Judgment;Abstract — ECLI:EU:T:2025:632
Date: 2025-06-25
Language of the case: German
Court formation: Third Chamber, Extended Composition
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Germany

summary of the pleas in law relied on and the form of order sought by the applicant. 122 In the present case, in paragraphs 24 to 28 of its statement of the grounds of the appeal, the applicant relied, in essence, in support of its claim to be individually concerned by the initial decision, which temporarily froze the price at which balancing energy could be sold to the TSOs, on the specific fact that it was one of the largest suppliers operating on the German market for balancing energy. 123 In accordance with the case-law and with the wording of Article 15(1)(d) of the Rules of Procedure of the Board of Appeal, referred to in paragraph 97 above, that board was entitled, in the contested decision, to take into consideration only the specific circumstance that the applicant had duly raised before it, as being such as to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), and was not obliged to examine whether other ‘attributes’ or ‘factual circumstances’ capable of distinguishing the applicant individually could be deduced from the statement of the grounds of the appeal, the annexes thereto or the supplementary observations, or, more generally, from the case file. 124 Even supposing that the Board of Appeal had unlawfully failed to take account, in the contested decision, of all the ‘attributes’ or ‘factual circumstances’ relied on before it by the applicant, it would have been for the applicant to object to that failure, by raising a plea to that effect which satisfied the requirements of clarity and precision laid down in Article 76(d) of the Rules of Procedure (see paragraph 114 above). 125 Failure to rule on a head of claim may result in the annulment, at least in part, of a decision adopted by an independent Board of Appeal of one of the bodies, offices or agencies of the European Union referred to in Article 58a of the Statute of the Court of Justice of the European Union (see, to that effect and by analogy, judgment of 8 June 2016, GREEN BEANS, T‑585/15, not published, EU:T:2016:339, paragraph 27 and the case-law cited). 126 While it is true that, in paragraphs 50 to 59 of the application, the applicant refers, as circumstances capable of distinguishing it individually within the meaning of the case-law originating from the judgment in Plaumann v Commission (25/62, EU:C:1963:17, p. 107), to its active participation in the administrative procedure that preceded the adoption of the initial decision, and to infringement of its right to express its views prior to the adoption of that decision, under Article 14(6) of Regulation 2019/942 and Article 41 of the Charter, it has not clearly and specifically raised, in that regard, a plea seeking annulment of the contested decision on the ground that, in that decision, the Board of Appeal unlawfully failed to rule on those ‘attributes’ or ‘factual circumstances’, which had been duly relied on before it. 127 Consequently, the applicant is not entitled to rely, in the present action, on ‘attributes’ or ‘ factual circumstances’ which were not referred to in the contested decision as having been relied on by it before the Board of Appeal, and which, accordingly, were not examined by that board in that decision (see paragraphs 102 to 104 above). 128 The first plea must therefore be dismissed as unfounded, with the result that the principal claim, seeking annulment of the contested decision, has no basis and must itself be dismissed as unfounded. It is therefore appropriate to continue by examining the alternative claim. The alternative claim, seeking annulment of the initial decision 129 In support of the alternative claim, the applicant puts forward six pleas in law alleging, in essence, first, infringement of Article 10(1) of Regulation 2019/943, second, that ACER had no power to make a determination on the TSOs’ proposal, third, that ACER had no power to create a regulatory scheme that was independent of that proposed by the TSOs, fourth, failure to comply with the objectives pursued by Regulation 2017/2195, fifth, failure to state reasons, and sixth, infringement of the right to be heard guaranteed by Article 41 of the Charter and by Article 14(6) of Regulation 2019/942. 130 ACER submits that the alternative claim, which was made on 17 February 2023, is manifestly inadmissible for failure to comply with the time limit of two months and ten days for bringing an action for annulment of the initial decision, as laid down in the sixth paragraph of Article 263 TFEU, read in conjunction with Article 60 of the Rules of Procedure, which would have run, at the latest, from the date on which the applicant lodged its appeal with the Board of Appeal, namely 27 April 2022. There is no excusable error that can legitimately be relied on by the applicant, bearing in mind that the information on remedies contained in the initial decision was expressly addressed to the addressees of that decision and that, on a proper interpretation of the wording of Article 29 of Regulation 2019/942, that provision did not prejudice the applicant’s right to bring an action for annulment of that decision directly before the General Court on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. In any event, the alternative claim should be dismissed as unfounded. 131 The applicant objects that the failure to observe the time limit for bringing an action results, in the present case, from an excusable error, in so far as, in the light of the information on remedies provided in the initial decision, and the wording of Article 29 of Regulation 2019/942, it was justified in not believing that it was able to bring an action for annulment before the General Court without first exhausting the appeal procedure referred to in Article 28 of that regulation. 