Communicated on 6 April 2018
FIRST SECTION
Application no. 9381/15
ENERGETICA S.R.L. IN LIQUIDAZIONE
against Italy
lodged on 7 February 2015
STATEMENT OF FACTS
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 began investing in 2009 in the construction of solar photovoltaic installations. It expected to receive the incentives set forth in the III Conto Energia (Ministerial Decree of 6 August 2010). However, such a program remained in force only five months, and not thirty six months as indicated in the text of the Ministerial Decree. This early termination was due to the rapid achievement of the total amount of incentives that the III Conto Energia was meant to pay. The latter was followed by the IV Conto Energia (Ministerial Decree of 5 May 2011) which, however, restricted the scope of the incentives scheme – in comparison with the previous regimes – and provided for a significant reduction in the feed-in tariff to be paid.
The applicant company alleges that, due to the early termination of the III Conto Energia, it could not file a request to receive the incentives prescribed by the latter program, and that, in light of the changes introduced by the IV Conto Energia, its investment was no longer viable. The applicant company alleges that, in light of the above, it could not complete the construction and activation of the solar photovoltaic installations and that, as a result, it went into liquidation.
In connection with the above, the applicant company lodged domestic proceedings which ended unfavourably for it with a judgment of the Consiglio di Stato of 8 August 2014.
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 (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, 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. Did the refusal of the domestic courts to grant the applicant company’s request for a referral to the Court of Justice of the European Union (CJEU) render the proceedings unfair within the meaning of Article 6 § 1 of the Convention?
Did the reasoning of the Consiglio di Stato as of itself, or in conjunction with the reasoning of the Lazio Regional Administrative Court, suffice to comply with the obligation under Article 6 § 1 of the Convention to indicate the reasons why the question for referral is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt (see Dhahbi v. Italy, no. 17120/09, § 31, 8 April 2014)?
3. Did the applicant company have at its disposal an effective domestic remedy for its Convention complaints, as required by Article 13 of the Convention?
4. Has the applicant company suffered discrimination in the enjoyment of its Convention rights, on the ground of the date of entry into function of the photovoltaic installation and the geographical scope of its operations, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?
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