delivered on 29 October 2020 (1) (i)

Joined Cases C‑798/18 and C‑799/18

(C‑798/18),

Athesia Energy Srl and Others,

(C‑799/18)

Ministero dello Sviluppo Economico,

Gestore dei servizi energetici (GSE) SpA,

interveners:

Elettricità Futura – Unione delle Imprese Elettriche italiane,

Confederazione Generale dell’Agricoltura Italiana – Confagricoltura

(Requests for preliminary rulings from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy))

(References for a preliminary ruling – Environment – Directive 2009/28/EC – Promotion of the use of energy from renewable sources – Production of electrical energy from solar photovoltaic installations – Support scheme – Alteration of incentives already granted but not yet due for payment – Articles 16 and 17 of the Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Right to property – Concept of ‘possessions’ – Legitimate expectations – Energy Charter – Article 10)

1.In 2014, against a background of rapid growth in the photovoltaic energy sector, the Italian legislature sought to reduce the incentives payable to photovoltaic energy operators within its territory.

2.The present references for preliminary rulings, made on 17 December 2018 by the Tribunale ammistrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), relate to the compatibility of such an alteration with EU law, and more specifically to any limits which may be imposed by Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which relate, respectively, to the freedom to conduct a business and the right to property.

3.The references have been made in proceedings between a significant number of operators of photovoltaic installations in Italy, together with the Federazione Nazionale delle Imprese Elettrotecniche ed Elettroniche (National Federation of Electrotechnical and Electronics Companies; Anie), (2) and the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) and Gestore dei servizi energetici (GSE) SpA (‘GSE’), a company in which the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy) has a 100% shareholding.

4.What makes the present cases particularly noteworthy is the fact that GSE entered into agreements with those operators under which they were to be paid incentives for a period of twenty years, in the context of a support scheme intended to transpose, into Italian law, successive European directives on the promotion of the use of renewable energy. (3)

5.The reform introduced by the Italian legislature was effected against that specific legislative background, with a view to altering, to the disadvantage of the operators referred to above, the incentives payment of which had been provided for in those agreements, but had not yet fallen due.

6.As requested by the Court, this Opinion will focus on the interpretation of Articles 16 and 17 of the Charter, and of Article 10 of the Energy Charter, (4) read in conjunction with Article 216(2) TFEU. (5)

7.At the conclusion of my analysis, I will suggest that the Court should rule that Articles 16 and 17 of the Charter do not preclude a reform of the kind instituted by the Italian legislature. I will also explain why I do not consider that Article 10 of the Energy Charter, read in conjunction with Article 216(2) TFEU, is applicable in the present cases.

II. Legal background

8.Article 10(1) of the Energy Charter, which is headed ‘Promotion, protection and treatment of investments’, provides as follows: ‘Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal …’

9.Recital 25 of Directive 2009/28 provides as follows: ‘Member States have different renewable energy potentials and operate different schemes of support for energy from renewable sources at the national level. … For the proper functioning of national support schemes it is vital that Member States can control the effect and costs of their national support schemes according to their different potentials. One important means to achieve the aim of this Directive is to guarantee the proper functioning of national support schemes, as under Directive 2001/77/EC, in order to maintain investor confidence and allow Member States to design effective national measures for target compliance …’

10.Article 3 of that directive, which is headed ‘Mandatory national overall targets and measures for the use of energy from renewable sources’, provides: ‘1. Each Member State shall ensure that the share of energy from renewable sources … in gross final consumption of energy in 2020 is at least its overall target for the share of energy from renewable sources in that year, as set out in the third column of the table in Part A of Annex I. … 3. In order to reach the targets set in paragraphs 1 and 2 of this Article Member States may, inter alia, apply the following measures: (a) support schemes; …’

