# C_2016038EN.01006402.xml

| 1.2.2016 | EN | Official Journal of the European Union | C 38/64 |
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1.2.2016

EN

Official Journal of the European Union

C 38/64

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Action brought on 23 November 2015 — E-Control v ACER

(Case T-671/15)

(2016/C 038/87)

Language of the case: English

Parties

Parties

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

Applicant:

Defendant: Agency for the Cooperation of Energy Regulators (ACER)

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul the opinion of the Agency for the Cooperation of Energy Regulators 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 (EC) No 714/2009 and the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto; and |
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annul the opinion of the Agency for the Cooperation of Energy Regulators 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 (EC) No 714/2009 and the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto; and

o

o

| — | order the defendant to bear the costs of the proceedings. |
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order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

| 1. | First plea in law, alleging the violation of procedural requirements including in particular the lack of procedural rules, the infringement of the right of access to the file, the infringement of the right to be heard, and the absence of a proper justification. |
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1.

First plea in law, alleging the violation of procedural requirements including in particular the lack of procedural rules, the infringement of the right of access to the file, the infringement of the right to be heard, and the absence of a proper justification.

| 2. | Second plea in law, alleging the lack of legal basis for the measures proposed since ACER has not followed the procedure provided for in Article 8 of Regulation (EC) No 713/2009 but instead based its opinion on article 7(4) of Regulation (EC) No 713/2009 and therefore overstepped the competence provided for in Article 7(4) of Regulation (EC) No 713/2009 and acted ultra vires. |
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2.

Second plea in law, alleging the lack of legal basis for the measures proposed since ACER has not followed the procedure provided for in Article 8 of Regulation (EC) No 713/2009 but instead based its opinion on article 7(4) of Regulation (EC) No 713/2009 and therefore overstepped the competence provided for in Article 7(4) of Regulation (EC) No 713/2009 and acted ultra vires.

o

o

o

ultra vires

| 3. | Third plea in law, alleging infringement of Regulation (EC) No 714/2009 since ACER’s conclusion that structural congestion exists on the German-Austrian border is not supported by facts and is incompatible with the definition of congestion. Furthermore, the opinion lacks an impact assessment and a thorough evaluation of alternative solutions. Finally, the capacity allocation procedure as set out in the opinion is neither an appropriate nor a proportionate remedy for the problems identified in the opinion. |
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3.

Third plea in law, alleging infringement of Regulation (EC) No 714/2009 since ACER’s conclusion that structural congestion exists on the German-Austrian border is not supported by facts and is incompatible with the definition of congestion. Furthermore, the opinion lacks an impact assessment and a thorough evaluation of alternative solutions. Finally, the capacity allocation procedure as set out in the opinion is neither an appropriate nor a proportionate remedy for the problems identified in the opinion.

o

| 4. | Fourth plea in law, alleging infringement of Commission Regulation (EU) No 1222/2015 (CACM Guideline) to the extent that the opinion disregards the binding material and procedural requirements of the CACM Guideline, which entered into force before the opinion was adopted. |
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4.

Fourth plea in law, alleging infringement of Commission Regulation (EU) No 1222/2015 (CACM Guideline) to the extent that the opinion disregards the binding material and procedural requirements of the CACM Guideline, which entered into force before the opinion was adopted.

o

| 5. | Fifth plea in law, alleging infringement of Article 101 TFEU and Article 102 TFEU, in conjunction with Article 4(3) TEU, since the opinion violates fundamental principles of the European Internal Energy Market by ordering the national regulatory authorities and the TSO's to artificially split the integrated electricity market between Austria and Germany. |
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5.

Fifth plea in law, alleging infringement of Article 101 TFEU and Article 102 TFEU, in conjunction with Article 4(3) TEU, since the opinion violates fundamental principles of the European Internal Energy Market by ordering the national regulatory authorities and the TSO's to artificially split the integrated electricity market between Austria and Germany.

| 6. | Sixth plea in law, alleging infringement of Article 34 TFEU and Article 35 TFE because the regulatory measure would impose artificial barriers of trade between Member States and would interfere with the fundamental principle of Freedom of Goods in the meaning of Article 34 TFEU and Article 35 TFE. |
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6.

Sixth plea in law, alleging infringement of Article 34 TFEU and Article 35 TFE because the regulatory measure would impose artificial barriers of trade between Member States and would interfere with the fundamental principle of Freedom of Goods in the meaning of Article 34 TFEU and Article 35 TFE.

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