ORDER OF THE GENERAL COURT (Third Chamber)
21 December 2022 (*)
(Action for annulment – Energy – European platforms for the exchange of standard products for balancing energy – Switzerland’s participation – Article 1(6) and (7) of Regulation (EU) 2017/2195 – Commission’s letter refusing the participation of the Swiss transmission system operator – Act not open to challenge – Inadmissibility)
In Case T‑127/21,
Swissgrid AG, established in Aarau (Switzerland), represented by P. De Baere, P. L’Ecluse, K. T’Syen and V. Lefever, lawyers,
applicant,
v
European Commission, represented by O. Beynet and B. De Meester, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, P. Škvařilová-Pelzl and I. Nõmm (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure, in particular:
– the plea of inadmissibility raised under Article 130 of the Rules of Procedure of the General Court by the Commission by separate document lodged at the Court Registry on 19 May 2021,
– the observations on that plea lodged by the applicant at the Court Registry on 2 July 2021,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, Swissgrid AG, seeks annulment of the decision allegedly contained in a letter signed by a Director of the Commission’s Directorate-General for Energy (‘DG Energy’), by which the Commission allegedly refused to authorise, pursuant to Article 1(7) of Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6), Switzerland’s participation in European platforms for the exchange of standard products for balancing energy (‘European balancing platforms’), in particular the Trans European Replacement Reserves Exchange platform (‘the TERRE platform’).
Background to the dispute
2 The applicant is a limited liability company governed by Swiss law, which is the sole transmission system operator (‘TSO’) of electricity in Switzerland. It participates in the European Network of Transmission System Operators for Electricity (‘ENTSO-E’).
3 A number of TSOs, including the applicant, conceived the TERRE platform.
4 On 7 September 2017, all the TSOs of electricity, meeting within ENTSO-E, gave an opinion in favour of Switzerland’s participation in European balancing platforms, pursuant to Article 1(7) of Regulation 2017/2195.
5 On 10 April 2018, the Agency for the Cooperation of Energy Regulators (‘ACER’) also issued an opinion on Switzerland’s participation in European balancing platforms, pursuant to Article 1(7) of Regulation 2017/2195. In that opinion, ACER stated that it agreed, in general, with the TSOs’ assessment as to the effectiveness of Switzerland’s full participation in those platforms. It also highlighted that it was important for Switzerland to implement all of Regulation 2017/2195 and other related provisions to ensure a level playing field between TSOs in the European Union and in Switzerland.
6 On 31 July 2020, the Deputy Director-General of the Commission’s DG Energy sent a letter to ENTSO-E, as well as to the applicant, in which he welcomed progress in the implementation of the TERRE platform, while being surprised at the TSOs’ intention to include the applicant in that platform as a full member. He emphasised that the coupling and balancing of markets were based on a comprehensive framework of legally enforceable rights and obligations and that Switzerland had not yet agreed to apply that framework and that, therefore, Swiss operators and TSOs were not, in principle, allowed to participate in the platform. In addition, he stated that the Commission had not granted any exception to Switzerland under Article 1(7) of Regulation 2017/2195. Lastly, he pointed out that the applicant’s consideration in the EU capacity calculation process and its inclusion in the operational security analysis would significantly mitigate the risk of unscheduled physical power flows from Switzerland from endangering the system’s security.
7 On 29 September 2020, the applicant replied to the Commission, claiming that its full participation in European balancing platforms was necessary for reasons of security of the electricity system. It maintained, in essence, that its consideration in the EU capacity calculation process and its inclusion in the operational security analysis were insufficient. It also referred to the grounds set out in ENTSO-E’s opinion of 7 September 2017 and that of ACER of 10 April 2018. Lastly, it was argued that, if the applicant and the TSOs neighbouring Switzerland in the European Union were not included in the TERRE platform, they would be led to breach their obligations under Commission Regulation (EU) 2017/1485 of 2 August 2017 establishing a guideline on electricity transmission system operation (OJ 2017 L 220, p. 1) under 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 the Continental Europe Synchronous Area Framework Agreement.
8 On 5 November 2020, ENTSO-E replied to the Commission. While stating that the decision as to Switzerland’s participation in European balancing platforms was a matter for the Commission, pursuant to Article 1(7) of Regulation 2017/2195, the TSOs pointed out that they had, like ACER, delivered an opinion in favour of such participation. In essence, they pointed out that, although the applicant’s consideration in the EU capacity calculation process and its inclusion in the operational security analysis of the electricity system were consistent with the protection of that operational security, they had not yet been finalised and would not solve all the issues. The TSOs thus emphasised the importance of a decision from the Commission, under that provision, authorising Switzerland to participate in European balancing platforms. Lastly, it was pointed out that the members of the TERRE platform project had decided, by qualified majority, not to oppose the applicant’s participation in that platform and that it had become an operational member thereof from 8 October 2020.
