La promozione di fonti energetiche rinnovabili nel diritto internazionale, europeo ed interno

The aim of this thesis is to analyze the promotion of renewable energy sources from a juridical point of view. In particular, an assessment of the international and European obligations in this field is undertaken, alongside with an analysis on how the same obligations are applied at a national level. First, the research underlines the existence of the most relevant instruments of promotion at the international level (the treaties on climate change: the Kyoto Protocol and the Paris Agreement). These instruments, in accordance with the principle of common but differentiated responsibilities, oblige States to pursue efforts of climate change mitigation which, indirectly, require a major diffusion of renewable energy sources. In the last decades, a consistent soft law has formed through the overmentioned treaties and through other declarations (Stockholm Declaration; the 2030 Agenda of the UN). These instruments, balancing the customary principle of permanent sovereignty over natural resources, have been an important driver towards the energy transition. This bundle of obligations and principles has led the European Union, in application of the Kyoto Protocol and the Paris Agreement, to adopt an environmental policy based on the development of clean forms of energy. In the Treaty on the Functioning of the European Union, Article 194 was inserted. This Article, whose formulation is ambiguous, projects the Union towards the “development of new and renewable forms of energy”, but at the same time allows States to choose between different energy sources. In secondary legislation, a more and more ambitious plan of promotion was adopted, through specific Directives entailing a binding target for renewable energy consumption. The overmentioned treaties, principles and Directives have been transposed into the Italian national legislation, which has adapted to the international and European obligations (D.lgs. 387/2003; D.lgs. 28/2011). The application of the international and European Directives finds a concrete application in the jurisprudence of administrative judges and the Constitutional Court. This one has, in several decisions, elaborated the “principle of maximum diffusion of renewable energy sources”, deriving from the supranational obligations, and thus limiting the restrictive Regional legislation in this field. During this research, together with the increasingly ambitious policies developed by governments for their energy transition, profiles regarding the discretion of States in shaping the same policies have emerged. In particular, an analysis of the jurisprudence of the Court of Justice of the European Union (Preussen Elektra, Alands Vindkraft, Essent Belgium) showed a tension between the free movement of goods and national policies of support schemes. The Court had to evaluate the compatibility of support schemes which privileged national producers with the free movement of goods inside the Union. Beyond the jurisprudence of the European Union, arbitrations based on WTO rules and on the Energy Charter Treaty (particularly important in the case of Italy, with 12 cases since 2014) show the difficult balance between a free policy of support schemes and trade/investment rules which must be observed. In conclusion, from this work it results that the legal aspects of the promotion of renewable energy are in evolution in international and European law. Together with supranational increasingly demanding obligations in this field, States’ policies regarding renewable energy have become a central aspect in international and European disputes