Court of Appeal: Abbanoa outlaw adjustments

Sacrosanct non-retroactivity

In the sentence, the judges throw away the redundant wastes of time proposed by Abbanoa to defend the indefensible and in a strong and clear way fix the subject of the dispute: "It is evident that the good for which the applicant seeks protection is respect for contractual conditions stipulated between the parties between which the principle is in force that the tariff, understood as consideration for the supply of the water service, must be commensurate with actual consumption and made up of various items which must, however, be predetermined and not subject to changes based on of ex post evaluations on the balance of management, under penalty of violation of the principle of non-retroactivity of the administrative act ". Two cornerstones, bilateral contractual conditions and the inviolable principle of non-retroactivity, which constitute the heart of the Judges' decision. Despite this, Abbanoa, however, tried in every way to undermine the first instance decision of the togates of Nuoro, including the assertion that the sentence was burdened by "lack of motivation", defending "the legitimacy of resolution no. 18 of 26 June 2014 and the claim of previous matches ».

Without power

No way. The Court of Appeal does not like frills: "The reason is unfounded." And with a precise reconstruction of the rules, the Judges come to affirm that "the competent authority approves a rate whose amount is such as to ensure coverage of investment costs", but the rules in force "do not attribute power to the Authority to determine the rates retroactively and in violation of art. 11 of the preleggi ". In the decisive passage on the sources and on the hierarchies of norms, the sentence proposes a masterful lesson of law. Referring to the provisions applied by Abbanoa, the Judges write: "Therefore, there is no provision conferring the power to the administrative authority, competent in terms of tariffs, to impose previous matches with evident retroactive effects and, therefore, the resolution on the basis of which Abbanoa claimed the payment in 2017 of the costs not covered for the period 2005/2011 is in contrast with the higher principles of our legal system, such as the principle of non-retroactivity and that of the contractual autonomy of the parties referred to in art. 1322 of the civil code ". In practice, Abbanoa would have applied and interpreted in its own way the provisions of the Authority, the ARERA, forgetting that this subject was not entitled to issue that type of contractual clause, moreover clearly in contrast with the cornerstones of the Civil Code.

Illegal

It is always the Judges who explain the illegality of bills and adjustments: "By making the tariff changes retroactively for the consumptions already made, there would be, on the one hand, a clear violation of the principle of legality in the context of the negotiation relationship under investigation. and therefore, non-retroactivity of administrative acts and on the other, in any case, an evident violation of the principles underlying the contractual relationship ". All this, adds the Court, because Abbanoa could not "unilaterally modify the agreed consideration after having initiated the administration of the supply, this by reason of the protection of the trust and good faith in the execution of the contract, principles recalled by the first judge to kit of the private representation of the relationship ". On the illegitimacy of those previous matches, which ended up in the 750,000 bills of Sardinian users, the Judges are explicit: "The resulting adjustments affect the consideration for the service already exhausted and remunerated, a consideration that the managing body would claim to integrate only aim to rebalance costs ". The second degree sentence actually anticipates, possibly, also the third degree one, that of the Supreme Court, given that the High Court has already ruled unequivocally on the adjustments, stating that any additional component of the tariff "cannot fail to place itself in contrast with the principle of non-retroactivity. It follows the illegality of the recovery mechanism for violation of the aforementioned art. 11. "

Return the balances

The conclusion of the sentence is without return: «The appeal must therefore be rejected, condemning the appellant to recast in favor of the appellant of the court costs. The Court, definitively pronouncing: rejects the appeal proposed by Abbanoa against the order of the Court of Nuoro of 26.11.2018 ". The hearing is removed. Now the tourism entrepreneurs who have opposed will receive back the sums paid, with annexes and connections, for those outlawed balances. It remains to be understood which decision the Region, the main shareholder of Abbanoa, will take with respect to this umpteenth ruling on the 2005-2011 adjustments. Certainly it will not be able to do without evaluating the revocation in the self-protection of those provisions on the adjustments, also to avoid further damage to the tax authorities to which, then, the responsible will be called to respond. And in the tax law the rule is golden: whoever makes a mistake pays.

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