ORDER OF THE GENERAL COURT (Fifth Chamber)
19 October 2016 (*)
(Action for annulment — Energy — Regulation (EC) No 713/2009 — Regulation (EC) No 714/2009 — Opinion of ACER — National regulatory authorities’ decisions approving the methods of allocation of cross-border electricity transmission capacity — Central-East Europe region — Compatibility — Act not open to challenge — Inadmissibility)
In Case T‑671/15,
Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), established in Vienna (Austria), represented by F. Schuhmacher, lawyer,
applicant,
v
Agency for the Cooperation of Energy Regulators (ACER), represented by E. Tremmel, acting as Agent,
defendant,
APPLICATION under Article 263 TFEU for annulment of Opinion No 09/2015 of ACER of 23 September 2015 on the compliance of national regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation (EC) No 714/2009 and the Guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto,
THE GENERAL COURT (Fifth Chamber),
composed, at the time of deliberation, of A. Dittrich, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), is the national regulatory authority of Austria established in accordance with Article 35 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).
2 On 2 December 2014, Urzad Regulacji Energetyki, the national regulatory authority of Poland (‘URE’) submitted to the Agency for the Cooperation of Energy Regulators (ACER) a request for an opinion under Article 7(4) of Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ 2009 L 211, p. 1) on whether decision No 141-4/2013-09/203 of the national regulatory authority of Slovenia, the applicant’s decision No V AUK 02/13, decision No 2538/2014 of the national regulatory authority of Hungary and decision No 0027/2014/E-PP of the national regulatory authority of Slovakia (‘the decisions at issue’) comply with 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) and the Guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto.
3 In its request, URE maintained, inter alia, that the decisions at issue of the national regulatory authorities of Austria, Hungary, Slovakia and Slovenia did not provide for a capacity allocation procedure on the German-Austrian border, resulting in significant power flows through the transmission grids in neighbouring countries. Therefore, according to URE, the decisions at issue did not comply with the provisions of Regulation No 714/2009 or with the Guidelines in Annex I thereto.
4 Following the request made by URE on 2 December 2014, ACER issued Opinion No 09/2015 of 23 September 2015 on the compliance of national regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation No 714/2009 and the Guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto (‘the contested opinion’). The contested opinion identifies Article 7(4) of Regulation No 713/2009 as the legal basis for the opinion.
5 With regard to the statement of findings in the contested opinion, ACER, first, essentially declared that the interconnection between Germany and Austria should be considered to be usually and structurally congested for the purposes of Article 2(2)(c) of Regulation No 714/2009 and points 1.2 and 1.4 of Annex I thereto. Secondly, in ACER’s view, it was necessary to implement transparent, non-discriminatory and market-based congestion management procedures compliant with Regulation No 714/2009. Thirdly, implementation of a capacity allocation procedure on the German-Austrian border was required pursuant to Article 16(1) of Regulation No 714/2009 and points 1.2, 1.4 and 3.1 of Annex I thereto. Fourthly, the decisions at issue did not comply with Article 16(1) of that regulation and with points 1.2, 1.4 and 3.1 of Annex I thereto to the extent that those decisions approve the rules for the allocation of cross-border transmission capacity without providing for an allocation of cross-border capacity on the border between Germany and Austria.
6 Consequently, and fifthly, ACER invited, first of all, the transmission system operators and the national regulatory authorities of the Central-East Europe region:
– to commit, within four months of the date of the adoption and publication of the contested opinion, to the adoption of a coordinated capacity allocation procedure on the German-Austrian border, with a realistic but ambitious implementation calendar with concrete steps, this calendar being required to give transmission system operators and market participants a reasonable amount of time to prepare themselves for that important change;
– to allocate maximum resources and efforts to the implementation of Flow-Based Market Coupling in the Central-East Europe region as early as possible and to work together constructively to avoid any further delays or disputes;
– to evaluate, within four months of the date of the adoption and publication of the contested opinion, whether the interim measures already implemented were sufficient to ensure network security, or whether additional interim measures coordinated at regional level would be necessary to ensure that the network was operated safely until the implementation of a coordinated capacity allocation procedure on the German-Austrian border.
7 Next, ACER invited the German and Austrian transmission system operators and national regulatory authorities to evaluate the need for potential transitory regulatory measures for market participants to accompany the implementation of a coordinated capacity allocation procedure on the German-Austrian border.
8 It also invited ‘all relevant [national regulatory authorities]’ to continue supporting the market integration process during the transitional period until the implementation of a coordinated capacity allocation procedure on the German-Austrian border. That support could imply the approval, in the Central-East Europe region, of congestion management rules which are not fully compliant with Regulation No 714/2009 and Annex I thereto until the recommended measure becomes effective.
