Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 29 October 2020 (1)

Joined Cases C-798/18 and C-799/18

Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others

(C-798/18),

Athesia Energy Srl and Others,

(C-799/18)

v

Ministero dello Sviluppo Economico,

Gestore dei servizi energetici (GSE) SpA,

interveners:

Elettricità Futura – Unione delle Imprese Elettriche italiane,

Confederazione Generale dell’Agricoltura Italiana – Confagricoltura

(Requests for preliminary rulings
from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy))

(Reference for a preliminary ruling – Environment – Directive 2009/28/EC – Promotion of the use of energy from renewable sources – Production of electrical energy from solar photovoltaic installations – Support scheme – Alteration of incentives already granted but not yet due for payment – Articles 16 and 17 of the Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to property – Concept of ‘possessions’ – Legitimate expectations – Energy Charter – Article 10)

I.      Introduction

1.        In 2014, against a background of rapid growth in the photovoltaic energy sector, the Italian legislature sought to reduce the incentives payable to photovoltaic energy operators within its territory.

2.        The present references for preliminary rulings, made on 17 December 2018 by the Tribunale ammistrativo regionale per il Lazio (Regional Administrative Court of Lazio, Italy), relate to the compatibility of such an alteration with EU law, and more specifically to any limits which may be imposed by Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which relate, respectively, to the freedom to conduct a business and the right to property.

3.        The references have been made in proceedings between a significant number of operators of photovoltaic installations in Italy, together with the Federazione Nazionale delle Imprese Elettrotecniche ed Elettroniche (national federation of electronic and electric undertakings; Anie), (2) and the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) and Gestore dei servizi energetici (GSE) SpA (‘GSE’), a company in which the Ministero dell’Economia e delle Finanze (Ministry of the Economy and Finances, Italy) has a 100% shareholding.

4.        What makes the present cases particularly noteworthy is the fact that GSE entered into agreements with those operators under which they were to be paid incentives for a period of twenty years, in the context of a support scheme intended to transpose, into Italian law, successive European directives on the promotion of the use of renewable energy. (3)

5.        The reform introduced by the Italian legislature was effected against that specific legislative background, with a view to altering, to the disadvantage of the operators referred to above, the incentives payment of which had been provided for in those agreements, but had not yet fallen due.

6.        As requested by the Court, this Opinion will focus on the interpretation of Articles 16 and 17 of the Charter, and of Article 10 of the Energy Charter, (4) read in conjunction with Article 216(2) TFEU. (5)

7.        At the conclusion of my analysis, I will suggest that the Court should rule that Articles 16 and 17 of the Charter do not preclude a reform of the kind instituted by the Italian legislature. I will also explain why I do not consider that Article 10 of the Energy Charter, read in conjunction with Article 216(2) TFEU, is applicable in the present cases.

II.    Legal background

A.      International law

8.        Article 10(1) of the Energy Charter, which is headed ‘Promotion, protection and treatment of investments’, provides as follows:

‘1.      Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for investors of other Contracting Parties to make investments in its area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal …’

B.      European Union law

9.        Recital 25 of Directive 2009/28 provides as follows:

‘Member States have different renewable energy potentials and operate different schemes of support for energy from renewable sources at the national level. … For the proper functioning of national support schemes it is vital that Member States can control the effect and costs of their national support schemes according to their different potentials. One important means to achieve the aim of this Directive is to guarantee the proper functioning of national support schemes, as under Directive 2001/77/EC, in order to maintain investor confidence and allow Member States to design effective national measures for target compliance …’

10.      Article 3 of that directive, which is headed ‘Mandatory national overall targets and measures for the use of energy from renewable sources’, provides:

‘1.      Each Member State shall ensure that the share of energy from renewable sources … in gross final consumption of energy in 2020 is at least its overall target for the share of energy from renewable sources in that year, as set out in the third column of the table in Part A of Annex I. …

…

3.      In order to reach the targets set in paragraphs 1 and 2 of this Article Member States may, inter alia, apply the following measures:

(a)      support schemes;

…’

C.      Italian law

11.      Article 26 of Decree Law No 91/2014 (6) is in the following terms:

‘1.      So as to optimise the periods for collection and payment of the incentives, and promote a more sustainable policy of support for renewable energy, the feed-in tariffs for electrical energy produced by solar photovoltaic installations … shall be paid in the manner set out in this article.

2.      With effect from the second half of 2014, [GSE] shall pay the feed-in tariffs referred to in paragraph 1 by way of equal monthly payments, based on 90% of the estimated average annual production capacity of the relevant installation and made during the calendar year of production, and shall adjust the final amount, on the basis of actual production, before 30 June of the following year. The practical arrangements shall be defined by GSE within 14 days of the publication of this decree and approved by decree of the Minister for Economic Development.

3.      From 1 January 2015, the feed-in tariff for energy produced by installations with rated power of more than 200 kW shall be restructured, at the discretion of the operator, on the basis of one of the following options to be notified to GSE by 30 November 2014:

(a)      the tariff shall be paid for a period of 24 years, from the date on which the installation commences operation, and shall consequently be recalculated using the percentage reduction indicated in the table provided in Annex 2 to this decree;

(b)      without prejudice to the 20-year payment period, the tariff shall be restructured, resulting in an initial period of application of an incentive reduced in comparison with the current amount and a second period of application of an incentive increased in equal measure. The percentages used to restructure the tariffs shall be determined by means of a decree issued by the Minister for Economic Development, following consultation with the Autorità per l’energia elettrica, il gas e il sistema idrico (the electricity, gas and water regulator), to be issued by 1 October 2014 so as to enable, if all those eligible sign up for the option, a saving of at least EUR 600 million each year for the period 2015-2019, in comparison with payments under the currently applicable tariffs;

(c)      without prejudice to the 20-year payment period, the tariff shall be reduced by a percentage value of the incentive granted on the date on which this decree enters into force, for the residual duration of the incentive period, according to the following quantities:

(1) 6% for installations with rated power of more than 200 kW up to rated power of 500 kW;

(2) 7% for installations with rated power of more than 500 kW up to rated power of 900 kW;

(3) 8% for installations with rated power of more than 900 kW

If no notification is provided by the operator, GSE shall apply the option described under (c).

…’

III. The main proceedings, the question referred for a preliminary ruling and the procedure before the Court

12.      In the context of the Italian support scheme for the production of renewable energy (implemented by Decree Laws Nos 387/2003 (7) and 28/2011), (8) GSE entered into private law agreements with operators of photovoltaic installations with rated power of over 200 kW, drawn up on the basis of a standard form produced by the Italian electricity and gas regulator. (9) Those agreements, which were intended to run for a period of 20 years, provided for the regular payment of feed-in tariffs to such operators.

13.      It was against that background that, in 2014, the legislation was reformed so as to change the incentives the payment of which was provided for by those agreements, but had not yet fallen due. There were two aspects to this reform, which was effected by Article 26(2) and (3) of Decree Law No 91/2014. (10)

14.      First, Article 26(2) of the decree provided that, with effect from the second half of 2014, the incentives would be paid in the form of equal monthly payments, which would be based on 90% of the estimated average annual production capacity for the relevant installation, and made during the calendar year of production. The adjustment to reflect actual production would not, henceforth, be made until a later date (30 June of the following year).

