# C_2016156EN.01004902.xml

| 2.5.2016 | EN | Official Journal of the European Union | C 156/49 |
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2.5.2016

EN

Official Journal of the European Union

C 156/49

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Action brought on 15 February 2016 — E-Control v ACER

(Case T-63/16)

(2016/C 156/67)

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 decision of the Board of Appeal of the ACER of 16 December 2015, in Case A-001-2015; and |
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annul the decision of the Board of Appeal of the ACER of 16 December 2015, in Case A-001-2015; and

| — | 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 four pleas in law.

| 1. | First plea in law, alleging a violation of essential procedural requirements.
  Essential procedural requirements were disregarded in the procedure leading to the adoption of the contested decision, namely E-Control’s fundamental procedural right to challenge the legality of the Opinion of the ACER 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 (1) and the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto (the ‘Opinion’) and E-Control’s right to make its legal position heard. |
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1.

First plea in law, alleging a violation of essential procedural requirements.

Essential procedural requirements were disregarded in the procedure leading to the adoption of the contested decision, namely E-Control’s fundamental procedural right to challenge the legality of the Opinion of the ACER 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 (1) and the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto (the ‘Opinion’) and E-Control’s right to make its legal position heard.

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| 2. | Second plea in law, alleging an error in law in holding that the Opinion does not constitute a decision in the meaning of Article 19 of Regulation (EC) No 713/2009 (2).
  The Board of Appeal of ACER erred in law in holding that E-Control’s appeal against the Opinion was inadmissible because ACER’s Opinion did not constitute a decision in the meaning of Article 19 of Regulation (EC) No 713/2009, denying E-Control the right to appeal. The Opinion subject to the appeal constitutes a decision in the meaning of Article 19 of Regulation (EC) No 713/2009 as it has direct legal effects on E-Control. Therefore, a right to appeal exists and the Board of Appeal would have had to consider the appeal by E-Control on its merits. |
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Second plea in law, alleging an error in law in holding that the Opinion does not constitute a decision in the meaning of Article 19 of Regulation (EC) No 713/2009 (2).

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The Board of Appeal of ACER erred in law in holding that E-Control’s appeal against the Opinion was inadmissible because ACER’s Opinion did not constitute a decision in the meaning of Article 19 of Regulation (EC) No 713/2009, denying E-Control the right to appeal. The Opinion subject to the appeal constitutes a decision in the meaning of Article 19 of Regulation (EC) No 713/2009 as it has direct legal effects on E-Control. Therefore, a right to appeal exists and the Board of Appeal would have had to consider the appeal by E-Control on its merits.

| 3. | Third plea in law, alleging the absence of proper justification.
  The Board of Appeal of ACER failed to provide proper justification in the contested decision as its legal assessment is in principle limited to the finding that the Opinion constitutes an intermediate measure and a preparatory step for potential further actions of the Commission. The contested decision is not based on a consideration of E-Control’s legal arguments and does not contain a proper justification of (potentially opposing) views of the Board of Appeal of ACER. |
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3.

Third plea in law, alleging the absence of proper justification.

The Board of Appeal of ACER failed to provide proper justification in the contested decision as its legal assessment is in principle limited to the finding that the Opinion constitutes an intermediate measure and a preparatory step for potential further actions of the Commission. The contested decision is not based on a consideration of E-Control’s legal arguments and does not contain a proper justification of (potentially opposing) views of the Board of Appeal of ACER.

| 4. | Fourth plea in law, alleging an incorrect application of the relevant legal principles.
  The Board of Appeal of ACER limited its legal assessment of E-Control’s appeal to the finding that ACER’s Opinion constitutes a provisional and intermediate measure serving solely as a preparatory step for potential future actions of the Commission. In the view of the Board of Appeal of ACER, the Opinion may therefore, as an intermediate measure, not form the subject-matter of an appeal. This legal view is not correct. The Opinion constitutes an independent, final and stand-alone act of an agency of the European Union and therefore, as of itself, forms the subject-matter of an action for annulment and consequently also for an appeal according to Article 19 of Regulation (EC) No 713/2009. Had the Board of Appeal applied the relevant legal principles correctly, it would have annulled the Opinion. |
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4.

Fourth plea in law, alleging an incorrect application of the relevant legal principles.

The Board of Appeal of ACER limited its legal assessment of E-Control’s appeal to the finding that ACER’s Opinion constitutes a provisional and intermediate measure serving solely as a preparatory step for potential future actions of the Commission. In the view of the Board of Appeal of ACER, the Opinion may therefore, as an intermediate measure, not form the subject-matter of an appeal. This legal view is not correct. The Opinion constitutes an independent, final and stand-alone act of an agency of the European Union and therefore, as of itself, forms the subject-matter of an action for annulment and consequently also for an appeal according to Article 19 of Regulation (EC) No 713/2009. Had the Board of Appeal applied the relevant legal principles correctly, it would have annulled the Opinion.

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(1)  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).

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(2)  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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