9 Sixthly, it is stated in the formal part of the contested opinion that the opinion is without prejudice to the determination of capacity calculation regions, pursuant to 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), and to the final outcome of the bidding zone review process, pursuant to Article 32 of that regulation.
Procedure and forms of order sought
10 By application lodged at the Court Registry on 23 November 2015, the applicant brought the present action.
11 On the same day, the applicant filed an appeal with the Board of Appeal of ACER, by which it sought annulment of the contested opinion. On 16 December 2015, the Board of Appeal of ACER dismissed the appeal as inadmissible. That decision of the Board of Appeal of ACER has been challenged by the applicant in Case T‑63/16, E-Control v ACER.
12 By separate document, lodged at the Court Registry on the same day, the applicant made an application for interim measures pursuant to Article 156 et seq. of the Rules of Procedure of the General Court, by which it sought suspension of operation of the contested opinion. By order of 4 December 2015, E-Control v ACER (T‑671/15 R, not published, EU:T:2015:975), the President of the General Court dismissed the application for interim measures.
13 By document lodged at the Court Registry on 18 February 2016, ACER raised an objection of inadmissibility pursuant to Article 130(1) of the Rules of Procedure.
14 By documents lodged at the Registry on 2, 7, 11 and 22 March and 10 June 2016, the Republic of Poland, the Republic of Austria, Polskie Sieci Elektroenergetyczne S.A., Verbund AG and Wirtschaftskammer Österreich applied for leave to intervene, in the case of the Republic of Austria, Verbund AG and Wirtschaftskammer Österreich, in support of the form of order sought by the applicant, and, in the case of the Republic of Poland and Polskie Sieci Elektroenergetyczne S.A., in support of the form of order sought by ACER.
15 By document lodged at the Registry on 20 April 2016, the applicant submitted its observations on the objection of inadmissibility.
16 ACER claims that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs;
– in the alternative, prescribe new time limits to enable it to submit its defence, in accordance with Article 130(8) of the Rules of Procedure.
17 The applicant contends that the Court should:
– dismiss the objection of inadmissibility as unfounded;
– annul the contested opinion;
– order ACER to pay the costs.
Law
18 Under Article 130(1) of the Rules of Procedure, the Court may, if a party so requests, decide on the question of admissibility without going to the substance of the case.
19 By its objection of inadmissibility, ACER challenges the admissibility of the present action, in essence, on the grounds that the contested opinion is not an act that is open to challenge for the purposes of Article 263 TFEU, and that, even if the contested opinion were considered legally binding, the present action could not be brought directly before the General Court.
20 The Court must therefore consider whether the contested opinion is an act that is open to challenge and capable of forming the subject matter of an action under Article 263 TFEU.
21 It is ACER’s view, in essence, that the contested opinion is not capable of producing direct legal effects. ACER maintains that the contested opinion is not an act that is open to challenge as it is not intended to produce legal effects vis-à-vis third parties within the meaning of Article 263 TFEU. Neither its wording, its content, its context, nor the intention of its author confers on it binding legal effects. Furthermore, according to ACER, the present action is not the only means of ensuring that the applicant has effective judicial protection.
22 The applicant essentially submits that, taking into consideration the substance of the contested opinion, that opinion constitutes a decision for the purposes of Article 263 TFEU, and one that is addressed to the applicant. It maintains that the contested opinion has direct legal effects on it in that the opinion includes specific obligations for it and is therefore binding. According to the applicant, the contested opinion contains a final legal assessment and is not therefore an intermediate measure or preparatory act. In particular, the contested opinion requires the applicant to adopt a coordinated capacity allocation procedure on the German-Austrian border, to allocate resources and efforts and to evaluate whether the interim measures are sufficient. Moreover, in its adoption, the contested opinion bypassed the appropriate procedures and failed to comply with the requirements of Article 7(7) and Article 8 of Regulation No 713/2009 and the conditions laid down in Regulation 2015/1222. Further, according to the applicant, Regulation No 713/2009 does not provide for any ‘explicit’ administrative procedure for challenging the contested opinion and thus does not provide the applicant with effective judicial protection.
23 It is evident from the case-law developed in the context of actions for annulment that any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts that are capable of forming the subject matter of an action, for the purposes of Article 263 TFEU (judgments of 31 March 1971, Commission v Council (‘ERTA’), 22/70, EU:C:1971:32, paragraph 42; of 2 March 1994, Parliament v Council, C‑316/91, EU:C:1994:76, paragraph 8; and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36).
24 Where the action for annulment against an act adopted by an institution is brought by a natural or legal person, the Court of Justice has repeatedly held that the action lies only if the binding legal effects of that act are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 29).
25 It must, however, be emphasised that that case-law was developed in the context of actions brought before the EU judicature by natural or legal persons against measures of which they were the addressees. Where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to him, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 38).
