Main novelties of Law Decree No. 50/2022 (D.L. Aiuti) on the energy sector

Law Decree 17 May 2022, No. 50 so-called Decreto aiuti (Decree) introduces a set of provisions in the fields of national energy policies, attraction of investments, and permitting procedures. In particular, a number of provisions are aimed at facing the challenges stemming from the Ukraine war both with temporary derogations to the permitting regime (art. 12) and promoting new regasification facilities (art. 5) while others further simplify the permitting procedures for renewables (art. 6) and transmission lines (art. 11) and promote the use of renewable sources (art. 8 and 9).

We summarize those provisions below.

REGASIFICATION THROUGH FSRUS

The Decree (art. 5) sets out a special permitting regime and a fund of Euro 30 million for works aimed at increasing the national regasification capacity through floating storage and regasification facilities to be connected to the existing transportation system. From the permitting side, those works are considered as strategical interventions of public utility, not deferrable and urgent. For the realization of those works, one or more extraordinary government Commissioners will be appointed by decree of the President of the Council of the Ministers.

For the construction and operation of the abovementioned works, as well as for the construction of the related facilities, the relevant authorization (art. 46 of the Law-Decree 1 October 2007, No. 159, converted with amendments into Law 29 November 2007, No. 222) is issued by the Commissioner following to a single procedure to be completed within 120 days.

In relation to the environmental impact assessments of those works and the ancillary facilities, upon communication to the European Commission, the exemption under article 6, paragraph 11 of Legislative Decree 3 April 2006, No. 152 applies ¹.

Public authorities involved in those authorisation proceedings, including the issuance of the maritime state concession, give them priority and urgency in the fulfilment and assessment of their competence, in order to comply with the 120-day term above.

Within 30 days from the appointment of the Commissioner, interested parties shall submit the relevant application for the authorisation together with the technical solution for the connection of the facility to the national natural gas transportation network, a timetable for the construction and entry into operation of the facility, and a description of the gas supply conditions.

In addition, in order to limit the risk borne by companies operating floating storage and regasification facilities, a fund equal to Euro 30 million for each of the years from 2024 to 2043 is provided within the budget of the Ministry of Economy and Finance. The fund is aimed at covering the quota of revenues for the regasification service, including the cost of acquisition and/or construction of the new facilities referred to above, with priority for the quota exceeding the application of the revenue coverage factor under the Resolution No. 474/2019/R/gas of the Regulatory Authority for Energy Networks and Environment, set out by the current tariffs' regulation. The residual amount of the fund is aimed contributing to the coverage of revenues recognised to the regasification service by the tariff regulation in force, for the benefit of users and consumers. The access criteria and relevant the procedures for using the fund will be defined by a decree of the Ministry of Economy and Finance, prior consultation to the Regulatory Authority for Energy Networks and Environment.

ENVIRONMENTAL AUTHORISATIONS FOR POWER GENERATION PLANTS FED BY FOSSIL SOURCES

Article 12 amends Article 5-bis of Law Decree 25 February 2022, No. 14² generation plants with a thermal nominal capacity lower than 300 MW which use coal or fuel oil for regular operation, for the emergency period connected with Ukraine war, may derogate from the prescriptions set out by the Integrated Environmental Authorisation (IEA) for a six-month period, upon communication of the necessary derogations to the authority competent for the issuance of the IEA, which sends these communications to the Ministry for Ecological Transition and adopts specific monitoring measures. The Ministry for Ecological Transition notifies the communication to the European Commission. This notification results in an amendment to the IEA effective for a six-month period.

Upon the expiry of the six-month period, if the exceptional conditions persist, the operators shall notify the competent authority if new derogations are necessary, highlighting the period of effectiveness of the same, which, in any case, shall not exceed six months from the date of the new notification to European Commission.

