Commercial and Trading

Acea Energia carries out the necessary “Energy Management” activities for the Group’s operations, with particular regard to sales and production activities. The Company also liaises with the Energy Market Operators (EMO) and with Terna. In relation to the institutional entity Terna, the Company is the input Dispatch User for Acea Produzione and other companies in the Group. It performed the following main activities in the period:

• the optimisation and assignment of electricity produced by the Tor di Valle and Montemartini thermoelectric plants and by the S. Angelo hydroelectric plant;
• the negotiation of fuel procurement contracts for the power generating plants;
• the procurement of natural gas and electricity for the sales company to sell to end customers;
• the optimisation of the supply portfolio for the procurement of electricity and management of the Energy segment companies’ risk profile.

At 31 December 2022 Acea Energia had purchased electricity from the market for a total of 8,240 GWh, of which 5,828 GWh through bilateral contracts and/or intercompany contracts and 2,412 GWh through Borsa, for resale to end customers of the free market and for the optimisation of energy flows and the purchasing portfolio.

With regard to the sales market, service quality on the retail portfolio is continuing to improve.

In 2022, electricity was sold on the standard-offer market for a total of 1,391 GWh, with a 17.9% reduction on a trend basis. The number of withdrawal points totalled 661,231 (719,380 at 31 December 2021). The sale of electricity on the free market amounted to 5,986 GWh for Acea Energia and 345 GWh for Umbria Energy, for a total of 6,331 GWh, with a decrease compared to the same period last year of 3.5%. Resales on the wholesale market came to 1,571 GWh, also due to the effect of energy produced by Acea Group production plants. The average number of withdrawal points in the period totalled 502,403 (478,127 at 31 December 2021).

In addition, Acea Energia and the other sales companies of the Group sold 208 million Sm3 of gas to end customers and wholesalers which involved an average of 233,101 re-delivery points for the period, while at 31 December 2021 they were 226,687.

On 18 January 2022, Acea Energia and WindTre announced the extension of their cooperative agreement for electricity and gas supply, promoting and commercialising the WindTre Electricity & Gas Powered by Acea Energia offer, throughout Italy. After a gradual launch of the service in 2021, with 12 Italian regions involved, at present more than 2 thousand WindTre sales points are able to distribute solutions for electricity and gas supplies. The electricity offered in the WindTre Electricity & Gas Power by Acea Energia solutions is 100% obtained from renewable sources.

On 18 May 2022, the new advertising campaign WindTre Electricity & Gas Powered by Acea Energia debuted on TV.

With regard to the proceedings started by the Antitrust Authority and ARERA, the main updates are described below:

Proceeding PS9354 of the Antitrust Authority (AGCM)

On 13 July 2015, AGCM communicated the start of an investigation proceeding (PS/9354) relative to Acea Energia SpA, citing the following actions:

• “payment requests in invoices of amounts allegedly erroneous, anomalous and/or incorrectly estimated”;
• “receivables of significant amounts accrued with reference to customers in the case of prolonged delays in the issuing of invoices or adjustments occurring multiple years after consumption”;
• “payment requests in invoices already paid by the customer”.

On 20 November 2015, AGCM rejected the commitments filed by Acea Energia and, on 13 June 2016, informed the Company of a fine provision totalling € 3.6 million. On 9 September 2016, Acea Energia SpA appealed this provision with the Regional Administrative Court. Following the appeal, on 13 September 2016, Acea Energia SpA sent AGCM the report containing the initiatives taken in line with the instructions contained in the fine provision, specifying that the actions did not constitute agreement with the provision and, in February 2017, paid the fine to AGCM, again specifying that the payment did not constitute, in any way, agreement with the provision or renunciation of the legal action taken. On 7 December 2017, AGCM sent a communication acknowledging the actions to comply with the fine provision, holding them substantially adequate. Finally, on 26 November 2018 the Authority sent a communication of compliance relative to the provision adopted on 13 June 2016. On 12 November 2021 the Company filed a request to set a date for the hearing pursuant to article 82 of the Code of Administrative Process with Section I of the Lazio Regional Administrative Court. On 18 November 2022, the Lazio Regional Administrative Court partially annulled the provision, reducing the fine from € 3.6 million to € 1.0 million. The deadline for an appeal pending (18 February 2022). On 15 February 2023, the Authority provided notification of its appeal of the Lazio Regional Administrative Court Section I ruling of 18 November 2022, no. 15322, adopted at the end of the procedure 10090/2016. At present, the possibility of a loss is assessed as possible. Therefore, a release of € 2.6 million was carried out.

