JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
24 October 2019 (*)
(Energy — Decision of the Board of Appeal of ACER — Determination of the capacity calculation regions — Action for annulment — Interest in bringing proceedings — Inadmissible in part — Regulation (EU) 2015/1222 — ACER’s competence)
In Case T‑332/17,
Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), established in Vienna (Austria), represented by F. Schuhmacher, lawyer,
applicant,
supported by
Verbund AG, established in Vienna, represented by S. Polster, lawyer,
intervener,
v
Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and E. Tremmel, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, J. Vláčil and T. Müller, acting as Agents,
and by
Republic of Poland, represented by B. Majczyna, acting as Agent,
interveners,
ACTION under Article 263 TFEU seeking annulment of Decision A-001-2017 (consolidated) of the Board of Appeal of ACER of 17 March 2017 dismissing the appeals brought against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions,
THE GENERAL COURT (Seventh Chamber),
Composed, at the time of deliberation, 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 entrusted with certain tasks concerning electricity in Austria. It was established, inter alia, 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 13 November 2015, the European network of transmission system operators (‘the TSOs’) for electricity published a common proposal regarding the determination of capacity calculation regions, in accordance with 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).
3 On 17 November 2015, the TSOs submitted the common proposal regarding the determination of capacity calculation regions to the national regulatory authorities for approval pursuant to Article 9(6)(b) of Regulation 2015/1222.
4 On 13 May 2016, the applicant requested that the TSOs amend the common proposal regarding the determination of capacity calculation regions (‘the amendment request of 13 May 2016’).
5 On 17 May 2016, the Chair of the Energy Regulators’ Forum, the platform through which the national regulatory authorities consulted and cooperated in order to reach an agreement on the common proposal regarding the determination of capacity calculation regions, among other things informed the Agency for the Cooperation of Energy Regulators (ACER) that the national regulatory authorities could not reach a unanimous decision on the common proposal regarding the determination of capacity calculation regions.
6 On the same day, the Chair of the Energy Regulators’ Forum forwarded to ACER’s Director an email from the applicant, dated 13 May 2016, by which it informed the Chair that it intended to request that the TSOs amend the common proposal regarding the determination of capacity calculation regions.
7 On 18 May 2016, the Chair of the Energy Regulators’ Forum communicated the amendment request of 13 May 2016 to ACER’s Director.
8 On 17 November 2016, ACER adopted Decision No 6/2016 regarding the determination of capacity calculation regions. Article 1 of Decision No 6/2016 and Annex I thereto determine the capacity calculation regions in accordance with Article 15 of Regulation 2015/1222. According to Article 2 of Decision No 6/2016, the definition of bidding zone borders, given in Annex I thereto, is without prejudice to any decision adopted under Articles 32 to 34 of Regulation 2015/1222.
9 Decision No 6/2016 was the subject of four appeals to the Board of Appeal of ACER (‘the Board of Appeal’), namely the appeal brought by the applicant, the appeals brought by Austrian Power Grid and Vorarlberger Übertragungsnetz and the appeal brought by the intervener, Verbund AG. By its appeal the applicant requested, inter alia:
– annulment of Decision No 6/2016 in its entirety; or
– in the alternative, annulment of every provision of Decision No 6/2016 which explicitly or implicitly introduces or recognises the introduction of a bidding zone border or capacity allocation at the German-Austrian border.
10 On 31 January 2017, the Chairman of the Board of Appeal decided to consolidate the four appeals into one administrative procedure which was registered under the reference A-001-2017 (consolidated).
11 On 17 March 2017, the Board of Appeal adopted decision A-001-2017 (consolidated), dismissing the appeals against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions (‘the contested decision’). By that decision, the appeal brought by the applicant and those brought by Austrian Power Grid and Vorarlberger Übertragungsnetz were dismissed as unfounded, and the appeal brought by Verbund was dismissed as inadmissible.
