by Alberto Arcuri (University of Bologna)
Published on 31 July 2025
When lawmakers (first at the European level, then at the Italian level) stepped in to provide a legal definition, the concept of energy communities had already been circulating in the social sciences for several years. At least since the early 2000s, when British literature began using the term community energy to describe experimental forms of self-production and shared management of energy.
As often happens, the Italian debate soon followed the Anglo-American lead, only to discover that the idea had even deeper roots domestically. In fact, the Italian history of energy communities can be traced back to the early 20th century, when energy cooperatives were established to address the difficulties mountain communities in the Alps faced in accessing energy. However, it is only with the turn of the millennium that the rise of such initiatives—driven by the convergence of energy market liberalization and technological advancements enabling household-level energy self-production and consumption—brought them to the forefront as an innovative model for sustainable energy production in Italy as well.
It is against this backdrop that the first efforts to regulate the phenomenon were launched—initially at the European level and, subsequently, nationally as a direct result. The first step was to define a legal type of energy community. This resulted in two forms: the Renewable Energy Community (CER), established under Legislative Decree 199/2021 implementing Directive (EU) 2018/2001, and the Citizen Energy Community (CEC), under Legislative Decree 210/2021 implementing Directive (EU) 2019/944.
These two types represent distinct legal forms of an underlying organizational structure—unitary and transtypical—which, despite lacking formal legal recognition, has nonetheless influenced both models with common elements from subjective, teleological, and structural perspectives. Both CERs and CECs are private legal entities (“autonomous legal persons” whose members “regulate their relationships through private law contracts”), established through voluntary and open participation. Their activities are aimed at generating “environmental, social, and economic benefits” for members and the broader community in which they operate. In light of these features, recent scholarship has proposed framing energy communities within the concept of social formations described in Article 43 of the Italian Constitution—namely, “communities of workers or users” to which enterprises of primary public interest, such as those involving energy sources, can be reserved or transferred.
Beyond their shared foundation, however, the two types diverge in many structural and functional aspects, reflecting the different rationales behind their creation. CERs and CECs are regulated by two separate legislative decrees implementing distinct EU directives, themselves based on differing policy priorities: one focused on the energy transition (via fossil fuel divestment and maximizing renewable energy use), the other on market liberalization through the promotion of energy self-consumption (regardless of energy source).
This divergence is evident in key characteristics of the two models: (a) the sources of energy used (CERs must use renewable energy, while CECs are not limited to any particular source); and (b) territorial proximity (CERs require members and installations to be located within the same municipality, unlike CECs).
All things considered, CERs represent the more significant model for the purpose of this analysis. It is therefore appropriate to focus the concluding section on them, to identify the key elements that make them a concrete expression of performative subsidiarity re-founded on environmental principles.
As mentioned earlier, the current CER framework originates from European policies—particularly those stemming from the Green Deal and the Clean Energy for all Europeans package, which included Directive 2018/2001 (known as RED II). Article 22 of RED II states that “Member States shall ensure that final customers, in particular household customers, are entitled to participate in renewable energy communities,” and mandates a supportive legal framework to promote their development.
RED II was first provisionally implemented by Decree-Law No. 162 of 2019 (converted into Law No. 8 of 2020), pending full transposition. This was followed by Legislative Decree No. 199 of 2021, which significantly expanded the scope of eligible CER participants to include, beyond individuals, SMEs, associations, territorial authorities, and local governments (already covered under transitional rules), also research and education entities, religious institutions, third-sector and environmental organizations, and local administrations in the area of plant operation.
This regulatory framework has been completed with extensive secondary legislation, including: the Ministry of Environment and Energy Security’s decree of December 7, 2023, promoting the establishment and development of CERs; resolutions from the Regulatory Authority for Energy, Networks and Environment (ARERA), such as Resolution 727/2022/R/eel of December 27, 2022, which approved the Integrated Text on Distributed Self-Consumption; and operational rules issued by the Energy Services Manager (GSE) on February 23, 2024, and updated on April 22, 2024.
