ECLI:EU:C:2025:966

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 11 December 2025 (1)

Case C‑653/24

Presidente del Consiglio dei Ministri

Regione Emilia-Romagna

(Request for a preliminary ruling from the Corte costituzionale (Constitutional Court, Italy))

( Reference for a preliminary ruling – Services in the internal market – Scope of Directive 2006/123/EC – Concessions of small-scale hydroelectric diversions and related power plants – Automatic extension of concessions previously granted )

1. The Corte Costituzionale (Constitutional Court, Italy) is seised of an action brought by the Presidente del Consiglio dei Ministri (President of the Council of Ministers, Italy) against a regional law which, without requiring the launch of a new call for tenders, allows the extension of the duration of concessions (2) of ‘small-scale water diversion channels for hydroelectric use’ granted to concessionaires who have received certain incentives.

2. In order to assess whether that law is compatible with European Union law – as the referring court has requested – the Court will need to determine whether Directive 2006/123/EC (3) applies ratione materiae to that type of concession. It will also be necessary for the Court to clarify its case-law (4) in order to make clear where the dividing line lies between the ‘production of a good’ and the ‘supply of a service’.

I. Legal framework

A. European Union law: Directive 2006/123

3. Paragraph 1 of Article 2 (‘Scope’) provides:

‘1. This Directive shall apply to services supplied by providers established in a Member State.’

4. Article 4 (‘Definitions’) is worded as follows:

‘For the purposes of this Directive, the following definitions shall apply:

1) “service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article 50 of the Treaty;

…’

5. Article 12 (‘Selection from among several candidates’) provides:

‘1. Where the number of authorisations available for a given activity is limited because of the scarcity of available natural resources or technical capacity, Member States shall apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure.

2. In the cases referred to in paragraph 1, authorisation shall be granted for an appropriate limited period and may not be open to automatic renewal nor confer any other advantage on the provider whose authorisation has just expired or on any person having any particular links with that provider.

3. Subject to paragraph 1 and to Articles 9 and 10, Member States may take into account, in establishing the rules for the selection procedure, considerations of … the protection of the environment, the preservation of cultural heritage and other overriding reasons relating to the public interest, in conformity with Community law.’

B. Italian law

1. The Italian Constitution (5)

6. In accordance with Article 117(1), legislative power lies with the State and the Regions, which exercise that power within the terms laid down by the Constitution and in compliance with the obligations flowing from European Union law.

2. Royal Decree No 1775 of 1933 (6)

7. Article 6(2)(a) defines as ‘large-scale’ water diversions those which supply plants generating motive power whose average annual nominal power exceeds 3 000 kW. Where the nominal power is equal to, or less than, 3 000 kW, diversions are considered to be ‘small-scale’.

8. Article 21 states that concessions of small-scale diversions for hydroelectric use are to be temporary and their duration may not exceed 30 years, on expiry of which those concessions may be renewed in accordance with Article 28 of the 1933 Royal Decree.

3. Emilia-Romagna Regional Law No 17/2023 (7)

9. In accordance with Article 3, where a concessionaire of small-scale water diversion channels for hydroelectric use has been granted incentives for the production of electricity which are linked to the diversion, the duration of the concession is to be adjusted, at the request of the concessionaire, to cover the period during which those incentives are received. However, the maximum duration of 30 years, laid down in Article 21 of the 1933 Royal Decree for that type of concession, may not be exceeded.

II. The dispute and the questions referred for a preliminary ruling

10. On 23 February 2024, the Presidente del Consiglio dei Ministri (‘the President of the Council of Ministers’) challenged before the Corte Costituzionale (Constitutional Court) the constitutionality of Article 3 of Regional Law No 17/2023 of the Regione Emilia-Romagna (Region of Emilia-Romagna, Italy). (8)

11. In his action, the President of the Council of Ministers put forward a number of arguments alleging infringement of Article 117 of the Italian Constitution, which governs the distribution of legislative powers between the State and the Regions. In relation to paragraph 1 of that provision, the President of the Council of Ministers submitted that:

– Although the State legislation also does not provide for the holding of public procurement procedures to renew concessions of small-scale water diversions, that obligation is imposed under European Union law, in particular Article 49 TFEU and Directive 2006/123.

– Article 12 of Directive 2006/123 applies to concessions of small-scale hydroelectric diversions, in accordance with a number of judgments of the Court of Justice. (9) That article lays down the obligation to award concessions through a public procurement procedure, including in the case of possible renewal.

– By allowing the ‘automatic extension’ (10) of the concessions at issue, Regional Law No 17/2023 prevents those concessions from being opened up to competition upon their expiry, thereby breaching the EU rules on the provision of services.

12. The Region contested the action, arguing, in essence, that:

– The contested provision does not provide for the ‘automatic extension’ of concessions which have already expired. (11)

– The judgment in Promoimpresa concerned concessions for the exploitation of State-owned lakeside and maritime property for tourist and leisure-oriented business activities, the classification of which as a ‘supply of services’ was not in doubt. By contrast, the activities of small-scale hydroelectric diversions may not be regarded as the ‘supply of a service’ but rather as the ‘production of a good’, (12) which is excluded from the scope ratione materiae of Directive 2006/123.

– That interpretation is confirmed by the specific EU rules governing the energy market. (13)

13. The referring court confines its reference for a preliminary ruling to one particular aspect of the dispute. In its view, ‘it is necessary to examine, as a preliminary point, the issue raised with respect to Article 117, paragraph 1 [of the Constitution] in conjunction with Article 49 TFEU and Article 12 of Directive 2006/123’. (14) The examination of the other pleas of unconstitutionality is left for a later stage.

14. After asserting that ‘any national measure adopted in a sphere which has been the subject of exhaustive or full harmonisation at EU level must be assessed in the light of the provisions of the harmonising measure and not of those of primary law’, the referring court:

– Takes the view that it is necessary to clarify whether the activity of energy production by means of small-scale diversion hydroelectric plants must be classified as a ‘supply of a service’ governed by Directive 2006/123.

– Points out that, in accordance with the judgments of the Court of Justice in Almelo (15) and ECO-WIND Construction, electricity is a good and, as such, its production cannot be treated as a service. (16)

– Argues that a number of provisions of EU law confirm that electricity should be classified as ‘tangible property’ (17) or as a ‘product’. (18) The referring court accepts, however, that other legislative elements could lead to an interpretation to the contrary. (19)

15. Against that background, the Corte Costituzionale (Constitutional Court) has referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 12(1) and (2) of Directive [2006/123] be interpreted as meaning that it also applies to power plants engaged in the [sole] production of electricity, such as small-scale diversion hydroelectric plants?