Procedure and forms of order sought
12 By application lodged at the Court Registry on 29 May 2017, the applicant brought the present action.
13 By document lodged at the Court Registry on 5 September 2017, Exaa Abwicklungsstelle für Energieprodukte sought leave to intervene in the present case in support of the form of order sought by the applicant. By order of 5 June 2018, E-Control v ACER (T‑332/17, not published, EU:T:2018:351), the Court dismissed that application for leave to intervene on the ground that the party concerned had not established that it had a direct and existing interest in the ruling on the form of order sought by the applicant.
14 By document lodged at the Court Registry on 7 September 2017, Mondi AG applied for leave to intervene in the proceedings in support of the form of order sought by the applicant. By order of 5 June 2018, E-Control v ACER (T‑332/17, not published, EU:T:2018:349), the General Court dismissed that application for leave to intervene on the ground that the party concerned had not established that it had a direct and existing interest in the ruling on the form of order sought by the applicant.
15 By document lodged at the Court Registry on 14 September 2017, the Republic of Poland applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By decision of 26 October 2017, the President of the Seventh Chamber of the General Court granted that leave to intervene.
16 By document lodged at the Court Registry on 15 September 2017, the Czech Republic applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By decision of 26 October 2017, the President of the Seventh Chamber of the General Court granted that leave to intervene.
17 By document lodged at the Court Registry on 18 September 2017, Verbund applied for leave to intervene in the proceedings in support of the form of order sought by the applicant. By order of 27 April 2018, E-Control v ACER (T‑332/17, not published, EU:T:2018:294), the President of the Seventh Chamber of the General Court granted that leave to intervene.
18 The interveners lodged their statements in intervention and the main parties lodged their observations thereon within the periods prescribed.
19 In the context of the measures of organisation of procedure under Article 89 of its Rules of Procedure, the Court, first, asked ACER and the applicant to submit certain documents and, second, requested from them written replies to a set of questions. The parties complied with those measures of organisation of procedure within the prescribed period.
20 By letter from the Court Registry dated 20 June 2019, the parties were informed that the Court had decided to rule without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.
21 In its form of order as it now stands, the applicant claims that the Court should:
– annul the contested decision in its entirety, except for the part declaring the appeal brought by Verbund against Decision No 6/2016 to be inadmissible;
– order ACER to pay the costs.
22 ACER contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
23 Verbund claims that the Court should annul the contested decision.
24 The Republic of Poland contends that the Court should dismiss the action.
25 The Czech Republic contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
26 In support of its application, the applicant puts forward six pleas in law. The first plea in law alleges that ACER is not competent to amend the TSOs’ common proposal regarding the determination of capacity calculation regions. The second plea in law alleges that the Board of Appeal erred in law when it considered that ACER was authorised to disregard the amendment request of 13 May 2016 and that it was therefore competent to adopt Decision No 6/2016. The third plea in law alleges that the Board of Appeal erred in law when it found that ACER was competent to determine bidding zones under the procedure set out in Article 15 of Regulation 2015/1222. The fourth plea in law alleges an absence of proper justification and that the Board of Appeal misinterpreted the concept of ‘congestion’ defined in Article 2(2)(c) of Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15). By the fifth plea in law the applicant claims that, by failing to take account of its request for evidence, the Board of Appeal further erred in law. The sixth plea in law alleges that the Board of Appeal erred in law by finding that the creation of a new bidding zone border was proportionate.
The subject matter of the dispute and the withdrawal in part of the applicant’s form of order sought
27 Following a question asked by the Court regarding the scope of its form of order sought, the applicant clarified that the present action seeks the annulment of the contested decision in its entirety except in so far as the Board of Appeal dismissed the administrative appeal brought by Verbund against Decision No 6/2016 as inadmissible (see paragraphs 9 and 11 above). It follows from a comparison of the wording of the form of order sought in the application, on the one hand, and the clarifications contained in the applicant’s reply to the question from the Court, on the other hand, that the applicant has withdrawn its head of claim as regards Verbund.
