62021CC0046
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 15 September 2022 (
1
)
Case C‑46/21 P
European Union Agency for the Cooperation of Energy Regulators (ACER)
v
Aquind Ltd
(Appeal – Energy – Regulation (EC) No 713/2009 – Decision of ACER refusing a request for exemption relating to new electricity interconnectors – Appeal before the Board of Appeal of ACER – Function, composition, powers and length of the proceedings of the Board of Appeal of ACER – Intensity of the review – Article 17 of Regulation (EC) No 714/2009 – Exemption scheme for new electricity interconnectors – Article 12 of Regulation (EU) No 347/2013 – General scheme for the financing of transnational energy infrastructure – Financing of projects of common interest – Cross-border cost allocation)
1.
This appeal will enable the Court of Justice to rule on the intensity of the review which boards of appeal of EU agencies have to undertake when adjudicating on challenges brought before them.
2.
In particular, the Court of Justice will have to endorse or reject the position adopted by the General Court, which, in the judgment under appeal, (
2
) required the Board of Appeal of the Agency for the Cooperation of Energy Regulators (‘ACER’) (
3
) to exercise a scrutiny of decisions adopted by that agency which goes beyond an examination of manifest errors.
3.
Although there is already settled case-law on the powers of the boards of appeal of other bodies, such as the European Union Intellectual Property Office (EUIPO) and the Community Plant Variety Office (CPVO), the same is not true of litigation before the other boards of appeal, more and more of whose decisions are being referred to the General Court. (
4
) Hence the significance of this appeal. (
5
)
4.
Forming the backdrop to the dispute is a decision by ACER (No 05/2018) refusing to exempt the construction of a connecting infrastructure linking the UK and French electricity transmission networks from certain obligations imposed by the rules on the liberalisation of the electricity market.
5.
That decision (later upheld by the Board of Appeal of ACER in its Decision A-001-2018) applied Article 17(1) of Regulation (EC) No 714/2009, (
6
) in conjunction with the general scheme for the financing of energy infrastructure projects laid down in Article 12 of Regulation (EU) No 347/2013. (
7
)
I. Legal framework
A.
Regulation No 713/2009
6.
Article 19 (
8
) provides:
‘1.   Any natural or legal person, including national regulatory authorities, may appeal against a decision referred to in Articles 7, 8 or 9 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.
…
4.   If the appeal is admissible, the Board of Appeal shall examine whether it is well-founded. It shall invite the parties as often as necessary to the appeal proceedings to file observations on notifications issued by itself or on communications from the other parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make … oral presentations.
5.   The Board of Appeal may, in accordance with this Article, exercise any power which lies within the competence of the Agency, or it may remit the case to the competent body of the Agency. The latter shall be bound by the decision of the Board of Appeal.
…’
7.
Article 20(1) states:
‘An action may be brought before the Court of First Instance or the Court of Justice, in accordance with Article 230 of the Treaty, contesting a decision taken by the Board of Appeal or, in cases where no right lies before the Board of Appeal, by the Agency.’
B.
Regulation No 714/2009
8.
Article 17 provides:
‘1.   New direct current interconnectors may, upon request, be exempted, for a limited period of time, from the provisions of Article 16(6) of this Regulation and Articles 9, 32 and Article 37(6) and (10) of Directive 2009/72/EC [ (
9
)] under the following conditions:
(a)
the investment must enhance competition in electricity supply;
(b)
the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted;
(c)
the interconnector must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that interconnector will be built;
(d)
charges are levied on users of that interconnector;
(e)
since the partial market opening referred to in Article 19 of Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity [(OJ 1997 L 27, p. 20)], no part of the capital or operating costs of the interconnector has been recovered from any component of charges made for the use of transmission or distribution systems linked by the interconnector; and
(f)
the exemption must not be to the detriment of competition or the effective functioning of the internal market in electricity, or the efficient functioning of the regulated system to which the interconnector is linked.
…
4.   The decision on the exemption under paragraphs 1, 2 and 3 shall be taken on a case-by-case basis by the regulatory authorities of the Member States concerned. An exemption may cover all or part of the capacity of the new interconnector, or of the existing interconnector with significantly increased capacity.
Within two months from the date on which the request for exemption was received by the last of the regulatory authorities concerned, the Agency may submit an advisory opinion to those regulatory authorities which could provide a basis for their decision.
In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the interconnector. When deciding those conditions, account shall, in particular, be taken of additional capacity to be built or the modification of existing capacity, the time-frame of the project and national circumstances.
Before granting an exemption, the regulatory authorities of the Member States concerned shall decide upon the rules and mechanisms for management and allocation of capacity. Congestion-management rules shall include the obligation to offer unused capacity on the market and users of the facility shall be entitled to trade their contracted capacities on the secondary market. In the assessment of the criteria referred to in points (a), (b) and (f) of paragraph 1, the results of the capacity-allocation procedure shall be taken into account.
Where all the regulatory authorities concerned have reached agreement on the exemption decision within six months, they shall inform the Agency of that decision.
The exemption decision, including any conditions referred to in the second subparagraph of this paragraph, shall be duly reasoned and published.
5.   The decision referred to in paragraph 4 shall be taken by the Agency:
(a)
where all the regulatory authorities concerned have not been able to reach an agreement within six months from the date the exemption was requested before the last of those regulatory authorities; or
(b)
upon a joint request from the regulatory authorities concerned.
Before taking such a decision, the Agency shall consult the regulatory authorities concerned and the applicants.
…’
C.
TEN-E Regulation
9.
Article 12 reads:
‘1.   The efficiently incurred investment costs, which excludes maintenance costs, related to a project of common interest falling under the categories set out in Annex II.1(a), (b) and (d) and Annex II.2 shall be borne by the relevant TSO or the project promoters of the transmission infrastructure of the Member States to which the project provides a net positive impact, and, to the extent not covered by congestion rents or other charges, be paid for by network users through tariffs for network access in that or those Member States.
2.   For a project of common interest falling under the categories set out in Annex II.1(a), (b) and (d) and Annex II.2, paragraph 1 shall apply only if at least one project promoter requests the relevant national authorities to apply this Article for all or parts of the costs of the project. For a project of common interest falling under the categories set out in Annex II.2, paragraph 1 shall apply only where an assessment of market demand has already been carried out and indicated that the efficiently incurred investment costs cannot be expected to be covered by the tariffs.
…
3.   For a project of common interest to which paragraph 1 applies, the project promoters shall keep all concerned national regulatory authorities regularly informed, at least once per year, and until the project is commissioned, of the progress of that project and the identification of costs and impacts associated with it.
As soon as such a project has reached sufficient maturity, the project promoters, after having consulted the TSOs from the Member States to which the project provides a significant net positive impact, shall submit an investment request. That investment request shall include a request for a cross-border cost allocation and shall be submitted to all the national regulatory authorities concerned, accompanied by the following:
(a)
a project-specific cost-benefit analysis consistent with the methodology drawn up pursuant to Article 11 and taking into account benefits beyond the borders of the Member State concerned;
(b)
a business plan evaluating the financial viability of the project, including the chosen financing solution, and, for a project of common interest falling under the category referred to in Annex II.2, the results of market testing; and
(c)
if the project promoters agree, a substantiated proposal for a cross-border cost allocation.
…
4.   Within six months of the date on which the last investment request was received by the national regulatory authorities concerned, the national regulatory authorities shall, after consulting the project promoters concerned, take coordinated decisions on the allocation of investment costs to be borne by each system operator for the project, as well as their inclusion in tariffs. The national regulatory authorities may decide to allocate only part of the costs, or may decide to allocate costs among a package of several projects of common interest.
…
5.   National regulatory authorities shall, based on the cross-border cost allocation as referred to in paragraph 4 of this Article, take into account actual costs incurred by a TSO or other project promoter as a result of the investments when fixing or approving tariffs in accordance with Article 37(1)(a) of Directive [2009/72] and Article 41(1)(a) of Directive 2009/73/EC, [ (
10
)] [in so far] as these costs correspond to those of an efficient and structurally comparable operator.
The cost allocation decision shall be notified, without delay, by the national regulatory authorities to the Agency, together with all the relevant information with respect to the decision. …
…
The cost allocation decision shall be published.
6.   Where the national regulatory authorities concerned have not reached an agreement on the investment request within six months of the date on which the request was received by the last of the national regulatory authorities concerned, they shall inform the Agency without delay.
