Aquind Ltd and Others v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2023:52
• Date: 08 February 2023
• Docket Number: T-295/20
• Celex Number: 62020TJ0295
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

8 February 2023 (*)

(Energy – Trans-European energy infrastructure – Regulation (EU) No 347/2013 – Delegated regulation amending the list of projects of common interest – Second paragraph of Article 172 TFEU – Refusal of a Member State to give its approval to a proposed electricity interconnector with a view to granting the status of a project of common interest – Non-inclusion by the Commission of the project in the amended list – Obligation to state reasons – Principle of good administration – Equal treatment – Legal certainty – Legitimate expectations – Proportionality – Article 10 of the Energy Charter Treaty)

In Case T‑295/20,

Aquind Ltd, established in Wallsend (United Kingdom),

Aquind SAS, established in Rouen (France),

Aquind Energy Sàrl, established in Luxembourg (Luxembourg),

represented by S. Goldberg, C. Davis and J. Bille, Solicitors, and by E. White, lawyer,

applicants,

v

European Commission, represented by O. Beynet and B. De Meester, acting as Agents,

defendant,

supported by

Federal Republic of Germany, represented by J. Möller and S. Costanzo, acting as Agents,

by

Kingdom of Spain, represented by M. Ruiz Sánchez, acting as Agent,

and by

French Republic, represented by A.-L. Desjonquères, A. Daniel, W. Zemamta and R. Bénard, acting as Agents,

interveners,

THE GENERAL COURT (Second Chamber),

composed, at the time of the deliberations, of V. Tomljenović, President, P. Škvařilová-Pelzl and I. Nõmm (Rapporteur), Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

further to the hearing on 6 September 2022,

gives the following

Judgment

1 By their action based on Article 263 TFEU, the applicants, Aquind Ltd, Aquind SAS and Aquind Energy Sàrl, seek annulment of Commission Delegated Regulation (EU) 2020/389 of 31 October 2019 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (OJ 2020 L 74, p. 1; ‘the contested regulation’).

Background to the dispute

2 The applicants are the promoters of a proposed electricity interconnector linking the electricity transmission networks of the United Kingdom and France (‘the proposed Aquind interconnector’).

3 The proposed Aquind interconnector was placed on the list of ‘projects of common interest’ (‘PCIs’) of the European Union by Commission Delegated Regulation (EU) 2018/540 of 23 November 2017 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (OJ 2018 L 90, p. 38), and was thus considered to be a fundamental project in the infrastructure necessary for the completion of the internal energy market. The status of a Union PCI enables a promoter of projects, first, to benefit from a procedure for the grant of rationalised, coordinated and accelerated authorisations, secondly, to submit a request for investment and cross-border allocation of costs to the competent national regulatory authorities, in such a way that the efficiently incurred investment costs are recoverable from network users and, thirdly, to seek financing under the Connecting Europe Facility.

4 The list established by Delegated Regulation 2018/540 was replaced by the one established by the contested regulation. In the new list in annex to the contested regulation, the proposed Aquind interconnector appears in the table of projects which are no longer considered to be Union PCIs.

Forms of order sought

5 The applicants claim, in essence, that the Court should:

– annul the contested regulation in so far as it removes the proposed Aquind interconnector from the Union list of PCIs;

– in the alternative, annul the contested regulation in its entirety; and

– order the European Commission to pay the costs;

6 The Commission and the Kingdom of Spain contend that the Court should:

– dismiss the application;

– order the applicants to pay the costs.

7 The French Republic contends that the Court should dismiss the action.

8 The Federal Republic of Germany contends that the Court should dismiss the action at least in so far as it concerns Article 10(1) of the Energy Charter Treaty, signed in Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24), and clarify the issue of the inapplicability of Article 26 of that charter in intra-EU relations.

Law

9 In support of their action, the applicants rely on seven pleas in law, alleging, first, infringement of the obligation to state reasons, second, infringement of the procedural and substantive requirements laid down in Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39), in particular Article 5(8), third, infringement of Article 10(1) of the Energy Charter Treaty, fourth, infringement of the right to good administration laid down in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), fifth, infringement of the principle of equal treatment, sixth, infringement of the principle of proportionality and, seventh, infringement of the principles of legal certainty and the protection of legitimate expectations.

10 The Court considers it appropriate to examine together the fourth and fifth pleas, alleging, respectively, infringement of the right to good administration and infringement of the principle of equal treatment, and not to examine until last the third plea, alleging infringement of Article 10(1) of the Energy Charter Treaty.

The first plea in law, alleging infringement of the obligation to state reasons

11 By the first plea, the applicants allege infringement of the obligation to state reasons. The removal of the proposed Aquind interconnector is not explained either in the contested regulation or in the accompanying statement of reasons, or even in the Commission staff working document accompanying the contested regulation.

12 The Commission, supported by the Kingdom of Spain and the French Republic, disputes that plea.

13 First of all, according to the case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purposes of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, inasmuch as the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150; see, also, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53 and the case-law cited; judgment of 10 June 2020, Spliethoff’s Bevrachtingskantoor v Commission, T‑564/15 RENV, not published, EU:T:2020:252, paragraph 108). In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person, which enable that person to understand the scope of the measure concerning him or her (judgment of 18 October 2018, Terna v Commission, T‑387/16, EU:T:2018:699, paragraph 53).

14 Next, the interest which the applicants may have in receiving explanations must be taken into account when assessing the extent of the obligation to state reasons for the decisions in question (see, to that effect, judgment of 28 November 2019, Portigon v SRB, T‑365/16, EU:T:2019:824, paragraph 164). The obligation to state reasons is the corollary of the principle of respect for the rights of the defence. Thus, the purpose of the obligation to state the reasons for an act adversely affecting a person is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 462).

15 Lastly, a statement of reasons may be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court with sufficient material for it to exercise its power of review (judgment of 13 July 2011, General Technic-Otis and Others v Commission, T‑141/07, T‑142/07, T‑145/07 and T‑146/07, EU:T:2011:363, paragraph 302).

16 It is in the light of those factors that the first plea in law must be examined.

17 In the first place, it is necessary to determine both the reasons why the Commission did not include the proposed Aquind interconnector as a Union PCI in the contested regulation and where those reasons are set out.

18 First, the recitals of the contested regulation contain a brief summary of the content of Regulation No 347/2013, they refer to the Commission’s power to adopt delegated acts in order to draw up the Union list of PCIs, they reiterate the obligation to draw up a new list every two years and they state that the projects proposed for inclusion in the Union list of PCIs were evaluated by the regional groups and that those groups confirmed that the projects in question...