28 The subject matter of this action is, therefore, the annulment of the contested decision only in so far as, by that decision taken as a whole, the Board of Appeal took a decision on the administrative appeals brought by the applicant, by Austrian Power Grid and by Vorarlberger Übertragungsnetz against Decision No 6/2016.
29 In addition, in accordance with Article 142(1) of the Rules of Procedure, an intervener cannot present claims which differ or go beyond the form of order sought by the party in support of which it is intervening. As a result, Verbund’s claim seeking annulment of the contested decision in so far as the Board of Appeal took a decision on its administrative appeal must be declared inadmissible.
The legal interest in bringing proceedings
30 An interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (judgment of 10 April 2013, GRP Security v Court of Auditors, T‑87/11, not published, EU:T:2013:161, paragraph 44) and must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. The interest in bringing proceedings must continue until the final decision (see judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited).
31 In order to ensure the proper administration of justice, any person bringing legal proceedings must have a vested and current interest in doing so, irrespective of the legal remedy chosen (see order of 22 June 2016, European Dynamics Luxembourg and Others v EMA, T‑440/15, not published, EU:T:2016:400, paragraph 36 and the case-law cited). An interest in bringing proceedings presupposes that the action is likely, if successful, to procure an advantage for the party bringing it (see, to that effect, judgments of 19 July 2012, Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraph 46 and the case-law cited, and of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraph 43 and the case-law cited).
32 It is for the applicant to prove its interest in bringing proceedings (judgment of 14 April 2005, Sniace v Commission, T‑141/03, EU:T:2005:129, paragraph 31, and order of 21 January 2016, Proforec v Commission, T‑120/15, not published, EU:T:2016:50, paragraph 20).
33 In the present case, by its form of order sought, the applicant seeks annulment of the contested decision in its entirety, including in so far as, by that decision, the Board of Appeal dismissed the appeals brought against Decision No 6/2016 by Austrian Power Grid and Vorarlberger Übertragungsnetz (see paragraph 28 above).
34 It must be stated that the applicant has provided no evidence to demonstrate that the annulment of the contested decision in so far as it dismissed the administrative appeals brought by Austrian Power Grid and Vorarlberger Übertragungsnetz is capable of procuring any advantage for it beyond the benefit that it would obtain from any annulment of the contested decision in so far as it dismisses its own administrative appeal. The applicant has therefore failed to demonstrate its interest in bringing proceedings as regards the contested decision in so far as it concerns the administrative appeals brought by Austrian Power Grid and Vorarlberger Übertragungsnetz.
35 Accordingly, the present action must be dismissed as inadmissible in so far as it seeks the annulment of the contested decision in as much as it dismissed the administrative appeals brought by Austrian Power Grid and Vorarlberger Übertragungsnetz.
The second plea in law, alleging that the Board of Appeal erred in holding that ACER was authorised to disregard the amendment request of 13 May 2016 and that it was competent to rule on the TSOs’ common proposal
36 In the context of its second plea in law, the applicant claims, in essence, that the Board of Appeal made an error in law in the contested decision when it found, in essence, that ACER was competent, under Article 9(11) of Regulation 2015/1222, to adopt a decision on the TSOs’ common proposal, namely Decision No 6/2016, even though ACER had, since 18 May 2016, been aware that the applicant had submitted the amendment request of 13 May 2016. Its disregard of that amendment request resulted from a misinterpretation, by ACER in Decision No 6/2016 and by the Board of Appeal in the contested decision, of the conditions specified in Article 9(11) and (12) of Regulation 2015/1222.
37 ACER, supported by the Czech Republic and by the Republic of Poland, disputes those arguments.
38 As a preliminary point, it must be noted that Article 15(1) of Regulation 2015/1222 provides that, by 3 months after the entry into force of that regulation, all TSOs are to jointly develop a common proposal regarding the determination of capacity calculation regions.