In this case or upon a joint request from the national regulatory authorities concerned, the decision on the investment request including cross-border cost allocation referred to in paragraph 3 as well as the way the cost of the investments are reflected in the tariffs shall be taken by the Agency within three months of the date of referral to the Agency.
…’
II. Background to the dispute and judgment under appeal
10.
The facts that gave rise to the dispute are set out in paragraphs 1 to 13 of the judgment under appeal. Of these I shall highlight the following.
—
Aquind Ltd, a private limited company incorporated in the United Kingdom, is the project promoter for an interconnector (‘the Aquind Interconnector’) connecting the electricity transmission systems in the United Kingdom and France.
—
On 17 May 2017, Aquind submitted a request for an exemption for the Aquind Interconnector to the national regulatory authorities (‘NRAs’) in France and the United Kingdom.
—
Having failed to reach an agreement, those two authorities forwarded the request for an exemption, on 29 November and 19 December 2017 respectively, to ACER, so that it could take the decision itself.
—
On 26 April 2018, the Aquind Interconnector obtained the status of project of common interest.
—
By Decision No 05/2018 of 19 June 2018, ACER refused the request for an exemption.
—
In the opinion of ACER, although Aquind satisfied the conditions for obtaining an exemption listed in Article 17(1)(a) and (c) to (f) of Regulation No 714/2009, it did not meet the condition laid down in Article 17(1)(b).
—
In particular, ACER went on to say, since the interconnector had obtained the status of project of common interest in April 2018, Aquind could have requested the application of Article 12 of the TEN-E Regulation, which provides for the possibility of cross-border cost allocation, but it had not done so.
—
ACER considered that it could not be ruled out that financial support under the regulated scheme might be available for the Aquind Interconnector. It was not therefore able to identify with the required certainty the existence of risk based on the lack of financial support from the regulated scheme.
—
It also found that the revenue risk, the exceptional market risk, the risk linked to direct competition with other interconnectors and congestion revenue uncertainty, the risk of curtailment of the UK network, the risk associated with construction of the Aquind Interconnector, and political and macroeconomic risks, particularly those stemming from Brexit, had not been demonstrated or were insufficient.
—
On 17 August 2018, Aquind brought an appeal against ACER’s decision before its Board of Appeal, which upheld that decision by Decision A-001-2018 of 17 October 2018.
11.
Aquind brought an action for the annulment of the decision of the Board of Appeal before the General Court (T‑735/18).
12.
In the judgment under appeal, the General Court upheld the fourth and ninth pleas of Aquind’s action and, therefore, annulled the decision of the Board of Appeal. It dismissed the action as to the remainder and ordered ACER to pay the costs.
13.
On 27 January 2021, ACER brought the present appeal. (
11
) On 17 April 2021, Aquind itself also brought a cross-appeal against the judgment under appeal.
14.
Following the delivery of the judgment under appeal, the Board of Appeal decided, on 5 February 2021, to reopen the proceedings and held Aquind’s appeal to be inadmissible. (
12
)
15.
In addition, Aquind submitted a cross-border cost allocation request to the NRAs of France, the United Kingdom, Spain and Germany in August and September 2019. The proceedings subsequent to that request were interrupted when the Aquind Interconnector ceased to be regarded as a project of common interest in Delegated Regulation (EU) 2020/389. (
13
)
16.
On 29 May and 2 June 2020, Aquind submitted a second request for partial exemption, (
14
) for 25 years, for the Aquind Interconnector to the French and UK NRAs. On 27 January 2021, those two authorities announced that they could not grant that request following the entry into force of the Trade and Cooperation Agreement concluded between the European Union and the United Kingdom as a result of Brexit.
III. Forms of order sought by the parties
17.
ACER claims that the Court of Justice should:
—
set aside the judgment under appeal in whole or in part;
—
if the Court of Justice considers that the state of the proceedings so permits, dismiss the action at first instance as unfounded;
—
in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;
—
order Aquind to pay the costs of both the appeal proceedings and the proceedings before the General Court.
18.
Aquind contends that the Court of Justice should:
—
dismiss ACER’s appeal;
—
if the Court of Justice upholds any of the arguments put forward by ACER, dismiss the appeal on the other grounds relied on by Aquind, including, where appropriate, those cited in the pleas rejected by the General Court;
—
if the Court of Justice does not uphold the judgment under appeal, annul the decision of the Board of Appeal on the other grounds relied on by Aquind before the General Court;
—
order ACER to pay the costs.
19.
Aquind has also brought a cross-appeal in which it claims that the Court of Justice should:
—
annul the declaration as to the inadmissibility of the third and fourth pleas relied on by Aquind before the General Court;
—
annul the dismissal of the first, fifth, sixth, seventh and eighth pleas relied on by Aquind before the General Court;
—
take account of the arguments put forward in the pleas relied on by Aquind in the present appeal in support of its contention that the Court of Justice should uphold the judgment under appeal;
—
in consequence, annul the decision of the Board of Appeal of ACER on the grounds cited in the application brought by Aquind before the General Court.
20.
ACER has contested the cross-appeal, contending that the Court of Justice should:
—
dismiss the cross-appeal in its entirety;
—
order Aquind to pay its own costs and those incurred by ACER.
IV. ACER’s appeal. Preliminary observation
21.
ACER submits, in essence, that the judgment under appeal contains two errors of law in relation to:
—
the intensity of the review undertaken by the Board of Appeal, in general and in the case at hand, with regard to complex economic and technical assessments;
—
the interpretation of Article 17(1)(b) of Regulation No 714/2009.
22.
I should say here and now that I shall be proposing that the first of the two grounds of appeal relied on by ACER be dismissed, and, by implication, that the judgment under appeal be upheld in so far as it annuls the decision of the Board of Appeal.
23.
On that basis, it might seem unnecessary to analyse the second ground of appeal relied on by ACER, because the decision of the Board of Appeal has been annulled in its entirety.
24.
I shall nonetheless carry out that analysis and shall propose that the second ground of appeal relied on by ACER be upheld, and, thereafter, that the judgment under appeal be set aside in so far only as it relates to the relationship between Article 17 of Regulation No 714/2009 and the general financing scheme set out in Article 12 of the TEN-E Regulation.
25.
It is essential in my view that the Court dispose of the second ground of appeal, as it will otherwise leave unchallenged the position of the General Court (which I consider to be incorrect) on the relationship between the aforementioned two regulations. If that position is not rectified, it might be regarded as being binding on ACER and its Board of Appeal.
26.
In actual fact, there was no need for the General Court (
15
) to analyse the fourth plea in law in support of annulment, once it had upheld the first plea, which in itself rendered the decision of the Board of Appeal invalid. In not stopping at ruling on the latter plea, it stated a position which, to my mind, is more than a mere obiter dictum and is unlawful.
V. First ground of appeal relied on by ACER: intensity of the review undertaken by the Board of Appeal in relation to complex technical and economic assessments
A.
Judgment under appeal
27.
The General Court analyses ‘ACER’s contention that the Board of Appeal’s review of complex technical and economic assessments can be equated to the limited judicial review carried out by the EU judicature’ (paragraph 49 of the judgment under appeal) and rejects it.
28.
It does so, in essence, on the basis of four classes of consideration.
—
The establishment of the Board of Appeal is part of a general tendency to provide for a mechanism for challenging the decisions of the agencies on complex technical, scientific or economic matters which directly affect the legal situation of the parties concerned. That remedy is available to such parties in circumstances in which the power of review of the EU judicature is limited to examining whether the exercise of discretion has been vitiated by a manifest error of appraisal or a misuse of powers. (
16
)
—
The provisions on the organisation and powers of the Board of Appeal support the finding that it was not established ‘to confine itself to a limited review of complex technical and economic assessments’. This follows from: (a) the qualifications of its members; (b) the powers conferred on the Board of Appeal by Article 19(5) of Regulation No 713/2009; and (c) the interpretation of Article 20 of that regulation. (
17
)
—
The rules of organisation and procedure adopted by ACER under Article 19(6) of Regulation No 713/2009 confirm that ACER intended to confer on the Board of Appeal ‘the task of reviewing the decisions of the Agency with an intensity which cannot be confined to that of a limited review’. (
18
)
—
The General Court has already held (in connection with the Board of Appeal of ECHA) that ‘it would be contrary to the very nature of appellate bodies within agencies for those bodies to conduct the limited review reserved to the Courts of the European Union’. The arguments as to the inapplicability of that case-law to the Board of Appeal of ACER (because of the different composition and powers of the two boards) cannot succeed. (
19
)
B.
