# C_2019406EN.01003701.xml

| 2.12.2019 | EN | Official Journal of the European Union | C 406/37 |
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2.12.2019

EN

Official Journal of the European Union

C 406/37

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Action brought on 7 October 2019 — Magyar v Energetikai és Közmű-szabályozási Hivatal v ACER

(Case T-684/19)

(2019/C 406/47)

Language of the case: Hungarian

Parties

Applicant: Magyar Energetikai és Közmű-szabályozási Hivatal (Budapest, Hungary) (represented by: G. Stanka, G. Szikla and J.M. Burai-Kovács, lawyers)

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

Form of order sought

The applicant claims that the General Court should:

| — | primarily,






  — | annul the contested decision pursuant to Article 263 TFEU; |
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primarily,

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annul the contested decision pursuant to Article 263 TFEU;

| — | declare that Title V of Commission Regulation (EU) 2017/459, (1) on which the contested decision is based, is inapplicable under Article 277 TFEU; |
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declare that Title V of Commission Regulation (EU) 2017/459, (1) on which the contested decision is based, is inapplicable under Article 277 TFEU;

| — | order the defendant to pay the costs; |
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order the defendant to pay the costs;

| — | in the alternative,






  — | in the event that the General Court decides not to declare Regulation 2017/459, on which the contested decision is based, inapplicable, annul that decision (i) in the first place, for lack of competence, (ii) in the second place, for serious procedural infringement and (iii) in the third place, as unfounded; |
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in the alternative,

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in the event that the General Court decides not to declare Regulation 2017/459, on which the contested decision is based, inapplicable, annul that decision (i) in the first place, for lack of competence, (ii) in the second place, for serious procedural infringement and (iii) in the third place, as unfounded;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

The present action concerns Decision No 05/2019 of ACER of 9 April 2019, confirmed by the Board of Appeal of ACER on 6 August 2019.

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

| 1. | First plea in law, alleging that all of Title V of Regulation 2017/459, on which the contested decision is based, is invalid for lack of legislative competence.
  Regulation 2017/459, on which the contested decision is based, was adopted under the power of legislative harmonisation delegated by Regulation (EC) No 715/2009 of the European Parliament and of the Council. (2)

  On the basis of the powers delegated in Regulation No 715/2009, the Commission was competent only to create a network code, applied to the existing and incremental capacity of gas transmission systems, defining capacity-allocation mechanisms.
  On the other hand, Title V, which goes beyond the subject-matter that it should regulate, does not establish a regulatory framework for distribution of gas transmission capacity which is neutral from the point of view of competence, but regulates in detail questions concerning investments in respect of incremental capacity, going beyond the scope of the network code. |
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1.

First plea in law, alleging that all of Title V of Regulation 2017/459, on which the contested decision is based, is invalid for lack of legislative competence.

Regulation 2017/459, on which the contested decision is based, was adopted under the power of legislative harmonisation delegated by Regulation (EC) No 715/2009 of the European Parliament and of the Council. (2)

On the basis of the powers delegated in Regulation No 715/2009, the Commission was competent only to create a network code, applied to the existing and incremental capacity of gas transmission systems, defining capacity-allocation mechanisms.

On the other hand, Title V, which goes beyond the subject-matter that it should regulate, does not establish a regulatory framework for distribution of gas transmission capacity which is neutral from the point of view of competence, but regulates in detail questions concerning investments in respect of incremental capacity, going beyond the scope of the network code.

| 2. | Second plea in law, alleging that empowering ACER to adopt an individual decision with the content of the contested decision is invalid because there is no proper legal basis.
  In the contested decision, ACER has assumed a decision-making power the delegation of which to ACER infringed the requirements imposed by the Court of Justice of the European Union in Cases 9/56 (Meroni v High Authority and C-270 (United Kingdom v Council and Parliament) and infringed Article 114 TFEU. Therefore, in accordance with Article 277 TFEU that decision does not apply to the applicant in the main proceedings. |
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2.

Second plea in law, alleging that empowering ACER to adopt an individual decision with the content of the contested decision is invalid because there is no proper legal basis.

In the contested decision, ACER has assumed a decision-making power the delegation of which to ACER infringed the requirements imposed by the Court of Justice of the European Union in Cases 9/56 (Meroni v High Authority and C-270 (United Kingdom v Council and Parliament) and infringed Article 114 TFEU. Therefore, in accordance with Article 277 TFEU that decision does not apply to the applicant in the main proceedings.

| 3. | Third plea in law, alleging that the contested decision is unlawful on the basis of lack of competence
  Aside from the question of validity, from a public-law perspective, of the regulation adopted by the Commission which constitutes the legal basis for ACER’s decision, that agency was also not authorised to adopt the contested decision on the basis of the legal provisions referred to as the legal basis for its decision, because






  (i) | under Regulation 2017/459 only the decision-making powers specifically mentioned in Article 28(2) of that regulation may be exercised, and |
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3.

Third plea in law, alleging that the contested decision is unlawful on the basis of lack of competence

Aside from the question of validity, from a public-law perspective, of the regulation adopted by the Commission which constitutes the legal basis for ACER’s decision, that agency was also not authorised to adopt the contested decision on the basis of the legal provisions referred to as the legal basis for its decision, because

(i)

under Regulation 2017/459 only the decision-making powers specifically mentioned in Article 28(2) of that regulation may be exercised, and

| (ii) | under Article 8 of Regulation (EC) No 713/2009 of the European Parliament and of the Council, (3) which governs the status of ACER and which was in force at the time the contested decision was adopted, ACER was only entitled to adopt a contested decision that






  (a) | fell within the competence of the national regulatory authorities; |
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(ii)

under Article 8 of Regulation (EC) No 713/2009 of the European Parliament and of the Council, (3) which governs the status of ACER and which was in force at the time the contested decision was adopted, ACER was only entitled to adopt a contested decision that

(a)

fell within the competence of the national regulatory authorities;

| (b) | referred to access and operational security, and |
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(b)

referred to access and operational security, and

| (c) | concerned regulatory issues. |
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(c)

concerned regulatory issues.

| 4. | Fourth plea in law, alleging that the contested decision is unlawful for infringement of essential procedural requirements
  The procedure conducted by ACER infringed Article 41(1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, for failing to fulfil the obligation to state reasons and the requirements of a fair and impartial procedure. |
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4.

Fourth plea in law, alleging that the contested decision is unlawful for infringement of essential procedural requirements

The procedure conducted by ACER infringed Article 41(1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, for failing to fulfil the obligation to state reasons and the requirements of a fair and impartial procedure.

| 5. | Fifth plea in law, alleging that the contested decision was unlawful as it was unfounded
  Taking into account that ACER did not, concerning the substance, assess ‘any detrimental effects on competition or the effective functioning of the internal gas market associated with the ... projects’ in accordance with Article 22 of Regulation 2017/459, the contested regulation, in addition, could not be considered to be well-founded. |
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5.

Fifth plea in law, alleging that the contested decision was unlawful as it was unfounded

Taking into account that ACER did not, concerning the substance, assess ‘any detrimental effects on competition or the effective functioning of the internal gas market associated with the ... projects’ in accordance with Article 22 of Regulation 2017/459, the contested regulation, in addition, could not be considered to be well-founded.

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(1)  Commission Regulation (EU) 2017/459 of 16 March 2017 establishing a network code on capacity allocation mechanisms in gas transmission systems and repealing Regulation (EU) No 984/2013 (OJ 2017 L 72, p. 1).

(2)  Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p.36; corrigendum in OJ 2009 L 309, p.87).

(3)  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).

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