(2) If the answer to the first question is in the affirmative, must Article 12(1) and (2) of Directive [2006/123] be interpreted as meaning that the reference to the condition of scarcity of natural resources precludes legislation of a Member State which is based on – as an abstract and general criterion for determining whether or not diversion plants are capable of causing water scarcity – the difference between large and small-scale plants (which produce motive power with an annual average nominal power exceeding 3000 kW, and motive power with an annual average nominal power inferior or equal to 3000 kW, respectively)?

(3) Last, if the answer[s] to the first and second questions [are] in the affirmative, must Article 12(2) of Directive [2006/123] be interpreted as meaning that it precludes legislation of a Member State which provides for an extension of the duration of the concession in order to allow the concessionaire to make full use of incentives granted for the production of energy from renewable sources, up to the maximum duration (30 years) which may, from the outset, be granted to a concession of a small-scale diversion?’

III. Procedure before the Court of Justice

16. The request for a preliminary ruling was received at the Registry of the Court of Justice on 8 October 2024.

17. Written observations were lodged by the Region, the German and Italian Governments, and the European Commission. All those parties, with the exception of the German Government, and in addition the French Government, appeared at the hearing which was held on 13 October 2025.

IV. Analysis

A. The first question

18. The referring court seeks to ascertain whether ‘Article 12(1) and (2) of Directive [2006/123] … also applies to power plants engaged in the [sole] production of electricity, such as small-scale diversion hydroelectric plants’.

19. Although the question is framed with specific reference to Article 12 of Directive 2006/123, in order to provide an answer, it will be necessary to consider whether the activity carried out by small-scale diversion hydroelectric plants falls within the scope ratione materiae of Directive 2006/123. That is acknowledged by the Corte Costituzionale (Constitutional Court). (20)

20. A general condition of Directive 2006/123 may be inferred from a combined reading of Articles 2(1) and 4(1) thereof. It follows from those provisions that the directive applies only where an activity may be classified as a ‘service’ supplied by operators established in a Member State (Article 2(1)). (21)

21. Article 4 of Directive 2006/123, setting out ‘definitions’, provides in point 1 what is meant by ‘service’: any self-employed economic activity, normally provided for remuneration, as referred to in Article 57 TFEU. (22)

22. In addition to that logical first stage, which concerns Directive 2006/123 considered as a whole, the applicability of some of the directive’s provisions requires the (simultaneous and cumulative) fulfilment of other specific conditions for application. (23)

23. Pursuant to Article 12(1) and (2) of Directive 2006/123, those specific conditions are linked to the fact that the number of authorisations available for a particular activity may be limited due to the scarcity of available natural resources or technical capacity. In those circumstances, the authorisation (following a competitive selection procedure) will be granted for a limited duration and will not be open to automatic renewal or confer any other type of advantage on the provider whose authorisation has just expired.

24. I agree, therefore, with the approach taken by the referring court, which is to examine, first of all, whether the activity carried out by small-scale diversion hydroelectric plants satisfies the general condition for the application of Directive 2006/123. If that activity is not a service, it will simply not be covered by Directive 2006/123.

25. The referring court observes, in that regard, that ‘small-scale diversion plants are engaged in the sole production of electricity, which is aimed in some cases at the sale of electricity, by means of its injection into the grid, and, in other cases, mainly or exclusively, ^[(24)^] at self-consumption’. (25)

1. Is the sole production of electricity a service?

26. In accordance with recital 33 of Directive 2006/123, the concept of service is open to a broad interpretation. ‘Services’ include a wide variety of ever-changing activities, aimed at both businesses and end consumers.

27. The Court classified electricity as a good (26) and, in the judgment in ECO-WIND Construction, added that any supply of services linked to the generation of electricity cannot call into question that classification, since those services are ancillary to the principal activity of generating electricity. (27)

28. In principle, therefore, the ‘sole production’ or generation of electricity, whatever source it may come from, is not, in itself, a service covered by Directive 2006/123.

29. As a counter-argument to the relevance of the judgment in ECO-WIND Construction in the present case, the Italian Government states that that judgment concerned a resource (the wind) which is not capable of being owned either publicly or privately. The concession of water, on the other hand, is ‘concerned primarily with … the use of State-owned property in accordance with the purposes laid down by law ^[(28)^]’ and, therefore, ‘the production of electricity is … merely a secondary element, since it is only one of the possible purposes of the use of water resources permitted by law’. (29)

30. That argument (which is incompatible with other arguments put forward by the Italian Government) (30) fails to take account of the fact that the referring court’s question concerns, specifically, the use of public water in order to produce electricity. The primary purpose of the grant of the concession is the production of electricity.

31. It is true that, in theory, the production of electricity may entail the provision of certain services. In accordance with the judgment in ECO-WIND Construction, if those services are ancillary to the principal activity (the production of electricity), they do not affect the classification of that activity.

32. The Commission and the Italian Government agree that the generation of electricity may go hand in hand (possibly, according to the Commission, and necessarily, according to the Italian Government) with other activities which are capable of being classified as ‘services’. However, they disagree about the specific treatment of those ancillary activities.

33. Since the first question concerns only plants engaged in the sole production of electricity, there is no need for the Court’s reply to cover activities which, in themselves, differ from the generation of electricity.

34. However, I shall examine the positions of the Italian Government and the Commission concerning such additional activities, beginning with that of the Italian Government.

35. The Italian Government argues that, although some of the concessionaire’s activities are directed at the generation of electricity, that operator is required to perform a series of activities which are of necessity linked to the operation of the plant. The Italian Government submits that the concessionaire is required to limit water catchment to amounts compatible with the recharging of the aquifer concerned and to take all necessary steps to safeguard the public interest associated with water resources, by ensuring that the hydrogeological balance is not upset. (31)

36. On that basis, the Italian Government concludes that ‘… the activity [carried out by the concessionaire] cannot be regarded as the sole production of a good and instead must, without any doubt, be classified as the provision of a service’. (32)

37. I do not agree with that argument. All production plants require, naturally and in more or less broad measure, the fulfilment of obligations aimed at the protection of public health or the public interest. (33) However, that does not mean that the production of a good automatically becomes the provision of a service.

