To better framework the matter of Hydroelectric Derivations, it’s necessary consider that concerns the use of a state property, water, whose ownership belongs to the State (article 822 of the Civil Code and article 144 of Legislative Decree 152/2006). It also concerns aspects of environmental and ecosystem protection whose legislative power, exclusively, belongs to the State (article 117 second paragraph of the Constitution). In addition to this, it concerns the “national production, transport and distribution of energy” which belongs to the concurrent legislative power between the State and Regions (introduced with the entry into force of the amendments to Title V of Part II of the Constitution – article 117 third subparagraph).
To complete the framework, it should be mentioned the DPCM 10/12/2000 (Identification of assets and financial, human, instrumental and organizational resources to be transferred to the Regions and local authorities for the exercise of administrative functions and tasks in the field of public water system property) which definitively implemented the design prefigured by Law 59/1997 providing for the transfer of competences to the Regions, starting from 1 January 2001. This explains why, although the main reference legislation remains the National one, the Regions have, over time, enacted specific provisions valid in their own territory.
The Legislative Decree. 79/1999 C.D. “BERSANI DECREE” (Legislative Decree 16 March 1999 n. 79) was the regulatory watershed in the field of hydroelectric derivations as it effectively introduced the principle of liberalization of energy and competition required by the Community Directive. Differently from the previous regulatory regime, according to which the concessions held by ENEL did not expire and the others had a duration of up to 60 years, it set an extension to 12/31/2010 for the concessions of Large Derivations expiring within that date and defined the expiry of all ENEL large derivation concessions in 2029 (i.e. the thirtieth year following the entry into force of the same Legislative Decree 79/1999).