132 As regards the plea of inadmissibility raised by ACER in respect of the alternative claim, it should be observed, first of all, that, as is apparent from paragraph 45 above, the applicant in the present case was able to bring an action for annulment of the initial decision directly before the EU judicature, on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. 133 Furthermore, it is apparent from the sixth paragraph of Article 263 TFEU that actions for annulment are to be brought within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. 134 No derogation from the application of the European Union’s rules on procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 56 and the case-law cited). 135 It is also apparent from the case-law that, in the context of the European Union’s rules on time limits for instituting proceedings, the concept of ‘excusable error’ justifying a derogation from those rules can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 59 and the case-law cited). 136 In the present case, the initial decision was published on the ACER website on 28 February 2022, and the applicant brought its appeal before the Board of Appeal on 27 April 2022. Even supposing that the initial decision came to the knowledge of the applicant only on the day it lodged its appeal with the Board of Appeal, applying the rules on the calculation of time limits laid down in Articles 58 and 60 of the Rules of Procedure, which correspond to Articles 49 and 51 of the Rules of Procedure of the Court of Justice, it must be held that, on the date on which the present action was brought, namely 17 February 2023, the applicant was barred from challenging that decision. 137 Furthermore, the applicant is not entitled, in the circumstances of the present case, to rely on an excusable error within the meaning of the case-law cited in paragraph 135 above. 138 First, ACER did not give the applicant any specific assurance that the Board of Appeal was competent to hear an appeal brought by the applicant against the initial decision, since the information on remedies given at the end of the initial decision was expressly intended for the ‘addressees’ of that decision, namely the TSOs of the CORE region, in relation to which that information was, moreover, correct (see paragraph 44 above). By contrast, the initial decision did not provide any information on the remedies available to natural or legal persons other than those addressees. Thus, the statements in question cannot be characterised as conduct of ACER that was such as to give rise to a pardonable confusion in the mind of the applicant as regards the competence of the Board of Appeal to hear an appeal brought by the applicant against the initial decision. 139 Second, on an interpretation of the wording of Article 29 of Regulation 2019/942 that accords with primary EU law, that article does not preclude natural or legal persons who, like the applicant, are directly but not individually concerned by an ACER act of general application not entailing implementing measures from bringing an action for annulment of that act directly before the EU judicature, on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. Moreover, in paragraph 117 of the application, the applicant itself has stated that ‘the action to which the alternative claim relates is not subject to the requirement that the appeal procedure has been exhausted, in accordance with the fifth paragraph of Article 263 TFEU and Article 29 of Regulation 2019/942, since it is a requirement of primary law that the applicant may bring a direct action’. 140 Thus, in the present case, the applicant cannot usefully rely on the case-law based on the general wording of certain texts governing remedies or on the current practice with regard to findings of excusable error in a situation where an action has been brought before the EU judicature out of time, following the exhaustion of an internal appeal procedure which, in this specific case and in accordance with the case-law, was not applicable (see, to that effect, judgments of 14 June 1972, Marcato v Commission, 44/71, EU:C:1972:53, paragraphs 5 to 9, and of 5 April 1979, Orlandi v Commission, 117/78, EU:C:1979:109, paragraphs 9 to 11). 141 It follows that the applicant cannot rely on any excusable error that might justify a derogation, in the present case, from the obligation to comply with the prescribed time limit for bringing proceedings. 142 Consequently, the alternative claim for annulment of the initial decision must also be dismissed, as inadmissible, and the action must therefore be dismissed in its entirety. Costs 143 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 144 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by ACER. On those grounds, THE GENERAL COURT (Third Chamber, Extended Composition), hereby: 1. Dismisses the action; 2. Orders RWE Supply & Trading GmbH to pay the costs. van der Woude Škvařilová-Pelzl Nõmm Steinfatt Kukovec Delivered in open court in Luxembourg on 25 June 2025. [Signatures] Contents Background to the dispute Forms of order sought Law The principal claim, seeking annulment of the contested decision The second plea, alleging infringement of the fourth paragraph of Article 263 TFEU The third plea, alleging infringement of the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law The first plea, alleging infringement of Article 28(1) of Regulation 2019/942 The alternative claim, seeking annulment of the initial decision Costs * Language of the case: German.