HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 271/4
EN
Official Journal of the European Union
5.10.2012
COMMISSION IMPLEMENTING DECISION
of 26 September 2012
exempting the production and wholesale of electricity produced from conventional sources in
macro-zone north and macro-zone south in Italy from the application of Directive 2004/17/EC
of the European Parliament and of the Council coordinating the procurement procedures of entities
operating in the water, energy, transport and postal services sector and amending Commission
Decision 2010/403/EU
(notified under document C(2012) 6665)
(Only the Italian text is authentic)
(Text with EEA relevance)
(2012/539/EU)
THE EUROPEAN COMMISSION,
of objective criteria, taking account of the specific char
acteristics of the sector concerned. Access is deemed to
be unrestricted if the Member State has implemented and
Having regard to the Treaty on the Functioning of the European
applied the relevant Community legislation opening a
Union,
given sector or a part of it. This legislation is listed in
Annex XI of Directive 2004/17/EC, which, for the elec
Having regard to Directive 2004/17/EC of the European
tricity sector, refers to Directive 96/92/EC of the
Parliament and of the Council of 31 March 2004 coordinating
European Parliament and of the Council of 19 December
the procurement procedures of entities operating in the water,
1996 concerning common rules for the internal market
energy, transport and postal services sectors (
in electricity ( 2 ). Directive 96/92/EC has been superseded

1 ), and in particular
Article 30(5) and (6) thereof,
by Directive 2003/54/EC of the European Parliament and
of the Council of 26 June 2003 concerning common
rules for the internal market in electricity and repealing
Having regard to the request submitted by EniPower SpA (here
Directive 96/92/EC ( 3 ) which was replaced by Directive
inafter referred to as EniPower) by e-mail of 29 March 2012,
2009/72/EC of the European Parliament and of the
Council of 13 July 2009 concerning common rules for
the internal market in electricity and repealing Directive
Whereas:
2003/54/EC ( 4 ).
I. FACTS
(4) Italy
has
implemented
and
applied
not
only
Directive
(1) On
29
March
2012,
EniPower
transmitted
a
request
pursuant to Article 30(5) of Directive 2004/17/EC to
96/92/EC but also Directive 2003/54/EC, and Directive
the Commission by e-mail. The Commission informed
2009/72/EC. Consequently, and in accordance with the
the Italian authorities of that request on 11 April 2012
first subparagraph of Article 30(3), access to the market
and requested additional information from the Italian
should be deemed not to be restricted on the entire
authorities by e-mail of 25 May and 25 July 2012, and
territory of Italy.
from EniPower by e-mail of 25 May 2012. Additional
information was transmitted by the Italian authorities by
e-mails of 20 June 2012, 21 June 2012 and of 8 August
2012 and by EniPower on 20 June 2012.
(5)
Direct exposure to competition should be evaluated on
the basis of various indicators, none of which are, necess
arily, per se, decisive. In respect of the markets concerned
(2) The
request
submitted
by
EniPower
concerns
the
by this Decision, the cumulated market share of the main
production and wholesale of electricity within the
players on a given market constitutes one criterion which
territory of Italy, with the exception of Sardinia and
should be taken into account. Another criterion is the
Sicily.
degree of concentration on those markets. Given the
characteristics of the markets concerned, further criteria
should also be taken into account such as the func
II. LEGAL FRAMEWORK
tioning of the balancing market, price competition and
the degree of customer switching.
(3) Article
30
of
Directive
2004/17/EC
provides
that
contracts intended to enable the performance of one of
the activities to which that Directive applies shall not be
subject to that Directive if, in the Member State in which
(6)
This Decision is without prejudice to the application of
it is carried out, the activity is directly exposed to
the rules on competition.
competition on markets to which access is not restricted.
Direct exposure to competition is assessed on the basis
( 2 ) OJ L 27, 30.1.1997, p. 20.
( 3 ) OJ L 176, 15.7.2003, p. 37.
( 1 ) OJ L 134, 30.4.2004, p. 1.
( 4 ) OJ L 211, 14.8.2009, p. 55.

