Opinion of Advocate General Campos Sánchez-Bordona delivered on 15 September 2022.

• Jurisdiction: European Union
• Date: 15 September 2022
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 15 September 2022 (1)

Case C‑46/21 P

European Union Agency for the Cooperation of Energy Regulators (ACER)

v

Aquind Ltd

(Appeal – Energy – Regulation (EC) No 713/2009 – Decision of ACER refusing a request for exemption relating to new electricity interconnectors – Appeal before the Board of Appeal of ACER – Function, composition, powers and length of the proceedings of the Board of Appeal of ACER – Intensity of the review – Article 17 of Regulation (EC) No 714/2009 – Exemption scheme for new electricity interconnectors – Article 12 of Regulation (EU) No 347/2013 – General scheme for the financing of transnational energy infrastructure – Financing of projects of common interest – Cross-border cost allocation)

1. This appeal will enable the Court of Justice to rule on the intensity of the review which boards of appeal of EU agencies have to undertake when adjudicating on challenges brought before them.

2. In particular, the Court of Justice will have to endorse or reject the position adopted by the General Court, which, in the judgment under appeal, (2) required the Board of Appeal of the Agency for the Cooperation of Energy Regulators (‘ACER’) (3) to exercise a scrutiny of decisions adopted by that agency which goes beyond an examination of manifest errors.

3. Although there is already settled case-law on the powers of the boards of appeal of other bodies, such as the European Union Intellectual Property Office (EUIPO) and the Community Plant Variety Office (CPVO), the same is not true of litigation before the other boards of appeal, more and more of whose decisions are being referred to the General Court. (4) Hence the significance of this appeal. (5)

4. Forming the backdrop to the dispute is a decision by ACER (No 05/2018) refusing to exempt the construction of a connecting infrastructure linking the UK and French electricity transmission networks from certain obligations imposed by the rules on the liberalisation of the electricity market.

5. That decision (later upheld by the Board of Appeal of ACER in its Decision A-001-2018) applied Article 17(1) of Regulation (EC) No 714/2009, (6) in conjunction with the general scheme for the financing of energy infrastructure projects laid down in Article 12 of Regulation (EU) No 347/2013. (7)

I. Legal framework

A. Regulation No 713/2009

6. Article 19 (8) provides:

‘1. Any natural or legal person, including national regulatory authorities, may appeal against a decision referred to in Articles 7, 8 or 9 which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

…

4. If the appeal is admissible, the Board of Appeal shall examine whether it is well-founded. It shall invite the parties as often as necessary to the appeal proceedings to file observations on notifications issued by itself or on communications from the other parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make … oral presentations.

5. The Board of Appeal may, in accordance with this Article, exercise any power which lies within the competence of the Agency, or it may remit the case to the competent body of the Agency. The latter shall be bound by the decision of the Board of Appeal.

…’

7. Article 20(1) states:

‘An action may be brought before the Court of First Instance or the Court of Justice, in accordance with Article 230 of the Treaty, contesting a decision taken by the Board of Appeal or, in cases where no right lies before the Board of Appeal, by the Agency.’

B. Regulation No 714/2009

8. Article 17 provides:

‘1. New direct current interconnectors may, upon request, be exempted, for a limited period of time, from the provisions of Article 16(6) of this Regulation and Articles 9, 32 and Article 37(6) and (10) of Directive 2009/72/EC ^[(9)^] under the following conditions:

(a) the investment must enhance competition in electricity supply;

(b) the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted;

(c) the interconnector must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that interconnector will be built;

(d) charges are levied on users of that interconnector;

(e) since the partial market opening referred to in Article 19 of Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity [(OJ 1997 L 27, p. 20)], no part of the capital or operating costs of the interconnector has been recovered from any component of charges made for the use of transmission or distribution systems linked by the interconnector; and

(f) the exemption must not be to the detriment of competition or the effective functioning of the internal market in electricity, or the efficient functioning of the regulated system to which the interconnector is linked.

…

4. The decision on the exemption under paragraphs 1, 2 and 3 shall be taken on a case-by-case basis by the regulatory authorities of the Member States concerned. An exemption may cover all or part of the capacity of the new interconnector, or of the existing interconnector with significantly increased capacity.

Within two months from the date on which the request for exemption was received by the last of the regulatory authorities concerned, the Agency may submit an advisory opinion to those regulatory authorities which could provide a basis for their decision.

In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the interconnector. When deciding those conditions, account shall, in particular, be taken of additional capacity to be built or the modification of existing capacity, the time-frame of the project and national circumstances.

Before granting an exemption, the regulatory authorities of the Member States concerned shall decide upon the rules and mechanisms for management and allocation of capacity. Congestion-management rules shall include the obligation to offer unused capacity on the market and users of the facility shall be entitled to trade their contracted capacities on the secondary market. In the assessment of the criteria referred to in points (a), (b) and (f) of paragraph 1, the results of the capacity-allocation procedure shall be taken into account.

Where all the regulatory authorities concerned have reached agreement on the exemption decision within six months, they shall inform the Agency of that decision.

The exemption decision, including any conditions referred to in the second subparagraph of this paragraph, shall be duly reasoned and published.

5. The decision referred to in paragraph 4 shall be taken by the Agency:

(a) where all the regulatory authorities concerned have not been able to reach an agreement within six months from the date the exemption was requested before the last of those regulatory authorities; or

(b) upon a joint request from the regulatory authorities concerned.

Before taking such a decision, the Agency shall consult the regulatory authorities concerned and the applicants.

…’

C. TEN-E Regulation

9. Article 12 reads:

‘1. The efficiently incurred investment costs, which excludes maintenance costs, related to a project of common interest falling under the categories set out in Annex II.1(a), (b) and (d) and Annex II.2 shall be borne by the relevant TSO or the project promoters of the transmission infrastructure of the Member States to which the project provides a net positive impact, and, to the extent not covered by congestion rents or other charges, be paid for by network users through tariffs for network access in that or those Member States.

2. For a project of common interest falling under the categories set out in Annex II.1(a), (b) and (d) and Annex II.2, paragraph 1 shall apply only if at least one project promoter requests the relevant national authorities to apply this Article for all or parts of the costs of the project. For a project of common interest falling under the categories set out in Annex II.2, paragraph 1 shall apply only where an assessment of market demand has already been carried out and indicated that the efficiently incurred investment costs cannot be expected to be covered by the tariffs.

…

3. For a project of common interest to which paragraph 1 applies, the project promoters shall keep all concerned national regulatory authorities regularly informed, at least once per year, and until the project is commissioned, of the progress of that project and the identification of costs and impacts associated with it.

As soon as such a project has reached sufficient maturity, the project promoters, after having consulted the TSOs from the Member States to which the project provides a significant net positive impact, shall submit an investment request. That investment request shall include a request for a cross-border cost allocation and shall be submitted to all the national regulatory authorities concerned, accompanied by the following:

(a) a project-specific cost-benefit analysis consistent with the methodology drawn up pursuant to Article 11 and taking into account benefits beyond the borders of the Member State concerned;

(b) a business plan evaluating the financial viability of the project, including the chosen financing solution, and, for a project of common interest falling under the category referred to in Annex II.2, the results of market testing; and

(c) if the project promoters agree, a substantiated proposal for a cross-border cost allocation.

…

4. Within six months of the date on which the last investment request was received by the national...