Key Components of Legal Framework

• 1. Ownership and access to geothermal resources

• 1.1 What are the rules on ownership of geothermal resources? Can private parties hold ownership of geothermal resources?

  Ownership of natural resources, including geothermal, is governed by the Italian Civil Code, namely: - Article 826, para. 2, provides that: “The forests that by applicable laws constitute the forested domain of the State, mines, quarries and turf pits when their disposability is taken from the owner of the land […] are part of the non-disposable patrimony of the State”. 

  Article 840, para. 1, provides that: “Ownership of the soil extends to the subsoil, with all that is contained therein, and the owner can perform any excavation or work that does not cause harm to a neighbor. This provision does not apply to that which is the object of laws on mines, quarries and turf pits [...]”. 

  Article 1, para. 6, of Legislative Decree No. 22/2010, provides that geothermal resources qualify as mineral resources that fall under the non-disposable patrimony of the Italian State or of the relevant region depending on the national or local interest of such resources. 

  Private ownership of geothermal resources is not permitted.

• 1.2 Who can grant access to geothermal resources, only state or also landowner?

  Only the Italian State can grant access to geothermal resources.

• 1.3 Is exploration/exploitation open to foreign investment?

  Yes. Even if Italian companies own the majority of geothermal power plants, the exploration and exploitation of geothermal resources are open to foreign investment.

• 2. Involvement of administrative bodies

• 2.1 Which administrative bodies (ministry and/or governmental agencies) are involved in the licensing of geothermal resources, including licensing and developing?

  According to article 1, par. 7 of the Legislative Decree of 11 February 2010 no. 22, as amended from time to time, the administrative bodies involved in the licensing of geothermal resources of national and local interest, are the Regions or other entities delegated by the former which are entitled also to carry out monitoring and surveillance activities.

  Should the geothermal resources be founded in territorial see and/or in the Italian continental shelf, the above competencies pertain to the Ministry of the Economic Development jointly with the Ministry of the Environment and for Protection of the Land and Sea, in concert with the competent Region.

• 2.2 Do administrative bodies assign any of their respective roles to a third party, including but not limited to a peer review, during the period of exploration, exploitation and/or production of geothermal resources?

  It seems that there are no provisions in this respect under the Legislative Decree of 11 February 2010 no. 22.

• 2.3 Is there a government policy in place concerning geothermal resources? If so, what is the object and to what end?

  The development of geothermal resources is one of the topic addressed by the 2017 National Energy Strategy (“SEN – Strategia Energetica Nazionale 2017”) adopted by ministerial decree of the Ministry of the Economic Development jointly with the Ministry of the Environment and for Protection of the Land and Sea, of 10 November 2017.

  Pursuant to the 2017 SEN, the main goal is to achieve the production of 30% of thermal renewable energy sources (compared to the 19,2% in 2015).

• 3. Allowed Exploitation

• 3.1 Is exploitation of resources subject to licensing? Do landowners have the right to exploit recourses without a license? If yes, to what extent?

  Yes, the exploitation of geothermal resources is subject to a specific license. Article 6 of Decree No 22/2010 sets out the procedure to obtain a license, which entails the involvement of all the authorities concerned (e.g. the Ministry for the Environment, Land and Sea, the Ministry of Economic Development and the local authorities). The license also includes the final approval of the works program and the geothermal project. 

• 4. Role and voice of landowner or “project affected people” in the licensing procedure and land lease agreements

• 4.1 Does the landowner or any “project affected people” have a role in the process of granting a license for:
     (i) exploration,
     (ii) exploitation, and
     (iii) power plant (generation license)?

  Yes. In general, landowners are entitled to submit comments and observations in the procedure to obtain licenses for geothermal projects, which the authority must take into account.

• 4.2 Will an opposition of a landowner or any “project affected people” have a bearing on the process of granting a license for:
     (i) exploration,
     (ii) exploitation, and
     (iii) power plant (generation license)?

  Opposition of a landowner does not have direct bearing on whether a license is granted. However, the authorities may take any negative comments and observations into account and, as a consequence, amend the project in question. Finally, pursuant to Article 15 of Legislative Decree No. 22/2010, the works necessary for the exploration and the exploitation of geothermal resources qualify as of public utility, and, therefore the expropriation procedure under Presidential Decree No. 327/2001 can take place, if necessary.

• 4.3 Are the terms of land lease agreements regulated and if so, (i) what is a general timeframe of land lease agreements and (ii) what are the obligations for decommissioning at the end of the term?

