Decree on Eligible Areas: update and critical provisions12 July 2024

The Decree, on the one hand, aims to identify the distribution amongst Italy’s regions and autonomous provinces of the national target of an additional 80 GW of power capacity from renewable sources by 2030 compared to 31 December 2020; on the other, it intends to establish common principles and criteria for the regions to identify eligible and non-eligible surfaces and areas for the installation of renewable energy plants to achieve said 2030 target.

Scope of application

Pursuant to Art. 1, paragraph 2, of the Decree, the following areas shall be identified:

a)  eligible surfaces and areas: areas for which an accelerated and facilitated procedure is envisaged in order to favour the construction of renewable energy plants and related infrastructure in line with the provisions of Article 22 of Legislative Decree no. 199/2021 (i.e. specific authorisation procedures for suitable areas);
b)  non-eligible surfaces and areas: areas and sites that are deemed incompatible with the installation of specific plants, in accordance with the procedures set forth in paragraph 17 and annex 3 of the guidelines issued by decree of the Ministry of Economic Development dated 10 September 2010 (as subsequently supplemented and amended);
c)  ordinary surfaces and areas: surfaces and areas other than those referred to above in which the ordinary authorisation regimes set forth in Legislative Decree no. 28/2011 (as subsequently supplemented and amended) apply; and
d)  areas where the installation of photovoltaic plants with ground-mounted modules is prohibited: agricultural areas where the installation of photovoltaic plants with ground-mounted modules is prohibited, pursuant to Article 20, paragraph 1-bis of Legislative Decree no. 199/2021.

Allocation of power between regions and autonomous provinces

Art. 2 of the Decree identifies the trajectory associated with each region and autonomous province for the achievement of the overall power target by 2030. The features referred to in said table are calculated taking into consideration the following factors:

a)  the nominal power output of newly constructed renewable energy plants that became operational between 1 January 2021 and 31 December of the referenced year, and are built within the relevant region or autonomous province’s territory;
b)  the additional nominal capacity resulting from refurbishment, complete reconstruction, upgrading or reactivation of plants that entered into operation between 1 January 2021 and 31 December of the referenced year, and are built within the relevant region or autonomous province’s territory; and
c)  100% of the nominal power capacity of newly constructed offshore renewable source plants that entered into operation between 1 January 2021 and 31 December of the referenced year, and whose grid connection facilities are realised within the region or autonomous province’s territory, except where the connection to the electricity grid is made in different region(s) to the one whose coastline is closest to the planned off-shore works (Art. 2, paragraph 4 of the Decree).

In the case of projects located in the territory of several regions or autonomous provinces or whose production is attributable to the contributions of several regions or autonomous provinces, the allocation of the relevant powers is defined by agreements concluded between the same territorial entities involved.

Methods for achieving the targets

Within 180 days from the date of entry into force of the Decree (the “Deadline”), regions shall identify, pursuant to art. 20, paragraph 4 of Legislative Decree no. 199/2021, by means of their own laws, the areas referred to in the Decree, in accordance with the principles and criteria provided for in ‘Title II’ of the same.

Autonomous provinces will perform the above-mentioned duties in accordance with their special bylaws and implementing rules.

Pursuant to art. 3, paragraph 3 of the Decree, for the purpose of achieving their respective objectives, both regions and autonomous provinces may enter into bilateral agreements for the statistical transfer of certain quantities of power from renewable sources, it being understood that such statistical transfers won’t jeopardise the achievement of the objectives of the same region or autonomous province making the transfer.

Monitoring and evaluation on the achievement of the targets

Pursuant to Art. 4 of the Decree, the Mase ensures, with the support of the Gestore dei Servizi Energetici S.p.A, the monitoring and evaluation of each region and autonomous province’s obligations. In particular, it will:

(i)   90 days following the Deadline, verify the adoption of the provided laws and the measures; and
(ii)  by 31 July of each year from the date of entry into force of the Decree, verify the power derived from the renewable sources installed, authorised or granted for each region and province in the course of the previous year.