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5.10.2012 Official
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European
Union L
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III. ASSESSMENT
only a first step in the value chain, while electricity
volumes generated are marketed via the wholesale
(7) In
Italy,
wholesale
of
electricity,
is
carried
out
on
market.
exchanges, through spot contracts or forward contracts,
or bilaterally.
(12) The
request
by
EniPower
pertains
to
electricity
generation
and wholesale. According to the assessment of the Italian
(8)
The spot market is composed of the day-ahead market
Antitrust Authority (Autorita Garante della Concorenza e del
(Mercato del Giorno Prima — MGP) where electricity is
mercato) and the Italian Authority for Electricity and Gas
traded for the following day, and intra-day market
(Autorita per l’energia elettrica e il gas), the wholesale
(Mercato Infragiornaliero) in which operators can adjust
market is defined as ‘the contracts for the purchase and
their sales and purchases with respect to trading on the
sale of electricity stipulated by operators that possess
day-ahead market and the ancillary services market
primary sources of energy (national generated and
(Mercato dei Servizi di Dispacciamento) in which Terna —
imported energy) on the one hand and large industrial
the Italian Transmission System Operator procures the
customers (Acquirente Unico and wholesalers) on the
resources needed to manage and control the system in
other’.
order to resolve intra-zone congestions, create the energy
reserve and balance the system in real time.
(13) The
applicant submits that for the purposes of its
request, the analysis of the wholesale market can be
limited to the analysis of the day-ahead market, since
(9) The
forward
contracts
are
negotiated
on
regulated
that market also includes the forward contracts which,
markets: the electricity forward market (Mercato a
in any case, must be programmed in the day-ahead
Termine — MTE) and the Italian energy derivatives
market once the time of the physical delivery has been
exchange (IDEX) and/or on over the counter platforms
reached. For this reason, the volumes traded through
(OTC). The Italian energy derivatives exchange is a
forward contracts that are being physically delivered
platform dedicated to the trading of instruments based
contribute to price formation in the day-ahead market.
on the average purchase price (single national price).
The applicant argues that the intra-day market is a
complementary session of the day-ahead market and
that the quantities traded on the intra-day market are
only marginal compared to those traded on the day-
ahead market. The ancillary services market is organised
(10) According
to
the
latest
information
available,
natural
gas
in a fundamentally different way from the day-ahead
is the most important fuel in the Italian electricity mix
market and the intra-day market, as in this market
providing more than half of the electricity produced.
Terna is the central counterpart and procures the
Renewables come second and represented 28 % of the
resources necessary for the safe management and
electricity produced in 2011, of which 55 % originated
control of the national system. The applicant’s
from hydropower, 12 % from wind power, 13 % from
assessment is endorsed by the Italian Antitrust Auth
solar power, 13 % from bioenergy and 7 % from geother
ority ( 4 ) and by the Italian Authority for Electricity and
mic ( 1 ).
Gas ( 5 ).
Market definition
(14) The
most
recent
Commission
decision
under
Article
30
of Directive 2004/17/EC, Commission Implementing
Product market definition
Decision 2012/218/EU of 24 April 2012 exempting
the production and wholesale of electricity produced
(11) According
to
Commission
precedents
( 2 ), the following
from conventional sources in Germany from the appli
relevant product markets can be distinguished in the
cation of Directive 2004/17/EC of the European
electricity sector: (i) generation and wholesale supply;
Parliament and of the Council coordinating the
(ii) transmission; (iii) distribution; and (iv) retail supply.
procurement procedures of entities operating in the
While some of these markets may be further subdivided,
water, energy, transport and postal services sectors ( 6 ),
to date previous Commission practice ( 3 ) rejected a
distinguished between two product markets in respect
distinction between an electricity generation market and
of production and wholesale of electricity, namely the
a wholesale supply market since generation as such is
market for electricity produced from conventional
sources and the market for electricity produced from
( 1 ) According to the letter of the Italian Antitrust Authority of
21.6.2012, p. 3.
( 4 ) According to the letter of the Italian Antitrust Authority of
( 2 ) Case COMP/M.4110 — E.ON/Endesa of 25.4.2006, paragraph 10,
21.6.2012, p. 2.
p. 3.
( 5 ) According to letter of the Italian Authority for Electricity and Gas of
( 3 ) Case COMP/M.3696 — E.ON/MOL of 21.12.2005, paragraph 223,
20.6.2012, p. 3.
Case COMP/M.5467 — RWE/Essent of 23.6.2009, paragraph 23.
( 6 ) OJ L 114, 26.4.2012, p. 21.

