Judgment;Abstract — ECLI:EU:T:2025:941
Date: 2025-10-08
Language of the case: English
Court formation: Third Chamber, Extended Composition
Procedure: Action for annulment - unfounded;Action for annulment - successful

summary of those pleas in law. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (see, to that effect, order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20 and the case-law cited). The application must, accordingly, specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 131 and the case-law cited; order of 27 November 2020, PL v Commission, T‑728/19, not published, EU:T:2020:575, paragraph 64). 47 Under the second part of the plea, the applicant, first, claims to have a contractual right to participate in the IN Platform under the Principal Agreement and the IGCC Cooperation Agreement. Second, it submits that the Implementation Framework, as set out in the annex to Decision 16/2022, has the effect of depriving it of that contractual right. Third, it deduces from an application by analogy of the position of the General Court in the judgments of 11 July 2007, Alrosa v Commission (T‑170/06, EU:T:2007:220, paragraph 39), and of 12 December 2018, Groupe Canal + v Commission (T‑873/16, EU:T:2018:904, paragraphs 22 to 27), that Decision 16/2022 brought about a distinct change in its legal position. 48 It must be held that that line of argument is fully in conformity with Article 76(d) of the Rules of Procedure. 49 What ACER is challenging relates rather to the applicant’s lack of evidence of the factual premiss on which that line of argument is based, namely the existence of a contractual right to participate in the IN Platform under the Principal Agreement and the IGCC Cooperation Agreement, in so far as it did not provide a copy of those documents as an annex to its application. 50 It is correct that the applicant did not produce a copy of those agreements as an annex to its application. In its reply, it justified not doing so on the basis of the complexity and length of those documents and on the basis that such production was allegedly unnecessary, but made an offer of evidence to that effect. Following a measure of organisation of procedure, the applicant provided the Court with a copy of the IGCC Cooperation Agreement and of the Principal Agreement. 51 Pursuant to Article 85(1) of the Rules of Procedure, ‘evidence produced or offered shall be submitted in the first exchange of pleadings’ and, according to Article 85(2), ‘in reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified.’ 52 It must be stated that the applicant justified, within the meaning of Article 85(2) of the Rules of Procedure, the delay in its offer of evidence by stating, in essence, that it considered that it was not necessary for it to demonstrate that it had a contractual right to participate in the IN Platform. 53 In that regard, it should be noted that, from the time of its notice of appeal before the Board of Appeal, the applicant has maintained that Decision 16/2022 affected its contractual rights, as the Board of Appeal summarised in paragraph 44 of the contested decision. However, the Board of Appeal did not call into question the existence of those contractual rights, but rejected that argument as irrelevant, making clear in paragraph 64 of the contested decision that historical participation in platform projects or contractual arrangements could not be relied upon in a way that undermined the specific provisions laid down in Regulation 2017/2195. The applicant could therefore reasonably take the view that it was not required to prove that it had those contractual rights, the existence of which had not been called into question by the Board of Appeal. 54 ACER’s plea of inadmissibility must therefore be rejected. Examination of the merits of the plea 55 Article 28 of Regulation 2019/942, headed ‘Decisions subject to appeal’, states, in paragraph 1 thereof, that any ‘natural or legal person, including the regulatory authorities, may appeal against a decision referred to in point (d) of Article 2 which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person’. 56 Since that provision is modelled on that relating to actions for annulment before the Court of Justice and, more specifically, on the first part of the fourth paragraph of Article 263 TFEU, it must be interpreted in the light of the case-law relating to the latter provision. 57 In that regard, it should be borne in mind, first, that where an action for annulment is brought by a natural or legal person, the action lies only if the binding legal effects of the contested act are capable of affecting the interests of the applicant by bringing about a distinct change in the applicant’s legal position. Second, as regards, more specifically, an action for annulment brought against an act that has not been addressed to the applicant, that requirement overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU, according to which the contested act must be of direct and individual concern to the applicant (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraphs 37 and 38). 