|TABLE OF SELECTED ABBREVIATIONS/DEFINED TERMS|
|AEEG||Autorità per l'energia elettrica e il gas|
|Achmea||ECJ Case C-284/16 (Slowakische Republik (Slovak Republic) v. Achmea BV)|
|Alpha Value Report No. 1||Expert Report of Alpha Value/Juan Camilo Rodríguez dated 13 December 2016, submitted by the Claimant|
|Alpha Value Report No. 2||Integration Expert Report of Alpha Value/Juan Camilo Rodríguez undated, submitted by the Claimant|
|Alpha Value Report No. 3||(REVISED) Update to Expert Reports of Alphavalue dated 10 April 2018, submitted by the Claimant|
|Althesys' Report||Expert Report by Althesys dated 20 September 2017, submitted by the Claimant|
|Amicus Brief||Amicus curiae brief submitted by the European Commission dated 31 May 2017|
|Bersani Decree||Legislative Decree No. 79/1999 of 16 March 1999|
|CDP||Cassa Depositi e Presitti|
|Claimant's Post Hearing Brief||Claimant's Written Closing Submissions dated 1 June 2018|
|Claimant's Reply||Claimant's Counter-Memorial on Jurisdiction and Reply on the Merits dated 20 September 2017|
|Commission's Communication||Communication from the Commission to the European Parliament and the Council: Protection of Intra-EU Investment (COM(2018) 547/2)|
|DARIO||Draft Articles on the Responsibility of International Organizations|
|DCF||Discounted cash flow method|
|Destinazione Italia Decree||Legislative Decree No. 145/2013 of 23 December 2013|
|EC's Application||EC's Application for Leave to Intervene as a Non-Disputing Party dated 24 October 2016|
|ECHR||European Convention on Human Rights of 4 November 1950|
|ECJ||European Court of Justice|
|ECOWAS||Economic Community of West African States|
|ECT||Energy Charter Treaty signed in December 1994 and in force since 16 April 1998|
|Energy Account I||Energy Account regime introduced by Ministerial Decree of 28 July 2005 & Ministerial Decree of 6 February 2006|
|Energy Account II||Energy Account regime introduced by Ministerial Decree of 19 February 2007|
|Energy Account III||Energy Account regime introduced by Ministerial Decree of 6 August 2010|
|Energy Account IV||Energy Account regime introduced by Ministerial Decree 5 May 2011|
|Energy Account V||Energy Account regime introduced by Ministerial Decree of 5 July 2012|
|Eng. Boucher's Report||Expert Report of Olivier Boucher from OB Consulting dated 6 September 2017, submitted by the Claimant|
|Exhibit C-#||Claimant's Factual Exhibit|
|Exhibit CL-#||Claimant's Legal Authority|
|Exhibit REX-#||Respondent's Factual Exhibit|
|Exhibit RL-#||Respondent's Legal Authority|
|FET||Fair and equitable treatment standard|
|First GRIF Report||First GRIF's Expert Economic Report dated 12 April 2017, submitted by the Respondent|
|First Opinion of Professors Onida and Randazzo||First Expert Opinion of Profs. Onida and Randazzo dated 24 November 2016, submitted by the Claimant|
|First Witness Statement of Eng. Bacchiocchi||First Witness Statement of Mr. Daniele Bacchiocchi dated 24 April 2017, submitted by the Respondent|
|First Witness Statement of Eng. Miraglia||First Witness Statement of Mr. Luca Miraglia dated 21 April 2017, submitted by the Respondent|
|First Witness Statement of Mr. Levy||First Witness Statement of Mr. Jacques Edouard Levy dated 15 November 2016, submitted by the Claimant|
|FPS||Most constant protection and security obligation|
|GRIF Financial Report||GRIF's Financial Expert Report dated 12 April 2017, submitted by the Respondent|
|GSE||Gestore dei Servizi Energetici - GSE S.p.a.|
|GSE Conventions||Conventions concluded between GSE and Belenergia's PV invested companies on feed-in tariffs and on minimum prices|
|GSE Conventions on feed-in tariffs||Conventions concluded between GSE and Belenergia's PV invested companies on feed-in tariffs|
|GSE Conventions on minimum prices||Conventions concluded between GSE and Belenergia's PV invested companies on minimum prices|
|Hearing||Hearing on Jurisdiction and the Merits, held on 26 to 29 March 2018 in the World Bank Group Paris|
|ICJ||International Court of Justice|
|ICSID Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings of 2006|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 18 March 1965|
|ICSID or the Centre||International Centre for Settlement of Investment Disputes|
|ILC||International Law Commission|
|ILC Articles on State Responsibility||ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001|
|ILC Report on Fragmentation||ILC Study Group Report on Fragmentation of International Law of 13 April 2006|
|Istat||Istituto nazionale di statistica|
|ITLOS||International Tribunal for the Law of the Sea|
|MISE||Ministry of Economic Development (Ministero dello sviluppo economico)|
|MPS||Monte dei Paschi di Sena|
|MSD||Dispatching Service Market (Mercato per il Servizio di Dispacciamento)|
|OECD||Organisation for Economic Co-operation and Development|
|OECD Glossary||OECD Glossary of Tax Terms|
|PO1||Procedural Order No. 1 dated 12 September 2016, concerning the Procedural Calendar|
|PO2||Procedural Order No. 2 dated 6 November 2016, concerning the amended Procedural Calendar|
|PO3||Procedural Order No. 3 dated 5 March 2018, on the organization of the Hearing|
|Procedural Calendar||Procedural Calendar attached to the PO1 as Annex A|
|Professor Bollino's Report||Expert Report of Professor Carlo Andrea Bollino dated 11 September 2017, submitted by the Claimant|
|Professor Rojas' First Opinion||First Expert Legal Opinion of Prof. Giacomo Rojas Elgueta dated 23 April 2017, submitted by the Respondent|
|Professor Rojas' Second Opinion||Second Expert Legal Opinion of Prof. Giacomo Rojas Elgueta dated 15 December 2017, submitted by the Respondent|
|Protos' Report||Expert Report by Protos S.P.A. dated 18 September 2017, submitted by the Claimant|
|PVGIS||Photovoltaic Geographical Information System|
|PV Project||Belenergia's investment in ten Italian SPVs having developed and operating 20 PV plants in Southern Italy|
|Request for Arbitration||Request for Arbitration from Belenergia S.A. against the Italian Republic, received by the Centre on 7 August 2015, dated 30 July 2015|
|Respondent's Post Hearing Brief||Respondent's Post Hearing Closing Statement dated 1 June 2018|
|Respondent's Rejoinder||Respondent's Rejoinder on the Merits and Reply on Jurisdiction dated 15 December 2017|
|Retiro dedicato||The GSE's purchase regime established by Legislative Decree No. 387/2003|
|RIA||Regulatory Impact Analysis|
|Romani Decree||Legislative Decree No. 28/2011 of 3 March 2011|
|Salva Alcoa Law||Law No. 129/2010 of 13 August 2010|
|Second GRIF Report||Second GRIF's Expert Report dated 15 December 2017, submitted by the Respondent|
|Second Opinion of Professors Onida and Randazzo||Second Expert Opinion of Profs. Onida and Randazzo dated 31 August 2017, submitted by the Claimant|
|Second Witness Statement of Eng. Bacchiocchi||Second Witness Statement of Mr. Daniele Bacchiocchi dated 15 December 2017, submitted by the Respondent|
|Second Witness Statement of Eng. Miraglia||Second Witness Statement of Mr. Luca Miraglia dated 14 December 2017, submitted by the Respondent|
|Second Witness Statement of Mr. Levy||Second Witness Statement of Mr. Jacques Edouard Levy dated 8 September 2017, submitted by the Claimant|
|SMEs||Small and medium-sized enterprises|
|Spalma Incentivi Decree||Legislative Decree No. 91 of 24 June 2014|
|SPVs||Special Purpose Vehicles|
|Statement of Claim||Claimant's Memorial dated 14 December 2016|
|Statement of Defense||Respondent's Counter-Memorial on the Merits and Memorial on Jurisdiction dated 24 April 2017|
|Terna||Terna S.p.A. – Rete Elettrica Nazionale, the manager of electricity transmission and dispatching activities|
|TEU||Treaty on the EU|
|TFEU||Treaty on the Functioning of the EU|
|Tr. [Day] [Speaker(s)] [page:line]||Transcript of the Hearing|
|TRA||Technical Regulatory Analysis|
|Tribunal||Arbitral tribunal constituted on 18 May 2016, composed by Mr. Yves Derains, Prof. Bernard Hanotiau, and Prof. José Carlos Fernández Rozas|
|UNCLOS||United Nations Convention on the Law of the Sea of 10 December 1982|
|VCLT||Vienna Convention on the Law of Treaties of 23 May 1969|
|WACC||Weighted average cost of capital|
Mr. Yves Derains President
Prof. Bernard Hanotiau Arbitrator
Prof. José Carlos Fernández Rozas Arbitrator
ICSID Secretariat :
Ms. Catherine Kettlewell Secretary of the Tribunal
Assistant to the President of the Tribunal:
Dr. Ana Gerdau de Borja Mercereau
For the Claimant :
Mr. Elvezio Santarelli Watson Farley & Williams - Rome
Mr. Eugenio Tranchino Watson Farley & Williams - Rome
Mr. Andrew Savage Watson Farley & Williams - London
Mr. Robert Fidoe Watson Farley & Williams - London
Professor Eirik Bjorge Bristol University
Mr. Cameron Miles 3VB Barristers - London
Mr. Diego Rovelli Watson Farley & Williams - Rome
Ms. Raffaela Colamarino Watson Farley & Williams - Rome
Mr. Jack Moulder Watson Farley & Williams - London
Mr. Jacques Edouard Levy CEO Belenergia S.A.
