1. Introduction: the Smart City as a “paradigm” in the EU environmental and energy policies

To date, there is no agreed definition of smart cities, even in legal scholarship^[2], whereas there is a definition of Renewable Energy Communities (hereinafter, “REC(s)”)^[3]. This deficit is explained by the presence of diverse extra-legal fields in the very nature of smart cities^[4], leading to difficulties of coordination as well as a complex intertwining of multilevel competencies that, precisely, have consequences on the definitional level. Obviously, public law is called upon to grasp the legal problems of every area where ICT technologies are used to implement public policies, as in the specific case of the urban context concerning smart cities. Moreover, in a field where the urban planning and regulation challenges are matched by another area of intervention of the public decision maker- such as the energy sector- characterized, itself, for the complexity of its assets and of a multilevel governance. Therefore, the present article, examines smart cities from the perspective of key sectors such as energy, linking it with the energy transition and efficiency, as well as the climate protection which need to be taken into account in today’s debate.

From their side, energy communities, referring to forms of organizing activities underpinned on «renewable energy, localness (…) participation of various actors» in comparison to conventional large-scale industries^[5], indeed, are set in a supranational context in which ICT are pre-eminent for their proper functioning from the citizens’ point of view. It is therefore worth briefly describing the starting context: smart cities as a paradigm within EU environmental policies (and not only environmental law) whose implementation is a duty of the Member States (§1).

The examples of implementation of energy communities (REC) in Italy (§2) will offer food for thought on which a broader reflection might be launched. Consequently, REC are complex systems in which different (European and national) policies and competences are intertwined and, as a result, the leading idea of this article is that administrative cooperation plays a crucial role for the effective success of these communities (§3). Besides, looking at EU and MS administrative activity as result-oriented^[6], effective decisions must be taken as to cope with the protection of future generations first and foremost (§4).

Against this background, smart cities can be imagined as models of declination, hence paradigms^[7], of experiences related to REC where the technological dimension, basically standing on data^[8], is at the heart of its evolution. Smart cities are therefore a hub of digital transition^[9] but also a place of institutional experimentation closely linked to the control of urbanisation where it is recognised that the centrality of planning is also a tool for patrol the new dangers of society^[10] with regard to public interest^[11]. Therefore, in smart cities the community is placed at the centre of both the administrative function and the organisational function^[12] where «the collective dimension appears to be essential and prevailing, whereby the limitation of individual freedom is regarded as a “smart” measure to adopt when necessary»^[13].

As already said, legal issues are far-reaching, because of the risk society demanding to make the administration reflexive and ready for new forms of cooperation with the private sector^[14] and to be geared towards exercising authorisation functions on an adaptive approach (which is allowed by data exploitation).

Policies promoting smart cities are then closely interrelated to environmental policies and, in the present article, are also to be considered as part of energy policies. Or rather, it will be highlighted the smartness^[15] set in REC as part of urban development^[16]: «smart and green characteristics of communities are linked as regards smart buildings and more widely, smart environment»^[17]. For both the environment and energy, the Union exercises a competence shared with the Member States (art. 4 TFEU); while for all matters concerning technological developments, the legal basis for the adoption of an EU act is linked to the policy area in which the specific action fits. Accordingly, the material scope of application of EU law concerning environment, energy and ICT are determined by the principle of conferral. Albeit the specific legal basis for the environment policy are particularly «well drafted»^[18], together with energy, they are both field of policies bordering the internal market as well. Referring directly to the Lisbon Treaty it is self-evident how the establishment of the internal market (art. 3 TEU) is strictly linked with other goals related with public interest such as the environment (and sustainable development)^[19] and social progress, therefore administrative function carried out in environmental policies at the EU level based on a shared competence are increasingly implemented through intertwined models of administration, leading to two considerations. The first concerns the structure of competences (and the use of implicit powers) where the objectives connected to environmental regulation do not strictly cover environmental policies, but are part of the regulation of social activities; the latter are rather coordinated starting from the EU level by leaving the Member States wide discretionary powers regarding the content of the implementation measures. This is precisely the case of the energy sector, where the security and affordability of supply are not only social issues embedded in the broader concept of sustainability^[20] but they are closely linked to the opening of the market to competition and its promotion, although the opposite is also true. For example, competition leads to a more conscious choice by the consumer^[21], especially the small consumer who, however, is in the so-called «evolved supply chain» expression of the ecological transition, is no longer only passive, but is also encouraged to widespread production. Energy supply in the free market (of energy as a good^[22]) is, however, again a global problem closely linked to the fundamental rights of environment protection, as well as the goal of climate neutrality by 2050 established in the Green Deal^[23].

So, if the smart city is smart and efficient through the use of technology, all the more reason for REC to take into account the environmental and sustainability dimensions, as already hoped by United Nations Economic Commission for Europe (UNECE) defining «Smart Sustainable Cities».^[24] This pathway has also inspired EU policies on smart cities, hopefully gazing at future generation^[25], with respect to economic growth, social and environment dimensions merged all together^[26].

2. Energy Communities in the EU legal framework: a driver for energy transition, as well as a way to deal with the climate emergency

In light of the strategy introduced by the EU in the field of energy sector^[27], citizen-consumers (i.e. prosumers) are called to play an active role, participating – within their communities – in the transition to climate neutrality, no longer as (passive) consumers of energy, but as (active) producers of it.

The EU’s aim is to support the evolution of the role of the energy consumer, making them active energy-producing citizens, or, in other words, prosumers^[28].

This means, as will be better discussed below, that the energy prosumer is the person who owns his own energy production plant, of which he uses – for his own needs – only a portion of the capacity produced; the residual can be fed into the grid, exchanged with other users or even accumulated in storage systems and, subsequently, returned to the consumption units at the most appropriate time^[29].

In line with the EU’s energy strategies, one of the most important tools ensuring the active participation of citizens, in the dual role of passive and active users, according to the terms outlined above, is manly represented by the Renewable Energy Communities (hereinafter, the “REC(s)”).

These, in fact, can be defined as «an organisational model endowed with legal subjectivity that allows participants to carry out, in an institutionalised form, a whole series of activities in the energy sector ranging from the generation, distribution, sale, conservation, purchase of energy, to the implementation of energy efficiency services, in order to produce environmental, economic and social benefits»^[30].

In this sense, a first and important legal recognition was introduced, for the first time in EU law, precisely by the Directive EU/2018/2001 (also known as the Renewable Energy Directive (RED II)^[31], as transposed in Italy by Legislative Decree No. 199 of 8 November 2021^[32] and, secondly, by Directive EU/2019/944 on “common rules for the internal market for electricity (…)”^[33], subsequently transposed by Legislative Decree No. 210 of 8 November 2021^[34], which defined, each to the extent of its competence, the concepts of Renewable Energy Community and Citizen Energy Communities (hereinafter, “CEC(s)”)^[35].