15.      Secondly, Article 26(3) of the decree required the operators in question to move to a different system of tariffs, based on three options – all of which were disadvantageous to them – with effect from 1 January 2015, or in other words before the agreements concluded with GSE expired.

16.      Against that background, the applicants in the main proceedings sought an order from the referring court annulling the ministerial decrees of 16 and 17 October 2014, which implemented Article 26(2) and (3) of Decree Law No 91/2014. (11)

17.      The referring court states that it referred the question of the constitutionality of Article 26(3) of that decree law to the Corte costituzionale (Constitutional Court, Italy). By decision of 24 January 2017, (12) the Constitutional Court ruled that that provision was not incompatible with the Italian constitution.

18.      However, the referring court considers that certain issues which have a bearing on the outcome of the matters before it were not determined by the decision of the Corte costituzionale (Constitutional Court). More specifically, it considers that clarification is needed, from the perspective of EU law, as to whether it is open to the national legislature to intervene in such a way as to reduce the amount of the incentives granted under a support scheme intended to promote the use of renewable energy, in circumstances where the payment of those incentives has already been provided for in agreements concluded with the beneficiaries.

19.      The referring court wishes to establish, in particular, whether Article 26(2) and (3) of Decree Law No 91/2014 is contrary to Articles 16 and 17 of the Charter, in that it interferes with the right of the beneficiaries to organise and conduct their economic activities on the basis of those agreements. For the same reasons, it entertains doubt as to whether that provision is compatible with the Energy Charter, observing that Article 10(1) of that charter provides that each contracting party is to ‘encourage and create stable, equitable, favourable and transparent conditions for … investments in its area’.

20.      In those circumstances, the Tribunale ammistrativo regionale per il Lazio (Regional Administrative Tribunal of Lazio) decided to stay the proceedings and refer the following question to the Court, in each of the joined cases, for a preliminary ruling:

‘Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of [Decree Law No 91/2014], which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with [GSE], a public company responsible for that process?

In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the Charter …, with Directive [2009/28] and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the Energy Charter?’

21.      Written observations were lodged with the Court by the applicants in the main proceedings, the interveners in the present cases (namely Elettricità Futura – Unione delle Imprese Elettriche italiane and Confederazione Generale dell’Agricoltura Italiana – Confagricoltura), the Italian, Czech, German, Greek and Spanish Governments, and the European Commission.

22.      By decision of the President of the Court of 5 February 2019, the present cases were joined for the purposes of the written and oral parts of the procedure and of the judgment.

23.      The parties replied in writing to questions put by the Court.

IV.    Analysis

24.      The present requests for preliminary rulings essentially invite the Court to determine whether EU law precludes a Member State from reducing the amount of the incentives provided for under a support scheme intended to promote the use of renewable energy in accordance with the objectives laid down by successive European directives in that field.

25.      According to the information provided by the referring Court, the matters before it form part of very extensive national litigation. The referring court has made three requests for preliminary rulings, (13) in identical terms, and these are currently pending before Court. Furthermore, other Member States have, like the Italian Republic, amended the measures taken in their territories for the promotion of the use of renewable energy. (14)

26.      In the sections below, I will explain why I consider that a reform such as that introduced by the Italian legislature in the circumstances of the main proceedings does not infringe the freedom to conduct a business or the right to property provided for by Articles 16 and 17 of the Charter, and that, even supposing that it did interfere with the rights protected by those provisions, such interference would in any event be justified and proportionate, having regard to the objectives pursued by the Union in the field of promotion of the use of renewable energy (Section A). I will also conclude, following a literal and purposive interpretation of the Energy Charter, and more specifically Article 10 thereof, that that provision is not applicable to the main proceedings (Section B).

A.      Articles 16 and 17 of the Charter

1.      Preliminary observations

27.      Article 16 of the Charter provides that ‘the freedom to conduct a business in accordance with Community law and national laws and practices is recognised’. The protection afforded by that article covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter. (15)

28.      Turning to Article 17 of the Charter, this provides in paragraph 1 that ‘everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest’.

29.      The explanations relating to that article state that it is based on Article 1 of the First Additional Protocol to the ECHR. (16) Thus, under Article 52(3) of the Charter, the right to property protected by Article 17 of the Charter has the same meaning and scope as it has under the ECHR, it being understood that EU law can nevertheless expand the protection given to them. (17)

30.      Nonetheless, under the case-law of the Court, the freedom to conduct a business and the right to property are not absolute rights but must be viewed in relation to their social function, (18) and limitations may be imposed on their exercise as long as, in compliance with the principle of proportionality, they are necessary and justified by objectives of general interest pursued by the European Union. (19) Those requirements arise from Article 52(1) of the Charter, which provides, furthermore, that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and must respect the essence of those rights and freedoms. (20)

31.      In the present case, the applicants in the main proceedings and the interveners argue that Article 26(2) and (3) of Decree Law No 91/2014 infringes their right to property, seeking as it does to alter, to the disadvantage of operators of photovoltaic installations, the amounts of the incentives payment of which had been provided for in the agreements they had concluded with GSE, but had not yet fallen due. They state that the decree has the effect of depriving them of their possessions, given that the costs associated with the construction and commissioning of photovoltaic installations, on the basis of which those amounts were determined, have already been borne in their entirety by the operators. In that regard, they observe that Directive 2009/28 (the objectives of which were intended to be implemented by the support scheme at issue) emphasises, in recitals 8, 14 and 25, the need to maintain ‘investor confidence’ and offer ‘certainty’ to investors. (21) Those same factors lead them to conclude, essentially, that the decree law in question restricts the operators’ freedom to conduct a business.

32.      The Italian, Czech, Greek and Spanish Governments take the opposing view that Decree Law No 91/2014 does not in any way deprive operators of photovoltaic installations of their possessions, and does not restrict their freedom to conduct a business.

33.      Given those different positions, I think it would be useful to begin by pointing out certain features of the support scheme, as they appear from the file available to the Court, so as to present a more detailed picture of the background to the reform introduced by Article 26(2) and (3) of Degree Law No 91/2014.

34.      First, that support scheme is intended to transpose Directive 2009/28 into Italian law. Now, it is apparent from Article 3(3) of that directive that the Member States may adopt support schemes in order to reach the ‘mandatory national overall targets … for the use of energy from renewable sources’. In that regard, recital 25 of that directive states that ‘Member States have different renewable energy potentials’ and that it is vital for them to be able to control the effect and costs of their national support schemes according to their different potentials.

35.      The Court has held that Member States are not under any obligation, for the purposes of promoting the use of energy produced using renewable sources, to adopt support schemes, and that they therefore have discretion as to the measures they consider appropriate for the purpose of reaching the mandatory national overall targets set by Directive 2009/28. Such discretion means that Member States are free to adopt, alter or withdraw support schemes, provided that, inter alia, those targets are met. (22)

36.      In the light of that case-law, it seems to me that Directive 2009/28 does not, in itself, present any obstacle to a reform such as that introduced by the Italian legislature in the circumstances of the main proceedings.

