Provisional text
JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
25 June 2025 (*)
( Energy – Internal market for electricity – Regulation (EU) 2017/2195 – ACER decision on the amendment to the methodology for pricing balancing energy – Imposition of a temporary price limit – Appeal brought before the Board of Appeal of ACER – Specific conditions and arrangements concerning actions – Article 28(1) and Article 29 of Regulation (EU) 2019/942 – Inadmissibility due to lack of standing to bring an appeal before the Board of Appeal – Plea of illegality – Equality before the law and effective judicial protection – Lack of individual concern – Attributes or factual circumstances not raised – Time limit for bringing proceedings – No excusable error )
In Case T‑95/23,
RWE Supply & Trading GmbH, established in Essen (Germany), represented by U. Scholz, H. Weßling and M. von Armansperg, lawyers,
applicant,
v
European Union Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet, E. Tremmel and G. Bertrand, acting as Agents, and by R. van der Hout, J. Wiemer and C. Wagner, lawyers,
defendant,
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of M. van der Woude, President, P. Škvařilová-Pelzl (Rapporteur), I. Nõmm, G. Steinfatt and D. Kukovec, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 9 September 2024,
gives the following
Judgment
1        By its action
under Article 263 TFEU, the applicant, RWE Supply & Trading GmbH, seeks, principally, the annulment of Decision A-002-2022 of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) of 9 December 2022 (‘the contested decision’) dismissing as inadmissible the appeal brought by the applicant against ACER Decision No 03/2022 of 25 February 2022 on the amendment to the methodology for pricing balancing energy and cross-zonal capacity used for the exchange of balancing energy or operating the imbalance netting process (‘the initial decision’), in so far as, in that decision, ACER had set, for a period of 48 months from 1 July 2022, a limit on the price at which balancing energy suppliers, such as the applicant, could exchange that
energy on the European platforms PICASSO and MARI, and, in the alternative, the annulment of the initial decision.
Background to the dispute
2        By decision No 01/2020 of 24 January 2020, ACER adopted, on a proposal from the transmission system operators (‘the TSOs’), a methodology for pricing balancing energy and cross-zonal capacity used for the exchange of balancing energy or operating the imbalance netting process (‘the methodology at issue’) which provided, inter alia, that prices for the supply of balancing energy must not be higher or lower than a technical price limit of plus or minus EUR 99 999 per megawatt hour (MWh).
3        On 2 June 2021, the European Network of Transmission System Operators for Electricity (‘the ENTSO for electricity’) drew up, on behalf of all the TSOs, a proposal to amend the methodology at issue with a view to replacing the existing technical price limit with a price limit of plus or minus EUR 15 000/MWh (‘the TSOs’ proposal’). That proposal was accompanied by an explanatory note dated 28 May 2021.
4        The ENTSO for electricity sent the TSOs’ proposal to ACER for approval, and on 13 October 2021, ACER launched a public consultation on its website and invited interested market participants to submit their comments on that
proposal by 10 November 2021. The applicant participated in that public consultation by submitting comments on all the issues raised by ACER, as well as a legal opinion on the TSOs’ proposal.
5        Between 22 November and 6 December 2021, ACER sent, for the purposes of consultation, to the TSOs, the ENTSO for electricity and the regulatory authorities of the Member States (‘the NRAs’), a version, which it had itself amended, of the TSOs’ proposal that it had previously sent to them, together with a justification for the amendments.
6        By the initial decision, adopted on 25 February 2022 and published on its website on 28 February 2022, ACER rejected the TSOs’ proposal, on the ground that it did not satisfy the requirements of Article 30(2) of Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6), and ordered that the existing technical price limit of plus or minus EUR 99 999/MWh would remain in force. However, by Annex I to the initial decision, ACER amended the methodology at issue by imposing a temporary price limit of plus or minus EUR 15 000/MWh, applicable only to exchanges of balancing energy on the European platforms PICASSO and MARI, for a period of 48 months from 1 July 2022.