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L 271/6
EN
Official Journal of the European Union
5.10.2012
renewable sources ( 1 ). Such distinction was made due to
ational costs, the capital cost, the fuel cost and also
the special regime applicable to the energy produced
includes an incentive component applicable in the
from renewable sources ( 2 ) in Germany.
first eight years of life. This system is being phased
out ( 6 ).
(15) In accordance with Implementing Decision
2012/218/EU, it should be examined whether the
Italian market for production and wholesale of electricity
should be split into two separate product markets. For
(b) Omni-comprehensive tariff (FIT mechanism here
that purpose, the applicant and the Italian authorities
inafter) applies to plants with installed capacity of
were invited to express their opinion on that matter.
less than 200 kW for wind farms and less than 1
MW for other types of renewables. This system is
guaranteed for 15 years, is voluntary and alternative
(16) In
Italy
the
production
of
electricity
from
renewable
to the system of green certificates. The omni-compre
sources benefits from special conditions (
hensive tariff includes the price of the energy and an

3 ) such as:
incentive.
(a) a simplified procedure for obtaining an authorisation
from the regions or the local authorities, for instal
lations powered by renewable sources;
(c) The mechanism of green certificates (CV mechanism
hereinafter) is based on the imposition of mandatory
quotas for producers and importers of electricity
(b) fixed-rate connection charges and priority treatment;
produced from conventional sources, which shall
submit yearly a number of green certificates. The
green certificates are then allocated to renewable
(c) incentive remuneration systems;
energy installations depending on the source of the
energy produced and can be exchanged in a separate
market, distinct from that for energy. Renewable elec
(d) dispatching priority in the event of equivalent offers
tricity producers receive revenue from the sale of the
in the day-ahead market.
renewable energy and, as an incentive, revenue from
the sale of the green certificates. The value of the
green certificates is determined by the relationship
(17) The
incentive
systems
referred
to
in
point
(c)
of
recital
16
between demand (by the producers and importers
can be applied through one of the following instruments:
of electricity from conventional sources) and supply
the CIP6 ( 4 ) mechanism (Meccanismo CIP6), omni-compre
(by producers of electricity from renewable sources).
hensive tariff (Tariffe Omnicomprensive — FIT), green
Green certificates schemes apply to installations
certificates (Certificati Verdi — CV) and energy accounts
above 1 MW (except photovoltaic installations) and
(Conto Energia — CE).
for wind power above 200 kW.
(a) The CIP6 mechanism consists in a statutory feed-in
tariff for electricity produced from renewable sources
and from sources ‘similar to renewables’, notably
(d) The energy accounts (CE mechanism hereinafter)
electricity produced in combined heat and power
system incentivises the production of electricity
generation plants. Out of 3,5 GWh covered by
from photovoltaic sources and represents a feed in
CIP6 mechanism in 2011, 1GWh is represented by
premium whereby the producers receive the market
renewables ( 5 ). This mechanism covers the oper
price on the day-ahead market and an incentive fee.
This incentive system is guaranteed for 20 years.
( 1 ) In that case defined as being subject to the German Renewable
Energy Act (Gesetz für den Vorrang Erneuerbarer Energien).
( 2 ) The situation in Germany is as follows: renewable electricity benefits
from priority connection to the grid, and it has priority over
conventional electricity for grid feed-in. Since renewable electricity
(18) According
to
the
latest
information
( 7 ), 45 % of the elec
is generally produced at costs which are higher than the market
tricity produced from renewable sources (which represent
price, a system was established by which such electricity receives
around 12,6 % of the total electricity traded on the day-
particular support. Renewable electricity installation operators have
the right to receive a statutory rate of remuneration from the trans
ahead market in 2011) benefited from a regulated price
mission grid operators for a period of 20 years plus the commis
and is independent of the supply and demand of elec
sioning year. This remuneration provides for coverage of their costs
tricity. The remaining 55 % of the electricity produced
and is therefore higher than the market price. They can therefore
from renewable sources is traded directly through
feed the electricity they produce into the grid irrespective of the
price on the exchanges.
( 3 ) According to the letter of the Italian Authority for Electricity and
( 6 ) It is no longer possible to access this mechanism as it was
Gas of 20.6.2012, p. 2.
superseded by the introduction of the Legislative Decree 79/1999
( 4 ) CIP is the acronym for Comitato Interministeriale Prezzi which is the
on the Green Certificate System, however, plants previously granted
institution which introduced this mechanism in 1992.
access will continue to benefit.
( 5 ) According to the letter of the Italian Authority for Electricity and
( 7 ) According to the letter of the Italian Antitrust Authority of
Gas, of 8.8.2012, p. 7.
21.6.2012, p. 3.

