Article

The Consolidated RES Act: A decisive step for regulatory simplification and energy transition in Italy

Published Date
Dec 17 2024
After a long and complex legislative process, Legislative Decree No. 190 of November 25, 2024 on “Regulations on administrative regimes for the production of energy from renewable sources” (hereinafter, the Decree) has finally been published in the Official Gazette of the Italian Republic.

The Decree, consisting of 17 articles, provides for the reorganization and simplification of the regulations concerning (i) the construction and operation of renewable energy production plants; (ii) modifications, upgrades, total or partial refurbishments of these plants; and (iii) the related works and essential infrastructure for the construction and operation of the same plants.

The Decree will officially come into force on December 30, 2024, and regions and local authorities must comply with the principles established therein within 180 days of its entry into force. The Decree will not apply to “ongoing proceedings” at the time of its entry into force unless the proposing party chooses to apply the new provisions of the Decree. “Ongoing proceedings” are those for which the completeness check of the documentation submitted with the project has been completed by the date of entry into force of the Decree.

Objectives

The Decree is part of the framework of Regulation (EU) 2023/435, in force since March 1, 2023, which introduces new regulations for the “REPowerEU” plan, part of mission 7 of the National Recovery and Resilience Plan (PNRR). Mission 7 includes five reforms, including the simplification of authorization procedures for renewable energies through a single legislative text. This is essential for:

  • Ecological transition: Achieving European and international goals (Paris Agreements 2015, UN Agenda 2030, Clean Energy Package, Green New Deal, Next Generation EU, “European Climate Law”).
  • Energy autonomy and security: Reducing dependence on gas and fossil fuel imports by promoting the use of renewable sources, in response to the energy crisis caused by Russia’s invasion of Ukraine.

Main innovations of the Decree

Among the main innovations:

  • Reduction of the number and type of administrative regimes: The Decree has reduced the administrative regimes for the construction, operation, and refurbishment of renewable energy production plants from four to three: (i) free activity; (ii) simplified authorization procedure (PAS); and (iii) single authorization, better defining their scope of application.
  • With regard to the PAS, the Decree has: (i) introduced the possibility of initiating expropriation procedures for accessory connection works to the plants; (ii) established that it is no longer necessary to submit the PAS at least 30 days before the start of the works; (iii) clearly defined the start and end dates of works; (iv) provided for the submission of a program of compensatory measures valued between 2% and 3% of the proceeds for projects exceeding 1 MW; and (v) confirmed that the PAS becomes effective upon publication in the Regional Official Bulletin (BUR), at which point it becomes opposable to third parties and the relevant appeal periods begin (publication in the BUR thus has a constitutive nature).
  • With regard to the single authorization, the Decree has: (i) assigned to the state competence for FER plants and related works with a power exceeding 300 MW; (ii) better outlined the timing of the procedure; and (iii) provided for the publication of the single authorization on the website of the proceeding administration.
  • Introduction of “acceleration zones for renewables”: The establishment of “acceleration zones” for renewables is planned. By May 21, 2025, the Energy Services Manager (GSE) will publish a mapping of available areas for renewable plants, prioritizing artificial surfaces, industrial areas, disposal sites, artificial water basins, and non-productive agricultural land.
  • Regulation of the so-called “artificial splitting” (artato frazionamento): The Decree has provided that for the identification of the applicable administrative regime, the cumulative effect of the applications submitted is considered. Specifically, an application concerning the same area and submitted by the same entity, considered as a single center of interests, is considered as a single application.
  • Environmental procedures: Interventions subject to the free building regime and PAS are exempt from environmental assessment procedures, thus accelerating these authorization processes.

For a complete analysis of some of the main innovations introduced by the Decree, refer to the table below: 

Innovation areaDescription
Reduction in the number and type of administrative regimes

The Decree reduced the number and type of administrative regimes applicable for the construction, operation and renovation of plants for the production of energy from renewable sources from four to three. They are: (i) free activity; (ii) simplified administration procedure (PAS); and (iii) single authorization. The interventions that can be carried out according to the regime of free activity, PAS and single authorization are identified, respectively, in Annexes A, B and C of the Decree.

Free activity

Clarification on the scope of application: Interventions in free construction do not require permits, authorizations or administrative acts of consent, nor communications to public administrations and concern interventions of less complexity. The Decree has the merit of listing the interventions subject to free construction. Among the main ones are:

  • Photovoltaic solar plants, with a power of less than 12 MW, integrated on the roofs of existing structures or buildings or on their appurtenances, with the same inclination and orientation of the pitch, without changing the shape of the structure or building and with a surface area not greater than that of the roof on which it is installed.
  • Solar photovoltaic plants with a capacity of less than 5 MW installed on the ground located in areas and areas for industrial, artisanal and commercial use, as well as in landfills or closed and restored landfill lots or in quarries or lots or portions of quarries not susceptible to further exploitation.
  • Agrivoltaic plants with a capacity of less than 5 MW that allow the continuity of agricultural and pastoral activity.
  • Electrochemical storage systems with a power of up to 10MW.
  • Electrolyzers, including compressors and deposits, with a power of up to 10 MW.
  • Biomass systems for the production of thermal energy serving buildings for air conditioning and domestic hot water, installed in existing buildings and in annexed private free spaces, with a nominal useful power of up to 200 kW.

