Judgments nº T-333/17 of Tribunal General de la Unión Europea, October 24, 2019

• Resolution Date: October 24, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-333/17

(Energy - Decision of the Board of Appeal of ACER - Determination of the capacity calculation regions - Action for annulment - Interest in bringing proceedings - Inadmissible in part - Regulation (EU) 2015/1222 - ACER’s competence)

In Case T-333/17,

Austrian Power Grid AG, established in Vienna (Austria),

Vorarlberger Übertragungsnetz GmbH, established in Bregenz (Austria),

represented by H. Kristoferitsch and S. Huber, lawyers,

applicants,

supported by

Verbund AG, established in Vienna, represented by S. Polster, lawyer,

intervener,

v

Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and E. Tremmel, acting as Agents,

defendant,

supported by

Czech Republic, represented by M. Smolek, J. Vláčil and T. Müller, acting as Agents,

by

Republic of Poland, represented by B. Majczyna, acting as Agent,

and by

Polskie Sieci Elektroenergetyczne S.A., established in Konstancin-Jeziorna (Poland), represented by M. Szambelańczyk, lawyer,

interveners,

ACTION under Article 263 TFEU seeking annulment of Decision A-001-2017 (consolidated) of the Board of Appeal of ACER of 17 March 2017 dismissing the appeals brought against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions,

THE GENERAL COURT (Seventh Chamber),

composed, at the time of deliberation, of V. Tomljenović (Rapporteur), President, A. Marcoulli and A. Kornezov, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 The applicants, Austrian Power Grid AG and Vorarlberger Übertragungsnetz GmbH are transmission system operators (‘TSOs’) for electricity in Austria.

2 On 13 November 2015, the European network of TSOs for electricity published a common proposal regarding the determination of capacity calculation regions, in accordance with Article 15 of Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).

3 On 17 November 2015, the TSOs submitted the common proposal regarding the determination of capacity calculation regions to the national regulatory authorities for approval pursuant to Article 9(6)(b) of Regulation 2015/1222.

4 On 13 May 2016, the national regulatory authority for Austria, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), requested that the TSOs amend the common proposal regarding the determination of capacity calculation regions (‘the amendment request of 13 May 2016’).

5 On 17 May 2016, the Chair of the Energy Regulators’ Forum, the platform through which the national regulatory authorities consulted and cooperated in order to reach an agreement on the common proposal regarding the determination of capacity calculation regions, informed the Agency for the Cooperation of Energy Regulators (ACER) that the national regulatory authorities could not reach a unanimous decision on the common proposal regarding the determination of capacity calculation regions.

6 On the same day, the Chair of the Energy Regulators’ Forum forwarded to ACER’s Director an email from E-Control, dated 13 May 2016, by which it informed the Chair that it intended to request that the TSOs amend the common proposal regarding the determination of capacity calculation regions.

7 On 18 May 2016, the Chair of the Energy Regulators’ Forum communicated the amendment request of 13 May 2016 to ACER’s Director.

8 On 17 November 2016, ACER adopted Decision No 6/2016 regarding the determination of capacity calculation regions. Article 1 of Decision No 6/2016 and Annex I thereto determine the capacity calculation regions in accordance with Article 15 of Regulation 2015/1222. According to Article 2 of Decision No 6/2016, the definition of bidding zone borders, given in Annex I thereto, is without prejudice to any decision adopted under Articles 32 to 34 of Regulation 2015/1222.

9 Decision No 6/2016 was the subject of four appeals to the Board of Appeal of ACER (‘the Board of Appeal’), namely the appeals brought by the applicants, the appeal brought by E-Control and the appeal brought by Verbund AG. By their appeals the applicants requested, inter alia:

- annulment of Decision No 6/2016 in part, namely:

- first, Article 1 in conjunction with Article 1(1)(c) of Annex I, second, the word ‘also’ and the text block ‘for the purposes of capacity allocation on the affected bidding zone borders until the requirements described in Article 5(3) [of Annex I] are fulfilled’ in Article 2(2)(e) of Annex I, third, Article 5(1)(s) of Annex I, fourth, Article 5(3) of Annex I and, fifth, Map No 3 in Annex I;

- Article 2 and Annexes IV and V;

- every other provision of Decision No 6/2016 which explicitly or implicitly introduces or recognises the introduction of a bidding zone border or capacity allocation at the German-Austrian border;

- in the alternative, replacement of Decision No 6/2016 by a decision which does not provide for the introduction of a bidding zone border between Austria and Germany or the introduction of capacity allocation at the German-Austrian border;

- in the further alternative, annulment of Decision No 6/2016 in its entirety.

10 On 31 January 2017, the Chairman of the Board of Appeal decided to consolidate the four appeals into one administrative procedure which was registered under the reference A-001-2017 (consolidated).

11 On 17 March 2017, the Board of Appeal adopted decision A-001-2017 (consolidated), dismissing the appeals against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions (‘the contested decision’). By that decision, the appeals brought by the applicants and by E-Control were dismissed as unfounded, and the appeal brought by Verbund was dismissed as inadmissible.

Procedure and forms of order sought

12 By application lodged at the Court Registry on 29 May 2017, the applicants brought the present action.

13 By document lodged at the Court Registry on 5 September 2017, Exaa Abwicklungsstelle für Energieprodukte sought leave to intervene in the present case in support of the form of order sought by the applicants. By order of 5 June 2018, Austrian Power Grid and Vorarlberger Übertragungsnetz v ACER (T-333/17, not published, EU:T:2018:350), the Court dismissed that application for leave to intervene on the ground that the party concerned had not established that it had a direct and existing interest in the ruling on the form of order sought by the applicants.

14 By document lodged at the Court Registry on 14 September 2017, the Republic of Poland applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By decision of 30 October 2017, the President of the Seventh Chamber of the General Court granted that leave to intervene.

15 By document lodged at the Court Registry on 15 September 2017, the Czech Republic applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By decision of 30 October 2017, the President of the Seventh Chamber of the General Court granted that leave to intervene.

16 By document lodged at the Court Registry on 18 September 2017, Verbund applied for leave to intervene in the proceedings in support of the form of order sought by the applicants. By order of 27 April 2018, Austrian Power Grid and Vorarlberger Übertragungsnetz v ACER (T-333/17, not published, EU:T:2018:285), the President of the Seventh Chamber of the General Court granted that leave to intervene.

17 By document lodged at the Court Registry on 21 September 2017, Polskie Sieci Elektroenergetyczne S.A. (‘PSE’) applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By order of 4 December 2017, Austrian Power Grid and Vorarlberger Übertragungsnetz v ACER (T-333/17, not published, EU:T:2018:880), the President of the Seventh Chamber of the General Court granted that leave to intervene.

18 The interveners submitted their statements in intervention and the other parties submitted their observations thereon within the periods prescribed.

19 In the context of the measures of organisation of procedure under Article 89 of its Rules of Procedure, the General Court, first, asked ACER to submit a document and, second, requested from ACER and the applicants written replies to a set of questions. The parties complied with those measures of organisation of procedure within the prescribed period.

20 By letter from the Court Registry dated 20 June 2019, the parties were informed that the Court had decided to rule without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.

21 The applicants claim that the Court should:

- primarily, annul the contested decision in its entirety and the following parts of Decision No 6/2016:

- first, Article 1 in conjunction with Article 1(1)(c) of Annex I...