37.      Those considerations will assist me in determining, later in my analysis, whether operators of photovoltaic installations can rely on a legitimate expectation that the benefit of the incentives provided for in the agreements with GSE would remain unchanged for the entire duration of those contracts and, accordingly, can validly argue that such a reform infringes their right to property.

38.      Secondly, it had already been provided, in Article 7(2)(d) of Decree Law No 387/2003, that the incentives granted were to be in a decreasing amount, determined for a specific period. As regards Decree Law No 28/2011, pursuant to which the agreements between GSE and those operators were concluded, it is apparent from Article 24(2)(d) of that decree that those agreements were drawn up on the basis of a standard form produced by the Italian electricity and gas regulator. According to the applicants in the main proceedings, that standard form provided for GSE to have a unilateral right to amend its terms in order to take account of changes in the relevant legislative framework. (23) Those matters seem to me to indicate that the arrangements for payment of the incentives could be changed and that their amount was liable to be reduced.

39.      Thirdly, the reform effected by Article 26(2) and (3) of Decree No Law 91/2014, which changed the incentives fixed in those contracts, was only applicable where provision had already been made for payment of the relevant amount but the payment had not yet fallen due, and did not affect payments which had already been made. (24)

40.      In the next part of this Opinion, I will consider whether such a reform infringes the freedom to conduct a business and the right of property protected by the provisions of the Charter. I will conclude that it does not. To address the possibility of the Court not sharing that view, I will also set out, as an alternative basis for my conclusions, the reasons why I consider, having regard to the case-law referred to in point 30 of this Opinion, that any infringement of those rights would in any event be justified and proportionate, in the light of the objectives pursued by the Union in terms of promoting the use of renewable energy.

2.      Infringement of the freedom to conduct a business and the right to property provided for in Articles 16 and 17 of the Charter

(a)    The right to property

41.      I note that the present cases concern two different aspects of property: the right which is claimed to have been granted, by the agreements concluded between the operators of photovoltaic installations and GSE, to the benefit of the incentives, and the right to use and operate such installations.

(1)    First aspect: infringement of the claimed right to the benefit of the incentives

42.      As regards the substantive conditions set out in Article 17(1) of the Charter, the Court has held that the protection conferred by that provision concerns rights with an asset value creating an established legal position under the legal system concerned, enabling the holder to exercise those rights autonomously and for his or her own benefit. (25)

43.      In my Opinion in Commission v Hungary (Rights of usufruct over agricultural land), (26) I stated that it is necessary, in essence, to determine whether two conditions are satisfied, namely, first, whether the rights relied on have an asset value and, secondly, whether an established legal position is created from those rights which enables the holder to exercise them autonomously and for his benefit.

44.      As regards the first condition, it is apparent from the case-law of the European Court of Human Rights that the concept of ‘possessions’ is not limited to the ownership of material goods, as certain other rights and interests constituting assets can also be regarded as ‘property rights’. (27) In certain circumstances, even legitimate expectations of future property claims can be protected under Article 1 of the First Additional Protocol to the ECHR. (28) Thus, measures providing for the future payment of a social security benefit (29) or subsidies (30) can generate a proprietary interest falling within the scope of that provision, as can contractual rights (31) or debts. (32)

45.      In the circumstances of the main proceedings, I would be inclined to take the view that the right to receive the incentives under the contracts with GSE is something of value which may be proprietary in nature. In particular, in so far as the beneficiaries have entered into those contracts on an ad hoc basis in their own names, it seems to me that it is an exclusive right.

46.      Nevertheless, the question arises of whether that right constitutes an established legal position for the purposes of the second condition referred to in point 43 of this Opinion.

47.      In that regard, the Court has held that, under the case-law on the interpretation of Article 1 of Protocol No 1 to the ECHR, future income cannot be considered to constitute ‘possessions’ that may enjoy the protection of that article unless it has already been earned, it is definitely payable or there are specific circumstances that can cause the person concerned to entertain a legitimate expectation of obtaining an asset. (33)

48.      In the present case, it does not seem to me that the right to future payment of the incentives provided for by the agreements entered into between the operators of photovoltaic installations and GSE can be regarded as sufficiently definitive (34) for the reduction of those incentives and the alteration of the payment arrangements concerning them to amount to the expropriation of ‘property’ which already forms part of the operators’ assets. (35) As I have stated in paragraph 39 above, Article 26(2) and (3) of Decree Law No 91/2014 seeks only to alter those amounts the payment of which had already been provided for but not yet fallen due, and does not affect payments already made.

49.      Furthermore, I do not consider that the operators of photovoltaic installations can rely on a legitimate expectation that there would be no change in the benefit of those incentives for the entire duration of the contracts concluded with GSE.

50.      On that point, it is apparent from settled case-law of the Court that any economic operator on whose part a national authority has promoted reasonable expectations may rely on the principle of the protection of legitimate expectations. However, where a prudent and circumspect economic operator could have foreseen that the adoption of a measure is likely to affect his interests, he cannot plead that principle if the measure is adopted. Furthermore, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the national authorities in the exercise of their discretionary power will be maintained. (36)

51.      In the circumstances of the main proceedings, it is for the referring court to determine whether a national provision such as Article 26(2) and (3) of Decree law No 91/2014 is in conformity with that principle. (37) Nevertheless, in the interests of providing that court with a useful answer, it seems to me that the following matters, which are apparent from the file available to the Court, can be given particular consideration.

52.      First, it seems to me that a change in the incentives, to the disadvantage of operators of photovoltaic installations, could not have been regarded as unforeseeable even under Decree Laws Nos 387/2003 and 28/2011, which preceded Decree Law No 91/2014. (38)

53.      It is apparent from Article 7(2)(d) of Decree Law No 387/2003 that the incentives granted to operators of photovoltaic installations were, as I noted in point 38 of this Opinion, to be in a decreasing amount, determined for a specific period.

54.      Furthermore, as regards Decree Law No 28/2011 the Court held, in the judgment in Agrenergy and Fusignano Due, (39) that the legislative provisions relating to the ‘fifth energy tariff’ adopted by virtue of that decree (40) were ‘of such a kind as to indicate at once to prudent and circumspect economic operators that the support scheme applicable to solar photovoltaic plants might be altered, or even withdrawn, by the national authorities in order to take account of changes in certain circumstances’.

55.      Secondly, I note that the applicants in the main proceedings themselves admit that gradual reductions in the amount of the incentives granted have already been effected, beginning in 2011, by ministerial decrees pre-dating the adoption of Decree Law No 91/2014.

56.      Thirdly, it seems to me that the right reserved by GSE, in the agreements concluded with the operators of photovoltaic installations, to amend the terms of those contracts unilaterally, in order to take account of developments in the legislative frame of reference, (41) was a clear indication that the incentives were liable to be altered, or even withdrawn, precisely by virtue of changes in the legislation. Such changes were all the more foreseeable for the fact, as stated by the referring court, that those contracts were to remain in force for twenty years. Having regard to the duration of the contracts, a prudent and circumspect economic operator would, in my view, have been in a position to anticipate that market conditions, or the budgetary priorities of the Italian Republic, might change.

