# C_2019238EN.01002201.xml

| 15.7.2019 | EN | Official Journal of the European Union | C 238/22 |
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15.7.2019

EN

Official Journal of the European Union

C 238/22

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Action brought on 2 May 2019 — Germany v ACER

(Case T-283/19)

(2019/C 238/27)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: J. Möller and S. Eisenberg, and M. Elspas, R. Bierwagen and G. Brucker, lawyers)

Defendant: Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

| 1. | annul 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 of 21 February 2019; |
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1.

annul 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 of 21 February 2019;

| 2. | annul the second clause of Article 10(4) and Article 10(5), the second sentence of Article 16(2), Article 3(d)(vii) of Annex I and Article 17(3)(d)(vii) of Annex II of Decision No 02/2019 of the defendant of 21 February 2019; |
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2.

annul the second clause of Article 10(4) and Article 10(5), the second sentence of Article 16(2), Article 3(d)(vii) of Annex I and Article 17(3)(d)(vii) of Annex II of Decision No 02/2019 of the defendant of 21 February 2019;

| 3. | 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, annul the corresponding Article or Annex or the decision in its entirety; |
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3.

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, annul the corresponding Article or Annex or the decision in its entirety;

| 4. | 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, annul the corresponding Article or Annex or the decision in its entirety; |
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4.

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, annul the corresponding Article or Annex or the decision in its entirety;

| 5. | order the defendant to pay the costs of the proceedings. |
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5.

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 five pleas in law.

| 1. | First plea in law, alleging an infringement of Articles 14 to 16 of the forthcoming Regulation on the internal market in electricity in conjunction with Article 13(2) TEU and the general principle of legal certainty
  In the context of the first plea, it is claimed that, with the clarification in Article 5(8)(b) and (c) of Annexes I and II of Decision No 02/2019, which is a critical network element, the defendant infringes the basic structure of Articles 14 to 16 of the Regulation on the internal market in electricity, which comes into force on 1 January 2020. Articles 14 to 16 of the Regulation on the internal market in electricity would govern how internal grid congestion will be taken into consideration in the calculation of cross-border trade capacities. Under Article 16(8) of the Regulation on the internal market in electricity, it is irrefutably presumed that there is no discrimination of cross-border electricity flows when, on internal and cross-border network elements, a minimum capacity of 70 % of the network element in question is made available to cross-border trade. Under Article 16(4) of the Regulation on the internal market in electricity, re-dispatch measures must not be applied in excess of the minimum capacity. In addition, in compliance with the minimum capacity, a bidding zone may be re-configured only with the agreement of the relevant Member State. Moreover, the minimum capacity of 70 % is initially to be in the form of a gradual linear trajectory. The minimum capacity of 70 % and the linear trajectory are to take account of the fact that the internal network expansion takes time. This basic structure is reversed by Article 5(8)(b) and (c) of Annexes I and II of the decision, since the minimum capacity of 70 % can be applied to internal network elements only if the transmission system operator can demonstrate that a re-configuration of the bidding zone, or more re-dispatch, or more network expansion, would be less efficient. Furthermore, the efficiency criterion under Article 5(8)(c) of Annexes I and II undermines the established minimum capacity of 70 %, since it is in practice not achievable.
  The early consideration of remedial actions under the second clause of Article 10(4), Article 10(5) and the second sentence of Article 16(2), Article 3(d)(vii) of Annex I and Article 17(3)(d)(vii) of Annex II infringes Article 16(4) of the Regulation on the internal market in electricity, in accordance with which the maximum capacity should be made available to operators. |
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1.

First plea in law, alleging an infringement of Articles 14 to 16 of the forthcoming Regulation on the internal market in electricity in conjunction with Article 13(2) TEU and the general principle of legal certainty

