In the constantly evolving landscape of utilities, the recovery of water credits plays a peculiar role.
The management of the service, in fact, no longer entrusted exclusively to the Public Administration, has generated numerous doubts among sector operators regarding the choice of the most suitable and efficient recovery tool, particularly in light of the procedure envisaged by the REMSI resolution – Integrated Text for the regulation of arrears in the integrated water service referred to in Annex A to resolution 311/2019/R/IDR Arera.
The manager – the person entrusted with the Integrated Water Service (SII) or each of the individual services that compose it by virtue of any form of authorization – can take on any legal form in a given territory, including the Municipalities that manage them economically .
The Arera – Regulatory Authority for Energy, Networks and the Environment, aware of the legal nature of water as an essential good, has introduced with the REMSI resolution a specific regulation for the recovery of water credit whose ratio lies precisely in the protection of the end user.
In the event of arrears, before proceeding with the judicial recovery of the credit, the manager is required to send a friendly reminder for payment after at least ten days from the due date of the unpaid invoice, a preliminary and preclusive condition with respect to the continuation of the actions.
Only after sending the good-natured reminder, if the arrears persist, the manager will be able to send the ritual formal notice to the end user, after at least twenty-five days have passed from the due date of the unpaid invoice.
Once the obligations foreseen by the REMSI resolution have been completed, it will be possible to undertake the ordinary process for the recovery of the credit which, however, is evidently conditioned by the legal nature of the formal notice sent by the manager in accordance with the sector regulations.
And, in particular, whether the formal notice may represent a complex act, preliminary to the simplified procedure provided for by Royal Decree no. 639 of 1910 or whether it is necessary to proceed with the ordinary monitoring action.
Part of the relevant jurisprudence denies the executive nature of the formal notice of default, a nature which would belong solely to the documents issued by the State, by some Funds and territorial bodies or by other public bodies indicated in special laws with the exclusion of companies, even those with public participation, due to their private nature. The latter, in fact, as subjects distinct from the State and public bodies, would lack the power to self-assess taxes and, as a result, would not be able to benefit from the tax injunction procedure (Milan Trib. Judgment no. 6575 of 07/29/2021 – Milan Sentence no. 12235/2016).
On the other hand, the Court of Cassation now considers the orientation according to which the special procedure regulated by Royal Decree no. 639/1910 can be used not only for public law revenues but also for private law ones, finding its basis in the PA’s power of self-assessment, with the only limit that the credit on which the order to pay is issued is certain, liquid and collectible.
In the jurisprudential debate, there seems to be a timid opening towards the use of the tax injunction procedure also by companies concessionaires of collection with entirely public capital – in house providing.
The Civil Court of Cassation, Section. III, with the very recent sentences n. 7365/2024 and n. 29781/2023 established that in-house providing companies are not entities distinct from the PA but must be treated as a body of the latter since, despite having the form of a private company, they carry out functions of public importance, an orientation already endorsed by the Court of Milan appeal with sentence no. 2377 of 6 September 2024.
In any case, it is clear that the debate involving the jurisprudence does not in any way involve the managers to whom the MEF has granted authorization for the compulsory collection through role of the credits claimed from the users of the SII who, in fact, will be able to resort to the procedure of tax injunction referred to in RD n. 639/2010 after having preliminarily exhausted the remedies provided by the REMSI resolution.