7        On 27 April 2022, the applicant brought an appeal against the initial decision before the Board of Appeal of ACER (‘the Board of Appeal’).
8        By the contested decision, the Board of Appeal dismissed the applicant’s appeal against the initial decision as inadmissible, on the ground that the applicant did not have standing to bring such an appeal under Article 28(1) of 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), since
the initial decision was not addressed to the applicant and did not concern the applicant individually.
Forms of order sought
9        The applicant claims that the Court should:
–        principally, annul the contested decision;
–        in the alternative, annul the initial decision;
–        order ACER to pay the costs.
10      ACER contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The principal claim, seeking annulment of the contested decision
11      In support of the principal claim for annulment of the contested decision, the applicant puts forward, in essence, three pleas in law, the first alleging infringement of Article 28(1) of Regulation 2019/942, the second alleging infringement of the fourth paragraph of Article 263 TFEU, and the third alleging infringement of the principle of effective judicial protection, as expressed in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in the general principles of EU law.
12      ACER submits that the principal claim should be rejected as unfounded.
13      It is appropriate to begin by examining the second plea.
The second plea, alleging infringement of the fourth paragraph of Article 263 TFEU
14      The applicant submits that, in the contested decision, the Board of Appeal infringed the fourth paragraph of Article 263 TFEU by holding that it did not have standing to bring an appeal before it, even though the initial decision was a regulatory act which directly concerned the applicant and did not entail implementing measures.
15      The applicant maintains that, in the contested decision, the Board of Appeal was correct
to find, in the light of the case-law, that the initial decision constituted a regulatory act which directly concerned the applicant and did not entail implementing measures, and which could therefore be challenged before the EU judicature under the fourth paragraph of Article 263 TFEU. That is not disputed by ACER in the present action.
16      However, the applicant argues that the Board of Appeal was incorrect
to find, in the contested decision, that it did not have standing to bring an appeal against the initial decision before that
board, having regard to the wording of Article 28(1) of Regulation 2019/942. It submits that, according to both the academic commentary and the case-law, the standing to bring an action against a regulatory act and, ultimately, the judicial protection that are conferred on it by the fourth paragraph of Article 263 TFEU cannot
be unduly restricted by the conditions and arrangements for implementing the prior administrative appeal procedure established within ACER, on the basis of the fifth paragraph of Article 263 TFEU, without infringing the first paragraph of Article 47 of the Charter by reopening the very lacuna in the judicial protection of persons subject to EU law that that provision was intended to fill. That judicial protection cannot be altered simply because an EU institution has delegated some of its powers to an external body, office or agency.
17      According to the applicant, Article 28(1) of Regulation 2019/942 could and should be interpreted, in the light of the context and the objective of filling a lacuna in judicial protection that was pursued by the authors of the Treaties, in a manner consistent with the judicial protection conferred by the fourth paragraph of Article 263 TFEU. In so far as, as is apparent from recital 34 and Article 29 of Regulation 2019/942 and from the case-law, exhaustion of the internal administrative procedure is a necessary precondition of an action before the EU judicature, with only decisions of the Board of Appeal being challengeable before that judicature, any restriction on the right to bring an appeal before that board would amount to a restriction on the right to bring an action before the EU judicature. It cannot be argued that the applicant would have been able to bring an action for annulment of the initial decision directly before the General Court, on the basis of the fourth paragraph of Article 263 TFEU, because, in the light of the case-law, that would infringe the principles of equality before the law and effective judicial protection set out in Articles 20 and 47 of the Charter, as well as the principle of procedural economy, and would compromise the effectiveness of ACER’s internal appeal procedure. Moreover, in the contested decision, the Board of Appeal itself described the unavailability of an appeal as ‘unsatisfactory’.