38. In the present case, the authorisation scheme laid down by the 1933 Royal Decree makes the pursuit of the activity of water diversion conditional on compliance with certain technical conditions, which are set out in the tender specifications. (34)

39. The requirement that the concessionaire must comply with those conditions, including where, in order to do so, the concessionaire must carry out additional activities, is something which is inherent in the concession and, I repeat, does not automatically convert the concessionaire’s activity into the provision of a service or alter its nature so that it becomes a ‘services concession’. (35)

40. If it were accepted, in the alternative, that the additional activities to which the Italian Government refers may be classified as ‘services’, it would be necessary to examine whether they are ancillary services (within the meaning of the judgment in ECO-WIND Construction).

41. In that connection, I believe that if activities aimed at managing the flow rate and maintaining the hydrogeological balance were ‘services’, they would be intrinsically ancillary in nature: an operator would not be able to perform those services independently and primarily as a ‘self-employed economic activity, normally provided for remuneration’.

42. Moreover, the need to provide those theoretical ‘services’ arises as a result of the diversion of public water from its natural channel, such diversion always being carried out for a specific purpose. The Italian Government itself was obliged to acknowledge at the hearing that, in the case of such concessions, the right to divert water is linked to the specific purpose of the production of hydroelectric power. Accordingly, the activities in question are dependent on the operation of the small-scale diversion used for hydroelectric purposes and cannot be separated operationally or legally from that.

43. More compelling is the argument relating to the ‘operation of a power plant’, which may be regarded as a service in accordance with Annex I, code 65410000-0, to Regulation No 213/2008, an argument also raised by the Italian Government in support of its position.

44. However, I believe that the operation of a plant can be separated, for legal purposes, from the sole production of electricity, with which it will not necessarily be associated. The right to use small-scale water diversions for hydroelectric purposes entails: (1) the right to divert public water; (2) the right to construct the works necessary for that purpose; (36) and (3) the operator’s right to operate the plant and the equipment in accordance with the tender specifications.

45. There is nothing to preclude the holder of an authorisation from entrusting the ‘operation’ of its power plant to a third party (as the case may be, a service provider) without this involving the loss of its original status or the creation of a genuine services concession or a public service contract. (37)

46. The Commission states that there is a possibility that a concessionaire of a small-scale hydroelectric diversion may provide another type of service, distinct from those referred to above. (38) The Commission refers, in particular, to electricity network regulation services and network balancing services.

47. That possibility certainly cannot be denied.

48. However, as regards electricity network regulation services (other than those related to the operation of the hydroelectric plant), the guideline laid down in paragraph 59 of the judgment in ECO-WIND Construction remains applicable: ‘network regulation services and [of] energy price security … are ancillary to the principal activity of generating electricity.’

49. As regards network balancing services, the Commission argues that those are typical of plants which have reservoirs, such as large-scale hydroelectric diversions, whose activity may therefore be classified as a ‘supply of services’. (39) However, the Commission accepts that, in the case of small-scale hydroelectric diversions, network balancing services are merely occasional.

50. In that connection, the Commission maintains that, if the referring court were to find that at least some small-scale hydroelectric diversions actually provide that type of service in a non-marginal form, Directive 2006/123 would be applicable to all those plants in accordance with the criterion laid down in the judgment in X and Visser. (40)

51. On that point, the Italian Government explained at the hearing that the primary aim of the activities of both large-scale and small-scale hydroelectric diversions is electricity production and that those theoretical network balancing ‘services’ are supplied by means of a temporary increase in such production to meet exceptional demand at any particular moment.

52. To my mind, the (potential) supply of network balancing ‘services’ does not alter the nature of the activity carried out by a hydroelectric diversion, be it large-scale or small-scale: that activity continues to be the production of electricity, which, I repeat, is all that the first question refers to.

53. Accordingly, the rule laid down in the judgment in X and Visser (41) is neither applicable to the present case nor capable of drawing the production of electricity into the scope of Directive 2006/123, disregarding the (converse) approach adopted in paragraph 59 of the judgment in ECO-WIND Construction.

54. In the light of those considerations, I believe that the grant to a concessionaire of the right to use a small-scale public water diversion channel to produce electricity does not, by that very fact, transform that concessionaire into a service provider whose activities are governed by Directive 2006/123.

2. Concessions of State-owned property that are subject to Directive 2006/123 and the judgment in Promoimpresa

55. The foregoing considerations must be compared with the case-law arising from the judgment in Promoimpresa, in which the Court held that Directive 2006/123 was applicable to certain concessions of State-owned property.

56. According to the Court, ‘Article 12(1) and (2) of Directive [2006/123] [precludes] a national measure … which permits the automatic extension of existing authorisations of State-owned maritime and lakeside property for tourist and leisure-oriented business activities, without any selection procedure for potential candidates.’ (42)

57. A number of arguments, put forward mainly by the Italian Government, claim that the situation examined in the judgment in Promoimpresa is comparable to the situation in the present case:

– Both cases require an assessment of whether EU law allows a system for the grant of an exclusive right to exploit public property. There is, therefore, ‘a situation that is perfectly analogous to [that] already examined by [the Court]. Accordingly, the principles laid down in the well-known judgment [in Promoimpresa] are also applicable in this case’. (43)

– Rulings of national courts and administrative bodies have applied the grounds of the judgment in Promoimpresa to small-scale hydroelectric diversions.

– In infringement proceedings brought against Italy and other Member States, the Commission adopted that same premiss. (44)

(a) Effects of the judgment in Promoimpresa on the interpretation of Article 12 of Directive 2006/123

58. First, the Italian Government seeks to demonstrate, by a description of the activities of small-scale hydroelectric diversions, that ‘they cannot be considered to be characterised primarily by the production of a good, in particular of electricity, since that is not their main purpose’. (45) In my view, an argument set out in those terms conflicts with the assumption made in the order for reference regarding the purpose of the concession.

59. Second, relying on the judgment in Promoimpresa, the Italian Government argues that the situation examined in that judgment is analogous to that in the present proceedings. (46)

60. If I understand correctly the Italian Government’s line of argument, where an awarding entity grants an economic operator, by means of an authorisation procedure, an exclusive right to exploit public property, (47) that is a basis for disregarding the approach taken in the judgment in ECO-WIND Construction and instead the judgment in Promoimpresa should be taken into account. As a result, the concessions at issue fall within the scope (of Article 12) of Directive 2006/123.