39 According to Article 9(6)(b) of Regulation 2015/1222, the proposals concerning the determination of the capacity calculation regions are subject to approval by all the national regulatory authorities.
40 It is clear from the first part of the sentence of Article 9(6) of Regulation 2015/1222 that the determination of the capacity calculation regions comes within the concept of ‘terms and conditions or methodologies’ referred to in Article 9(10) to (12) of the same regulation.
41 Article 9(10) of Regulation 2015/1222 states that, for the purposes of the approval of a proposal concerning ‘terms and conditions or methodologies’, the competent national regulatory authorities are to consult and closely cooperate and coordinate in order to reach an agreement. The national regulatory authorities are to take decisions concerning the TSOs’ common proposal within 6 months following the receipt of that proposal.
42 In accordance with Article 9(11) of Regulation 2015/1222, read in conjunction with Article 8(1) 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), where the national regulatory authorities have not approved the TSOs’ common proposal because they have not been able to reach agreement as regards that proposal within 6 months, or upon their joint request, ACER is to decide whether to approve that proposal. It follows from Article 9(11) of Regulation 2015/1222 that failure on the part of the national regulatory authorities to reach agreement, within that period, as regards approval of the TSOs’ common proposal is what gives ACER the competence to adopt a decision concerning that proposal.
43 The first sentence of Article 9(12) of Regulation 2015/1222 provides that one or several national regulatory authorities may request an amendment of a proposal concerning the ‘terms and conditions or methodologies’. It also follows from that provision that, if an amendment request is submitted to the TSOs, those TSOs, in turn, are to submit an amended common proposal to the national regulatory authorities for approval within 2 months following the request. According to the second sentence of Article 9(12) of that regulation, the competent national regulatory authorities are to decide on the amended common proposal within 2 months following its submission. Lastly, according to the third sentence of Article 9(12) of that regulation, where the competent national regulatory authorities have not been able to reach agreement on the amended common proposal within the two-month deadline, or upon their joint request, ACER is to adopt a decision on that amended common proposal.
44 It is clear from a combined reading of Article 9(10) of Regulation 2015/1222 and Article 9(12) of the same regulation that, given that the power to approve a common proposal from the TSOs is conferred on ACER after the expiry of the six-month period during which the national regulatory authorities may approve the proposal, any such amendment request must necessarily be submitted during the six-month period referred to in Article 9(10) of Regulation 2015/1222, unless a joint request from the regulatory authorities, such as that referred to in Article 9(12) of Regulation 2015/1222, has already been made to ACER before the expiry of that deadline.
45 In addition, it follows by necessary implication from Article 9(12) of Regulation 2015/1222 that, as soon as an amendment request has been submitted, in principle, ACER cannot approve an initial common proposal from the TSOs on the basis of Article 9(11) of that regulation. The mere fact that a national regulatory authority submits an amendment request to the TSOs has the result that ACER does not acquire the decision-making power referred to in Article 9(11) of Regulation 2015/1222.
46 By contrast, ACER is competent to decide on a common proposal from the TSOs where, despite the existence of an amendment request, the national regulatory authorities confer on that agency, under Article 9(11) of Regulation 2015/1222, by means of a joint request, the task of approving the common proposal initially submitted by the TSOs or where, if no such amendment request has been submitted, those national authorities unanimously choose to shorten the period of 6 months referred to in Article 9(10) of that regulation.
47 If the TSOs concerned do not submit an amended proposal, the procedure provided for in Article 9(4) of Regulation 2015/1222 applies. That provision provides that, if the TSOs fail to submit to the national regulatory authorities an amended common proposal for ‘terms and conditions or methodologies’ within the deadlines defined, they are to provide the competent national regulatory authorities and ACER with the relevant drafts of the amended proposal, and explain what has prevented agreement. ACER is to inform the European Commission and, in cooperation with the competent national regulatory authorities, at the Commission’s request, is to investigate the reasons for the failure and inform the Commission thereof. Within 4 months from the receipt of ACER’s information, the Commission is to take the appropriate steps to make the adoption of the required ‘terms and conditions or methodologies’ possible.
