The Regional Administrative Court (TAR) has upheld the appeal filed by an agricultural company - assisted by Osborne Clarke - against the GSE and its orders of forfeiture and repayment  of the incentives granted to the appellant's photovoltaic plant.

The ruling, in upholding the grounds raised in the appeal, provided further interesting clarifications regarding the application of art. 42, paragraph 3, second part of Legislative Decree no. 28 of 3 March 2011 (as amended by art. 1, paragraph 960, letter a) of Law no. 205 of 27 December 2017), which introduced, in the event of violations, a mechanism allowing a curtailment of the incentive rather than its total revocation.

In this regard, the Court, on the one hand, clarified that the application of such curtailment makes sense precisely with reference to the "relevant" penalties, i.e. those penalties that prior to the legislative change automatically gave rise to forfeiture on the basis of Ministerial Decree of 31 January 2014. On the other hand, the Court reiterated the GSE's obligation to assess, in the first instance, the possible application of the curtailment measure to the case in question, in the applicable percentage.

On the basis of these principles, the Regional Administrative Court of Lazio therefore annulled the contested measures in their entirety, since the GSE had completely failed to make any assessment on the applicability of the curtailment mechanism provided for by the aforementioned art. 42, paragraph 3, second part of Legislative Decree no. 28 of 3 March 2011.

Osborne Clarke advised with a team led by Carlo Gioffrè, Head of Decarbonisation, Osborne Clarke Italy.

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