Energy

Experienced in financial and regulatory aspects of the energy sector with a tradition of representing sponsors. Specialises in project financing and leasing.
Chambers Europe
Nctm Studio Legale Associato fields a full-service energy group, but with the distinction that nearly all its lawyers have strong litigation and public law backgrounds.
Legal 500

Despite the long investment lead-in times, the size of the investments and the administrative hurdles to be overcome, the energy market is continuously evolving. Nctm has expertise in financing, in contracts, in administrative law and in the regulation of the energy sector. We provide highly specialised and comprehensive advice to the biggest and most innovative energy and financing companies in this sector.

Nctm has particular expertise in renewable energies as well as in innovate and complex energy structures. Our expertise in this field includes:

  • Negotiation of bilateral and multilateral agreements for the supply of gas and other fuels
  • Acquisition of companies in the energy field
  • Development agreements, framework agreements, joint venture agreements
  • Sales agreements for energy and “green” certificates
  • Legal due diligence on energy companies and administrative authorisations for project facilities for the production of electric energy from renewable and traditional sources
  • Advice and assistance to fully exploit the fiscal aspect of these projects
  • Funding agreements in project financing and leasing
  • Drafting and negotiation of tolling agreements
  • Agreements covering financial risks related to the buying and selling of base spot energy
  • EPC agreements
  • O&M agreements
  • Management Service agreements
  • EFET, ISDA, FIDIC agreements
  • Press Releases
  • Articles
  • Newsletter
26/04/2017
Banking & Finance Law - Energy Law

Nctm Studio Legale and Gattai, Minoli, Agostinelli & Partners have advised, respectively, MPS Capital Services Banca per le imprese, as arranger bank, and the vehicle company and sponsors, in the project financing transaction for the financing of the 10 MW wind farm of Marche Energie Rinnovabili (Fortore group) located in the Municipality of Apecchio, Marche Region.

The team of Nctm Studio Legale was led by Eugenio Siragusa, while the team of Gattai, Minoli, Agostinelli & Partners was led by Giovanni Santangelo with the assistance of Flavia Bertini.

 

13/06/2016
Banking & Finance Law

Nctm Studio Legale assisted a pool of banks made up of BPER Banca, acting as Agent Bank, BPM, ICCREA BancaImpresa and Credito Valtellinese, in the financing – in project financing – in favour of a vehicle company fully owned by PLT energia S.p.A., Italian industrial holding engaged in the market of renewable energies, for the realisation of a 60 MW wind farm located in the Municipalities of Tursi and Colobraro (MT).

The investment of a total of 97 million Euro, will enable the completion of the creation, already at an advanced stage, of one of the biggest wind farm under construction in Italy.

Nctm Studio Legale has assisted the pool of banks with a team led by Eugenio Siragusa.

1/06/2017
Administrative & European Public Law

“To simultaneously solve the dilemma of energy demand, waste management, and greenhouse gas emission for communities globally, the waste-to-energy (WTE) supply chain as district energy system should be a viable method towards circular industrial economy. Several essential state-of-the-art WTE technologies including combustion gasification and anaerobic digestion were evaluated. Portfolio options of technologies for different types of WTE supply chains must be examined for achieving circular economy system”[1].

For a better understanding of this process, it seems to be relevant to read the European Commission Communication titled “The Role of waste-to-energy in the Circular Economy”. EU legislation on waste, including recent proposals for higher recycling targets for municipal and packaging waste and for reducing landfill, is guided by the waste hierarchy and aims to shift waste management upwards towards prevention, reuse and recycling.

The Communication focuses on energy recovery from waste and its place in the circular economy. Waste-to-energy is a broad term that covers much more than waste incineration. It encompasses various waste treatment processes generating energy (e.g. in the form of electricity/or heat or produce a waste-derived fuel), each of which has different environmental impacts and circular economy potential.

Waste-to-energy process can play a role in the transition to a circular economy provided that EU waste hierarchy is used as a guiding principle and that choices made do not prevent higher levels of prevention, reuse and recycling. This is essential in order to ensure the full potential of a circular economy, both environmentally and economically and to reinforce the European leadership in green technology. Moreover, it is only by respecting the waste hierarchy that waste-to-energy can maximise the circular economy’s contribution to decarbonisation, in line with the Energy Union Strategy and the Paris Agreement. As mentioned earlier, it is waste prevention and recycling that deliver the highest contribution in terms of energy savings and reductions in GHGs emission.

