# C_2017249EN.01003601.xml

| 31.7.2017 | EN | Official Journal of the European Union | C 249/36 |
| --- | --- | --- | --- |

31.7.2017

EN

Official Journal of the European Union

C 249/36

---

Action brought on 29 May 2017 — Austrian Power Grid and Voralberger Übertragungsnetz v ACER

(Case T-333/17)

(2017/C 249/52)

Language of the case: English

Parties

Applicants: Austrian Power Grid AG (Vienna, Austria) and Voralberger Übertragungsnetz GmbH (Bregenz, Austria) (represented by: H. Kristoferitsch and S. Huber, lawyers)

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

Form of order sought

The applicants claim that the Court should:

| — | set aside the decision of the Board of Appeal of the Agency for the Cooperation of Energy Regulators of 17 March 2017, Case A-001-2017 (consolidated) in its entirety and annul the following parts and provision of the Decision of ACER No 06/2016 of 17 November 2016 on the Electricity Transmission System Operators’ proposal for the determination of the Capacity Calculation Regions:






  i. | Article 1 of the contested decision in conjunction with






  — | Annex I, Article 1, para. 1, letter c; |
| --- | --- | --- | --- |

—

set aside the decision of the Board of Appeal of the Agency for the Cooperation of Energy Regulators of 17 March 2017, Case A-001-2017 (consolidated) in its entirety and annul the following parts and provision of the Decision of ACER No 06/2016 of 17 November 2016 on the Electricity Transmission System Operators’ proposal for the determination of the Capacity Calculation Regions:

i.

Article 1 of the contested decision in conjunction with

—

Annex I, Article 1, para. 1, letter c;

| — | the word ‘also’ and the text block ‘for the purposes of capacity allocation on the affected bidding zone borders until the requirements described in Article 5(3) of this document are fulfilled’ in Annex I, Article 2, para. 2, letter e; |
| --- | --- |

—

the word ‘also’ and the text block ‘for the purposes of capacity allocation on the affected bidding zone borders until the requirements described in Article 5(3) of this document are fulfilled’ in Annex I, Article 2, para. 2, letter e;

| ii. | Article 2 of the contested decision; |
| --- | --- |

ii.

Article 2 of the contested decision;

| iii. | Annex IV; |
| --- | --- |

iii.

Annex IV;

| iv. | Annex V; |
| --- | --- |

iv.

Annex V;

in eventu

requesting that the contested decision shall be annulled in its entirety and to refer the case back to the Board of Appeal;

| — | condemn the defendant to the costs. |
| --- | --- |

—

condemn the defendant to the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.

| 1. | First plea in law, alleging that the Board of Appeal erred in considering ACER competent to change the Transmission System Operators’ (‘TSOs’) proposal.
  The applicants claim the contested decision unlawful since the Board of Appeal omitted to address that ACER was not competent to materially change the All TSOs’ Proposal for Capacity Calculation Regions (‘CCR’). |
| --- | --- |

1.

First plea in law, alleging that the Board of Appeal erred in considering ACER competent to change the Transmission System Operators’ (‘TSOs’) proposal.

The applicants claim the contested decision unlawful since the Board of Appeal omitted to address that ACER was not competent to materially change the All TSOs’ Proposal for Capacity Calculation Regions (‘CCR’).

| 2. | Second plea in law, alleging that the Board of Appeal erred by assuming that ACER was competent to disregard E-Control’s request for amendment.
  According to the applicants, the application submitted by the Austrian national regulatory authority (‘NRA’), E-Control, requesting that the All TSOs CCR Draft be amended, was not dealt with in conformity with the procedure provided under Article 9(12) of the CACM Regulation (1). By approving this unlawful application of Article 9 CACM Regulation, so the applicants claim, the Board of Appeal committed an error in law. |
| --- | --- |

2.

Second plea in law, alleging that the Board of Appeal erred by assuming that ACER was competent to disregard E-Control’s request for amendment.

