In addition to the disputes involving customers and suppliers which are discussed in the corresponding sections of this report, at the end of 2018, an additional 586 disputes were pending mainly concerning disconnections of gas supplies to late-paying final customers who, having signed contracts with salespeople for the redelivery points on the distribution network managed by Inrete, were subject to administrative termination as governed by Arera legislation (specifically the Consolidated Law on Gas Delinquency). The remaining disputes refer to different issues regarding claims for damages associated with the management of the services performed by Hera or Group companies. During 2018, 1,037 disputes were settled: 210 with customers, 21 with suppliers and 806 with other stakeholders.
With regard to the networks and plants managed by the Group, the following litigation proceedings brought by associations, citizens and/or other parties/bodies are reported.
With reference to the criminal proceedings pending before the Forlì Court, involving Herambiente as owner of the Forlì waste-to-energy plant, after the positive conclusion in July 2011 of the appeal to the Supreme Court of Cassation furthered by the Public Prosecutor related to the attachment of the plant requested since it was deemed hazardous, the proceedings continued during 2012 against a number of Herambiente executives with regard to the alleged “technical problems” concerning the incineration plant or rather the aspects of potential pollution and suspected administrative violations. Twenty-seven civil parties had brought action in the proceedings, including private citizens, environmentalist associations and public Bodies. Furthermore, summons for the civil liability of Hera Spa and Herambiente Spa had been served. On 22 October 2012, Hera Spa and Herambiente Spa were excluded from the proceedings and consequently any liability. On 6 December 2012, the Judge acquitted all those charged with the offences respectively ascribed to them, on the grounds that there was no case to answer. In April 2013, the afore-mentioned acquittal sentence was challenged by the Public Prosecutor before the Bologna Appeals Court. In its ruling delivered on 3 May 2018, the Bologna Appeals Court confirmed the acquittal sentence of the Court of Forlì.
With reference to the flood which, on 24 June 2013, following a violent storm, submerged the street Via Santa Cristina S.P 69 in Rimini and caused the flooding of the Rimini prison and neighbouring dwellings (including that of an inhabitant who died on the same day due to illness), an employee of Hera Spa and 2 other parties were served a notice for a preliminary hearing in which they were accused of disaster and manslaughter. At the date of drafting of this report, the investigation phase is underway.
Worthy of mention is the notification in July 2017 of the decree that ordered the committal to trial of two Herambiente managers, with which the Public Prosecutor of Rimini questioned the odorous and noisy emissions from the recovery plant in Rimini which allegedly caused nuisance to the owners of nearby lands. At the first hearing scheduled for 28 November 2017, a local committee was set up as plaintiff for damages and the defence of the Herambiente managers filed an application to settle some of the charges with payment of a fine. At the date of drafting of this report, the investigation phase is underway.
By means of petition brought before the Regional Administrative Court of Emilia Romagna against ATO-BO, Atersir and vis-à-vis Hera Spa and the Ministry for the Environment, Land and the Sea, Federconsumatori Nazionale requested the cancellation, subject to suspension of the efficacy, of the resolution of the ATO-Bologna No. 16 dated 22 December 2011 which concerned the “Integrated water service: new regulatory period 2011 – 2015 for the operator Hera Spa and 2012 tariff structure” and of any other preordained, associated, alleged and/or consequential act.
The main reasons for censure concerned:
- the alleged violation of the repealing referendum effect concerning the matter of the adequacy of the remuneration of the invested capital.
- the application, by the challenged resolution, of the Regional Tariff Method which, according to the counterpart, would not be applicable given the alleged lack of legitimation of the Emilia-Romagna Regional Authority with regard to its approval.
- the arbitrary introduction, by the challenged resolution, of the item “Financial charges”, which is not event contemplated by the Regional Tariff Method.
Hera Spa appeared before the court disputing the aforementioned reasons for censure and, by means of Order filed on 8 June 2012 the Regional Administrative Court rejected the application for interim relief presented by the plaintiff. By Court Order, the Regional Administrative Court of the Emilia-Romagna Region declared the appeal expired.
In ruling 1602/2016, Section II of Regional Administrative Court of Tuscany upheld the appeal on additional grounds in case 143/2016 brought by environmental associations (WWF and Italia Nostra) and the appeal number 180/2016 brought by the Campi Bisenzio municipality and accordingly, ordered the annulment of the measure adopted on 23 November 2015 no. 4688 by the officer for Environmental quality of the Metropolitan City of Florence, of the minutes of the related service conferences of and subsequent pleadings for repossession. The object of the measure annulled by the Regional Administrative Court is the granting of an integrated authorisation and IEA for the construction, management and operation of a waste incineration plant filed by Q.tHermo. On this matter it should be noted that, in accordance with the provisions of the planning documents on waste, Quadrifoglio (the company that currently manages the integrated service for waste collection in the municipalities of the Florentine plain) called a dual tender to select a private minority shareholder with which it was to form a NewCo that would handle the design, construction and management of a waste-to-energy plant in Tuscany. The tender was awarded to the temporary consortium formed by the companies Hera S.p.A. and Herambiente S.p.A. which, in compliance with the commitments made for the tender, formed a company called SAT S.r.l. to underwrite a share of the capital of the NewCo with Quadrifoglio, i.e. the Q.tHermo company. The aforesaid ruling of the Regional Administrative Court of Tuscany was opposed before the Council of State before which a hearing was held on 19 December 2017. A decision on the case was not taken. The Council of State filed its decision confirming the objections of the first instance Judge, with specific reference to the fact that the location of the waste-to-energy plant at Case Passerini was closely linked to the environmental redevelopment project and especially to the renaturalising works comprising the so-called “Boschi della Piana” which, instead, had not been built before the construction of the waste-to-energy plant. Q.tHermo started revocation proceedings of the aforementioned ruling in order to obtain its overturning. The Council of State has not yet scheduled a hearing as of the reporting date.
