The Aid Decree​

On July 14, the Senate renewed its confidence in the Government by definitively approving, in the text dismissed by the Chamber, the bill for the conversion, with modifications, of the Decree-Law no. 50 of 17 May 2022, published in the Official Gazette on 15 July 2022 general series – no. 164 (also known as the “ Aid Decree ”).

This is a measure aimed at adopting measures to combat the systemic effects caused by the Ukrainian crisis, in particular with regard to national energy policies, business productivity, and investment attraction.

With regard to the energy sector, with a view to encouraging the production of energy from renewable sources, articles 6 and 7 of the Aid Decree introduced rules for further simplification of the authorization procedures for the construction and operation of plants powered by renewable sources.

Speeding up identification of suitable areas​

Article 6, paragraph 1 of the Aid Decree – in amending article 20, paragraph 4 of Legislative Decree No. 199 of 8 November 2021 (the ” Legislative Decree 199/2021 “) – aims to speed up the process of identifying surfaces and areas suitable for the installation of renewable energy plants, giving the Department for Regional Affairs and Autonomies the possibility of exercising state substitute power in the event of failure by the Regions to adopt laws aimed at delineating suitable areas within the deadline provided for by the legislation in force.

The provision also affects Article 20, paragraph 8 of Legislative Decree 199/2021, extending the number of areas that can be classified by law as suitable for the construction and operation of renewable plants pending the identification of suitable areas by of the Regions.

Specifically, in light of the changes introduced as a result of Article 6 of the Aid Decree:

Exceptions to the ordinary authorization procedure​

It should be remembered that Article 22 of Legislative Decree 199/2021, with reference to the construction and operation of plants for the production of energy from renewable sources in suitable areas, has introduced some exceptions to the ordinary authorization procedure. Specifically, with reference to these projects:

• The competent authority in landscape matters expresses itself with a mandatory non-binding opinion and once the deadline for the expression of the non-binding opinion has expired, the competent administration in any case provides for the authorization application;
• the terms of the authorization procedures for installations in suitable areas are reduced by one-third.

More on exemptions​

Article 6 of the Aid Decree has explicitly extended the scope of these exceptions, stating that they apply to electrical infrastructures connecting renewable energy plants and to those necessary for developing the national transmission grid, provided they are strictly functional to increasing energy production from renewable sources.

The decree also adopts incentive measures, specifically in paragraphs 2 quarter and quinques, to encourage new projects and interventions that promote social, economic, and productive development in municipalities with areas under concession for geothermal energy production. Starting January 1, 2023, holders of concessions for constructing and managing these plants, under Legislative Decree no. 287 of December 29, 2003, and law no. 99 of July 23, 2009, must pay a contribution of €0.05 for each kilowatt hour of electricity produced by the corresponding geothermal plant. Within ninety days of the Aid Decree’s entry into force, the Minister of Economic Development will issue a decree.

The decree also introduces further simplifications for tourist and spa facilities. For 24 months from the conversion law’s entry into force, these facilities can implement new photovoltaic projects with ground-mounted modules up to 1,000 kWp using the administrative DILA (sworn declaration of start of works) regime. These projects must be aimed at using self-produced energy for the needs of the facilities, located outside historical centers, and not under protection according to Legislative Decree 42/2004 (see Article 6, paragraph 2 septies of the Aid Decree).

Finally, Article 6 of the Aid Decree requires the Ministry of Culture, within sixty days of the conversion law’s entry into force, to establish uniform criteria for evaluating renewable energy plant projects. This aims to streamline proceedings and ensure that any negative assessments are well-founded, reflecting stringent and proven needs for cultural or landscape protection, in line with the specific characteristics of different territories.

Article 7​

Article 7 of the Aid Decree introduces significant innovations, simplifying procedures for authorizing plants that produce electricity from renewable sources.

These changes primarily affect projects that require an Environmental Impact Assessment (EIA) under state jurisdiction.

Specifically, the decree establishes that in the authorization procedures for renewable energy plants, if the project requires an EIA at the state level, the Council of Ministers’ resolutions will replace the EIA provision for all purposes, even in cases of conflicting assessments by the relevant environmental authorities.

The Presidents of the concerned Regions and Autonomous Provinces participate in the Council of Ministers’ meetings to express the position of their administration and the non-state administrations involved in the authorization process, but they do not have voting rights.