Fact finding investigation on economic items relating to electricity for enclave states within Italy: with Resolution 576/2021 ARERA reformed the regulation concerning financial items relating to electricity destined for enclave states, with the aim of bringing it into line with national regulatory principles. In particular, the Authority intervened on transmission and transport fees, on dispatching and on the regulation of imbalances. On 1 August 2022, resolution 354/2022 was published, definitively accepting the commitments presented by Acea Energia, and for which compliance is mandatory by 31 October 2022. Acea Energia fulfilled its commitments by the indicated date and sent a report to the Authority by 30 November 2022.

Proceeding PS12106 of the Antitrust Authority (AGCM): on 3 March 2022 the Company received a communication in which AGCM indicated that at its meeting on 1 March 2022 it had arranged for the filing of the application for intervention, as the Company had ceased the possible incorrect commercial conduct identified in the communication of 18 October 2021, relative to representation of all the fees due from customers for electricity and gas supplies.

Proceeding PS12458 of the Antitrust Authority (AGCM): on 18 October 2022, the Company received a communication in which AGCM requested information about so-called “unilateral contract amendments”.

On 4 November 2022, the Company provided a response to AGCM relative to the requested information and, on 12 December 2022, held it expedient to send a second communication with further details to demonstrate the compliance of its actions with that established in article 3 of the Aid-bis Decree Law.

That being established, on 13 December 2022, AGCM informed Acea Energia of the start of a proceeding, giving the Company 20 days to file written memos and documents (a deadline reduced to 7 days with reference to memos and documents relative to the adoption of provisional suspension measures for the commercial practices, pursuant to article 8, paragraph 3 of the Regulation).

Additionally, to acquire further information useful for assessing the stated commercial practice, AGCM asked Acea Energia to provide, within 20 days of the receipt of the cited communication, additional information regarding communications of unilateral changes/renewals carried out by the Company.

On the same date, the Authority also informed the Company of a precautionary provision, with which it ordered that:

• Acea Energia provisionally suspend application of the new economic conditions indicated in its communications of a proposed unilateral change to the contract sent prior to 10 August 2022 or in communications proposing renewal of economic conditions sent after 10 August 2022, confirming through 30 April 2023 the supply conditions previously applied, and individually informing the consumers interested in the previous communications, and in the same form, application of the previous supply conditions or, in the case in which the deadline for completion of the new communications had not yet expired, the inefficacy of the proposed changes;
• Acea Energia communicated individually and with the same form, to consumers who had exercised the right of withdrawal following the communication of the proposed unilateral change sent prior to 10 August 2022 or of renewal of economic conditions sent after the same date, the possibility of returning to receive supplies under the previous economic conditions;
• Acea Energia informed the Authority that it had carried out the suspension provision and the relative methods within 5 days of receiving the communication on 13 December 2022, sending a detailed report illustrating the initiatives taken in compliance with that ordered under a) and b);
• that the interested party could, within 7 days of notification of the provision of 13 December 2022, present written memos and documents, to confirm the aforementioned measures.

Acea Energia, given the serious and irreparable harm deriving from implementation of the aforementioned provision, promptly appealed the same with the Lazio Regional Administrative Court, filing an appeal on 15 December 2022 to request annulment through precautionary suspension of the efficacy.

In any case, on 19 December 2022 Acea Energia sent AGCM the report on compliance with the measures ordered by the Authority and, on 20 December 2022, filed a written memo, to provide further clarifications on the lack of any illegal action and reserving the right to formulate further defensive arguments during the course of the proceeding.

