Judgment TAR Lazio, Rome, Sec. III, 12.7.2022, no. 9572. In-house companies equal to public administrations for the purposes of the Thermal Account

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Through the ruling in question, the Lazio Regional Administrative Court cancelled the measure by which – on the assumption that the in-house company identified as the “admitted subject” could not be qualified as a public administration pursuant to Article 2 paragraph 1 letter a) Ministerial Decree February 16, 2016 – the application for incentives of the Conto Termico, submitted by the ESCO awarded the works and relating to some energy efficiency interventions carried out on an primary school owned by the municipality, had been rejected.

In fact, the College held that in a case such as the one at hand – in which the building subject to intervention fell within municipal property and the in-house company, wholly publicly owned and majority-owned by the municipality owning the said property, had been entrusted with the management and maintenance of municipal real estate, the execution of the specific energy efficiency intervention, the procedure for entrusting the works and the consequent access to the incentives under D. M. Feb. 16, 2016 – the in-house company itself could “only constitute a mere expression of the same local authority, to which alone is referable the intervention in question and on whose behalf the company acted, also through the signing of the energy performance contract with the appellant,” thus having to understand the municipality itself as an “admitted subject.”

According to what the Lazio Regional Administrative Court observed, “otherwise opining would unreasonably frustrate the underlying rationale of the Thermal Account, namely that of incentivizing the energy requalification of public buildings for public use, such as in the case at hand a school owned by the municipality, when the Administration has decided not to directly manage its real estate assets and/or the commissioning for the purpose of energy efficiency works, relying instead on in-house providing.”

The College, in upholding the appeal brought by the appellant, therefore deemed “in-house companies to be equal to public administrations for the purposes of the Thermal Account, where the efficiency work carried out concerns public property and is done on behalf of the same controlling Administration.”