Language of document : ECLI:EU:T:2017:456

Provisional text

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

29 June 2017 (*)

(Energy — Conditions for access to the network for cross-border exchanges in electricity — National regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity — Compatibility with Regulation (EC) No 714/2009 — Opinion of ACER — Definition of a decision open to appeal before ACER — Article 19 of Regulation (EC) No 713/2009 — Decision of the Board of Appeal of ACER dismissing the appeal as inadmissible – Error of law — Failure to state reasons)

In Case T‑63/16,

Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), established in Vienna (Austria), represented by F. Schuhmacher, lawyer,

applicant,

supported by

Republic of Austria, represented by C. Pesendorfer, acting as Agent,

intervener,

v

Agency for the Cooperation of Energy Regulators (ACER), represented by E. Tremmel, acting as Agent,

defendant,

supported by

Czech Republic, represented by M. Smolek, T. Müller and J. Vláčil, 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 initially by M. Motylewski and A. Kulińska, and subsequently by H. Napieła and K. Figurska, lawyers,

interveners,

ACTION under Article 263 TFEU for the annulment of Decision No A-001-2015 of the Board of Appeal of ACER of 16 December 2015, dismissing an appeal against Opinion No 09/2015 of ACER of 23 September 2015 on the compliance of the decisions of national regulatory authorities approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region 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), including the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto,

THE GENERAL COURT (Seventh Chamber),

composed of V. Tomljenović (Rapporteur), President, A. Marcoulli and A. Kornezov, Judges,

Registrar: E. Coulon,

gives the following

Judgment

 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, the Urząd Regulacji Energetyki, the Polish National Regulatory Authority (‘the URE’), lodged with 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’) were in compliance 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 with the guidelines on the management and allocation of available transfer capacity of interconnections between the national systems contained in Annex I thereto.

3        In its request, the URE maintained, inter alia, that the decisions at issue 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 the 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 the 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 opinion in question’). The opinion in question identifies Article 7(4) of Regulation No 713/2009 as its legal basis.

5        With regard to the formal part of the opinion in question, first, ACER maintained, in essence, 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 is 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 is 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 do not comply with Article 16(1) of that regulation or with points 1.2, 1.4 and 3.1 of Annex I thereto, since 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 undertake, within four months of the date on which the opinion in question was adopted and published, to adopt a coordinated capacity allocation procedure for the German-Austrian border, and a realistic but ambitious timetable for implementation with concrete steps, this timetable 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 effort 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 opinion in question, whether the interim measures already implemented were sufficient to ensure network security, or whether additional interim measures, coordinated at regional level, are necessary to ensure that the network is operated safely until a coordinated capacity allocation procedure for the German-Austrian border is implemented.

7        Next, ACER invited the German and Austrian transmission system operators and national regulatory authorities to evaluate the need for potential interim regulatory measures for market participants to accompany the implementation of a coordinated capacity allocation procedure for the German-Austrian border.

8        Finally, ACER invited ‘all relevant [national regulatory authorities]’ to continue supporting the market integration process during the transitional period until a coordinated capacity allocation procedure was implemented for the German-Austrian border. It maintained that that support could require 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 opinion in question that the opinion is without prejudice to the determination of capacity calculation regions, under 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 procedure, under Article 32 of that regulation.

10      By application lodged at the Court Registry on 23 November 2015, the applicant brought an action for annulment of the opinion in question under Article 263 TFEU. The action was registered as Case T-671/15.

11      On the same day, the applicant, pursuant to Article 19 of Regulation No 713/2009, filed an administrative appeal before the Board of Appeal of ACER against the opinion in question.

12      By decision No A-001-2015 of 16 December 2015 (‘the contested decision’), the Board of Appeal of ACER dismissed that administrative appeal as inadmissible. According to the Board of Appeal of ACER, the opinion in question is not an act that can be the subject of an appeal before it because it has no binding legal effects. The Board of Appeal noted, inter alia, in paragraphs 17, 20 and 40 of the contested decision, that the possibility of bringing an administrative appeal before ACER was limited to decisions taken under Articles 7, 8, and 9 of Regulation No 713/2009 and that such an appeal was not admissible in so far as it was directed against an opinion adopted on the basis of Article 7(4) of that regulation.