61. My view, which coincides with the view put forward by the French Government at the hearing, is that that approach reflects a partial reading of the judgment in Promoimpresa.

62. A concession awarded for the pursuit of business activities on State-owned land cannot justify, without any further consideration, the automatic application of Article 12 of Directive 2006/123. It will be necessary to examine first of all, in the light of the purposes for which the concession was awarded, whether and to what extent the activity pursued through use of the public property can be classified as a ‘service’, within the meaning of Article 4(1) of Directive 2006/123. (48)

63. The Italian Government’s position implies that the concession of any small-scale diversion of public water (including for self-consumption), simply because its purpose is the exploitation of public property, is tantamount to the provision of a service, which would be covered by Article 12 of Directive 2006/123. (49)

64. I do not find that argument persuasive. In particular, it minimises the importance of the purpose for which use of the public property is granted to the point that it is reduced to an element of such secondary importance that it is ‘absorbed’ into the concession itself. When developing that argument, the Italian Government disregards the importance which is attached to purpose in the judgment in Promoimpresa.

65. In the situation examined by the judgment in Promoimpresa, the concessions were awarded for the specific purpose of providing tourist and leisure services. (50) That was the decisive factor when it came to making the concessions subject to the rules laid down in Directive 2006/123, a factor which, I repeat, is not present in concessions such as those at issue.

66. As regards the renewal of concessions for small-scale hydroelectric diversions (which is what Article 3 of Regional Law No 17/2023 actually governs), the legal difficulty is whether another interested operator must be given, at the end of the original concession, the opportunity to set itself up on the same site to perform the same activity (the production of hydroelectric power). (51) In that procedure for the renewal of a concession, the purpose for which the original concession was awarded plays an important, and not merely secondary, role.

(b) Judgments of the Italian courts and the infringement proceedings brought by the Commission

67. In support of its position, the Italian Government relies on a number of national (judicial and administrative) precedents which place the concessions at issue in this case on the same footing as concessions granting exclusive rights over State-owned maritime property. The Italian Government also submits that the Commission brought infringement proceedings against Italy in relation to the concession arrangements at issue in this case.

68. Solutions conceived at national level and the position taken by the Commission in the course of infringement proceedings are not binding on the Court of Justice. However, they may provide useful points for analysis when they are based on persuasive legal arguments.

69. That does not appear to be the case in the circumstances at issue.

70. As regards infringement proceedings No 2011/2026, concerning large-scale hydroelectric diversions, the Commission maintained that ‘the operation of hydroelectric power plants for the production of hydroelectric power is a service provided for remuneration within the meaning of Directive [2006/123] and the [FEU Treaty]’. (52)

71. At the hearing, the Commission stated that those proceedings were closed in September 2021 for reasons of political expediency, without this amounting to an admission that there was no infringement of Directive 2006/123.

72. However, in so far as the Commission appears to link the applicability of Directive 2006/123 to large-scale hydroelectric diversions with the almost systematic supply of network balancing services, I refer to the considerations I set out above concerning the soundness of that argument, which is even less persuasive with regard to small-scale hydroelectric diversions.

73. For its part, the Italian Government relies on decisions of the Tribunale Superiore delle Acque Pubbliche (High Court for matters involving public water, Italy) (53) and the Autorità Garante della Concorrenza e del Mercato (Competition and Market Protection Authority, Italy; ‘the AGCM’), which endorse the application of Article 12 of Directive 2006/123 to concessions of small-scale hydroelectric diversions.

74. However, a reading of those national decisions suggests that they are based on the (unproven) proposition that production activities carried out by a small-scale hydroelectric diversion may come within the definition of ‘service’. Having set down that proposition, the decisions apply, by analogy, the criteria laid down in Promoimpresa to concessions of small-scale water diversions for hydroelectric use.

75. In other words, the Tribunale Superiore delle Acque Pubbliche (High Court for matters involving public water)(54) and the AGCM (55) did not conduct an in-depth preliminary assessment of whether the general condition for application of Directive 2006/123 is satisfied in the case of small-scale hydroelectric diversions. Nor did they take notice of the differences between the latter and concessions of State-owned maritime property intended for the provision of tourist and leisure services.

3. Intermediate conclusion

76. On the basis of the foregoing considerations, I propose that the answer to the first question should be that Article 12(1) and (2) of Directive 2006/123 is to be interpreted as meaning that it does not apply to small-scale diversion hydroelectric plants which are engaged in the sole production of electricity.

B. The second question

77. The referring court submits its second question in case the answer to the first question is in the affirmative. Since I have proposed that the answer to that question should be in the negative, there is no need to address the second question. However, I shall do so in case the Court does not agree with my analysis.

78. In the event that Article 12 of Directive 2006/123 were applicable, the referring court asks whether ‘the condition of scarcity of natural resources precludes legislation of a Member State which is based on – as an abstract and general criterion for determining whether or not diversion plants are capable of causing water scarcity – the difference between large and small-scale plants’.

79. That legislation, which applies throughout national territory, is laid down in article 6(2)(a) of the 1933 Royal Decree and takes as the differentiating factor the annual average nominal generating power (in excess of 3 000 kW for large-scale diversions and equal to or less than that figure for small-scale diversions). (56)

80. The Court has ruled as follows in connection with Article 12(1) of Directive 2006/123:

– The provision ‘confers on the Member States a degree of latitude as to the choice of criteria for assessing the scarcity of natural resources. That degree of latitude may lead them to give precedence to an abstract and general assessment that is valid for the entire national territory, but also, conversely, to favour a case-by-case approach that focuses on the situation existing in the coastal territory … or even to combine those two approaches.’ (57)

– ‘In any event, it is crucial that the criteria used by a Member State to assess the scarcity of available natural resources are based on objective, non-discriminatory, transparent and proportionate factors.’ (58)

81. There is an attempt to justify the different treatment for legal purposes of small-scale and large-scale diversions (59) not only on the grounds that large-scale diversions are of higher economic importance but also because of their greater environmental impact. Although both types require works to be carried out in order to be able to operate, in the case of small-scale diversions, the technical significance and impact of their infrastructure is considerably lower. Indeed, the majority of small-scale hydroelectric diversions have basic plants (60) which allow them to make use of the ordinary river regime, (61) as well as certain pre-existing tanks or irrigation channels.