An analysis of the definitions offered, in the first instance, by EU law shows that both of the above-mentioned configurations (i) are legal entities separate from their members (unlike the model called “collective self-consumption” (autoconsumo collettivo)^[36]), (ii) are organised on a voluntary basis, (iii) pursue mutualistic purposes (i.e. provide environmental, economic or social benefits to their members and the territory where they are based), and (iv) are required to carry out activities involving energy products.

To the same extent, the same configurations nevertheless present some differences, which can be identified (i) in the different requirements of the corporate structure (only natural persons, Small and Medium Enterprise (hereinafter, “SME(s)”) or local authorities can join a REC, whereas no subjective qualification is required to take part in an CEC^[37]), (ii) in the ownership of the energy production plants (for RECs, the plants must belong to or be developed, at least according to EU law, by the REC itself; whereas in the case of CECs, they may also use the installations of others), (iii) in the proximity or physical proximity to the plants^[38], (iv) in autonomy (the REC must in fact correspond to a legal entity “autonomous” with respect to its individual members^[39]), (v) in the different types of energy activities that they may carry out (whereas CEC must carry out activities concerning electricity produced from any source, REC must carry out activities related exclusively to energy products based on renewable non-fossil sources).

Despite these differences, both configurations represent a form of «democratisation of the energy system»^[40], realised through two important factors: co-ownership of the means of production of renewable energy, and co-management of the means of distribution that allows users to be – at the same time – producers, consumers and managers of renewable energy.

Therefore, RECs, from the EU legislator point of view, represent «an effective and cost-efficient way to meet citizens’ needs and expectations regarding energy sources, services and local participation, as they represent. Community energy offers an inclusive option for all consumers to have a direct stake in producing, consuming or sharing energy», as they represent «an inclusive option for all consumers to have a direct stake in producing, consuming or sharing energy»^[41].

Finally, it should be noted that it would seem possible to detect a favour on the part of the EU legislator^[42] – as highlighted by the relevant literature^[43] – towards this instrument, providing, with reference instead to the CECs, that Member States are required to establish «regulatory framework for citizen energy communities (…)» (see art. 16 of Directive EU/2019/944); while, with regard to RECs, they must provide «enabling framework to promote and facilitate the development of renewable energy communities» which must, among other things, also guarantee the presence of a whole series of instruments aimed at supporting and facilitating the development of the RECs themselves (see art. 22(4) of Directive 2018/2001/UE).

Hence, an REC is an organisation of citizens, businesses, local authorities and others who freely and democratically take part in the production, management and exchange of renewable energy, thus enabling the latter to become protagonists in the energy system.

According to these considerations, therefore, it is possible to state that RECs are true vectors of the energy transition, being considered, first and foremost by the European legislator, an essential tool for the development of the production and use of renewable energy sources.

Lastly, such configurations represent the milestone of the energy transition, giving flexibility to the energy system through the decentralisation of production, as better explained infra.

2.1. Renewable Energy Communities in Italian legislation

The RED II Directive was definitively transposed in Italy through, inter alia, Legislative Decree No. 199/2021, which – also on the basis of what emerged from the experiments carried out during the so-called “transitional period”^[44] – innovated the main characteristics of the RECs, as well as instructing the Italian Regulatory Authority for Energy Networks and the Environment (Autorità di Regolazione per Energia Reti e Ambiente, “ARERA”), the Ministry of Environment and Energy Safety (“MEES”) and the Energy Services Operator (Gestore dei Servizi Energetici, “GSE”) to update, respectively, their regulations, the incentive regime, and the operating rules^[45].

The main innovations introduced by the aforementioned legislative decree essentially consist of (i) the extension of participation – in addition to natural persons, SMEs and territorial entities – to research and training, religious, third sector and environmental protection entities, (ii) the possibility of receiving an incentive on shared energy through plants with a capacity of up to 1 MW^[46], (iii) the connection of plants and utilities under the same primary cabin.

The resulting enlargement of the geographical perimeter, therefore, has made it possible to build plants capable of meeting the energy needs of much larger communities than those initially envisaged by the so-called “transitional regime”.

Another important innovation, as far as the accounting of virtually shared energy is concerned, is the fact that – thanks to the new regime – only the production of renewable energy of plants that are in the availability and under the control of RECs, which came into operation after the date of entry into force of Legislative Decree No. 199/2021, are taken into account^[47].

Finally, it is interesting to note that Article 14 of the same legislative decree defined specific criteria for coordination between the measures introduced by the National Recovery and Resilience Plan (hereinafter, the “NRRP”)^[48] and sectoral incentive instruments^[49].

2.2. The Energy Communities: scope of activities and members

Before going further into the analysis concerning the scope of activities and the actors that may participate in a REC, it must be considered that, under the TIAD, the more general configuration of the so-called “diffuse self-consumption” (autoconsumo diffuso) is expressed in several micro-categories of configurations with different characteristics and connotations, and in particular:

1. individual self-consumer of renewable energy ‘at a distance’ (autoconsumatore individuale di energia rinnovabili “a distanza”) using the distribution network (hereafter, as considered by the GSE Operating Rules, “Self-consumer at a distance”);
2. individual ‘remote’ renewable energy self-consumer with direct line (autoconsumatore individuale di energia rinnovabile “a distanza” con linea diretta);
3. group of self-consumers of renewable energy acting collectively (gruppo di autoconsumatori di energia rinnovabile che agiscono collettivamente) (hereafter, as considered by the GSE Operating Rules, “Self-Consumption Group”);
4. group of active customers acting collectively (gruppo di clienti attivi che agiscono collettivamente);
5. active ‘remote’ customer using the distribution network (cliente attivo “a distanza” che utilizza la rete di distribuzione);
6. Citizens Energy Community (i.e., the CEC); and
7. Renewable Energy Community (i.e., REC), the subject of this discussion.

For a full analysis of the above-mentioned typologies (see, in particular, (a), (b), (c), (d), (e), (f)), please refer to the relevant literature^[50], choosing to focus a more complete analysis on the subject of this discussion, i.e., RECs.

This having been said and considered, with reference to the activities that a REC can carry out, the applicable regulations emphasise, first and foremost, the role that these configurations take on in the electricity market, providing, in particular, that they can produce, store and share the electricity produced by the plants at the REC’s disposal, or, even more importantly, sell the surplus energy produced to the grid, also through sale and purchase agreements.

Therefore, RECs will be able to take on two important roles, namely (i) limiting themselves to acting as an aggregator of the various prosumers in order to maximise the profitability of the plants they hold (this thanks to access to the incentive schemes provided for by MEES Decree no. 414/2023^[51]), or (ii) take an active role within the energy market, qualifying itself as a producer in relation to the energy generated by the plants it owns (or of which it has availability), through (a) the sale of energy on the market or (b) by entering into special energy sales contracts (i.e., power purchase agreements^[52]) with market counterparties.

In addition, the priority role of the REC certainly remains that of valorising virtual self-consumption, since, by law, it plays the role of ‘referent’ and is therefore the party appointed to sign the agreements with the GSE, as well as to receive the benefits deriving from the incentive mechanisms and valorisation of virtual self-consumption.