9 On 8 December 2020, the applicant sent a letter to the Commission in which it stated that the TSOs and ACER had issued an opinion in favour of its participation in the TERRE platform and asked it to authorise that participation pursuant to Article 1(7) of Regulation 2017/2195. It also requested a virtual meeting to be held in the week beginning 11 January 2021.
10 A letter of 17 December 2020 (‘the contested letter’), signed by a Director of the Commission’s DG Energy, first, highlighted that the applicant’s participation in the TERRE platform project did not comply with the applicable EU law, namely Article 1(6) and (7) of Regulation 2017/2195. Secondly, it stated that ACER’s opinion underlined the importance for Switzerland to implement all of Regulation 2017/2195 and other related provisions. Thirdly, it found that certain measures adequately addressed the risks posed by unscheduled physical power flows and, therefore, that Switzerland’s participation in European balancing platforms was not necessary. In that regard, it argued that the basis of operational security lay in capacity (re)calculation, on the one hand, and in regional operational security coordination, on the other, which already included Switzerland. As regards situations in which those two measures would not ensure operational security, described as rare emergency situations, it stated that that question was foreseen in Article 150(3) of Regulation 2017/1485 and that other measures could be adopted. Fourthly, and consequently, it concluded that the Commission did not have any ground for adopting a decision authorising Switzerland to participate in European balancing platforms, including the TERRE platform. Fifthly, it requested the TSOs to exclude the applicant from the TERRE platform by 1 March 2021.
Forms of order sought
11 The applicant claims that the Court should:
– annul the decision contained in the contested letter;
– order the Commission to pay the costs.
12 In its plea of inadmissibility raised under Article 130(1) of the Rules of Procedure, the Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
13 Although the General Court decided, by order of 7 October 2021, to reserve its decision on the Commission’s plea of inadmissibility for the final judgment, the Court now considers that it has sufficient information from the exchange of pleadings to give a decision by way of an order on that plea.
14 Under Article 130(6) of the Rules of Procedure, the procedure following the lodging of a plea of inadmissibility is to be oral only if the Court so decides. Furthermore, according to the case-law, the possibility of dismissing an action as inadmissible by reasoned order, and therefore without holding a hearing, is not precluded by the fact that the General Court has previously made an order reserving for the final judgment a plea put forward on the basis of Article 130 of the Rules of Procedure (see, to that effect, order of 19 February 2008, Tokai Europe v Commission, C‑262/07 P, not published, EU:C:2008:95, paragraphs 26 to 28).
15 The Commission contends that the action is inadmissible on the ground, in particular, that the contested letter is not an act against which an action for annulment may be brought.
16 The applicant replies that the contested letter contains a challengeable decision in the context of an action under Article 263 TFEU. In that regard, in the first place, it submits, in particular, that the Commission was required to adopt a decision on Switzerland’s participation in European balancing platforms pursuant to Article 1(6) and (7) of Regulation 2017/2195. It further states that the conditions for the Commission to adopt such a decision, namely one opinion from the TSOs and one from ACER, were satisfied in the present case.
17 In the second place, the applicant further states that the wording of the contested letter confirms that it is in the nature of a decision. It follows, first, that the Commission found that the conditions of Article 1(6) of Regulation 2017/2195 were not met and that, consequently, the applicant had to terminate its participation in the TERRE platform before 1 March 2021 and, secondly, that that letter corresponded to the adoption of the decision laid down in Article 1(7) of that regulation.
18 Under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
19 It is apparent from the settled case-law of the Court of Justice that actions for annulment, provided for under Article 263 TFEU, are available in the case of all measures adopted by the institutions, bodies, offices and agencies of the European Union, whatever their form, which are intended to produce binding legal effects (see judgment of 15 July 2021, FBF, C‑911/19, EU:C:2021:599, paragraph 36 and the case-law cited).
20 In the light of the case-law, 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 24), 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; see also, to that effect, judgment of 9 October 1990, France v Commission, C‑366/88, EU:C:1990:348, paragraph 23) and the intention of its author (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
21 It should be noted that, in the contested letter, summarised in paragraph 10 above, the Commission, first, noted that the applicant’s participation in the TERRE platform was not possible without it first authorising Switzerland to participate in that platform pursuant to Article 1(6) and (7) of Regulation 2017/2195, secondly, pointed out that the conditions for such participation did not appear to it to be met at the time when it drew up the contested letter and, thirdly, requested the TSOs to exclude the applicant from the TERRE platform by 1 March 2021.