Mr. Fabio Caggiula Belenergia S.A.
For the Respondent :
Avv Giacomo Aiello Avvocatura dello Stato
Avv. Sergio Fiorentino Avvocatura dello Stato
Avv. Pietro Garofalo Avvocatura dello Stato
Prof. Maria Chiara Malaguti MAECI – External Expert
Prof. Saverio Di Benedetto MAECI – External Expert
Eng. Daniele Bacchiocchi GSE
Dott. Valerio Ventura GSE
Avv. Marta Capriulo GSE
Avv Cosimo Danilo Raimondi GSE
Avv. Paolo Berisio GSE
Mr. Harshad Pathak Hanotiau & van den Berg
Court Reporters :
Ms. Diana Burden English Court Reporter
Ms. Laurie Carlisle English Court Reporter
Mr. Jesus Getan Bornn English-Spanish Interpreter
Ms. Roxana Dazin English-Spanish Interpreter
Mr. Marc Viscovi English-Spanish Interpreter
Ms. Francesca Geddes English-Italian Interpreter
Ms. Monica Robiglio English-Italian Interpreter
Ms. Delfina Genchi English-Italian Interpreter
During the Hearing, the following persons were examined:
On behalf of the Claimant :
Mr. Jacques Edouard Levy CEO Belenergia S.A.
Prof. Valerio Onida Onida Randazzo e Associati Law Firm
Prof. Barbara Randazzo Onida Randazzo e Associati Law Firm
Prof. Carlo Andrea Bollino (Expert-witness) University of Perugia and AIEE (Italian Association for Energy Economics)
Prof. Alessandro Marangoni Althesys – Strategic Consultants
Mr. Juan Camilo Rodriguez Alpha Value
Dr. Olivier Boucher OB Consulting
Eng. Giorgio Saraceno Protos S.p.A
Eng. Emiliano Guerrieri Protos S.p.A.
On behalf of the Respondent :
Eng. Daniele Bacchiocchi GSE
Eng. Luca Miraglia GSE
Prof. Umberto Monarca GRIF
Prof. Cesare Pozzi GRIF
Prof. Davide Quaglione GRIF
Prof. Giacomo Rojas Elgueta Università Roma Tre
Prof. Ernesto Cassetta (not testifying) GRIF
First, Italy submitted its Request for Suspension by letter dated 18 June 2019, although the Secretariat had informed the Parties on23 May 2019 that the Tribunal expected to be able to render the Award by the end of June 2019.15 Hence, Italy's Request for Suspension comes at a very late stage of the proceedings.
Second, the Joined Cases [ECJ Joined Cases C-798/18 and C-799/18] concern referrals to the ECJ by the Administrative Court of Lazio, while this is an ECT arbitration. Italy did not satisfy its burden of proving that the Joined Cases involve (i) the same parties (i.e. Belenergia is not a party to the Lazio dispute), (ii) the same object of the dispute, let alone (iii) the same cause of action.
Third, the Joined Cases are still pending before the ECJ. Thus, the purported risks of inconsistent decisions and legal uncertainty16 are hypothetical.
Specific provisions for solar energy
1. Within six months from the date when this Decree enters into force, the Minister for Production Activities, in agreement with the Minister for the Environment and after consultation with the Joint Conference, shall adopt one or more decrees defining criteria for the promotion of electrical energy production from solar energy.
2. Without entailing any burdens on the State budget and in accordance with the Community laws in force, the criteria referred to in paragraph 1, shall:
a) establish the requisites of parties who might benefit from promotion measures;
b) establish the minimum technical requirements of plants and their components;
c) establish conditions concerning the cumulation of promotion measures with other incentives;
d) establish procedures to determine the size of promotion measures. For electricity produced by photovoltaic conversion of solar energy, they shall provide for a specific, incentive tariff, of decreasing amount and of duration such as to guarantee fair remuneration of the investment and operating costs;
e) establish a target for the rated power to be installed;
f) also fix the maximum limit of the cumulative electric power of all the plants that may benefit from the promotion measures; […]
Criteria to determine the amount aimed at supporting photovoltaic plants with a rated power higher than 20 kW
[…] 3. In addition to the recognition of conditions referred to in Subparagraph 1, electricity produced by photovoltaic plants of a rated power exceeding 50 kW and less than 1000 kW, entered in whole or in part in the [electricity network], has the right, in accordance with the provisions of this decree, [to] an incentive tariff whose maximum measures are as follows:
a) Plants for which the application mentioned in Article 7, Paragraph 1, was [submitted] in 2005 and 2006: 0,490 euro/kWh for a period of twenty years;
b) Plants for which the application mentioned in Article 7, Paragraph 1, was submitted in the years following 2006: the value of the incentive tariff referred in point a) shall be reduced by 2%, with rounding to the third decimal place, for each of the years following 2006, without prejudice to the period of twenty years.
The amount of the incentive tariff actually recognized shall be determined by the rules set out in Article 7, in the maximum limit of the cumulated nominal power referred to in Article 12, Paragraph 3.
Incentive tariffs and period of entitlement
1. The electricity produced by photovoltaic systems, realized in accordance with this decree and entered into service during the period between the date of issue of the measure referred to in Article 10, Paragraph 1, and 31 December 2008, has the right to an incentivising tariff which, in relation to the nominal power and typology of the plant, referred to in art. 2, paragraph 1, letters b1), b2) and b3), takes the value set out in the next table (Euro/KWh values produced by the photovoltaic plant). The tariff identified on the basis of the same table is recognised for a period of twenty years from the date of entry into operation of the plant at a constant price throughout the entire period of twenty years.
|Power Nominal of Plant P (Kw)||Plants [referred to in] Art. 2, Coma 1, Letter (b1)||Plants [referred to in] Art. 2, Coma 1, Letter (b2)||Plants referred to [in] Art. 2, Coma 1, Letter (b3)|
|A||1 minor or equal to P minor or equal to 3||0.40||0.44||0.49|
|B||3 < P minor or equal to 20||0.38||0.42||0.46|
1. The incentive tariffs under this title shall apply to solar photovoltaic plants that come into exercise after new construction works, total refitting or repowering, on a date after 31 December 2010.