The outcome of the checks referred to in point (i) above will be promptly communicated to all regions and autonomous provinces, as well as to the MASAF, the Ministry for culture, the Prime Minister (Presidenza del Consiglio dei ministri) and the “observatory” referred to in Art. 5, paragraph 5, of the Decree of the Minister of Economic Development no. 78/2012 (the “Observatory”).

Likewise, the outcome of the monitoring activities referred to in paragraph (ii) above must be communicated no later than 30 September of each year – commencing from the date of entry into force of the Decree – through the submission of both a copy of the agreements and understandings entered into as well as the values of the allocated power quotas and the actual power transferred.

The outcomes of the monitoring activities shall be uploaded on the GSE IT platform (Art. 48, paragraph 5, of the Legislative Decree no. 199/2021), which shall become operative within 180 days from the date of entry into force of the Decree.

Observatory on renewables development targets

The Observatory will analyse annually the monitoring reports on the degree of achievement of the targets and the causes of any deviations, proposing the consequent actions deemed appropriate to overcome the impeding circumstances.

Procedures for managing the non-achievement of the targets

Once the Deadline for the adoption of regional laws and measures provided for by the Decree has elapsed, the Mase will propose to the Prime Minister (Presidente del Consiglio dei Ministri) specific schemes for regulatory acts of a substitutive nature to be adopted by the Council of Ministers.

As of 1 January 2026, taking into account the assessments and checks conducted by the Observatory, in the event of a negative deviation from the targets of the Decree, the Mase will request the affected region or autonomous province to submit any observations on the matter within 30 days, in order to assess the extent to which the deviation is attributable to the actions.

60 days following said request for observations, if it is deemed that the responsibility of the deviation lies with the region or autonomous province in question, the Mase will inform the Prime Minister (Presidente del Consiglio dei ministri) who will assign a deadline (no shorter than 6 months) for all the necessary measures to achieve the objectives to be adopted. In the event of failure to comply with said deadline, the Mase will take appropriate initiatives and exercise its substitutive powers.

Principles and criteria for the identification of eligible areas

In identifying eligible areas, regions shall consider:

a)  the maximisation of those areas to be identified to facilitate the achievement of the targets set out in the Decree; and the need to protect the cultural heritage and landscape, agricultural and forestry areas, air quality and water resources. To this end, it is preferred to use areas with constructed structures as well as areas for industrial, artisanal, service and logistical use; and to verify the eligibility of areas that cannot be used for other purposes including agricultural areas that cannot be used, in accordance with the characteristics and availability of renewable resources, the network infrastructures and electricity demand, as well as any network constraints and the development potential of the grid;
b)  the possibility to classify surfaces or areas as eligible by differentiating them by source, size and type of plant; and
c)  he possibility to retain the eligible areas referred to in Article 20, paragraph 8 of Legislative Decree no. 199/2021 in force on the date of entry into force of the Decree.

It remains understood that, the surfaces and areas included in the perimeter of the assets subject to protection pursuant to art. 10 and art. 136, paragraph 1, letters a) and b) of Legislative Decree no. 42/2004 (“Cultural Heritage and Landscape Code”) will be considered ineligible. In addition, regions may identify as ineligible the surfaces and areas included in the perimeter of other assets subject to protection in accordance with the Cultural Heritage and Landscape Code.

It is also worth emphasising that the regions may establish a buffer zone from the perimeter of the protected property of differentiated width depending on the type of plant, proportionate to the protected property, up to a maximum of 7km.

Notwithstanding the foregoing, in the authorisation procedures, the Ministry of Culture shall remain the only competent authority to decide on projects located in areas subject to protection when not subject to environmental assessments.

Rules resulting from the identification of eligible areas

If a region has assigned to its local authorities the issuance of the relevant authorising titles, it will also be responsible for ensuring that the local authorities comply with the provisions of the Decree and f using substitutive powers in the event of ascertained inertia.

The special statute regions and the autonomous provinces of Trento and Bolzano will provide for the purposes of the Decree in accordance with their respective special statutes and their implementing rules.