At the basis of this Communication we find some considerations on the EU waste hierarchy: it is necessary to ensure that the recovery of energy from waste in the EU supports the objectives of the circular economy action plan. Also, the role of waste-to-energy processes would be optimised to play a part in meeting the objectives set out in the Energy Union Strategy and in the Paris Agreement. At the same time, by highlighting proven energy-efficient technology the approach to waste-to-energy set out in the Communication is meant to provide incentives for innovation and help create high-quality jobs.

The Waste Hierarchy[2] is the cornerstone of EU policy and law on waste and is a key to the transition to the circular economy. Its primary purpose is to establish an order of priority that minimises adverse environmental effects and optimises resources efficiency in waste prevention and management.

Consequently, this Hierarchy could help to clarify the position of different waste-to-energy processes; to provide guidance to the Member States on how to make better use of economic instruments and capacity planning with a view to avoiding or addressing potential overcapacity in waste incineration; to identify the technology and processes which currently hold the greatest potential to optimise energy and material outputs, taking into account expected changes in the feedstock for waste-to-energy processes.

The main waste-to-energy processes as identified by the European Commissions are the follows:

  • co-incineration of waste in combustion plants and in cement ad lime production;
  • waste incineration in dedicated facilities;
  • anaerobic digestion of biodegradable waste;
  • production of waste-derived solid, liquid or gaseous fuels;
  • other processes including indirect incineration following a pyrolysis or gasification step.

These processes have different impacts and rank differently the waste hierarchy.

The Communication stresses that the waste hierarchy also broadly reflects the preferred environmental option from a climate perspective: disposal, in landfills or through incineration with little or no energy recovery, is usually the least favourable option for reducing greenhouse gas (GHG) emissions; conversely waste prevention, reuse and recycling have the highest potential to reduce GHG emissions.

It is also relevant to recall that Article 2(6) of the Commission Decision 2011/753/EU[3] gives to the Member States some flexibility in the application of the hierarchy, as the ultimate goal is to encourage those waste management options that deliver the best environmental outcome. For some specific waste streams, achieving the best environmental outcome may entail departing from the priority order of the hierarchy, i.a. for reasons of technical feasibility, economic viability and environmental protection. [4] For instance, in some specific and justified cases (e.g. materials) that contain certain

substances of very high concern), disposal or energy recovery may be preferable to recycling.

Finance
At EU level, the transition towards more sustainable waste management systems receives financial support, mainly through the co-financing of the Cohesion Policy Funds. In the case of these funds, pre-conditions must be met to ensure that new investments in the waste sector are in line with waste management plan designed by Member States to meet their preparation for reuse ad recycling targets. As stated in the Circular Economy Action Plan, this means that investments in treatment facilities for residual waste, such as extra incineration capacity would only be granted in limited and well justified cases, where there is no risk of overcapacity and the objectives of the waste hierarchy are fully respected.

Investments channelled through other EU financial mechanisms, such as the European Fund for Strategic Investments (EFSI) also have an important role to play in attracting private financing to the best and most “circular” solutions for waste management through loans, guarantees, equity and other risk-bearing mechanisms. In addition, available EU financial support for research and innovation in waste-to-energy technologies (e.g. Horizon 2020, but also Cohesion Policy funds) contributes to ensuring continued EU leadership and bringing advanced energy-efficient technologies to the market.

At national Level, public financial support has also often played a key role in developing more sustainable waste management solutions and in promoting renewable energy and energy efficiency. When assessing public financial support for waste-to-energy processes, it is particularly important not to undermine the waste hierarchy by discouraging waste management options with higher circular economy potential. This is clearly reflected in the existing guidelines on state aid for environmental protection and energy which state that support for energy from renewable sources using waste or support for cogeneration and district heating installations using waste can make a positive contribution to environmental protection provided it does not circumvent the energy hierarchy.
Public funding should have also avoid creating overcapacity for non-recyclable waste treatment such as incinerators. In this respect, it should be borne in mind that mixed waste as a feedstock for waste-to-energy processes is expected to fall as a result of separate collection obligations and more ambitious EU recycling targets. For these reasons, Member States are advised to gradually phase-out public support for the recovery of energy from mixed waste.

[1] As set out in Article 4 of Directive 2008/98/EC on Waste and repealing certain Directives, in OJ L 312, 22.11.2008.

[2] The Decision establish rules and calculation method for verifying compliance with the targets set in Article 11(2) od Directive 2008/98/EC .

[3] This must be justified in line with the provision laid out in Article 4(2) of the Waste Framework Directive 2008/98/EC “Supporting environmentally sound decisions for waste management”.