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5.10.2012 Official
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European
Union L
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bilateral contracts or on the exchanges, at the market
divide the Italian product market for electricity as in the
price but can still receive incentives under the form of
German case. The Commission is however of the opinion
green certificates or energy accounts.
that the de minimis principle cannot be invoked in this
case. Even if only 12 % of the total market is subject to
guaranteed price, the renewable electricity which is sold
on the market generally benefits from priority
connection and priority feed in and part of the energy
(19) Nevertheless,
as
the
Italian
authorities
point
out
( 1 ), it is
producers also benefit from support other than guar
noted that some of the electricity even though generated
anteed price (e.g. CE and/or CV mechanisms).
from renewable sources does not receive any incentive in

terms of remuneration and does not benefit from
dispatching priority ( 2 ). Such electricity is sold on the
day-ahead market at the market prices, similarly to elec
tricity produced from conventional sources.
(24) The
Italian
Authority
for
Electricity
and
Gas
considers
that the electricity produced from renewable sources is
part of the same market as the market for electricity
(20) Since,
generally
electricity
produced
from
all
renewable
produced from conventional sources as renewable elec
sources has feed-in priority, the production of such elec
tricity exerts competitive pressure on conventional elec
tricity can be regarded as being independent of
tricity.
demand ( 3 ).
(21) In
respect
of
electricity
subject
to
the
CIP6
mechanism
and to the FIT mechanism, the production and feed-in
(25) The Commission acknowledges that the electricity
are also independent of the prices as the operators are
generated through renewable sources exerts a competitive
entitled to a statutory payment. In respect of electricity
pressure on the electricity produced from conventional
subject to CV and CE mechanisms, the electricity is sold
sources. However, it results from the factual elements set
on the wholesale market at a price that depends on the
out above, in particular in recitals 19 to 22, that the
day-ahead market, but receives an incentive over and
opposite does not hold true. Moreover, neither the
above the price at which the electricity was sold on the
applicant, nor the Italian authorities have adduced any
market.
convincing evidence in support of a finding that conven
tional electricity exerts a competitive pressure on elec
tricity generated from renewable sources. The latter can
therefore not be included in the same market as conven
(22) Moreover, the sale of the electricity generated from
tional electricity.
renewable sources which are subject to the CIP6 and
FIT mechanisms mostly takes place via the energy
services operator ( 4 ) (Gestore dei Servizi Energetici — here
inafter GSE), which withdraws the electricity and then
sells it, in the second stage, on the wholesale market.
The market therefore evidently differs also from a
(26) In
view
of
the
factors
examined
under
recitals
11
to
25,
demand-side perspective from the wholesale market for
for the purposes of assessing whether the conditions laid
conventional electricity.
down in Article 30(1) of Directive 2004/17/EC are
fulfilled, and without prejudice to the rules on
competition law, two relevant product markets are
hereby defined. The first product market is defined as
(23) The
Italian
Antitrust
Authority
submits
that
the
market
the market for production and wholesale of electricity
for fully subsidized renewable electricity (under CIP6 and
generated from conventional sources. For the purposes
FIT mechanism), which represents only around 12 % of
of this Decision, electricity referred to in recital 19 which
the power produced in Italy, is smaller than the German
does not benefit from remuneration under any of the
renewable electricity market (14 % of the total electricity
applicable incentive systems and does not have
market); and that it is not considered appropriate to
dispatching priority, although is generated through
renewable sources, is considered part of the product
market for production and wholesale of electricity
( 1 ) According to the letter of the Italian Antitrust Authority of
generated from conventional sources. The second
8.8.2012, p. 2.
( 2 ) This is mostly the case for electricity produced by large hydropower
product market is defined as the market for production
plants.
and wholesale of electricity generated from renewable
( 3 ) Implementing Decision 2012/218/EU, recital 18.
sources. For the purposes of this Decision, electricity
( 4 ) GSE is the State-owned company which promotes and supports
generated from sources ‘similar to renewable’, subject
renewable energy sources in Italy. GSE is the parent company of
to CIP6 mechanism referred to in point (a) of recital
three subsidiaries: single buyer (Acquirente Unico — AU), energy
17, is considered part of the product market for
market operator (Gestore dei Mercati Energetici — GME), and
research on the energetic system (Ricerca sul Sistema Energetico —
production and wholesale of electricity generated from
RSE), which is active in research.
renewable sources.