However, Legislative Decree No. 199/2021 identifies additional services that Energy Communities will be able to perform while respecting – keep this in mind – the primary objective of providing environmental, economic and social benefits to their members and the community (certainly not that of making financial profits).

In this sense, the REC will be able to provide, among others, energy efficiency services and electric vehicle charging services.

Finally, with regard to the subjects, as partially already mentioned, Article 37(1)(b) of the aforementioned Legislative Decree defines the RECs as a «subject of autonomous law»^[53], and then provides a list of members that may exercise the power of control, namely (i) natural persons, (ii) SMEs (provided that participation in the ERCs does not constitute the prevailing commercial or industrial activity), (iii) territorial entities and local authorities (including municipal administrations), research and training entities, religious entities et similia.

In this respect, an important innovation was introduced by Decree-Law No. 13^[54] of 24 February 2023, which added «associations with legal personality under private law»^[55], i.e., recognised associations, to the previous list.

In light of the above, it is possible to identify essentially four fundamental roles that the actors involved in the operation of an REC may play, namely:

1. the consumer member of the REC;
2. the consumer-producer member of the REC (i.e. the prosumer);
3. the external producer who is not a member of the REC; and
4. an external entity that makes facilities or land available for the benefit of the non-member REC.

The aforementioned Decree has also specified that the Energy Community must consist of a legal entity of a collective nature subject to specific requirements concerning its establishment and operating conditions^[56].

Pursuant to the “autonomy requirement”, the REC must have a democratic structure, as recalled in Recital 71 of RED II, according to which «renewable energy communities should be capable of remaining autonomous from individual members and other traditional market actors that participate in the community as members or shareholders, or who cooperate through other means such as investment».

Finally, as far as it is of specific interest, a central element – as identified in Recital 70 of RED II – is the active involvement of citizens and local authorities in the definition of the governance policies of the REC itself^[57].

3. EU and Member States administrative cooperation in decision-making processes related to Renewable Energy Communities

As formerly implied, regulating REC already from the EU level entails surfing different policy areas sweeping over also administrative activities because of the effort to «recognise certain categories of citizen energy initiatives at the Union level as ‘citizen energy communities’»^[58] affecting, first of all, the right of participation in a procedure as a component of the governance of the energy market as a whole. As already clarified, REC are complex systems set in a multilevel legal context where “twin transition” are intertwined together. In this way the principle of sincere cooperation is a mainstay, both for EU and both for Member States, to «assist each other in carrying out tasks which flow from the Treaties»(art. 4 TEU)^[59] and facilitate the action of administrations^[60] «when dealing with cross-border issues»^[61] widening and deepening over the time as to reduce the national -based regulation of economic activities and fostering the internal market development^[62]. But actually, cooperation cannot be slightly taken for granted, specifically with the Green Deal on the background^[63]. There are several reasons for this, as to underpin the role of the Commission in cross-border situations, or to consider national implementation measures such as incentives.

To begin with, it is crucial ensuring that actions implemented by the MS by national measures in REC implementation are in full compliance with the EU law as to reach the full achievement of the goals of EU energy policies. But for climate neutrality, as the main goal of the Green Deal, it encompasses different measures achieving the decarbonisation and, on this path, energy is a strategic sector. As already clarified, REC are policy tools where the management and the regulation of the production are radically changed betting on renewable and clean energy sources and promoting new ways of distributions^[64].

Against this backdrop public authorities are called upon to foster this new way of production, monitoring its functioning. Indeed, assuring “energy needs” through public service may constitute the subject of a social right affecting also public interest^[65] at the local context carrying out services of general economic interest, but with positive benefits on a large scale for the community. Thus, administrative cooperation is surely a duty but it might also be seen as a resource «for the proper functioning of the Union»^[66]. For example, the Directive 2018/2001/EU on renewable energy specifically pushes «cross-border participation» as the natural corollary to the development of the Union renewable energy policy, fostering convergence and cooperation^[67] to contribute to the Union’s binding target. In this way, administrative cooperation is supposed to lead a complex legal scenario where also energy policy is to be integrated «in environmental protection across EU policies and activities is also mandated by Article 11 TFEU» ^[68] requiring, itself, cooperation between Member States and the EU, and between EU institutions, bodies and organisms. So, how the EU and Member States effectively meet its renewable energy targets? The Directive of 2019, for example, aims that the creation of a market framework that rewards flexibility and innovation would also be a the key factor enabling the uptake of renewable energy^[69].

Again, the Green Deal aspire to develop a fully integrated, interconnected and digitalised EU energy market so that the Commission is the steering institution which is expected to enforce, implement and monitor the Fit for 55 Strategy. This package is going to cover a wide range of policy areas, including energy efficiency, renewables, land use, energy taxation, effort sharing and emissions trading. Concretely, among many others duties, it is the EU Commission which must foster REC development among MS. Therefore, the Commission’s role of co-ordination, of encouraging good practices, and the role of energy regulators, starting with the EU regulator ACER, coordinating legislative action, to support a network that promote EU energy standards and technologies at global level. Hence, the principle of sincere cooperation can also represent “a fallback provision on which the Commission can rely to underpin its supervisory functions”^[70] and implies mutual duties, as recently recalled by the CJEU in a case related to environmental protection, Union de industries del la protection des plantes C- 514/19^[71]for EU institutions and bodies, as well as for Member States.

As has been well pointed out, REC are instruments for governing the energy and urban market, at the same way in which technical innovation can be a driving force for boosting their growth and efficient operation, assuring environmental protection among EU and Members; meanwhile they are assumed as a “paradigm of sustainability” serving as the foundation for self-consumption arrangement^[72]. Above all, REC pushes on the responsibility of the citizen as the person who, among other duties, is also entrusted with the various objectives of the energy transition. In particular, the energy efficiency undertaken through REC arises two main considerations. Firstly, it deals with the implementation by Member States of main targets of the Green Deal because of the lack of specific legislative acts providing binding measures and objectives as to comply with the ambitious goal of climate neutrality relying also on solidarity principle. The issue of implementation to be carried out by Member States is itself intertwined with administrative cooperation because of the composite-decision making procedures characterizing policy field of shared competence and requiring the active participation of both level, EU and MS, to be set. For example, energy community is often implemented through positive incentive schemes^[73], such as in Italy, which are based on the freedom of choice of the individual, who can receive financial subsidies for carrying out a certain action^[74]. As mentioned, the Decree 414/2023 merges 2 different types of incentives which can be also cumulated. Generally, the economic incentive is the benefit for having contributed to the pursuit of the public interest. Although, this aspect mainly concerns economic law and theories of regulation, it is not beyond the scope of administrative law considerations. Indeed, albeit the choice of this instrument is a specific expression of the procedural autonomy of the Member States, it can potentially lead to significant disparities in national energy markets with cross-border effects, which clearly also have an impact on the achievement of policy objectives in the energy sector at EU level. As explicated in the Directive 2019/944 Directive the energy market has to be «Competitive, consumer-centred, flexible and non-discriminatory»^[75]. Inevitably, this regulatory provision, although not characterized by direct effect, should bind the Member States in the sense of not implementing actions that might disadvantage also cross-border situations. In this way also cross-border cooperation is crucial^[76]; to make cross-border cooperation truly effective, under current legislation, principle of EU administrative law are to be relied upon. Even more, relying on principle of sincere cooperation may steer different administrations towards the right direction because it has to be applied also in internal situation^[77] and it can represent a support also to assure the full expression of the principle of good administration which has been recognised as a fundamental rights of EU citizens by art. 41 CDFEU^[78], so, it is surely applied in cross-border situation. In a nutshell, the principle of sincere cooperation it’s «a connection between administrative power»^[79] and it rather refers to procedural rights such as the duty to provide information about the implementation of the Directive which conforming the conduct of the administration (for specific aspects) cannot be formalised according to pre-established rules^[80], but they allow to reach the expected results so assuring an effective administrative action^[81]. This is the case of “binding overall Union target for 2030” set in the Directive 2018/2001 as part of their integrated national energy and climate plans in accordance with Regulation 2018/1999/EU^[82]. In other words, effectiveness^[83] thus refers to the proportionality of the administrative choice, in relation to a fully europeanised situation. Moving back to the Italian legal framework, the incentives provided for REC are the specific tool the national administration has introduced as to comply with the NRRP), M2C2 – “Renewable Energy, Hydrogen, Grid and Sustainable Mobility”.