 Procedure and forms of order sought

13      By application lodged at the Court Registry on 15 February 2016, the applicant brought the present action.

14      By document lodged at the Court Registry on 12 May 2016, the Czech Republic applied for leave to intervene in the proceedings in support of the form of order sought by ACER.

15      By document lodged at the Court Registry on 25 May 2016, Verbund AG applied for leave to intervene in the proceedings in support of the form of order sought by the applicant.

16      By document lodged at the Court Registry on 9 June 2016, Polskie Sieci Elektroenergetyczne S.A. (‘PSE’) applied for leave to intervene in the proceedings in support of the form of order sought by ACER.

17      By document lodged at the Court Registry on 10 June 2016, the Republic of Austria applied for leave to intervene in the proceedings in support of the form of order sought by the applicant.

18      By document lodged at the Court Registry on 22 June 2016, the Republic of Poland applied for leave to intervene in the proceedings in support of the form of order sought by ACER.

19      By order of 16 September 2016, the President of the Fifth Chamber of the General Court granted the applications of the Czech Republic, the Republic of Austria, the Republic of Poland and PSE.

20      Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.

21      By order of 19 October 2016, E-Control v ACER (T‑671/15, not published, EU:T:2016:626), the Court dismissed the applicant’s action seeking annulment of the opinion in question as inadmissible on the ground that it is not an act that is open to challenge.

22      By order of 14 November 2016, E-Control v ACER (T‑63/16, not published, EU:T:2016:664), the President of the Seventh Chamber of the General Court dismissed the application for leave to intervene lodged by Verbund AG on the ground that it had not established that it had a direct and existing interest in the ruling on the form of order sought by the applicant.

23      ACER applied for confidential treatment of certain information in the defence in respect of the interveners, which raised no objection in that regard. A non-confidential version of the defence was disclosed to the interveners.

24      The applicant claims that the Court should:

–        annul the contested decision;

–        order ACER to pay the costs.

25      ACER contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

26      The Republic of Austria claims, in essence, that the Court should:

–        annul the contested decision;

–        order ACER to pay the costs.

27      The Czech Republic contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

28      The Polish Republic contends, in essence, that the Court should dismiss the action.

29      PSE contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

30      Under Article 106(3) of the Rules of Procedure of the General Court, where no request for a hearing has been made by the main parties within three weeks after service of notification of the close of the written part of the procedure, the Court may decide to rule on the action without an oral part of the procedure. In the present case, the Court considers that it has sufficient information available to it from the material in the file and that it is necessary, in the absence of such a request, to rule on the action without taking further steps in the proceedings.

31      In support of its action, the applicant relies on four pleas in law. The first plea in law alleges infringement of certain essential procedural requirements. By its second plea in law, the applicant claims, in essence, that the contested decision is vitiated by an error of law in that the Board of Appeal of ACER did not consider that the contested act constituted a decision within the meaning of Article 19 of Regulation No 713/2009. By its third plea in law, the applicant submits that the contested decision was not properly justified. Finally, by its fourth plea in law, the applicant claims that the Board of Appeal of ACER incorrectly applied ‘the relevant legal principles’.

32      It is apparent from the arguments raised by the parties that the case concerns, in essence, whether the opinion in question may be the subject of an administrative appeal before the Board of Appeal of ACER. In that regard, it is appropriate to examine, first and together, the second and fourth pleas in law.

 The second and fourth pleas in law, alleging that the Board of Appeal of ACER erred in law in considering that the opinion in question did not constitute a decision for the purposes of Article 19 of Regulation No 713/2009

33      The applicant claims, in essence, that the opinion in question constitutes a decision within the meaning of Article 19(1) of Regulation No 713/2009 and that, consequently, the contested decision is vitiated by an error of law, in that the Board of Appeal of ACER incorrectly dismissed the applicant’s appeal as inadmissible on the ground that that opinion is not an act that is open to challenge.

