Judgment of the General Court Second Chamber, 15 February 2023, Aquind Ltd and Others v ACER, T-492/21

• Date: 15 February 2023
• Year: 2023

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Judgment of the General Court (Second Chamber), 15 February 2023, Aquind Ltd and

Others v ACER, T-492/21

Link to the full text of the judgment

Energy – Competence of the ACER – Withdrawal of the United Kingdom from the European Union – Error

of law – Article 2(1) of Regulation (EU) 2019/943 – Article 92 of the Withdrawal Agreement – Ad hoc

exemption regime under Article 308 of and Annex 28 to the Trade and Cooperation Agreement

The company Aquind Ltd is the promoter of a project for a proposed electricity interconnector

connecting the electricity transmission systems in the United Kingdom and France (‘the Aquind

interconnector’). For the purposes of that project, Aquind Ltd submitted a request to the French and

British regulatory authorities for a temporary exemption from the general principles governing the

use of revenue, the unbundling of transmission systems and operators of transmission systems, and

third-party access to distribution or transmission systems under Regulation No 714/2009 on

conditions for access to the network for cross-border exchanges in electricity.

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As the national regulatory authorities failed to reach an agreement, the European Union Agency for

the Cooperation of Energy Regulators (ACER) rejected the request for an exemption on the ground

that Aquind Ltd did not satisfy the condition according to which the level of risk attached to the

investment for the new interconnector is to be such that the investment would not take place unless

an exemption is granted (‘ACER’s decision’).

On appeal brought by Aquind Ltd, ACER’s decision was upheld by the Board of Appeal of ACER

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(‘the

Board of Appeal’). Aquind Ltd brought an action before the General Court for annulment of the

decision of the Board of Appeal, which was upheld by the judgment of 18 November 2020, Aquind v

ACER

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(‘the annulment judgment’).

After having resumed the proceedings, the Board of Appeal declared that the action brought by

Aquind Ltd against ACER’s decision was inadmissible on the ground that, following Brexit, it was no

longer competent to rule on the request for an exemption for the Aquind interconnector (‘the

contested decision’).

The companies Aquind Ltd, Aquind Energy Sàrl and Aquind SAS brought an action for annulment of

the contested decision before the Court. By its judgment, the Court dismisses that action and rules on

the consequences of Brexit in the field of energy.

Findings of the General Court

In the first place, the Court recalls that, under Article 266 TFEU, the institution, body, office or entity

whose act has been annulled is required to take the necessary measures to comply with the judgment

annulling that act. That obligation to act is not, however, a source of competence, nor does it make it

possible for compliance measures to be based on a legal basis which has in the meantime been

repealed. Thus, the institution, body, office or entity in question is required to base the act containing

the compliance measures on a legal basis that gives it the power it to adopt that act, and is in force on

the date of adoption of that act.

It is clear furthermore from the case-law that if there is no valid legal base in force at the moment

when an institution, body, office or entity seeks to take a particular decision, it is not possible to rely

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Article 17 of Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the

network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15).

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Decision A-001-2018 of the Board of Appeal of ACER of 17 October 2018.

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Judgment of 18 November 2020, Aquind v ACER (T-735/18, under appeal, EU:T:2020:542).