2. The electric energy produced by photovoltaic plants of this title that come into exercise within 31 December 2011, have the right to incentive tariff as determined in table A. The electric energy produced by photovoltaic plants of this title that enter into exercise in 2012 and 2013 have the right to the incentive tariff as defined in Table A, column C) reduced by 6% each year, with commercial rounding to the third decimal digit.
|Plants entered into Exercise after the 31 December 2010 and within the 30 April 2011||Plants entered into Exercise after the 30 April 2011 and within the 31 August 2011||Plants entered into Exercise after the 31 August 2011 and within the 31 December 2011|
|Photovolt aic plants realized on buildings||Other photovol taic plants||Photovolt aic plants realized on buildings||Other photovol taic plants||Photovolt aic plants realized on buildings||Other photovol taic plants|
1. This Title redefines the regulation of the support regimes applicable to the energy produced by renewable sources and energetic efficiency through the reorganization and strengthening of current incentive systems. The new regulation establishes a general framework in order to promote the energy production from renewable sources and energetic efficiency adequately to achieve the purposes under Article 3, through the provision of criteria and instruments that promote the efficacy, efficiency, simplification, stability in the long term of the incentive systems, pursuing at the same time the harmonization with other instruments that have similar purpose and the reduction of specific support burdens for consumers.
2. Further general principles of the redefinition and the development of incentive systems are the gradation of the action for the protection of investments made and the proportionality to the objectives, moreover the flexibility of the structure of support regimes, in order to take into account the market mechanisms and the evolution of technologies of renewable sources and energetic efficiency.20
1. The production of electric energy from plants powered by renewable sources entered in exercise after 31 December 2012 is incentivized through instruments and on the basis of general parameters provided by Paragraph 2 and specific criteria under Paragraphs 3 and 4. The protection of not incentivized productions is shall be made with the instruments under Paragraph 8.
2. The production of electric energy from plants under Paragraph 1 is incentivized on the basis of the following general criteria:
a) the incentive has the aim to grant an equal remuneration of investments and functioning costs;
b) the duration of the right to the incentive is equal to the average standard life for the specific typologies of plants and starts from the date in which the plant came into exercise;
c) the incentive remain stable for the whole period of the right and may take into account the economic value of the energy produced;
d) the incentives are allocated through private contracts between the GSE and the responsible person of the plant, based on a standard contract defined by the Authority for the electric energy and gas, within three months from the date of come into force of the first of the decrees under paragraph 5;
e) without prejudice to Letter i) of this Paragraph and Letter c) of Paragraph 5, the incentive is assigned exclusively to the production of new plants, included plants realized after a total rebuilding, repowered plants, limited to the additional reproducibility, and from hybrid central, limited to the portion of the energy produced by renewable sources;
f) the incentive assigned to the electric energy produced by solar photovoltaic plants is greater for plants with high concentration (400 suns) and take account of the greater relation between the energy produced and the used surface; […]
5. With the decrees of Minister of Economic Development in agreement with the Minister for the Environment and the Protection of Land and Sea, and, for the competence profiles, with the Minister of Agricultural and Forestry Politics, heard the Authority for the electric energy and gas and the Unified Conference, pursuant to Article 8 of Legislative Decree 28 August 1997, No. 281, are defined the procedures to implement incentive systems under this Article, in accordance with the criteria set out in the preceding Paragraphs 2, 3 and 4. The decrees regulate, in particular:
a) the values of the incentives provided by paragraph 3 for plants that come into exercise starting from 1 January 2013 and the incentives auction base in application of paragraph 4, without prejudice to the different effective dates fixed pursuant to the implementing decrees provided by the Article 7 of Legislative Decree 29 December 2003, No. 387 as well as the power values, articulated for source and technology, of plants subject to tender procedures;
b) the procedures with which the GSE selects the subjects that are entitled to receive the incentive through tender procedures;
c) the procedure for the transition from the old to the new incentive mechanism. In particular, are determined the procedures with which the right to benefit of green certificates for the years subsequent to 2015, also from plants not powered by renewable sources, is switched over into the right to access, for the remaining period of right to green certificates, to an incentive included in the kind provided by paragraph 3, in order to grant the return on investments made;
d) the calculation procedure and application of the incentives for the productions attributed to renewable sources in hybrid centrals;
e) the procedure with which was modified the mechanism of net metering for plants, also in exercise, that access to this service, in order to simplify the use; […]
Table 1 [Tariffs for Year 2011]
|Plants on buildings||Other photovol taic plants||Plants on buildings||Other photovol taic plants||Plants on buildings||Other photovol taic plants|
Table 2 1 [Tariffs for Year 2011]
|Plants on buildings||Other photovol taic plants||Plants on buildings||Other photovol taic plants||Plants on buildings||Other photovol taic plants||Plants on buildin gs||Other photov oltaic plants|
|[€/kWh]||[€/kWh]||[€/kWh]||[€/kWh]||[€/kWh]||[€/kWh]||[€/kW h]||[€/kW h] […]|
|1st Sem. 2012||2nd Sem. 2012|
|Plants on buildings||Other photovol taic plants||Plants on buildings||Other photovol taic plants|
Table 4 [Tariffs for 1st semester of year 2013]
|Plants on buildings||Other photovoltaic plants|
|All inclusive tariffs||Self consumed tariffs||All inclusive tariffs||Self consume d tariffs […]|
Table 5 [Reductions on tariffs for subsequent semesters]
|1st Semester||2nd Semester|
This Decree shall cease to apply, in any case, after thirty calendar days from the date of the achievement of cumulative indicative cost equal to 6.7 billion of euro[s] each year. The date of the achievement of the aforementioned value of 6.7 billion of euro[s] each year shall be communicate[d], based on the elements provided by the GSE, [by] the Authority for the Electric Energy and Gas, with the procedures mentioned in Paragraph 2.
Starting from the date indicated in Article 1, Paragraph 5, the present Decree and the dispositions of the previous incentives measures of the photovoltaic source that contributed to increase the cumulative costs reached at the mentioned date, shall cease to apply. The rights acquired up to the mentioned date are saved.26
The table below illustrates the duration of the Energy Accounts I to V:28
|Ministerial Decree||Energy Account No.||Start Date||End Date|
|Ministerial Decree of 28 July 2005 & Ministerial Decree of 6 February 2006||Energy Account I||30 September 2005||12 April 2007|
|Ministerial Decree of 19 February 2007||Energy Account II||13 April 2007||30 June 2011|
|Ministerial Decree of 6 August 2010||Energy Account III||1 January 2011||31 May 2011|
|Ministerial Decree 5 May 2011||Energy Account IV||1 June 2011||26 August 2012|
|Ministerial Decree of 5 July 2012||Energy Account V||27 August 2012||6 July 2013|
3. As from 1 January 2015, the tariff for the energy produced by systems, which rated power is above 200 kW, is reformulated, to the operator's choice, based on one of the following options to be communicated to GSE by 30 November 2014:
a) the tariff is supplied for a period of 24 years, from the entry into operation of the systems, and is therefore recalculated according to the percentage of reduction indicated in the table in Annex 2 to this decree;
b) subject to the twenty years period of supply, the tariff is reformulated providing a first period of use of an incentive reduced with respect to the current and a second period of use of an incentive equally increased. The percentages of remodulating are established by decree of the Minister of Economic Development, in consultation with the Authority for electricity, gas and water system, to be issued by 1 October 2014 so as, in case of acceptance of all those who are entitled to the option, to allow a saving of at least 600 million of euros per year for the period 2015-2019, compared with the expected supply with the applicable tariffs;
c) subject to the twenty years period of supply, the tariff is reduced by a percentage of the incentive recognized at the date of entry into force of this decree, for the remainder of the incentive period, in according to the following amounts:
1) 6 percent for systems with rated power above 200 kW and up to the rated power of 500 kW;
2) 7 percent for systems with rated power above 500 kW and up to the rated power of 900 kW;
3) 8 percent for systems with rated power above 900 kW.
In the event of no communication by the operator, GSE applies the option under c).33
Guaranteed minimum prices for plants powered by renewable sources of electrical power of up to 1 MW
5.1. For plants powered by renewable sources of electrical power of up to 1 MW, with the exception of hybrid plants, the first two (2) million kWh annually withdrawn from each plant by the network operator in accordance with Article 13, Paragraphs 3 and 4, of Legislative Decree no. 387/03, will be offered, in progressive brackets, the following minimum prices:
a) up to 500,000 kWh per year, EUR 95/MWh; over 500,000 up to 1,000,000 kWh per year, EUR 80/MWh; over 1,000,000 up to 2,000,000 kWh per year, EUR 70/MWh; […]43
7.1 The Authority shall establish the minimum guaranteed prices for the withdrawal of electricity injected annually by hydroelectric plants of average annual nominal power up to I MW and by plants powered by other renewable sources of rated active power up to I MW, with the exception of hybrid power plants. The guaranteed minimum prices are differentiated by source, they are defined by progressive brackets and refer to the calendar year.