57.      Finally, I observe that, as I noted in point 35 of this Opinion, the Court has held, in the judgment in Agrenergy and Fusignano Due, (42) that Member States are not under any obligation, for the purposes of promoting the use of energy produced using renewable sources, to adopt support schemes under Directive 2009/28. That conclusion is supported by recital 25 of that directive, which essentially links the realisation of that objective to the potential of each Member State.

58.      In the light of those matters, and contrary to the submissions advanced by the applicants in the main proceedings and the interveners, there is little doubt, in my view, that in circumstances such as those of the main proceedings, a prudent and circumspect operator cannot rely on the principle of protection of legitimate expectations, either on the basis of the legislative framework to which the support scheme at issue relates, or on the basis of Directive 2009/28. If a different conclusion were to be reached, it seems to me that, as the Italian Government rightly observes, the limits placed on the power of the Member States to determine their policies and amend their legislation, having regard to the general interest and to the purpose of Directive 2009/28, would be excessive by comparison with the discretion which the EU legislature has left them to adapt support schemes introduced under that directive to market conditions and to their budgetary priorities.

59.      For those reasons, I consider that the right claimed by the operators of photovoltaic installations to receive the benefit of the incentives without alteration, for the entire duration of the contracts they concluded with GSE, is not protected by Article 17 of the Charter.

(2)    Second aspect: infringement of the right of property of operators of photovoltaic installations in those installations

60.      In what follows I will explain why, equally, I do not consider that Article 26(2) and (3) of Decree Law No 91/2014 results in the operators’ use of their installations being regulated in a manner which is liable, in itself, to infringe their right to property.

61.      In that regard, I note that, as is apparent from point 28 of this Opinion, the third sentence of Article 17(1) of the Charter provides, essentially, that while the use of possessions is protected by that provision, (43) it may be regulated by law in so far as is necessary for the general interest.

62.      Under the case-law of the European Court of Human Rights, the concept of ‘control of the use of property’ is understood as relating to measures which, without entailing a transfer of ownership, seek to ‘limit or control’ the use of property. (44)

63.      In the present case, the applicants in the main proceedings argue that the beneficiaries of the incentives invested in the photovoltaic installations they operate on the basis that those incentives were to be paid. Following the reform instituted by Article 26(2) and (3) of Decree Law No 91/2014, they now find themselves unable to repay the bank loans they took out to finance those investments.

64.      It does not seem to me, however, that those factors would justify a determination that Article 26(2) and (3) of Decree Law No 91/2014 seeks to limit or control the use of the installations. That provision simply reduces the amount of support payable to the beneficiaries of the scheme, without imposing any other restrictions or obligations on them. It follows in my view, and indeed as the Commission argues, that the beneficiaries remain free to operate and invest in their installations as they see fit.

65.      In those circumstances I share the Commission’s view that a provision such as Article 26(2) and (3) of Decree Law No 91/2014 does not limit the use of photovoltaic installations by their operators.

66.      In the light of all the foregoing, it must be held, in my opinion, that such a provision does not infringe the right to property enshrined in Article 17 of the Charter.

(b)    The freedom to conduct a business

67.      As regards the freedom to conduct a business protected by Article 16 of the Charter, the applicants in the main proceedings submit that Article 26(2) and (3) of Decree Law No 91/2014 infringes both the freedom of contract of the beneficiaries of incentives and their right to dispose of their economic and financial resources freely.

68.      I do not agree.

69.      First, in relation to freedom of contract, I note that the Court has held that this includes, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service. (45)

70.      It goes without saying that while Article 16 of the Charter seeks, amongst other things, to preserve the freedom of contract enjoyed by contracting parties, it is no part of its purpose to create rights in those parties which go beyond those already provided for in their contract, or to enable them to demand terms other than those already contained in that contract. Where the contract is in a standard form drawn up by the other contracting party, freedom of contract consists, essentially, in deciding whether or not to accept its terms.

71.      In the present case, I do not think there is any doubt that the agreements concluded between GSE and the operators of photovoltaic installations do not provide for a right on the part of the operators which prevents any alteration of the incentives.

72.      On the contrary, it is apparent from those agreements that the amount of the incentives depends on the national legislation which enables them to be paid. (46) As I have already observed in points 38 and 56 of this Opinion, those agreements contain a clause permitting GSE to take account of developments in the applicable legislative framework.

73.      It follows that where that amount has been changed pursuant to Article 26(2) and (3) of Decree Law No 91/2014, the operators of photovoltaic installations have, in my view, simply been bound by the contractual terms which they freely accepted when they entered into the agreements.

74.      In those circumstances, I do not consider that their freedom of contract has been infringed in any way.

75.      Secondly, I note that the freedom to conduct a business also includes the right for any business to be able to freely use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it. (47)

76.      In that regard, it is apparent from the case-law of the Court that the free use of the resources available to an undertaking is restricted where that undertaking is constrained to take measures which may represent a significant cost for it, have a considerable impact on the organisation of its activities or require difficult and complex technical solutions. (48)

77.      Subject to the referring court’s assessment of the entirety of the factual material before it, it does not seem to me that the operators of photovoltaic installations have been subjected, as a result of Article 26(2) and (3) of Decree Law No 91/2014, to any particular constraint within the meaning of that case-law.

78.      In any event, I do not consider that the incentives provided for by the agreements between GSE and those operators can be regarded as forming part of the economic, technical and financial resources available to those operators in circumstances where, as I observed in points 48 to 58 of this Opinion, those sums have not yet been paid and the operators cannot invoke a legitimate expectation of receiving them.

79.      For all of those reasons, I do not consider that a provision such as Article 26(2) and (3) of Decree Law No 91/2014 infringes the freedom to conduct a business enshrined in Article 16 of the Charter.

3.      In the alternative: whether it would be possible to justify a hypothetical infringement of the freedom to conduct a business and the right to property, and whether such an infringement would be proportionate

80.      While I am strongly of the view that the circumstances of the main proceedings do not justify a finding of infringement of the freedom to conduct a business or the right to property, having regard to Articles 16 and 17 of the Charter, I make the following observations to address the contrary hypothesis.

81.      I consider, in the light of the circumstances of the main proceedings, that any infringement of those rights would in any case meet the requirements laid down by Article 52(1) of the Charter, under which any limitation on the exercise of the rights and freedoms recognised must be provided for by law and respect the essence of those rights and freedoms (49) and, subject to the principle of proportionality, must be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

82.      In that regard, I note that, according to the Italian Government, the objective of Decree Law No 91/2014 is essentially to revitalise the competitiveness of the national system for production of electricity, by redistributing the costs of the system and imposing a greater share of those costs on operators of photovoltaic installations. In particular, the Italian Government maintains that the change to the amounts of the incentives was motivated by the need to rebalance the support scheme at issue and divide the costs for final consumers of electricity, having regard to the limitations on the available resources.