22 The applicant submits that the Commission’s letter is akin to a decision adopted under Article 1(7) of Regulation 2017/2195 refusing to authorise Switzerland’s participation and, therefore, its participation in European balancing platforms, which may be the subject of an action for annulment.
23 Such an analysis cannot be accepted since the legal context of which the contested letter forms part prevents it from being classified as an act intended to produce binding legal effects vis-à-vis the applicant, within the meaning of the case-law referred to in paragraph 19 above.
24 Article 1(7) of Regulation 2017/2195 does not confer a right on the applicant to request and obtain from the Commission an authorisation for Switzerland and, therefore, for the TSOs established there to participate in European balancing platforms, in particular in the TERRE platform.
25 First, it follows from the wording of Article 1(7) of Regulation 2017/2195 that the Commission is still entitled to refuse that participation, even if the conditions of Article 1(6) of that regulation, which justify such authorisation, were to be satisfied.
26 Under the first sentence of Article 1(7) of Regulation 2017/2195, ‘subject to the conditions of paragraph 6, the participation of Switzerland in the European platforms for the exchange of standard products for balancing energy shall be decided by the Commission based on an opinion given by the Agency and all TSOs in accordance with the procedures set out in paragraph 3 of Article 4’. It follows that compliance with the two conditions of Article 1(6) merely enables the Commission to adopt a position on the question whether such participation should be authorised, but does not require it to authorise that participation.
27 Furthermore, the second sentence of Article 1(7) of Regulation 2017/2195 highlights a factor to be taken into account by the Commission for the purposes of deciding whether it is appropriate to authorise Switzerland to participate in European balancing platforms, namely that ‘the rights and responsibilities of Swiss TSOs shall be consistent with the rights and responsibilities of TSOs operating in the Union, allowing for a smooth functioning of balancing market at Union level and a level playing field for all stakeholders’. It must be stated that that passage of Article 1(7) would be rendered ineffective if that provision were to be interpreted as requiring the Commission to authorise Switzerland to participate in European balancing platforms where the conditions of Article 1(6) of the regulation are met.
28 Secondly, it should be noted that Article 1(7) of Regulation 2017/2195 does not confer any procedural right on the applicant to request and obtain from the Commission an authorisation for Switzerland and, therefore, the TSOs established there, to participate in European balancing platforms. Although that provision establishes a procedure which the Commission must follow, where appropriate, before adopting such an authorisation decision, it does not confer any right on Switzerland or the TSOs established there to initiate that procedure or be associated with it, in any way whatsoever, in particular in respect of the exercise of the right to be heard.
29 It follows that the adoption of a decision authorising Switzerland and, therefore, the TSOs established there to participate in European balancing platforms depends solely on the choice made by the Commission, which has a discretion in that regard. The applicant, as a Swiss TSO, thus has no individual right to request and obtain from the Commission the adoption of a decision authorising Switzerland and, therefore, the TSOs established there to participate in European balancing platforms. The contested letter cannot therefore constitute a decision capable of producing legal effects vis-à-vis the applicant, such as to change its legal position (see, to that effect and by analogy, judgment of 9 October 2018, 1&1 Telecom v Commission, T‑43/16, EU:T:2018:660, paragraph 46 and the case-law cited), since it in no way infringes an individual right which may circumscribe the Commission’s decision-making power, which is, in the present case, discretionary.
30 Furthermore, it should be noted that the fact that the applicant has a direct and individual interest in the annulment of the contested letter, containing the Commission’s refusal to authorise Switzerland and, therefore, the TSOs established there to participate in European balancing platforms is not such as to confer on it a right to challenge that letter, since that letter cannot be regarded as an act intended to produce binding legal effects vis-à-vis that applicant, within the meaning of the case-law referred to in paragraph 19 above (see, to that effect and by analogy, judgments of 22 February 2005, Commission v max.mobil, C‑141/02 P, EU:C:2005:98, paragraph 70, and of 9 October 2018, Multiconnect v Commission, T‑884/16, not published, EU:T:2018:665, paragraph 41).
31 Since the contested letter is not an act that is capable of being the subject of an action for annulment under Article 263 TFEU, the applicant’s action against that letter must therefore be dismissed as inadmissible.
Costs
32 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 applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Swissgrid AG shall pay the costs.
Luxembourg, 21 December 2022.