PAS

The administrative regime of the PAS is affected by significant innovations.

  • Availability of the area and expropriation for connection works: The proponent, for the purposes of using the PAS, must only possess the availability of the land intended for the installation of the plant, while for the land intended for the construction of the connection works, the expropriation procedure can be activated[FE review].
  • PAS immediate effect: It is no longer required that the PAS must be submitted at least thirty days before the actual start of the works, thus enhancing the principle of shifting the control of administrations from ex ante to ex post.
  • Deadlines for the start and conclusion of the works: The Decree provides for a clear deadline of one year to start the works and three years from the start of the works for their conclusion, thus resolving the previous interpretative doubts about the deadline to start the works.
  • Compensatory measures: For PAS relating to projects above 1 MW, a program for value compensatory measures from a minimum of 2% to a maximum of 3% of the proceeds must be submitted.
  • Publication: The Decree confirmed that from publication in the Regional Official Bulletin, the PAS becomes effective, is enforceable against third parties and the relevant terms of appeal run.

Single authorization

The administrative regime of the single authorization is impacted[FE review] by significant innovations:

  • Interventions subject to the single regional authorization: In discontinuity with the previous regulations, the interventions subject to the single authorization of regional competence include: (i) RES plants and related essential works and infrastructures with a capacity of less than 300 MW; and (ii) stand-alone electrochemical storage plants with a power of less than or equal to 200 MW.
  • Projects subject to a regional Environmental Impact Assessment (EIA): For projects subject to Regional Environmental Impact Assessment (EIA), the same regions and autonomous provinces may decide whether to opt for the Regional Single Authorization Provision (PAUR) pursuant to Article 27-bis of Legislative Decree No. 152/2006 (to be concluded within a maximum of two years) or for the single authorization.
  • Publication: The publication of the single authorization on the website of the proceeding administration is envisaged.
Environmental procedures

Clarified that projects relating to interventions in free activity and to the PAS are not subject to Environmental Impact Assessment (EIA).

 

Furthermore, the Decree has adjusted certain thresholds for environmental procedures. Specifically, the new thresholds are noted as follows: (> 30 MW) beyond which the state EIA Screening applies, and (≥ 15 MW) beyond which the regional EIA Screening applies, for ground-mounted installations on areas designated for industrial, artisanal, and commercial use. 

Acceleration zones for renewables
By May 21, 2025, the GSE will publish a mapping of the national territory to identify areas available for renewable plants. Priorities include: (i) artificial and built-up surfaces; (ii) industrial areas and disposal sites; and (iii) artificial water basins and non-productive agricultural land. 
Adaptation by the regions
The Decree imposes upon the regions the obligation to comply with the principles established therein within 180 days from its entry into force. Pending such compliance, the previous regulations shall apply. In the event of non-compliance within the stipulated period, the Decree shall apply. During the compliance process as per the first period, regions and local authorities may establish specific rules for further simplification of administrative regimes, including the possibility of raising the power thresholds for interventions subject to free activity and the PAS, provided that the thresholds for environmental procedures are respected.
The so-called “artificial splitting” (artato frazionamento)

For the identification of the applicable administrative regime, the cumulation of the applications submitted is considered. A single application is considered to be one concerning the same area and submitted by the same subject intended as a single center of interests (prohibition of “artificial splitting”).

In addition, regions and autonomous provinces will have to establish rules to counter the artful fragmentation of authorization applications aimed at accessing less onerous authorization procedures by formally different subjects but belonging to the same center of interests. 

D.L. Agriculture
Confirmed the applicability of the limits to the construction of photovoltaic plants in agricultural areas introduced by Article 5 of Decree-Law No. 63 of May 15, 2024 (so-called Legislative Decree No. 63 of May 15, 2024 (D.L. Agriculture)).

Considerations

Energy sector operators are known to be accustomed to continuous changes, if not outright upheavals, in the regulatory framework. Although it is necessary to await the concrete implementation methods by the regions and local authorities and to see what practical and operational difficulties might arise, this Decree represents, at least theoretically, an important step forward in the regulation of renewable energy plants in Italy, as it marks the beginning of a path of modernization and regulatory simplification that is now indispensable.

However, like any reform, this Decree also presents some critical issues that will animate discussions among industry professionals in the coming months. To cite a few:

  • The Decree has simplified and reorganized the regulatory framework for the construction, operation, and refurbishment of renewable energy production plants, repealing numerous previous provisions. However, the lack of coordination with D.P.R. 380/2001 (Consolidated Building Act) for related works could represent a step back compared to the previous regulation. Moreover, the need for adaptation by regions and local authorities could establish particular and different rules, as well as delays, creating a non-homogeneous regulatory framework.
  • Not all regulations governing renewables have been repealed. For example, the reference to so-called “Suitable Areas” and Decree-Law No. 63 of May 15, 2024 (Agriculture Decree) remains. The legislator has therefore missed the opportunity to introduce a clear definition of agrivoltaic plant, highlighting the differences compared to the solar plant.
  • For some projects, the administrative process seems to have become more complex and burdensome. For example, interventions that previously fell within the scope of free building or “DILA” (Declaration of Start of Activity) now require PAS.

Elisa Goetz, intern, contributed to the drafting. 

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