83.      That Government also states that there has been rapid growth in the renewable energy sector in Italy, turning that Member State into one of the leading producers of photovoltaic energy on the European market.

84.      In the light of those considerations, I consider that, in the event of the Court deciding, contrary to the approach I recommend, that the alteration to the amounts of the incentives resulting from Article 26(2) and (3) of Decree Law No 91/2014 infringes their freedom to conduct a business and their right to property, such infringement should, in any event, be regarded as being necessary and justified by objectives of general interest corresponding to those pursued by Directive 2009/28. (50)

85.      That alteration should also, in my view – and subject to the matters to be verified by the referring court – be regarded as compliant with the principle of proportionality. As the Italian Government rightly observes, the operators of photovoltaic installations were able to choose between the various options provided for by Article 26(3) of Decree Law No 91/2014. Furthermore, compensatory measures, such as access to bank loans on preferential terms, appear to have been taken for the benefit of such operators, with a view to counteracting the disadvantages resulting from the enactment of that provision. (51)

86.      For all of those reasons, I consider, having regard to the material in the file available to the Court, that Article 26(2) and (3) of Decree Law No 91/2014 is compatible with the rights protected by Articles 16 and 17 of the Charter.

B.      The Energy Charter

87.      As stated in point 19 of this Opinion, the referring court also wishes to establish whether Article 26(2) and (3) of Decree Law No 91/2014 is compatible with Article 10 of the Energy Charter (read in conjunction with Article 216(2) TFEU).

88.      In order to address that matter, it is first necessary to answer the prior question of whether the provisions in question can be relied on in proceedings between individuals and their Member State.

89.      In that regard, the applicants in the main proceedings point out that the Energy Charter introduced a system for the settlement of disputes between the ‘contracting parties’ and ‘the investors of other contracting parties’. (52) The interveners add that it is apparent from the preamble to that charter that it was adopted with a view to improving conditions for investment in the energy sector and increasing cooperation in that field. In pursuit of those objectives, they submit, Article 10 of the Energy Charter requires each contracting party to encourage and create ‘stable, equitable, favourable and transparent conditions for investors of other Contracting Parties’.

90.      I note that the Union has acceded to the Energy Charter and is therefore a ‘contracting party’ within the meaning of Article 1(2) of that charter. Pursuant to Article 216(2) TFEU, international treaties concluded by the Union are binding on the institutions of the Union and the Member States.

91.      Furthermore, I note that, as rightly pointed out by the German and Greek Governments, as well as the Commission, Article 10 of the Energy Charter relates to the conditions established by the contracting parties to that charter for investments made by investors of other contracting parties.

92.      In my view, it follows, as the German Government rightly observes, that Article 10 of the Energy Charter is intended to provide protection, within the EU legal system, for investors of other contracting parties – or in other words of third States which are also parties to the charter – throughout the territory of the Union. (53) Conversely, it does not seem to me that that provision can be relied on by investors of the Union as against institutions of the Union or Member States.

93.      As regards Member States which have themselves acceded to the Energy Charter as ‘contracting parties’ (which is no longer the case in relation to the Italian Republic), (54) the parties have raised the issue of whether, in disputes involving one of those Member States, Article 10 of that charter can only be relied on by investors of third States, or whether it can also be relied on by investors of other Member States. It is not necessary to examine that issue in the present cases, however. (55) I do not consider, in any event, that Article 10 of the Energy Charter is applicable in matters such as those before the referring court, where the proceedings are between investors and their own Member State. (56)

94.      It seems to me to be evident from the wording of the provision that this is the correct approach. It is also consistent, in my view, with the limits imposed by the other provisions of the Energy Charter, especially Article 26 of that charter, which relates only to the settlement of disputes between a contracting party and investors of another contracting party. (57)

95.      In any event, I consider that even if it were to be held, contrary to my proposed literal and contextual interpretation, that Article 10 of the Energy Charter is applicable in disputes between investors and their own Member State, the simple fact that that provision refers, in general terms, to the need to create ‘stable, equitable, favourable and transparent conditions’ cannot prevent that Member State from altering or withdrawing a support scheme which it has adopted in its territory, pursuant to Article 3(3)(a) of Directive 2009/28. (58)

96.      In particular, that provision is not intended, in my view, to give greater protection to investors opposing such a reform than is afforded by the guarantees already provided for by EU law, and more specifically by Articles 16 and 17 of the Charter. (59)

V.      Conclusion

97.      In the light of all the considerations set out above, I suggest that the Court of Justice should answer the question referred for a preliminary ruling by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) in the following terms:

1.      Articles 16 and 17 of the Charter of Fundamental Rights of the European Union do not preclude a national provision, such as those at issue in the main proceedings, by which a Member State seeks to reduce the incentives provided for by a support scheme intended to promote, on its territory, the use of energy produced from renewable sources, and, more specifically, by private law agreements concluded between the beneficiaries of that scheme and a company owned by that Member State, where those beneficiaries have no legitimate expectation that the amount of the incentives will remain unchanged for the entire duration of those agreements, which is a matter for the referring court to verify.

2.      Article 10 of the Energy Charter Treaty, signed in Lisbon on 17 December 1994 and approved on behalf of the European Union, ECSC and Euratom by Council and Commission Decision 98/181/EC of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects, read in conjunction with Article 216(2) TFUE, is not applicable in disputes between investors in the energy sector and their own Member State.

1      Original language: French.

2      Anie represents undertakings conducting activities in Italy which are ‘associated with the production of goods and/or services in the electrotechnical and electronics sector, or in related sectors’. In the remainder of this Opinion, the term ‘the applicants in the main proceedings’ refers to Anie and all the operators of photovoltaic installations which are parties to the matters before the referring court.

3      The first directive concerning the promotion of the use of renewable energy was Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (OJ 2001 L 283, p. 33). That directive was repealed by Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

4      Signed in Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24) and approved on behalf of the European Union, ECSC and Euratom by Council and Commission Decision 98/181/EC of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects (OJ 1998 L 69, p. 1), (‘the Energy Charter’). I note that, in each of the present matters, the question referred mentions the Energy Charter without citing any particular provision. Nevertheless, it seems to me, in the light of the indications given by the referring court, that its specific concern is to establish whether the reform instituted by the Italian legislature is compatible with Article 10 of the Energy Charter. In this Opinion, therefore, I will limit my interpretation of the Energy Charter to that single provision.

5      It may be recalled that Article 216(2) TFEU provides that agreements concluded by the Union are binding upon the institutions of the European Union and on the Member States.

6      Decreto legge n. 91 – Disposizioni urgenti per il settore agricolo, la tutela ambientale e l’efficientamento energetico dell’edilizia scolastica e universitaria, il rilancio e lo sviluppo delle imprese, il contenimento dei costi gravanti sulle tariffe elettriche, nonché per la definizione immediata di adempimenti derivanti dalla normativa europea (Decree Law No 91 making urgent provision in respect of the agricultural sector, protection of the environment and energy efficiency of school and university buildings, recovery and development of undertakings, limitation of the costs attaching to electricity tariffs, and the immediate definition of the formalities required under European legislation), of 24 June 2014, converted into a Law, with amendments, by Law No 116 of 11 August 2014 (ordinary supplement to GURI No 192 of 20 August 2014) (‘Decree Law No 91/2014’).

