Requirements for the admission to the feed-in-tariffs

Note of case

ADMINISTRATIVE TRIBUNAL OF LAZIO (T.A.R.), ROMA, SEZ. 3 TER.

Sentence N. 1693/2014, 12th of february

President: Giuseppe Daniele – Judge: Carlo Taglienti – Judge: Donatella Scala

Photovoltaic plants – feed in tariffs – IV feed in scheme (IV conto energia) – conditions for the access to the feed in tariffs determined by Ministerial Decree 5 May 2011 – revocation of the feed in tariffs based on the conditions determined by the Ministerial Decree 5 July 2012 (V feed in scheme) – illegitimacy

PRINCIPLE: the conditions to be admitted to the feed in tariffs of the IV feed in scheme are fully determined by Ministerial Decree 5 May 2011, which also states that the expression “date of entry into force of the plant” means in the moment in which the plant is connected for the first time to the grid, without the additional condition of necessary energy production (and in case the amount of it) in that moment.

The Administrative Tribunal of Lazio (hereinafter "T.A.R." ) – through its sentence n. 1693/2014 pronounced the 12th of February 2014 and recalled in the principle above – has clarified the definition of “date of entry into force of the plant”, expression used by Ministerial Decree 5 May 2011 and not interpreted unanimously until now.

A photovoltaic company challenged – through the appeal n. 4183/2013 – the GSE’s (Supervisor for the Electric Services) decision that determined the revocation of the feed in tariffs already granted according to the IV feed in scheme approved by Ministerial Decree 5 May 2011. The GSE setted-off, after internal review, its previous decision to admit to the feed in tariffs the mentioned company on the grounds that “date of entry into force of the plant” – as in Ministerial Decree 5 May 2011 – means both the necessary connection to the grid and the production of electricity with consequent discharge of it into the grid.

With this Sentence, the T.A.R. gives for the first time an interpretation of “date of entry into force of the plant”, expression used by Article 3, paragraph 1, letter c) of Ministerial Decree 5 May 2011 (IV feed in scheme) specifying that this date is the date in which all the following conditions occur: c1) the plant is connected to the grid; c2) all the necessary electricity meters – in order to check the amount of electricity produced and resaled or given to the grid – are installed; c3) all the dispositions stated for the rightful admission to the feed in tariffs are respected.

C1) condition imposes that the plant shall be connected to the grid, meaning that the purchase and resale of produced electricity is possible; it does not mean – as affirmed by the GSE in order to justify the sett-off after internal review of its decision on the admission to the feed in tariffs determined by Ministerial Decree 5 May 2011 – also the production of electricity, in that moment, and its eventual discharge into the grid.

The T.A.R. has specified the differences between the conditions for the access to the feed in tariffs as defined by Ministerial Decree 5 May 2011 – that do not mention the additional condition of the production of electricity in the moment of connection to the grid – and Ministerial Decree 5 July 2012, V feed in scheme, in which “date of entry into force of the plant” means also the effective production of electricity and its discharge into the grid.

Finally, the T.A.R. has affirmed that the statement – signed by an ENEL (National Electricity operator) appointed specialist – on the connection to the grid proves the check on the connection and the chance to activate the connection of the plant, while the same statement does not proves the production and the discharge of electricity into the grid at the date of its connection.

Thanks to this sentence we have now a clearer definition on the conditions necessary to access to the feed in tariffs set forth by both the IV and the V feed in scheme for photovoltaic plants.