7.2. The guaranteed minimum prices referred to in Paragraph 7.1, upon the request of the producer at the time of signing the agreement and as an alternative to the prices referred to in Article 6, shall be applied by GSE only for the first two (2) million kWh of electricity injected. The producer may alter this request no later than 31 December of each year, valid for the entire calendar year thereafter, by notifying GSE according to the instructions given by the latter. For the electricity injected every year and exceeding the first two (2) million kWh, GSE shall apply the prices referred to in Article 6.
[…] 7.5 Pending the measures referred to in Paragraph 7.1, the guaranteed minimum prices are set by applying, on an annual basis, to the values in force in the previous calendar year, the annual rate of change in consumer prices for families of workers and employees detected by lstat, rounded to the first decimal place according to commercial criteria. With reference to the year 2007, the guaranteed minimum prices assume the following values:
a) for the first 500,000 kWh per year, 96.4 EUR/MWh;
b) over 500,000 and up to 1,000,000 kWh per year, 81.2 EUR/MWh;
c) over 1,000,000 and up to 2,000,000 kWh per year, EUR 71.0/MWh.45
ai fini del ritiro dedicato, si faccia riferimento al prezzo di vendita zonale, in quanto più aderente alle condizioni economiche di mercato per la vendita e perché garantisce la continuità con l'attuale deliberazione n. 34/05 […]
ai fini di ridurre i rischi di distorsione del mercato e di contenere gli oneri a carico della collettività derivanti da scostamenti dal regime di mercato, il GSE riconosca i prezzi zonali orari;
|Up to 500,000 kWh per annum||€ 98.0/MWh||€ 101.1/MWh||€ 101.8/MWh||€ 103.4/MWh|
|Over 500,000 up to 1,000,000 kWh per annum||€ 82.6/MWh||€ 85.2/MWh||€ 85.8/MWh||€ 87.2/MWh|
|Over 1,000,000 up to 2,000,000 kWh per annum||€ 72.2/MWh||€ 74.5/MWh||€ 75.0/MWh||€ 76.2/MWh|
8. Fermo restando quanto stabilito dall'articolo 13 del decreto legislativo 29 dicembre 2003, n. 387 in materia di partecipazione al mercato elettrico dell'energia prodotta da fonti rinnovabili, entra il 31 dicembre 2012, sulla base di indirizzi stabiliti dal Ministro dello sviluppo economico, l'Autorità per l'energia elettrica e il gas provvede a definire prezzi minimi garantiti, ovvero integrazioni dei ricavi conseguenti alla partecipazione al mercato elettrico, per la produzione da impianti a fonti rinnovabili che continuano ad essere eserciti in assenza di incentivi e per i quali, in relazione al perseguimento degli obiettivi di cui all'articolo 3, la salvaguardia della produzione non è assicurata dalla partecipazione al mercato elettrico. […]
|Up to 3,750 kWh per annum||€ 102.7/MWh||€ 105.8/MWh|
|Over 3,750 up to 25,000 kWh per annum||€ 92.4/MWh||€ 95.2/MWh|
|Over 25,000 up to 2,000,000 kWh per annum||€ 78.3/MWh||€ 80.6/MWh|
|With Positive Imbalance||Without Imbalance|
|Programme valuation||€ 5,600||€ 5,600||€ 5,600|
|Imbalance valuation if negative aggregate zonal imbalance||€ 1,800|
|Imbalance valuation if positive aggregate zonal imbalance||€ 1000|
|Total||€ 7,400||€ 6,600||€ 5,600|
|With Negative Imbalance||Without Imbalance|
|Programme valuation||€ 5,600||€ 5,600||€ 5,600|
|Imbalance valuation if negative aggregate zonal imbalance||(€ 1,800)|
|Imbalance valuation if positive aggregate zonal imbalance||(€ 1000)|
|Total||€ 3,800||€ 4,600||€ 5,600|
[…] because of the general obligation for each dispatching user to program the amount of electrical emission and consumption with diligence, skill, prudence and foresight with regard to the system; as well as clarified by the administrative courts, it is an obligation which, although explained by the Authority with Resolution 525/2014/R/eel, was already inherent in the previous legislation of dispatch in particular in Paragraphs 14.1 and 14.3 of Resolution 111 (original version); this provision, pending a thorough and complete reform of the dispatching service (which hopefully will solve the problem in a more radical manner), introduces mechanisms to provide: (a) a more effective incentive to plan with diligence, skill, prudence and security and, at the same time, (b) to enable the Authority to detect more easily possible breaches of this obligation (also for the purpose of prescribing and / or disciplinary measures).
|Solar Solution Puglia's Ownership|
|PE Invest SRL||41%|
|InvestedPV Company||Acquisition Date by Belenergia||IncorporationDate||Start ofOperations||NominalPower (kW)||Energy Account|
|FIRST INVESTMENT WAVE|
|Casamassima Solare SRL||29 Sept. 2011||3 June 2009||Plant 1 Leporano1 : 26 Aug. 2011||939.06||Energy Account IV (Min. Decree 5 May 2011)|
|Plant 2 Faggiano1 : 31 Aug. 2011||955.71|
|Compgania Solare 1 SRL||29 Sept. 2011||12 Mar. 2010||Plant 1 Adelfia1 : 30 June 2011||937.02||Energy Account IV (Min. Decree 5 May 2011)|
|Plant 2 Casamassima1 30 June 2011||939.06|
|Compagnia Solare 2 SRL||29 Sept. 2011||12 Mar. 2010||Plant 1 Ugento1 : 30 June 2011||996.87||Energy Account IV (Min. Decree 5 May 2011)|
|Compagnia Solare 3 SRL||29 Sept. 2011||12 Mar. 2010||Plant 1 Nardo1 : 27 June 2011||957.60||Energy Account IV (Min. Decree 5 May 2011)|
|Plant 2 Massafra1 : 30 Aug. 2011||946.68|
|Puglia Energia SRL||29 Sept. 2011||29 Mar. 2007||Plant 1 Sternatia : 30 June 2011||6549.12||Energy Account IV (Min. Decree 5 May 2011)|
|SECOND INVESTMENT WAVE|
|Società di Produzione Energia Solare SRL||29 April 2013||3 June 2009||Plant 1 Taranto Masseria Giulianello : 29 Feb. 2012||939.8472||Energy Account IV (Min. Decree 5 May 2011)|
|Plant 2 Contrada Titolato : 30 June 2011||916.88|
|Plant 3 La Torrata : 28 July 2011||917.61|
|Solaria Real Estate SRL||9 July 201373||6 Dec. 2005||Plant 1 Racale500kW : 18 Dec. 2008||504||Energy Account I (Min. Decree of 28 July 2005)74|
|Plant 2 Brindisi300kW : 1 Feb. 2009||302.40|
|InvestedPV Company||Acquisition Date by Belenergia||IncorporationDate||Start ofOperations||NominalPower (kW)||Energy Account|
|Plant 3 Brindisi250kW : 1 Feb. 2009||252|
|Acquaviva SRL||9 July 2013||26 June 2008||Plant 1 Acquaviva 1 : 4 Aug. 2009||993.84||Energy Account II (Min. Decree of 19 Feb. 2007)|
|Plant 2 Acquaviva 2 3 Aug. 2009||596.64|
|Brindisi Solar SRL||9 July 2013||8 Sept. 2008||Plant 1 Racale498 : 15 Oct. 2009||498.96||Energy Account II (Min. Decree of 19 Feb. 2007)|
|Plant 2 Brindisi805 : 28 Oct. 2009||804.96|
|THIRD INVESTMENT WAVE|
|Solar Solution Puglia SRL||6 Dec. 2013||30 June 2009||Plant 1 Martano : 30 Mar. 2012||991.76||Energy Account IV (Min. Decree 5 May 2011)|
|Plant 2 Castrignano : 30 Nov. 2011||906.20|
Tariffs Photovoltaic Convention
Convention n. I08F06196607 for the recognition of incentive tariffs for the production of electric energy from photovoltaic plants pursuant to Ministerial Decree 19 February 2007, and resolution of electric energy and gas authority n. 90/07
With this Convention
The Italian Electric Services - GSE S.p.a., […]
ACQUAVIVA S.P.A., with its registered office in Via DURINI, 18, Milan, Tax Code and VAT No. 06257020963, represented by Mr. LUCA FAEDO, born in Vicenza (VI) 06.02.1963 (data format inglese), acting as legal representative and responsible of the photovoltaic plant above mentioned convention, hereinafter called "Producer" hereinafter, jointly, also called "the Parties"
- As requested, according to GSE protocol 09.30.2009, it was sent an application for "incentive rate" provided by Ministerial Decree 19 February 2007, for the photovoltaic plant defined ACQUAVIVA, rated power of 992,84 kW, located in San Domenico n.snc. Comune di Acquaviva delle fonti (BA);
- This application for the incentive rate is identified by GSE with the n. 103172;
- The GSE, with its own letter transmitted to the Producer, has communicated the value of incentive rate, recognized for the photovoltaic plant mentioned above, equal to 0,3530 E/kWh; […]
Scope of this Agreement
The scope of this Convention is the grant by the GSE to the Producer, of the incentive for the electrical energy produced by solar energy through photovoltaic conversion incentivized by Article 7 of D.lgs.387/03, Ministerial Decree 19 February 2007 and Resolution n.90/07.