34      In that context, the applicant maintains that the opinion in question entails specific obligations which bind the applicant. By imposing several obligations to act, listed in point 5 of its formal part, and by leaving no flexibility concerning the action to be undertaken, the opinion in question has direct legal effects on the applicant. Moreover, the fact that the opinion in question led to reactions on the market by system operators confirms that it has direct legal effects. Furthermore, the applicant submits that the opinion in question is drafted in definitive terms. According to the applicant, it follows from the claims set out above that ACER’s real intention was to require the national regulatory authorities to comply with the obligations set out in the opinion in question. The applicant also submits that, contrary to what is stated in the contested decision. The opinion in question is not an intermediate measure.

35      ACER, supported by the Czech Republic, the Republic of Poland and PSE disputes those arguments.

36      In the contested decision, the Board of Appeal of ACER stated that the opinion in question was a non-binding opinion and that failure to comply with it has no legal effects. According to ACER, its powers of assessment are defined narrowly in Article 19(1) of Regulation No 713/2009 and limited to appeals brought against decisions to which that Article refers. The appeal lodged before it is therefore inadmissible.

37      According to Article 4 of Regulation No 713/2009, opinions, recommendations, non-binding framework guidelines and individual decisions ‘in the specific cases referred to in Articles 7, 8 and 9’ of the regulation are among the type of measures which ACER may adopt. In that context, it should be noted that the fourth and fifth paragraphs of Article 288 TFEU provide that a decision is to be binding in its entirety, while an opinion or recommendation has no binding force.

38      Article 19(1) of Regulation No 713/2009 provides that any natural or legal person, including national regulatory authorities, may appeal to the Board of Appeal of ACER against a decision of ACER referred to in Articles 7, 8 or 9 of that regulation which is addressed to that person, or against a decision which is of direct and individual concern to that person.

39      Consequently, in accordance with Articles 7(1) and (7), 8 and 9(1) of Regulation No 713/2009, ACER is to adopt individual decisions on certain technical issues, certain terms and conditions for access and operational security of electricity and gas infrastructure and certain exemptions.

40      On the other hand, 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 any regulatory authority or of the European Commission, on whether a decision taken by a regulatory authority complies with, inter alia, the guidelines referred to in Directive 2009/72 or in Regulation No 714/2009 or with other relevant provisions of those acts.

41      In the present case, by the contested decision, the Board of Appeal of ACER dismissed the appeal brought under Article 19 of Regulation No 713/2009 against the opinion in question.

42      In that regard, first, it should be noted that the opinion in question constitutes, as suggested by its title, an opinion on the compliance of the decisions in question approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation (EC) No 714/2009 and with the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto.

43      Secondly, in the opinion in question ACER expressly refers to Article 7(4) of Regulation No 713/2009 as the legal basis for the opinion, based on matters of fact, which it issues at the request of any regulatory authority or of the European 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.

44      Thirdly, the opinion in question was adopted in reply to the request of the URE seeking an opinion under Article 7(4) of Regulation No 713/2009 on the compliance of the decisions at issue with Regulation No 714/2009 and with the guidelines on the management and allocation of available transfer capacity of interconnections between the national systems contained in Annex I thereto.

45      Fourthly, it must be noted that the opinion in question contains, in its formal part, findings of ACER to the effect that, as set out in paragraph 5 above, ACER considered that the decisions at issue did not comply with Article 16(1) of Regulation No 714/2009 or points 1.2, 1.4 and 3.1 of Annex I thereto, since they approved rules for the allocation of cross-border transmission capacity without providing for an allocation of cross-border capacity on the German-Austrian border. Moreover, contrary to the applicant’s claim, the formal part of the opinion contains recommendations inviting the transmission system operators and national regulatory authorities concerned, including the applicant, to take measures to remedy the irregularities established. In that regard, it should be noted that it is clear from the wording of point 5 of the formal part of the opinion in question (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’ in the opinion thus shows that ACER did not seek to impose on the applicant obligations that were new as compared with the applicant’s legal position prior to the adoption of the opinion in question, 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 (see, to that effect, order of 19 October 2016, E-Control v ACER, T-671/15, not published, EU:T:2016:626, paragraph 50).