According to the applicants, the application submitted by the Austrian national regulatory authority (‘NRA’), E-Control, requesting that the All TSOs CCR Draft be amended, was not dealt with in conformity with the procedure provided under Article 9(12) of the CACM Regulation (1). By approving this unlawful application of Article 9 CACM Regulation, so the applicants claim, the Board of Appeal committed an error in law.

| 3. | Third plea in law, alleging that the Board of Appeal erred by assuming that ACER is competent to determine bidding zones in the course of a procedure according to Article 15 of the CACM Regulation.
  According to the applicants, all available methods of interpretation as well as the case-law and the authentic interpretation of the Commission clearly support the conclusion that the splitting of an existing bidding zone and an obligation to introduce a capacity allocation mechanism may not be based on Article 15 of the CACM Regulation. By contrast, so the applicants claim, the interpretation advocated by ACER and supported by the Board of Appeal is based on an incorrect and incomplete interpretation of the law and the facts of the case. |
| --- | --- |

3.

Third plea in law, alleging that the Board of Appeal erred by assuming that ACER is competent to determine bidding zones in the course of a procedure according to Article 15 of the CACM Regulation.

According to the applicants, all available methods of interpretation as well as the case-law and the authentic interpretation of the Commission clearly support the conclusion that the splitting of an existing bidding zone and an obligation to introduce a capacity allocation mechanism may not be based on Article 15 of the CACM Regulation. By contrast, so the applicants claim, the interpretation advocated by ACER and supported by the Board of Appeal is based on an incorrect and incomplete interpretation of the law and the facts of the case.

| 4. | Fourth plea in law, alleging that the Board of Appeal erred in its interpretation of ‘structural congestion’ and in its scope of review.
  According to the applicants, in the CCR decision, ACER provided an interpretation of structural congestion that is neither grounded in the CACM Regulation, nor in Regulation (EC) No. 714/2009 (2) in order to legitimize its assumption that the German-Austrian border is structurally congested. The applicants put forward that by de facto accepting this wrong interpretation of the applicable law, the Board of Appeal enacted a substantively unlawful decision. Moreover, so the applicants claim, by accepting ACER’s assumption regarding the presence of a structural congestion at the German-Austrian interconnection, the Board of Appeal erroneously shifted the burden of proof to the applicants and infringed its duty to fully assess the facts of the matter and to state reason. |
| --- | --- |

4.

Fourth plea in law, alleging that the Board of Appeal erred in its interpretation of ‘structural congestion’ and in its scope of review.

According to the applicants, in the CCR decision, ACER provided an interpretation of structural congestion that is neither grounded in the CACM Regulation, nor in Regulation (EC) No. 714/2009 (2) in order to legitimize its assumption that the German-Austrian border is structurally congested. The applicants put forward that by de facto accepting this wrong interpretation of the applicable law, the Board of Appeal enacted a substantively unlawful decision. Moreover, so the applicants claim, by accepting ACER’s assumption regarding the presence of a structural congestion at the German-Austrian interconnection, the Board of Appeal erroneously shifted the burden of proof to the applicants and infringed its duty to fully assess the facts of the matter and to state reason.

| 5. | Fifth plea in law, alleging that the Board of Appeal erred in considering the splitting of the German-Austrian bidding zone proportional.
  The applicants claim that they have clearly demonstrated that the splitting of the German-Austrian bidding zone ordered by ACER constitutes disproportionate interference with their rights. However, so the applicants claim, the Board of Appeal has entirely failed to address the arguments put forward by them in their appeals. Moreover, so the applicants claim, the Board of Appeal erred in considering the bidding zone splitting and the introduction of a capacity allocation mechanism as appropriate. |
| --- | --- |

5.

Fifth plea in law, alleging that the Board of Appeal erred in considering the splitting of the German-Austrian bidding zone proportional.