58 As regards the condition of direct concern, it is settled case-law that the condition that the act against which the action is brought must be of direct concern to a natural or legal person requires that act to affect directly the legal situation of that person and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from EU rules without the application of other intermediate rules (see judgment of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraph 47 and the case-law cited). 59 As regards individual concern, in accordance with settled case-law, a natural or legal person other than the person to whom an act is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if the act in question affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed (judgment of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 223; see also judgment of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 44 and the case-law cited). 60 In the first place, it should be noted that the finding in the contested decision that the applicant’s legal position is directly governed by Regulation 2017/2195 and not by Decisions 13/2020 and 16/2022 is not capable of substantiating the conclusion that the action brought before it is inadmissible. 61 Since Article 22(1) of Regulation 2017/2195 provides for the submission and adoption of a proposal for the Implementation Framework and it is on that legal basis that Decision 16/2022 was adopted, the applicant was entitled to challenge its legality, provided that the conditions laid down in the case-law referred to in paragraphs 57 to 59 above were satisfied, irrespective of the scope of Regulation 2017/2195. The fact that, for the reasons set out in response to the first plea, Regulation 2017/2195 does not provide for the possibility of the applicant participating in the IN Platform was a relevant consideration for the examination of the substance of the action, but not for the assessment of its admissibility. 62 In the second place, as regards the question whether the Board of Appeal should have found that Decision 16/2022 was of direct and individual concern to the applicant, it should be noted, first, that the applicant’s assertion that it is a party to the Principal Agreement and to the IGCC Cooperation Agreement and, as regards the latter agreement, that it is a ‘participating member’ thereof, that is to say, that it uses the IGCC for netting purposes and has done so since March 2012, is factually correct. 63 Second, it is common ground, as is apparent from Article 2(1)(f) of the Implementation Framework in the versions resulting from both Decision 13/2020 and Decision 16/2022, that the IGCC is the implementation project that is to evolve into the IN Platform. 64 Furthermore, the adoption of an implementation framework for the IN Platform pursuant to Article 22(1) of Regulation 2017/2195 has not made the contracts to which the applicant is a party irrelevant, since those contracts continue to govern the operation of that platform in line with that implementation framework. Thus, it follows from a reading of the preamble to the Principal Agreement, common to all the platforms provided for by Regulation 2017/2195, that that regulation seeks to determine the framework for the reciprocal obligations of the parties concerning the development, maintenance and operation of those platforms in accordance with the implementation frameworks adopted under that regulation. Furthermore, as regards, more specifically, the IGCC Cooperation Agreement, it is recalled in paragraph 6 of its preamble that it constitutes the implementation project for the establishment of the IN Platform and, in paragraph 8 of that preamble, that it must comply with Regulation 2017/2195 and with the implementation framework adopted pursuant to Article 22(1) thereof. 65 Third, it must be stated that it was not clear from the Implementation Framework as annexed to Decision 13/2020 that the applicant could not continue to participate in the IN Platform on the basis of its contractual rights and that it could therefore consider that its legal position was not affected by Decision 13/2020. The wording of Article 2(1)(j) of the Implementation Framework (see paragraph 7 above) then defined a ‘member TSO’ by the fact that it joined the IN Platform and expressly included ‘TSOs from multi-TSO [load-frequency control] areas from different Member States or third countries’ and merely defined a ‘participating’ TSO as ‘any member TSO using the IN Platform in order to operate the imbalance netting process for intended exchange of balancing energy’. 