11.Article 26 of Decree-Law No 91/2014 (6) is worded as follows: ‘1. In order to optimise the management of the periods for collection and payment of the incentives, and promote a more sustainable policy of support for renewable energies, the feed-in tariffs for electricity produced by solar photovoltaic installations … shall be paid according to the arrangements set out in the present article. 2. With effect from the second half of 2014, [GSE] shall pay the feed-in tariffs referred to in paragraph 1 by way of equal monthly rates, based on 90% of the estimated average annual production capacity of the relevant installation during the calendar year of production, and shall adjust the amount, on the basis of actual production, before 30 June of the following year. The practical arrangements shall be defined by GSE within 14 days of the publication of the present decree and approved by decree of the Minister for Economic Development. 3. From 1 January 2015, the feed-in tariff for energy produced by installations with a rated power of more than 200 kW shall be restructured, at the discretion of the operator, on the basis of one of the following options to be notified to GSE by 30 November 2014: (a) the tariff shall be paid for a period of 24 years, from the date on which the installation becomes operational, and shall consequently be recalculated using the percentage reduction indicated in the table provided in Annex 2 to the present decree; (b) without prejudice to the 20-year payment period, the tariff shall be restructured by providing for an initial period of application of a tariff that is reduced in comparison with the current one and a second period of application of a tariff that is increased in equal measure. The restructuring percentages shall be set by means of a decree issued by the Minister for Economic Development, following consultation with the Autorità per l’energia elettrica, il gas e il sistema idrico (Regulatory Authority for Electricity, Gas and Water), to be issued by 1 October 2014 so as to enable, should all those eligible sign up for the option, a saving of at least EUR 600 million each year for the 2015-2019 period, in comparison with payments under the currently applicable tariffs; (c) without prejudice to the 20-year payment period, the tariff shall be reduced by a percentage value of the incentive granted as at the date on which the present decree enters into force, for the remaining duration of the period of application of that incentive, according to the following quantities: (1) 6% for installations with a rated power of more than 200 kW, up to a rated power of 500 kW; (2) 7% for installations with a rated power of more than 500 kW, up to a rated power of 900 kW; (3) 8% for installations with a rated power of more than 900 kW. If no notification is provided by the operator, GSE shall apply the option described under (c). …’

III. The main proceedings, the question referred for a preliminary ruling and the procedure before the Court

12.In the context of the Italian support scheme for the production of renewable energy (implemented by Legislative Decrees Nos 387/2003 (7) and 28/2011), (8) GSE entered into private-law agreements with operators of photovoltaic installations with a rated power of over 200 kW, drawn up on the basis of a standard form contract produced by the Italian Regulatory Authority for Electricity and Gas. (9) Those agreements, which were intended to run for a period of 20 years, provided for the regular payment of feed-in tariffs to such operators.

13.It was against that background that, in 2014, the legislation was reformed so as to change the incentives the payment of which was provided for by those agreements, but had not yet fallen due. There were two aspects to this reform, which was effected by Article 26(2) and (3) of Decree-Law No 91/2014. (10)

14.First, Article 26(2) of that decree-law provided that, with effect from the second half of 2014, the incentives would be paid by way of equal monthly rates, which would be based on 90% of the estimated average annual production capacity for the relevant installation, and made during the calendar year of production. The adjustment to reflect actual production would not, henceforth, be made until a later date (30 June of the following year).

15.Secondly, Article 26(3) of that decree-law required the operators in question to move to a different system of tariffs, based on three options – all of which were disadvantageous to them – with effect from 1 January 2015, or in other words before the agreements concluded with GSE expired.

16.Against that background, the applicants in the main proceedings sought an order from the referring court annulling the ministerial decrees of 16 and 17 October 2014, which implemented Article 26(2) and (3) of Decree-Law No 91/2014. (11)

17.The referring court states that it referred the question of the constitutionality of Article 26(3) of that decree-law to the Corte costituzionale (Constitutional Court, Italy). By decision of 24 January 2017, (12) the Constitutional Court ruled that that provision was not incompatible with the Italian Constitution.

18.However, the referring court considers that certain issues which have a bearing on the outcome of the matters before it were not resolved by the decision of the Corte costituzionale (Constitutional Court). More specifically, it considers that clarification is needed, from the perspective of EU law, as to whether it is open to the national legislature to intervene in such a way as to reduce the amount of the incentives granted under a support scheme intended to promote the use of renewable energy, in circumstances where the payment of those incentives has already been provided for in agreements concluded with the beneficiaries.

19.The referring court wishes to establish, in particular, whether Article 26(2) and (3) of Decree-Law No 91/2014 is contrary to Articles 16 and 17 of the Charter, in that it interferes with the right of the beneficiaries to organise and conduct their economic activities on the basis of those agreements. For the same reasons, it entertains doubt as to whether that provision is compatible with the Energy Charter, observing that Article 10(1) of that charter provides that each contracting party is to ‘encourage and create stable, equitable, favourable and transparent conditions for … Investments in its Area’.