7      Decreto legislativo n. 387 – Attuazione della direttiva 2001/77/CE relativa alla promozione dell’energia elettrica prodotta da fonti energetiche rinnovabili nel mercato interno dell’elletricità (Decree Law No 387, implementing Directive 2001/77/EC) of 29 December 2003 (ordinary supplement to GURI No 25 of 31 January 2004, p. 5, ‘Decree Law No 387/2003’).

8      Decreto legislativo n. 28 – Attuazione della direttiva 2009/28/CE sulla promozione dell’uso dell’energia da fonti rinnovabili, recante modifica e successiva abrogazione delle direttive 2001/77/CE e 2003/30/CE (Decree Law No 28, implementing Directive 2009/28/EC) of 3 March 2011 (ordinary supplement to GURI No 71 of 28 March 2011, ‘Decree Law No 28/2011’).

9      Article 24(2)(d) of Decree Law No 28/2011 provided, in respect of photovoltaic installations commissioned from 31 December 2012, that ‘the incentives shall be granted by means of private law contracts concluded between GSE and the entity responsible for the installations, which shall be based on a standard form to be produced by the electricity and gas regulator’. I would add that in its requests for preliminary rulings, the referring court only refers to agreements concluded between GSE and the operators of photovoltaic installations which fall within the scope of that provision. In this Opinion, therefore, I will proceed on the basis that the agreements at issue are all private law agreements relating to installations commissioned after 31 December 2012.

10      The objective of the reform, as stated in Article 26(1) of Decree Law No 91/2014, was ‘to optimise the periods for collection and payment of the incentives, and promote a more sustainable policy of support for renewable energy’.

11      To give those decrees their full titles they are, first, Ministerial Decree of 16 October 2014, ‘Approval of the operating procedures for the payment by GSE of the feed-in tariffs for electricity generated by photovoltaic installations in implementation of Article 26(2) of [Decree Law No 91/2014]’, and secondly, Ministerial Decree of 17 October 2014, ‘Procedures for restructuring the feed-in tariffs for electricity generated by photovoltaic installations, in implementation of Article 26(3)(b) of [Decree Law No 91/2014]’.

12      Judgment of the Corte costituzionale (Constitutional Court) No 16, of 24 January 2017.

13      Those requests have been made in Cases C-306/19, Milis Energy, C-512/19, Go Sun and Malby Energy 4, and C-595/19, Fototre, which have been stayed pending judgment in the present cases. I note that the issue of whether the amendments at issue in the main proceedings are compatible with Article 1 of the First Additional Protocol to the European Convention on Human Rights Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Paris on 20 March 1952 (‘the ECHR’) has been raised in proceedings before the European Court of Human Rights (see application Nos 20445/15, Salento Energy Srl v. Italy and 59246/17, Nuovo Sole Slr v. Italy, lodged on 17 April 2015 and 4 August 2017 respectively).

14      As the Italian Government points out, numerous Member States have adopted instruments reducing the incentives previously applicable, within their territories, in relation to the use of renewable energy. For example, Case C-366/19, BOSOLAR, which is currently pending before the Court and has been stayed pending judgment in the present cases, concerns a measure reducing the price payable in Bulgaria for electricity produced by photovoltaic installations.

15      See judgment of 22 January 2013, Sky Österreich (C-283/11, EU:C:2013:28, paragraph 42 and the case-law cited). See also, to that effect, judgment of 16 July 2020, Adusbef and Federconsumatori (C-686/18, EU:C:2020:567, paragraph 82).

16      See Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 23).

17      In that regard, I would note that, again in accordance with Article 52(3) of the Charter, the case-law of the European Court of Human Rights on Article 1 of the First Additional Protocol to the ECHR must be taken into consideration for the purposes of the interpretation of Article 17 of the Charter (see, to that effect, judgments of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C-398/13 P, EU:C:2015:535, paragraph 61, and of 21 May 2019, Commission v Hungary (Rights of usufruct over agricultural land), C-235/17, EU:C:2019:432, paragraph 72 and the case-law cited).

18      See judgments of 15 January 2013, Križan and Others (C-416/10, EU:C:2013:8, paragraph 113 and the case-law cited), and of 22 January 2013, Sky Österreich (C-283/11, EU:C:2013:28, paragraph 45 and the case-law cited). See also, to that effect, judgment of 16 July 2020, Adusbef and Federconsumatori (C-686/18, EU:C:2020:567, paragraphs 83 and 85).

19      See, to that effect, judgments of 30 June 2016, Lidl (C-134/15, EU:C:2016:498, paragraph 31), and of 13 June 2017, Florescu and Others (C-258/14, EU:C:2017:448, paragraph 51 and the case-law cited). In particular, the Court has held that, having regard to the wording of Article 16 of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (see judgments of 22 January 2013, Sky Österreich, C-283/11, EU:C:2013:28, paragraph 46, and of 30 June 2016, Lidl, C-134/15, EU:C:2016:498, paragraph 34).

20      It is worth noting that the freedom to conduct a business and the right to property are also subject to the limitations which arise from the wording of the provisions of the Charter in which they are embodied. Thus, the freedom to conduct a business is recognised, in Article 16 of the Charter, only ‘in accordance with Union law and national laws and practices’ (my emphasis). Similarly, the second and third sentences of Article 17(1) of the Charter limit the scope of the right recognised in the first sentence of that provision (see, in that regard, Oliver, P. What Purpose Does Article 16 of the Charter Serve? in Bernitz, U. and Others (Eds), General Principles of EU Law and European Private Law, Wolters Kluwer, Alphen aan den Rijn, 2013, p. 293, and Jaeger, M., La protection du droit de propriété dans l’ordre juridique de l’Union européenne à la lumière de l’article 17 de la charte des droits fondamentaux [Protection of the right to property in the legal system of the European Union], in De Rome à Lisbonne: les juridictions de l’Union européenne à la croisée des chemins – Mélanges en l’honneur de Paolo Mengozzi [From Rome to Lisbon: the courts of the European Union at a crossroads – a Miscellany in honour of Paolo Mengozzi], Brussels, Bruylant, 2013, p. 167).

21      It may be recalled that recital 8 of Directive 2009/28 emphasises, amongst other things, the need to establish ‘a framework that includes mandatory targets should provide the business community with the long-term stability it needs to make rational, sustainable investments in the renewable energy sector’. As for recital 14 of that directive, this states that ‘the main purpose of mandatory national targets is to provide certainty for investors’.

22      See, to that effect, judgment of 11 July 2019, Agrenergy and Fusignano Due (C-180/18, C-286/18 and C-287/18, EU:C:2019:605, paragraph 27 and the case-law cited).

