that support from the Facility is subject to the respect of the DNSH, deemed as a “horizontal principle” by the same provision.48 Article 18, paragraph 1, of Regulation (EU) 2021/241 lays down that a Member State wishing to receive a financial contribution in accordance with Article 12 shall submit to the Commission a recovery and resilience plan (RRP) as defined in Article 17 of the same Regulation. The RRF Regulation provides that no measure for the implementation of reforms and investments included in the recovery and resilience plan does significant harm to environmental objectives within the meaning of Article 17 of Regulation (EU) 2020/852 (Article 18, par. 4e, of Regulation (EU) 2021/241).49 In other words, no measure included in RRPs should lead to significant harm to any of the six environmental objectives within the meaning of Article 17 of the Taxonomy Regulation, and namely: (a) climate change mitigation, (b) climate change adaptation, (c) the sustainable use and protection of water and marine resources, (d) the circular economy, including waste prevention and recycling, (e) pollution prevention and control, and (f) the protection and restoration of biodiversity and ecosystems. The RRF hence applies the principle of DNSH as defined in the Taxonomy Regulation and deploys it as an eligibility criterion for the disbursement of EU funds. Thus, the DNSH shapes the Member States’ actions by prioritizing environmental objectives.50 The same conclusion is reached by reading the national recovery plans. As for the Italian Plan, Article 21, paragraph 7e, Law-Decree 6 November 2021, No. 152 lays down that, to be accepted, projects funded under the national recovery fund shall provide for a compliance assessment with the conditions of the DNSH laid down in Article 17 of Regulation (EU) 2020/852. require the use of additional funding under Articles 14, 21a or 21b, shall include a REPowerEU chapter containing measures and their corresponding milestones and targets (paragraph 1). Reforms and investments in the REPowerEU chapter have to aim to contribute to at least one of the objectives listed under paragraph 3 of the same provision (for instance, improving energy infrastructure and facilities, boosting energy efficiency in buildings and critical energy infrastructure, addressing energy poverty, etc.). The DNSH has a general application for all the actions included in the REPowerEU Chapter with a few targeted exceptions: see recital 23 and Article 21c, paragraph 3a. The Commission should assess whether measures expected to address immediate security of energy supply needs are eligible for the derogation from the principle of ‘do no significant harm’: see recital 23 and Article 21c, paragraphs 6 and 7. On the REPowerEU Regulation and the derogation from the do no significant harm principle see R. Famà, cit., p. 69. 48 On this point, see Council of State, Division IV, Judgment 31 January 2024, No. 980. This case concerns the energy consumption (that should not be excessive) for the production of hydrogen that falls within the scope of the EU DNSH. See also Council of State, Division IV, judgment 5 August 2024, No. 6966; Council of State, Division VI, judgment 23 December 2024, No. 10317. 49 See Council of State, judgment 5 August 2024, No. 6966, point 5.6. 50 R. Famà, cit., passim. 119 THE “DO NO SIGNIFICANT HARM” (DNSH) PRINCIPLE IN THE MULTILEVEL LEGAL SYSTEM
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