18      ACER contests the applicant’s arguments and submits that the second plea should be rejected.
19      In paragraph 35 of the reply, the applicant states that, ‘by its second plea, [it] alleges infringement of the fourth paragraph of Article 263 TFEU, [with regard to the third situation envisaged by that paragraph], by reason of the refusal to hold that it is individually concerned, and not infringement of Article 28(1) of Regulation … 2019/942, as the defendant claims’ in paragraph 52 of the defence.
20      ACER responds, in paragraph 33 of the rejoinder, that ‘in the light of the clarification provided by the applicant, the second plea is manifestly unfounded, because an infringement of the fourth paragraph of Article 263 [TFEU], with regard to the third situation envisaged by that paragraph, is absolutely inconceivable’ in the present case, since
that provision was not applicable to the appeal which the applicant brought before the Board of Appeal.
21      In that regard, the EU judicature has accepted that a plea may be expressed in terms of its substance rather than its legal classification, provided that it is set out in the application with sufficient clarity (see judgments of 23 September 2004, Italy v Commission, C‑297/02, not published, EU:C:2004:550, paragraph 57 and the case-law cited; of 24 September 2015, Italy and Spain v Commission, T‑124/13 and T‑191/13, EU:T:2015:690, paragraph 33 and the case-law cited; and of 19 January 2017, Commission v Frieberger and Vallin, T‑232/16 P, not published, EU:T:2017:15, paragraph 33).
22      Furthermore, in accordance with the case-law, a plea of illegality may be considered to have been raised implicitly where it is relatively clear from the application that the applicant is in fact making such a plea (see, to that effect, judgments of 6 June 1996,
Baiwir v Commission, T‑262/94, EU:T:1996:75, paragraph 37; of 27 November 2018, Mouvement pour une Europe des nations et des libertés v Parliament, T‑829/16 EU:T:2018:840, paragraph 66, and of 21 December 2022, Falke v Commission, T‑306/21, EU:T:2022:834, paragraph 30).
23      It is apparent from the content of the second plea, as developed in paragraphs 75 to 104 of the application and paragraphs 35 to 49 of the reply, that the applicant is submitting, in essence, that, in order for it to comply with the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU – pursuant to which the applicant has standing to bring proceedings before the EU judicature for annulment of any act which, like the initial decision, is a regulatory act that is of direct concern to it and does not entail implementing measures – and with the principle of equality before the law enshrined in Article 20 of the Charter, Article 28(1) of Regulation 2019/942 needed to be interpreted by the Board of Appeal, in the contested decision, as allowing the applicant to bring an appeal against that decision before it.
24      The developments referred to in paragraph 23 above must be understood as covering, in essence, a twofold
complaint, based either on the Board of Appeal having interpreted Article 28(1) of Regulation 2019/942, in the contested decision, in a manner contrary to the principle of effective judicial protection and to Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, and to the principle of equality before the law enshrined in Article 20 of the Charter (first complaint), or on an implied plea of illegality relating to Article 28(1) of Regulation 2019/942, on the ground that that
provision is contrary to those same principles and articles of the Charter (second complaint).
25      In response to a measure of organisation of procedure adopted on the basis of Articles 89 and 90 of the Rules of Procedure of the General Court, the applicant confirmed that the application contained such an implied plea of illegality in relation to Article 28(1) of Regulation 2019/942.
26      Although ACER objected, in response to another measure of organisation of procedure, that the plea of illegality concerning Article 28(1) of Regulation 2019/942 had been raised out of time, in the applicant’s response to the measure of organisation of procedure addressed to it by the General Court, and should therefore be rejected as inadmissible, in accordance with the case-law deriving from paragraph 23 of the judgment of 15 May 2008, Spain v Council (C‑442/04, EU:C:2008:276, paragraphs 38 and 39) of the judgment of 26 June 2008, Alferink and Others v Commission (T‑94/98, EU:T:2008:226), and paragraphs 64 to 66 of the judgment of 24 September 2008, Reliance Industries v Council and Commission (T‑45/06, EU:T:2008:398), it must be stated that the two complaints referred to in paragraph 24 above were sufficiently clear from paragraphs 75 to 86 and paragraphs 102 and 103 of the application. The objection raised by ACER must therefore be rejected, and the two complaints examined on their merits.