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L 271/8
EN
Official Journal of the European Union
5.10.2012
Geographical market definition
(30) In 2005, the Authority for Electricity and Gas and the
Antitrust Authority performed an in-depth analysis of the
Production and wholesale of electricity from
geographical market for electricity in Italy, and the results
conventional sources
were presented in the study ‘Fact-finding investigation on
the state of liberalisation in the electrical energy sector’
(27) Previous
Commission
practice
mostly
defined
the
elec
(‘Indagine conoscitiva sullo stato della liberalizzazione nel
tricity markets as being national in scope ( 1 ) or even
settore dell’energia elettrica e del gas naturale’ — IC22).
smaller ( 2 ). Occasionally, it has left open the possibility
This analysis identified four distinct geographic markets:
of wider than national markets ( 3 ).
(a) the macro-zone north (which consists of the north ( 5 )
(28) The
electricity
market
in
Italy
was
subject
to
another
area plus the limited production hubs of Turbigo and
procedure under Article 30 of Directive 2004/17/EC,
Monfalcone);
which resulted in Commission Decision 2010/403/EU
of 14 July 2010 exempting the production and
wholesale of electricity in Italy’s macro-zone north and
(b) the macro-zone south corresponding to the rest of
the retail of electricity to end customers connected to the
continental Italy (composed of three areas —
medium, high and very high voltage grid in Italy, from
northern central (
the application of Directive 2004/17/EC of the European

6 ), southern central ( 7 ), south ( 8 )
and Calabria — plus the limited production hubs
Parliament and of the Council coordinating the
of Piombino, Rossano and Brindisi);
procurement procedures of entities operating in the
water, energy, transport and postal services sectors ( 4 ).
The application was submitted by Compagnia Valdostana
(c) the macro-zone Sicily (which corresponds to Sicily
delle Acque and concerned production and wholesale of
plus the limited production hub of Priolo);
electricity, in the entire territory of Italy, or alternatively
in the macro-zone north. For the purposes of assessing
whether the conditions laid down in Article 30(1) of
(d) the macro-zone Sardinia.
Directive 2004/17/EC were fulfilled, the Commission

limited its examination to the competitive situation
existing within the territory of macro-zone north in
respect of the production and wholesale supply of elec
(31) Based on the analysis referred to in recital 30, and on the
tricity. At the time, the Italian authorities confirmed that
actual market data for 2008-2011, the applicant
the delimitation of macro-zone north was valid as a
estimated the following indicators:
relevant market; adding, however, that ‘changes are
ongoing so that the delimitation between the remainder
of the macro zones was not clear for the time being,
(a) the saturation of transmission limits between zones
pending extensive inquiries, a definitive evaluation of the
in terms of hours of congestion (number of hours
state of competition on these geographical markets is
during which the transmission limits between two
therefore currently not possible’.
adjacent zones are saturated). A low frequency of

congestions between adjacent zones means that
they belong to the same geographical market, since
competitive conditions are homogeneous within the
(29) The applicant
submits that the geographical market
should be redefined following significant changes both
area concerned; on the contrary, a high frequency of
in the transmission grid configuration and the structure
congestions indicates a certain level of market frag
of the supply and demand. More precisely, over the last
mentation, and the possible existence of non-homo
three years, on the supply side, there has been a
geneous competitive conditions within the area
significant entry of new combined cycle capacity in the
concerned;
northern and southern regions of the country, of high
efficiency coal-fired capacity in central Italy and of
renewables in the southern areas and in Sardinia and
(b) the price differences and zonal price competition; and
Sicilia. On the demand side, there has been a falling
demand in all economic sectors due to the economic
crisis, from 2008 onwards. Consequently, the applicant
(c) the residual demand test defined as the difference
defines the relevant geographical market for the
between the total demand in each zone and the
production and wholesale of electricity, as the territory
maximum potential imports from adjacent zones.
of the Italy with the exception of Sardinia and Sicily
(hereinafter referred to as continental Italy).
(32) The
Italian
authorities
were
invited
to
express
their
views
on the current definition of the relevant geographical
( 1 ) Commission Decision 2008/585/EC (OJ L 188, 16.7.2008, p. 28),
market for Italy. The Italian Authority for Electricity
recital 9, Commission Decision 2008/741/EC (OJ L 251, 19.9.2008,
p. 35), recital 9, Case COMP/M.3440 ENI/EDP/GDP of 9.12.2004,
paragraphs 76-77.
( 5 ) Consisting of the following regions: Valle d’Aosta, Piemonte, Liguria,
( 2 ) Commission Decision 2010/403/EU (OJ L 186, 20.7.2010, p. 44),
Lombardia, Trentino, Veneto, Friuli Venezia Giulia and Emilia
recital 9.
Romagna.
( 3 ) Case COMP/M. No 3268 Sydkraft/Graninge of 30.10.2003,
( 6 ) Consisting of the following regions: Toscana, Umbria and Marche.
paragraph 27, and COMP/M. No 3665 ENEL/Slovenske Elektrarne
( 7 ) Consisting of the following regions: Lazio, Abruzzo and Campania.
of 26.4.2005, paragraph 14.
( 8 ) Consisting of the following regions: Molise, Puglia, Basilicata and
( 4 ) OJ L 186, 20.7.2010, p. 44.
Calabria.