46      It is, accordingly, apparent from the wording and substance of the opinion in question as well as from its context and ACER’s intention that it constitutes an opinion within the meaning of Article 7(4) of Regulation No 713/2009.

47      Furthermore, in that regard, it is apparent from Article 7(5) of Regulation No 713/2009 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, the only consequence is that ACER is to 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 an individual’s benefit nor obligations to which an individual might be subject (order of 19 October 2016, E-Control v ACER, T-671/15, not published, EU:T:2016:626, paragraph 44). In the present case, it must therefore be held that the opinion in question is not capable of creating rights or obligations for the applicant.

48      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 took the decision in question did not comply 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. Only a final decision of the Commission within the meaning of Article 39(6) of Directive 2009/72 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 (order of 19 October 2016, E-Control v ACER, T-671/15, not published, EU:T:2016:626, paragraphs 45 and 46). Yet no decision of that kind is the subject matter of the present action.

49      It follows from all the foregoing that the opinion in question is not a decision for the purpose of Article 19 of Regulation No 713/2009, which may be the subject of an administrative appeal by virtue of that article. The applicant cannot therefore take issue with the Board of Appeal of ACER for dismissing its administrative appeal on the ground that the opinion in question was not an act which may be the subject of such an appeal. That finding is not called into question by the other arguments of the applicant and the Republic of Austria.

50      In the first place, the applicant considers that the concept of a ‘decision’ within the meaning of Article 19 of Regulation No 713/2009 must be interpreted in accordance with the same criteria as the concept of a challengeable act for the purposes of the fourth paragraph of Article 263 TFEU.

51      Without there being any need to rule on whether that is the case, it suffices to note that, in any event, in its order of 19 October 2016, E-Control v ACER (T‑671/15, not published, EU:T:2016:626), the Court found that the opinion in question did not constitute a challengeable act for the purposes of the fourth paragraph of Article 263 TFEU. In that regard, even if the concept of a ‘decision’ within the meaning of Article 19 of Regulation No 713/2009 had to be interpreted in accordance with the same criteria as those arising from Article 263 TFEU, it would be necessary, for the same reasons as set out in paragraphs 23 to 94 of that order, to reject the applicant’s arguments to the effect that the opinion in question constitutes a challengeable act under the fourth paragraph of Article 263 TFEU, which, consequently and by analogy, could also be the subject of an administrative appeal under Article 19 of Regulation No 713/2009.

52      In the second place, the Republic of Austria and the applicant submit that the opinion in question was adopted without the proper procedures being followed, in breach of the conditions laid down in Article 8 of Regulation No 713/2009 and the conditions laid down in Regulation No 2015/1222. ACER should have kept strictly to the procedures provided for in Regulation No 713/2009.

53      In that regard, it suffices to point out that those arguments have, in essence, already been examined by the Court in paragraphs 67 to 88 of the order of 19 October 2016, E-Control v ACER (T‑671/15, not published, EU:T:2016:626). In that order, the Court found, inter alia, in essence, that, as regards the opinion in question, ACER did not exceed the limits of an assessment under Article 7(4) of Regulation No 713/2009 by finding that the national decisions at issue should have provided for an allocation of cross-border capacity on the border between Germany and Austria and that, by the opinion in question, ACER had 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.

54      It is necessary, for the same reasons as those set out in paragraphs 67 to 88 of the order of 19 October 2016, E-Control v ACER (T‑671/15, not published, EU:T:2016:626), to reject the argument that the opinion in question was adopted without the proper procedures being followed, in breach of the conditions laid down in Article 8 of Regulation No 713/2009 and the conditions laid down in Regulation No 2015/1222.

55      The second and fourth pleas in law must therefore be rejected as unfounded.

 The first plea in law, alleging infringement of certain essential procedural requirements

56      The applicant submits that, by dismissing its administrative appeal as inadmissible, the Board of Appeal of ACER infringed its ‘fundamental procedural right to challenge the legality of the opinion’ and its right to be heard in respect of its legal position, which, according to the applicant, constitutes an infringement of essential procedural requirements. The applicant maintains that that Board of Appeal was not entitled to adopt the contested decision without first having carried out an examination of the substance of the opinion in question.