26 By contrast, any act not producing binding legal effects, such as preparatory acts, confirmatory measures and implementing measures, mere recommendations and opinions and, in principle, internal instructions, falls outside the scope of the judicial review provided for in Article 263 TFEU (see, to that effect, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited, and order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, not published, EU:C:2012:292, paragraph 52).
27 In that regard, admittedly, intermediate measures whose aim is to prepare the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10; of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42; and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 50). However, the intermediate acts thus referred to are first acts which express a provisional opinion of the institution (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 20, and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 50).
28 The case-law shows that an intermediate measure is not capable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12, and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 53).
29 Lastly, in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under Article 263 TFEU can be brought against it, it is necessary to examine its wording and context (see, to that effect, judgments of 20 March 1997, France v Commission, C‑57/95, EU:C:1997:164, paragraph 18, and of 1 December 2005, Italy v Commission, C‑301/03, EU:C:2005:727, paragraphs 21 to 23), its substance (see judgment of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited) and the intention of its author (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
30 The Court must examine in the light of those considerations whether the contested opinion is intended to produce binding legal effects and thus constitutes an act that is capable of forming the subject matter of an action for the purposes of Article 263 TFEU (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 40).
31 In the present case, first, it must be noted that the contested opinion is, according to its title, an opinion on the compliance of the decisions at issue approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation No 714/2009 and the Guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto.
32 Secondly, in the contested opinion, ACER refers expressly to Article 7(4) of Regulation No 713/2009 as being the legal basis upon which it is to provide an opinion, based on matters of fact, at the request of a regulatory authority or of the European Commission, on whether a decision taken by a regulatory authority complies with the Guidelines referred to in particular in Directive 2009/72 or Regulation No 714/2009 or with other relevant provisions of those acts.
33 Thirdly, the contested opinion was adopted in order to respond to URE’s request for an opinion pursuant to Article 7(4) of Regulation No 713/2009 on the compliance of the decisions at issue with Regulation No 714/2009 and the Guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto.
34 Fourthly, it must be borne in mind that the statement of findings in the contested opinion contains ACER’s findings, according to which it considered, as set out in paragraph 5 above, that the decisions at issue did not comply with Article 16(1) of Regulation No 714/2009 and points 1.2, 1.4 and 3.1 of Annex I thereto to the extent that those decisions approved the rules for the allocation of cross-border transmission capacity without providing for an allocation of cross-border capacity on the border between Germany and Austria. Furthermore, contrary to the applicant’s arguments, the statement of findings contains recommendations, inviting the transmission system operators and national regulatory authorities concerned, including the applicant, to adopt measures to rectify the shortcomings identified (see paragraphs 6 to 8 above).
35 It is therefore apparent from the wording and the substance of the contested opinion as well as from its context and ACER’s intention that it constitutes an opinion under Article 7(4) of Regulation No 713/2009.
36 According to Article 7(1) of Regulation No 713/2009, ACER is to adopt individual decisions on technical issues where those decisions are provided for, inter alia, in Directive 2009/72 or in Regulation No 714/2009.
37 Article 7(4) of Regulation No 713/2009 provides that ACER is to provide an opinion, based on matters of fact, at the request of a regulatory authority or of the Commission, on whether a decision taken by a regulatory authority complies with the Guidelines referred to, inter alia, in Directive 2009/72 or in Regulation No 714/2009 or with other relevant provisions of those acts.
38 Article 7(5) of Regulation No 713/2009 states that where a national regulatory authority does not comply with the opinion of ACER as referred to in Article 7(4) within four months from the day of receipt, ACER is to inform the Commission and the Member State concerned accordingly.
39 In addition, Article 39(1) to (3) of Directive 2009/72 provides that any regulatory authority and the Commission may request the opinion of ACER on the compliance of a decision taken by a regulatory authority with the Guidelines referred to in that directive or in Regulation No 714/2009. ACER is to provide its opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within three months from the date of receipt of the request. Where the regulatory authority which has taken the decision does not comply with ACER’s opinion within four months from the date of receipt of that opinion, ACER is to inform the Commission accordingly.
40 Article 39(4) of Directive 2009/72 states that any regulatory authority may inform the Commission where it considers that a decision relevant for cross-border trade taken by another regulatory authority does not comply with the Guidelines referred to in that directive or in Regulation No 714/2009 within two months from the date of that decision. The procedure under Article 39(3) and the procedure under Article 39(4) may be conducted concurrently.