The result is the current regulatory landscape. Legislative Decree No. 199 of 2021 defines the CER as an “autonomous legal entity” (Art. 31, paragraph 1, letter b) that produces renewable energy for self-consumption or sharing among members, with the goal of providing “environmental, economic, or social benefits and fostering the development of local areas” (Art. 31, paragraph 1, letter a). All interested users (prosumers or simple consumers) who meet admission criteria may participate, under the principle of open and voluntary membership. CERs can be controlled by individuals, SMEs, legally recognized associations, territorial and local authorities (including municipal administrations), cooperatives, research bodies, religious organizations, third-sector and environmental entities. CER members share renewable electricity generated by facilities under the community’s control and located within the same geographic area, using the national electricity distribution network (Art. 32). The self-produced energy is primarily used for on-site self-consumption or shared among members. Any surplus may be stored or sold through purchase agreements (Art. 31, paragraph 2, letter b).
A key element for CERs as a territorial development model concerns the availability of suitable areas for installing renewable energy plants. Article 20 of Legislative Decree No. 199 of 2021 defers the identification of such “suitable areas” to secondary legislation (thus conferring major planning relevance), and mandates that the Ministry for Ecological Transition issue one or more decrees within 180 days to identify areas suitable or unsuitable for installing renewable energy systems.
Let me conclude by highlighting the exemplary relevance of CERs and reconnecting the discussion to the concept of subsidiarity re-founded on environmental principles.
Starting with subsidiarity: as an expression of private autonomy in pursuit of the public interest, CERs clearly fit within the framework of the solidarity principle, which is fulfilled by the “unitary” subsidiarity outlined in Article 118 of the Constitution. CERs, as community-based energy production models, are a practical application of territorial proximity in support of social cohesion and local development. They foster collaborative relationships both within the community and between community members and public institutions at the local level.
Furthermore, CERs align with legislative tools supporting subsidiarity. As noted, they can qualify as third-sector entities when other legal conditions are met. This has been unequivocally confirmed since Decree-Law No. 57 of 2023 added “production, storage, and sharing of energy from renewable sources for self-consumption” to the list of general interest activities under Article 5(1) of Legislative Decree 117/2017, and Article 2(1) of Legislative Decree 112/2017 on social enterprises. In addition, CERs can be involved in co-programming and co-design processes under the Third Sector Code. Since they must operate outside the logic of market-based reciprocal interests, their functioning is nourished by mutualistic relationships. Including local governments among CER participants further reinforces their role as a structural form of public-private collaboration for the pursuit of the general interest at the local scale.
This brings me to the second point: the alignment between the model’s underlying rationale and the performative thrust of a re-founded republican pact. CERs embody not only environmental interest but also a broader project of liberation from need—ecologically redefined—as they serve as a community-based tool for energy transition and poverty reduction, especially energy poverty.
There is little doubt that CERs qualify as instruments of ecological (and thus energy) transition. Energy transition means gradually replacing fossil fuels, which have a high carbon footprint, with low-emission renewable sources. CERs are intrinsically geared toward decarbonization, being legally bound to use only renewable energy—unlike CECs.
More attention, however, should be given to the social dimension of CERs as tools for alleviating need—particularly energy poverty. Energy poverty refers to the inability to access essential energy goods and services. The term has been the subject of a definitional effort at the EU level, culminating in Directive (EU) 2023/1791 (the Energy Efficiency Directive, or EED 3), which defines energy poverty in Article 2 as the “inability of a household to access essential energy services that ensure basic and dignified standards of living and health, including adequate heating, hot water, cooling, lighting, and energy to power appliances (…) due to a combination of factors, including at least unaffordability, low disposable income, high energy expenditure, and low energy efficiency in housing.”
The extent to which access to energy conditions the enjoyment of rights is increasingly evident. While not a need in itself, energy is a prerequisite for meeting many human needs. Therefore, energy poverty describes a material condition that limits freedom and equality, hindering the actual exercise of many fundamental rights and certainly preventing “the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.” For this reason, some scholars have begun calling for the recognition of a “new” social right to energy.
In this sense, by proposing a model of mutualized energy production from renewable sources, CERs embody a constitutionally inspired political-ecological paradigm. Yet, as with any model, its normative and institutional potential cannot be detached from the legal order and, crucially, from the material context. The critical issue in this experience lies, paradoxically, in its local dependence. Although CERs are spontaneous and voluntary initiatives, they are materially conditioned by the availability of suitable technical infrastructure. Their abstract potential must reckon with the structural prerequisites (especially infrastructure), which necessitate public planning aimed precisely at addressing energy poverty.