Arguments of the parties in the appeal brought by ACER
29.
According to ACER, the General Court made several errors of law in relation to the objective pursued by the Board of Appeal, its organisation and its powers, in the light of the context in which it performs its work.
30.
Aquind objects to the arguments to that effect put forward by ACER and endorses the General Court’s position with regard to the requirement that the Board of Appeal should enjoy full powers of review not restricted to manifest errors of assessment.
31.
I shall therefore set out the arguments advanced by ACER in support of its first ground of appeal.
1. The objective
32.
The General Court errs in law and infringes the principles of the separation of powers and sincere cooperation enshrined in Article 13(2) TEU in failing to take into account the objective of putting in place a fast and simplified appeals procedure before the Board of Appeal, as stated in recital 19 of Regulation No 713/2009.
33.
On the contrary, the General Court gave priority to an objective defined by the Court itself and based on the perception of an alleged ‘tendency’ on the part of the EU legislature.
2. The context in which the Board of Appeal works
34.
The General Court errs in law in finding that the provisions on the organisation and powers of the Board of Appeal support the conclusion that the intensity of its review of complex technical and economic assessments could not be limited to manifest errors of assessment (paragraphs 52 to 82 of the judgment under appeal). That error is expressed in the following ways.
—
So far as concerns the composition of the Board of Appeal, the General Court errs in regarding it as being comparable to the Board of Appeal of ECHA (paragraphs 53 and 61, inter alia, of the judgment under appeal).
—
The General Court also errs in taking the view that the selection of members of the Board of Appeal ‘with relevant experience in the energy sector’ means that the EU legislature intended to provide the Board of Appeal with the necessary expertise to allow it to carry out its own assessments of complex technical and economic facts relating to energy (paragraphs 53, 65 and 69 of the judgment under appeal).
—
The General Court is wrong to take the view that the length of proceedings before, and the limited resources available to, the Board of Appeal did not justify a limited review of complex technical and economic assessments (paragraphs 66 and 73 to 82 of the judgment under appeal). (
20
) That finding fails to take into account the principles of institutional balance and the division of powers, since ACER cannot increase its human and financial resources independently.
—
The General Court misinterprets Article 19(5) of Regulation No 713/2009 (paragraphs 54, 55, 59 and 60 of the judgment under appeal). That provision, far from justifying the exercise of a full review by the Board of Appeal, refers only to the possibility of annulling decisions adopted by ACER and replacing them with its own, or remitting the case to ACER, but does not say anything about the intensity of the review undertaken by the Board of Appeal.
—
A further error on the part of the General Court is identified in paragraphs 57, 58 and 60 of the judgment under appeal, since Article 19(1) and Article 20 of Regulation No 713/2009 do not prevent the Board of Appeal from carrying out a limited review. According to ACER, the General Court can always conduct a full judicial review of decisions adopted by the Board of Appeal, even if these are based on a limited review.
3. In the alternative
35.
In the alternative, ACER submits that, even if it is accepted (quod non) that the Board of Appeal should exercise a full review of its decisions where these entail complex technical and economic assessments, the General Court erred (paragraphs 83 to 90 of the judgment under appeal) in finding that the Board of Appeal had not carried out such a full review in this case.
C.
Assessment
36.
The Court of Justice must determine whether the General Court was right or erred in law when it held that the Board of Appeal should have undertaken a full review of ACER’s decision under the powers conferred on it by Regulation No 713/2009.
37.
ACER argued, and continues to submit, that the Board of Appeal is competent to carry out only a limited review confined to evaluating manifest errors of assessment of complex technical and economic decisions.
38.
In my opinion, the General Court’s interpretation is correct. Its reading of Articles 19 and 20 of Regulation No 713/2009 seems to me to be the most appropriate.
39.
That position is supported by the very function of the Board of Appeal and corroborated (or at least not contradicted) by other considerations relating to its composition, its powers, the length of its proceedings and a comparison between it and the boards of appeal of other EU agencies.
1. Function and objectives of the Board of Appeal
40.
Recent years have seen a phenomenon of ‘agencification’ in the administration of the European Union. (
21
) In the course of that process, agencies with the authority to adopt legal acts having a bearing on the legal situation of individuals have been given boards of appeal. ACER has gradually acquired a number of limited decision-making powers and the authority to adopt decisions which impact on the legal situation of individuals, even though its main function is to coordinate the activities of NRAs in the field of energy. (
22
) This explains the initial configuration of its Board of Appeal.
41.
More specifically, if my calculations are not incorrect, eight such boards have been created. (
23
) These do not follow a single model (
24
) but differ in their structure, operation and powers. They do nonetheless share certain common characteristics. (
25
)
—
They are administrative review bodies, internal to the agencies, which enjoy a degree of independence. They are not judicial in nature, although they perform quasi-judicial functions through adversarial proceedings.
—
Being composed of jurists and specialists, they are better able to dispose of appeals against decisions much of the content of which is usually technical.
—
The right of appeal to them is enjoyed by the addressees of decisions adopted by the agencies, as well as the natural and legal persons to whom those decisions are of direct and individual concern.
—
They review decisions, having effects on third parties, on which the secondary legislation creating them gives them competence to adjudicate. The scope of their competence is therefore limited.
—
They are an expeditious, quick, accessible, specialised and inexpensive mechanism for protecting the rights of the addressees of decisions adopted by agencies and of those affected by such decisions.
42.
The importance of some of these boards of appeal has been indirectly reinforced by the introduction of Article 58a into the Statute of the Court of Justice of the European Union. (
26
)
43.
According to that article, the admissibility of appeals brought against decisions of the General Court concerning decisions adopted by certain boards of appeal (
27
) is contingent upon evidence that such an appeal is important to the unity, consistency or development of EU law. (
28
)
44.
I concur with the General Court’s assessment (paragraph 51 of the judgment under appeal) that the establishment of the Board of Appeal of ACER is part of a general tendency, prioritised by the EU legislature, to provide for a mechanism for appealing to an ‘appellate body’ within the agencies of the European Union where those agencies have been given significant decision-making powers over complex technical or scientific matters and those powers directly affect the legal situation of the parties concerned.
45.
As the General Court rightly states, ‘the system of appellate bodies is … an appropriate means of protecting the rights of [the parties concerned] in circumstances where … review by the EU judicature must be limited to examining whether the exercise of a broad discretion in the assessment of complex scientific, technical and economic facts has been vitiated by a manifest error of appraisal’. (
29
)
46.
After all, there would, in my opinion, be little sense, within a framework of activity characterised by the technical and economic complexity of the cases assigned to each agency, in having within the agency concerned a board of appeal not actually able to assess the technical and economic aspects of the decisions adopted by that agency.
47.
It is true that review by the EU judicature must be limited to examining whether the exercise of a broad discretion in the assessment of complex scientific, technical and economic facts is vitiated by a manifest error of appraisal or a misuse of powers. The review so described, however, which is already carried out by the General Court, is not the same as the review that falls to be undertaken by the Board of Appeal, whose specialisation, as I shall explain below, allows it to carry out an in-depth examination of the aforementioned areas and an exhaustive assessment of every detail of the contested decision. (
30
)
48.
It is my view, therefore, that the function of the appellate bodies established within the agencies, so far as concerns reviews of the complex decisions adopted by those agencies, cannot be regarded as comparable to that of the Courts of the European Union. Otherwise, the establishment of the boards of appeal would be redundant, inasmuch as it would unnecessarily duplicate the standard of review incumbent upon the Courts of the European Union.
49.
For that reason, I agree with the General Court when it states that, ‘if the Board of Appeal’s review were to be only limited in nature as regards complex technical and economic assessments, this would mean that the General Court would be carrying out a limited review of a decision which was itself the result of a limited review. It is clear that a system of “limited review of a limited review” fails to offer the guarantees of effective judicial protection which must be afforded to undertakings’. (
31
)
2. Composition of the Board of Appeal
50.
In accordance with Article 18(1) of Regulation No 713/2009, (
32
) the members of the Board of Appeal are to be selected from senior staff of the NRAs, or from other bodies, with relevant experience in the energy sector.
51.
According to Article 18(2) and (3) of Regulation No 713/2009, (
33
) the term of office of those members, who are to be independent in making their decisions and are not to be bound by any instructions, is to be five years and renewable.
52.
The composition of the Board of Appeal thus meets the requirements necessary to enable it to carry out a full and unlimited review of decisions adopted by ACER. If its members must have prior experience in the energy sector, this is because they have (or should have) the technical knowledge necessary to enable them to carry out a detailed adjudication of appeals. This point was emphasised by the General Court, whose view I share. (
34
)
53.