  No provisions dealing with land lease agreements are provided under Legislative Decree of 11 February 2010 no. 22. Lease agreements are regulated under the Italian Civil Code and most of the relevant terms and conditions are agreed between the parties.

• 5. Criteria for granting of a license

• 5.1 Which documents need to be submitted and what is the criteria for obtaining a license for:
     (i) exploration,
     (ii) exploitation, and
     (iii) power plant (generation license)?

  (i) exploration: Article 7 of Presidential Decree No. 395/1991 stipulates that the following documents have to be submitted with the application:

  • a certificate attesting the applicant's nationality or, in case of a company, its memorandum and articles of association;
  • a detailed description of the geographical boundaries of the required area;
  • the works programme; and
  • a technical report that sets out the experience the applicant has in mining, especially geothermal energy extraction.

  (ii) exploitation: Article 34 of Presidential Decree No. 395/1991 and Article 12 of Presidential Decree No. 485/1994 sets out which documents must be submitted: 

  a) Under Article 34, the documents required by the abovementioned Article 7 of Presidential Decree No. 395/1991 must be submitted:

  • a certificate attesting the applicant's nationality or, in case of a company, a copy of its memorandum and articles of association;
  • a detailed description of geographical boundaries of the required area;
  • the works programme; and
  • a technical report that sets out the experience the applicant has in mining, especially in geothermal energy extraction.

  b) Under Article 12, the following documents are required:

  • a technical report and of the works programme;
  • the geothermal project;
  • the evaluation study of the environmental changes that the planned activities involve or may involve over time; and
  • the restoration works programme.

  (iii) power plant: The same documents as those required for an exploitation license must be submitted.

  The criteria that must be met to be granted any of the licenses includes: a comprehensive works program, including full details of geological studies and geochemical and geophysical surveys; details of how the geothermal works will be carried out, particularly with regard to safety, mitigating measures, and environmental protection; and evidence of the applicant’s ability to complete geothermal works properly. Furthermore, the applicant is obliged to restore the sites after completion of the project and provide a suitable financial or insurance guarantee.

• 6. Duration of Licenses and Renewal

• 6.1 What is the maximum duration of a license for:
     (i) exploration,
     (ii) exploitation, and
     (iii) power plant (generation license)?

  (i) exploration: Exploration license has a duration of 4 years, which can be extended by 2 years on request (Article 4 of Legislative Decree No. 22/2010).

  (ii) exploitation: Exploitation license has a duration of 30 years (Article 8 of Decree No 22/2010).

  (iii) power plant: The maximum duration of a power plant license is not limited by law. We assume that the maximum duration is 30 years, as for an exploitation license considering that the power plant license is included in the exploration license.

• 7. Terms of License

• 7.1 What are the general terms of the license for:
     (i) exploration,
     (ii) exploitation, and
     (iii) exploration drilling and other drilling,
     (iv) power plant (generation license)?

  No general terms for any of the licenses are provided by law.

• 7.2 Are exploration license holders granted pre-emptive rights with regards to exploitation or do exploration licenses automatically convert into exploitation licenses if the resource has been substantiated? If so, are there any conditions?

  Exploration license holders have pre-emptive rights to obtain the related exploitation license.

  An exploration license holder that finds geothermal resources must promptly inform the authority, which must publish the national or regional interest in the resource. In this case, the exploration license holder has some pre-emptive right over other competitors to apply for the exploitation license for the geothermal resources, which must be exercised within six months from the above publication (Article 8 of Decree No 22/2010). Competitors are entitled to apply for the license if the pre-emptive right is not exercised.

• 7.3 Is an exploitation license included in a power plant license or are these licenses separate?

  The power plant license is included in the exploitation license.

• 7.4 Are there any encumbrances in place for the licence holder to keep a license, once granted?

  Pursuant to art. 16 of Legislative Decree No. 22/2010:

  • the holder of the exploration license shall correspond to the competent authority an annual fee amounting at Euro 325 per each square kilometer;
  • the holder of the exploitation license shall correspond to the competent authority an annual fee amounting at Euro 650 per each square kilometer.

  More in general, note that the license holder is required to always comply with the provisions set forth under the relevant exploitation license, on pain of revocation of the same license.

• 8. Termination and revision of licenses

• 8.1 What actions by the license holder would warrant revision of exploration-, exploitation- and power plant (generation) licenses?

  The license holder may request revisions, especially in case of prorogation, amendments to the works programme, extension or reduction of the areas involved, and transfer of the license to a third party. 