23      More specifically, according to the applicants in the main proceedings, the agreements relating to installations commissioned after 31 December 2012 contain, in Article 17.3, the following clause: ‘… GSE reserves the unilateral right to amend clauses … which, as a result of such developments in norms and regulations as may take place, are contrary to the applicable frame of reference’. It will be for the referring court to verify that all the agreements at issue do in fact contain such a clause.

24      Contrary to the submissions of the applicants in the main proceedings and the interveners, I consider that Article 26(2) and (3) of Decree Law No 91/2014 does not have retroactive effect, properly so called, since it relates only to future payments, and not payments already made.

25      See judgment of 21 May 2019, Commission v Hungary (Rights of usufruct over agricultural land) (C-235/17, EU:C:2019:432, paragraph 69 and the case-law cited).

26      C-235/17, EU:C:2018:971, point 135.

27      See European Court of Human Rights, 22 June 2004, Broniowski v. Poland, EC:ECHR:2004:0622JUD003144396, § 129. I note, by way of example, that a company is to be regarded as having a pecuniary interest which constitutes a ‘possession’, within the meaning of Article 1 of the First Protocol to the ECHR, where it is entitled to a refund of tax unduly paid (European Court of Human Rights, 9 March 2006, Eko-Elda Avee v. Greece, EC:ECHR:2006:0309JUD001016202, § 27).

28      See European Court of Human Rights, 14 February 2012, Arras and Others v. Germany, EC:ECHR:2012:0202DEC005146699, § 75. I refer also to the Opinion of Advocate General Kokott in Inuit Tapiriit Kanatami and others v Commission (C-398/13 P, EU:C:2015:190, point 76), and the case-law of the European Court of Human Rights cited.

29      The European Court of Human Rights has held that the reduction or discontinuance of a social security benefit may constitute an interference for the purposes of Article 1 of the First Additional Protocol to the ECHR (see, to that effect, European Court of Human Rights, 28 April 2009, Rasmussen v. Poland, EC:ECHR:2009:0428JUD003888605, § 71, and ECtHR, 7 July 2011, Stummer v. Austria EC:ECHR:2011:0707JUD003745202, § 82). I note that this decision was cited in the judgment of 13 June 2017, Florescu and Others (C-258/14, EU:C:2017:448, paragraph 50), in which the Court held that a measure suspending the payment of pensions to persons who had chosen, while in receipt of such pensions, to pursue a paid professional activity within a public institution, restricted the right to property enjoyed by those persons pursuant to Article 17 of the Charter.

30      See European Court of Human Rights, 18 May 2010, Plalam S.p.A. v. Italy (EC:ECH:2010:0818:JUD001602102, § 38).

31      Private individuals may be entitled to a ‘possession’, within the meaning of Article 1 of the First Additional Protocol to the ECHR, where, inter alia, they hold building rights under instruments of sale and have a legitimate expectation of being able to exercise those rights on the contractual terms (see European Court of Human Rights, 18 November 2010, Consorts Richet and Le Ber v. France, EC:ECHR:2010:1118JUD001899007, § 98).

32      See ECtHR, 9 December 1994, Stran Greek Refineries and Stratis Andreadis v. Greece (EC:ECHR:1994:1209JUD001342787, § 59), as well as ECtHR, 9 June 2009, Nicola Silvestri v. Italy (EC:ECHR:2009:0609JUD001686102, § 70).

33      Judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission (C-398/13 P, EU:C:2015:535, paragraph 61).

34      For example, the Court has held, essentially, that annual payments of aid cannot be considered to be definitive, since the aid thereby received may be repaid by the beneficiary where he fails to fully satisfy the conditions for payment thereof (judgment of 26 May 2016, Ezernieki, C-273/15, EU:C:2016:364, paragraphs 45 and 49).

35      This is the expression used by Advocate General Campos Sánchez-Bordona in his Opinion in ArcelorMittal Rodange and Schifflange (C-321/15, EU:C:2016:516, point 97).

36      See judgments of 10 September 2009, Plantanol (C-201/08, EU:C:2009:539, paragraph 53 and the case-law cited), and of 11 July 2019, Agrenergy and Fusignano Due (C-180/18, C-286/18 and C-287/18, EU:C:2019:605, paragraph 31). The European Court of Human Rights has held, as regards Article 1 of Protocol No 1 to the ECHR, that the ‘legitimate expectation’ is based on a reasonably justified reliance on a legal act which has a sound legal basis and which bears on property rights (see European Court of Human Rights, 28 September 2004, Kopecký v. Slovakia, EC:ECHR:2004:0928JUD004491298, § 47).

37      See, to that effect, judgment of 11 July 2019, Agrenergy and Fusignano Due (C-180/18, C-286/18 and C-287/18, EU:C:2019:605, paragraph 33 and the case-law cited).

38      This, moreover, is essentially the conclusion reached by the Corte costituzionale (Constitutional Court) in judgment no 16 of 24 January 2017 (§ 9).

39      Judgment of 11 July 2019 (C-180/18, C-286/18 and C-287/18, EU:C:2019:605, paragraph 44).

40      ‘Fifth energy tariff’ is a reference to decreto ministeriale – Attuazione dell’art. 25 del decreto legislativo del 3 marzo 2011, n. 28, recante incentivazione della produzione di energia elettrica da impianti solari fotovoltaici (Ministerial Decree implementing Article 25 of Decree Law No 28 of 3 March 2011 introducing incentive measures for the production of electricity by solar photovoltaic plants) of 5 July 2012 (Ordinary Supplement to GURI No 159 of 10 July 2012).

41      As I stated in footnote 23 to this Opinion, it will be for the referring court to verify that all the agreements at issue do, in fact, reserve such a right to GSE.

42      See judgment of 11 July 2019 (C-180/18, C-286/18 and C-287/18, EU:C:2019:605, paragraph 27).

43      It may be recalled that Article 17(1) of the Charter makes a distinction between two types of limitation on the right to property: depriving a person of his possessions (second sentence) and regulating the use of possessions (third sentence) (see, in this regard, Wollenschläger, F., ‘Article 17 – Right to Property’ in Peers, S., Hervey, T., Kenner, J., and Ward, A., The EU Charter of Fundamental Rights – A commentary, Hart Publishing (2014), p. 476). I also refer to my Opinion in Commission v Hungary (Rights of usufruct over agricultural land) (C-235/17, EU:C:2018:971, point 154), where I noted the existence of these two types of limitation, as well as the general rule (‘Everyone has the right to own … possessions’) contained in the first sentence of Article 17(1) of the Charter.

44      See, in that regard, ECtHR, 23 September 1982, Sporrong and Lönnroth v. Sweden,  EC:ECHR:1982:0923JUD00715175, § 65, and ECtHR, 19 December 1989, Mellacher and Others v. Austria,  EC:ECHR:1989:1219JUD001052283, § 44.

45      See judgment of 22 January 2013, Sky Österreich (C-283/11, EU:C:2013:28, paragraph 43 and the case-law cited).

46      I note, in that regard, that in judgment no 16 of 24 January 2017 (§ 8.3), the Corte costituzionale (Constitutional Court) essentially held that, viewed in the light of the particular legislative context to which they belonged, the agreements concluded between the operators of photovoltaic installations and GSE could only be regarded as simple contracts for the benefit of those operators.