41 According to Article 39(5) to (7) of Directive 2009/72, where the Commission, within two months after having been informed by ACER in accordance with paragraph 3 of that article, or by a regulatory authority in accordance with paragraph 4 thereof, or on its own initiative, within three months from the date of the decision, finds that the decision of a regulatory authority raises serious doubts as to its compatibility with the Guidelines referred to in that directive or in Regulation No 714/2009, it may decide to examine the case further. Where the Commission takes a decision to examine the case further, it is to issue a final decision either not to raise objections against the decision of the regulatory authority, or to require the regulatory authority concerned to withdraw its decision on the basis that the Guidelines in question have not been complied with. Where the Commission has not taken a decision to examine the case further or a final decision within the prescribed time limits, it is deemed not to have raised objections to the decision of the regulatory authority in question.
42 Under Article 39(8) of Directive 2009/72, the regulatory authority is to comply with the Commission decision requiring it to withdraw its decision within a period of two months and is to inform the Commission accordingly.
43 With regard to the provisions set out in paragraphs 36 to 42 above, it must be noted that, although ACER has the power to adopt decisions in the circumstances provided for in Article 7(1) of Regulation No 713/2009, under paragraph 4 of that article it is to provide only an opinion, based on matters of fact, on whether a decision taken by a regulatory authority complies with the Guidelines referred to, inter alia, in Directive 2009/72 or in Regulation No 714/2009 or with other relevant provisions of those acts. In that context, it must be pointed out that, in accordance with the fifth paragraph of Article 288 TFEU, recommendations and opinions are to have no binding force.
44 Furthermore, it is apparent from Article 7(5) of Regulation No 713/2009 that, should a national regulatory authority not comply with the opinion of ACER as referred to in Article 7(4) within four months from the day of receipt, the only consequence would be that ACER would inform the Commission and the Member State concerned accordingly. Therefore, it follows that an opinion under Article 7(4) of Regulation No 713/2009 does not have binding legal effects because it creates neither rights for someone’s benefit nor obligations to which someone might be subject. In the present case, it must therefore be held that the contested opinion is not capable of creating rights or obligations for the applicant.
45 That finding is also confirmed by the provisions of Article 39 of Directive 2009/72. Both Article 7(5) of Regulation No 713/2009 and Article 39(3) of Directive 2009/72 require ACER to inform the Commission if, in its view, the regulatory authority which has taken the decision in question has not complied with the opinion of ACER, adopted pursuant to Article 7(4) of Regulation No 713/2009, within four months from the day of its receipt. However, neither Article 7(5) of Regulation No 713/2009 nor Article 39(3) of Directive 2009/72 gives a national regulatory authority such as the applicant the right to bring the matter before the Commission if the authority considers that the opinion provided pursuant to Article 7(4) of Regulation No 713/2009 has not been complied with. As explained in paragraph 40 above, the possibility of a national regulatory authority bringing a matter directly before the Commission arises only under Article 39(4) of Directive 2009/72, within a period of two months from the date of the decision in question, which was not the case here. Moreover, that possibility is not in any way linked to the adoption of an opinion provided under Article 7(4) of Regulation No 713/2009, such as the contested opinion in the present case.
46 It must also be noted that it is only a final decision of the Commission within the meaning of Article 39(6) of Directive 2009/72 which may, in accordance with paragraph 8 of that article, have binding legal effects vis-à-vis a national regulatory authority, such as the applicant, because it is capable of compelling that authority to withdraw its decision on the ground that the relevant guidelines have not been complied with. Yet no decision of that kind is the subject matter of the present action.
47 It should also be noted that the fact that the Commission may, in the circumstances referred to in Article 39(6) of Directive 2009/72, adopt a final decision requiring a national regulatory authority to withdraw its decision does not mean that binding legal effects flow from the opinion adopted by ACER under Article 7(4) of Regulation No 713/2009, even though that opinion may, in certain circumstances, be a prerequisite for any adoption of the final decision under Article 39(6) of Directive 2009/72 (see, to that effect and by analogy, order of 24 November 2010, Concord Power Nordal v Commission, T‑317/09, not published, EU:T:2010:479, paragraphs 51 and 52).
48 It follows from all of the foregoing that the contested opinion does not constitute an act that is capable of forming the subject matter of an action for the purposes of Article 263 TFEU. That finding is not called into question by the other arguments put forward by the applicant.
49 In the first place, the applicant submits that the contested opinion requires it (i) to commit, within four months of the date of the adoption and publication of the opinion, to the adoption of a coordinated capacity allocation procedure on the German-Austrian border, and to a realistic but ambitious implementation calendar with concrete steps; (ii) to allocate maximum resources and efforts to the implementation of Flow-Based Market Coupling in the Central-East Europe region; and (iii) to evaluate, within the same four-month period, whether the interim measures already implemented are sufficient.