The second critical point to be considered, instead, stems from the nature of the energy community. Thus, it is a model whose strength is likely based on the autonomy and responsibility of the community of reference. Again, it is a model of self-government that places the citizen at the centre of administrative action, starting from a bottom-up approach^[84] that cannot, however, be separated from being part of a multi-level regulatory context where the transnational dimension cannot be underestimated.

Actually, according to the dual role played by the prosumer as “consumer and producers”, or also as “regulator and addressee” of the regulation activity, two main issues are not to be undertaken for the implementation of the EU law.

First of all, the sincere cooperation must rely on the sharing of information^[85] with the REC and among them not only at the national level. Secondly, the sharing activities implies the creation of data repository and the fulfilment of personal data process requirements. Besides invest on data allows for improved administrative activities, both in terms of action and relations. Actually, it can be claimed that REC are a meaningful expression of the twin transition, representing not only a driver for the energy transition but are also part of a smart and sustainable city rooted on digital transition^[86]. For example, efficient electricity grid is already smart in itself and to improve its smartness it must also rely on data and digitalisation to be resilient^[87].

And on top of all of that, effective judicial protection of administered citizens is not only a concern with the system of administrative justice in the EU and integration between legal systems of MS, but rather an issue related to a new way of managing administrative power (shared with private actors in the REC), because a shortcoming of a strengthen cooperation is the “negative effects” on citizens protection against unlawful administrative decision^[88]. Therefore, it is also a matter of accountability and democratic control Indeed, it is the case of a decision taken after a negotiation with private parties or when decision are also the example of a practice of co-regulation applying standard not previously defined in a binding act. Another aspect follows: of course it is the authority which has adopted the binding act which could be taken into a Court; but in a multilevel governance, the national authority or the EU Commission may challenge a decision (and its effects), may adopt safeguard measures (for example according more protection to “vulnerable consumers”^[89]), may exercise powers of control or of withdrawal^[90], with a substantive undermining of the cooperation activities carried out with private parties with an impact on their legitimate expectations. As well, private parties can act some administrative powers too^[91].

Finally, the underlying challenge is to ensure that all citizens’ interests are met as direct parties of the decisional process and pillars of a REC. The latter is also a component of the development of a smart city really aimed at producing social value^[92], or directly providing services that improve energy efficiency. For example, Italian local authority must activate an energy management contract with the community^[93], likely aspiring to become examples of best practice also from the administrative perspective as to be reproduced in other contexts.

4. The EU administration as result-oriented towards the rights of future generations

To conclude some remarks can be drafted pursuant to the principle of sincere cooperation: it is a flexible principle, maybe underestimated^[94], which perfectly suits for REC and its activities as a part of smart cities development which encompasses both green and digital transition.

Of course, it is trustworthy to refer to environmental principles, but the core aim of this paper is that the sincere cooperation could act in a substantial way as to push the administrative action to be effective, matching its results^[95].

Specifically, according to articles 16 and art. 22 (6) of Directive 2018/2001/EU, Member States may provide in the enabling regulatory framework, that these communities are open to cross-border participation. Also significant is Recital 22 hoping a cross-border support for renewable energy not affecting national support schemes in a disproportionate manner.

As already mentioned, all these efforts are aimed at the transition to a more equitable, sustainable society, where present and next generations can enjoy a quality environment: shortly, to pave a better future for the future generation^[96]. On this purpose, insofar as climate change represents a natural and man-made catastrophe, it may represents a trigger for solidarity obligations under Article 222 TFEU^[97]. This principle, as well experimented in the Covid health crisis^[98] has often evolved to adapt to the needs of the moment and the risk society^[99]. Moreover, solidarity is also a value that would be addressed to future generations in a One Health perspective, as an integrated approach to health which recognizes the health of humans, domestic and wild animals, plants, and the wider environment (including ecosystems and its sustainability) are closely linked and interdependent^[100]. On this path it is worth to mention the principle of non-regression aimed at protecting the acquired level of environmental protection (in the perspective of climate neutrality) in order to allow for the protection of future generations too^[101]. Actually, all these considerations aim to show how bet on renewable energy sources in smart cities means also pursuit sustainability goals. As a matter of fact, the application of principle of non-regression is not defined at the EU level, even though already recognized at national level by some Member States^[102], it’s far from being simple if we assume that the achievement environmental sustainability faces transnational context relying upon multilayered sources and complex interrelationship^[103] among EU, Member States and Third countries. Therefore, being a source of inspiration^[104], principle of sincere cooperation is helpful as to carry out a result-oriented administrative action fostering new experiment in administration activity.

It can be argued that all the measures adopted from current generations, under the Green Deal strategy, are supposed to deeply consider the protection of future citizens, in an intergenerational perspective which aims to seriously tackle with climate neutrality, assuring a sustainable development. Therefore, REC would represent a specific tool which can pave the way to many other smarts means to support other protection requirements for citizens involved in energy market revision which also aimed at ensuring the affordability of supply for less advantaged people^[105]. For these reasons, administrative activity dealing with REC must also be oriented towards the effectiveness of its action involving for sure the public interest of climate neutrality as specified in the Green Deal strategy. Meanwhile, it aspires to the satisfaction of citizens’ needs, in a broader perspective embracing (among others) industrial policy and the market, that also looks to future generations. Clearly, principle of sincere cooperation pushes the administrative process, which enhance the development of REC^[106] in a smart sustainable city, and steer the administrative procedure in a multilevel playing field.

