# C_2023164EN.01004601.xml

| 8.5.2023 | EN | Official Journal of the European Union | C 164/46 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/46

---

Action brought on 17 February 2023 — Uniper Global Commodities v ACER

(Case T-96/23)

(2023/C 164/62)

Language of the case: German

Parties

Applicant: Uniper Global Commodities SE (Düsseldorf, Germany) (represented by: T. Richter, M. Schellberg, C. Sieberg and M. Schleifenbaum, lawyers)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the defendant’s Board of Appeal of 9 December 2022 (No A 003-2022); |
| --- | --- |

—

annul the decision of the defendant’s Board of Appeal of 9 December 2022 (No A 003-2022);

| — | in the alternative, annul the defendant’s decision of 25 February 2022 (No 03/2022); |
| --- | --- |

—

in the alternative, annul the defendant’s decision of 25 February 2022 (No 03/2022);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the principal form of order sought, the applicant relies on two pleas in law.

| 1. | First plea
  The defendant’s Board of Appeal erred in finding that the defendant’s decision (No 03/2022) was ‘addressed to another person’ within the meaning of Article 28(1) of Regulation (EU) 2019/942 (1) and that it was of ‘direct’ but not ‘individual’ concern to the applicant:






  — | The Board of Appeal’s finding is based on an unlawful interpretation of Article 28(1) of Regulation (EU) 2019/942 and on an insufficient assessment of the particular concern to the applicant. |
| --- | --- | --- |

1.

First plea

The defendant’s Board of Appeal erred in finding that the defendant’s decision (No 03/2022) was ‘addressed to another person’ within the meaning of Article 28(1) of Regulation (EU) 2019/942 (1) and that it was of ‘direct’ but not ‘individual’ concern to the applicant:

—

The Board of Appeal’s finding is based on an unlawful interpretation of Article 28(1) of Regulation (EU) 2019/942 and on an insufficient assessment of the particular concern to the applicant.

| — | The Board of Appeal based the alleged lack of individual concern on statements from the case-law on the fourth paragraph of Article 263 TFEU, which were not applicable to the present case or were assessed incorrectly. |
| --- | --- |

—

The Board of Appeal based the alleged lack of individual concern on statements from the case-law on the fourth paragraph of Article 263 TFEU, which were not applicable to the present case or were assessed incorrectly.

| 2. | Second plea
  Although the Board of Appeal confirmed that the defendant’s decision was a regulatory act pursuant to the third alternative provided for in the fourth paragraph of Article 263 TFEU, it unlawfully interpreted Article 28(1) of Regulation (EU) 2019/942 to the effect that, under that provision — by way of derogation from the third alternative provided for in the fourth paragraph of Article 263 TFEU — the applicant nevertheless was not entitled to appeal:






  — | The Board of Appeal’s interpretation does not take into account the purpose of the appeal procedure or the role of the defendant in connection with the self-regulation of the balancing energy market, which is subject to approval, under Regulation (EU) 2017/2195. (2) |
| --- | --- | --- |

2.

Second plea

Although the Board of Appeal confirmed that the defendant’s decision was a regulatory act pursuant to the third alternative provided for in the fourth paragraph of Article 263 TFEU, it unlawfully interpreted Article 28(1) of Regulation (EU) 2019/942 to the effect that, under that provision — by way of derogation from the third alternative provided for in the fourth paragraph of Article 263 TFEU — the applicant nevertheless was not entitled to appeal:

—

The Board of Appeal’s interpretation does not take into account the purpose of the appeal procedure or the role of the defendant in connection with the self-regulation of the balancing energy market, which is subject to approval, under Regulation (EU) 2017/2195. (2)

| — | The Board of Appeal’s interpretation entails inadequate legal protection in breach of primary law. |
| --- | --- |

—

The Board of Appeal’s interpretation entails inadequate legal protection in breach of primary law.

| — | Contrary to the Board of Appeal’s view, the wording of the provision does not preclude an interpretation according to which the applicant is entitled to appeal. |
| --- | --- |

—

Contrary to the Board of Appeal’s view, the wording of the provision does not preclude an interpretation according to which the applicant is entitled to appeal.

In support of its form of order sought in the alternative, the applicant puts forward six pleas in law.

| 1. | First plea
  The defendant exceeded its powers under the second sentence of Article 5(1) and Article 5(6), read in conjunction with Article 6(3) of Regulation (EU) 2017/2195, in so far as it did not decide upon the request made by ENTSO-E (European Network of Transmission System Operators for Electricity), but determined an entirely different matter. |
| --- | --- |

1.

First plea

The defendant exceeded its powers under the second sentence of Article 5(1) and Article 5(6), read in conjunction with Article 6(3) of Regulation (EU) 2017/2195, in so far as it did not decide upon the request made by ENTSO-E (European Network of Transmission System Operators for Electricity), but determined an entirely different matter.

| 2. | Second plea
  The defendant, even if it were deemed to have competence under Regulation (EU) 2017/2195 and Regulation (EU) 2019/942, should not have determined the price limits without a fresh consultation pursuant to Article 10 of Regulation (EU) 2017/2195. |
| --- | --- |

2.

Second plea

The defendant, even if it were deemed to have competence under Regulation (EU) 2017/2195 and Regulation (EU) 2019/942, should not have determined the price limits without a fresh consultation pursuant to Article 10 of Regulation (EU) 2017/2195.

| 3. | Third plea
  There is no legal basis for the price limit determined by the defendant. |
| --- | --- |

3.

Third plea

There is no legal basis for the price limit determined by the defendant.

| 4. | Fourth plea
  The defendant failed to state sufficient reasons for its determination of the price limit, in breach of Article 14(7) of Regulation (EU) 2019/942 and Article 296 TFEU. |
| --- | --- |

4.

Fourth plea

The defendant failed to state sufficient reasons for its determination of the price limit, in breach of Article 14(7) of Regulation (EU) 2019/942 and Article 296 TFEU.

| 5. | Fifth plea
  By its decision, the defendant infringed the provisions of Article 3(1)(a), (b) and (e) of Regulation (EU) 2017/2195. |
| --- | --- |

5.

Fifth plea

By its decision, the defendant infringed the provisions of Article 3(1)(a), (b) and (e) of Regulation (EU) 2017/2195.

| 6. | Sixth plea
  In determining the price limit, the defendant infringed the principle of proportionality under the first and second sentences of Article 5(4) TEU and Article 3(2)(a) of Regulation (EU) 2017/2195. |
| --- | --- |

6.

Sixth plea

In determining the price limit, the defendant infringed the principle of proportionality under the first and second sentences of Article 5(4) TEU and Article 3(2)(a) of Regulation (EU) 2017/2195.

---

(1)  Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (OJ 2019 L 158, p. 22).

(2)  Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6).

---