50 It must be noted that it is clear from the wording of point 5 of the statement of findings in the contested opinion (see paragraphs 6 to 8 above), to which the applicant refers, that it contains only non-binding invitations to abide by certain findings. The use of the word ‘invites’ thus shows that ACER was not seeking to impose obligations that were new as compared with the applicant’s legal position prior to the adoption of the contested opinion, and that the content of that point 5 is nothing more than a series of recommendations to the addressees of the contested opinion with a view to tackling the problem of the non-compliance of the decisions at issue with certain provisions of Regulation No 714/2009. Contrary to what is maintained by the applicant, those recommendations are not binding and do not in any way restrict any discretion it may have.
51 Furthermore, in so far as the applicant submits that, by the contested opinion, ACER is permitting congestion management rules to be adopted which are not fully compliant with Regulation No 714/2009, which would mean a suspension of legal requirements that is not provided for in the applicable regulations, it must be held that the contested opinion does not in any way envisage a suspension of the applicant’s previous legal obligations. As ACER correctly maintains, the contested opinion does not grant the national regulatory authorities a right to adopt congestion management rules which are not fully compliant with EU law, but refers to the fact that capacity allocation would be difficult to implement immediately and that, during the transitional period, full compliance with Regulation No 714/2009, as interpreted by ACER, might not be achieved with immediate effect.
52 Consequently, the Court must reject the applicant’s argument that the contested opinion imposes on it obligations which are new as compared with its legal position prior to the adoption of that opinion.
53 In the second place, the applicant submits that the contested opinion is capable of forming the subject matter of an action under Article 263 TFEU on the ground that it has been held, with regard to Commission communications describing the Commission’s general approach, that these are capable of forming the subject matter of an action under that article. The applicant bases its argument on the judgments of 9 October 1990, France v Commission (C‑366/88, EU:C:1990:348), of 13 November 1991, France v Commission (C‑303/90, EU:C:1991:424), of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245), and of 20 March 1997, France v Commission (C‑57/95, EU:C:1997:164).
54 It must be held in that regard that the case-law cited by the applicant is not relevant to the present case.
55 First, the judgment of 9 October 1990, France v Commission (C‑366/88, EU:C:1990:348), concerned, in essence, an act adopted by the Commission entitled ‘Internal instructions’ which was a position taken by the Commission as to the extent of the supervisory powers of its officials in relation to the taking of certain samples. In that case, the Commission was merely exercising a function that was supplementary to the powers of the Member States. The act at issue gave the Commission the power to take samples independently of the Member States, and laid down the detailed arrangements for its action in that regard, without any such power having been provided for by the regulation which the act at issue was intended to supplement. The Court of Justice therefore considered the act at issue to be a decision adopted by an authority which had no power to do so.
56 Secondly, the judgment of 13 November 1991, France v Commission (C‑303/90, EU:C:1991:424), concerned, in essence, a Commission act entitled ‘Code of conduct’ which contained an obligation imposed on Member States to communicate certain information to the Commission, and the frequency and means of communicating it. That obligation went beyond the obligations laid down by the regulation which that code of conduct was intended to clarify. Furthermore, EU law gave the Commission no competence to adopt measures implementing the regulation concerned. The Court of Justice therefore held that that code of conduct was a measure against which an action could be brought under Article 263 TFEU.
57 Thirdly, in the judgment of 16 June 1993, France v Commission (C‑325/91, EU:C:1993:245), the Court of Justice held, in essence, that a Commission communication which set out to specify the manner of application of a provision of a directive, without any legal basis for doing so, and which imposed on the Member States an obligation to report certain data to it annually on a general, systematic basis, had added new obligations for the Member States and was therefore an act intended to have legal effects of its own distinct from those of the provision it was intended to clarify.
58 Fourthly, the judgment of 20 March 1997, France v Commission (C‑57/95, EU:C:1997:164), concerned the Commission’s communication on an internal market for pension funds (OJ 1994 C 360, p. 7). According to the Court of Justice, that act was intended to make known the Commission’s general approach with regard to the application of the fundamental principles of the Treaty to institutions for retirement provision. The Court of Justice found that certain provisions of the act in question were characterised by their imperative wording, and that it contained certain provisions which could not be regarded as being inherent in the relevant provisions of the Treaty. It was therefore held that the act in question constituted an act intended to have legal effects of its own and that an action for annulment would lie against it.
59 In the present case, on the one hand, it must be held that, by contrast with the case-law cited in paragraphs 55 and 57 above, the contested opinion was adopted on the basis of Article 7(4) of Regulation No 713/2009, which, as has been explained in paragraphs 43 and 44 above, constitutes a legal basis for the adoption of non-binding opinions. It follows from this that ACER was empowered to adopt the contested opinion.
60 On the other hand, unlike the case-law cited in paragraphs 55 to 58 above, clearly, as has been stated in paragraphs 49 to 52 above, the contested opinion did not give ACER any power to impose an obligation or a right in favour of the applicant or another national regulatory authority.
