Action brought on 28 September 2023 – Germany v ACER

(Case T-612/23)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: J. Möller and R. Kanitz, as well as R. Bierwagen, lawyer)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the General Court should:

annul Decision A-003-2019 R of the Board of Appeal of the Agency of 7 July 2023, in so far as it maintains in force Article 5(8) and (9) of Annex I and Article 5(8) and (9) of Annex II of Decision No 02/2019 of the defendant;

in the alternative, in the event that the Court considers that the contested provisions under point 1 of Annexes I and II are inextricably linked with the other provisions of its corresponding Article or Annex or with the entirety of Decision No 02/2019 of the defendant of 21 February 2019 in the version of the Decision of the Board of Appeal, annul the corresponding Article or Annexes or the decision in its entirety;

in the alternative, in the event that the Court considers that the contested provisions under point 2 of Annexes I and II are inextricably linked with the other provisions of its corresponding Article or Annex or with the entirety of Decision No 02/2019 of the defendant of 21 February 2019 in the version of the Decision of the Board of Appeal, annul the corresponding Article or Annexes or the decision in its entirety, and

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on the following five pleas in law:

First plea in law, alleging infringement of Articles 14 to 16 of the Regulation on the internal market for electricity ¹

The introduction of an additional efficiencies analysis to take into consideration critical network elements in the calculation of cross-border trade capacities infringes Articles 14 to 16 of the Regulation on the internal market for electricity, as first of all the critical network elements must be defined by the coordinated capacity calculator and not the Agency. That gives rise to the interpretation of the provisions in relation to both their wording, origin, scheme and the recitals of the regulation on the internal market for electricity. The EU legislature decided on a 70% minimum level and not an efficiency criterion. Furthermore the efficiency criterion is in practice not achievable and accordingly undermines the minimum capacity of 70%. The provisions relating to the new configuration of bidding zones were also circumvented, since the Member State de facto required a new configuration of its bidding zones, where it can no longer take internal network elements into consideration in the capacity calculation.

A Power Transfer Distribution Factor (‘PTDF Factor’) of 10% or more under Article 5(8)(b) of Annexes I and II of the decision also infringes Article 16(4) and (8) of the Regulation on the internal market for electricity. Since the decision itself recognises, that from the application of the capacity calculation method in 2020 critical network elements are already those with a PTDF Factor of more than 5%, a PTDF Factor of 10% or more from mid-2022 is of an arbitrary nature.

Second plea in law, alleging infringement of the efficiency criterion under Regulation (EU) 2015/1222 ¹

The efficiency criterion under Article 5(8)(c) of Annexes I and II of the decision infringes (i) the bidding zone review process under Article 32 et seq. of Regulation (EU) 2015/1222, (ii) the right of the system operator to define the available remedial actions to be taken into account in the capacity calculation under Article 25(1) of Regulation (EU) 2015/1222, and (iii) the rule on (not) considering network elements in the capacity calculation under Article 29(3)(b) of Regulation (EU) 2015/1222.

Third plea in law, alleging infringement of the system operation guidelines

The obligation of the system operator under Article 21(2)(a) of the guidelines, to choose appropriate remedial actions in order to activate the most efficient and economical remedial actions for the transmission system operation, is undermined by Article 5(8)(b) of Annexes I and II of the decision.

Fourth plea in law, alleging infringement of the principle of proportionality

The efficiency criterion and the PTDF Factor under Article 5(8)(b) and (c) of Annexes I and II of the decision infringe the principle of proportionality, since they endangered the system security in the Core region and lacked cost efficiency. The removal of almost all critical network elements from the capacity calculation led to additional risks for the system security and increased the costs.

Fifth plea in law, alleging procedural illegalities

The defendant lacks the competence to determine critical network elements using the efficiency criterion and to determine the early consideration of remedial actions.

The decision infringes Articles 2 and 4 of Council Regulation No 1, ¹ since the publication and notification thereof took place only in English.

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¹ Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (recast) (OJ 2019 L 158, p. 54).

¹ Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).

¹ Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 1958, 17, p. 385).