  The applicable law only provides for circumstances that can be invoked by the license holder to obtain a revision of the same license. There are no specific circumstances that lead the license granting authority to autonomously review the license.

• 8.2 Does the license granting authority license have the power to revoke or terminate licenses? If yes, what actions of the license holder would warrant the termination of the license?
     (i) exploration license,
     (ii) exploitation license,
     (iii) power plant (generation license)?

  Under Legislative Decree No. 22/2010, the granting authority has the power to revoke or terminate a license when:

  1. a geothermal regional resource upgrades to national level and the geothermal license holder does not have the economic or technical means required for the project; or
  2.  the license holder:
     1. does not exploit the site for at least two years;
     2. does not start works within the established term;
     3. does not complete the works program or the geothermal project in accordance with the license or the established deadlines;
     4. does not timely pay the concession fee;
     5. transfers the license, totally or partially, without the authorization of the authority;
     6. fails to fulfil its obligations under the license; or fails to comply with Legislative Decree No. 22/2010.

• 8.3 Can the license granting authority set forth conditions into licenses which provide for (i) stricter terms and conditions of licensees or (ii) more lenient terms and conditions for licensees, when such terms and conditions (whether stricter or more lenient) are not otherwise provided for by law?

  In certain cases, it happens that the License Granting Authority provides for additional terms and conditions in respect to those provided for by law (e.g. during the environmental impact assessment procedure, the License Granting Authority can impose prescriptions in order to protect the environment other than the standard prescriptions provided for by law).

• 8.4 What remedies does the License granting authority have in order to enforce compliance to the terms and conditions of a license, other than by revoking the license?

  Before adopting the revocation measure, the License Granting Authority requests the owner of the license to duly fulfil the relevant prescriptions and provides a deadline to do so.

• 9. Regulatory and information obligation

• 9.1 Briefly outline the surveillance carried out by the regulatory authorities during the license period, e.g. with regards to reporting duties and/or on-site visits.

  In general, any authority or other entity that authorises geothermal projects is entitled to monitor the progress of the project, including through site visits, and has the power to punish breaches of the obligations.  

• 9.2 Which information is required to be submitted to regulatory authorities during the license period for the holder of a license for:
     (i) exploration,
     (ii) exploitation,
     (iii) power plant (generation license)?

  (i) exploration: Under Article 27 of Presidential Decree No 395/1991, the license holder must provide the competent authority with (i) all the economic and technical information about the project, including the executive program before the beginning of the exploration of geothermal resources / drilling of the wells (Articles 15–16); (ii) the milestones at the expiration of each calendar quarter (Article 18); (iii) the discovery of geothermal resources within 15 days from the same discovery (Article 21), and (iv) the discovery of hydrocarbons as soon as the discovery occurs (Article 23).

  (ii) exploitation: Under Article 57 of Presidential Decree No. 395/1991, the license holder must provide the authority all the economic and technical information about the project. Furthermore, the holder must inform the competent authority about the works completed and provide details regarding the energy production.  In particular, under Article 45 of Presidential Decree No. 395/1991, every 20th of each month, the license holder has to submit the above information and provide the above details. 

  In addition to the abovementioned monthly communications, the holder of the license must provide technical and economic information required by the License Granting Authority at any time.

  (iii) power plant: The same information as that required for an exploitation license must be submitted.

  Please note that the license can set out other duties that must be fulfilled.

• 10. Power purchase agreements

• 10.1 Are general terms and conditions, such as duration of Power Purchase Agreements regulated? If no, are there any soft law or general recommendations in place in your jurisdiction?

  The terms and conditions of PPAs are agreed between the producer and the PPA purchaser in the contract, which must respect Italian civil law. PPAs must also comply with the provisions set out in the resolution of the Italian Regulatory Authority for Electricity, Gas and Water (AEEGSI) No. 111/2006 and the recent Resolution No. 444/2016, which regulate the main aspects of the PPA (the fee, the obligations of the parties, the mismatches discipline).

  If the producer enters into a simplified purchase and resale arrangement (RID) with the GSE (Gestore Servizi Energetici), the RID is valid for one year and automatically renews each year. The price GSE pays is equal to the hourly price of the area where the power plant is located. All other conditions applicable to the RID are set out in AEEGSI Resolution No. 280/2007. 

• 10.2 What is the permitted or general duration of PPA's?

  The general duration of a PPA is one year and can be renewed.