48 In the present case, it is common ground that, on 17 November 2015, the TSOs submitted their common proposal of 13 November 2015 regarding the determination of capacity calculation regions in accordance with Article 15(1) of Regulation 2015/1222 and that the national regulatory authorities did not reach agreement regarding that proposal. Thus, when, on 17 May 2016, the Chair of the Energy Regulators’ Forum informed ACER of the failure to reach agreement, the latter seemed to have become competent to adopt a decision on that proposal under Article 9(11) of Regulation 2015/1222.
49 However, a request for amendment drawn up by the applicant had existed since 13 May 2016, seeking, in essence, first, removal of the German-Austrian bidding zone border and, second, the merging of the two regions into a single capacity calculation region. It is common ground that that amendment request was submitted to the TSOs by the applicant on 13 May 2016 and, therefore, before expiry of the six-month period referred to in Article 9(10) of Regulation 2015/1222, namely, in the present case, 17 May 2016. Lastly, it is common ground that as at 13 May 2016 no joint request from the national regulatory authorities had been made asking ACER to adopt a decision in accordance with Article 9(11) of that regulation. The amendment request of 13 May 2016 was brought to the attention of ACER on 18 May 2016.
50 In those circumstances, in view of what has been stated in paragraphs 38 to 47 above, it must be found that, because of the applicant’s submission to the TSOs of the amendment request of 13 May 2016, ACER did not have the power to adopt a decision on the TSOs’ common proposal of 13 November 2015 in the context of the procedure set out in Article 9(11) of Regulation 2015/1222.
51 Accordingly, the Board of Appeal made an error in law by finding that ACER still had competence, under Article 9(11) of Regulation 2015/1222, to adopt a decision on the TSOs’ proposal of 13 November 2015 regarding the determination of capacity calculation regions, even though it was aware that the applicant had submitted an amendment request, that the TSOs had not had the opportunity to draft an amended common proposal in response to that request and that the national regulatory authorities had not had the opportunity to reach agreement on such an amended proposal.
52 That finding is not called into question by the other arguments of ACER and the parties who intervened in support of its form of order sought.
53 First, as regards ACER’s argument that, in Decision No 6/2016, it dealt with and took into account the content of the amendment request of 13 May 2016, it must be noted from the outset that ACER did not grant that request for amendment in its entirety. More specifically, it did not grant that request in so far as it sought to remove the German-Austrian bidding zone border.
54 In addition, it must be stated that the fact that a national regulatory authority has submitted, under Article 9(12) of Regulation 2015/1222, an amendment request means that ACER does not acquire the power which it is able to obtain under Article 9(11) of that regulation (see paragraph 45 above). Under Article 9(12) of that regulation, when an amendment request has been submitted, ACER obtains decision-making powers when the specific conditions of that provision have been satisfied. Those conditions are, first, that the TSOs have formulated an amended common proposal and, second, that the national regulatory authorities have been unable to reach agreement on the amended common proposal or have made a joint request to ACER as regards that amended proposal.
55 Therefore, contrary to what ACER claims, the fact that, in the present case, ACER took the amendment request of 13 May 2016 into account cannot remedy the fact that, as a result of the submission of that request, it did not have the competence referred to in Article 9(11) of Regulation 2015/1222 to adopt Decision No 6/2016. In addition, ACER’s having, in the present case, allegedly taken into account, in part, the amendment request of 13 May 2016 in Decision No 6/2016 does not change the circumstance that it did not comply with the procedural steps provided for in Article 9(12) of Regulation 2015/1222 and that, in fact, as regards the competence to adopt a decision and the procedure followed, Decision No 6/2016 is outside the regulatory framework laid down in Article 9(11) and (12) of Regulation 2015/1222. The adoption of Decision No 6/2016 constituted an interference both in the exercise of the TSOs’ right to formulate an amended common proposal regarding the determination of capacity calculation regions and in the exercise of the right of the national regulatory authorities, of which the applicant is one, to approve such an amended proposal.