ACER argues that senior staff from the NRAs do not necessarily have such technical knowledge and expertise, since it is the middle managers in the NRAs who make judgements on complex technical and economic matters.
54.
I am not convinced by that argument. Selecting members of the Board of Appeal who do not have relevant experience in the energy sector and lack the required technical knowledge would simply not be compliant with Article 18 of Regulation No 713/2009. The fact that ‘middle managers’ also have such knowledge does not mean that senior managers can do without it.
55.
What is more, the composition and profile of the members of the Board of Appeal were not modified by the reform carried out by Regulation 2019/942, Articles 25, 26 and 27 of which largely reproduce Article 18 of Regulation No 713/2009. The very purpose of that reform was to strengthen the Board of Appeal so as to enable it to perform its tasks more satisfactorily.
56.
Neither am I convinced by ACER’s argument concerning the bearing on the dispute of the working arrangements of members of the Board of Appeal, who, until 2019, performed their duties without pay and in an honorary capacity. According to ACER, those arrangements allowed members to perform other work which detracted from the time they were able to devote to the Board of Appeal, and it was therefore only logical that that they should confine themselves to undertaking a limited and faster review of decisions adopted by the agency.
57.
The fact that members were not paid and did not work exclusively for the Board of Appeal until 2019 does not justify any reduction of their review duties. Those features of their work can be explained by, inter alia, ACER’s less extensive decision-making powers prior to 2019 and, above all, the limited number of appeals which, according to initial calculations, were brought before the Board. (
35
)
58.
As a result of the increase in the number of cases, members of the Board of Appeal are now paid (
36
) and the selection process requires candidates to have more extensive general legal knowledge alongside their technical credentials. (
37
)
59.
The strengthening of the Board of Appeal’s human resources would at the very most have highlighted that its initial configuration was not entirely adequate for the purposes of performing the tasks which Regulation No 713/2009 had entrusted to it. (
38
) That shortcoming, however, does not support the proposition that the Board of Appeal had to relinquish its primary duty in order to confine itself to a limited review of decisions adopted by the agency.
60.
In the light of the increased powers vested in ACER as part of the amendments to the rules on energy in the European Union, which were put into effect after 2019 (
39
) (and are not applicable to the facts of this dispute), and the reform of ACER itself under Regulation 2019/942, strengthening its Board of Appeal puts it in an ideal position to undertake a full review of decisions adopted by the agency.
3. Length of the proceedings
61.
ACER considers that the period within which the Board of Appeal was required to adjudicate upon appeals (two months, according to Article 19(2) of Regulation No 713/2009) did not allow it to carry out an in-depth examination. In its submission, the General Court erred in law in taking the contrary view.
62.
I concur with the General Court’s reasoning and I am of the opinion that it did not err in law in its interpretation of that provision.
63.
It is true that the period for adjudicating on the appeal was short, (
40
) in that adversarial proceedings in which parties could be invited to file observations on communications from other parties and to make oral presentations before the Board of Appeal had to be conducted in two months.
64.
Nonetheless, as the General Court rightly states (paragraph 74 of the judgment under appeal), the length of that period is not enough to indicate that the legislature intended to limit the review undertaken by the Board of Appeal. There are several arguments to support the contrary proposition.
—
Their technical knowledge and expertise make it easier for the members of the Board of Appeal to gain a quick understanding of appeals and to adjudicate on them promptly.
—
Article 19 of Regulation No 713/2009 provides, in essence, that the Board of Appeal must examine whether the arguments put forward by the appellant demonstrate the existence of an error affecting the contested decision. The Board of Appeal is to confine its actions to assessing whether the grounds relied on by the appellant are such as to demonstrate the contested decision is vitiated by errors. It is required only to verify the complex technical and economic matters raised in those grounds.
—
The Board of Appeal is not required to carry out an ex novo review of the factual and legal aspects of the decision adopted by ACER. It differs in this regard from the boards of appeal of EUIPO and CPVO.
—
According to Article 19(5) of Regulation No 713/2009, the Board of Appeal was able to ‘exercise any power which lies within the competence of the Agency, or it may remit the case to the competent body of the Agency’. It was therefore open to the Board of Appeal to uphold the appeal and remit the case to ACER for the adoption of a new decision.
65.
That interpretation is not undermined by the fact that Regulation 2019/942 extended to four months the period available to the Board of Appeal for the adjudication of appeals. (
41
) That extension shows only that the legislature may have been unrealistic in laying down the two-month period in Regulation No 713/2009, but it does not support the inference that the Board of Appeal must undertake only a limited review of decisions adopted by ACER.
4. Powers of the Board of Appeal
66.
Article 19(5) of Regulation No 713/2009 provided, as I have already said, that the Board of Appeal was able to exercise any power that lay with ACER or to remit the case to the competent body of ACER, which was to be bound by the decision of the Board of Appeal.
67.
As the General Court rightly notes (paragraph 54 of the judgment under appeal), the Board of Appeal could, if it upheld the appeal, assume the discretion vested in ACER to examine whether the information available to it enabled it to adopt its own decision, as an alternative to remitting the case to ACER for a new decision.
68.
In accordance with Article 20(1) of Regulation No 713/2009, the decision against which an action can be brought before the General Court is that of the Board of Appeal, not that adopted by ACER. That is what happened in this case, in that Aquind had no standing to challenge ACER’s decision directly before the EU judicature, (
42
) as the General Court reasoned in paragraph 58 of the judgment under appeal.
69.
That twofold finding confirms that the Board of Appeal could not restrict its actions to undertaking a limited review of ACER’s decision along the lines of the judicial review conducted by the EU judicature.
70.
The Board of Appeal, as I have said, has technical knowledge enabling it to undertake a full review that is not limited to scrutinising manifest errors in decisions adopted by ACER. That full review makes it possible at a later stage for the General Court to carry out the judicial review incumbent upon it.
71.
The foregoing considerations are not tarnished by the – irrelevant – error made by the General Court (paragraph 60 of the judgment under appeal) in referring to the ‘possible incompatibility’ of ACER’s Decision of 5 October 2019 (
43
) with Regulation No 713/2009.
72.
The General Court was wrong to make that assessment because the amendment of ACER’s Decision No 1/2011 came in response to the prior adoption of Regulation 2019/942. Article 21 of Decision No 1/2011, as amended, simply reproduces the content of Article 28(5) of Regulation 2019/942. (
44
) The incompatibility mentioned did not therefore exist.
73.
Nonetheless, that error by the General Court occurs in an obiter dictum line of reasoning in reference to a legislative amendment not applicable ratione temporis to the dispute. It therefore has no bearing on the final decision in so far as this relates to the intensity of the review undertaken by the Board of Appeal.
5. Comparison of the Board of Appeal of ACER with those of other EU agencies
74.
In my view, the comparison which the General Court draws between the intensity of the review undertaken by the Boards of Appeal of ECHA and ACER respectively, as the basis for extending to the latter its case-law on the level of scrutiny to be applied to the decisions of the former, is sound.
75.
The General Court, after reproducing its position with respect to the Board of Appeal of ECHA (paragraph 61 of the judgment under appeal), (
45
) states that this is also applicable to the Board of Appeal of ACER.
76.
ACER’s criticism of this part of the judgment under appeal rests on the differences in the objectives, appeal proceedings (in particular, the timeframes for adjudication) and rules governing the staff of the Boards of Appeal of ACER and ECHA. Such disparities, it argues, invalidate the comparison carried out by the General Court.
77.
Those differences, however, do not affect the crux of the General Court’s position, applicable to the Boards of Appeal of both ECHA and ACER, that it is contrary to the nature of the appellate bodies established within the agencies for those bodies to exercise a review limited to the review of manifest errors, and for them not to carry out a full evaluation of the complex technical, scientific and economic assessments contained in contested decisions.
78.
Since, in the light of all of the foregoing, it seems to me that the General Court’s aforementioned position is not vitiated by any error of law, this part of the first ground of appeal must also be dismissed.
6. Argument in the alternative: the Board of Appeal undertook a full review
79.
In the alternative, ACER submits that, even if it is accepted (quod non) that the Board of Appeal should undertake a full review that is not limited to manifest errors in decisions entailing complex technical and economic assessments, the General Court erred in law in stating that the Board of Appeal had not carried out such a review in this case.
80.
