Communicated on 6 April 2018
FIRST SECTION
Applications nos. 20445/15 and 59246/17
SALENTO ENERGY S.R.L. against Italy
and NUOVO SOLE S.R.L. against Italy
lodged on 17 April 2015 and 4 August 2017 respectively
SUBJECT MATTER OF THE CASE
From 2005 until 2013, a total of five incentives schemes for the production of energy with grid-connected solar photovoltaic systems were issued. Such programs, known as Conti Energia, prescribed the payment of feed-in tariffs with a view to encouraging the uptake of solar photovoltaic electricity generation technologies.
The applicant companies were found eligible for receiving the incentives of one of the five Conti Energia. In compliance with the procedure laid down by the Conti Energia, a number of agreements were stipulated between the applicant companies and the body responsible for the payment of the incentives (GSE). On the basis of such agreements, and in compliance with the provisions of the relevant Conto Energia, the GSE agreed to pay a feed-in tariff of a certain amount for a period of twenty years for each solar photovoltaic system constructed by the applicant companies. The first applicant company stipulated a total of four agreements, concerning four different solar photovoltaic systems, between October 2011 and January 2012. On 10 June 2009, the second applicant company stipulated two agreements, in connection with two different solar photovoltaic systems.
In June 2014, Law Decree no. 91 (converted, with amendments, into Law no. 116 of 11 August 2014, and enforced with the Ministerial Decrees of 16 and 17 October 2014) reduced the feed-in tariff paid by the GSE to solar photovoltaic systems over 200kw, including the applicant companies’ installations. According to article 26 § 3 of said Decree, such a reduction would have become effective from 1 January 2015, and had to follow one of the three options outlined in the text of the article. The applicant companies contend that all three options entailed a significant reduction of the feed-in tariff originally prescribed by the different Conti Energia, with serious consequences on their financial situation.
In December 2014, the second applicant company instituted proceedings before the Lazio Regional Administrative Court (RAC) denouncing, inter alia, the unconstitutionality of article 26 of Decree Law no. 91 of 2014. The Lazio RAC referred the question to the Constitutional Court. In December 2016, in another set of proceedings concerning the same issue, the Constitutional Court found that the relevant provisions of Decree Law no. 91 of 2014 were not unconstitutional (judgment no. 16 of 7 December 2016). In light of such a precedent, the Constitutional Court dismissed the question raised by the Lazio RAC within the proceedings concerning the second applicant company as manifestly ill-founded.
The first applicant company did not institute domestic proceedings, and directly lodged its application before the Court.
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 agreements that the applicant companies had stipulated with the GSE, according to which the GSE had agreed to pay the feed-in tariff of a certain amount for a period of twenty years, did the applicant companies have possessions or a legitimate expectation of acquiring possessions within the meaning of Article 1 Protocol No. 1 (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)?
2. Having regard to the reduction of the feed-in tariff introduced by Law Decree no. 91 of 2014, has there been an interference with the applicants’ 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 companies (see, mutatis mutandis, Azienda Agricola Silverfunghi S.a.s. and Others v. Italy, nos. 48357/07 and 3 others, §§ 101-108, 24 June 2014)?
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