82. The Region infers from those characteristics that the situations in which a small-scale hydroelectric diversion may be established are not restricted in number by law and are, in fact, numerous. Moreover, they may increase as a result of new projects ‘without any quantitative limitations of practical importance’. (62)

83. The Commission and the Italian Government disagree with that reasoning, arguing that the possibility of establishing a small-scale hydroelectric diversion is, in fact, conditional on the environmental matrix and the scarcity of water resources.

84. For my part, I agree with the latter argument. Although it is not apparent that the Italian (State or regional) legislation sets a ceiling on the number of ‘available authorisations’ for the operation of small-scale hydroelectric diversions at national or regional level, those plants make use of natural resources (riverbeds and, more generally, water) which, by their very nature, are scarce and, therefore, do not permit the establishment of an unlimited number of plants.

85. It is precisely because the resources concerned are limited that the Italian legislation applicable to the initial award of concessions provides that, in respect of the same site or section of riverbed, ‘technically incompatible applications’ may be submitted by different candidates, which requires an order of priority to be established between them in accordance with the criteria laid down in the legislation. (63)

86. I believe that, in order to evaluate the scarcity of natural resources, the average power which a plant is capable of generating may not be used as a ‘general and abstract’ criterion, for the purposes of Article 12 of Directive 2006/123.

87. According to the logic of Article 12 of Directive 2006/123:

– The (general and abstract) criterion based on nominal power is not sufficient to guarantee effective competition between a number of candidates if it results in the exemption of small-scale plants from the requirement to issue a call for tenders for the renewal of concessions already granted.

– Pursuant to Article 12(1) in conjunction with Article 12(2) of Directive 2006/123, where the scarcity of natural resources makes it necessary to limit the number of available authorisations, those authorisations are granted: (a) for a limited period; (b) by a selection procedure for candidates; and (c) without automatic renewal.

88. I agree with the Region that the distinction between ‘large-scale’ and ‘small-scale’ hydroelectric diversions is common to the legal systems of several Member States. (64) The distinction also appears in the first subparagraph of Article 8(3) of Directive 2019/944, which adapts the authorisation procedure for the construction of new small-scale generating plants. (65)

89. However, that factor cannot be used to clarify the scarcity of resources criterion laid down in Article 12 of Directive 2006/123, a factor which paragraph 2 of that article links to the prohibition of the automatic renewal of authorisations.

C. The third question

90. The third question is referred in case the first two questions are answered in the affirmative. It will not be necessary to examine this question should the Court rule in the sense which I have proposed. In case the Court does not do so, I will examine the third question in the alternative.

91. Under Article 3 of Regional Law No 17/2023, the duration of a concession nearing expiry may be extended (renewed) where the concessionaire has been granted certain incentives for the production of electricity. The concession is extended while those incentives are being received but under no circumstances may it exceed the maximum period laid down by the State legislation (30 years).

92. The regional legislation provides for the renewal, without the requirement of a prior tendering procedure, (66) of concessions which, if they are subject to Article 12(2) of Directive 2006/123, it would not be possible to renew automatically in favour of a concessionaire whose period of use has expired.

93. Article 12(2) of Directive 2006/123 prohibits the automatic renewal of authorisations which fall within its scope. It is immaterial for those purposes whether the renewal applies to all concessionaires, both present and future, and whether it complies with the maximum number of years laid down by State legislation. As the Commission notes, the decisive factor is the extension ex post of the duration of a concession that was originally awarded for a shorter period.

94. In accordance with the regional legislation, the reason for that renewal is associated with the use (by the concessionaire) of incentives received for the production of electricity.

95. However, I believe that the receipt of those State incentives (benefits) does not justify the addition to them of a new benefit in favour of the concessionaire, whereby the period of use of its power plant is now extended beyond the time set in the concession agreement. That new benefit is detrimental to possible competitors who may be interested in establishing themselves on the same site.

D. Article 49 TFEU

96. In the order for reference, the Corte Costituzionale (Constitutional Court) refers very briefly to Article 49 TFEU, but, formally, it limits its questions to the interpretation of Article 12 of Directive 2006/123. (67)

97. The explanation for the referring court’s position is that the possible ‘infringement of the freedom of establishment, to which Article 49 TFEU refers, must be assessed in accordance with the corresponding secondary legislation’, which is understood to mean Directive 2006/123. (68) That is why the referring court does not ask the Court to interpret EU primary law.

98. However, I agree with the Commission that, if the reply to the first question were in the negative, the Court would be able to furnish the referring court with guidance which might assist it with the interpretation of Article 49 TFEU.

99. If Directive 2006/123 is not applicable, or if the solution to the issue of the renewal of small-scale hydroelectric concessions is not included in another instrument of secondary law applicable ratione materiae, (69) the dispute may be examined in the light of Article 49 TFEU, concerning the freedom of establishment. (70)

100. The referring court focuses on a provision of secondary law (Article 12 of Directive 2006/123) the application of which is not limited to situations which have a certain cross-border interest. Perhaps that is the reason why it does not provide any ‘specific [factor] that allow[s] a link to be established between the subject or circumstances of a dispute, confined in all respects within a single Member State, and Article 49 … TFEU’. (71)

101. The application of Article 49 TFEU requires that there must be a certain cross-border interest to the subject matter of the dispute, particular to undertakings situated in one Member State which seek to establish themselves in another Member State. The Commission argues that, in this case, the certain cross-border interest can be inferred from the fact that small-scale hydroelectric diversions are sometimes operated by operators that are active in more than one Member State and that the economic interests at stake may be significant.

102. It will be for the referring court, should it opt to apply Article 49 TFEU, to assess those assertions and determine whether a certain cross-border interest exists based on all the relevant factors. Those factors include the economic importance of the kind of small-scale hydroelectric diversions at issue, their technical features and the usual geographical situation of the plants.

103. I believe that, were such an assessment to lead to a positive result, it would still be necessary to examine any overriding reasons in the public interest which would justify the renewal of the concessions concerned without recourse to a competitive selection procedure; the reference for a preliminary ruling does not provide any information about such reasons.