66 Furthermore, while, in so far as the Implementation Framework was adopted under Article 22(1) of Regulation 2017/2195, the exact meaning of its provisions had to be determined in the light of that regulation, an interpretation in conformity with that regulation cannot be regarded as having been capable of dispelling any doubt as to whether the applicant could continue to participate in the IN Platform on the basis of its contractual rights. First, Article 1 of Regulation 2017/2195 had not, at that time, been interpreted by the Courts of the European Union. Second, the way in which that regulation was drafted could have led the applicant to believe that it was able to continue to participate in the IN Platform. This is particularly true of the fact that Article 1(2) does not refer only to EU TSOs, the fact that the IN Platform does not come within the concept of ‘European platforms for the exchange of standard products for balancing energy’ used in Article 1(6) thereof, and the fact that Article 23(3) of that regulation refers to ‘third countries participating in the European platforms’. 67 In that regard, that doubt cannot be regarded as having been dispelled, as at the date on which Decision 13/2020 was adopted, by the informal positions taken by the Commission and ACER. First, as regards the letter from the Deputy Director-General of the Commission of 1 July 2020 sent to certain TSOs, suffice it to state that that letter concerned a different issue from whether the applicant could participate in the platforms covered by Regulation 2017/2195, namely that of the exclusion of third-country TSOs – including Switzerland – from the regional coordination centres provided for by Article 35 of Regulation 2019/943, and contained no reference to either Regulation 2017/2195 or the IN Platform. Second, as regards ACER’s letter to ENTSO-E of 24 November 2021, while that letter explicitly concerns the fact that the applicant was unable to participate in the platforms provided for by Regulation 2017/2195, it was issued after the expiry of the deadline for lodging an appeal against Decision 13/2020 with the Board of Appeal. 68 It was only with the adoption of Decision 16/2022 that ACER adopted a formal position explicitly excluding the possibility of the applicant participating in the IN Platform. In Article 2(1)(j) of the Implementation Framework (see paragraph 10 above), it is now explicitly stated that only TSOs to which Regulation 2017/2195 applies come within the concept of ‘member TSO’. 69 Consequently, following Decision 16/2022, the applicant can no longer continue to participate in the IN Platform under the Principal Agreement and the IGCC Cooperation Agreement. Accordingly, that decision must be regarded as depriving the applicant of the exercise of its contractual rights and, therefore, as directly affecting its legal position within the meaning of the case-law cited in paragraph 58 above. 70 Similarly, the applicant must be regarded as being affected by Decision 16/2022 by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons within the meaning of the case-law cited in paragraph 59 above. 71 As pointed out in paragraph 63 above, since the IGCC is, according to the Implementation Framework itself, the project which evolves into the IN Platform, the applicant, as a participant in that platform since 2012, is in a different situation from other third-country TSOs which have not been entitled to participate. 72 In addition, the applicant, as the sole Swiss TSO, is in a different situation from TSOs from other third countries, since Switzerland has the geographical uniqueness of being, de facto, surrounded by EU Member States. From the perspective of the purpose of Regulation 2017/2195, as set out in Article 1(1) of that regulation, namely to lay down ‘a detailed guideline on electricity balancing including the establishment of common principles for the procurement and the settlement of frequency containment reserves, frequency restoration reserves and replacement reserves and a common methodology for the activation of frequency restoration reserves and replacement reserves’, it must be held that that is a factual situation which differentiates the applicant from TSOs located in other third countries. 73 In the light of the foregoing, it must be concluded that Decision 16/2022 was of direct and individual concern to the applicant, with the result that, in accordance with the case-law cited in paragraph 57 above, that decision produced binding legal effects capable of affecting its interests. 74 The Board of Appeal therefore infringed Article 28(1) of Regulation 2019/942 by holding that the appeal before it was inadmissible. 75 The second plea must therefore be upheld and, without it being necessary to examine the third plea, the contested decision must be annulled. Costs 76 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. In the present case, since ACER has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant. 77 Under Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. On those grounds, THE GENERAL COURT (Third Chamber, Extended Composition) hereby: 1. Annuls Decision A-009-2022 of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) of 29 June 2023; 2. Orders ACER to bear its own costs and to pay those incurred by Swissgrid AG; 3. Orders the European Commission to bear its own costs. Škvařilová-Pelzl Nõmm Steinfatt Kukovec Meyer Delivered in open court in Luxembourg on 8 October 2025. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English.