The Council of State upheld the appeal filed by Palmenergy, an Italian company active in the electricity production sector operating in the 'club deal' investment segment for private investors, assisted by the law firm AMTF Avvocati. According to a statement issued by the law firm, the appeal was lodged against the ruling of the Lazio Regional Administrative Court, which confirmed the legitimacy of the decision to remove Palmenergy's small wind farms from the GSE register, with the consequent refusal to grant the Cuneo-based company access to incentive tariffs.
The measure was justified on the basis of an alleged artificial division of a single plant, considered as such because of the fact that the shareholders of two business initiatives involving the construction of two plants located on adjacent land belonged to the same corporate structure. The Council of State, in particular, emphasized that "the mere holding of minority shareholdings in both companies constitutes evidence that lacks the requirements of seriousness, precision, and consistency, as it is not unambiguous and may represent a mere diversification of investment in risk capital rather than a case of artificial division, so that it is completely unsuitable, unless corroborated by evidence of the real power of interference of minority shareholders in the management of the company, to demonstrate the uniqueness of the decision-making and management center that constitutes the essential prerequisite for the corporate connection."
The appeals court judge, therefore, agreeing with the defense strategy proposed by the firm and based on the concept of a single decision-making center in the procurement sector, ruled that a minority stake in multiple corporate vehicles owning renewable energy production plants located in adjacent areas, however substantial, would not be decisive if it did not allow those shareholders to influence governance and determine the company's performance, as it could simply represent a diversification of risk capital investment. The principle that the burden of proof of the link between companies lies with the contracting authority has been applied to the renewable energy sector, as it must then be demonstrated that this particular corporate structure has a concrete impact on the interest protected by the law.
The comment
Tommaso Ferrario, partner at the law firm, stated that "this is an important ruling, not only because of the frequency of the issue of artificial fragmentation in the sector, but also because of its connection with the definition of a single decision-making center applicable to the procurement sector."