1. This article elaborates the speech delivered by the Authors at the roundtable “Charting the course towards smart cities” at Charles University – Prague on last 11^th October 2024. It represents also a deliverable of the Jean Monnet Module named “Public Administrations in the EU Energy Policies and Communities (101175226-PAEPeC)” ongoing at Department of Italian and Supranational Public Law of University of Milan. The idea here developed is the straightforward expression of a joint approach of the two Authors, through the interaction of points of view. The parts of the text, in each case, can be attributed as follows: Alessia Monica wrote §1; § 3; §4; Leonardo Scuto wrote §2; 2.1; 2.2. ↑
2. The definition of Smart City, in the EU and national perspective, is not univocal and is still in progress. See, among others, J.B. Auby, Droit de la ville. Du fonctionnement juridique des villes au droit à la Ville, II Ed., LexiNexis, Paris, 2016. M. Caporale, El régimen de las smart cities en Italia, in F. García Rubio (ed.), Las nuevas perspectivas de la ordenación urbanística y del paisaje: smart cities y rehabilitación Una perspectiva hispano-italiana, Fundación democracia y Gobierno LocaL, Barcelona, 2017, pp. 205-220. ↑
3. Definition of REC is better reported in the note No. 42 infra. ↑
4. C. Lauri, L’ordinamento giuridico della smart city, Jovene, Napoli, 2023, p. 44. ↑
5. L. Diestelmeier, The Role of Energy Communities in Facilitating Sustainable Energy Democracy, in R. Fleming, K. Huhta, L. Reins (ed.), Sustainable Energy Democracy and the Law, Brill, Leiden, 2021, p. 124. ↑
6. Regarding the functional legitimacy of EU and its administration see M. P. Chiti, La legittimazione per risultati dell’Unione europea quale “comunità di diritto amministrativo”, in Rivista italiana di diritto pubblico comunitario, 2, 2016, pp. 397-419. ↑
7. Paradigm, according to ancient Greek is composed of preposition παρα- «para-» and the verb δείκνυμι «show» and it is a synonymous of “model of declination”; “example”. ↑
8. C. Lauri, L’ordinamento giuridico della smart city, cit., p. 49. See also G. Carullo, Artificial Intelligence in smart cities for a dynamic and adaptive governance model, in J.B. Auby (ed.), Le future du droit administrative, Lexis Nexis, Paris, 2019, pp. 365-376. ↑
9. The University of Vienna tailored a functionalised concept of smart city developed on six main axis such as «smart cities, smart economy, smart mobility, smart environment, smart people, smart living, smart governance» https://www.smart-cities.eu/model.html. ↑
10. A. Barone, Il diritto del rischio, Giuffrè, Milano, 2006, p. 37. ↑
11. «Smart city is an order made between orders», C. Lauri, L’ordinamento giuridico della smart city, cit., p. 93. ↑
12. «Smart city is a system of systems»: M.J. Madison, M.R. Sanfilippo, B.M. Frischmann, Smart Cities and Knowledge Commons. in M.J. Madison, M.R. Sanfilippo, B.M. Frischmann (ed.), Governing Smart Cities as Knowledge Commons, Cambridge University Press, Cambridge, 2023, p. 12. ↑
13. R. Cavallo Perin, G. M. Racca, Smart Cities for an Intelligent way of Meeting Social Needs, in J.B. Auby, (ed.), Le future du droit administrative, cit., p. 437. ↑
14. M.J. Madison, M.R. Sanfilippo, B.M. Frischmann, Smart Cities and Knowledge Commons, cit., «The emphasis on public sector actors can be misleading. By design, smart city practices can be anchored in private sector activity, and they’re intended to shape personal and private lives as well as systems of public administration», p. 12. ↑
15. According to French language, it is also used the expression “ville intelligente” which is mainly characterised by the increased production and use of data that aims to enable the management of new urban environments, in a connected and digital way. M. De Gioia, Ville intelligente et médiation: réflexions linguistiques, in Cross-Media Languages Applied Research, Digital Tools and Methodologies, 2, 2024, p. 21. ↑
16. See Article 15., c.3 of Directive 2018/2001/EU. ↑
17. I. Bouhadana, The New Concept of smart Green Cities and Communities, in G. de Jesús Sierra Cadena (cord.), Derecho Administrativo y Ciudades Inteligentes, Editorial Universidad del Rosario, Bogotà, 2021, p. 117. ↑
18. J. Ziller, Advance Introduction to EU Law, Elgar, Cheltenham, p. 50. ↑
19. Referring to sustainable development need to quote the report of the United Nation, World Commission on Environment and Development of 1987 entitled Our common future (https://digitallibrary.un.org/record/139811?v=pdf). In the EU Law, sustainable development is codified in the art. 3 (3) of TFEU and art. 11 TFEU. Actually, sustainable development, as a dynamic concept, is considered the development that meets the needs of the present without compromising the ability of future generations to meet their own needs. See Agenda 2030 for Sustainable development setting 17 goals (https://sdgs.un.org/goals). ↑
20. See above note n. 19. ↑
21. P. D. Cameron, The consumer and the internal market in energy, in European law review, 1 2006, pp. 114-124. According to the Author, among many benefits for the consumer experimenting more competition in the market since Directive 96/92/CE concerning common rules for the internal market in electricity, it is worthwhile the lowering of energy prices. ↑
22. Since Costa v. Enel (Court of Justice, judgment, 15 July 1964, case 6/64, ECLI:EU:C:1964:66, concerning the nationalisation of the Italian electricity sector by Law No. 1643/1962 and well-known for the debate on the primacy principle, the governance of the energy sector has been an issue often debated in Courts. Specifically, in Comune di Almelo, (Court of Justice, judgment 27 April 1994, C-393/92, ECLI:EU:C:1994:171) the Court defined the energy as a “good”: «In Community law, and indeed in the national laws of the Member States, it is accepted that electricity constitutes a good within the meaning of Article 30 of the Treaty. Electricity is thus regarded as a good under the Community’ s tariff nomenclature (code CN 27.16). Furthermore, in its judgment in Case 6/64 Costa v ENEL [1964] ECR 1141 the Court accepted that electricity may fall within the scope of Article 37 of the Treaty», para 28. ↑
23. EU Commission, The European Green Deal, COM (2019) 640 final, 11 December 2019. ↑
24. «A smart sustainable city is an innovative city that uses ICTs and other means to improve quality of life, efficiency of urban operation and services, and competitiveness, while ensuring that it meets the needs of present and future generations with respect to economic, social, environmental as well as cultural aspects». ↑