56 Lastly, in its pleadings, ACER relied on a letter dated 13 July 2016 from the Secretary General of the European Network of TSOs for electricity. According to ACER, by that letter, which had been sent to its Director, the TSOs had indicated that they would not submit an amended common proposal regarding the determination of capacity calculation regions.
57 It must be noted that, in that letter, which was placed in the file before the Court as annex B.3 to the defence, the Secretary General of the European Network of TSOs for electricity argued, inter alia, that, since communication of the common proposal regarding the determination of capacity calculation regions to the national regulatory authorities in November 2015, neither all TSOs nor its organisation had received any formal communication on the approval process regarding that common proposal. It is clear from this letter that, following the amendment request of 13 May 2016, the TSOs had not been asked to provide an amended common proposal regarding the determination of capacity calculation regions. However, the letter of 13 July 2016 contains no express claim that the TSOs had refused or might have considered refraining from submitting an amended common proposal.
58 If that letter were to be construed as a failure or refusal by the TSOs to submit an amended proposal following the amendment request of 13 May 2016 submitted by the Austrian regulatory authority within the deadline, then the last sentence of Article 9(12) of Regulation 2015/1222 would apply, that provision referring to the procedure set out in Article 9(4) of that regulation. However, in the present case, it is common ground that that procedure was neither triggered nor followed.
59 Accordingly, ACER’s argument that the contested decision was not vitiated by any error because the agency had, in Decision No 6/2016, upheld in part the amendments submitted by the applicant, must be rejected as unfounded.
60 Second, ACER claims that the amendment request of 13 May 2016 was not valid under Article 9(12) of Regulation 2015/1222 and that, accordingly, that request did not prevent it from adopting a decision on the TSOs’ common proposal regarding the determination of capacity calculation regions, in accordance with Article 9(11) of that regulation. According to ACER, an amendment request submitted under Article 9(12) of Regulation 2015/1222 should have been validated by all the national regulatory authorities of the Member States concerned, in accordance with Article 9(6) and (10) of Regulation 2015/1222, in particular in order to ensure the effectiveness of that procedure. Yet the amendment request of 13 May 2016 was submitted unilaterally, that is to say without the agreement of the other competent regulatory authorities.
61 First of all, it must be noted that the first sentence of Article 9(12) of Regulation 2015/1222 states expressly that a request for amendment of a TSO common proposal regarding the determination of capacity calculation regions may be validly submitted by ‘one or several [national] regulatory authorities’. Having regard to the use of the word ‘one’ in that provision and the fact that that word neither lacks clarity, in any way, nor gives rise to doubt as regards its interpretation, and if the first sentence of Article 9(12) of Regulation 2015/1222 is not to be deprived, in part, of practical effect, it cannot be necessary for the regulatory authorities other than the national regulatory authority which submitted an amendment request to agree with the content of that request in order for it to be considered valid.
62 That conclusion is confirmed by the context surrounding Article 9(12) of Regulation 2015/1222.
63 In that regard, it must be noted that Article 15(1) of Regulation 2015/1222 gives the TSOs alone the right to develop the common proposal regarding the determination of capacity calculation regions. According to Article 9(6)(b) and (10) of that regulation, the national regulatory authorities, for their part, have merely a right to approve the common proposal regarding the determination of capacity calculation regions. Thus, when the common proposal regarding the determination of capacity calculation regions is formally submitted to the national regulatory authorities for the first time, those authorities do not have the right to make their own decision to amend that proposal.
64 By giving each national regulatory authority the opportunity, though only on one occasion, to submit a request for amendment of a TSO common proposal, Article 9(12) of Regulation 2015/1222 seeks to establish a balance between the right of the TSOs to submit such a proposal, on the one hand, and the lack of power of the national regulatory authorities to amend that proposal on their own initiative, on the other.
