07 dic 2024
This critical commentary examines the legal structures available for Renewable Energy Communities (RECs) in light of national legislation.
The flexibility in choosing a legal form, as outlined in Article 31 of Dlgs 199/2021, allows for various organizational models, provided they adhere to the non-profit, open, and voluntary nature of RECs.
The commentary discusses the incompatibility of traditional corporate forms with RECs, highlighting associations and cooperatives as viable options.
It also explores the potential of cooperative models and participation foundations, emphasizing their benefits and limitations.
The discussion concludes with insights into the broader implications and opportunities for RECs.
Renewable Energy Communities (RECs) are gaining attention as a sustainable solution for energy production and distribution. However, the choice of legal structure for these communities is a critical decision influenced by national legislation. Article 31 of Dlgs 199/2021 provides a framework for RECs, emphasizing their non-profit nature, openness, and voluntary participation, while leaving the choice of legal form open. This flexibility allows for various organizational models, but it is crucial to maintain the core characteristics of RECs. The legislation does not prescribe a specific legal form, but it requires RECs to be private legal entities without profit distribution. This requirement excludes traditional corporate forms like joint-stock companies (Spa) or limited liability companies (Srl), except for cooperatives. Associations and cooperatives emerge as suitable options, each offering unique advantages. Associations are particularly appealing for smaller RECs due to their lower establishment costs and ability to uphold the open-door principle. They align well with the environmental and social goals of RECs, making them a practical choice for communities with limited resources. Cooperatives, on the other hand, offer a more flexible structure, especially for larger RECs or those initiated by public entities. They facilitate active and democratic participation of members in decision-making processes, financial commitments, and profit allocation. The cooperative model supports variable capital, allowing new members to join and contribute to the community's operations. This adaptability makes cooperatives a popular choice in countries where RECs are well-established. Moreover, cooperatives can benefit from the Third Sector reform, which allows them to qualify as social enterprises and enjoy tax advantages, such as profit tax exemptions under Article 18 of Dlgs 112/2017. This fiscal benefit further enhances the appeal of cooperatives for RECs. Another potential legal structure for RECs is the participation foundation. Although less common, this form can accommodate the specific needs of RECs by involving multiple founders or participants. Participation foundations emphasize active community involvement in management and the gradual accumulation of assets beyond the initial endowment. They are particularly suitable for managing significant assets dedicated to energy production while ensuring community engagement. The choice of legal structure for RECs is a topic of ongoing debate, with each model offering distinct advantages and limitations. The ability to establish RECs in various legal forms and their recognition as third-sector entities, due to their role in energy production and sharing, fuels discussions on the best models to adopt.