• 10.3 Are public and/or national regulatory authorities involved in any way in forming the terms of PPA's, either directly or indirectly?

  Please see above.

• 11. Incentives

• 11.1 Is there any governmental support or funding available for exploration activities?

  The Legislative Decree No. 22/2010 does not provide any specific provisions which relate to the support/funding of exploration activities. However, the Italian government, in the context of the international Conference of Parties COP21, undertakes to enforce/enlarge the State commitment in financing R&D activities in the field of clean energy technologies (including geothermal sources).

  In addition to the above, R&D activities are incentivized at European level in the context of the co-financing provided by the Geothermica initiative. The latter, implementing a joint call for proposals, attempts to accelerate research and innovation on utilization of geothermal energy within the context of Horizon 2020 program. In 2017, the first joint call in Europe has been co-funded by the European Commission and the financial resources made available amounted at 32.8 billion euro.

• 11.2 Are there any incentives offered by the government or local authorities for utilization of geothermal energy? If yes, in what form (e.g. tax and/or feed-in tariffs) and what are the maximum amounts permitted?

  Yes. GSE can revoke incentives when, for instance: a) the producer falls under one of situation listed in the “Antimafia” Code; b) the producer provided false declarations and statements in the incentive application; or c) the project for which the incentive was granted is substantially altered. In some cases, revocation is coupled with criminal sanctions.

• 11.3 What requirements must the project fulfil in order to be eligible to receive such incentives?

  No specific technical requirements must be met. To apply for the incentives under the ministerial decree dated 6 July 2012, producers must hold the relevant power plant license and be registered in the auction roll/register managed by the GSE. The geothermal power plant benefits from the incentives only when the works are completed, in accordance with the technical requirements provided in the license and the deadline indicated in the above decree (i.e., 40 months from the enrolment). 

• 11.5 In the case of production of electricity from geothermal, are there any incentives/rewards for utilizing the geothermal energy for other than producing electricity, such as waste heat?

  The waste heat recovery is incentivized by the GSE trough the Energy Efficiency Certificates system (so called “White Certificates”).

  Such certificates, which in principle can be also exchanged and traded, indicates the amount of primary energy (energia primaria) saved as a consequence of efficiency improvement measures.

  According to the applicable regulation, the same project cannot benefit, at the same time, from White Certificates and other forms of incentives such as incentives under Ministerial Decree dated 6 July 2012.

• 12. Participation and authority of indigenous people

• 12.1 Are the rights of indigenous peoples in connection to geothermal resources regulated?

  Yes. Local communities and associations that represent   are involved in the procedure to obtain a license (Articles 6 and 13 of Presidential Decree No. 485/1994). During the license granting procedure, local communities and associations representing indigenous people can rise objections that are taken into account by the competent authorities in assuming their final decision. In any case, if local communities and associations believe that their interests have not been adequately protected, they are entitled to challenge the granted license before the competent Administrative Court.

• 12.2 To what extent are indigenous municipalities involved in the process of granting licenses?

  Indigenous municipalities are involved in order to protect local interests and local values. They submit documents, opinions, authorizations, in order to ascertain whether the project meets local regulations and, as the case may be, to benefit from environmental compensation measures.  Please refer to the comment above.

• 13. Alteration of law and regulation

• 13.1 What are the principles regarding retroactivity of laws and regulations, can changes in such rules affect license holders?

  It is a general principle under Italian law that a new law cannot affect licenses already issued, unless the new law specifically provides so.

• 14. Taxation and capital controls

• 14.1 How does taxation in the sector affect license holders?

  License holders are subject to taxation according to the ordinary rules applicable to Italian corporate entities. They are therefore subject to corporate income tax (IRES - levied at 24% and regional tax on productive activities (IRAP - ordinarily levied at 3.9%, plus local surcharges). 

• 14.2 Please describe and provide information on the applicable tax rate and resource tax.

  Please see answer 14.1 above.

• 14.3 Is the sale of energy subject to VAT?

  Yes. However, the ordinary VAT rate of 22% is reduced to 10% VAT for consumers and certain businesses (e.g., manufacturing, mining, publishing, and agricultural). For sales of energy to a taxable dealer, the reverse charge mechanism applies (i.e., the taxable person liable for VAT is the purchaser, not the supplier). 

  A taxable dealer is a taxable person whose main business is the resale of gas, electricity heat or cooling energy and whose own consumption of these products is negligible.

• 14.4 Is VAT refundable and what is the procedure for VAT refunding?