20.In those circumstances, the Tribunale ammistrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following question to the Court of Justice, in each of the joined cases, for a preliminary ruling:

‘Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of [Decree-Law No 91/2014], which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with [GSE], a public company responsible for that process?

In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the [Charter], with Directive [2009/28] and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the [Energy Charter]?

Written observations were lodged with the Court by the applicants in the main proceedings, the interveners in the present cases (namely Elettricità Futura – Unione delle Imprese Elettriche italiane and Confederazione Generale dell’Agricoltura Italiana – Confagricoltura), the Italian, Czech, German, Greek and Spanish Governments, and the European Commission.

By decision of the President of the Court of 5 February 2019, the present cases were joined for the purposes of the written and oral parts of the procedure and of the judgment.

The parties replied in writing to questions put by the Court.

The present requests for a preliminary ruling essentially invite the Court to determine whether EU law precludes a Member State from reducing the amount of the incentives provided for under a support scheme intended to promote the use of renewable energy in accordance with the objectives laid down by successive European directives in that field.

According to the information provided by the referring court, the matters before it form part of very extensive national litigation. The referring court has made three requests for a preliminary ruling, (13) in identical terms, and these are currently pending before the Court of Justice. Furthermore, other Member States have, like the Italian Republic, amended the measures taken in their territories for the promotion of the use of renewable energy. (14)

In the sections below, I will explain why I consider that a reform such as that introduced by the Italian legislature in the circumstances of the main proceedings does not infringe the freedom to conduct a business or the right to property provided for by Articles 16 and 17 of the Charter, and that, even supposing that it did interfere with the rights protected by those provisions, such interference would in any event be justified and proportionate, having regard to the objectives pursued by the Union in the field of promotion of the use of renewable energy (Section A). I will also conclude, following a literal and purposive interpretation of the Energy Charter, and more specifically Article 10 thereof, that that provision is not applicable to the main proceedings (Section B).

Article 16 of the Charter provides that ‘the freedom to conduct a business in accordance with Union law and national laws and practices is recognised’. The protection afforded by that article covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter. (15)

Turning to Article 17 of the Charter, this provides in paragraph 1 that ‘everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest’.

The explanations relating to that article state that it is based on Article 1 of the First Additional Protocol to the ECHR. (16) Thus, under Article 52(3) of the Charter, the right to property protected by Article 17 of the Charter has the same meaning and scope as it has under the ECHR, it being understood that EU law can nevertheless expand the protection given to them. (17)

Nonetheless, under the case-law of the Court, the freedom to conduct a business and the right to property are not absolute rights but must be viewed in relation to their social function, (18) and limitations may be imposed on their exercise as long as, in compliance with the principle of proportionality, they are necessary and justified by objectives of general interest pursued by the European Union. (19) Those requirements arise from Article 52(1) of the Charter, which provides, furthermore, that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and must respect the essence of those rights and freedoms. (20)

In the present case, the applicants in the main proceedings and the interveners argue that Article 26(2) and (3) of Decree-Law No 91/2014 infringes their right to property, seeking as it does to alter, to the disadvantage of operators of photovoltaic installations, the amounts of the incentives whose payment had been provided for in the agreements they had concluded with GSE, but had not yet fallen due. They state that that decree-law has the effect of depriving them of their possessions, given that the costs associated with the construction and commissioning of photovoltaic installations, on the basis of which those amounts were determined, have already been borne in their entirety by the operators. In that regard, they observe that Directive 2009/28 (the objectives of which were intended to be implemented by the support scheme at issue) emphasises, in recitals 8, 14 and 25, the need to maintain ‘investor confidence’ and offer ‘certainty’ to investors. (21) Those same factors lead them to conclude, essentially, that the decree-law in question restricts the operators’ freedom to conduct a business.

The Italian, Czech, Greek and Spanish Governments take the opposing view that Decree-Law No 91/2014 does not in any way deprive operators of photovoltaic installations of their possessions, and does not restrict their freedom to conduct a business.

Given those different positions, I think it would be useful to begin by pointing out certain features of the support scheme, as they appear from the file available to the Court, so as to present a more detailed picture of the background to the reform introduced by Article 26(2) and (3) of Decree-Law No 91/2014.