47      See, to that effect, judgment of 27 March 2014, UPC Telekabel Wien (C-314/12, EU:C:2014:192, paragraph 49).

48      See, to that effect, judgment of 27 March 2014, UPC Telekabel Wien (C-314/12, EU:C:2014:192, paragraph 50). For example, the Court has held that the possibility to require an operator to update its rates on an annual basis and submit them for periodic monitoring constitutes an interference in the exercise of the right guaranteed by Article 16 of the Charter (see judgment of 20 December 2017, Polkomtel, C-277/16, EU:C:2017:989, paragraph 51). Similarly, it has held that the labelling obligation imposed on a retail undertaking is liable to limit the exercise of its freedom to conduct a business (see judgment of 30 June 2016, Lidl, C-134/15, EU:C:2016:498, paragraph 29). I note that a prohibition applicable to an undertaking can also constitute an interference with the its freedom to conduct a business (see, amongst others, judgment of 17 December 2015, Neptune Distribution, C-157/14, EU:C:2015:823, paragraph 67).

49      In the present case, I do not think there is any doubt that, supposing there to be a limitation on the exercise of the rights and freedoms contained in Articles 16 and 17 of the Charter, that limitation must be regarded as being provided for by law and respecting the essence of those rights and freedoms. I observe that, as is apparent from the last section of this Opinion, the operators of photovoltaic installations remain free to use their installations and organise their activities as they see fit, and have not been deprived of the incentives already paid under the agreements concluded with GSE.

50      As to the substance of the objectives pursued by Directive 2009/28, I refer to point 34 of this Opinion.

51      I note that in judgment no 16 of 24 January 2017 (§ 8.4), the Corte costituzionale (Constitutional Court) concluded, essentially, that those compensatory measures were intended to be a means of protecting the investments made by operators of photovoltaic installations. That court also observed that the reform introduced by Decree Law No 91/2014 was progressive in nature, given the relatively long timescale of the three options provided for by Article 26(3) of that decree law.

52      Pursuant to Article 1(2) of the Energy Charter, ‘contracting party’ means a State or regional economic integration organisation which has consented to be bound by that treaty and for which that treaty is in force.

53      In that regard, I note that, with respect to regional economic integration organisations such as the Union, the term ‘area’ is defined in Article 1(10) of the Energy Charter as ‘the areas of the Member States of such Organisation’.

54      In his Opinion in Achmea (C-284/16, EU:C:2017:699, point 43), Advocate General Wathelet noted that all the Member States and the Union had ratified the Energy Charter. I note however that, as the applicants in the main proceedings and the intervening parties have observed, the Italian Republic commenced the procedure for withdrawal from the Energy Charter on 31 December 2014, and its withdrawal took effect on 1 January 2016. Accordingly, the Italian Republic is now bound by the Energy Charter only pursuant to Article 47(3) of that charter, which provides that its provisions ‘shall continue to apply to investments made in the area of a Contracting Party by investors of other Contracting Parties … as of the date when that Contracting Party’s withdrawal from the Treaty takes effect for a period of 20 years from such date’, and pursuant to Article 216(2) TFEU, or in other words on the basis that the charter is an integral part of the legal system of the Union.

55      While emphasising that it is unnecessary to resolve this issue in the present cases, I note that, in the judgment of 6 March 2018, Achmea (C-284/16, EU:C:2018:158), the Court held that Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction it has undertaken to accept. In the light of that judgment, it seems to me that, inasmuch as Article 26 of the Energy Charter, which is headed ‘Settlement of disputes between an investor and a Contracting Party’, provides that such disputes may be resolved by arbitral tribunals, that provision is not applicable to intra-Community disputes. In my view it may even be the case, having regard to the observations made by the Court in that judgment – especially in relation to the particular nature of the law established by the Treaties and the principle of mutual trust between the Member States –– that the Energy Charter is entirely inapplicable to such disputes. This, moreover, would seem to be the same conclusion as was reached by the representatives of the Governments of the Member States in the document entitled ‘Declaration of the Representatives of the Governments of the Member States, of 15 January 2019, on the legal consequences of the judgment of the Court of Justice in Achmea and on investment protection in the European Union’ (available on the Commission website at https://ec.europa.eu/info/sites/info/files/business_economy_euro/banking_and_finance/documents/190117-bilateral-investment-treaties_en.pdf), paragraph 5 of which states that, in the light of the Achmea judgment, ‘Member States will terminate all bilateral investment treaties concluded between them’.

56      I note that, under Article 1(7)(a)(i) of the Energy Charter, ‘investor’ means ‘a natural person having the citizenship or nationality of or who is permanently residing in that Contracting Party in accordance with its applicable law’. In the present case, it is not disputed that the undertakings which are parties to the proceedings before the referring court are all Italian.

57      It may also be helpful to note that, in my view, it is clear from the declarations made by Canada and the United States of America with respect to Article 10 of the Energy Charter that, where the contracting party is a State, the expression ‘investors of other contracting parties’ relates only to foreign investors (in relation to that contracting party) and not domestic investors.

58      In general terms, it would appear that in the arbitral case-law on the interpretation of Article 10 of the Energy Charter, the obligation to protect the legitimate expectations of investors has been interpreted narrowly (see, Montanaro, F., Les Politiques en Matière d’Énergie Photovoltaïque en Europe, au Carrefour entre le Droit de l’Union Européenne et le Traité sur la Charte de l’Énergie [Photovoltaic Energy Policy in Europe: at the Crossroads of EU Law and the Energy Charter Treaty], Revue belge de droit international [Belgian International Law Review], Brussels, Vol.1, Éditions Bruylant, 2016, p. 416).

59      I note that, in his Opinion in Commission v Slovakia (C-264/09, EU:C:2011:150, point 63), Advocate General Jääskinen concluded, essentially, that with respect to the enjoyment and protection of investments, the general level of the protection of fundamental rights provided by EU law affords protection to investors in such a way as to fulfil the obligations resulting, inter alia, from Article 10(1) of the Energy Charter. I would add, in so far as it may be helpful, that in the case of Electrabel S.A. v. Hungary (ISID, Case No ARB/07/19, 30 November 2012, §§ 7.77-78), the arbitral tribunal (the International Centre for Settlement of Investment Disputes, Washington, D.C.) held that that provision did not prevent a contracting party from amending its legislative framework, subject to certain conditions: ‘While the investor is promised protection against unfair changes, it is well established that the host State is entitled to maintain a reasonable degree of regulatory flexibility to respond to changing circumstances in the public interest. Consequently, the requirement of fairness must not be understood as the immutability of the legal framework, but as implying that subsequent changes should be made fairly, consistently and predictably, taking into account the circumstances of the investment … . Fairness and consistency must be assessed against the background of information that the investor knew and should reasonably have known at the time of the investment and of the conduct of the host State’ (my emphasis). The tribunal observed that, in the event of a conflict, EU law prevailed over the Energy Charter (§ 4.189).

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