27      As a preliminary remark, it should be observed that, as acknowledged by the parties in their pleadings and by the Board of Appeal in paragraphs 40 and 50 of the contested decision, the initial decision, although adopted in the form of a decision individually addressed to the TSOs of the region comprising Belgium, the Czech Republic, Germany, France, Croatia, Luxembourg, Hungary, the Netherlands, Austria, Poland, Romania, Slovenia and Slovakia (‘the CORE region’), is a regulatory act which directly concerns the applicant and does not entail implementing measures, for the purposes of the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, so
that, in relation to that decision, the applicant falls within the category of natural or legal persons concerned by the third situation envisaged by the fourth paragraph of Article 263 TFEU.
28      That being so, it is necessary to determine whether, as the applicant submits as part of the first complaint, Article 28(1) of Regulation 2019/942 should have been interpreted by the Board of Appeal, in the contested decision, as conferring standing on the applicant to bring an appeal against the initial decision before that board, in order to ensure that that provision complies with the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, and with the principle of equality before the law enshrined in Article 20 of the Charter.
29      According to the case-law, an interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. Thus, where the meaning of such a provision is absolutely plain from its very wording, the EU judicature cannot depart from that interpretation (see judgment of 23 November 2023, Ministarstvo financija, C‑682/22, EU:C:2023:920, paragraph 31 and the case-law cited). According to settled case-law, in interpreting a provision of EU law, where its wording does not expressly delimit the provision’s scope, account must be taken of the context of the provision and the objectives pursued by the rules of which it forms part (see judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 34 and the case-law cited).
30      Under Article 28(1) of Regulation 2019/942, which concerns ‘[ACER] decisions subject to appeal’, ‘any natural or legal person, including the regulatory authorities, may appeal against [an ACER] decision referred to in point (d) of Article 2 [of that regulation] 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’.
31      In the present case, it is common ground that the initial decision, by which ACER made a determination concerning amendments to the methodology at issue that had been proposed by the TSOs of the CORE region, pursuant to Article 5(2)(b) of Regulation 2019/942, is an ACER decision as referred to in point (d) of Article 2 of that regulation.
32      It is apparent from the clear and precise wording of Article 28(1) of Regulation 2019/942 that the applicant, as a legal person who is not an addressee of the initial decision, which was addressed, as is apparent from Article 2 thereof, to the TSOs of the CORE region, may bring an action against that decision only if it concerns the applicant
not only directly, but also individually.
33      While it is true that the condition of individual concern
thus imposed by Article 28(1) of Regulation 2019/942 must be interpreted in the light of the general principles of EU law, as guaranteed by the Charter, such an interpretation cannot
set aside that condition, which is expressly laid down by the regulation, without
resulting in an interpretation that is
contra legem.
34      In that regard, it must be stated that, according to settled case-law, recourse to a broad interpretation is possible only in so far as it is compatible with the wording of the provision at issue and that even the principle of interpretation in conformity with a rule of superior binding force cannot serve as the basis for an interpretation that is contra legem (see order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 30 and the case-law cited; see also, by analogy, judgments of 19 September 2019, Rayonna prokuratura Lom, C‑467/18, EU:C:2019:765, paragraph 61, and of 5 October 2020, Brown v Commission, T‑18/19, EU:T:2020:465, paragraph 111).
35      Accordingly, it must be held that, in the contested decision, the Board of Appeal was justified in not interpreting Article 28(1) of Regulation 2019/942 as permitting the applicant, as a legal person within the meaning of that provision, to bring an appeal against the initial decision before that board without having to establish that that decision concerns the applicant not only directly but also individually.
36      The first complaint must therefore be rejected as unfounded.
37      It is appropriate to continue by examining the merits of the second complaint, which corresponds to
the implied plea of illegality referred to in paragraph 24 above.