104. Despite those reservations, the referring court may find guidance, mutatis mutandis, in the interpretation of Article 49 TFEU provided in the judgment in Promoimpresa: that article ‘must be interpreted as precluding national legislation … which permits the automatic extension of existing concessions of State-owned property for tourist and leisure-oriented business activities, in so far as those concessions are of certain cross-border interest.’ (72)

105. Last, it would be possible for the referring court to assess whether small-scale hydroelectric diversions, which, on account of their aim and their characteristics, are used solely to generate electricity for self-consumption for owners of adjacent land, must be subject to the same competitive procedure for the purposes of their renewal as other small-scale hydroelectric diversions. For those ‘micro-diversions’, there may be legitimate reasons justifying the continuation of the concession in favour of properties bordering the riverbed. (73)

106. As concerns the ‘secondary rules’, to use the referring court’s term, that court may also have recourse to Directive 2019/944. (74) In accordance with point (8) of Article 2 and Article 15(1) and (2) of that directive, an ‘active customer’ does not merely ‘[consume] or [store] electricity generated within its premises … or self-generated’ but may also ‘[sell] self-generated electricity or [participate] in flexibility or energy efficiency schemes, provided that those activities do not constitute its primary commercial or professional activity’. In order to facilitate the participation of those ‘active customers’ in the internal market for electricity, Member States must ensure that they are not subject to ‘disproportionate or discriminatory technical requirements, administrative requirements, procedures and charges’.

107. Directive 2019/944 therefore allows the adaptation of renewal procedures for small-scale hydroelectric diversions for self-consumption (granted to ‘active customers’) without making them subject to disproportionate or discriminatory administrative requirements.

108. Once again, it will be for the referring court to determine whether the special rules laid down in Directive 2019/944 are applicable in this case. If that is so, it will be necessary to examine the provision at issue in the light of that directive and not in the light of Article 49 TFEU.

V. Conclusion

109. In the light of the foregoing considerations, I suggest that the following reply be given to the Corte Costituzionale (Constitutional Court, Italy):

1. Article 12(1) and (2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market

must be interpreted as meaning that it does not apply to plants which are engaged in the sole production of electricity, such as small-scale diversion hydroelectric plants.

2. Article 49 TFEU

must be interpreted as meaning that it precludes, in principle, legislation of a Member State pursuant to which, without the need to launch a competitive procedure, a concession of water for use in the production of electricity by means of a small-scale hydroelectric diversion may be renewed, on the expiry of its term, for the period required to enable the concessionaire to benefit from incentives for electricity production;

it does not preclude, by contrast, national legislation having those features, in so far as it is justified by overriding reasons in the public interest or enables the establishment of a specific scheme, which is neither disproportionate nor discriminatory, for small-scale hydroelectric diversions intended to be used for self-consumption by their operators.

1 Original language: Spanish.

2 In this Opinion, I, like the referring court, shall use the term ‘concession’ to refer to the underlying legal relationship where a State-owned asset is used to supply a hydroelectric power plant and to generate energy. However, all the indications are that, at least in some cases, that relationship may not be a true ‘concession contract’ but rather an authorisation scheme: anyone wishing to make use of public water is required to apply to the competent administrative authorities in order to obtain an official decision in that regard.

3 Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

4 Judgments of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558; ‘the judgment in Promoimpresa’), and of 28 May 2020, ECO-WIND Construction (C‑727/17, EU:C:2020:393; ‘the judgment in ECO-WIND Construction’).

5 As amended by legge costituzionale n. 3 – Modifiche al titolo V della parte seconda della Costituzione (Constitutional Law No 3 – Amendments to title V of the second part of the Constitution) of 18 October 2001 (GURI No 248 of 24 October 2001).

6 Regio Decreto n. 1775 – Approvazione del testo unico delle disposizioni di legge sulle acque e sugli impianti elettrici (Royal Decree No 1775 – Adoption of the consolidated text of the legislation on water and electricity plants) of 11 December 1933 (GURI No 5 of 8 January 1934; ‘the 1933 Royal Decree’).

7 Legge della Regione Emilia-Romagna n. 17 – Disposizioni collegate alla legge regionale di stabilità per il 2024 (Law n.º 17 – Provisions related to the regional stability law for 2024) of 28 December 2023 (BURERT No 364 of 28 December 2023, part I) (‘Regional Law No 17/2023’).

8 ‘The Region’.

9 Judgment of 20 April 2023, Autorità Garante della Concorrenza e del Mercato (Municipality of Ginosa) (C‑348/22, EU:C:2023:301), and the judgment in Promoimpresa.

10 That is the term used by the President of the Council of Ministers, according to the third subparagraph of paragraph 2.1, ‘Facts’, of the order for reference.

11 Order for reference, ‘Facts’, paragraphs 4.1 and 4.3.2.

12 Order for reference, ‘Facts’, paragraphs 4.3.2 and 6.

13 The Region refers, inter alia, to Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20), and Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125), as last amended by Directive (EU) 2024/1711 of the European Parliament and of the Council of 13 June 2024 amending Directives (EU) 2018/2001 and (EU) 2019/944 as regards improving the Union’s electricity market design (OJ2024, L 1711).

14 Paragraph 3, ‘Law’, of the order for reference (emphasis added). Article 117(1) of the Constitution requires a regional legislature to exercise its legislative powers in compliance with EU law and enables the constitutionality of the contested provision to be assessed from the perspective of its compatibility with the Treaties and secondary law.

15 Judgment of 27 April 1994 (C‑393/92, EU:C:1994:171, paragraph 28).

16 Order for reference, ‘Law’, paragraphs 7, in fine, and 7.1.

17 Order for reference, ‘Law’, third and fourth subparagraphs of paragraph 7.2, with references to Article 15 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), and Annex I, code 09310000-5, to Commission Regulation (EC) No 213/2008 of 28 November 2007 amending Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV (OJ 2008 L 74, p. 1).

18 Order for reference, ‘Law’, second subparagraph of paragraph 7.2. The referring court cites, in that connection, Article 2 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).

19 Reference is made, in particular, to Annex I, code 65410000-0 to Regulation No 213/2008, which categorises the operation of a power plant as a ‘service’.

20 Order for reference, first subparagraph of paragraph 7, ‘Law’.

21 Article 2(2) lays down a list of activities which, although they may be classified as services, are excluded from the material scope of Directive 2006/123. However, those exclusions have not been relied on in the present case.

22 Formerly Article 50 TEC. In accordance with that provision, the definition of ‘service’ is residual in nature and includes services ‘where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons’ (emphasis added).