65 Next, contrary to what the Czech Republic maintains, the possibility to unilaterally request an amendment of the common proposal regarding the determination of capacity calculation regions does not render the procedure set out in Article 9(12) of Regulation 2015/1222 redundant. The Czech Republic claims, more specifically, that in the event that the relevant national regulatory authorities refuse to approve the amendments requested by another regulatory authority, an agreement referred to in Article 9(10) of Regulation 2015/1222 would not be possible and it would therefore be necessary for ACER to adopt a decision in accordance with Article 9(11) of Regulation 2015/1222. In that regard, it is sufficient to state, first, that as a result of an amendment request having been submitted, Article 9(10) and (11) of Regulation 2015/1222 is no longer, in principle, applicable, and, second, that that argument does not call into question the possibility that any amendment submitted will be approved by all the relevant national regulatory authorities.
66 It is therefore necessary to reject the arguments that the purpose of Article 9(12) of Regulation 2015/1222 requires, in the present case, that the amendment request of 13 May 2016 was validated by all the relevant national regulatory authorities. In addition, the fact that a single national regulatory authority has the right to request amendments to the common proposal regarding the determination of capacity calculation regions does not render the procedures set out in Regulation 2015/1222 redundant.
67 Third, ACER takes the view that a unilateral request for amendment made by a single national regulatory authority, without the agreement of the other competent authorities, will never lead to the resubmission of a proposal that can be approved by all national regulatory authorities because those regulators that disagreed with the requested amendment will naturally disagree with that amendment in a newly submitted proposal. In order to ensure the effectiveness of the amendment and approval process, all competent national regulatory authorities need to agree also on an amendment request in order for it to be valid. According to ACER, ‘this requirement ensures also that the Agency’s decision-making competence can become effective’. If there were no such requirement, unilateral amendment requests could lead to an inconsistent situation by the end of the six-month period, consisting, on the one hand, in the absence of agreement between the national regulatory authorities on the approval of the TSOs’ proposal leading to ACER obtaining the decision-making competence pursuant to Article 9(11) of Regulation 2015/1222, and, on the other hand, in one or more still pending requests for amendment pursuant to Article 9(12) of that regulation.
68 First, as regards ACER’s argument that a unilateral request from a national regulatory authority ‘will never lead to the resubmission of a proposal that can be approved by all national regulatory authorities because those regulators that disagreed with the requested amendment will naturally disagree with that amendment in a newly submitted proposal’ (see paragraph 67 above), it must be noted that that argument is based on reasoning which has no firm basis in the regulation in question. According to the first sentence of Article 9(10) of Regulation 2015/1222, where the approval of the ‘terms and conditions or methodologies’ requires a decision by more than one regulatory authority, those competent regulatory authorities are to consult and closely cooperate and coordinate with each other in order to reach an agreement. That call by the EU legislature to the national regulatory authorities also applies to the situation referred to in Article 9(12) of the same regulation, namely where an amendment request has been submitted and the TSOs have provided an amended version of their initial proposal. Accordingly, to assert that, if they were faced with a unilateral amendment request submitted by one of the national regulatory authorities, the other national regulatory authorities would never reach agreement on that point is, in fact, based on unconvincing speculation.
69 Next, as regards the argument concerning the effectiveness of ACER’s decision-making competence (see paragraph 67 above), it must be stated that, as long as that agency does not have a specific competence that is clearly established in EU rules, the question of effectiveness of that competence does not arise. What is more, mere reliance on an interest linked to effectiveness is insufficient to create a competence on the part of an agency of the European Union, unless it corresponds to a real need to ensure the practical effect of the provisions of the Treaties or the regulation concerned, namely a need which is such as to justify the existence of an implicit decision-making power and, accordingly, a derogation from the principle of conferral set down in Article 5(2) TEU (see, to that effect, judgment of 17 September 2007, France v Commission, T‑240/04, EU:T:2007:290, paragraph 37 and the case-law cited). Such a need has not been demonstrated in the present case.
