Energy Law

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.

 

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.

27/09/2016
Energy Law

Brexenergy:  a roadblock for the  European Energy Market ? 

Increasing interconnectivity with Continental Europe will necessarily require co-operation between UK and EU Internal Energy Market in any Brexit scenario. If the UK is permitted to participate in the Energy Union following Brexit, it would need to negotiate an appropriate partnership with EU and adopt – and comply with – the relevant European law.

The questions to be addressed are: can the UK continue to participate in the liberalisation of the European Energy Market (EEM), can the EEM continue the liberalisation process without the UK ? 

It’s important to underline the extent to which EU and UK energy policies are closely aligned: in many respects, the UK has taken the lead in shaping EU energy policy, with its focus on open and transparent markets, energy security, low carbon energy sources, energy efficiency and high levels of environmental protection. If the UK was to stay within European Economic Area (EEA) as a Member of the European Free Trade Associatiobn (EFTA), most of these objectives and constraints would remain.

Given to the UK’s liberalised energy policy, we expect that the UK will continue to implement and be supportive of many aspects of the EU’s Third Energy package (an EU legislative package with the central aim of liberalising European gas and electricity markets).  For example, the ownership unbunding requirements, which require the separate ownership and operation of electricity/gas transmission systems for any generation, production and supply interests; the level playing field; and the standards transparency. The UK Government also appears committed to market-based interventions in energy markets and supports EU initiatives such as market coupling. We therefore consider that business should plan to continue to comply with these requirements.

Consequently, if the UK remains part of the EEA, the EU State Aid rules will continue to apply to the energy infrastructure and support schemes as today, since the EEA Agreement contains a similar prohibition. However, any subsidy will also need to comply with the WTO subsidy regime which is similar in its intentions to the EU State aids rules. The WTO regime disciplines the use of subsidies and regulates the actions which WTO members can take to counter the effects of subsidies.

From a legal point of view, one of the most important question needing a quick answer is how the UK would join the EEA Agreement given its more advanced implementation of EU Law. The answer will only be known as part of the Brexit negotiations, after the triggering of the famous Article 50 of the Treaty of Lisbon. In fact, the exact nature of the exit and the future UK-EU relationships is still to be negotiated and it is expected that the United Kingdom will attempt to extract favorable terms in a a new trading arrangements that still provides the country access to a single market[1], while the European Union will resit such an arrangement. 

As this is the first time that a Member State has left the “28-Countries Club”, there are many significt uncertainties over substance, process and timelines. In the interim period and while negotiations are ongoing, the legal status of the EU-UK relationship (and all attendant rules and regualtions) will remain unchanged. But there will be political changes: the UK will not participate in the next European Councils and Councils of Ministers. Over the near term, uncertainty will be the defining feature of the direct and indirect impacts on energy markets. Nonetheless, it is possible to begin to outline some of the impacts on the energy system.

The Brexit impact on Energy Markets .

Concerning the Direct Impact , as evidenced in the immediate reaction to the Brexit vote, and because the status quo will remain in place on the regulatory and trade front, the direct impact on energy markets in the short term will be supposely “..limited to the volatility of commodity prices, most prominently the orice of crude oil”[2].

The Indirect Impact on Energy Markets is perhaps more significant in the near and medium term than the direct impacts and moderated through the effect the British referendum will have on global economic growth. An example of indirect impact is the cost of access to credit. The risk premium on investments will likely rise, both in the UK and elsewhere, but “investors will remain risk averse until the long term is more predictable, and this will likely stiffen investments and rescricts the flow of capital even further across global markets”[3].

There is also the possibility of Uncertain Impact on Energy Markets. Going forward, much of impact on energy markets will be determined by the future contours of the UK relationship with the European Union and even more on the shape of the Union itself, which will be determined in the months ahead by a complex web of political and technical factors. There are three major areas of uncertainty when it comes to the Brexit’s impact on energy and climate policy that will be influenced by these negotioations: the future of climate policy, the future of British access to the EU market, and additional potential EU exits.  These areas are by far most consequential for energy markets and policy, but are by no means the only areas of uncertainty.

Climate Policy and multilateral agreements

When it comes to multilateral climate policy, the United Kingdom – the European Union’s second largest emitter of CO2 – has partecipated in UN climate negotiations as part of the broader EU bloc, and its climate commitment to the recent Paris Treaty was submitted as part of the broader European commitment. What will happen to the EU target – will it need to be resubmitted, and would any submission need to be more or less stringent without the united Kingdom –  remains to be seen. Likewise, whether they will submit a new climate pledge, and the shape and scope of that pledge, is also up in the air. However, the United Kingdom is on the path to cut emissions by 2030 under a domestic law. The broader EU negotiating dynamic on climate moving forward may also change. The United Kingdom is often credited with both pushing for more stringent climate targets and for the adoption of market-based mitigation (rather than top-down-wide stadards and goal setting). How the European approach to climate negotiations may change without the presence of the British remains to be seen.

Access to EU Market : the Framework

A considerable impact of a potential Brexit for energy markets will be determined by the shape of the future EU-UK economic relationship (as well as the political future of the United Kingdom itself). There are, essentially, five possibilities for the relationship: 1) status quo – the United Kingdom does not leave the European Union and remains part of the common market; 2) the United Kingdom leaves the Union but retains full access to the EU single market (the Norway model); 3) the United Kingdom has restricted but significant access to the common market on a bilateral basis (the Swiss model); 4) the United Kingdom does not have acces to the common market but negotiates a separate free trade agreement with the Union (the Canada model); 5) the United Kingdom and the European Union are not able to negotiate preferential trading terms, and access to the common market would be premised on the World Trade Organization rules.

Access to EU Energy Markets

While it would make economic sense for the United Kingdom to remain part of Europe’s internal markets for electric power and natural gas (50% of UK imported gas comes through the Union), that outcome remains to be negotiated. What is less clear, however, is whether the United Kingdom would drop some specific European measures, such as imposed renewable energy targets and Europe’s Industrial Emissions Directive, which controls emissions on power plants. The regulatory upheavel could be significant for energy development in the United Kingdom, with energy regulations currently set by the European Union likely to be the subject of future negotiations. Moreover, the status of access to the common market is also likely to impact the decision of whether the UK continues to participate in the EU emission trading system, which regulates greenhouse gas emissions.

Finally, the broader energy market impacts may be determined by the future of the European Union itself. The British vote to leave the Union is likely to propt other anti-EU forces in other EU countries to hold similar referenda. If the Union were to break apart – either marginally or more substantially, or dissolve altoghether – the consequences for energy markets could be profound.

It is uncertain how the outcome of the referendum will affect political fragmentation across the European Union. A number of countries, including Poland and Hungary, have incumbent euroskeptic governments, while many other member states have growing ranks of opposition parties to current governments who share a skeptical view of the European Union as an institution. If there are other referenda or movements toward exit aming these member states, it is likely to have major impacts on global economic growth and confidence in the markets in general, which in turn would have severe effects on energy markets.

The contents of this article is meant for informative purposes only and cannot be considered as

professional advice.

For further information please contact giovanni.moschetta@nctm.it

_____________________________________________________________________

[1] See and read in following pages: Norvegian Model, Swiss Model etc.

[2] Andrew Stanley, Centre for Strategic Studies.

[3] Global Fossil Energy and Climate Change mitigation, in Climate Change, May 2016, volume 136, Issue 1, pp. 69-82

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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