First, that support scheme is intended to transpose Directive 2009/28 into Italian law. It is apparent from Article 3(3) of that directive that the Member States may adopt support schemes in order to reach the ‘mandatory national overall targets … for the use of energy from renewable sources’. In that regard, recital 25 of that directive states that ‘Member States have different renewable energy potentials’ and that it is vital for them to be able to control the effect and costs of their national support schemes according to their different potentials.

The Court has held that Member States are not under any obligation, for the purpose of promoting the use of energy produced using renewable sources, to adopt support schemes, and that they therefore have discretion as to the measures they consider appropriate for the purpose of reaching the mandatory national overall targets set by Directive 2009/28. Such discretion means that Member States are free to adopt, alter or withdraw support schemes, provided that, inter alia, those targets are met. (22)

In the light of that case-law, it seems to me that Directive 2009/28 does not, in itself, present any obstacle to a reform such as that introduced by the Italian legislature in the circumstances of the main proceedings.

Those considerations will assist me in determining, later in my analysis, whether operators of photovoltaic installations can rely on a legitimate expectation that the benefit of the incentives provided for in the agreements with GSE would remain unchanged for the entire duration of those agreements and, accordingly, can validly argue that such a reform infringes their right to property.

Secondly, it had already been provided, in Article 7(2)(d) of Legislative Decree No 387/2003, that the incentives granted were to be in a decreasing amount, determined for a specific period. As regards Legislative Decree No 28/2011, pursuant to which the agreements between GSE and those operators were concluded, it is apparent from Article 24(2)(d) of that decree that those agreements were drawn up on the basis of a standard form contract produced by the Italian Regulatory Authority for Electricity and Gas. According to the applicants in the main proceedings, that standard form contract provided that GSE had a unilateral right to amend its terms in order to take account of changes in the relevant legislative framework. (23) Those matters seem to me to indicate that the arrangements for payment of the incentives could be changed and that their amount was liable to be reduced.

Thirdly, the reform effected by Article 26(2) and (3) of Decree-Law No 91/2014, which changed the incentives fixed in those agreements, was only applicable where provision had already been made for payment of the relevant amount but the payment had not yet fallen due, and did not affect payments which had already been made. (24)

In the next part of this Opinion, I will consider whether such a reform infringes the freedom to conduct a business and the right to property protected by the provisions of the Charter. I will conclude that it does not. To address the possibility of the Court not sharing that view, I will also set out, as an alternative basis for my conclusions, the reasons why I consider, having regard to the case-law referred to in point 30 of this Opinion, that any infringement of those rights would in any event be justified and proportionate, in the light of the objectives pursued by the Union in terms of promoting the use of renewable energy.

(a) The right to property

I note that the present cases concern two different aspects of property: the right which is claimed to have been granted, by the agreements concluded between the operators of photovoltaic installations and GSE, to the benefit of the incentives, and the right to use and operate such installations.

First aspect: infringement of the claimed right to the benefit of the incentives

As regards the substantive conditions set out in Article 17(1) of the Charter, the Court has held that the protection granted by that provision concerns rights with an asset value creating an established legal position under the legal system concerned, enabling the holder to exercise those rights autonomously and for his or her own benefit. (25)

In my Opinion in Commission v Hungary (Usufruct over agricultural land), (26) I stated that it is necessary, in essence, to determine whether two conditions are satisfied, namely, first, whether the rights relied on have an asset value and, secondly, whether an established legal position is created from those rights which enables the holder to exercise them autonomously and for his or her own benefit.

As regards the first condition, it is apparent from the case-law of the European Court of Human Rights that the concept of ‘possessions’ is not limited to the ownership of material goods, as certain other rights and interests constituting assets can also be regarded as ‘property rights’. (27) In certain circumstances, even legitimate expectations of future property claims can be protected under Article 1 of the First Additional Protocol to the ECHR. (28) Thus, measures providing for the future payment of a social security benefit (29) or subsidies (30) can generate a proprietary interest falling within the scope of that provision, as can contractual rights (31) or debts. (32)

In the circumstances of the main proceedings, I would be inclined to take the view that the right to receive the incentives under the agreements concluded with GSE is something of value which may be proprietary in nature. In particular, in so far as the beneficiaries have entered into those agreements on an ad hoc basis in their own names, it seems to me that it is an exclusive right.