The Council of Ministers’ resolutions are then incorporated into the single authorization procedure, which the competent administration must conclude within sixty days. If the Council of Ministers decides to issue the EIA provision and the sixty-day period passes without action, the authorization is automatically deemed issued.

More on Article 7​

Furthermore, article 7 of the Aid Decree intervenes in various ways on the authorization procedures connected to the construction and operation of renewable plants, providing that:

• for the construction of plants other than those fueled by biomass, including biogas plants and plants for the production of biomethane of new construction, and for photovoltaic plants, the proponent, when submitting the application for authorization, can request the declaration of public utility and the affixing of the preordained constraint to the expropriation of the areas affected by the construction of the plant and related works.
• the simplified authorization procedure (PAS) for the construction and operation of photovoltaic systems up to 20 MW located in quarries or lots of quarries not susceptible to further exploitation may also concern the location in “portions of quarries”, it being understood that the same they must not be susceptible to further exploitation.
• with regard to ceased quarries and mines, not recovered or abandoned or in conditions of environmental degradation considered suitable areas pursuant to the law for the installation of plants for the production of electricity from renewable sources, portions of quarries and mines not susceptible to further exploitation.
• with regard to the standard that subjects to PAS the installation of photovoltaic systems with a power of up to 10 MW in floating mode on the water mirror of reservoirs and reservoirs, including water reservoirs in disused quarries, the plants in question can be placed also in the water reservoirs in the quarries in operation (see the modification of article 9 – ter of the Energy Decree).

Furthermore, it is appropriate to point out that with the provisions referred to in Article 7 – bis of the Aid Decree, the deadline for the start of work for the interventions carried out under a qualification issued under Article 12 of the Legislative Decree n. 387 of 29 December 2003 is set for three years from the issue of the relative qualification.

The Aid Decree therefore follows the path already outlined by the Simplifications Decree and the Energy Decree, demonstrating a unitary, albeit fragmented, intention of the legislator towards promoting the consumption of energy from renewable sources.

About the author

Italian-qualified lawyer, Tommaso has fifteen years of extensive experience in domestic, cross-border border, and multi- jurisdiction mergers and acquisitions, joint ventures, corporate finance, and private equity transactions involving both listed and privately held companies. He has particular expertise in transactions in highly regulated activities as well as in the infrastructure sector and, in particular, in the energy, transport, water, and waste sectors. His experience also includes assistance in favor of developers and lenders in relation to development projects in the energy sector, with particular reference to renewable energy assets (solar, biomass, wind, hydrogen) and transport infrastructure (electricity and gas transport, electricity and gas distribution, gas storage and LNG plants). He has extensive experience in the negotiation and drafting of M&A contracts, facility agreements, EPC, O&M, PPA contracts, and supply contracts in the public and private sectors. Tommaso has an LL.M Master’s Degree in Business & Corporate Law at City Birmingham University and has more than 15 years of experience in primary international law firms in London, Milan, and Dubai. Tommaso is an Italian native speaker and is fluent in English and Spanish

La entrada Authorization Procedures For Italian Renewables se publicó primero en We turn good projects into great deals - Green Dealflow.

Agrivoltaic Incentives in Italy​

Following the goals set out by the National Integrated Plan for Energy and Climate (“PNIEC”), the National Recovery and Resilience Plan (“PNRR”) has expressly included the construction of agro-voltaic plants among the initiatives to be implemented in the context of the ecological transition in view of achieving complete climate neutrality and environmental sustainability.

Reference is made to “Mission M2C2, investment 1.1.” named “agro-voltaic development”, envisaging a production capacity from agro-voltaic plants of 2GW with the aim of producing about 2,500 GWh per year with a reduction of greenhouse gas emissions estimated around 1.5 million tons of CO2.

The M2C2 mission (which financial resources should be over 1 billion euros, as provided under the current version of the draft decree of the Ministry of Economy and Finance having as scope the allocation of financial resources for the implementation of the PNRR targets) aims to make the agricultural sector more competitive, reducing energy supply costs and improving climatic-environmental performances.