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5.10.2012 Official
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European
Union L
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and Gas confirmed that the definition of the relevant
Market analysis
geographical market given in 2005 in the ‘Fact-finding
investigation on the state of liberalisation in the electrical
Production and wholesale of electricity produced
energy sector’ remained valid and indicated that, based
from conventional sources
on the data at their disposal, the relevant geographical
market should be subdivided into four macro zones, for
(a) Market shares and market concentration
the purposes of this exemption procedure: macro-zone
(38) In accordance with its constant practice
(
north, macro-zone south, macro-zone Sicily and macro-

1 ), the
Commission considers that, in respect of electricity
zone Sardinia.
generation, ‘one indicator for the degree of competition
is the total market share of the biggest three producers’.
(33) The Italian Antitrust Authority also confirmed the
opinion of the Authority for Electricity and Gas.
Although it acknowledges that some of the original
grid bottlenecks have been overcome as a result of
(39) According
to
the
information
provided
by
the
applicant,
the cumulative market shares of the first three producers
investments by Terna, the evolution of the relation
of electricity produced from conventional sources was of
between supply (development of new production capac
48,9 % in the macro-zone north and of 62,7 % in the
ities) and demand has shown recently new network
macro-zone south in 2010. The market for conventional
constraints, which resulted in lower prices in the south
electricity is therefore in the middle of the range, by
in a significant percentage of full hours. Moreover the
comparison with previous exemptions decisions under
Antitrust Authority indicated that the application of the
Article 30 of Directive 2004/17/EC (
residual demand test confirms the division of continental

2 ).
Italy into two separate zones, namely macro-zone north
and macro-zone south.
(40) The
Herfindahl-Hirschman
index
(HHI)
( 3 ) calculated for
the conventional electricity producers in macro-zone
(34) In view of the above, and in the absence of sufficient
north was of 1 302 and in macro-zone south, was of
supporting evidence to prove the existence of a single
1 714 in 2010 (
market zone covering the continental Italy, the

4 ), which places both macro zones in the
category of the ‘moderately concentrated markets’.
Commission does not share the applicant’s view that

the relevant geographical market, as far as conventional
electricity is concerned, is continental Italy.
(41) The
aim
of
this
Decision
is
to
establish
whether
the
activities of generation and wholesale of electricity are
(35) In
conclusion,
given
the
factors
examined
in
recitals
27
to 34, for the purposes of evaluating whether the
exposed to such a level of competition (on markets to
conditions laid down in Article 30(1) of Directive
which access is free) that even in the absence of the
2004/17/EC are fulfilled, and without prejudice to
discipline imposed by the detailed procurement rules
competition law, the relevant geographic markets for
set out in Directive 2004/17/EC, the procurement for
production and wholesale of electricity generated from
the pursuit of the activities concerned will be carried
conventional sources are considered to be the macro-
out in a transparent and non-discriminatory manner
zone north and the macro-zone south.
based on criteria allowing contracting entities to
identify the solution which is overall the economically
most advantageous one. In this context it should be
noted that the companies producing electricity from
renewable sources which is bought by the energy
Production and wholesale of electricity from
renewable sources
( 1 ) Commission Decisions 2009/47/EC (OJ L 19, 23.1.2009, p. 57);
2008/585/EC; 2008/741/EC; 2007/141/EC (OJ L 62, 1.3.2007,
(36) As
regards
the
production
and
wholesale
of
renewable
p. 23); 2007/706/EC (OJ L 287, 1.11.2007, p. 18); 2006/211/EC
electricity, as defined in recital 26, it is not necessary to
(OJ L 76, 15.3.2006, p. 6) and 2006/422/EC (OJ L 168, 21.6.2006,
conclude on the exact geographic scope, as the result of
p. 33).
(
the analysis would be the same under any alternative

2 ) Cumulated market shares of the first three producers in the United
Kingdom (39 %), Austria (52 %) and Poland (55 %) have lower
market definition (entire territory of Italy, continental
values, but the corresponding values in Finland (73,6 %) and
Italy or macro-zone north and macro-zone south).
Sweden (87 %) are higher.
( 3 ) Herfindahl Hirshman index: It is defined as the sum of the squares of
the market shares of each individual firm. As such, it can range from
almost 0 to 10 000, moving from a very large amount of very small
firms to a single monopolistic producer. Decreases in the HHI
generally indicate an increase in competition, whereas increases
(37) It is nevertheless noted that the set of incentives listed in
imply the opposite.
recital 16 are applied uniformly across the entire territory
( 4 ) According to the additional information received form the applicant
of Italy.
on 20.6.2012 in response to Commission letter of 25.5.2012.