The applicants claim that they have clearly demonstrated that the splitting of the German-Austrian bidding zone ordered by ACER constitutes disproportionate interference with their rights. However, so the applicants claim, the Board of Appeal has entirely failed to address the arguments put forward by them in their appeals. Moreover, so the applicants claim, the Board of Appeal erred in considering the bidding zone splitting and the introduction of a capacity allocation mechanism as appropriate.

| 6. | Sixth plea in law, alleging that the Board of Appeal erred in finding that the introduction of a German-Austrian bidding zone does not restrict the fundamental freedoms.
  According to the applicants, they demonstrated that, contrary to the conclusion drawn by ACER and the Board of Appeal, the introduction of a CAM at the German-Austrian border restricts the free movement of goods enshrined in Articles 34 and 35 TFEU and the freedom to provide services (Article 56 TFEU). The applicants put forward that the Board of Appeal, in a very short and unfounded manner, rejected their arguments and stated that quantitative restrictions on bilateral energy trade does not face any reservations in the light of the fundamental freedoms. According to the applicants, the Board of Appeal insofar infringed EU primary law and its duty to state adequate reasons. |
| --- | --- |

6.

Sixth plea in law, alleging that the Board of Appeal erred in finding that the introduction of a German-Austrian bidding zone does not restrict the fundamental freedoms.

According to the applicants, they demonstrated that, contrary to the conclusion drawn by ACER and the Board of Appeal, the introduction of a CAM at the German-Austrian border restricts the free movement of goods enshrined in Articles 34 and 35 TFEU and the freedom to provide services (Article 56 TFEU). The applicants put forward that the Board of Appeal, in a very short and unfounded manner, rejected their arguments and stated that quantitative restrictions on bilateral energy trade does not face any reservations in the light of the fundamental freedoms. According to the applicants, the Board of Appeal insofar infringed EU primary law and its duty to state adequate reasons.

| 7. | Seventh plea in law, alleging that the Board of Appeal erred when considering the Agency’s CCR decision in compliance with the procedural rules.
  The applicants put forward that they established in their appeals that the Agency’s CCR decision is partially flawed for the following reasons: (i) the Agency exceeded its competence by declaring that the non-binding ACER Opinion 09/2015, issued in September 2015, has binding effect, and, as this Opinion did not form part of the consultation procedure, the applicants’ procedural rights were fundamentally violated by ACER; (ii) the Agency’s file for the preparation of the CCR decision lacked technical studies, analysis and in-depth assessments: either the Agency provided the applicants with significantly incomplete information and, by doing so, violated the applicants’ right to full access to the case file according to Article 41 of the EU Charter of Fundamental Rights, or the Agency did not at all prepare and/or consult technical expertise and analyses in order to put its CCR-decision on a factually sound basis; (iii) the Agency did not take into account the mandatory requirements for a bidding zone modification as set out in Article 33 of the CACM Regulation; (iv) the CCR decision is based on facts that have not been sufficiently clarified and the Agency failed to make observations.
  According to the applicants, despite these significant violations of statutory procedural rules by ACER, the Board of Appeal, again in a very general way, confirmed the legitimacy of the CCR decision and therefore acted unlawfully. |
| --- | --- |

7.

Seventh plea in law, alleging that the Board of Appeal erred when considering the Agency’s CCR decision in compliance with the procedural rules.

The applicants put forward that they established in their appeals that the Agency’s CCR decision is partially flawed for the following reasons: (i) the Agency exceeded its competence by declaring that the non-binding ACER Opinion 09/2015, issued in September 2015, has binding effect, and, as this Opinion did not form part of the consultation procedure, the applicants’ procedural rights were fundamentally violated by ACER; (ii) the Agency’s file for the preparation of the CCR decision lacked technical studies, analysis and in-depth assessments: either the Agency provided the applicants with significantly incomplete information and, by doing so, violated the applicants’ right to full access to the case file according to Article 41 of the EU Charter of Fundamental Rights, or the Agency did not at all prepare and/or consult technical expertise and analyses in order to put its CCR-decision on a factually sound basis; (iii) the Agency did not take into account the mandatory requirements for a bidding zone modification as set out in Article 33 of the CACM Regulation; (iv) the CCR decision is based on facts that have not been sufficiently clarified and the Agency failed to make observations.

According to the applicants, despite these significant violations of statutory procedural rules by ACER, the Board of Appeal, again in a very general way, confirmed the legitimacy of the CCR decision and therefore acted unlawfully.

---

(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).

(2)  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. 8).

---