AUTHORIZATION PROCEEDINGS FOR RES PLANTS

Further simplification measures have been introduced with respect to generation plants from renewable sources (RES Plants), Article 6 amends Legislative Decree 8 November 2021, No. 199 (RES II Decree) as follows:

• in the event that the Regions (i) fail to adopt the Regional Law aimed at identifying suitable areas for RES Plants, or (ii) in adopting it, do not met the principles, criteria and targets provided by the ministerial decrees setting out guidelines for the identification of the suitable surfaces and areas, the Department for Regional Affairs and Autonomies at the Presidency of the Council of Ministers promotes the exercise of substitutive powers of the State;
• areas which do not fall within the perimeter of the goods under protection pursuant to Legislative Decree 22 January 2004, No. 42 and which do not fall within the buffer zone of the goods under protection, are included among the suitable areas for the installation of RES Plants. In these cases, the buffer zone is determined considering a distance from the perimeter of protected goods equal to seven kilometres for wind plants and one kilometre for photovoltaic plants³;
• the simplified proceedings set out under article 22 of RES II Decree also applies to connection facilities ancillary to RES Plants and to those necessary for the development of the national electricity transmission network, insofar as they are strictly functional for the increase of energy generated from renewables.

Moreover, within 60 days from the entry into force of the Decree (i.e. by 17 July 2022) the competent General Directorate of the Ministry of Culture shall set out uniform criteria for the assessment of project of RES projects.

SIMPLIFICATIONS FOR RENOVATION OF EXISTING TRANSMISSION ASSETS

Article 11 amends Article 1-sexies of Law Decree 29 August 2003, No. 239⁴, providing that interventions on existing overhead lines, (i) carried out following the same layout or deviating from it by a maximum of 60 linear metres and (ii) not entailing a variation in the useful height of the pylons exceeding 30%, are carried subject to the filing of a declaration of commencement of activities. In the case of existing underground cable lines, the interventions must be carried following the same layout or on roadside or within five metres from the outer edge of the laying trench. The declaration of commencement of activities is also applicable to the construction of new stations or the upgrading or extension of existing stations, if needed and in case of interventions aimed at enabling the operation of direct current lines, provided that they are located in disused or partially disused industrial areas or sites, or in the areas identified as suitable pursuant to Article 20 of RES II Decree.

INCREASE OF POWER GENERATION FROM RENEWABLES IN THE AGRI-SECTOR

In order to increase the generation capacity from renewables, Article 8 sets out that the undertakings operating in the agricultural, zoo-technical, and agro-industrial sector are entitled to (i) benefit from public subsidies for the installation on the roofs of their production facilities of RES Plants having a capacity exceeding the average annual power consumption, including household consumption, and (ii) sell the power injected into the grid.

ENERGY COMMUNITIES

According to Article 9 the Ministry of Defence and concessionaires of state-owned military assets are entitled to participate in local energy communities also with other public entities and also with respect to RES Plants with capacity greater than 1MW. They are also entitled to access to the incentives provided for energy communities in relation to the quota of power shared among consumers not connected to the same primary cabin, subject to payment of the grid charges for public lighting. Therefore, relevant derogations have been provided to those energy communities which are not required to meet the conditions set out under paragraph 2, letters b) and c) of Article 31 of RES II Decree⁵.

Port system authorities are also entitled to establish energy communities and benefit from the relevant incentives even if including RES Plants exceeding 1MW of capacity.

1. Under this paragraph, the Minister for the Environment and the Protection of the Land and Sea (now Minister of Ecological Transition) may, in exceptional cases, subject to the opinion of the Minister for Cultural Heritage and Activities and Tourism, exempt all or part of a specific project from the provisions concerning the environmental impact assessment provisions, if the application of these provisions would adversely affect the purpose of the project, provided that the targets of national and European legislation on environmental impact assessment are met.
2. So-called Decreto Ucraina, converted into Law 5 April 2022, No. 28.
3. Without prejudice to the non-binding mandatory opinion to be issued by the Ministry of Culture in the steering committee for the authorisation of RES Plants located in areas contiguous to those subject to environmental protection.
4. Converted into Law 27 October 2003, No. 290 concerning "Urgent provisions for the safety and development of the national power system and the recovery of power capacity".
5. In particular, according to letter b), the self-generated power must be self-consumed on-site, injected into the grid and shared among the community members or stored whilst the exceeding quota may be sold through power purchase agreements; and according to letter c) community members use the distribution grid to share the self-produced power, within the same market zone and being connected to the same primary cabin.