With an action brought before the Regional Administrative Court of Emilia-Romagna in 2017 by WWF, Panda Imola – Non-profit voluntary organisation and Legambiente Medicina against the Region of Emilia Romagna and against CON.AMI. and Herambiente, the claimants challenged the decision of the Regional Council of Emilia Romagna dated 21 December 2016, no. 2262 entitled “provision for an Environmental Impact Assessment (EIA) regarding the project for the expansion of the Tre Monti landfill: volumetric recovery through raising of the 3rd lot in the municipality of Imola (BO) – Proposers CON.AMI and Herambiente” published in the B.U.R.E.R. on 9 January 2017 and related annexes. By way of the aforementioned resolution, the Region issued the EIA ruling regarding the raising of the “Tre Monti” landfill and the claimants challenged its legitimacy, raising as main claim the fact that the Region, since not taking into account the negative opinion expressed by the Ministry of Cultural Heritage, did not set up the referral procedure to the Council of Ministers. Although this negative opinion was not necessary for the raising work, given that this area does not need to comply with any landscape protection obligations, the Regional Administrative Court, with ruling filed on 10 January 2018, upheld the complaint lodged by the applicants. Herambiente challenged the ruling before the Council of State before which a public hearing was held on 20 December 2018. At the date of drafting of this report, the company is waiting for the filing of the ruling.
With distinct appeals in 2015 before the Regional Administrative Court of Emilia-Romagna against Atersir, and against Hera Spa as other party, the Sassuolo municipality, on the one hand, and the Maranello, Fiorano and Formigine municipalities, on the other hand, have sought cancellation of Area Council Resolution 6/2015, issued on 10 June 2015, containing the “Economic and Financial Plan for 2015”. The municipalities that are applicants include the Sassuolo municipality, which, in addition to the above resolution, appealed against the Local Council of Modena’s decision 3/2015 of 13 April 2015 and every other prerequisite and consequential measure. The municipalities that filed the application complained, mainly, of the lack of discussion to agree on the Economic and Financial Plan, that the cost elements therein were expressed in an aggregated form instead showing the unit cost of services for each entry and the alleged unjustified increase of the costs of the service for municipal and similar-to-municipal waste. Hera Spa appeared before the court disputing what had been claimed in fact and law by the municipalities that filed the application. At the date of drafting of this report, the date of the trial hearing is yet to be scheduled. With further appeals notified in 2016, again before the Regional Administrative Court of Emilia-Romagna against Atersir, and against Hera Spa as the other party to the proceedings, the above municipalities sought the cancellation of Area Council Resolution 25/2016, published on 11 May 2016 on “Approval of economic/financial plans for the municipal waste management service for the year 2016”. Hera Spa has appeared before the court and at the date of drafting of this report, the date of the trial hearing is yet to be scheduled.
With further appeals notified in 2017 before the Regional Administrative Court of Emilia Romagna against Atersir, and against Hera S.p.A as the other party to the proceedings, the Municipalities of Sassuolo, Maranello, Fiorano, Formigine, Predappio, Tredozio, Rocca San Casciano, Bertinoro, Forlimpopoli, Galeata, Premilcuore, Meldola, Savignano sul Rubicone, Borghi, Sogliano al Rubicone, San Mauro Pascoli, Longiano, Gambettola, Roncofreddo, Santa Sofia, Castelnuovo Rangone, Castelvetro di Modena, Savignano sul Panaro, Spilamberto, Vignola, Guiglia, Marano sul Panaro and Zocca challenged, within their area of responsibility, resolution no. 27 of 24 March 2017 and resolution no. 17 of 15 March 2017 adopted by the Authority Council of Atersir and through which the Economic and Financial Plans for the 2017 municipal waste management service covering the local areas related to the above municipalities were approved. A hearing is yet to be scheduled as of the reporting date.
With further appeals notified in 2018 before the Regional Administrative Court of Emilia Romagna against Atersir, and against Hera S.p.A as the other party to the proceedings, the Municipalities of Sassuolo, Formigine, Castelvetro di Modena, Savignano sul Panaro, Spilamberto, Vignola, Zocca, Castel Guelfo, Maranello and Fiorano Modenese challenged resolution no. 9 of 19 February 2018 of the Authority Council and resolution no. 1 of 12 February 2018 of the Local Council, respectively, through which the Economic and Financial Plans for the 2018 municipal waste management service covering the local areas related to the above municipalities were approved. With a similar extraordinary appeal to the President of the Republic, then brought before the Regional Administrative Court of Emilia Romagna, the Municipality of Imola challenged Atersir resolution no. 19 of 19 March 2018 of the Area Council containing the Economic and Financial Plan for the 2018 municipal waste management service relating to the Municipality of Imola, as well as, to the extent concerned, Atersir resolution no. 3 of 8 March 2018 of the Local Council of Bologna. At the date of drafting of this report, the date of the trial hearing is yet to be scheduled.