Effective date and the amount of incentive
The incentive tariff is granted in respect to the photovoltaic plant which is the object of this Convention for a period of 20 years starting from 4 August 2009 at a constant amount, in the current currency, is equal to amount of, 0,3530 Euro/kWh.
Procedure of the release for incentive tariffs
The payment of incentive tariffs will be performed by GSE on the basis of the measures provided for the in the resolution of A.E.E.G. n.88/07, and in accordance with the payment procedures governed by the resolution n.90/07. […]
Assignment of credits
The GSE will proceed to fulfil its own payment obligation of the credits towards the assignee subject to the following conditions:
a) The assignment of credits concerns all the remaining credits held by the transferor to the GSE;
b) The credits will be assigned to a single assignee;
c) The assignment of credits contract:
(i.) Shall be entered into after this Convention;
(ii.) Shall drawn up exclusively in accordance with specific provision of the standard model published on GSE's web site www.gse.it), the contents of which may not be modified in any part;
(iii.) Shall be notarized by public agreement or executed as a private agreement authenticated by notary, pursuant to Article 69 of D.R. n. 2440/1923, and sent to the GSE by registered letter (Raccomandata A/R);
(iv.) has got this Convention as annex, as integral and substantial part of that assignment of credits;
(v) The notification to GSE has to be accompanied by the express and informed consent of the assignor in respect of personal data by the assignor, pursuant to Article 23 of D.lgs. 196/03, in order to allow the GSE to proceed to assess the assignor, according to Article 48 bis of D.P.R. 19 September 1973, n. 602, when the assignment of credit is notified;
d) The verification, provided for in point c) (v) shall have a positive outcome (notably there will not be any failure of the obligation to pay taxes);
e) The assignment of credits has to be expressly accepted by the GSE using registered letter (Raccomandata A/R) sent to assignor and assignee;
The acceptance of the credits assignment does not affect the GSE's right to oppose against the assignee the set-off that GSE would have been able to claim against the assignor.
The possible re-assignment of remaining credit to previous assignor has to be:
(a. 1) in the same form as the assignment of credits was written the first time, this implies:
(i) drafted by notarised public act or private agreement authenticated by notary;
(ii) drawn up exclusively filling the ad hoc field, of standard model published on GSE's web site (www.gse.it) which contents may not be changed in any part;
(b.1) undersigned by both parties; G. Supplementary Documents Page 20556 of (c.1) notified to GSE using registered letter (Raccomandata A/R) and the new bank account requested for the credits payment;
(d.1) expressly accepted by the GSE through registered letter (Raccomandata A/R) to the parties;
The re-assignment of remaining credits, will not change the GSE's right to claim, against the previous assignor, a set-off that GSE would have been able to claim against the assignee.
The GSE will pay the remaining credits to the original creditor from the second month subsequent to that of acceptance of the re-assignment of credits.
The above provisions of this article will be applied also if the credit assignment is made by the assignee to third parties, with the exception of point c (ii) and a.1 (il)
The conditions laid down in paragraph 1, with the exception of point c. (ii), and laid down in paragraph 3, with the exception of point (a.2), of this article will be applied also in case of:
(a.2) collection mandate (revocable/irrevocable) given to third parties;
(b.2) transfer in pledge of credits. […]
Effective date and duration
This Convention will be effective from 4 August 2009 and will terminate on 3 August 2029.
This Convention will terminate by law and will be declared ineffective between the parties if the Producer falls under any case of termination pursuant to Article 10 of Law n. 575/1965 as subsequently amended and integrated, or if the aforementioned situation provided for by Article 10, Paragraph 3 of Resolution n.90/07 occurs.
Any proceedings deriving from or in any case connected to the interpretation or the execution of this Agreement and connected documents shall be settled before the Court of Rome.
Completion of this Convention
For the completion of this Convention the Producer has to print, from the web site, the specific Declaration of Acceptance and send it to GSE, signed with the attached copy of his own valid document.
This Convention will be effective once the GSE accepts the mentioned Declaration, making available on the website the copy for the Producer, undersigned by its own legal representative.
Following the entrance into legal force of this convention, any possible agreement to amend or add the content of the Convention, shall be a nullity unless agreed in writing.
The parties are aware that every declaration originating from this Convention are given pursuant to DPR. 445/00.
In accordance with Clause 1341 and 1342 of the Italian Civil Code, the Parties specifically approve the following Clauses, after having carefully reviewed them:
Article 2 "Effective date and value of incentive", 3 "Procedure for the release of the incentive tariffs", 4 "Assignment of credits", 5 "Liability", 9 "Jurisdiction", 10 "Completion of this Convention", provided by this Convention. […]
4.3 The Assignees also declare that they are aware that:
(a) The assigned receivables are derived from the recognition in relation to the Assignor of subsidised rates to produce photovoltaic energy by the plant described in more detail in the Agreement;
(b) The payment of subsidised rates, in other words the receivables assigned by virtue of this document, shall be performed by the GSE on the basis of the current measures defined in resolutions passed by the authority for electricity and gas.78
|InvestedPV Company||Acquisition Date by Belenergia||Start of Operations||Nominal Power (kW)||Date of GSE Convention on minimum prices|
|FIRST INVESTMENT WAVE|
|Casamassima Solare SRL||29 Sept. 2011||Plant 1 Leporano1 : 26 Aug. 2011||939.06||11 October 2011|
|Plant 2 Faggiano1 : 31 Aug. 2011||955.71||11 October 2011|
|Compgania Solare 1 SRL||29 Sept. 2011||Plant 1 Adelfia1 : 30 June 2011||937.02||6 October 2011|
|Plant 2 Casamassima1 30 June 2011||939.06||6 October 2011|
|Compagnia Solare 2 SRL||29 Sept. 2011||Plant 1 Ugento1 : 30 June 2011||996.87||6 October 2011|
|Compagnia Solare 3 SRL||29 Sept. 2011||Plant 1 Nardo1 : 27 June 2011||957.60||6 October 2011|
|Plant 2 Massafra1 : 30 Aug. 2011||946.68||11 October 2011|
|SECOND INVESTMENT WAVE|
|Società di Produzione Energia Solare SRL||29 April 2013||Plant 1 Taranto Masseria Giulianello : 29 Feb. 2012||950.0080||16 May 2011|
|Plant 2 Contrada Titolato : 30 June 2011||916.88||11 October 2011|
|Plant 3 La Torrata : 28 July 2011||917.61||11 October 2011|
|Solaria Real Estate SRL||9 July 201381||Plant 1 Racale500kW : 18 Dec. 2008||504.00||8 April 2009|
|Plant 2 Brindisi300kW : 1 Feb. 2009||302.40||15 April 2009|
|Plant 3 Brindisi250kW : 1 Feb. 2009||252||10 April 2009|
|Acquaviva SRL||9 July 2013||Plant 1 Acquaviva 1 : 4 Aug. 2009||993.84||26 October 2009|
|Plant 2 Acquaviva 2 3 Aug. 2009||596.64||26 October 2009|
|Brindisi Solar SRL||9 July 2013||Plant 1 Racale498 : 15 Oct. 2009||498.96||11 January 2010|
|Plant 2 Brindisi805 : 28 Oct. 2009||804.96||22 January 2010|
|THIRD INVESTMENT WAVE|
|Solar Solution Puglia SRL||6 Dec. 2013||Plant 1 Martano : 30 Mar. 2012||991.76||30 May 2012|
|Plant 2 Castrignano : 30 Nov. 2011||906.20||20 March 2012|
Agreement Concerning the Purchase ("Ritiro") of Electric Energy
Pursuant To Article 13, Paragraphs 3 And 4, of Legislative Decree
No. 387/03 And Article 1, Paragraph 41 Of Law No. 239/04
Procedure Number: Rid 006952
With this Agreement
The Italian Electric Services - GSE S.p.a., […]
Acquaviva S.R.L., […] hereinafter called "Producer" hereinafter, separately or jointly, also called the Party or the Parties,