61 The Court must therefore reject the applicant’s argument that the contested opinion is comparable to the Commission communications with which the cases listed in paragraph 53 above were concerned, and which were deemed capable of forming the subject matter of an action under Article 263 TFEU.
62 In the third place, the applicant maintains that the contested opinion is not a preparatory act or intermediate measure but represents the final legal assessment of ACER.
63 In that regard it must be observed that the mere fact that the contested opinion contains final legal assessments does indicate that it is not a preparatory act or intermediate measure within the meaning of the case-law set out in paragraphs 26 to 28 above, such an act or measure being incapable of forming the subject matter of an action for annulment under Article 263 TFEU.
64 However, it is also the case that the fact that the contested opinion contains final legal assessments does not mean that it produces binding legal effects and that it is therefore capable of forming the subject matter of an action under Article 263 TFEU.
65 In so far as the applicant thus submits that the contested opinion finds that there is structural congestion on the German-Austrian border, that other mitigating measures are not sufficient, that the implementation of a capacity allocation mechanism on the German-Austrian border is required and that the decisions at issue do not comply with Regulation No 714/2009, it must be noted that, even on the assumption that those findings include a final assessment involving legal requirements, those findings do not create any obligation for the applicant or for another national regulatory authority, or any right in their favour.
66 Accordingly, the Court must reject the applicant’s argument that the contested opinion is capable of forming the subject matter of an action for annulment under Article 263 TFEU merely because it sets out a final legal assessment of ACER. The fact that an act sets out a final legal assessment does not lead to any conclusion as to whether the act has binding legal effects.
67 In the fourth place, the applicant submits that, in so far as the contested opinion provides a final assessment as to whether a capacity allocation mechanism has to be introduced on the German-Austrian border, ACER is bypassing the requirements for taking a decision pursuant to Article 7(7) and Article 8 of Regulation No 713/2009 and the procedures laid down in Articles 15 and 32 of Regulation 2015/1222.
68 With regard to the argument that ACER bypassed the requirements relating to a procedure laid down by Regulation No 713/2009 concerning the terms and conditions for access to and operational security of cross-border infrastructure, Article 7(7) of Regulation No 713/2009 provides that ACER is to decide on the terms and conditions for access to and operational security of electricity and gas infrastructure connecting or that might connect at least two Member States (cross-border infrastructure), in accordance with Article 8. The first subparagraph of Article 8(1) of that regulation states that, for cross-border infrastructure, ACER is to decide upon those regulatory issues that fall within the competence of national regulatory authorities, which may include the terms and conditions for access and operational security, either where the competent national regulatory authorities have not been able to reach an agreement within a period of six months from when the case was referred to the last of those regulatory authorities, or upon a joint request from the competent national regulatory authorities.
69 It must be noted that, in the present case, the matter was not brought before ACER under a procedure for deciding on the terms and conditions for access to and operational security of electricity and gas infrastructure connecting or that might connect at least two Member States, in accordance with Article 7(7) and Article 8 of Regulation No 713/2009.
70 In fact, it must be noted that, in order for a procedure for deciding on the terms and conditions for access to and operational security of electricity and gas infrastructure connecting or that might connect at least two Member States to be triggered, in accordance with Article 7(7) and Article 8 of Regulation No 713/2009, either the competent national regulatory authorities must have been unable to reach an agreement within a period of six months from when the case was referred to the last of those regulatory authorities, or a joint request from the competent national regulatory authorities is required. There is nothing in the file before this Court to indicate that the conditions for either situation have been fulfilled in this instance. It follows from this that it would not even have been possible for ACER to become involved in such a procedure.
71 On the other hand, ACER received a request pursuant to Article 7(4) of Regulation No 713/2009, relating to the compliance of the decisions at issue with the Guidelines and other provisions referred to in Regulation No 714/2009. In the contested opinion, ACER found that the decisions at issue did not comply with Article 16(1) of that regulation and points 1.2, 1.4 and 3.1 of Annex I thereto to the extent that they approve the rules for the allocation of cross-border transmission capacity without providing for an allocation of cross-border capacity on the border between Germany and Austria.
72 According to Article 16(1) of Regulation No 714/2009, network congestion problems are to be addressed with non-discriminatory market-based solutions which give efficient economic signals to the market participants and transmission system operators involved. Network congestion problems are preferentially to be solved with non-transaction based methods, that is to say, methods that do not involve a selection between the contracts of individual market participants.