70 Lastly, as regards ACER’s argument that there is an ‘inconsistent situation’ (see paragraph 67 above), it must be borne in mind that, as is clear from the clarifications set out in paragraphs 38 to 47 above, in essence, the submission of an amendment request leads to the triggering of the procedure referred to in Article 9(12) of Regulation 2015/1222, with the result that ACER no longer has the power to follow a procedure begun earlier on the basis of Article 9(11) of the same regulation.
71 Furthermore, it is important to note that, unlike a decision adopted under Article 9(11) of Regulation 2015/1222, the decision which must be adopted by ACER on the basis of Article 9(12) of that regulation does not concern the common proposal initially submitted by the TSOs, but rather their amended proposal. That is the case not only if there is no agreement from the national regulatory authorities on that point, but also in the situation where, in accordance with the second hypothesis set out in the third sentence of Article 9(12) of Regulation 2015/1222, the regulatory authorities jointly ask ACER to adopt a decision.
72 It follows that the scope of Article 9(11) and that of Article 9(12) of Regulation 2015/1222 are mutually exclusive, and that the decisions ACER must adopt on the basis of those provisions concern different subject matter.
73 In those circumstances, contrary to the concerns expressed by ACER, there is in fact no risk of an alleged inconsistent situation arising as a result of, on the one hand, there being no agreement between the national regulatory authorities, with the effect that ACER would be called upon to adopt a decision on the basis of Article 9(11) of Regulation 2015/1222 and, on the other hand, the existence of an amendment request leading to the procedure set out in Article 9(12) of that regulation.
74 Accordingly, it is also necessary to reject the argument that, in essence, the possibility of submitting unilateral amendment requests constitutes an obstacle to the effectiveness of the procedure provided for in Article 9 of Regulation 2015/1222 (see paragraph 67 above).
75 It follows from the above that the Board of Appeal of ACER made an error in law by finding, in the contested decision, that ACER correctly adopted Decision No 6/2016 on the basis of Article 9(11) of Regulation 2015/1222.
76 In the light of all the foregoing, the second plea in law must be accepted and therefore, without it being necessary to rule on the other pleas in law in the application, the contested decision must be annulled in so far as it dismisses the appeal brought by the applicant against Decision No 6/2016.
Costs
77 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.
78 Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
79 In the present case, even though ACER has been largely unsuccessful in its claims, it must be borne in mind that as is clear from a comparison of the form of order sought by the applicant in its application, on the one hand, and the explanations given in its statement of 7 June 2019, on the other hand, during the proceedings the applicant withdrew in part its claim for annulment, namely the part concerning Verbund. The Court was informed of that withdrawal in response to a measure of organisation of procedure (see paragraph 27 above). Such circumstances justify an order to the effect that the applicant and ACER are to share the costs incurred in the proceedings.
80 The Court considers that it is a fair assessment of the circumstances in the present case to order the applicant to bear three quarters of its own costs. Since ACER has been largely unsuccessful, it must be ordered, in addition to bearing its own costs, to pay one quarter of the costs incurred by the applicant, in accordance with the latter’s pleadings.
81 In accordance with Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. As a result the Czech Republic and the Republic of Poland are to bear their own costs.
82 According to Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) of those Rules to bear its own costs. It should therefore be held that Verbund is to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls Decision A-001-2017 (consolidated) of the Board of Appeal of the Agency for the Cooperation of Energy Regulators (ACER) of 17 March 2017 dismissing the appeals against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions in so far as it dismisses the appeal brought by Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control);
2. Dismisses the action as to the remainder;
3. Declares that ACER is to bear its own costs and orders it to pay one quarter of the costs incurred by E-Control;
4. Declares that E-Control is to bear three quarters of its own costs;
5. Declares that the Czech Republic, the Republic of Poland and Verbund AG are to bear their own costs.
Tomljenović | Marcoulli | Kornezov |
Delivered in open court in Luxembourg on 24 October 2019.