Fer extra-profits, Arera resolution back in force

The Council of State’s ruling on Arera’s appeal says operators will have to pay the sums due under Article 15-bis of DL 4/2022, unless they are reimbursed if the appeal upholds the decision of the Tar.

Another turning point, or rather, setback, then in the matter of the cap on the so-called extra-profits of renewables introduced by dl Sostegni ter.

The Council of State, in fact, has suspended the decision of the Lombardy Regional Administrative Court, bringing back into force resolution 266/2022 of the Energy Authority that requires operators to pay, an act that the Regional Administrative Court had instead annulled.

Palazzo Spada makes this known with the ruling, published today, after the hearing held on January 17, following Arera’s appeal.

However, this is not the end of the matter, but only a turnaround that could be temporary, with operators who will now be required to pay, but could be reimbursed if the decision of the Lombardy Regional Administrative Court, whose grounds have not yet been published, is upheld on appeal.

The reference is to the two-way compensation mechanism on the sale priceofelectricity from some Fer plants for the period February 1-December 31, 2022,introduced as mentioned by the dl Sostegni ter (DL 4/2022) and then extended to June 30, 2023 by the Aiuti bis decree 115/2022, implemented by Arera resolution 266/2022, annulled in early December by the Lombardy TAR ruling.

The suspension of the Tar ruling by the CdS – emerges from the ruling of Palazzo Spada – is motivated only by precautionary reasons and not by reasons of merit: the judges considered prevailing, at the state, the public interest in the support of consumers, over that of operators.

The Arera resolution therefore becomes enforceable again, subject to the recovery of any sums paid if the first instance decision of the Lombardy Regional Administrative Court is upheld on appeal and the Gse is expected to return to demand the payment of the amountsdueunder Article 15-bis, the operators will then be able to consider whether to apply for other suspensions.

It will therefore be necessary to wait for the publication of the grounds by the Milan Tar, after which Arera, within 30 days from the notification of the ruling or three months from its publication, will be able to request an appeal, which will concern, for the time being, only the pilot cases decided by the Tar.