This argument in the alternative does not take into account, however, that the Board of Appeal itself stated (paragraphs 47 and 52 of its decision) that it would confine itself to undertaking a review limited to manifest errors of assessment so far as concerns the exemption requested by Aquind.
81.
The Board of Appeal makes that assertion as a statement of principle that will govern its intervention. There was therefore no need to conduct a detailed analysis of paragraphs 70 to 74 and 94 to 98 of ACER’s decision, given that the Board of Appeal had itself begun by saying that its review would be limited to manifest errors of assessment. In short, the General Court did not err in law in this regard.
82.
In the light of the foregoing considerations, ACER’s first ground of appeal must be dismissed.
VI. ACER’s second ground of appeal: infringement of Article 17(1)(b) of Regulation No 714/2009
A.
Judgment under appeal
83.
In the view of the General Court, the approach taken by the Board of Appeal in relation to the exemption was unjustified in the light of both Regulation No 714/2009 and the TEN-E Regulation. It supported that assertion, in essence, by reference to the following arguments.
—
The Board of Appeal introduced an additional condition which is not among those listed in Article 17 of Regulation No 714/2009.
—
There is no legislative provision which permits the inference that the legislature accorded priority to one scheme over the other. The two schemes can be applied alternately.
—
The essential criterion that must inform the examination of a request for an exemption is the ‘level of risk attached to the investment’ referred to in Article 17(1)(b) of Regulation No 714/2009, which the Board of Appeal did not apply.
—
Use of the cross-border cost allocation procedure is no guarantee that the risks to which interconnectors are exposed will be removed.
B.
Arguments of the parties
84.
ACER accuses the General Court of having made a ‘fundamental’ error of law in having held (in particular in paragraphs 105 and 106 of the judgment under appeal) that there is no legislative provision which permits the inference that the legislature accorded priority to the TEN-E Regulation over the exemption scheme provided for in Regulation No 714/2009.
85.
That error of law derives from the General Court’s misinterpretation of the relationship between Article 12 of the TEN-E Regulation and Article 17(1)(b) of Regulation No 714/2009. In the light of the wording, objective and context of the latter regulation and of its predecessor, Regulation (EC) No 1228/2003, (
46
) ACER submits that the TEN-E Regulation establishes the general scheme and Regulation No 714/2009 introduces an exemption scheme which must be interpreted strictly. These are not equal schemes between which project promotors have the freedom to choose, as the General Court states.
86.
A second error of law which ACER criticises the General Court for having made in the judgment under appeal (paragraphs 101 to 104) is to have maintained that, although the possibility of funding under Article 12 of the TEN-E Regulation may be a relevant criterion for determining the level of risk attached to the investment, that criterion cannot be regarded as an essential condition for obtaining an exemption. (
47
)
87.
ACER takes the view that, since the unavailability of sufficient economic support under the regulated scheme is a basic factor in determining whether or not the investment risk is covered, that analysis is implicit in Article 17(1)(b) of Regulation No 714/2009 and is not an additional condition for the grant of an exemption for a new interconnector.
88.
Finally, ACER contends that the General Court erred in law (paragraphs 108 and 109 of the judgment under appeal) in stating that Aquind could not be denied the exemption under Article 17 of Regulation No 714/2009 on the presumption that the request for support under Article 12 of the TEN-E Regulation would lead to a financial advantage that would enable the risk to be neutralised.
89.
In the opinion of ACER, the possibility of obtaining funding for the interconnector through cross-border cost allocation was not hypothetical but based on the Aquind Interconnector’s status as a project of common interest and on the costs, capacity and benefits analysis carried out by ACER. This is the very risk analysis which Article 17(1)(b) of Regulation No 714/2009 requires for the purposes of determining whether the financial risks attached to the interconnector can be limited by means other than granting the exemption from the general scheme.
90.
Aquind refutes ACER’s arguments and takes the view that the General Court did not make any of the errors of law of which it is accused.
C.
Assessment
91.
The issue is best understood by first looking at the relationship between the two financing schemes and then examining the arguments put forward under this second ground of appeal.
1. Financing of electricity interconnectors
92.
Trans-European direct-current electricity interconnectors are key infrastructures for the development of the European electricity market. (
48
) They connect national electricity systems by supplying them with electricity and ensuring that they are not isolated, while at the same time fostering the creation of an integrated European electricity market characterised by greater competition and better prices for consumers. (
49
)
93.
Electricity interconnectors are large-scale, technologically complex works that require substantial investment and take several years to complete. It is because of their characteristics as such that the TEN-E Regulation was adopted and the concept of projects of common interest was created as a means of directing funding towards them. (
50
)
94.
Article 1 of the TEN-E Regulation (
51
) refers to the identification of projects of common interest necessary to implement priority corridors and areas in matters of trans-European energy infrastructure. In addition to addressing their identification and implementation, the TEN-E Regulation lays down rules to facilitate and streamline the grant of permits for those projects, and to ensure public participation in them.
95.
Of particular relevance in this case is Article 12 of the TEN-E Regulation, which contains rules and guidance for the cross-border allocation of costs, in the light of the risks to projects of common interest.
96.
In accordance with Article 12(3), (4), (5) and (6) of the TEN-E Regulation:
—
as soon as a project falling under the categories in Annex II, point 1(a), (b) and (d), and point 2, has reached sufficient maturity, its promotor or promotors are to submit to the relevant NRAs an ‘investment request [which] shall include a request for cross-border cost allocation’;
—
after consulting the promotor or promotors of the project, the NRAs are to take ‘coordinated decisions on the allocation of the investment cost to be borne by each system operator for the project, as well as their inclusion in tariffs’;
—
the NRAs are to notify ACER without delay of ‘the cost allocation decision … together with all the relevant information with respect to the decision’;
—
where the NRAs do not reach agreement on the investment request within six months, they are to inform ACER without delay, which may take ‘the decision on the investment request including cross-border cost allocation … as well as the way the cost[s] of the investments are reflected in the tariffs’.
97.
The TEN-E Regulation was adopted in 2013 and EU law had not previously contained an equivalent provision setting out a similar scheme for the financing of trans-European energy infrastructure. (
52
)
98.
For that reason, Article 12(9) thereof provides that ‘this article shall not apply to projects of common interest having received [ (
53
)]: … (b) an exemption from Article 16(6) of Regulation [No 714/2009] pursuant to Article 17 of Regulation [No 714/2009]; … or (d) an exemption under Article 7 of Regulation [No 1228/2003]’.
99.
The second subparagraph of Article 13(1) of the TEN-E Regulation, concerning incentives for this type of trans-European energy infrastructure, is open to the same interpretation.
100.
This set of rules is not intended to offer a choice between the application of the regulated scheme for the financing of electricity interconnectors, on the one hand, and the application of the exemption scheme, on the other.
101.
Article 12(9) and the second subparagraph of Article 13(1) of the TEN-E Regulation try to ensure that electricity interconnectors which have benefited from the exemption scheme under Article 17 of Regulation No 714/2009 (and Article 7 of Regulation No 1228/2003) do not qualify for financing under the general scheme established by Article 12 of the TEN-E Regulation.
102.
So far as concerns new electricity interconnectors planned after the entry into force of the TEN-E Regulation, however, Article 12(9) and the second subparagraph of Article 13(1) thereof are irrelevant, since these are provisions which could be described as ‘transitional’. (
54
)
103.
The relationship between the regulated scheme and the exemption scheme is corroborated by the drafting history of Regulation No 1228/2003, which the General Court did not take into account. The Court of Justice has used that drafting history before to interpret Articles 16 and 17 of Regulation No 714/2009. (
55
)
104.
Thus, the common position of the Council on the adoption of Regulation No 1228/2003 included the following declaration by the Commission on the exemption scheme: ‘The Commission emphasises its intention of interpreting this exemption restrictively in order to ensure that such an exemption is restricted to the minimum necessary, in particular for the duration of the exemption and the relevant capacity of the project to which the exemption relates, in order to achieve the objective of financing investments of an exceptional level of risk’. (
56
) The restrictive interpretation of the exemption and its use in very limited situations is reiterated in point C 4 of the common position. (
57
)
105.
The Commission’s Directorate-General for Energy and Transport published an interpretative note on Regulation No 1228/2003, in order to facilitate its application by the NRAs, in which it argues that the exemption scheme is exceptional. (
58
) The same argument was made in the 2009 Commission Staff Working Document. (
59
)
106.