Subsequently, two significant changes occurred in the jurisprudential and legislative situation:

• on 22 December 2022, the Council of State issued an ordinance, in relation to another market operator which, similar to Acea Energia, had been affected by a precautionary provision involving a possible violation of article 3 of the Aid-bis Decree Law, subsequently appealed, accepting the precautionary request put forward by the same and partially suspending the provision in question. In truth, this latter, in the Judge’s opinion, contains a generalised order to suspend any change in supply contracts, also affecting contractual renewals predetermined in the exercising of negotiating freedom, based on an “inadmissible expansive interpretation of national provisions limiting market freedom to situations not expressly envisaged (extending the fines to actions not envisaged in the provision)”. Further, the Council of State suspended the provision appealed by the operator in the portion in which it affects temporary contracts or contracts with expiration dates predetermined by economic conditions of dates prior to 30 April 2023, as in this case the question is not the exercising of ius variandi but a contractual renewal freely agreed upon by the parties;
• on 29 December 2022 Decree Law 198/2022 (“Thousand Extensions Decree”) was published in the Official Journal, which amended article 3 of the Aid-bis Decree Law, extending the suspension deadline for efficacy of unilateral changes to 30 June 2023 and expressly excluding from the scope of applicability “contractual clauses that allow electricity and natural gas suppliers to update the economic contractual conditions upon expiration of the same, in compliance with the terms of prior notification contractually established and without prejudice to the counterparty’s right of withdrawal”.

As a consequence of the cited jurisprudential and legislative changes, on 30 December 2022 AGCM adopted a second precautionary proceeding relative to Acea Energia with which, partially revoking the provision adopted on 12 December 2022, it confirmed solely the portion of the same which ordered that the Company:

• provisionally suspend application of the new economic conditions indicated in its communications of a proposed unilateral change to the contract sent prior to 10 August or in communications proposing renewal of economic conditions sent after 10 August, for those regarding permanent contracts in which the expiration of the same was not specifically identified or in any case able to be predetermined, confirming through 30 April 2023 the supply conditions currently applied, and individually informing the consumers interested in the previous communications, and in the same form, application of the previous supply conditions or, in the case in which the deadline for completion of the new communications had not yet expired, the inefficacy of the proposed changes;
• individually communicate with the same form to consumers who had exercised the right to withdrawal following the communication of a proposed unilateral change sent prior to 10 August or the renewal of economic conditions sent after the same date, regarding permanent contracts for which the expiration of economic supply conditions was not specifically identified or in any case able to be predetermined the possibility of returning to the supply under the previous economic conditions until the effective expiry or until 30 April 2023.

In consideration of the stated AGCM provision, Acea Energia introduced additional justifications for the appeal as part of the case already pending with the Lazio Regional Administrative Court, with the aim of requesting annulment. Finally, note that while the case is pending with the Lazio Regional Administrative Court, Acea Energia sent AGCM, on 16 January 2023, a response to the request for information contained in the provision of 12 December 2022, as well as a new report on compliance with the measures requested by the Authority with the provision of 29 December 2022, restating the full compliance of its actions with respect to that contained in article 3 of the Aid-bis Decree Law, as also confirmed by the clarification made by the legislators through article 11, paragraph 8 of Decree Law 198 of 2022 (Thousand Extensions).

On 6 February 2023, AGCM filed a memo with the court, to which Acea Energia responded with another memo filed on 11 February 2022. In consideration of the proposed additional arguments, the public hearing for discussion of the appeal was held on 22 February 2023 and the results are awaited.

Regional Administrative Court of Lazio, Proceedings listed with case no. 7436/2022: Petition to suspend and cancel (Art. 56 of the Code of Administrative Procedure) the Revenue Agency Director’s decision of 17 June 2022 (no. 221978/2022) concerning “Definition of the requirements, reporting criteria and mode of payment of the extraordinary contribution pursuant to Art. 37 of Law Decree No. 21 of 21 March 2022. Definition of the terms for the exchange of information with the Finance Police”: in a petition filed on 27 June 2022, Acea Energia challenged the Revenue Agency’s decision no. 221978/2022 of 17 June 2022, which is the regulatory and administrative measure identifying the criteria and terms for payment of the extraordinary contribution to counter rising utility bills, introduced in Art. 37 of Law Decree No. 21 of 21 March 2022, converted into Law No. 51 on the 20 May 2022 (also known as the “Ukraine bis” or “Price Cuts” Decree).

With a Decree on 28 June 2022, the Regional Administrative Court rejected the requests for monocratic precautionary measures presented by the Company, setting the hearing for discussion before the Board for 19 July; at that time, the Board, accepting AE’s requests and those of the other operators present mainly in the oil sector, set the hearing for the discussion of the merits, together with the current precautionary requests, for 8 November.

On 16 November 2022, the Regional Administrative Court issued judgement 15217 with which it declared its lack of jurisdiction. Acea Energia has appealed the decision to the Council of State with a hearing scheduled for 14 March 2023. At present no further information is available.