- Legislative Decree December 29, 2003, No. 387 (hereinafter Legislative Decree No. 387/03), at Article 13, Paragraphs 3 and 4, provides that the Italian Energy and Gas Authority (hereinafter the "Authority") sets the ways for purchasing "per il ritiro" electric energy, referring to the economic conditions of the market; […]
- the Producer operates the photovoltaic plant fed by solar source so called ACQUAVIVAl, located in the Municipality of Acquaviva delle fonti (BA), with an installed power equal to 993,84 KW and to KVA, and that this plant is defined as not programmable pursuant to the resolution AEEG No. 111/06;
- the Producer submitted the application "istanza" to the GSE for purchasing "per il ritiro" of the electric energy, pursuant to Article 13, Paragraphs 3 and 4, of Legislative Decree No. 387/03 and Article 1, Paragraph 41, of Law No. 239/04; […]
Object of this Agreement
This Agreement has as its object the regulation of the technical-economic conditions of the purchase "ritiro", by the GSE, further to the request of the Producer, for electric energy in accordance with Article 13, paragraphs 3 and 4, of Legislative Decree No. 387/03 and/or Article 1, Paragraph 41, of Law No. 239/04, produced and injected into the grid by the forementioned plant, as well as the economic conditions referring to the transportation and displacement in injection "dispacciamento in immissione" services.
Delivery of electric energy to the GSE
The electric energy which is the subject of this Agreement is the entire amount of the electric energy injected into the grid, equal to the gross energy produced by the plant, net of the energy taken by the auxiliary services, by the workshop, if any, by the self-used electric energy "autoconsumata", by the losses of transformation and of line up to the point of delivery to the grid and by the energy sold in accordance with the long-term agreements mentioned by Article 13, Paragraphs 3 and 4, of Legislative Decree No. 387/03 and/or Article 1, Paragraph 41, of Law No 239/04. This electric energy is deemed delivered to the GSE at the point of interconnection to the electric grid, competence of Enel Distribution S.p.a., located in the Municipality of Acquaviva delle fonti (BA), with voltage equal to 20 kV.
The produce Breaches of the rules referring to the operating by the Producers shall be deemed to be of the exclusive liability of the Producer himself.
Possible amounts of energy taken by the grid are the subject of separated commercial agreements not entered into with the GSE and not regulated by this Agreement.
With regard to the consideration, the electric energy injected into the grid and the subject of this Agreement is increased, in the case of points of injection in low and medium voltage, of a one percentage factor pursuant to the same ways provided for in Article 12, Paragraph 6 letter
a), of Attachment A of the resolution AEEG No. 111/06 and subsequent modifications and integrations. […]
Considerations for the purchase "ritiro" of the energy and considerations for covering the costs borne by the GSE for the access to the regime, so called "Regime Dedicato."
The prices given by the GSE to the Producer for the purchasing ("per il ritiro") of the energy which is the subject of this Agreement are defined in Articles 6 and 7 of the resolution AEEG No. 280/07 and subsequent modifications and integrations.
The prices due from the Producer to the GSE in order to cover the administrative costs for the access to the regime so called "regime dedicato" are defined in article 4, paragraph 2 letter e), of the resolution AEEG No. 280/07 and subsequent modifications and integrations.
Considerations for the transmission service
The considerations for the transmission service are regulated between the Producer and the SE in accordance with Article 4, Paragraph 2 letter b), of the Resolution AEEG No. 280/07 and any future possible modifications and addition.
Considerations of imbalance "sbilanciamento" referring to plants fed by programmable sources
With regard to plants fed by programmable sources, the considerations of imbalance "sbilanciamento" are regulated between the Producer and the GSE pursuant to article 8 of the resolution AEEG No. 280/07. […]
Assignment of credits and payments
The credits generated from this Agreement cannot be object of credit assignment or pledge. […]
Effective Date and Duration of the Convention
This Agreement will be effective from 4 August 2009.
The Parties agree to tacitly renovate this Agreement yearly, registered letter with receipt, except in case of termination to be communicated by the Producer, to the GSE, with a registered letter with at least 60 days in advance in respect to the termination.
In case of early withdrawal during the year, the GSE can start a new Convention for the purchasing (ritiro dedicato) of energy, exclusively in the subsequent year of the withdrawal.
Resolution, withdraw and suspension of the Convention
This Convention shall be considered terminated and shall not be deemed in force between the Parties if the Producer breaches the provisions of Clause 10 of Law 575/1965 as amended and integrated.
In case of non-fulfilment of obligations provided for this Agreement, in case of changes, amendments related to the requested authorization for the exercise of the plant, in case of appeal actions against the authorisation, or in case of Authority's provisions that affect the availability, functionality or productively of the plant, the GSE has the right to suspend the contract, as well as to terminate the contract, without prejudice to its right for damages and the recover, including by adjustment between the bills related to different pending contract relationship, of any advantage wrongly received by the producer.
Pursuant to Point 6 of Resolution AEEG ARG/elt 4/10, the GSE has the right to terminate the underwritten agreement by the producer related to the productive unit mentioned in the Point 5 of Resolution ARG/elt 4/10 in case of non-fulfilment to the provision of that resolution.
The Producer is enabled to terminate this Agreement by registered letter giving notice at least 60 days in advance from the date in which the Producer intends terminate this Agreement.
If one of the condition listed for the release of "regime dedicato" will be not valid anymore, this Agreement will terminate according to article 1456 civil code.
Any proceedings deriving from or in any case connected to the interpretation or the execution of this Agreement and connected documentation shall be settled before the Court of Rome.
Amendment and renvoi
The premises are integral and substantial part of this Agreement.
In relation to any matters not expressly included in this Agreement, the Parties agree to refer to the resolution AEEG n. 280/07, the Applicable Law concerning the interconnection of the plants to the grid and electric energy, and if applicable, the provisions of the Italian Civil Code.
The GSE has the discretion to modify the Agreement's clause according to potential changes and updates introduced [to] resolution AEEG 280/07, with prejudice to the possibility for the producer to terminate this contract relationship according to Article 14.
The producer is aware that every declarations originating from this Convention are provided pursuant to DPR 445/00. […]
222. In view of the above, the Claimant hereby requests that the Tribunal:
a. Declare that the Respondent has breached its obligations under Articles 10(1), (2) and (3) ECT as set out in Part V above.
b. Award the Claimant damages in compensation for losses suffered as a result of these breaches as set out in Part IV above, plus interest thereon from the due date for payment of such damages until the actual date of payment.
c. Order the Respondent to pay all costs incurred in connection with these arbitral proceedings, including the administrative costs of ICSID, the fees and costs of the arbitrators and all legal and other expenses incurred by the Claimant, including the fees of its legal counsel, experts and consultants, plus interest thereon from the date on which such costs are incurred by the Claimant until the date of payment.