  VAT is refundable under the ordinary rules, within the limit provided by Articles 30 and 38 bis of Presidential Decree No. 633 of 1972.

• 14.5 Is the flow of foreign capital restricted with capital controls? If so, briefly describe the nature of such controls.

  Art. 2 of Law Decree no. 21/2012 provides that the Presidency of the Council of Ministers has a special power to prohibit some kind of transactions carried out by companies operating in, inter alia, the energy sector (the so called golden power regulation).

  In order to allow the Presidency of the Council of Ministers to exercise the veto right:

  1. Art. 2, para. 2 of Law Decree no. 21/2012 provides that the Presidency of the Council of Ministers must be notified in advance of the transactions carried out by a company that holds a strategic asset that entail a change in the ownership, control or availability of the asset itself;
  2. Art. 2, para. 5 of Law Decree no. 21/2012 further provides that the Presidency of the Council of Ministers must be notified in advance also if there is a purchase of shares of a company that holds a strategic asset by an entity incorporated outside the European Union, that entails a change of control, also indirect in accordance of art. 2359 of the Italian Civil Code and relevant provisions of the TUF.

• 15. Environmental Impact Assessment

• 15.1 What demands are there regarding environmental impact assessment prior to exploration, exploitation and or production of geothermal energy?

  Under Article 3, para. 5, and Article 6, para. 1, of Decree No, 22/2010, licenses for the exploration and exploitation of geothermal resources are granted following the successful completion of the environmental impact assessment procedure, when required by law. The procedure is regulated by Legislative Decree No. 152/2006, as modified from time to time. More specifically, i) the projects related to the exploitation of geothermal resources are subject to the EIA procedure; and ii) the projects related to the exploration of geothermal resources are subject to the screening procedure.

• 16. Other regulatory requirements or permits needed

• 16.1 What other licenses are needed in order to commence exploration, exploitation and/or production with geothermal energy?

  Under Presidential Decree No 395/1991, other licenses are needed to commence activities such as: (i) geophysical surveys (Article 15); (ii) well drilling (Articles 16 and 49); (iii) fluid injection (Article 55); and (iv) other civil works that require authorization.

• 16.2 Which other regulatory requirements are in place, including but not limited to the need to provide insurances or guarantees, in connection with the commencing or continuing of exploration, exploitation and/or production of geothermal energy?

  According to Article 3 and 8 the granting of exploration license and exploitation license is subject to the bank guarantee, the value of which shall be proportional to the environmental recovery works, reclaiming of decommissioned areas.

  Indeed, the licence holder is required to provide a bank guarantee ensuring (i) the duly and timely execution of the project and (ii) the restoration of the areas at the end of works.

• 17. Legislation

• 17.1 Have there been any recent amendments to the legislation for licensing, exploration and/or exploitation of geothermal energy in the last 15 years? If so, have these amendments made a noticeable impact on the increase or decrease of production of electricity from geothermal resources?

  The most recent amendment is dated 2010 and the relevant discipline is the one described under the previous paragraphs.

• 17.2 Have any other factors made a strong impact on the production of electricity from geothermal in the last 15 years? If so, for what reasons.

  No, as far as we know.

• 17.3 Is there a specific legislation in place regarding geothermal extraction?

  Under Italian law, there are no specific provisions dealing with the geothermal extraction which is one of the activities included and regulated by the works program (programma dei lavori) approved when the exploitation license is granted.

• 18. Alternative or cascade use of resources

• 18.1 When applying for a licence, is it possible to apply for one license or authorization, which provides for multiple or cascade use of the resource, e.g. direct and indirect utilization (generation of electricity, district heating and cooling)?

  When applying for the license/authorization one is required to provide the geothermal project which includes a detailed study of the plants for both the production of the electric and thermic energy and the exploitation of the mineral associated substances (i.e. mineral substances, except for the liquid and gaseous hydrocarbons, that are in solution, or in any other form, with geothermal fluids).

• 18.2 Could mineral extraction from geothermal fluid be included under such cascade usage clauses?

  Please refer to answer no. 18.1 above.

• 19. Water rights

• 19.1 Once an exploitation license has been granted for the operation of a power plant, along with access to fresh water for power plant operation, can the licence allow for sales and distribution of fresh water to local communities?

  Under Italian law, sale and distribution of water is subject to a public concession to be granted by the competent authority following a tender procedure (except for those few cases in which the applicable regulation allows the direct awarding provided that the relevant requirements are met).