The drafting history and the Commission’s explanatory documents thus highlight the exceptional nature of the exemption scheme under Article 17 of Regulation No 714/2009 and its ancillary application in relation to the general scheme for the financing of electricity interconnectors provided for in the TEN-E Regulation.
2. Analysis of the ground of appeal
107.
In my opinion, the General Court’s reasoning is vitiated by an error of law, in particular in paragraphs 105 and 106 of the judgment under appeal, inasmuch as it puts two different schemes of law on a par with each other. As I have already said:
—
the TEN-E Regulation establishes the general scheme for the financing of interconnectors constituting projects of common interest;
—
the rules on the exemption provided for in Article 17 of Regulation No 714/2009, on the contrary, make up an exceptional scheme, meaning that promotors are not entitled to choose whether to process their project under one or the other of the two schemes.
108.
In principle, promotors of an electricity interconnector classified as a project of common interest must, in order to secure financial viability status for their project, submit to the general scheme (or the regulated scheme, as ACER calls it) provided for in the TEN-E Regulation, principally in Article 12 thereof.
109.
If they do not obtain support through cross-border cost allocation, promotors can, if appropriate, demonstrate that the level of financial risk attached to their project is such as to justify the grant of an exemption under Article 17 of Regulation No 714/2009.
110.
As I have already said, however, promotors cannot opt for the exceptional exemption scheme directly. To do so would be to subvert the relationship between the latter scheme and the general scheme for financial support for new interconnectors. Under that relationship:
—
the exemption scheme entails a temporary derogation from the general principles governing the use of revenues, the unbundling of transmission systems and transmission system operators, and third-party access to transmission or distribution systems, which are key factors in the liberalisation of the EU electricity market;
—
the general scheme of support for transnational energy infrastructure under the TEN-E Regulation is specifically designed to avoid exemptions for promotors of such works as would have the effect of restricting competition in the EU electricity market;
—
only when financial viability status cannot be achieved through the general financial support scheme does it make sense to grant on an exceptional basis the exemption provided for in Article 17 of Regulation No 714/2009.
111.
That misunderstanding of the relationship between the two schemes gives rise to a new error of law apparent in particular in paragraphs 101 and 102 of the judgment under appeal. In those paragraphs, the General Court argues that the Board of Appeal could not make the submission of a prior request for financial support under Article 12 of the TEN-E Regulation a condition for proving the risk attached to the investment.
112.
It is true that the unavailability of financial support generates an economic risk capable of jeopardising the construction of the interconnector. That factor, as the General Court itself concedes, must be taken into account by ACER when applying the condition as to the existence of a risk attached to the investment such as to justify an exemption from the regulated scheme as provided for in Article 17(1)(b) of Regulation No 714/2009.
113.
Consequently, ACER’s verification of the existence or otherwise of financial support through the general scheme is necessary in order to verify the risk and grant or refuse the exemption. (
60
) This is what ACER did and its Board of Appeal confirmed that that examination satisfied the requirements of Article 17(1) of Regulation No 714/2009.
114.
However, it is not correct to say, as the General Court wrongly held, that, in taking that approach, ACER adds another condition to those already laid down in Article 17(1) of Regulation No 714/2009 for the grant of an exemption.
115.
What is more, ACER and its Board of Appeal did not require Aquind to submit a request for financing under the regulated scheme. They simply assessed to what extent the economic risk attached to construction of the Aquind Interconnector would have been reduced if financing had been obtained under the regulated scheme. As well as estimating costs and benefits and other factors, ACER assessed (
61
) whether the requirement that ‘the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted’ was met.
116.
It is my view, therefore, that ACER’s analysis, as confirmed by its Board of Appeal, was appropriate and, contrary to the finding of the General Court, did not have the effect of introducing a condition that does not appear in the conditions listed in Article 17(1) of Regulation No 714/2009 for the grant of an exemption.
117.
Similarly, the reasoning set out by the General Court in paragraphs 107 to 110 of the judgment under appeal is vitiated by an error. Its two main arguments are as follows.
—
The approach taken by the Board of Appeal and ACER was primarily based on hypothetical reasoning, namely on the ‘possibility’ that a request under Article 12 of the TEN-E Regulation would result in financial support for Aquind, and on the fact that it ‘could not be ruled out’ that a favourable decision under that provision would provide sufficient certainty for potential investors. The advantage of financial support under the regulated scheme could not simply be founded on a presumption or presented as an established fact.
—
The possibility of obtaining financial support under Article 12 of the TEN-E Regulation does not automatically rule out the financial risk attached to the investment. Recourse to the cross-border cost allocation procedure is no guarantee that all the risks to which interconnectors are exposed will be eliminated.
118.
I am not convinced by the first argument. The classification of the Aquind Interconnector as a project of common interest paved the way for its financing under the regulated scheme for the cross-border allocation of costs and incentives provided for in the TEN-E Regulation. Consequently, ACER and its Board of Appeal might have considered financing on that basis to be available to Aquind if it had requested it. (
62
)
119.
In any event, the analysis of the ‘level of risk attached to the investment’, as provided for in Article 17(1)(b) of Regulation No 714/2009, compelled ACER to assess whether the financial risk attached to the project could have been reduced by recourse to other means of financing that operate generally and in preference to the grant of an exemption. As I have already said, such an exemption is, by virtue of its exceptional nature, a solution ‘of last resort’, given its adverse impact on the liberalisation of the common market in electricity.
120.
Neither am I convinced by the General Court’s second argument. The fact (which is established) that the general scheme for financing provided for in the TEN-E Regulation is no guarantee that all of the risks to which interconnectors are exposed will be eliminated cannot lead to the grant of an exemption under Article 17 of Regulation No 714/2009.
121.
Promotors of a project of common interest such as the Aquind Interconnector would only have to refrain from requesting support under the regulated scheme in order to increase the financial risk attached to their project and thus ‘force’ the grant of an exemption. They would effectively be allowed to choose between two schemes of support for this type of infrastructure which are not on a par with each other. The basic error by the General Court which I analysed above re-emerges in this line of reasoning set out in the judgment under appeal.
122.
What is more, the analysis of ‘the level of risk attached to the investment’ would automatically be positive and the very condition laid down in Article 17(1)(b) of Regulation No 714/2009 would be rendered meaningless, if possible delays and uncertainty relating to the grant of financial support under the general scheme provided for in the TEN-E Regulation were deemed to warrant the grant of an exemption.
123.
In the light of the foregoing considerations, I propose that the Court of Justice uphold this ground of appeal, inasmuch as the General Court erred in law in its interpretation of Article 17(1)(b) of Regulation No 714/2009 in conjunction with Article 12 of the TEN-E Regulation.
VII. Aquind’s cross-appeal
124.
In addition to opposing the appeal brought by ACER, Aquind has brought a cross-appeal in which it raises the claims set out in point 19 of this Opinion.
125.
As I have proposed that the Court of Justice dismiss ACER’s first ground of appeal and uphold the judgment of the General Court in so far as it annuls the decision of the Board of Appeal, it will not be necessary to carry out a specific analysis of Aquind’s cross-appeal.
126.
The judgment under appeal must be upheld on the basis of the dismissal of the first ground of appeal, even if the second ground of appeal is accepted. The annulment in full of the decision of the Board of Appeal, on the ground that it undertook a review limited to manifest errors, is thus endorsed. It is neither necessary nor advisable for the Court of Justice to analyse any additional ground for the annulment of that decision, as Aquind requests. Its cross-appeal must therefore be dismissed.
VIII. No need to refer the case back to the General Court
127.
According to Article 61 of the Statute of the Court of Justice, where the appeal is well founded, the Court of Justice must quash the decision of the General Court. In that event, the Court of Justice may itself give final judgment on the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
128.
There is no need for the Court of Justice to refer the case back to the General Court, given that the judgment of the General Court has been upheld in so far as it annuls in its entirety the decision of the Board of Appeal of ACER.
129.
It is for the Board of Appeal to give effect to the judgment of the General Court in accordance with the clarifications provided on appeal by the Court of Justice, and thus to disregard that judgment in so far as it relates to the relationship between Article 17 of Regulation No 714/2009 and Article 12 of the TEN-E Regulation.
130.
The upholding of the second ground of appeal does not require the case to be referred back to the General Court because, as I have already noted, there was no need for the General Court to rule on the relationship between Article 17(1)(b) of Regulation No 714/2009 and Article 12 of the TEN-E Regulation.
IX. Costs
131.
Under Article 138(3) of the Rules of Procedure of the Court of Justice, applicable on appeal pursuant to Article 184 thereof, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
132.