223. For the avoidance of doubt, the Claimant reserves the right to amend the relief sought in light of the submission of further claims against the Respondent, the amending, supplementing, or augmenting of any of its claims here submitted, or the submission of counterclaims by the Respondent.84
In jurisdiction and admissibility,
A. Decline jurisdiction to decide, as the ECT does not cover intra-EU disputes.
B. Alternatively, decline jurisdiction over the totality of claims, since:
a) as for feed-in tariffs (and minimum guaranteed prices), the requirement of unconditional consent under Article 26 ECT is not satisfied as the GSE Conventions contain exclusive jurisdiction clauses in favour of domestic courts;
b) the measures on imbalance charges are exempted under Article 21 ECT, and
c) no amicable solution has been attempted for measures on imbalance charges, should these not be considered as covered by Article 21 of the ECT.
C. In a further alternative, decline admissibility of protection of the Claimant alleged interests as this is barred from seeking relief, since
a) an exclusive forum clause was selected between the Claimant and the GSE in the GSE Conventions, and
b) the Claimant did not seek amicable solution for the claim on imbalance charges.
Should the Tribunal retain to have jurisdiction over the case and that claims be either totally or partially admissible
D. Declare, on the merits, that the Respondent did not violate Article 10(1) ECT, first and second sentence, since it did not fail to grant fair and equitable treatment to the Claimant's investment.
E. Declare, on the merits, that the Respondent did not violate Article 10(1) ECT, third sentence, second part, since it always adopted reasonable and non-discriminatory measures to affect Claimant's investment.
F. Declare, on the merits, that Article 10(1) ECT, last sentence (the so-called "umbrella clause") does not apply in the case at stake, or, alternatively, that the Respondent did not violate it neither through statutory or regulatory measures, nor the GSE Conventions.
G. Declare, on the merits, that Article 10(1) ECT, third sentence, first part, does not apply to the case at stake or, alternatively, that the Respondent did not violate it.
H. Declare, on the merits, that Article 10(2) and (3) ECT does not apply to the case at stake, or alternatively that the Respondent did not violate it since it never adopted discriminatory measures to comparable situations unduly benefitting Italian investors.
I. Declare that no compensation is due.
In the unfortunate event that the Tribunal were to recognise legitimacy to one of the Claimant's grievances,
J. Declare that damages were not adequately proved.
K. Declare that both the method for calculation and the calculation itself of damages proposed by the Claimant are inappropriate and erroneous.
In all cases,
L. Reduce proportionally any eventually recognised damages to conform to the fact that in the Reply the Claimant abandoned its claims on both guarantee minimum prices and imbalance costs.
M. Order the Claimant to pay all relevant expenses and disbursements by the Respondent because of these proceedings in accordance with ICSID Arbitration Rules.85
[…] the EU is recognized by the ECT as a unified legal system, based on an international treaty whose provisions on the same matters as those covered by the ECT prevail over the ECT itself, and consequently that Contracting Parties signed the ECT under the mutual understanding that this would not apply to intra-EU situation.101
This Treaty establishes a legal framework in order to promote longterm cooperation in the energy field, based on complementarities and mutual benefits, in accordance with the objectives and principles of the Charter.
It is declared that, due to the nature of the EU internal legal order, the text in Title II, Heading 4, of the International Energy Charter on dispute settlement mechanisms cannot be construed so as to mean that any such mechanisms would become applicable in relations between the European Union and its Member States, or between the said Member States, on the basis of that text.
39 It must be ascertained, first, whether the disputes which the arbitral tribunal mentioned in Article 8 of the BIT is called on to resolve are liable to relate to the interpretation or application of EU law.
40 Even if, as Achmea in particular contends, that tribunal, despite the very broad wording of Article 8(1) of the BIT, is called on to rule only on possible infringements of the BIT, the fact remains that in order to do so it must, in accordance with Article 8(6) of the BIT, take account in particular of the law in force of the contracting party concerned and other relevant agreements between the contracting parties.
41 Given the nature and characteristics of EU law mentioned in paragraph 33 above, that law must be regarded both as forming part of the law in force in every Member State and as deriving from an international agreement between the Member States.
42 It follows that on that twofold basis the arbitral tribunal referred to in Article 8 of the BIT may be called on to interpret or indeed to apply EU law, particularly the provisions concerning the fundamental freedoms, including freedom of establishment and free movement of capital.170
Furthermore, international agreements concluded by the Union, including the Energy Charter Treaty, are an integral part of the EU legal order and must therefore be compatible with the Treaties. Arbitral tribunals have interpreted the Energy Charter Treaty as also containing an investor-State arbitration clause applicable between Member States. Interpreted in such a manner, that clause would be incompatible with the Treaties and thus would have to be disapplied [sic].184
[f]or any dispute arising out of or in any case connected to the interpretation and/or execution of the [Convention] and the documents referred to therein the Parties agree on the exclusive jurisdiction of the Court of Rome.190
(a) a fee is paid in consideration for a public service requested by an individual;
(b) a tax is proportionate to the contributing capacity of an individual, paid for general public services; and
(c) a contribution is a compulsory levy paid by certain individuals because they benefit, directly or indirectly from certain public services, irrespective of whether individuals have requested these services.
In the event of a conflict between the treaty concerning Spitsbergen of 9 February 1920 (the Svalbard Treaty) and the Energy Charter Treaty, the treaty concerning Spitsbergen shall prevail to the extent of the conflict.270
Article 47(1) of the 2005 Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration (Schengen III Agreement)
The provisions of this Convention shall apply only in so far as they are compatible with European Union law.
Article 27 of the 1988 Convention on Mutual Administrative Assistance in Tax Matters
Notwithstanding the rules of the present Convention, those Parties which are members of the European Economic Community shall apply in their mutual relations the common rules in force in that Community.272
An Investment of an Investor referred to in Article 1(7)(a)(ii), of a Contracting Party which is not party to an EIA or a member of a free-trade area or a customs union, shall be entitled to treatment accorded under such EIA, free-trade area or customs union, provided that the Investment:
(a) has its registered office, central administration or principal place of business in the Area of a party to that EIA or member of that free-trade area or customs union; or
(b) in case it only has its registered office in that Area, has an effective and continuous link with the economy of one of the parties to that EIA or member of that free-trade area or customs union.278
Within the framework of State sovereignty and sovereign rights over energy resources and in a spirit of political and economic cooperation, they undertake to promote the development of an efficient energy market throughout Europe, and a better functioning global market, in both cases based on the principle of non-discrimination and on market-oriented price formation, taking due account of environmental concerns. They are determined to create a climate favourable to the operation of enterprises and to the flow of investments and technologies by implementing market principles in the field of energy.282
The Claimant argues that subsequent developments to the ECT's conclusion do not bar ECT arbitral jurisdiction. The facts that no intra-EU investment arbitrations under the ECT were commenced before 2007 and that EU Member States have presented EU-related jurisdictional objections in ECT proceedings are irrelevant and do not qualify as subsequent practice under Article 31(3)(b) VCLT.286 The Claimant adds that the Electrabel v. Hungary decision does not support Italy's argument that the ECT covers only extra-EU disputes. Italy's argument is misleading because the Electrabel v. Hungary tribunal did not have to and did not decide on an intra-EU dispute.287
The Claimant also disagrees with Italy's argument on successive treaties relating to the same subject-matter under Article 30 VCLT288 because (i) the Lisbon Treaty and the ECT do not have the same subject-matter; (ii) even if they had the same subject-matter— quod non— the Lisbon Treaty does not prevail over the ECT, since there is no incompatibility between these treaties.289 Accordingly, Article 30 VCLT does not apply in the circumstances; this is the approach adopted in Electrabel v. Hungary and Blusun v. Italy.290
(a) the expression "disputes" concern existing disputes and not future disputes, the 3-month waiting period under Article 26(2) supporting this interpretation;
(b) the term "choose" in Article 26(2) implies that the Claimant can choose between different options, including the option of "[a] previously agreed dispute settlement procedure" under Article 26(2)(b), but not excluding other options;
(c) the terms "submit" and "submitted" in Articles 26(2), 26(3)(b) and 26(4) "refer to the decision to file suit rather than to an agreement that exists before the choices under Article 26(2) even arise."347
[…] it concerns (a) sovereign acts of the Italian state through the implementation of the Spalma Incentivi Decree and Law of Conversion, neither of which are mentioned in [the GSE Conventions]; and (b) the unilateral amendment of [the GSE Conventions] through these same sovereign instruments, an act distinct from interpretation and execution.367
The fundamental basis of [its] claim (save under the umbrella clause) is not the [GSE Conventions], but the Spalma Incentivi Decree and the Law of Conversion that – among other things – unilaterally modified these agreements through the sovereign power of the Italian state. Thus, to paraphrase the tribunal in BIVAC v. Paraguay, the nonumbrella clause claims of the Claimant here turn on the interpretation and application of the ECT and the acts of the Respondent (as puissance publique), not on the interpretation of the [GSE Conventions] as such – although these instruments will necessarily be part of the overall legal and factual matrix, particularly insofar as violation of the legitimate expectations are concerned for the purposes of the FET analysis.375
Several investment treaty tribunals have considered that EU law is part of international law, including ECT arbitral tribunals in the Electrabel, Blusun and RREEF cases.403 This Tribunal cannot therefore accept Belenergia's narrow reading of the text of Article 26(6) ECT to exclude the application of EU law when its text expressly refers to "applicable rules of international law." This Tribunal concurs with the Electrabel tribunal that "all EU legal rules are part of a regional system of international law and therefore have an international legal character."404 Further, the Tribunal sees a certain contradiction in the Claimant's position which assumes that intra-EU Member State investments are international investments and refuses to accept that EU law is part of international law. Hence, the Tribunal finds that it can apply EU law as part of international law and "where relevant should apply European law as such"405 to the extent that the ECT regime permits it.
