With Order No. 7104 of November 14, 2024, the Council of State has partially suspended the Decree of the Ministry of Environment and Energy Security dated June 21, 2024.

Order No. 7104 of November 14, 2024, issued by the Council of State (the “Order”), refers to an appeal filed by a renewable energy operator, contesting certain provisions within the Ministerial Decree of June 21, 2024, known as the “Suitable Areas Decree” (DM Aree Idonee)[1].

Specifically, the Council of State ordered the suspension of the effectiveness of Art. 7, Paragraph 2, Letter c), of the Suitable Areas Decree, which grants Regions the option (and therefore not the obligation) to maintain suitable areas as outlined in Art. 20, Paragraph 8 of Legislative Decree 199/2021[2].

The reasons that led the Council of State to accept the request for a precautionary suspension are as follows:

• The provision in question does not appear fully compliant with Art. 20, Paragraph 8, of Legislative Decree 199/2021, which already provides a comprehensive list of areas considered suitable for installing renewable energy plants. According to the Council of State, there is no room in this primary legislation for regional regulation introducing more restrictive criteria.
• The suspension of Art. 7, Paragraph 2, Letter c), does not conflict with the objectives of the National Recovery and Resilience Plan (PNRR), for the following reasons:
  • The Suitable Areas Decree remains in force in its entirety, except for the suspended provision.
  • Goal M2C2-6 calls for “the creation of a simplified and accessible regulatory framework for renewable energy plants (RES) and for the repowering and modernization of existing plants, in continuity with the provisions of the Simplifications Decree; and the issuance of regulations, in collaboration with the Regions and other relevant State administrations, aimed at defining criteria for identifying suitable and unsuitable areas for renewable energy installations.” The suspended provision, by introducing a discretionary option for the Regions that could create regulatory uncertainty, would be incompatible with these objectives.

In conclusion, following this Order, the Regions will not be able to define suitable areas more restrictively than provisionally established in the aforementioned Art. 20, Paragraph 8, of Legislative Decree 199/2021, at least until the case is decided on its merits by the Lazio Regional Administrative Court (TAR) (thus, upon issuance of a judgment).

The substantive hearing is scheduled for February 5, 2025.

For further details, please contact our Energy Team.

[1] According to Art. 1 of the Suitable Areas Decree, the Regions, ensuring appropriate involvement of local authorities, identify within their territory the surfaces and suitable areas, namely, areas where an accelerated and facilitated process is provided for the construction and operation of RES plants and related infrastructure.

[2] Art. 7, Paragraph 2, Letter c) of the Suitable Areas Decree states: “For the identification of suitable areas, the regions take into account: (…) the possibility of preserving the suitable areas referred to in Art. 20, Paragraph 8 of Legislative Decree No. 199 of November 8, 2021 (…)”.