Article 15-bis Litigation | Secab C-423/23 and Italian Council of State

Litigation and case law

Documentary monitoring of actions, interim orders and open legal issues.

Current status: the dispute is open, not resolved. The Council of State has already ruled twice in 2026 — first confirming that compatibility questions beyond the Secab judgment remain unanswered and referring four new cases to the EU Court of Justice, then ordering the regional court (TAR) to schedule the merits hearing promptly. That merits ruling is still pending: no hearing date has been confirmed publicly as of this page's last update.

Litigation monitoring

The Committee does not replace legal counsel and does not provide legal advice. This section is documentary: it collects key references to understand ongoing litigation, open questions and the practical effects of compensations.

The Committee’s institutional and data-driven work is complementary to legal actions. In addition to the legal compatibility of the mechanism, it is necessary to document actual business hardship, financial sustainability and the risk of irreversible damage.

Operational principle: companies should not have to reach irreversible distress before the problem is acknowledged.

Council of State order - 28 July 2026

The Committee monitors the interim order relating to case R.G. 5895/2026, where the Council of State highlighted the need to examine the merits of EU-law compatibility issues relating to the two-way compensation mechanism.

The order should be presented precisely: it is not a general suspension of compensations, but it strengthens the need for an in-depth merits review.

What the Secab judgment actually decided

In January 2026 the Court of Justice of the EU ruled on case C-423/23 (Secab v ARERA and GSE), referred by Italy's regional administrative court (TAR Lombardia) in 2023. The Court's finding is narrower than it may sound: EU law does not, in principle, prevent a national revenue cap of this kind, calculated on the market prices of 2010–2020 adjusted for inflation — provided it does not undermine investment in renewables. The Court did not strike down Article 15-bis. It sent the concrete question — whether the mechanism, as applied, actually protects those investments — back to the Italian courts to assess.

That assessment is still ongoing. Italy's Council of State subsequently found that further compatibility questions, not fully covered by Secab, remain open, and referred four new cases to the Court of Justice (pending as C-878/25 to C-881/25). In the Committee's view, that unresolved state is itself the problem: producers continue to operate, and be subject to clawbacks, under a mechanism whose compatibility with EU law has not yet been fully confirmed either way.