DECISION With respect to the Treaty as a whole
In the event of a conflict between the treaty concerning Spitsbergen of 9 February 1920 (the Svalbard Treaty) and the Energy Charter Treaty, the treaty concerning Spitsbergen shall prevail to the extent of the conflict, without prejudice to the positions of the Contracting Parties in respect of the Svalbard Treaty. In the event of such conflict or a dispute as to whether there is such conflict or as to its extent, Article 16 and Part V of the Energy Charter Treaty shall not apply.
The European Communities are a regional economic integration organisation within the meaning of the Energy Charter Treaty. The Communities exercise the competences conferred on them by their Member States through autonomous decision-making and judicial institutions.
The European Communities and their Member States have both concluded the Energy Charter Treaty and are thus internationally responsible for the fulfilment of the obligations contained therein, in accordance with their respective competences.
The Communities and the Member States will, if necessary, determine among them who is the respondent party to arbitration proceedings initiated by an Investor of another Contracting Party. In such case, upon the request of the Investor, the Communities and the Member States concerned will make such determination within a period of 30 days (1).
The Court of Justice of the European Communities, as the judicial institution of the Communities, is competent to examine any question relating to the application and interpretation of the constituent treaties and acts adopted thereunder, including international agreements concluded by the Communities, which under certain conditions may be invoked before the Court of Justice.
Any case brought before the Court of Justice of the European Communities by an investor of another Contracting Party in application of the forms of action provided by the constituent treaties of the Communities falls under Article 26(2)(a) of the Energy Charter Treaty (2). Given that the Communities' legal system provides for means of such action, the European Communities have not given their unconditional consent to the submission of a dispute to international arbitration or conciliation.
As far as international arbitration is concerned, it should be stated that the provisions of the ICSID Convention do not allow the European Communities to become parties to it. The provisions of the ICSID Additional Facility also do not allow the Communities to make use of them. Any arbitral award against the European Communities will be implemented by the Communities' institutions, in accordance with their obligation under Article 26(8) of the Energy Charter Treaty.416
Article 30. A PPLICATION OF S UCCESSIVE T REATIES R ELATING TO THE S AME S UBJECT -M ATTER
1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
4. When the parties to the later treaty do not include all the parties to the earlier one:
(a) As between States parties to both treaties the same rule applies as in paragraph 3;
(b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations […]
Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Part III or V of this Treaty,
(1) nothing in Part III or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and
(2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Part III or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, where any such provision is more favourable to the Investor or Investment. (emphases added)
The Tribunal is unconvinced by Italy's Article 30(4)(a) argument on the lex posterior rule in case of incompatibility between earlier and successive treaties. The Tribunal finds complementarity rather than incompatibility between the ECT and the Lisbon Treaty, from a substantive and a procedural perspective.419 From a substantive law perspective, EU rules establishing the internal market are complementary to ECT rules, including rules prohibiting discrimination.
(a) violates Article 344 TFEU which sets forth the principle that "Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for" in the EU treaties;421 and
(b) removes dispute settlement from the jurisdiction of EU Member States and from the EU judicial system with "mechanisms capable of ensuring the full effectiveness of the rules of the EU" such as referring questions of EU law for a preliminary ruling by the ECJ, in breach of Article 267 TFEU.422
In the present case, however, apart from the fact that the disputes falling within the jurisdiction of the arbitral tribunal referred to in Article 8 of the BIT may relate to the interpretation both of that agreement and of EU law, the possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was concluded not by the EU but by Member States. Article 8 of the BIT is such as to call into question not only the principle of mutual trust between the Member States but also the preservation of the particular nature of the law established by the Treaties, ensured by the preliminary ruling procedure provided for in Article 267 TFEU, and is not therefore compatible with the principle of sincere cooperation referred to in paragraph 34 above.423 (emphasis added)
The Achmea case concerns the interpretation of EU law in relation to an investor-state arbitration clause in a bilateral investment treaty between Member States. The Member States note that the Achmea judgment is silent on the investor-state arbitration clause in the Energy Charter Treaty. A number of international arbitration tribunals post the Achmea judgment have concluded that the Energy Charter Treaty contains an investor-State arbitration clause applicable between EU Member States. This interpretation is currently contested before a national court in a Member State [Set-aside proceeding in Svea Court of Appeal, Case No 4658-18, Novenergia II- Energy & Environment (SCA) (Grand Duchy of Luxembourg), SI CAR vs the Kingdom of Spain, SCC Arbitration (20 15/06)]. Against this background, the Member States underline the importance of allowing for due process and consider that it would be inappropriate, in the absence of a specific judgment on this matter, to express views as regards the compatibility with Union law of the intra EU application of the Energy Charter Treaty.430
[…] 5. ln light of the Achmea judgment, Member States will terminate all bilateral investment treaties concluded between them by means of a plurilateral treaty or, where that is mutually recognised as more expedient, bilaterally.
[…] 8. Member States will make best efforts to deposit their instruments of ratification, approval or acceptance of that plurilateral treaty or of any bilateral treaty terminating bilateral investment treaties between Member States no later than 6 December 2019. They will inform each other and the Secretary General of the Council of the European Union in due time of any obstacle they encounter, and of measures they envisage in order to overcome that obstacle.
9. Beyond actions concerning the Energy Charter Treaty based on this declaration, Member States together with the Commission will discuss without undue delay whether any additional steps are necessary to draw all the consequences from the Achmea judgment in relation to the intra-EU application of the Energy Charter Treaty.
It follows from Article 282 of the Convention that, as it provides for procedures resulting in binding decisions in respect of the resolution of disputes between Member States, the system for the resolution of disputes set out in the EC Treaty must in principle take precedence over that contained in Part XV of the Convention.432
Finally, the Tribunal is unconvinced that ECJ's Opinion 1/09 bears on this dispute because Opinion 1/09 concerned a mere draft agreement on the European and Community Patents before the EU, its Member States, and third countries could even accede to it. Conversely, the EU and its Member States signed and ratified the ECT on the basis of decisions by the European Council and the Commission.433 In any case, Opinion 1/09 enshrines a perspective from the EU legal order that cannot be transposed to the ECT's regime.
Article 41 AGREEMENTS TO MODIFY MULTILATERAL TREATIES BETWEEN CERTAIN OF THE PARTIES ONLY
1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:
(a) The possibility of such a modification is provided for by the treaty; or
(b) The modification in question is not prohibited by the treaty and:
(i) Does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) Does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph l(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.
Any proceedings deriving from or in any case connected to the interpretation or the execution of this Agreement and connected documents shall be settled before the Court of Rome.435
[…] (2) If such disputes cannot be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:
(a) to the courts or administrative tribunals of the Contracting Party party t