57      ACER, supported by the Republic of Poland and PSE, disputes those arguments.

58      By relying on an infringement of a ‘fundamental procedural right to challenge the legality of the opinion’ and the right to be heard in respect of its legal position concerning the substance of the opinion in question, it would appear that the applicant is claiming that the Board of Appeal of ACER, in fact, infringed the principle of effective judicial protection.

59      However, such a right is not unconditional and its exercise may be subject to limitations, including limitations as regards the conditions for the admissibility of an action. Moreover, it must be noted that, even if the conditions for the admissibility of an appeal laid down in Article 19 of Regulation No 713/2009 were to be interpreted in the light of the principle of effective judicial protection, that interpretation cannot have the effect of setting aside those conditions (see, by analogy, judgment of 21 January 2016, SACBO v Commission and INEA, C‑281/14 P, not published, EU:C:2016:46, paragraph 46 and the case-law cited), including the requirement that there must be a decision within the meaning of Article 19 of Regulation No 713/2009 (see, to that effect and by analogy, 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). The right to effective judicial protection and the right to be heard do not, in any event, mean that the Board of Appeal of ACER, after finding that the appeal before it is inadmissible, is obliged to adjudicate on other aspects of that application which, necessarily, cannot have any bearing on its decision (see, to that effect and by analogy, order of 28 October 2005, Makhteshim-Agan Holding and Others v Commission, C‑258/05 P(R), not published, EU:C:2005:663, paragraph 24).

60      It is apparent from Article 19(4) of Regulation No 713/2009 that the Board of Appeal of ACER, before examining the substance of an appeal, is to determine whether it is admissible.

61      In that regard, one of the conditions for the admissibility of an administrative appeal brought pursuant to Article 19(1) of Regulation No 713/2009 is that the measure which is the subject of the appeal is a decision adopted under Articles 7, 8 or 9 of that regulation. However, that is not so in the present case (see paragraph 46 above).

62      As regards the applicant’s argument that, by failing to examine the content of the opinion in question, the Board of Appeal of ACER infringed its right to be heard, it suffices to note that, although for that right to be observed, the Board of Appeal of ACER must allow the applicant to make its views known effectively, that Board of Appeal cannot be required to adhere to those views. All that is required in order for the applicant’s submission of observations to be effective is that they are submitted in good time so that that Board of Appeal may take cognisance of them and assess, with all the requisite attention, their relevance (see, by analogy, judgment of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 43 and the case-law cited). However, the applicant has not put forward any evidence to show that it was prevented, in the present case, from submitting its observations effectively to the Board of Appeal of ACER.

63      In any event, in order for a breach of the right to be heard to lead to annulment of the contested decision, the applicant must establish that but for that irregularity, it would have been able to put forward evidence which was inconsistent with the inferences made at that stage by the Board of Appeal of ACER and therefore could have had some kind of influence on the assessments made by the Board of Appeal in any decision (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 23 and the case-law cited). In the present case, the administrative appeal was dismissed as inadmissible and the applicant has not explained how the fact that it was not able to make known its point of view on the substance of the case before the Board of Appeal of ACER could have influenced, to its detriment, the decision-making process in question.

64      It is therefore necessary to reject the applicant’s arguments concerning the infringement of an alleged right to challenge the legality of the opinion in question and of its right to be heard. The first plea in law put forward by the applicant must therefore be rejected as unfounded.

 The third plea in law, alleging failure to state adequate reasons

65      The applicant claims, in essence, that the Board of Appeal of ACER infringed the obligation to state adequate reasons arising, inter alia, from Article 41(2) of the Charter of Fundamental Rights, by failing to explain in what respect the opinion in question, first, does not produce legal effects and, secondly, is not a definitive measure. According to the applicant, the Board of Appeal of ACER limited its assessment to the wording of Article 19 of Regulation No 713/2009, concluding that the opinion in question constituted an intermediate measure and a preparatory step for further action on the part of the Commission. It considers that that Board of Appeal should have carried out an assessment of the substance of the evidence submitted to it.

