By judgment no. 10550 of 6 December 2023, the Council of State dismissed the appeals brought by ARERA, the Apulia Region and Ager Puglia, and upheld the judgment of the Lombardy Regional Administrative Court (TAR) annulling ARERA resolution no. 363/2021 and Apulia Regional Executive resolution no. 2251 of 29 December 2021, which identified the “minimum” cycle-closing plants for the municipal solid waste management service.
The dispute arose from the appeal lodged by Soc. Coop. Nuova San Michele, owner of a landfill for non-hazardous special waste located in the Municipality of Foggia, represented by Michele Vaira.
As later recognised by the Lombardy TAR, Coop. Nuova San Michele had challenged the unlawfulness of the contested acts because ARERA had introduced provisions for identifying “minimum” cycle-closing plants with stringent and penalising effects for operators in the free market, subjecting them to the same tariff method that governs plants within the integrated waste management service. The Apulia Region consequently identified the “minimum” cycle-closing plants on the basis of the same unlawful assumptions.
By judgment no. 486/2023 of 24 February 2023, the Milan TAR upheld the appeal, finding that the rules on “minimum” cycle-closing plants adopted by ARERA subjected to tariff regulation – through specific provisions then implemented by the Region – plants operating on the free market, arbitrarily classified as “indispensable” for closing the waste cycle and therefore forcibly “annexed” to the integrated service. A kind of expropriation, in short.
The arbitrary nature of ARERA’s conduct was also confirmed by the judgment delivered by the Council of State on 6 December, which reiterates that ARERA’s functions do not include the power to direct regional planning, and that the Authority itself must respect the different levels of competence in waste matters, divided between central functions (such as the National Waste Management Plan) and territorial ones (such as the Regional Waste Management Plan).
Thus ARERA, the Council of State reiterates, in setting the criteria for identifying “minimum” plants as an essential factor for closing the integrated waste cycle, not only directed the Regions’ planning power, arrogating to itself a directive power belonging to the State that the legislature did not intend to delegate to it, but also effectively suggested to the Apulia Region a solution to its plant shortcomings through the substantial acquisition into the public system of plants operating under free competition.
With the Council of State’s ruling, the arguments put forward by Soc. Coop. Nuova San Michele were therefore definitively upheld.
Consequently, to make up for the persistent shortcomings in the waste management cycle, the Apulia Region will not be able to “take over” private plants which instead rely on precise multi-year planning, in compliance with all sector regulations.
GdM del 7 December 2023
Stato Quotidiano, 7 December 2023
Lombardy TAR: Apulia Region resolutions on “minimum” plants annulled
