Communicated on 6 April 2018
FIRST SECTION
Application no. 50654/15
ASI TROIA FV 1 S.R.L.
against Italy
lodged on 7 October 2015
SUBJECT MATTER OF THE CASE
The application concerns the incentives schemes for the production of energy with grid-connected solar photovoltaic systems that were in force between 2005 and 2013. Such programs, known as Conti Energia, prescribed the use of feed-in tariffs with a view to encouraging the uptake of solar photovoltaic electricity generation technologies. A total of five Conti Energia were issued over the years.
In light of the existence of the above incentives schemes, the applicant company decided to invest in the construction of solar photovoltaic installations. It received the authorizations to construct in February 2011.
The applicant company contends that it originally invested in the construction of solar photovoltaic installations expecting to receive the incentives set forth in the III Conto Energia (Ministerial Decree of 6 August 2010). However, by the time the applicant company could file a request to receive such incentives, the IV Conto Energia (Ministerial Decree of 5 May 2011) had replaced the III Conto Energia.
The applicant company further claims that it was not included among those eligible for receiving the incentives of the IV Conto Energia due to the discriminatory priority criteria laid down by the latter program. In particular, such criteria allegedly gave priority to installations of a smaller scale than the applicant company’s one. The applicant claims that the relevant legislation should have included protection clauses for larger installations, for which the authorization processes were more cumbersome.
In light of such a difficulty in obtaining the incentives, the applicant company did not complete the construction and activation of the solar photovoltaic installation.
In connection with the above, the applicant company instituted proceedings before the domestic courts. However, such proceedings ended unfavourably with a judgment of the Consiglio di Stato of 8 April 2015.
QUESTIONS tO THE PARTIES
1. Is Article 1 of Protocol No. 1 to the Convention applicable to the circumstances of the present case? In particular, having regard to the relevant domestic law and case-law, did the applicant company have possessions, or a legitimate expectation of acquiring possessions, in connection with the incentives set forth in the Ministerial Decree of 6 August 2010 or Ministerial Decree of 5 May 2011 (see among many others Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, §§ 29-32, Series A no. 332, and Kopecký v. Slovakia [GC], no. 44912/98, §§ 35 and 45-52, ECHR 2004‑IX)?
Having regard to the impossibility of being granted the incentives set forth in the Ministerial Decree of 6 August 2010 and Ministerial Decree of 5 May 2011, has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant company (see, mutatis mutandis, Azienda Agricola Silverfunghi S.a.s. and Others v. Italy, nos. 48357/07 and 3 others, §§ 101-108, 24 June 2014)?
2. Has the applicant company suffered discrimination in the enjoyment of its Convention rights on the ground of the typology of installation constructed, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?
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