Since I am proposing that ACER’s first ground of appeal be dismissed, in accordance with the form of order sought by Aquind, but that the second ground of appeal be upheld, the parties must bear their own costs. The same allocation of costs should be applied to the cross-appeal, which is closely linked to the main appeal.
X. Conclusion
133.
In accordance with the foregoing considerations, I propose that the Court of Justice:
(1)
dismiss the European Union Agency for the Cooperation of Energy Regulators (ACER)’s first ground of appeal;
(2)
uphold ACER’s second ground of appeal;
(3)
dismiss in full Aquind Ltd’s cross-appeal;
(4)
order ACER and Aquind to bear their own costs.
(
1
)	Original language: Spanish.
(
2
)	Judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542); ‘the judgment under appeal’.
(
3
)	The legal framework governing ACER was laid down in Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ 2009 L 211, p. 1). That regulation was repealed by 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).
(
4
)	So far as concerns the Board of Appeal of the European Chemicals Agency (ECHA), see the judgments of the General Court of 20 September 2019, BASF Grenzach v ECHA (T‑125/17, EU:T:2019:638), and of 20 September 2019, Germany v ECHA (T‑755/17, EU:T:2019:647).
(
5
)	See the extensive academic analysis contained in the work of Chamon, M., Volpato, A. and Eliantonio, M. (eds.), Boards of Appeal of EU Agencies: Towards Judicialization of Administrative Review?, Oxford University Press, 2022.
(
6
)	Regulation 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. 15).
(
7
)	Regulation of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations No 713/2009, No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39). Known as the Trans-European Networks for Energy Regulation (‘TEN-E Regulation’).
(
8
)	I have reproduced the version of this article that was in force at the time of the dispute. Its equivalent in Regulation 2019/942 is Article 28, paragraph 5 of which states that ‘the Board of Appeal may confirm the decision, or it may remit the case to the competent body of ACER. The latter shall be bound by the decision of the Board of Appeal’.
(
9
)	Directive of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).
(
10
)	Directive of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94).
(
11
)	On the same day, ACER also lodged an application for interim relief seeking suspension of the operation of the judgment under appeal, citing the risk that its operation would pose to EU law and the internal energy market. The Vice-President of the Court of Justice dismissed that application by order of 16 July 2021, ACER v Aquind (C‑46/21 P-R, not published, EU:C:2021:633), on the ground that the serious and irreparable damage alleged had ceased to exist and had become hypothetical when the Board of Appeal held Aquind’s appeal to be inadmissible by Decision A-001-2018_R of 4 June 2021.
(
12
)	Decision A-001-2018_R of 4 June 2021. In that decision, the Board of Appeal held that the United Kingdom’s withdrawal from the European Union does not allow Regulation No 714/2009 and the TEN-E Regulation to be applied to new electrical interconnections between that country and an EU Member State. Aquind has brought an application for the annulment of that decision before the General Court (Case T‑492/21, still pending).
(
13
)	Commission Delegated Regulation of 31 October 2019 amending Regulation No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (OJ 2020 L 74, p. 1). On 21 May 2020, Aquind brought an action for the annulment of that delegated regulation which is pending before the General Court (Case T‑295/20, Aquind and Others v Commission). It had previously brought an action for the annulment of that delegated regulation prior to its publication, but its action was declared inadmissible by order of the General Court of 5 March 2021, Aquind and Others v Commission (T‑885/19, EU:T:2021:118), confirmed on appeal in the judgment of 1 August 2022, Aquind and Aquind Energy v Commission (C‑310/21 P, not published, EU:C:2022:615).
(
14
)	Only in respect of the obligations under Article 19(2) and (3) of 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).
(
15
)	Paragraph 91 of the judgment under appeal states: ‘That said, for reasons related to the sound administration of justice, the Court considers it appropriate to examine the fourth plea, alleging misinterpretation of the relationship between Article 17(1) of Regulation No 714/2009 and Article 12 of [the TEN-E] Regulation …’. Emphasis added.
(
16
)	Judgment under appeal, paragraph 51.
(
17
)	Judgment under appeal, paragraphs 52 to 58.
(
18
)	Judgment under appeal, paragraphs 59 and 60.
(
19
)	Judgment under appeal, paragraphs 61 to 70.
(
20
)	Paragraph 66 of the judgment under appeal states that ‘the onus is on ACER to take all the internal organisational measures necessary to mobilise the resources available to it in order to achieve its objectives, as defined in Regulation No 713/2009’.
(
21
)	Everson, M., Monda, C. and Vos, E. (eds), European Agencies in Between Institutions and Member States, Wolters Kluwer, Alphen aan den Rijn, 2014; Chamon, M., EU Agencies: Legal and Political Limits to the Transformation of the EU Administration, Oxford University Press, 2016; Alberti, J., Le agenzie dell’Unione europea, Giuffrè, Milan, 2018; Vos, E., EU Agencies, Common Approach and Parliamentary Scrutiny, European Parliament, 2018.
(
22
)	See the analysis of Tovo, C., ‘The Boards of Appeal of Networked Services Agencies: Specialized Arbitrators of Transnational Regulatory Conflicts?’, in Chamon, M., Volpato, A. and Eliantonio, M., cited above, pp. 36 to 40; as well as Jankovich, K., ‘La réforme de l’Agence de l’Union européenne pour la coopération des régulateurs de l’énergie: une évolution sans révolution’, Revue du droit de l’Union européenne, 2019, No 3, pp. 69 to 85.
(
23
)	Those of the European Union Intellectual Property Office (EUIPO), the Community Plant Variety Office (CPVO), the European Union Aviation Safety Agency (EASA), the European Chemicals Agency (ECHA), the Agency for the Cooperation of Energy Regulators (ACER), the Single Resolution Board (SRB), the European Union Agency for Railways (ERA) and the three European Supervisory Authorities (the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA) and the European Insurance and Occupational Pensions Authority (EIOPA)), which share a single Board of Appeal.
(
24
)	The Joint Statement and Common Approach of the European Parliament, the Council of the EU and the European Commission on decentralised agencies of 19 July 2012, https://data.consilium.europa.eu/doc/document/ST‑11450-2012-INIT/en/pdf, refer only in paragraph 21 of the common approach to the independence and impartiality of the members of the boards of appeal.
(
25
)	From the abundant literature on agency boards of appeal, see the various contributions in the compendium by Chamon, M., Volpato, A. and Eliantonio, M., cited above; Chirulli, P., Non-Judicial Remedies and EU Administration Protection of Rights versus Preservation of Autonomy, Routledge, 2021; De Lucia, L., ‘Specialised Adjudication in EU Administrative Law: the Boards of Appeal of EU Agencies’, European Law Review, 2015, pp. 832 to 857.
(
26
)	Regulation (EU, Euratom) 2019/629 of the European Parliament and of the Council of 17 April 2019 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2019 L 111, p. 1).
(
27
)	In particular, the Boards of Appeal of EUIPO, CPVO, ECHA and EASA and those set up after 1 May 2019 within any other office or agency of the European Union.
(
28
)	It is not inconceivable that the mechanism for allowing appeals to proceed will in the future be extended to judgments of the General Court which have themselves adjudicated upon decisions of the boards of appeal of other agencies the position of which is comparable to that of the boards of appeal of the agencies listed in Article 58a of the Statute of the Court of Justice. The composition of the Board of Appeal of ACER is comparable to that of the boards of appeal of the agencies listed in that article. See De Lucia, L., ‘The Shifting State of Rights Protection vis-à-vis EU Agencies: a Look at Article 58a of the Statute of the Court of Justice of the European Union’, European Law Review, 2019, pp. 812 to 816.
(
29
)	Paragraph 51 of the judgment under appeal.
(
30
)	See to that effect Tovo, C., ‘The added value of BoAs with respect to the proper functioning of the EU system of legal remedies, however, resides precisely in guaranteeing an in-depth control of the merits of the decisions of the agencies, which, as atypical implementing acts of a technical nature, are necessarily subject to a limited judicial review before the CJEU’ (in Tovo, C., ‘The Boards of Appeal of Networked Services Agencies: Specialized Arbitrators of Transnational Regulatory Conflicts?’, in Chamon, M., Volpato, A. and Eliantonio, M., cited above, p. 55).
(
31
)	Paragraph 58 of the judgment under appeal.