25. Art 9 Cost., A. Lauro, Dalla tutela ambientale in Costituzione alla responsabilità politica (anche) verso le future generazioni? Detti e non-detti di un principio di origine giurisprudenziale, in Rivista di BioDiritto, 2, 2022. For a general overview see A. Donati, I principi a tutela delle generazioni future nel diritto dell’Unione europea, in Studi sull’integrazione europea, XIX, 2024, pp. 65-85. ↑
26. P. Lombardi, New challenges in the Evaluation of Smart Cities, in Network Industries Quarterly, 3, 2011, p. 9. ↑
27. The transition towards the use of renewable energy sources constitutes one of the key elements in the EU’s fight against climate change, as highlighted, among others, in the report on the “State of the Energy Union 2022”, referred to in the Report from the Commission to the European Parliament of 18 October 2022, COM(2022) 547 final. Over the years, in fact, the EU legislator has embarked on an important path of transforming general EU policy in a sustainable direction, in line with international commitments (e.g., Paris Agreement on Climate Change which was the first universal and legally binding global climate agreement, ratified by the EU on 5 October 2016). With this in mind, the Commission adopted in 2016 a set of legislative proposals on ‘Clean Energy for All Europeans package’ (better known as the “Clean Energy Package”), aimed at renewing EU energy law.For a full analysis in this sense, please refer to A. Grignani, Le comunità di energia rinnovabile: utile risorsa per il contrasto alla povertà energetica, in Ambiente e sviluppo, 2, 2022, p. 113. ↑
28. With reference to the notion of “energy consumer”, see L. Ruggeri, La protezione del consumatore energetico nel quadro regolatorio italo-europeo, in S. Monticelli, L. Ruggeri (a cura di), La via italiana alle comunità energetiche, Edizioni Scientifiche Italiane, Napoli, 2022; V. Caforio, Il consumatore energetico, in S. Monticelli, L. Ruggeri (a cura di), La via italiana alle comunità energetiche, cit., p. 83; C. Acosta, M. Ortega, T. Bunsen, et. al., Facilitating energy transition through energy commons: an application of socio-ecological systems framework for integrated community energy systems, in Sustainability, 2018, p. 366; L. Rossi Carleo, Il diritto dei consumi in Italia, in L. Rossi Carleo (ed.), Diritto dei consumi, Giappichelli, Turin, 2015. ↑
29. On this topic, among others, see E. Cusa, Sviluppo sostenibile, cittadinanza attiva e comunità energetiche, in Orizzonti del Diritto Commerciale, 1, 2020; R. Miccù, M. Bernardi, Premesse ad uno studio sulle Energy communities: tra governance dell’efficienza energetica e sussidiarietà orizzontale, in Federalismi.it, 4, 2022; E. Ferrero, Le Comunità Energetiche: ritorno a un futuro sostenibile, in Ambiente & Sviluppo, 2020, p. 677; C. Bevilacqua, Le Comunità Energetiche tra governance e sviluppo locale, in Amministrazione in cammino, 1, 2020. ↑
30. A. Coiante, Le comunità energetiche rinnovabili nel quadro giuridico europeo e nazionale: un’occasione per ripensare l’ambito di operatività del silenzio assenso in materia di incentivi economici per la produzione di energia, in Diritto e Società, 4, 2022, p. 735 (the translation is made by the Authors).In the same sense, see A. Persico, Le comunità energetiche e il ruolo sussidiario delle pubbliche amministrazioni territoriali. Moduli e strumenti a disposizione delle pubbliche amministrazioni per favorire la costituzione e le attività delle comunità di energia rinnovabile, in Ambiente-Diritto.it, 2, 2022. ↑
31. Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on “the promotion of the use of energy from renewable sources”. ↑
32. Legislative Decree of 8 November 2021, No. 199 on “Implementation of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources”. ↑
33. Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on “common rules for the internal market for electricity and amending Directive 2012/27/EU”. ↑
34. Italian Legislative Decree of 8 November 2021, No. 210 on “Implementation of the EU Directive 2019/944 of the European Parliament and of the Council of 5 June 2019 concerning common rules for the internal market in electricity and amending Directive 2012/27/EU, as well as laying down provisions for the adaptation of national legislation to the provisions of EU Regulation 943/2019 on the internal market in electricity and EU Regulation 941/2019 on risk preparedness in the electricity sector and repealing Directive 2005/89/EC”. ↑
35. This concept has been defined by Art. 2(11) of Directive UE/2019/944, according to which it is a legal entity that «(a) is based on voluntary and open participation and is effectively controlled by members or shareholders that are natural persons, local authorities, including municipalities, or small enterprises; (b) has for its primary purpose to provide environmental, economic or social community benefits to its members or shareholders or to the local areas where it operates rather than to generate financial profits; and (c) may engage in generation, including from renewable sources, distribution, supply, consumption, aggregation, energy storage, energy efficiency services or charging services for electric vehicles or provide other energy services to its members or shareholders».In this regard, see M. F. Lucente, La comunità energetica dei cittadini, in La via italiana alle comunità energetiche, in S. Monticelli, L. Ruggeri, La via italiana alle comunità energetiche, cit., p. 49. ↑
36. Further fundamental definitions, relevant to the matter at stake, are that of “self-consumers of renewable energy acting individually” and that of “self-consumers of renewable energy acting collectively”. On this point, see §2.2. below. ↑
37. In this regard, among others, see E. Cusa, Il diritto dell’Unione europea sulle comunità energetiche e il suo recepimento in Italia, in Rivista trimestrale di diritto dell’economia, 2, 2020, p. 287. ↑
38. It should be noted in this respect that the REC must be controlled by shareholders or members located in the vicinity of the renewable energy production facilities owned and developed by the REC itself. In contrast, this requirement does not seem to apply to CECs. ↑