73 Points 1.2, 1.4 and 3.1 of Annex I to Regulation No 714/2009 provide that, when there is no congestion, there is to be no restriction of access to the interconnection. Where this is usually the case, there need be no permanent general allocation procedure for access to a cross-border transmission service. If structural congestion appears, appropriate congestion-management methods and arrangements defined and agreed upon in advance are to be implemented immediately by the transmission system operators. The congestion-management methods are to ensure that the physical power flows associated with all allocated transmission capacity comply with network security standards. Capacity allocation at an interconnection is to be coordinated and implemented using common allocation procedures by the transmission system operators involved. In cases where commercial exchanges between two countries are expected to affect physical flow conditions in any third country significantly, congestion-management methods are to be coordinated between all the transmission system operators so affected through a common congestion-management procedure. National regulatory authorities and transmission system operators are to ensure that no congestion-management procedure with significant effects on physical electric power flows in other networks is devised unilaterally.
74 Consequently, it must be held that, in the light of the provisions set out in paragraphs 72 and 73 above, ACER did not exceed the limits of an assessment pursuant to Article 7(4) of Regulation No 713/2009 by finding that the decisions at issue should have provided for an allocation of cross-border capacity on the border between Germany and Austria. Moreover, the applicant’s argument that such a finding was made ultra vires must be rejected. By the contested opinion, ACER merely expressed its opinion that the decisions at issue did not comply with certain provisions; it did not, however, decide on the terms and conditions for access to and operational security of electricity and gas infrastructure connecting or that might connect at least two Member States in accordance with Article 7(7) and Article 8 of Regulation No 713/2009.
75 The Court must therefore reject the applicant’s argument that, by adopting the contested opinion, ACER bypassed the requirements for taking a decision under Article 7(7) and Article 8 of Regulation No 713/2009. In particular, given that the choice of procedure under Regulation No 713/2009 is a matter for the authority making the request to ACER, ACER does not have any means of bypassing the requirements for taking any such decision.
76 Furthermore, with regard to the applicant’s arguments concerning Regulation 2015/1222, Article 15 of that regulation provides for transmission system operators to develop a common proposal regarding the determination of capacity calculation regions. Article 32 of that regulation covers the review of an existing bidding zone configuration by agreement between the participating Member States or their regulatory authorities on the basis of a joint proposal to maintain or amend the bidding zone configuration.
77 First, according to the applicant, the contested opinion has binding legal effects because the proposal regarding capacity calculation regions adopted on 29 October 2015 by transmission system operators cooperating in the framework of the European Network of Transmission System Operators for Electricity pursuant to Article 15 of Regulation 2015/1222 (‘the proposal of 29 October 2015’) refers to it.
78 It must be noted in that regard that Article 8(2) and (3) of the proposal of 29 October 2015 states that, in accordance with the contested opinion, the bidding zone border Germany-Austria should be assigned to the capacity calculation region Central-East Europe. Capacity allocation should be introduced in line with the implementation calendar provided for in the contested opinion.
79 Furthermore, according to recital 5, point (b), of the proposal of 29 October 2015, all transmission system operators understand that the contested opinion requires the implementation of a capacity allocation procedure on the German-Austrian border which should form a constituent part of the Central-East Europe region. Moreover, the contested opinion is said to reflect a common position of the national regulatory authorities. With the proposal of 29 October 2015, all transmission system operators are said to ‘take over’ and implement this common ‘decision’ of national regulatory authorities. With the approval of that proposal, the approving national regulatory authorities are able to inherently reconfirm the ‘decision’ included in the contested opinion concerning an assignment of the bidding zone border Germany-Austria to the Central-East Europe capacity calculation region.
80 Nevertheless, it must be noted, first of all, that the statement of findings in the contested opinion records that that opinion is without prejudice to the determination of capacity calculation regions, pursuant to Article 15 of Regulation 2015/1222, and to the final outcome of the bidding zone review process, pursuant to Article 32 of that regulation. It thus follows from this that the opinion does not in any way cover the determination of capacity calculation regions, as provided for in Article 15 of that regulation.
81 Next, it must be noted that the positions taken in the contested opinion are not binding either on ACER or on a national regulatory authority or transmission system operator in the context of other administrative procedures outside the framework of Article 7(4) of Regulation No 713/2009. In the event that ACER, an institution or another body, office or agency of the European Union should decide to refer to the contested opinion in the statement of reasons for another act, which has binding legal effects, it is against the latter act that an action for annulment should be brought under Article 263 TFEU.
82 Moreover, in so far as the proposal of 29 October 2015 is intended to implement the finding in the contested opinion that implementation of a capacity allocation procedure on the German-Austrian border is required, it should be noted that that proposal, adopted pursuant to Article 15 of Regulation 2015/1222 by the European Network of Transmission System Operators for Electricity, is not capable of creating binding legal effects as regards the contested opinion, which was adopted by ACER in accordance with Article 7(4) of Regulation No 713/2009. Furthermore, the question as to whether the proposal of 29 October 2015 or another act adopted pursuant to Regulation 2015/1222 constitutes an act that is capable of forming the subject matter of an action for the purposes of Article 263 TFEU is outside the scope of the present proceedings.
