5 of Law No. 53/2021, laid down for the transposition of Directive (EU) 2018/2001, merely requires the Government to “promote the development of biofuels in order to achieve the renewable energy targets in the transport sector, in compliance with the sustainability criteria referred to in Article 29 of Directive (EU) 2018/2001” and to “update and strengthen the support mechanisms for renewable sources, including measures in favour of technological and industrial development, referred to in Legislative Decree No. 28 of 3 March 2011, consistently with the various environmental protection requirements, simplifying the management of small plants and enhancing the value of energy produced from biogas for conversion into biomethane or digestate” (paragraph 1(p), as regards the latter provision).

[7] Legislative Decree No. 5 of 9 January 2026, published in Official Gazette (G.U.) No. 15 of 20 January 2026, in force since 4 February 2026. Article 11 of Legislative Decree No. 199/2021 now bears the heading “Incentives for biogas and biomethane production and for renewable fuels of non-biological origin” and contains a new paragraph 5-bis on the allocation of a share of the proceeds from CO₂ emission allowance auctions.

[8] Constitutional Court, judgment No. 86 of 15 April 2019, concerning, among other things, Articles 5, 6 and 7 of Basilicata Regional Law No. 21 of 11 September 2017, which were declared unconstitutional insofar as they prohibited the transfer of several photovoltaic and wind plants authorised under the simplified authorisation procedure to third parties constituting a single decision-making centre, where their combined capacity exceeded the 200 kW threshold. On this point, the Court held as follows: “Since such a prohibition is not provided for by the State legislation laying down the fundamental principles of the matter, the conflict between the challenged regional provisions and those principles is manifest. It is a prohibition that cannot legitimately be based on the silence of the State legislature, since it amounts to a restriction of a right – the right to transfer the plants – that is an expression of the freedom of economic initiative under Article 41 of the Constitution (although not invoked by the applicant), instrumentally connected to the right of property (in the plants), protected by Article 42 of the Constitution, for which the Constitution establishes a reservation of law”.

[9] See point 2.10 of the Operating Regulation for registration in the Registers and Auctions under the Ministerial Decree of 4 July 2019, published by the GSE, version 2.4 (17 October 2023).

[10] The regulation is published in the Official Gazette of the Sicilian Region (G.U.R.S.) No. 34, Ordinary Supplement No. 35, of 17 August 2012. Article 4(1) required the application to be accompanied, in addition to the documentation listed in point 13.1 of the Ministerial Decree of 10 September 2010, by: “a) a certificate from a credit institution or a company authorised for that purpose (…) attesting its willingness to finance the initiative and that the applicant has the organisational and financial capacity to develop it; b) documentation attesting that the applicant has the legal right to use the plant site (…); c) a declaration by which the applicant undertakes vis-à-vis the Administration to build the plant directly up to its start-up; d) a declaration by which the applicant undertakes vis-à-vis the administration competent to issue the measure to comply with the obligations referred to in Article 3 of the legality protocol of 23 May 2011”; paragraph 2 classified that documentation as the minimum content of the application for it to be processed. Article 5(8) makes any change of ownership in the operation of the authorised plant subject to a prior request to, and authorisation by, the Regional Department for Energy, which obtains anti-mafia information on the transferee. Article 12 of Legislative Decree No. 387/2003 was repealed by Article 15 of Legislative Decree No. 190/2024.