[4]Strategies on implementation of waste-to-energy ( WTE )supply for circular economy system: a review”, Yuan Pan, Micheal Alex and others, in Journal of Cleaner Production, Vol. 108, Part A, December 2015.

16/03/2017
Insurance Law - International Desk - Energy Law - Litigation & Arbitration - International Trade & Customs - Administrative & European Public Law

The UK is nothing if not pragmatic. The pragmatism has sometime been referred to as perfidiousness: perfidious Albion. What is sure is that the UK will approach the divorce with the EU in a very pragmatic fashion. It will seek to develop bi-lateral relations with its direct trading partners. It will seek to revive the trade pre erences in the Commonwealth. It will seek independent influence in all international bodies.

Italian port law prohibits a terminal operator from managing multiple areas for the performance of the same activities in one single port. We will first analyse how this prohibition could be amended following the recent 2016 reform.

Then we will look at a recent ruling of the Regional Administrative Court of Tuscany which clarified the obligations imposed on the Public Administration in the event of an expropriation of private areas in Italian ports.

The recent extension of the scope of the General Block Exemption Regulation (2014) to the granting of State aid to EU ports and airports reminds us of two recent judgments of the Court of Justice on State aid in the maritime sector and – in particular – the compensation of public service obligations to undertakings entrusted with the operation of services of general economic interest.

Next, we analyse two judgments from the United Kingdom and Spain concerning the application of two major international conventions in the field of international transport, the Hague-Visby Rules and CMR. The English verdict confirms that the failure to issue a bill of lading is not relevant in excluding the applicability of uniform legislation, whereas the Spanish ruling provides us with a definition of “default equivalent to wilful misconduct” for the purpose of excluding the limitation of carrier’s liability.

Moreover, the Italian Court of Cassation has issued two interesting decisions on transport matters. The Italian Supreme Court denied the holder of the bill of lading the right to act against a carrier for damage to the goods due to the lack of endorsement of the bill of lading by the receiver to the order of the holder, and considered an “exchange of containers” as a case of gross negligence of a road carrier.

Finally, let us analyse a decision of the Tax Court of Rome on IRESA, the noise emission tax in Italian airports. This ruling, in view of the fact that the Lazio Region disregarded the principles and aims set out in the national and European regulations concerning the use of the tax revenue, concluded for the disapplication of the IRESA as provided by the current regional legislation.

Alberto Rossi

There’s a fair European wind blowing

Probably the most important outcome of the French election is not so much the actual electoral defeat of the National Front but the decision of that party to remove from its policy programme the idea of withdrawing from the Euro and promoting a referendum on Frexit. In other words, those parties which have based their political offer to the electorate on the negative impact of globalization and the hard impact of immigration, no longer see the solution as the break-up of the EU.

The same in happening in the Netherlands and even in the UK where the May government is promoting the need to address the negative aspects of globalization and migration in a substantive manner and not long saying that Brexit itself is the answer.

This is a window of opportunity that the EU must embrace. The underlying issues of migration and globalization must be addressed. But if they are addressed in a satisfactory manner the EU itself is not being challenged. There is a recognition in France and in the Netherlands, and even in Germany given the results in the recent Lander elections among the vast majority of the electorate that the EU remains a valid project and that the solutions are best found within its remit.

If Macron and Merkel can get together with the Italy and Spain, much can be done. From an insider’s point of view the only possible hiccup in catching this favourable wind is the capacity of the Commission to recognize it.

 

Alitalia insolvency: second round
By a decree of the Italian Ministry of Economic Development (MISE) on 2 May 2017 the extraordinary administration procedure set forth by legislative decree No. 347/2003 (“Legge Marzano”) was started for Alitalia Società Aerea Italiana S.p.A., which has also been declared insolvent by the Court of Civitavecchia on 11 May 2017.

Can the Court amend the concordato preventivo proposal upon confirmation?
The Court of Cassation with the decision of 3 April 2017, No. 8632 ruled that the confirmation order of the Bankruptcy Court can be appealed, even when there were no oppositions to confirmation, if the Court unilaterally amended the proposal approved by the creditors.

Is the bank liable for damages suffered by the insolvent company following directors’ reckless resort to credit lines ?
The decision of the Supreme Court of 20 April 2017, No. 9983 confirms that the bank can be held jointly liable with the directors towards the company, on different grounds from those making the bank  accountable to individual creditors.