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L 271/10
EN
Official Journal of the European Union
5.10.2012
service operator at regulated prices (CIP6 and FIT mech
Production and wholesale of electricity generated
anisms) or is in other way subject to incentive remun
from renewable sources
eration (CV and CE mechanisms), when acting on the
electricity markets, have the possibility to bring
(46) Electricity
produced from renewable sources benefits
competitive pressure on the producers of electricity
from priority connection to the grid, and it has priority
from conventional sources.
over conventional electricity for grid feed-in, which
means that production of electricity from renewable
sources is virtually independent from demand.
(42) Having
regards
to
the
above
figures,
for
the
purposes
of
this Decision and without prejudice to the competition
law, it can be assumed that the degree of concentration
of the market can be considered as an indication of a
(47) In
terms
of
remuneration,
there
are
currently
several
certain degree of exposure to competition of electricity
incentive mechanisms applicable to renewable electricity
production and wholesale from conventional sources in
as indicated in recital 17. Those mechanisms depend on
both macro zones.
the specific type of the renewable source, the production
capacity, and/or the year in which the plant become
operational.
(b) Other factors
(43) Although macro-zone north and macro-zone south form
(48) Of
the total electricity
produced in Italy, 12,6
% is
relevant markets on their own, they cannot be seen as
bought by GSE at a statutory rate of remuneration (
being completely isolated from the surrounding regions.

4 ).
GSE is responsible for selling this electricity, in a second
Italy is currently a big importer of electricity, and the
stage, on the day-ahead market. Therefore, the
imports take place mainly through the north border.
production and feed-in are also totally independent of
According to the Italian authorities the imports bring
the prices in this case as the operators are entitled to a
competitive pressure on mainly on the macro-zone
statutory payment.
north ( 1 ). The macro-zone south is provided with elec
tricity by macro-zone north
( 2 ). This ensures that
investment in the electricity sector in both, macro-zone
north and macro-zone south cannot be made without
taking into account other producers in the surrounding
(49) Renewable
electricity
subject
to
CV
and
CE
incentive
regions. Those factors should therefore be seen as not
mechanisms is sold by the producers on the wholesale
opposing the conclusion that contracting entities
market, but nevertheless they receive an incentive over
operating on both macro zones production market
and above the price at which they sold the electricity on
from conventional sources are exposed to competition.
the market. This incentive, which in some cases can be
rather high (as for instance the CE for solar electricity),
provides a competitive advantage over the producers
from conventional electricity.
(44) Furthermore,
even
though
they
represent
a
small
part
of
the total amount of electricity produced and/or
consumed in a Member State, the functioning of the
balancing mechanisms should also be considered as an
(50) For
the
reasons
indicated
above
in
recitals
46
to
49,
the
additional indicator. According to the available
generation and wholesale of electricity produced from
information, the workings of the balancing mechanism,
renewable sources, as defined in recital 26, in Italy are
the functioning of the intra-day market and ancillary
part of a regulated system. It cannot therefore be
services market are such that it does not constitute an
concluded that the activity of producers of renewable
obstacle to electricity production being subject to direct
electricity is exposed to competition. Consequently, no
exposure to competition.
other indicators, such as those listed in recital 5, need
to be assessed.
(45) Finally, an analysis of the situation in respect of customer
switching ( 3 ) shows that the level of customers switching
does not oppose the conclusion that producers of elec
(51) In order to reflect the current situation of the legal and
tricity form conventional sources in both, macro-zone
factual framework defining the production and wholesale
north and macro-zone south, are exposed to
of renewable electricity in Italy, which emerged during
competition.
the assessment of EniPower’s application, and in order to
ensure coherent treatment of renewable electricity market
( 1 ) According to the letter of the Italian Authority for Electricity and
across the internal market, in line with the recent
Gas of 20.6.2012.
Commission precedent established in Implementing
( 2 ) As mentioned above, producers of electricity in the north are
Decision 2012/218/EU, Decision 2010/403/EU should
currently not subject to the Directive 2004/17/EC following the
be amended accordingly.
exemption under Article 30 in 2010.
( 3 ) According to AEEG Annual Report 2011, the customers switching
for big industrial customers connected to the high voltage grid was
( 4 ) This electricity corresponds to the electricity generated from
of 17,8 % in terms of withdrawal points and of 39,1 % in terms of
renewable sources which is subject to CIP6 and FIT incentive mech
volume.
anisms mentioned in recital 17.

