The Council of State reaffirms the delineation between self-defense and forfeiture

By judgment no. 3264 of 16 April 2025, the Italian Council of State once again addressed the issue of distinguishing between self-defense (autotutela) and forfeiture (decadenza) in relation to second-level decisions adopted by the GSE.

In the case at hand, the GSE had initially approved an energy efficiency project and three RCVs, but later rejected the fourth by annulling the approval decision concerning the PPPM and the previously accepted RCVs, on the grounds of non-compliance with the applicable legislation (Ministerial Decree of 28 December 2012).

The Court held that the annulment order did not fall within the category of forfeiture but rather constituted an exercise by the GSE of its self-defense powers, and as such was subject to the requirements laid down in Article 21-nonies of Law no. 241 of 1990. The decision was based on a reassessment of elements previously examined with a positive outcome, in the absence of any new facts or documentation having emerged in the meantime.

Forfeiture, by contrast, is characterized by the nature of the defect, which may consist of: (i) false or inaccurate declarations by the applicant; (ii) breach of administrative conditions deemed essential for the continued enjoyment of benefits; or (iii) loss of eligibility requirements necessary for the establishment or continuation of the relationship (Plenary Session, 11 September 2020, no. 18). In such instances, the GSE exercises a binding ascertainment power, issuing a decision that declares the absence of objective requirements which were a prerequisite ab initio for access to the incentive (Council of State, Section IV, 12 January 2017, no. 50; 24 January 2022, no. 462; 20 January 2021, no. 594; Section VI, 3 January 2022, no. 9; 28 September 2021, no. 6516; Constitutional Court, 13 November 2020, no. 237), following a new procedural path in which further evidence is gathered.

Conversely, where the absence of eligibility for the incentive mechanism is declared on the basis of a mere reconsideration of the same evidentiary material already in the possession of the GSE, the measure must be regarded as a self-defense annulment (annullamento d’ufficio in autotutela).

The conduct of assessments based on newly acquired evidentiary elements thus marks the dividing line between self-protection and forfeiture.

The judges of the Council of State emphasize that, once the administrative procedure has concluded with a positive evaluation of the information provided by the private party, any subsequent review—absent new circumstances, omissions, misrepresentations, or breaches of undertaken obligations—must necessarily comply with the conditions and limitations applicable to the exercise of self-protection powers, pursuant to Article 21-nonies of Law no. 241/1990.