Nevertheless, the question arises of whether that right constitutes an established legal position for the purposes of the second condition referred to in point 43 of this Opinion.

In that regard, the Court has held that, under the case-law on the interpretation of Article 1 of Protocol No 1 to the ECHR, future income cannot be considered to constitute ‘possessions’ that may enjoy the protection of Article 17 of the Charter unless it has already been earned, it is definitely payable or there are specific circumstances that can cause the person concerned to entertain a legitimate expectation of obtaining an asset. (33)

In the present case, it does not seem to me that the right to future payment of the incentives provided for by the agreements entered into between the operators of photovoltaic installations and GSE can be regarded as sufficiently definitive (34) for the reduction of those incentives and the alteration of the payment arrangements concerning them to amount to the expropriation of ‘property’ which already forms part of the operators’ assets. (35) As I have stated in point 39 above, Article 26(2) and (3) of Decree-Law No 91/2014 seeks only to alter those amounts whose payment had already been provided for but which had not yet fallen due, and does not affect payments already made.

Furthermore, I do not consider that the operators of photovoltaic installations can rely on a legitimate expectation that there would be no change in the benefit of those incentives for the entire duration of the agreements concluded with GSE.

On that point, it is apparent from settled case-law of the Court that any economic operator on whose part a national authority has created reasonable expectations may rely on the principle of the protection of legitimate expectations. However, where a prudent and circumspect economic operator could have foreseen the adoption of a measure likely to affect his or her interests, he or she cannot plead that principle if the measure is adopted. Moreover, economic operators cannot justifiably claim a legitimate expectation that an existing situation which may be altered by the national authorities in the exercise of their discretionary power will be maintained. (36)

In the circumstances of the main proceedings, it is for the referring court to determine whether a national provision such as Article 26(2) and (3) of Decree-Law No 91/2014 is in conformity with that principle. (37) Nevertheless, in the interests of providing that court with a useful answer, it seems to me that the following matters, which are apparent from the file available to the Court of Justice, can be given particular consideration.

First, it seems to me that a change in the incentives, to the disadvantage of operators of photovoltaic installations, could not have been regarded as unforeseeable even under Legislative Decrees Nos 387/2003 and 28/2011, which preceded Decree-Law No 91/2014. (38)

It is apparent from Article 7(2)(d) of Legislative Decree No 387/2003 that the incentives granted to operators of photovoltaic installations were, as I noted in point 38 of this Opinion, to be in a decreasing amount, determined for a specific period.

Furthermore, as regards Legislative Decree No 28/2011 the Court held, in the judgment in Agrenergy and Fusignano Due, (39) that the legislative provisions relating to the ‘fifth energy tariff’ adopted by virtue of that decree (40) were ‘of such a kind as to indicate at once to prudent and circumspect economic operators that the support scheme applicable to solar photovoltaic plants might be altered, or even withdrawn, by the national authorities in order to take account of changes in certain circumstances’.

Secondly, I note that the applicants in the main proceedings themselves admit that gradual reductions in the amount of the incentives granted have already been effected, beginning in 2011, by ministerial decrees pre-dating the adoption of Decree-Law No 91/2014.

Thirdly, it seems to me that the right reserved by GSE, in the agreements concluded with the operators of photovoltaic installations, to amend the terms of those agreements unilaterally, in order to take account of developments in the relevant legislative framework, (41) was a clear indication that the incentives were liable to be altered, or even withdrawn, precisely by virtue of changes in the legislation. Such changes were all the more foreseeable in view of the fact, as stated by the referring court, that those agreements were to remain in force for twenty years. Having regard to the duration of the agreements, a prudent and circumspect economic operator would, in my view, have been in a position to anticipate that market conditions, or the budgetary priorities of the Italian Republic, might change.

Lastly, I observe that, as I noted in point 35 of this Opinion, the Court has held, in the judgment in Agrenergy and Fusignano Due, (42) that Member States are not under any obligation, for the purpose of promoting the use of energy produced using renewable sources, to adopt support schemes under Directive 2009/28. That conclusion is supported by recital 25 of that directive, which essentially links the realisation of that objective to the potential of each Member State.