83 Lastly, the fact that the European Network of Transmission System Operators for Electricity is of the view that the contested opinion contains a ‘decision’ concerning an assignment of the bidding zone border Germany-Austria to the Central-East Europe capacity calculation region does not bind this Court in its assessment for the purposes of determining whether the contested opinion is an act that is capable of forming the subject matter of an action for the purposes of Article 263 TFEU.
84 Accordingly, the Court must reject the applicant’s argument that the contested opinion includes binding legal effects because reference was made to it in the proposal of 29 October 2015.
85 Nor, furthermore, is the mere fact that certain national regulatory authorities or transmission system operators have communicated to the applicant their desire to implement certain ACER conclusions contained in the contested opinion capable of demonstrating that that opinion has binding legal effects.
86 Secondly, the applicant is of the view that the contested opinion concludes that the common bidding zone covering Germany and Austria was incompatible with the provisions of Regulation No 714/2009 and that a reconfiguration of the bidding zone was required. It claims that ACER came to this conclusion without launching the mandatory review process provided for in Article 32 of Regulation 2015/1222, disregarding the binding material and procedural requirements of a bidding zone review.
87 It must be noted in this regard that, according to the statement of findings in the contested opinion, the latter is without prejudice to the determination of capacity calculation regions, pursuant to Article 15 of Regulation 2015/1222, and to the final outcome of the bidding zone review process, pursuant to Article 32 of that regulation. It thus follows from this that the opinion does not cover any review of the existing configuration of bidding zones, provided for in Article 32 of that regulation. Moreover, it must be noted that, in any event, the positions taken in the contested opinion are not binding either on ACER or on a national regulatory authority or transmission system operator in the context of other administrative procedures outside the framework of Article 7(4) of Regulation No 713/2009.
88 The Court must therefore reject the applicant’s argument that ACER tried, through the contested opinion, to pre-empt and bypass the bidding zone configuration process, as provided for in Article 32 of Regulation 2015/1222.
89 In the fifth place, the applicant maintains that there is no administrative procedure available for it to challenge the contested opinion and that it therefore had to bring the present action for annulment in order to have an effective legal remedy, as such an action was the only way for it to challenge the contested opinion.
90 As to whether an act is open to challenge, it has been held that it is, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements, namely, that it is duly named by its author; that it is sufficiently reasoned; and that it mentions the provisions providing the legal basis for it. If it were otherwise, ACER could avoid review by the Courts of the European Union simply by failing to adhere to such formal requirements. The procedural rules governing actions brought before the Courts of the European Union must be interpreted in such a way as to ensure, wherever possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under EU law (see judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraphs 44 to 45 and the case-law cited).
91 However, while the conditions of the admissibility of an action laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation cannot have the effect of setting aside those conditions (see judgment of 21 January 2016, SACBO v Commission and INEA, C‑281/14 P, EU:C:2016:46, paragraph 46 and the case-law cited), such as an absolute bar to proceeding with a case, including the requirement that there must be an actionable measure (see, to that effect, order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, not published, EU:C:2012:292, paragraph 54 and the case-law cited).
92 In the present case, it should be borne in mind that, as has been noted in paragraphs 31 to 35 above, it is clear from the wording, the content and the context of the contested opinion that it constitutes an opinion under Article 7(4) of Regulation No 713/2009. It has also been explained, in paragraphs 36 to 48 above, that such an act is not a challengeable act that is capable of being the subject matter of an action for the purposes of Article 263 TFEU.
93 Consequently, the Court must reject the applicant’s argument that it ought to be entitled to bring the present action in order to ensure that it has an effective legal remedy.
94 Accordingly, the present action must be dismissed as inadmissible, and there is no need to consider ACER’s arguments to the effect that the action is not one that is capable of being brought directly before this Court.
95 Since the present action must be declared inadmissible, there is no longer any need to rule on the applications to intervene made by the Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A.
Costs
96 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
97 In the present case, since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by ACER, in accordance with the form of order sought by ACER, including those relating to the interim proceedings.
98 Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties are each to bear their own costs relating to the application to intervene. The applicants for leave to intervene referred to in paragraph 95 above must therefore be ordered to bear their own costs relating to the applications to intervene.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no longer any need to rule on the applications to intervene of the Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A.
3. Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) shall bear its own costs and shall pay those incurred by the Agency for the Cooperation of Energy Regulators (ACER), including those relating to the interim proceedings.
4. The Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A. shall bear their own costs relating to the applications to intervene.
Luxembourg, 19 October 2016.