# C_2023164EN.01004501.xml

| 8.5.2023 | EN | Official Journal of the European Union | C 164/45 |
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8.5.2023

EN

Official Journal of the European Union

C 164/45

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Action brought on 17 February 2023 — RWE Supply & Trading v ACER

(Case T-95/23)

(2023/C 164/61)

Language of the case: German

Parties

Applicant: RWE Supply & Trading GmbH (Essen, Germany) (represented by: U. Scholz, H. Weßling and M. von Falkenhausen, 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 Board of Appeal’s decision of 9 December 2022 (Ref. A 0[0]2-2022); |
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annul the Board of Appeal’s decision of 9 December 2022 (Ref. A 0[0]2-2022);

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

| — | order the defendant to pay the costs. |
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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 failed to recognise that Decision No 03/2022 is not only of direct but also individual concern to the applicant, and that the applicant was entitled to appeal under Article 28(1) of Regulation (EU) 2019/942. (1) |
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1.

First plea

The defendant’s Board of Appeal failed to recognise that Decision No 03/2022 is not only of direct but also individual concern to the applicant, and that the applicant was entitled to appeal under Article 28(1) of Regulation (EU) 2019/942. (1)

| 2. | Second plea
  The defendant’s Board of Appeal failed to recognise that a party may also bring an appeal under Article 28(1) of Regulation (EU) 2019/942 where the contested measure is a regulatory act which — as in the present case — is of direct concern to the party bringing the appeal and does not entail implementing measures. |
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2.

Second plea

The defendant’s Board of Appeal failed to recognise that a party may also bring an appeal under Article 28(1) of Regulation (EU) 2019/942 where the contested measure is a regulatory act which — as in the present case — is of direct concern to the party bringing the appeal and does not entail implementing measures.

In support of its form of order sought in the alternative, which is put forward in the event that the principal form of order sought is unfounded, the applicant relies on six pleas in law.

| 1. | First plea
  The temporary price limits of +/- EUR 15 000/MWh adopted in Decision No 03/2022 breach the prohibition of non-technical price limits on balancing energy markets under Article 10(1) of Regulation (EU) 2019/943 (2) of the European Parliament and of the Council, read in conjunction with Article 30(2) of Regulation (EU) 2017/2195, (3) because they did not meet the requirements of Article 30(2) of Regulation (EU) 2017/2195, as the defendant itself has also acknowledged. |
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1.

First plea

The temporary price limits of +/- EUR 15 000/MWh adopted in Decision No 03/2022 breach the prohibition of non-technical price limits on balancing energy markets under Article 10(1) of Regulation (EU) 2019/943 (2) of the European Parliament and of the Council, read in conjunction with Article 30(2) of Regulation (EU) 2017/2195, (3) because they did not meet the requirements of Article 30(2) of Regulation (EU) 2017/2195, as the defendant itself has also acknowledged.

| 2. | Second plea
  The defendant erred in basing its decision on Article 5(2)(b) of Regulation (EU) 2019/942, read in conjunction with Article 5(2)(f) and Article 6(3) of Regulation (EU) 2017/2195. Those provisions authorise the defendant to review and approve a proposal by the transmission system operators to introduce or amend methodologies for pricing balancing energy pursuant to Article 30(1) of Regulation (EU) 2017/2195. Price limits can form part of such a proposal only if they fulfil the requirements of Article 30(2) of Regulation (EU) 2017/2195, which the price limits proposed by the transmission system operators do not. The defendant itself acknowledges this. Therefore, there was no proposal to be approved or revised and, consequently, the defendant had no competence to make a decision under Article 5(2)(b) of Regulation (EU) 2019/942. |
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2.

Second plea

The defendant erred in basing its decision on Article 5(2)(b) of Regulation (EU) 2019/942, read in conjunction with Article 5(2)(f) and Article 6(3) of Regulation (EU) 2017/2195. Those provisions authorise the defendant to review and approve a proposal by the transmission system operators to introduce or amend methodologies for pricing balancing energy pursuant to Article 30(1) of Regulation (EU) 2017/2195. Price limits can form part of such a proposal only if they fulfil the requirements of Article 30(2) of Regulation (EU) 2017/2195, which the price limits proposed by the transmission system operators do not. The defendant itself acknowledges this. Therefore, there was no proposal to be approved or revised and, consequently, the defendant had no competence to make a decision under Article 5(2)(b) of Regulation (EU) 2019/942.

| 3. | Third plea
  Even if the defendant were entitled to revise unlawful proposals of the transmission system operators to introduce price limits on the basis of Article 5(2)(b) of Regulation (EU) 2019/942, it did not make use of that competence. On the contrary, even according to its own reasoning, the defendant not only deviated from the transmission system operators’ proposal, but also adopted an entirely independent arrangement. Consequently, the defendant conferred on itself a right of initiative that is not provided for in EU law. |
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3.

Third plea

Even if the defendant were entitled to revise unlawful proposals of the transmission system operators to introduce price limits on the basis of Article 5(2)(b) of Regulation (EU) 2019/942, it did not make use of that competence. On the contrary, even according to its own reasoning, the defendant not only deviated from the transmission system operators’ proposal, but also adopted an entirely independent arrangement. Consequently, the defendant conferred on itself a right of initiative that is not provided for in EU law.

| 4. | Fourth plea
  The temporary price limit adopted by the defendant is contrary to the objectives of Regulation (EU) 2017/2195 and Regulation (EU) 2019/943. |
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4.

Fourth plea

The temporary price limit adopted by the defendant is contrary to the objectives of Regulation (EU) 2017/2195 and Regulation (EU) 2019/943.

| 5. | Fifth plea
  The contested decision lacks the statement of reasons required under Article 14(7) of Regulation (EU) 2019/942, Article 296 TFEU and Article 41(2) of the Charter of Fundamental Rights of the European Union. |
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5.

Fifth plea

The contested decision lacks the statement of reasons required under Article 14(7) of Regulation (EU) 2019/942, Article 296 TFEU and Article 41(2) of the Charter of Fundamental Rights of the European Union.

| 6. | Sixth plea
  The contested decision is based on an infringement of the applicant’s right to be heard under Article 41 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 14(6) of Regulation (EU) 2019/942, because the defendant submitted the draft of the adopted temporary price limits only to the transmission system operators, ENTSO-E (European Network of Transmission System Operators for Electricity) and the regulatory authorities with a request for comments while denying that opportunity to the other interested parties, within the meaning of Article 14(6) of Regulation (EU) 2019/942, including the applicant. |
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6.

Sixth plea

The contested decision is based on an infringement of the applicant’s right to be heard under Article 41 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 14(6) of Regulation (EU) 2019/942, because the defendant submitted the draft of the adopted temporary price limits only to the transmission system operators, ENTSO-E (European Network of Transmission System Operators for Electricity) and the regulatory authorities with a request for comments while denying that opportunity to the other interested parties, within the meaning of Article 14(6) of Regulation (EU) 2019/942, including the applicant.

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(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)  Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54).

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

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