CBA advises Hera in litigation concerning cogeneration incentives: Council of State upholds appeal

CBA advised Hera S.p.A. in proceedings before the Italian Council of State, which resulted in the annulment of the decisions whereby the Energy Services Manager (Gestore dei Servizi Energetici – GSE) 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 the allocation of Energy Efficiency Certificates (TEE), on the grounds that the plant did not meet the requirements set out in Ministerial Decree of 5 September 2011 to qualify as a “new cogeneration unit”. According to the GSE, one of the components used in the plant was not new, namely an internal combustion engine previously operated at another facility and subsequently overhauled.

In judgment No. 8024/2025, 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 decisions insofar as they denied the company the benefits claimed for the 2017 production year.

The judgment clarified that, for the purposes of accessing the support scheme, the applicable legislation requires the construction of a new cogeneration unit brought into operation after 7 March 2007, but does not require 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 a standalone production unit that did not previously exist, rather than to the absolute novelty of each component used.

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

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