(
32
)
(
33
)	See to the same effect Articles 1 to 4 of Decision No 1-2011 of the Board of Appeal of ACER of 1 December 2011 laying down the rules of organisation and procedure of the Board of Appeal, available at https://extranet.acer.europa.eu/en/The_agency/Organisation/Board_of_Appeal/BoA_Public_Docs/BoA%20minutes%20FINAL%20.pdf. The text amended on 5 October 2019 is available at https://acer.europa.eu/en/The_agency/Organisation/Board_of_Appeal/BoA_Public_Docs/Rules%20of%20Procedure_for%20publication.pdf.
(
34
)	Paragraph 53 of the judgment under appeal: ‘The EU legislature thus intended to provide the Board of Appeal of ACER with the necessary expertise to allow it itself to carry out assessments of complex technical and economic facts relating to energy’.
(
35
)	In fact, prior to the entry into force of the 2019 Clean Energy Package, only one application had been made to the Board of Appeal in 2017 and two in 2018. By 2019, 6 had been made and there were 9 in 2020 and 11 in 2021. See https://acer.europa.eu/the-agency/organisation-and-bodies/board-of-appeal/boa-decisions.
(
36
)	See Decision No 17/2019 of the Administrative Board of ACER of 26 September 2019.
(
37
)	See to that effect the Programming Document 2021 – 2023, December 2020, http://documents.acer.europa.eu/en/The_agency/Mission_and_Objectives/Documents/Programming%20Document%20-%202021-2023%20-%20European%20Union%20Agency%20for%20the%20Cooperation%20of%20Energy%20Regulators.pdf (p. 33).
(
38
)	ACER recognises this fact in the document cited in the preceding footnote (p. 160).
(
39
)	The Clean Energy Package contains, inter alia, Regulation 2019/942.
(
40
)	This short period is in keeping with the objective, set out in recital 19 of Regulation No 713/2009, of conferring on the parties, ‘for reasons of procedural economy … a right of appeal to a Board of Appeal’.
(
41
)	Article 28(2) of Regulation 2019/942. The very low number of cases brought before the Board of Appeal in its early years was compatible with such a short adjudication period, but the increase in cases from 2018 militated in favour of extending that period from two to four months.
(
42
)	The new Article 29 of Regulation 2019/942 provides more clearly that ‘actions for the annulment of a decision issued by ACER pursuant to this Regulation and actions for failure to act within the applicable time limits may be brought before the Court of Justice only after the exhaustion of the appeal procedure referred to in Article 28’.
(
43
)	That decision amended Article 20 of Decision No 1-2011 laying down the rules of organisation and procedure of the Board of Appeal. Article 21 (new version), which replaces Article 20, of the amended decision states that the Board of Appeal is to limit itself to confirming the decision of the agency or remitting the case to the competent body of ACER.
(
44
)	To some extent, Article 28(5) of Regulation 2019/942 facilitates the work of the Board of Appeal, which ‘may confirm the decision, or it may remit the case to the competent body’ of ACER.
(
45
)	‘In particular, it has already been held, with regard to the Board of Appeal of ECHA, that the review carried out by that board of appeal of scientific assessments in an ECHA decision was not limited to verifying the existence of manifest errors, but that, on the contrary, on account of the legal and scientific competences of its members, that board had to examine whether the arguments put forward by the applicant were capable of demonstrating that the considerations on which that ECHA decision had been based were vitiated by error (judgment of 20 September 2019, BASF Grenzach v ECHA, T‑125/17, EU:T:2019:638, paragraphs 87 to 89). The intensity of the review carried out by the Board of Appeal is thus greater than that of the review carried out by the EU judicature (see, by analogy, judgment of 20 September 2019, BASF Grenzach v ECHA, T‑125/17, EU:T:2019:638, paragraph 124)’.
(
46
)	Regulation of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (OJ 2003 L 176, p. 1).
(
47
)	According to the General Court, the Board of Appeal made the submission of a prior request for financial support under Article 12 of the TEN-E Regulation a ‘separate condition for proving the risk attached to the investment’, an approach which is not justified in the light of either Regulation No 714/2009 or the TEN-E Regulation.
(
48
)	Judgment of 11 March 2020, Baltic Cable (C‑454/18, EU:C:2020:189, paragraph 57): ‘As is apparent from Article 1(a) of Regulation No 714/2009, that allocation of interconnection capacities is the subject of harmonised principles which must allow fair rules to be set for cross-border exchanges in electricity in order to enhance competition within the internal market for electricity’.
(
49
)	See the Report of the Commission Expert Group on electricity interconnection: ‘Towards a sustainable and integrated Europe’, November 2017, https://ec.europa.eu/energy/sites/ener/files/documents/report_of_the_commission_expert_group_on_electricity_interconnection_targets.pdf, pp. 10 to 14.
(
50
)	Between 2014 and 2020, the funding instrument known as the Connecting Europe Facility helped finance 107 projects of common interest, on a total budget of EUR 4.7 billion. Almost two thirds of that sum went to electricity transmission and storage projects and smart grids. For details, see European Commission, Connecting Europe Facility. Energy. Supported actions 2014-2020, May 2021, https://cinea.ec.europa.eu/system/files/2021-05/CEF_Energy_supporting-actions_2021.pdf.
(
51
)	The TEN-E Regulation was amended on the ground that it was no longer suitable for ensuring the climate neutrality of the European Union, following the adoption of the European Green Deal and the new energy policy guidelines under Regulation (EU) 2022/869 of the European Parliament and of the Council of 30 May 2022 on guidelines for trans-European energy infrastructure, amending Regulations (EC) No 715/2009, 2019/942 and 2019/943 and Directives 2009/73 and (EU) 2019/944 and repealing the TEN-E Regulation (OJ 2022 L 152, p. 45).
(
52
)	Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September 2006 laying down guidelines for trans-European energy networks and repealing Decision 96/391/EC and Decision No 1229/2003/EC (OJ 2006 L 262, p. 1) is the precursor to the TEN-E Regulation. It established a very precarious framework of support for trans-European energy networks under which there was no general scheme for the financing of such infrastructure beyond the possibility of recourse to EU funding.
(
53
)	Emphasis added.
(
54
)	To the same effect, the last sentence of recital 23 of Regulation No 714/2009 states that ‘exemptions granted under Regulation [No 1228/2003] continue to apply until the scheduled expiry date as decided in the granted exemption decision’.
(
55
)	Judgment of 11 March 2020, Baltic Cable (C‑454/18, EU:C:2020:189, paragraph 48).
(
56
)	SEC(2003) 160 final, Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the European Parliament and the Council on the adoption of a regulation on conditions for access to the network for cross-border exchanges in electricity, E. Annex.
(
57
)
(
58
)	Note of DG Energy and Transport on Directives 2003/54-55 and Regulation No 1228/03 in the electricity and gas internal market about exemptions from certain provisions of the third party access regime, 30 January 2004, p. 1: ‘The possibility for such exemptions is clearly an exception to the general rule of third party access which is the basis of the new competitive market for electricity and gas. Exemptions will therefore only be granted exceptionally and on a case-by-case basis. There will be no block exemptions for specific types of infrastructure and all cases will be assessed on their merits. This consideration is particularly relevant since there is no possibility of exemptions for existing infrastructure and therefore any decision to give new pieces of infrastructure a different status must be clearly justified’.
(
59
)	Document SEC(2009) 642 final, 6 May 2009, Commission staff working document on Article 22 of Directive 2003/55/EC concerning common rules for the internal market in natural gas and Article 7 of Regulation [No 1228/2003] on conditions for access to the network for cross-border exchanges in electricity – New Infrastructure Exemptions. Point 17 states: ‘Exemptions are an exception to the general rule of regulated TPA. Such exceptions have to be limited to what is strictly necessary to realise the investment and the scope of the exemptions has to be proportionate’.
(
60
)	The Commission followed a similar line of reasoning when refusing to grant an exemption for a Czech gas storage facility operator in Commission Decision C(2011) 4509 of 27 June 2011 on the exemption of an underground gas storage facility in Dambořice, available at https://ec.europa.eu/energy/sites/ener/files/documents/2011_damborice_decision_en.pdf. That exemption was based on Article 36(1) of Directive 2009/73, applicable to the field of gas, and is similar to the exemption provided for in Article 17(1)(b) of Regulation No 714/2009.
(
61
)	ACER enjoys some discretion in this regard, as was recognised in connection with equivalent exemptions relating to the gas market in the judgment of 4 December 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission (C‑342/18 P, not published, EU:C:2019:1043, paragraph 48).
(
62
)	I should add that Aquind did later request financing under the general scheme.