39. In this regard, see Recital 71 of RED II, according to which «The specific characteristics of local renewable energy communities in terms of size, ownership structure and the number of projects can hamper their competition on an equal footing with large-scale players, namely competitors with larger projects or portfolios. Therefore, it should be possible for Member States to choose any form of entity for renewable energy communities, provided that such an entity may, acting in its own name, exercise rights and be subject to obligations. To avoid abuse and to ensure broad participation, renewable energy communities should be capable of remaining autonomous from individual members and other traditional market actors that participate in the community as members or shareholders, or who cooperate through other means such as investment. Participation in renewable energy projects should be open to all potential local members based on objective, transparent and non-discriminatory criteria. Measures to offset the disadvantages relating to the specific characteristics of local renewable energy communities in terms of size, ownership structure and the number of projects include enabling renewable energy communities to operate in the energy system and easing their market integration. Renewable energy communities should be able to share between themselves energy that is produced by their community-owned installations. However, community members should not be exempt from relevant costs, charges, levies and taxes that would be borne by final consumers who are not community members, producers in a similar situation, or where public grid infrastructure is used for those transfers». ↑
40. On this concept see M. Meli, Autoconsumo di energia rinnovabile e nuove forme di energy sharing, in Nuove leggi civ. comm., 3, 2020, p. 633; M.A. Heldeweg, S. Saintier, Renewable energy communities as “social-legal institution”: a normative frame for energy decentralisation?, in Renewable and Sustainable energy reviews, 1, 2020, p. 119; A. Maestroni, M. De Focatiis (ed.), Politica energetica, regolazione e mercato. Il nuovo diritto dell’energia tra libertà e limitazioni concorrenziali e ambientali, Giuffrè, Milan, 2012. ↑
41. Recital No. 43 of RED II. ↑
42. This means that, according to the applicable the EU legislation, as considered in this paper, RECs may include a wider range of actors who are able to participate. In this regard, a confirmation of the above is offered by the definition set forth in Article 2, par. 16 of the RED II, pursuant to which ‘Renewable Energy Community means a legal entity «(a) which, in accordance with the applicable national law, is based on open and voluntary participation, is autonomous, and is effectively controlled by shareholders or members that are located in the proximity of the renewable energy projects that are owned and developed by that legal entity; (b) the shareholders or members of which are natural persons, SMEs or local authorities, including municipalities; (c) the primary purpose of which is to provide environmental, economic or social community benefits for its shareholders or members or for the local areas where it operates, rather than financial profits». ↑
43. On this topic, among others, see the various contributions in L. Cuocolo, P. P. Giampellegrini, O. Granato, Le comunità energetiche rinnovabili, Egea, Milano, 2023. ↑
44. With reference to the previous “transitional regulation”, implemented by the national legislator pending the full transposition of the relevant Directives, Article 42-bis of Law Decree No. 162/2019 is of vital importance. For a full analysis in this sense, see G. Argirò, L’evoluzione del quadro normativo europeo e italiano sulle comunità energetiche rinnovabili, in L. Cuocolo, P. P. Giampellegrini, O. Granato, Le comunità energetiche rinnovabili, cit., p. 19. ↑
45. Reference is made to the (i) ARERA Regulation named “Testo Integrato Autoconsumo Diffuso – TIAD” (hereafter, “TIAD”), (ii) MEES Decree No. 414 of 7 December 2023, and (iii) GSE Operating Rules of April 2024 named “Decreto CACER e TIAD – Regole operative per l’accesso al servizio per l’autoconsumo diffuso e al contributo PNRR”. ↑
46. It should be noted that the National Recovery and Resilience Plant, M2C2 – “Renewable Energy, Hydrogen, Grid and Sustainable Mobility”, envisages 2.2, billion euros specifically for the promotion of renewable energy source for RECs and for self-consumption. The aim is to transpose the RED II Directive more effectively. ↑
47. Provision has also been made for the possibility of extending the REC to existing RES-fuelled power generation plants, i.e. those that came into operation before the decree came into force, as long as they do not exceed 30 per cent of the total power output of the community. ↑
48. Italian NRRP (Piano Nazionale di Ripresa e Resilienza), https://www.italiadomani.gov.it/content/sogei-ng/it/en/home.html. ↑
49. See in particular what is specified in paragraph 1(e) of the regulatory provision in question, pursuant to which «in implementing the measures Mission 2, Component 2, Investment 1.2 “Promotion of renewables for energy communities and self-consumption”, criteria and procedures are defined for the granting of interest-free financing of up to 100 per cent of eligible costs, for the development of energy communities, as defined in Article 31, in small municipalities through the construction of RES production plants, including those combined with energy storage systems. The same decree defines the conditions of cumulability with the tariff incentives under Article 8». ↑
50. See, among others, M. Bernardi., L. Tricarico, Commoning e comunità energetiche: approcci di citizen science nella produzione distribuita d’energia, in Munus, 3, 2021; C. Bevilacqua, Le Comunità Energetiche tra governance e sviluppo locale, in Amministrazione in cammino, 1, 2020. ↑
51. With reference to the incentive scheme, it is useful to bear in mind what is indicated – as to definitions – by the Ministerial Decree at stake, and in particular by Article 2 under which the «self-consumption configurations for sharing renewable energy» are represented by one of the configurations referred to in letters e), f) and g) of the same rule, which use the existing distribution network to share the energy produced by renewable energy plants, and in particular:e) Individual Remote Renewable Energy Self-Consumption Systems: «systems that provide for the remote self-consumption of renewable electricity by an individual end-customer, without the use of a direct line, using the existing distribution network to connect production sites and consumption sites, pursuant to Article 30, paragraph 1, letter a), number 2.2 of Legislative Decree No. 199 of 2021». This is the Autoconsumer Distance;f) Collective self-consumption systems from renewable sources: «systems implemented by groups of self-consumers acting collectively pursuant to Article 30(2) of Legislative Decree No. 199 of 2021». This refers to the group of self-consumers;