23 The wording adopted by the Court in the judgment in Promoimpresa is ‘Conditions for the application of Article 12 of Directive 2006/123’ (emphasis added).

24 At the hearing, the Italian Government stressed that the contested regional law makes the possibility of obtaining an ‘extension’ of a concession conditional on the receipt of incentives which, by their very nature, mean that a small-scale diversion hydroelectric plant in receipt of such incentives must not be an isolated plant where the electricity generated is intended exclusively for self-consumption but rather a plant connected to the national grid which injects into that grid at least some of the electricity generated. However, that circumstance is not apparent from the facts and national legal framework set out in the order for reference. It falls to the referring court alone to clarify the contents of its national law and the factual characteristics of the small plants with which the dispute is concerned.

25 Paragraph 7.3, ‘Law’, of the order for reference. Emphasis added.

26 The judgment in Almelo (paragraph 28): ‘In [EU] law, and indeed in the national laws of the Member States, it is accepted that electricity constitutes a good …’ The judgment in ECO-WIND Construction, paragraph 57: ‘the activity of producing a product cannot be regarded, in itself, as a service’. Emphasis added.

27 The judgment in ECO-WIND Construction, paragraph 59, with reference to the provision of network regulation services and energy price security services.

28 Laid down exhaustively in Article 6(2) of the 1933 Royal Decree: the generation of motive power (point (a)); drinking water (point (b)); irrigation (point (c)); plugging (point (d)); industrial uses, understood by reference to uses other than those expressly indicated by Article 6 (point (e)); use in fish breeding and research (point (f)); the creation of reservoirs for use against fires and elevation for the purpose of energy reclassification (point (g)).

29 Paragraphs 43 and 44 of the Italian Government’s written observations.

30 The Italian Government asserts, in paragraph 22 of its written observations, that ‘the concession awarded to the operator in fact concerns a right to divert public water and to use it for the production of electricity by constructing a plant and a number of works, which, in addition, must be used in accordance with all the requirements set out in the concession itself’ (emphasis added). Therefore, that operator is not awarded a general ‘concession of a (small-scale) water diversion’ but, specifically, a ‘concession of a (small-scale) water diversion for hydroelectric use’.

31 At the hearing, the Italian Government adopted a different approach, based on the nature of the financial incentives whose receipt justifies the temporary extension of the concession under national law. It argued that the receipt of those incentives is based on the assumption that the plants concerned are connected ‘to the national distribution network’. The Italian Government further argued that, ‘in relation to those plants, it is not necessary to examine whether or not the provision of services is ancillary to the production of electricity, as that provision of services is inherent to the activity carried out’ by the small-scale hydroelectric diversion. That argument is vitiated by a degree of circularity and still fails to clarify what ‘service’ the small-scale hydroelectric diversion would provide by simply being connected to the national electricity network.

32 Paragraphs 29 and 30 of the Italian Government’s written observations.

33 Such as waste management, the control of emissions, or the disposal of special waste which entails the obligation to clean up the soil.

34 Articles 11 and 12bis of the 1933 Royal Decree.

35 A services concession is characterised by the fact that the public authority entrusts the exercise of a service activity, a service the provision of which would as a rule fall to that public authority, to the concessionaire, thus requiring that concessionaire to provide a specific service and preventing it from being at liberty to withdraw from the provision of that service: Opinion of Advocate General Szpunar in Joined Cases Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:122, paragraph 62).

36 As regards small-scale diversions, Italian law differentiates between ‘dry works’ (not situated on the riverbed) and ‘wet works’ (constructed within or in the immediate vicinity of the riverbed). The former are the property of the concessionaire, including once the concession has expired.

37 At the hearing, the Commission confirmed that that interpretation of Annex I to Regulation No 213/2008 is correct and that the operation of a power plant, as a service, may be separated for legal purposes from the activity carried out by the plant as such.

38 Paragraphs 31 to 36 of the Commission’s written observations.

39 The Commission pointed out at the hearing that the main feature of large-scale hydroelectric diversions is their ability to be activated rapidly in order to generate a high amount of energy in a short period of time, which makes it possible to meet occasional requirements of an increased demand for electricity, thereby ensuring the balance and stability of the electricity network.

40 Judgment of 30 January 2018 (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 94): ‘… the applicability of Directive 2006/123 does not depend on a prior analysis of the importance of the perspective of freedom to provide services in the light of the particular circumstances of each case …’

41 The judgment in X and Visser, paragraph 94.

42 The judgment in Promoimpresa, point 1 of the operative part.

43 Paragraphs 46 and 47 of the Italian Government’s written observations.

44 Infringement proceedings No 2011/2026.

45 Paragraphs 21 to 30 of the Italian Government’s written observations. It claims, in essence, that the concessionaire does not solely generate electricity but must also perform various other activities associated with the operation of the diversion, in accordance with the conditions laid down in the concession.

46 Paragraphs 46 and 47 of the Italian Government’s written observations: ‘the production of electricity is thus absorbed into the scope of the concession of public property, thereby creating a situation that is perfectly analogous to that of an authorisation to pursue a business activity on State-owned land, already examined by [the Court]. Accordingly, the principles laid down in the well-known judgment [in Promoimpresa] are also applicable in this case’ (emphasis added).

47 See paragraphs 42, 44 and, in particular 45: ‘as regards the concession of State-owned property … of greater significance is the grant to a private operator of an exclusive right over State-owned property, which must be exercised with respect for the general public interest’. The Italian Government repeated that argument at the hearing, claiming that, when applying the case-law arising from the judgment in ECO-WIND Construction, account must be taken of the nature of the natural resources used to generate electricity (limited or unlimited resources) and of their legal status (public property or private property). For its part, the French Government pointed out that the ‘end product’ (electricity) remains the same, regardless of the nature of the source from which it is generated.

48 Although the judgment in Promoimpresa did not consider explicitly whether the concessions at issue on that occasion involved the pursuit of an activity which could be classified as a ‘service’; that was understood implicitly. In those cases, the maritime and lakeside property was to be used for activities (kiosk, veranda, bathing facilities, jetty and pontoon on land around Lake Garda and seaside resorts in Sardinia) whose classification as services was not in doubt.

49 That approach also appears to be questionable in relation to a number of the purposes referred to in Article 6 of the 1933 Royal Decree. In accordance with that provision, water may be used for the production of a ‘good’ and for the supply of a ‘service’. For example, ‘use in fish breeding and research’ could pursue commercial aims (targeted, for example, at the food industry) and also ecological or habitat-conservation aims.