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EN
5.10.2012 Official
Journal
of
the
European
Union L
271/11
IV. CONCLUSIONS
significant changes in the legal or factual situation
mean that the conditions for the applicability of
(52) In view of the factors examined in recitals 38 to 45, the
Article 30(1) of Directive 2004/17/EC in respect of
condition of direct exposure to competition laid down in
production and wholesale supply of electricity from
Article 30(1) of Directive 2004/17/EC should be
conventional sources are no longer met.
considered to be met with respect to the production
and wholesale supply of electricity from conventional
sources, as defined in recital 26, in both macro-zone
(57) The
measures provided for in this Decision are in
north and macro-zone south in Italy.
accordance with the opinion of the Advisory
Committee for Public Contracts,
(53) Furthermore, since the condition of unrestricted access to
the market is deemed to be met, Directive 2004/17/EC
HAS ADOPTED THIS DECISION:
should not apply to the award of contracts intended to
enable production and wholesale supply of electricity
Article 1
from conventional sources to be carried out in macro-
zone north and macro-zone south nor to design contests
Directive 2004/17/EC shall not apply to contracts awarded by
organised for the pursuit of such an activity in that
contracting entities and intended to enable the production and
geographical area.
wholesale of electricity produced from conventional sources to
be carried out in the macro-zone south of Italy.
(54) Nevertheless, the condition of direct exposure to
competition laid down in Article 30(1) of Directive
Directive 2004/17/EC shall continue to apply to contracts
2004/17/EC should be considered not to be met with
awarded by contracting entities and intended to enable
respect to the production and wholesale supply of elec
production and wholesale of electricity produced from
tricity generated through renewable sources, as defined in
renewable sources to be carried out in the macro-zone south
recital 26, on the entire territory of Italy. Since Decision
of Italy.
2010/403/EU exempted contracts intended to enable the
production and wholesale supply of electricity in the
macro-zone north without distinguishing between
Article 2
conventional and renewable sources, it is appropriate to
Article 1 of Decision 2010/403/EU is amended as follows:
amend that Decision in order to limit the exemption to
production and wholesale of electricity from conven
tional sources. In order to allow operators to adapt to
(a) point (a) is replaced by the following:
the new scope of the exemption, which will no longer
cover renewable sources of electricity, a transitional
‘(a) production and wholesale of electricity produced from
period should be provided for.
conventional sources to be carried out in the macro-
zone north of Italy.’;
(55) Since
the
production
and
wholesale
supply
of
electricity
generated through renewable sources, as defined in recital
(b) the following paragraph is added:
26 continues to be subject to Directive 2004/17/EC, it is
recalled that procurement contracts covering several
activities should be treated in accordance with Article 9
‘Directive 2004/17/EC shall apply to contracts awarded by
of Directive 2004/17/EC. This means that, where a
contracting entities and intended to enable production and
contracting entity is engaged in ‘mixed’ procurement,
wholesale of electricity produced from renewable sources to
that is procurement used to support the performance
be carried out in the macro-zone north of Italy.’.
of both, activities exempted from the application of
Directive 2004/17/EC and activities not exempted,
Article 3
regard must be had to the activities for which the
contract is principally intended. In the event of such
Article 2 shall apply from 15 April 2013.
mixed procurement, where the purpose is principally to
support the production and wholesale of electricity
generated through renewable sources, the provisions of
Article 4
Directive 2004/17/EC are to be applied. Where it is
This Decision is addressed to the Italian Republic.
objectively impossible to determine for which activity
the contract is principally intended, the contract is to
be awarded in accordance with the rules referred to in
paragraphs 2 and 3 of Article 9 of Directive 2004/17/EC.
Done at Brussels, 26 September 2012.
(56) This Decision is based on the legal and factual situation
For the Commission
existing between March 2012 and September 2012, as it
appears from the information submitted by EniPower
Michel BARNIER
and the Italian authorities. It may be revised, should
Member of the Commission

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