Article 16 - Freedom to conduct a business
Article 17 - Right to property
Key facts of the case:
Requests for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio. References for a preliminary ruling – Environment – Articles 16 and 17 of the Charter of Fundamental Rights of the European Union – Principles of legal certainty and of the protection of legitimate expectations – Energy Charter Treaty – Article 10 – Applicability – Directive 2009/28/EC – Article 3(3)(a) – Promotion of the use of energy from renewable sources – Production of electricity from solar photovoltaic installations – Alteration of a support scheme.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
Subject to verifications to be carried out by the referring court taking into account all the relevant factors, Article 3(3)(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, read in the light of the principles of legal certainty and of the protection of legitimate expectations, must be interpreted as not precluding national legislation which provides for the reduction or delay of the payment of incentives for energy produced by solar photovoltaic installations which were previously granted by administrative decisions and confirmed by special agreements concluded between the operators of those installations and a public company, where that legislation concerns incentives for which provision has previously been made but which are not yet due.
1) These requests for a preliminary ruling concern the interpretation of Article 216(2) TFEU, read in conjunction with the Energy Charter Treaty, approved on behalf of the European Coal and Steel Community, the European Community and the European Atomic Energy Community by Council and Commission Decision 98/181/EC, ECSC, Euratom of 23 September 1997, on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects (OJ 1998 L 69, p. 1; ‘the Energy Charter’), Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), read in the light of the principles of legal certainty, the protection of legitimate expectations, sincere cooperation, and effectiveness.
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18) The referring court is uncertain, in particular, whether the national provisions concerned are compatible with the general principles of legal certainty and of the protection of legitimate expectations, inasmuch as the legislative intervention at issue in the main proceedings unilaterally altered the legal conditions on the basis of which the applicants in the main proceedings had initiated their economic activity, and there were no exceptional circumstances justifying such an alteration. For the same reasons, the referring court is also uncertain as regards the compatibility of those provisions with Articles 16 and 17 of the Charter, concerning the freedom to conduct a business and the right to property, respectively, and with Article 10 of the Energy Charter.
20) In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following question, which is worded identically in each of the joined cases, to the Court of Justice for a preliminary ruling:
‘Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of [Decree-Law No 91/2014], which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with [GSE], a public company responsible for that process?
In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the [Charter], with Directive [2009/28] and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the [Energy Charter]?’
22) By its question, the referring court asks, in essence, whether Article 3(3)(a) of Directive 2009/28 and Articles 16 and 17 of the Charter, read in the light of the principles of legal certainty and of the protection of legitimate expectations, as well as Article 10 of the Energy Charter, must be interpreted as precluding national legislation which provides for the reduction or delay of the payment of incentives for energy produced by solar photovoltaic installations which were previously granted by administrative decisions and confirmed by special agreements concluded between the operators of those installations and a public company.
31) As regards, in the second place, Articles 16 and 17 of the Charter, it should be noted that, as is apparent from their respective titles and wording, Legislative Decree No 387/2003 transposes Directive 2001/77 and Legislative Decree No 28/2011 transposes into Italian law Directive 2009/28, which repealed that first directive. It follows that the provisions of those legislative decrees are implementing EU law within the meaning of Article 51(1) of the Charter, so that that charter is applicable to the disputes in the main proceedings. Consequently, the level of protection of fundamental rights provided for in the Charter must be achieved in such a transposition, irrespective of the Member States’ discretion in transposing the directive (see, to that effect, judgment of 29 July 2019, Pelham and Others, C‑476/17, EU:C:2019:624, paragraph 79).
32) As regards, first, Article 17 of the Charter, that article provides, in paragraph 1 thereof, that everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions and no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. In addition, the use of property may be regulated by law in so far as is necessary for the general interest.
34) Thus, it must be assessed, in this instance, whether the guarantees afforded by Article 17(1) of the Charter cover incentives for the production of photovoltaic energy, such as those at issue in the main proceedings, which have not yet been paid but which were granted in the context of an existing support scheme.
35) In that regard, concerning whether it may be considered that those incentives have an asset value, it is apparent from the case-law of the European Court of Human Rights relating to Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which must be taken into consideration pursuant to Article 52(3) of the Charter, that the concept of ‘possessions’ referred to in the first part of Article 1 of that Protocol has an autonomous meaning which is not limited to the ownership of material goods and that certain other rights and interests constituting assets can also be regarded as ‘property rights’ (ECtHR, 22 June 2004, Broniowski v. Poland, CE:ECHR:2004:0622JUD003144396, § 129).
38) However, in the light of the case-law cited in paragraph 33 of the present judgment, it is also necessary, for the right to receive incentives such as those at issue in the main proceedings to be eligible for the protection offered by Article 17 of the Charter, to examine whether that right constitutes an established legal position within the meaning of that case-law (see, by analogy, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 36).
39) The Court of Justice recalled, in paragraph 61 of the judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission (C‑398/13 P, EU:C:2015:535), that it is apparent from the case-law of the European Court of Human Rights relating to Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms that future income cannot be considered to constitute ‘possessions’ that may enjoy the protection of Article 17 of the Charter unless it has already been earned, it is definitely payable or there are specific circumstances that can cause the person concerned to entertain a legitimate expectation of obtaining an asset.
54) Consequently, it must be noted that, as the Advocate General also stated in point 48 of his Opinion, the right claimed by the photovoltaic installation operators concerned to enjoy the incentives at issue in the main proceedings with no changes for the entire duration of the agreements that they concluded with GSE does not constitute an established legal position and does not fall within the scope of the protection provided for in Article 17 of the Charter and, as a result, the alteration of the amounts of those incentives or the arrangements for their payment made by a national provision such as Article 26 of Decree-Law No 91/2014 cannot be equated to an infringement of the right to property as recognised in Article 17 of the Charter.
55) Second, as regards Article 16 of the Charter, it should be borne in mind that that article enshrines the freedom to conduct a business and provides that that freedom is recognised in accordance with EU law and national laws and practices.
56) In that regard, it is apparent from the Court’s case-law that the protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42 and the case-law cited).
57) Freedom of contract, for the purposes of Article 16 of the Charter, concerns, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service (judgment of 20 December 2017, Polkomtel, C‑277/16, EU:C:2017:989, paragraph 50).
61) Therefore, the national legislation at issue in the main proceedings cannot, subject to verifications to be carried out by the referring court, be regarded as interfering with the freedom of contract of the parties to the agreements at issue in the main proceedings for the purposes of Article 16 of the Charter.
66) Consequently, a national provision such as Article 26 of Decree-Law No 91/2014 cannot be considered to be an infringement of the freedom to conduct a business enshrined in Article 16 of the Charter.
71) In the light of all the foregoing, the answer to the question referred is that, subject to verifications to be carried out by the referring court taking into account all the relevant factors, Article 3(3)(a) of Directive 2009/28 and Articles 16 and 17 of the Charter, read in the light of the principles of legal certainty and of the protection of legitimate expectations, must be interpreted as not precluding national legislation which provides for the reduction or delay of the payment of incentives for energy produced by solar photovoltaic installations which were previously granted by administrative decisions and confirmed by special agreements concluded between the operators of those installations and a public company, where that legislation concerns incentives for which provision has previously been made but which are not yet due.