Grounds for ineligibility or forfeiture of statutory auditors who are members of an association of professionals
Pursuant to Article 2399, letter c), of the Italian Civil Code, statutory auditors whose patrimonial relationships with the company or its subsidiaries may affect their independence cannot be appointed and, if appointed, cease from their office. It has been questioned whether the case whereby a statutory auditor is a member of an association of professionals providing consultancy services to the same company reflects the case provided for by the law. Although the answer to the question was generally affirmative, doubts still remain as to the criteria adopted by the Supreme Court in order to determine the cases in which the independence of a statutory auditor can be actually considered as compromised.

The scope of the delegation of management in limited liability companies (s.r.l.): content and limits
By decision no. 25085 of 7 December 2016, the Supreme Court established the legitimacy of a general delegation of management, by the board of directors to individual managing directors with the power to act separately, to the extent that it is not aimed at excluding the exercise of a concurrent managing power by the managing body.

Data processing for marketing purposes: the protection of legal entities
By order No. 4 of 12 January 2017, the Italian Data Protection Authority set out the discipline on personal data processing for marketing purposes, finding the unlawfulness of both the processing of data collected through forms available on websites and the processing of data (namely, telephone numbers) autonomously collected on the Web.

Administrative liability of entities under Legislative Decree No. 231/2001 within groups of companies
Liability can be found, under Legislative Decree No. 31 of 2001, on the part of a holding company for offences committed in connection with the activities of its subsidiaries, provided that a) the person acting on behalf of the holding company acts in concert with the person committing the offence on behalf of the controlled entity; and b) the holding company appears to have obtained a concrete advantage from, or pursued an actual interest by way of, the offence committed in the context of the subsidiary’s activity.

The liability of non-executive directors and the duty to act in an informed way
According to decision no. 17441, of 31 August 2016, of the First Division of the Supreme Civil Court, the liability of directors without management power cannot originate from a general failure to supervise – that would be identified in the facts as a strict liability – but must be attributed to the breach of the duty to act in an informed way, on the basis of both information to be released by executive directors and information that non-executive directors can gather on their own initiative. Therefore, the determination of the prerequisites for the liability of delegating directors fits in a context accentuating the distinction between the duties imposed on managing directors and those typical of non-executive directors.

Considerations regarding the possibility to waive the termination effect of a notice to perform
Judgment No. 4205 of 3 March 2016 of the Supreme Court, Second Division, gives us the opportunity to provide a brief overview of the different opinions expressed by courts and legal commentators regarding the possibility to waive the termination effect of a notice to perform.

Validity of the shareolders’ agreements which provide a preventive waiver of the liability action against the directors when taken at the conclusion of the mandate
With the decision of 28th September 2015, No. 19193, the Court of Rome stated the validity of the shareholders’ agreement clauses which provide that the “incoming” shareholders undertake not to bring the liability action against the “outgoing” directors or not to vote for it in the general meeting.

The Supreme Court’s overruling: the banking and finance agreement signed exclusively by the client is null and void
The Supreme Court decides again the issue of the validity of the so called “single signature” agreements, i.e. the copy of banking and finance agreements, kept in the bank’s archives, bearing the client’s signature and not the bank’s one. The Supreme Court holds that these agreements are null and void, thus unenforceable vis à vis the account holder.

Purchase of shares of a general partnership: can the mistake on the value of the share be legitimately qualified as an essential mistake?
The Tribunal of Milan has stated that, as a rule – also with reference to the purchase of shares of a general partnership – the contract can be avoided, upon application of a party, for an essential mistake, only if the contract contains an explicit guarantee on the value of the assets and on the quality of the goods of the company (a guarantee that, according to the Tribunal, the contract at hand lacked).

The new rules regarding the proceedings before the Supreme Court (Decree Law n. 168/2016, converted into Law n. 197/2016)
With another “late summer intervention”, the legislator intervened once more as a matter of urgency to modify the code of civil procedure, with particular reference to the rules regarding the proceedings before the Supreme court: on August 31, 2016, Decree Law n. 168/2016 was published, entitled “Urgent measures for the resolution of disputes before the Supreme Court and for the efficiency of the judicial offices” (“D.L. 168/2016”).

The joined chambers of the court of cassation on the qualification and challenge of the non-final award and of the partial award
“An award that partially decides on the merits of a dispute, immediately challengeable pursuant to art. 827, paragraph 3 of the code of civil procedure, is both that of a generic condemnation pursuant to art. 278 of the code of civil procedure, and the award that decides one or some of the questions of the case, without defining the entire proceedings; instead, the awards that decide preliminary issues are not immediately challengeable.”

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