50 That same feature is highlighted by judgments No 17 and No 18 of 9 November 2021 of the Consiglio di Stato (Council of State, Italy), which the Italian Government cited before the referring court (paragraph 5, ‘Facts’, of the order for reference). It was recognised in those judgments that, in the case of a concession for a seaside resort, an economic operator is granted permission for the exclusive use of State-owned maritime property ‘as a business asset and to perform, on that basis, a business activity consisting of the supply of tourist and leisure services’.

51 It is not apparent from the information in the case file that Italian (State) law governs the renewal stage of concessions of small-scale hydroelectric diversions.

52 Point IV of letter of formal notice C(2019) 1292 final of 7 March 2019, which includes a number of references to the judgment in Promoimpresa.

53 Judgment No 201 of 13 December 2018, cited in paragraph 2.2.2, ‘Facts’, of the order for reference and paragraphs 37 and 38 of the Italian Government’s written observations.

54 In judgment No 201 of 13 December 2018, it states: ‘… The fact that the concept of authorisation, which is relevant for the purposes of Article 12, may include the concession of State-owned property was clarified by the Court of Justice in the judgment in [Promoimpresa]’. Judgment No 58 of the same court, of 23 May 2024, refers to judgment No 201 of 13 December 2018 and to a number of opinions of the AGCM.

55 The Segnalazione del 3 marzo 2021 n. AS1722 ‘Rinnovi automatici di concessioni per piccole derivazioni d’acqua a scopo idroelettrico’ (report of 3 March 2021, No AS1722, ‘Automatic renewal of concessions of small-scale water diversions for hydroelectric use’, published in the Journal of the AGCM, No 10, of 8 March 2021), states that ‘the operation of hydroelectric plants to generate electricity is an economic activity involving the supply of a service, within the meaning of Article 57 [TFEU], to which the principle of freedom of establishment enshrined in Article 49 TFEU and, more specifically, the principles set out in Directive 2006/123/EC, are also generally applicable’. The other opinions of the AGCM, cited in paragraph 2.2.2, ‘Facts’, of the order for reference, refer either to the judgment of the Tribunale Superiore delle Acque Pubbliche (High Court for matters involving public water) or to the report of 3 March 2021, No AS1722, without providing any additional justification.

56 The generating power of a hydroelectric plant is proportional to the height of the fall and the harnessed flow.

57 Judgment of 20 April 2023, Autorità Garante della Concorrenza e del Mercato (Municipality of Ginosa) (C‑348/22, EU:C:2023:301, paragraph 46).

58 Ibid., paragraph 48.

59 In so far as is important for the present purposes, the national legislation treats that difference as meaning that the renewal of large-scale hydroelectric diversions is subject to a prior call for tenders.

60 Even in its most basic form, a small-scale hydroelectric diversion must have infrastructure to: (1) divert part of a river’s flow from its natural course (weirs and intakes); (2) carry the water (using channels or pipes) to the electromechanical equipment (turbines and generator), situated at the lowest point of the plant; (3) return the water to its natural course after use (return channel).

61 In run-of-river power plants, the production of electricity is directly linked to the river’s flow: the plant generates power provided that the flow exceeds the necessary technical minimum to activate the turbines, while, on the other hand, production ceases if the water level falls below that threshold. See paragraphs 40 and 41 of the Region’s written observations.

62 Paragraph 41 of the Region’s written observations.

63 For the purposes of the initial award stage, articles 7, 8, 9 and 12bis of the 1933 Royal Decree create a tendering procedure the aim of which is: (a) to evaluate the impact of a particular project on a specified place; and (b) to compare, where necessary, multiple applications which propose ‘technically incompatible’ projects with a view to selecting the project which guarantees a more efficient use of water resources or, in the alternative, which offers greater economic and financial guarantees for its immediate implementation.

64 Paragraph 44 of the Region’s written observations.

65 ‘Member States shall ensure that specific, simplified and streamlined authorisation procedures exist for small decentralised and/or distributed generation, which take into account their limited size and potential impact …’.

66 At the hearing, the Region explained that, as a general rule, following the expiry of a concession of a small-scale water diversion channel, for purely precautionary purposes (without that requirement being expressly laid down in law), a practice is adopted de facto, whereby the application for renewal is publicised through official channels and a period is set during which interested parties may lodge any objections. However, the Region also confirmed that that practice is not followed where renewal is granted in order to bring the duration of a concession into line with the period of receipt of the incentives.

67 That limitation of the questions would be mandatory if the national measure applied to a sphere which has been the subject of full harmonisation at EU level, meaning that it must be assessed in the light of the harmonising rules and not the provisions of the Treaty. The Court has held that Articles 9 to 13 of Directive 2006/123 provide for exhaustive harmonisation concerning the services falling within their scope. See the judgment in Promoimpresa, paragraphs 59 and 61.

68 Third subparagraph of paragraph 5, ‘Law’, of the order for reference.

69 Directive 2006/123 is not the only EU provision (of secondary law) which governs the grant of exclusive rights for the exploitation of State-owned property. Other provisions governing the attainment of the single market for electricity, such as Directive 2019/944, are based on similar premisses, without classifying the sole production of electricity as a ‘service’.

70 Judgment of 11 July 2024, Società Italiana Imprese Balneari (C‑598/22, EU:C:2024:597, paragraphs 44 and 46).

71 Judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraphs 54 and 55).

72 The judgment in Promoimpresa, paragraph 74 and point 2 of the operative part. The proposition that the part of the judgment in Promoimpresa relating to Article 49 TFEU is applicable to this case does not contradict the assertion that the case-law in that judgment concerning Article 12 of Directive 2006/123 may not be extended to include the sole production of electricity.

73 At the hearing, the question arose as to whether the legal rules applicable to small-scale hydroelectric diversions used for self-consumption could have their own features. The Italian Government and the Region both agreed that there are in fact no plants used exclusively for self-consumption, without being connected to the national grid, a matter which it falls to the national court to verify.

74 The Italian Government submits that the receipt of the incentives on which the extension of concessions is made conditional in the regional legislation is intended to enable the attainment of the Union’s aims in the field of renewable energy. That objective plays a fundamental role in Directive 2019/944, and consumers are actively involved in its attainment (see, inter alia, recitals 6, 10 and 42 of that directive).

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