66      ACER, supported by PSE, disputes those arguments.

67      By virtue of Article 41(2)(c) of the Charter of Fundamental Rights, the administration is obliged to give reasons for its decisions.

68      It is settled case-law that the statement of reasons also required by the second paragraph of Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. 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 direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph 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 (see judgments of 15 July 2004, Spain v Commission, C‑501/00, EU:C:2004:438, paragraph 73 and the case-law cited, and of 22 January 2013, Salzgitter v Commission, T‑308/00, EU:T:2013:30, paragraphs 112 and 113 and the case-law cited).

69      However, a Board of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before it. The reasoning may therefore be implicit, on condition that it enables the persons concerned to ascertain why the decision of the Board of Appeal was taken and provides the court having jurisdiction with sufficient material for it to exercise its power of review (see, to that effect, judgment of 13 April 2011, Safariland v OHIM – DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), T‑262/09, EU:T:2011:171, paragraph 92 and the case-law cited).

70      In the light of that case-law, first, the applicant’s argument that the Board of Appeal of ACER should have carried out an assessment of the substance of the evidence submitted to it must be rejected. The obligation to state reasons does not mean that the Board of Appeal of ACER, after finding that the appeal before it is inadmissible, is obliged to adjudicate on the substance of that application, which, naturally, cannot influence its decision. In that regard, in the contested decision, the Board of Appeal of ACER considered that the administrative appeal against the opinion in question was inadmissible. It cannot therefore be criticised for not having examined all the arguments put forward by the applicant as regards the substance.

71      Secondly, contrary to what the applicant claims, the Board of Appeal of ACER did not merely dismiss the administrative appeal as inadmissible on the ground that the opinion in question is intermediary and preparatory, but explained, in paragraphs 20 to 39 of the contested decision, the reasons why it considered the administrative appeal to be inadmissible. The Board of Appeal of ACER, first, analysed the legal basis on which the opinion in question was based before examining whether it was binding. Moreover, the Board of Appeal explained that it was authorised, in accordance with Article 19 of Regulation No 713/2009, to adjudicate only on decisions taken by ACER, namely acts which, for the purposes of Regulation No 713/2009, have binding legal effects. Next, it set out the reasons why, in its view, the opinion in question was devoid of any binding legal effect. Finally, it concluded that the opinion in question was not binding.

72      It follows that the reasons stated in the contested decision are sufficient for it to be understood why the Board of Appeal of ACER considered that the opinion in question produced no binding legal effects and that the appeal submitted to it was inadmissible.

73      Thirdly, in so far as the applicant claims generally, in the context of its first plea in law, that the Board of Appeal of ACER did not examine the evidence and legal arguments submitted by the applicant concerning its claim that the opinion in question had effects on market participants, it is sufficient to note that it has provided no explanation as to what, in its view, the evidence and arguments that that Board of Appeal failed to examine are and in what respect the reasoning in the contested decision is inadequate in that regard. That unsubstantiated claim must therefore be rejected as unfounded.

74      It follows that the reasoning of the contested decision enabled the applicant to ascertain the reasons of the Board of Appeal of ACER for rejecting the appeal before it in the present case and the Court to exercise its power of review. The third plea in law must therefore be rejected as unfounded.

75      It follows from all the foregoing that the present action must be dismissed in its entirety.

 Costs

76      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. Since the ACER has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by ACER.

77      In accordance with Article 138(1) and (3) of the Rules of Procedure, the Czech Republic, the Republic of Poland, the Republic of Austria and PSE must bear their own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) to bear its own costs and to pay those incurred by the Agency for the Cooperation of Energy Regulators (ACER);


3.      Orders the Czech Republic, the Republic of Poland, the Republic of Austria and Polskie Sieci Elektroenergetyczne S.A. to bear their own costs.


Tomljenović

Marcoulli

Kornezov

Delivered in open court in Luxembourg on 29 June 2017.


E. Coulon

 

      G. Berardis

Registrar

 

President


*      Language of the case: English.