CBA advises Hera in dispute over cogeneration incentives: Council of State upholds appeal

CBA advised Hera S.p.A. in proceedings before the Council of State that resulted in the annulment of the measures through which the Gestore dei Servizi Energetici (GSE), Italy’s Energy Services Manager, had denied the company access to incentives available for high-efficiency cogeneration.

The dispute concerned a cogeneration plant in Forlì, which became operational in 2016 and was recognised by the GSE as a high-efficiency cogeneration unit. The GSE had nevertheless rejected Hera’s application for Energy Efficiency Certificates (TEE), holding that the plant did not meet the requirements set out in the Ministerial Decree of 5 September 2011 to qualify as a “new cogeneration unit”, as one of its components was not new. Specifically, the plant incorporated an internal combustion engine that had previously been used at another facility and had subsequently undergone an overhaul.

In judgment No. 6534/2026, the Council of State upheld Hera’s appeal, overturning the judgment of the Lazio Regional Administrative Court (TAR Lazio) No. 14501/2025 and annulling the GSE’s measures insofar as they denied the company the benefits claimed for the 2017 production year.

The Council of State clarified that, for the purposes of accessing the support scheme, the applicable legislation requires the construction of a new cogeneration unit that entered into operation after 7 March 2007, without requiring the individual components of the plant to be new or previously unused. According to the Council of State, the concept of “new construction” refers to the creation of an independent production unit that did not previously exist, rather than to the absolute novelty of each individual component used.

The Court further held that the interpretation adopted by the GSE would have introduced an additional and particularly restrictive requirement for access to the support scheme, with no basis in primary or secondary legislation.

Hera S.p.A. was assisted by CBA Studio Legale e Tributario with a team led by partner Francesco Piron and comprising of counsel Tiziana Sogari and associate Massimino Crisci.