In the context of the first plea, it is claimed that, with the clarification in Article 5(8)(b) and (c) of Annexes I and II of Decision No 02/2019, which is a critical network element, the defendant infringes the basic structure of Articles 14 to 16 of the Regulation on the internal market in electricity, which comes into force on 1 January 2020. Articles 14 to 16 of the Regulation on the internal market in electricity would govern how internal grid congestion will be taken into consideration in the calculation of cross-border trade capacities. Under Article 16(8) of the Regulation on the internal market in electricity, it is irrefutably presumed that there is no discrimination of cross-border electricity flows when, on internal and cross-border network elements, a minimum capacity of 70 % of the network element in question is made available to cross-border trade. Under Article 16(4) of the Regulation on the internal market in electricity, re-dispatch measures must not be applied in excess of the minimum capacity. In addition, in compliance with the minimum capacity, a bidding zone may be re-configured only with the agreement of the relevant Member State. Moreover, the minimum capacity of 70 % is initially to be in the form of a gradual linear trajectory. The minimum capacity of 70 % and the linear trajectory are to take account of the fact that the internal network expansion takes time. This basic structure is reversed by Article 5(8)(b) and (c) of Annexes I and II of the decision, since the minimum capacity of 70 % can be applied to internal network elements only if the transmission system operator can demonstrate that a re-configuration of the bidding zone, or more re-dispatch, or more network expansion, would be less efficient. Furthermore, the efficiency criterion under Article 5(8)(c) of Annexes I and II undermines the established minimum capacity of 70 %, since it is in practice not achievable.

The early consideration of remedial actions under the second clause of Article 10(4), Article 10(5) and the second sentence of Article 16(2), Article 3(d)(vii) of Annex I and Article 17(3)(d)(vii) of Annex II infringes Article 16(4) of the Regulation on the internal market in electricity, in accordance with which the maximum capacity should be made available to operators.

| 2. | Second plea in law, alleging an infringement of Regulation (EC) No 714/2009 (1)

  In the context of the second plea in law, it is claimed that the decision unlawfully restricts the three existing exemptions for taking internal network elements into account under point 1.7 of Annex I of Regulation (EC) No 714/2009, since it makes provision only for the effectiveness criterion and incorrectly implements that criterion. |
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2.

Second plea in law, alleging an infringement of Regulation (EC) No 714/2009 (1)

In the context of the second plea in law, it is claimed that the decision unlawfully restricts the three existing exemptions for taking internal network elements into account under point 1.7 of Annex I of Regulation (EC) No 714/2009, since it makes provision only for the effectiveness criterion and incorrectly implements that criterion.

| 3. | Third plea in law, alleging an infringement of Regulation (EU) 2015/1222 (2)

  In the context of the third plea in law, it is claimed that the effectiveness criterion under Article 5(8)(c) of Annexes I and II of the decision infringes the procedure for verifying the bidding zone under Article 32 et seq. of Regulation (EU) 2015/1222 and the rule for taking network elements into account in the calculation of capacities in accordance with Article 29(3)(b) of Regulation (EU) 2015/1222. |
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3.

Third plea in law, alleging an infringement of Regulation (EU) 2015/1222 (2)

In the context of the third plea in law, it is claimed that the effectiveness criterion under Article 5(8)(c) of Annexes I and II of the decision infringes the procedure for verifying the bidding zone under Article 32 et seq. of Regulation (EU) 2015/1222 and the rule for taking network elements into account in the calculation of capacities in accordance with Article 29(3)(b) of Regulation (EU) 2015/1222.

| 4. | Fourth plea in law, alleging infringement of the principle of proportionality
  In the context of the fourth plea in law, it is claimed that the exclusion of internal network elements above the effectiveness criterion under Article 5(8)(c) of Annexes I and II of the decision infringes the principle of proportionality, since that exclusion undermines system security and is not the least onerous method. |
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4.

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

In the context of the fourth plea in law, it is claimed that the exclusion of internal network elements above the effectiveness criterion under Article 5(8)(c) of Annexes I and II of the decision infringes the principle of proportionality, since that exclusion undermines system security and is not the least onerous method.

| 5. | Fifth plea in law, alleging a formal irregularity in the contested decision
  In the context of the fifth plea in law, it is claimed that the decision infringes Articles 2 and 4 of Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385), since the publication and notification thereof took place only in English. In addition, it infringes the obligation to state reasons and was adopted by the Agency outside of its competence. |
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5.

Fifth plea in law, alleging a formal irregularity in the contested decision

In the context of the fifth plea in law, it is claimed that the decision infringes Articles 2 and 4 of Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385), since the publication and notification thereof took place only in English. In addition, it infringes the obligation to state reasons and was adopted by the Agency outside of its competence.

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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).

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

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