In the light of those matters, and contrary to the assertions of the applicants in the main proceedings and the interveners, there is little doubt, in my view, that in circumstances such as those of the main proceedings, a prudent and circumspect operator cannot rely on the principle of the protection of legitimate expectations, either on the basis of the legislative framework to which the support scheme at issue relates, or on the basis of Directive 2009/28. If a different conclusion were to be reached, it seems to me that, as the Italian Government rightly observes, the limits placed on the power of the Member States to determine their policies and amend their legislation, having regard to the general interest and to the purpose of Directive 2009/28, would be excessive by comparison with the discretion which the EU legislature has left them to adapt support schemes introduced under that directive to market conditions and to their budgetary priorities.

For those reasons, I consider that the right claimed by the operators of photovoltaic installations to receive the benefit of the incentives without alteration, for the entire duration of the agreements they concluded with GSE, is not protected by Article 17 of the Charter.

(2) Second aspect: infringement of the right to property which operators of photovoltaic installations have with regard to those installations

In what follows I will explain why, equally, I do not consider that Article 26(2) and (3) of Decree-Law No 91/2014 results in the operators’ use of their installations being regulated in a manner which is liable, in itself, to infringe their right to property.

In that regard, I note that, as is apparent from point 28 of this Opinion, the third sentence of Article 17(1) of the Charter provides, essentially, that while the use of possessions is protected by that provision, (43) it may be regulated by law in so far as is necessary for the general interest.

Under the case-law of the European Court of Human Rights, the concept of ‘control of the use of property’ is understood as relating to measures which, without entailing a transfer of ownership, seek to ‘limit or control’ the use of property. (44)

In the present case, the applicants in the main proceedings argue that the beneficiaries of the incentives invested in the photovoltaic installations they operate on the basis that those incentives were to be paid. Following the reform instituted by Article 26(2) and (3) of Decree-Law No 91/2014, they now find themselves unable to repay the bank loans they took out to finance those investments.

It does not seem to me, however, that those factors would justify a determination that Article 26(2) and (3) of Decree-Law No 91/2014 seeks to limit or control the use of the installations. That provision simply reduces the amount of support payable to the beneficiaries of the scheme, without imposing any other restrictions or obligations on them. It follows in my view, and indeed as the Commission argues, that the beneficiaries remain free to operate and invest in their installations as they see fit.

In those circumstances I share the Commission’s view that a provision such as Article 26(2) and (3) of Decree-Law No 91/2014 does not limit the use of photovoltaic installations by their operators.

In the light of all the foregoing, it must be held, in my opinion, that such a provision does not infringe the right to property enshrined in Article 17 of the Charter.

(b) The freedom to conduct a business

As regards the freedom to conduct a business protected by Article 16 of the Charter, the applicants in the main proceedings submit that Article 26(2) and (3) of Decree-Law No 91/2014 infringes both the freedom of contract of the beneficiaries of incentives and their right to dispose of their economic and financial resources freely.

I do not agree.

First, in relation to freedom of contract, I note that the Court has held that this includes, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service. (45)

It goes without saying that while Article 16 of the Charter seeks, amongst other things, to preserve the freedom of contract enjoyed by contracting parties, it is no part of its purpose to create rights for those parties which go beyond those already provided for in their contract, or to enable them to demand terms other than those already contained in that contract. Where the contract is a standard form contract drawn up by the other contracting party, freedom of contract consists, essentially, in deciding whether or not to accept its terms.

In the present case, I do not think there is any doubt that the agreements concluded between GSE and the operators of photovoltaic installations do not provide for a right on the part of the operators which prevents any alteration of the incentives.

On the contrary, it is apparent from those agreements that the amount of the incentives depends on the national legislation which enables them to be paid. (46) As I have already observed in points 38 and 56 of this Opinion, those agreements contain a clause permitting GSE to take account of developments in the applicable legislative framework.

It follows that where that amount has been changed pursuant to Article 26(2) and (3) of Decree-Law No 91/2014, the operators of photovoltaic installations have, in my view, simply been bound by the contractual terms which they freely accepted when they entered into the agreements.

In those circumstances, I do not consider that their freedom of contract has been infringed in any way.

Secondly, I note that the freedom to conduct a business also includes the right for any business to be able to freely use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it. (47)

In that regard, it is apparent from the case-law of the Court that the free use of the resources available to an undertaking is restricted where that undertaking is constrained to take measures which may represent a significant cost for it, have a considerable impact on the organisation of its activities or require difficult and complex technical solutions. (48)