Regulatory changes to agrivoltaics​

In addition to the above, it is worth noting that regulatory changes have been introduced aimed at promoting the construction and operation of these power plants:

• Law Decree no. 77 of 31 May 2021, converted, with amendments, by Law no. 108 of 29 July 2021 (“Governance of the National Recovery and Resilience Plan and first measures for strengthening administrative structures and accelerating and streamlining administrative procedures” – so-called “Simplification Decree Bis”) providing that agro-voltaic plants can benefit from incentive tariffs related to the production of energy from renewable sources;
• The draft of Legislative Decree implementing Directive 2018/2001 (the “RED II Directive”) (the “Draft Decree Implementing RED II”), whereby the Ministry of Ecological Transition has been entrusted with the definition of the “criteria and methods for providing incentives for the construction of agro-voltaic plants through the granting of loans or non-repayable contributions, carried out in accordance with the provisions of article 65, paragraph 1-quater, of Legislative Decree no. 1 of 24 January 2012, converted, with amendments, by Law no. 27 of 24 March 2012, which, through the implementation of hybrid agriculture-energy production plants, do not compromise the use of land dedicated to agriculture. With the same decree are defined the conditions of combination with the incentive tariffs referred to in Chapter II”.

Why are these changes important?​

These recent amendments are extremely relevant considering that since 2012, according to previous Italian Laws, photovoltaic plants constructed within agricultural lands could not benefit from RES incentives.

Specifically, this prohibition was provided under Article 65 of the Law-Decree no. 1/2012 (“DL 1/2012”), introducing – as to photovoltaic solar plants with ground-mounted modules located in agricultural areas – the prohibition to benefit from RES incentives. In that respect the unique exceptions to this ban were the following: (a) plants built or to be built on military lands (demanio militare); and (b) photovoltaic plants installed on area classified as “agricultural” at the date of 25 March 2012 (date of entry into force of the law converting DL 1/2012), providing that they obtained the relevant authorization title within 25 March 2012 and entered into operation within 180 days starting from 25 March 2012.

How to qualify for agrivoltaic incentives​

As mentioned above, the Simplifications Decree Bis (see Article 31, Paragraph 5), has amended Article 65 of DL 1/2021, providing that agro-voltaic plants meeting the following characteristics could benefit from incentives: “agrovoltaic plants adopting innovative integrative solutions with the installation of the modules raised from the ground, also providing for the rotation of the modules themselves, however in such a way as not to compromise the continuity of agricultural and pastoral cultivation activities, also allowing the application of digital and precision agriculture tools“.

The same provision of the Simplifications Decree Bis has also specified that access to incentives is subject to the simultaneous implementation of monitoring systems that make it possible to verify the impact on crops, water saving, agricultural productivity for the different types of crops, and the continuity of the activities of the farms concerned.

The same article of the Simplifications Decree has also specified that access to incentives is subject to the implementation of monitoring systems aimed at verifying the impact on crops, water saving, agricultural productivity for the different types of crops, and the progression of the relevant farm activities.

Therefore, the provisions of the Simplification Decree Bis together with the requirements of the Draft Decree Implementing RED II (currently subjected to parliamentary opinion, hence, susceptible to potential amendments) seem to overcome the prohibition imposed by the former Article 65 of DL 1/2012, gradually introducing the chance even for agro-voltaic plants to benefit from RES incentives.

In case you want to read more, get Tommaso’s full piece here, or read our in-depth piece on the optimal setup for agrivoltaics.

About the author

Italian-qualified lawyer, Tommaso has fifteen years of extensive experience in domestic, cross-border, and multi-jurisdiction mergers and acquisitions, joint ventures, corporate finance, and private equity transactions involving both listed and privately held companies. He has particular expertise in transactions in highly regulated activities as well as in the infrastructure sector and, in particular, in the energy, transport, water, and waste sectors. His experience also includes assistance in favor of developers and lenders in relation to development projects in the energy sector, with particular reference to renewable energy assets (solar, biomass, wind, hydrogen) and transport infrastructure (electricity and gas transport, electricity and gas distribution, gas storage and LNG plants). He has extensive experience in the negotiation and drafting of M&A contracts, facility agreements, EPC, O&M, PPA contracts, and supply contracts in the public and private sectors. Tommaso has an LL.M Master’s Degree in Business & Corporate Law from City Birmingham University and has more than 15 years of experience in primary international law firms in London, Milan, and Dubai. Tommaso is an Italian native speaker and is fluent in English and Spanish

La entrada Incentives For Italian Agrivoltaics se publicó primero en We turn good projects into great deals - Green Dealflow.