    g) Renewable Energy Communities: «systems implemented by end customers pursuant to Article 31 of Legislative Decree No. 199 of 2021». These are CERs, in fact (the translation is made by the Authors). ↑

52. On this topic, among others, see U. Tedeschi, P. De Angelis, Project financing: uno strumento “alternativo” per finanziare grandi opere, in Amministrazione&Finanza, 15-16, 1998, p. 48; A. Ponzio, A. Palumbo, I rischi climatici e la loro rilevanza nell’informativa finanziaria, in Bilancio e revisione, 3, 2024, p. 19. ↑
53. The translation is made by the Authors, in Italian “soggetto di diritto autonomo”. ↑
54. Enacting «Urgent provisions for the implementation of the National Recovery and Resilience Plan (NRRP) and the National Plan for Complementary Investments to the NRP, as well as for the implementation of cohesion policies and the Common Agricultural Policy» (the translation is made by the Authors). ↑
55. The translation is made by the Authors, in Italian “associazioni con personalità giuridica di diritto privato”. ↑
56. On this point, see Study No. 38-2024/I prepared by the National Council of Notaries, and in particular by E. Cusa, Le incentivate comunità energetiche rinnovabili e il loro atto costitutivo, in CNN Notizie, 57, 2024, p. 1. ↑
57. In this regard, it is worth noting the provisions of Article 32(b)(1) of Legislative Decree No. 199/2021, pursuant to which the end customers organised in a REC «may withdraw at any time from the self-consumption configuration, without prejudice to any fees agreed upon in the event of early withdrawal for the sharing of the investments incurred, which must in any event be fair and proportionate» (the translation is made by the Authors). ↑
58. Recital 43, Directive 2019/944/EU. ↑
59. See also art. 13 (2) TEU. ↑
60. L. Parona, Addressing the interplay between competition law and data protection law in the digital economy through administrative cooperation: the CJEU judgment in the Meta Platforms case, In Italian Journal of Public Law, 1, 2024, p. 254. ↑
61. M. Lottini, From ‘Administrative Cooperation’ in the Application of European Union Law to ‘Administrative Cooperation’ in the Protection of European Rights and Liberties, in European Public Law, 2012, 1, pp. 127-128. ↑
62. Commission Recommendation 2009/524/EC of 29 June 2009 on measures to improve the functioning of the single market. ↑
63. E. Chiti, Managing the ecological transition of the EU: The European Green Deal as a regulatory process, in CMLR, 1, 2022, pp. 39-42. ↑
64. D. Bevilacqua, E. Chiti, Green deal. Come costruire una nuova Europa, il Mulino, Bologna, 2024, p. 48. ↑
65. D. Sorace, Il servizio d’interesse economico generale dell’energia elettrica in Italia tra concorrenza ed altri interessi pubblici, in Diritto pubblico, 3, 2004, p. 1010. ↑
66. 197 TFEU. See, among others, F. Lafarge, Administrative cooperation between member states and implementation of EU law, in European public law, 4, 2010, pp. 597-616. ↑
67. Optional cooperation mechanism between Member States were already present since the Directive 2009/28/CE as to facilitate the achievement of set target. See, M. M. Roggenkamp, C. Redgwell, A. Rønne, I. Del Guayo, Energy Law in Europe, III Ed., Oxford university Press, Oxford, 2016, p. 325. ↑
68. R. Lanceiro, Mechanisms of Transnational Administrative Cooperation Under the EU Environmental Law, in Italian Journal of Public Law, 2024, n. 2, p. 343. ↑
69. Recital 9 Directive 2019/944/EU. ↑
70. C. Harlow, R. Rawlings, Process and Procedure in EU Administration, Hart Publishing, Oxford, 2014, p. 40. ↑
71. Court of Justice, 8 October 2020, case C-514/19 Union des industries de la protection des plantes, ECLI:EU:C:2020:803, para 49. ↑
72. A. Giordano, Le comunità energetiche nell’era della sostenibilità, in CERIDAP, Special Issue 3, 2024, pp. 39-55. ↑
73. P. Lehmann, E. Gawel, Why Should Support Schemes for Renewable Electricity Complement the EU Emissions Trading Scheme?, in Energy policy 52, 2013, pp. 597–607. ↑
74. C. Cambini, A. Manganelli, A. Nicita, G. Napolitano (ed.), Economia e diritto della regolazione, Il Mulino, Bologna, 2024, p. 84. ↑
75. Article 1 Directive 2019/944/EU. ↑
76. Specifically, it is a duty of regulatory authorities of Member States cooperating in regard to cross-border issues with ACER. See articles 58 and 59 Directive 2019/944/EU. ↑
77. F. Battaglia, Il principio di leale cooperazione nel Trattato di Lisbona. Una riflessione sulle vicende legate al recesso del Regno Unito dall’Unione europea, in Federalismi.it, 19, 2020, p. 33. ↑
78. Court of Justice, 8 October 2020, case C-514/19, Union des industries de la protection des plantes, cit., para 50. ↑
79. P. Marzaro, Leale collaborazione e raccordo tra Amministrazioni; su un principio del sistema a margine delle ‘riforme Madia, in Federalismi.it, 23, 2017, p. 13 (the translation is made by the Authors). ↑
80. Id., 13 (the translation is made by the Authors). ↑
81. See, Court of Justice, 25 May 1982, Case 96/81 Commission v. Netherlands, ECLI:EU:C:1982:192, para 7. ↑
82. Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action. ↑
83. G. Corso, M. De Benendetto, N. Rangone, Diritto amministrativo effettivo, Il Mulino, Bologna, 2022; A. Monica, Open Data and Composite Procedures: Strengthen the Quality and the Effectiveness of Administrative Activity, in AUC IURIDICA, 2, 2024, p. 50. ↑
84. G. Balduzzi, Cambiamento istituzionale e organizzativo: verso un approccio multidimensionale, in D. Fromage (ed.) in Jacques Ziller: an European scholar, EUI, Fiesole, 2022, pp. 202-215. ↑
85. D.U. Galetta, H. Hofmann, J.P. Schneider, Information Exchange in European Administrative Union, in European Public Law, 20, 2024, p. 89. ↑
86. COM (2022), 289 def, Strategic Foresight Report Twinning the green and digital transitions in the new geopolitical context. ↑
87. E Chiti, B. Marchetti, N. Rangone, L’impiego di sistemi di intelligenza artificiale nelle pubbliche amministrazioni italiane: prove generali, in BioLaw Journal, 2, 2022, p. 500. ↑
88. H. Hofmann, Composite Decision Making Procedures in EU Administrative Law, in H. Hofmann, A. H. Turk (ed.), Legal Challenges in EU Administrative Law, Edwar Elgar, Cheltenham, 2009, p. 136. ↑
89. See art. 28 Directive 944/2019/EU. ↑
90. L. De Lucia, Strumenti di cooperazione per l’esecuzione del diritto europeo, in L’amministrazione europea e le sue regole, Il Mulino, Bologna, 2015, p. 193. ↑
91. See Italian l. 241/90, art. 1, par. 1-ter. ↑
92. Smart cities show new experiments in local governance relying also on public-partnership to implement new strategies opening also new legal challenges. «Actors are pushing the boundaries of collaboration and consultation, beside competition, even further than in a traditional public private partnership to create a sense of community around a local project, connected to a wider web of European cities», in Y. Marique, S. Van Garsse, Setting up public- private partnerships in smart cities, in J.B. Auby (ed.), Le future du droit administrative, Lexis Nexis, Paris, 2019, p. 362. ↑
93. For example, both for plants that transfer all the energy produced to the electricity grid, and for plants in partial transfer combined with self-consumption, the local authority must activate an energy management contract in order to receive the value of the energy fed into the grid. See Vademecum ANCI per i comuni, April 2024, https://www.anci.it/wp-content/uploads/CACER_Vademecum_ANCI-240412-corretto-stampa.pdf. ↑
94. F. Lafarge, Administrative cooperation between member states and implementation of EU law, cit. p. 611. ↑
95. Italian Constitutional Court, judgment 27 July 1992, n. 379. ↑
96. R. Bifulco, Diritto e generazioni future, Franco Angeli, Milano, 2008; A. Donati, I principi a tutela delle generazioni future nel diritto dell’Unione europea, in Studi sull’integrazione europea, 1, 2024, pp. 65-85. ↑
97. A. Donati, I principi a tutela delle generazioni future nel diritto dell’Unione europea, cit., p. 79. ↑
98. EU Commission, Europe’s moment: Repair and Prepare for the Next Generation, COM (2020) 456, 27 May 2020. ↑
99. Court of Justice, judgment 16 February 1982, case 276/80 Ferriera Padana, ECLI:EU:C:1982:57, para 27; Court of Justice, judgment, 5 May 2022, C‑405/20 BVAEB, ECLI:EU:C:2022:347, para 56. Substantially, the CJEU is called upon to examine if some ‘social balancing’ tools, affecting companies, firms or individuals, which are intended to prevent an excessive large gap opening up between different groups in the same sector, are not discriminatory measures. ↑
100. A. Latino, Il paradigma One Health nell’ordinamento internazionale: un’analisi critica di origini, protagonisti, strumenti normativi, in Corti supreme e salute, 3, 2022, pp. 779-808. ↑
101. M. Prieur, L’émergence du principe de non régression ou l’illustration du rôle de la doctrine dans la création du droit de l’environnement, in Rivista Quadrimestrale di diritto dell’ambiente, 2, 2021, p. 27. ↑
102. M. Calabro, L’ambiente quale diritto fondamentale a titolarità diffusa, in Persona e Amministrazione, 2, 2024, 501-536. ↑
103. M. Antonioli, Lessons on Sustainable Development in EU Law, Aracne, Roma, 2020, p. 19. ↑
104. C. Harlow, R. Rawlings, Process and Procedure in EU Administration, cit., p. 41. ↑
105. C. Armeni, What justice? The scope for public participation in the European Union Just Transition’, in Common Market Law Review, 4, 2023, pp. 1027-1054. ↑
106. Recital 39 Directive 2018/2001/CE. ↑