38      In that regard, it should be borne in mind that, according to a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity (judgments of 4 October 2001, Italy v Commission, C‑403/99, EU:C:2001:507, paragraph 37, and of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 47). Likewise, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 47; see also, to that effect, judgment of 22 September 1988, Saarland and Others, 187/87, EU:C:1988:439, paragraph 19 and the case-law cited).
39      In the present case, it should be noted that, in their responses to the measures of organisation of procedure addressed to them by the General Court, ACER argued, as an alternative submission, and the European Parliament, the Council of the European Union and the European Commission argued, as a principal submission, in essence, that Article 28(1) of Regulation 2019/942 is not contrary to the principle of effective judicial protection or to Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU, or to the principle of equality before the law enshrined in Article 20 of the Charter, because, in circumstances such as those of the present case, it does not preclude natural or legal persons who are not the addressees of an ACER act of general application not entailing implementing measures and who are directly but not individually concerned by that act, or in other words the category of natural or legal persons corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, from bringing an action for annulment of that act directly before the General Court.
40      Since the initial decision is, in relation to the applicant, a regulatory act which is of direct concern to it and does not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon (see paragraph 27 above), the applicant belongs to the category of natural or legal persons corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, who, like the other two categories of natural or legal persons corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, namely natural or legal persons to whom the act is addressed or who are directly and individually concerned by it, may bring an action against that act before the EU judicature, under the conditions set out in the first and second paragraphs of Article 263 TFEU.
41      However, the fifth paragraph of Article 263 TFEU provides that acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of those bodies, offices or agencies intended to produce legal effects in relation to them.
42      On a proposal from the Commission, the EU legislature provided, in Articles 28 and 29 of Regulation 2019/942, read in the light of recital 34 of that regulation, that natural or legal persons who are the addressees of ACER acts or are individually and directly concerned by such acts must, for reasons of procedural economy, have a right to appeal to the Board of Appeal.
43      In that context, and as is apparent from their responses to the measures of organisation of procedure addressed to them by the General Court, the Parliament, the Council and the Commission took the view that it would not be appropriate to include, among the natural or legal persons who, under Article 28(1) of Regulation 2019/942, may bring an action against an ACER decision referred to in point (d) of Article 2 of that regulation, natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, in so far as, as a general rule, the decisions adopted by ACER under point (d) of Article 2 of that Regulation were ‘individual decisions’, in respect of which an appeal lay to the Board of Appeal. If ACER were to adopt a regulatory act, as in the present case (see paragraph 27 above), the legal remedy
provided for by the fourth paragraph of Article 263 TFEU would be directly available.
44      In so far as the applicant submits, in that regard, that pursuant to Article 29 of Regulation 2019/942, it was unable to bring an action for annulment of the initial decision directly before the General Court on the basis of the third situation envisaged by the fourth paragraph of Article 263 TFEU, it must
be observed that Article 29 of Regulation 2019/942 does provide that ‘actions for the annulment of a decision issued by ACER pursuant to [that regulation] … may be brought before the Court of Justice [of the European Union] only after the exhaustion of the [prior] appeal procedure referred to in Article 28 [of that regulation]’, and that that provision requires non-privileged parties to seek annulment of decisions adopted by the Board of Appeal before the General Court (see, to that effect, judgment of 16 March 2022, MEKH and FGSZ v ACER, T‑684/19 and T‑704/19, EU:T:2022:138, paragraphs 35 to 42).
45      However, it should be stated that the judgment of 16 March 2022, MEKH and FGSZ v ACER (T‑684/19 and T‑704/19, EU:T:2022:138) must be interpreted in the light of its context and, in particular, the fact that the applicants in that case indisputably had standing to bring an appeal before the Board of Appeal, but, having regard to Articles 28 and 29 of Regulation 2019/942, were not entitled to challenge the legality of initial decisions of ACER before the General Court.
46      In that regard, in so far as, for the reasons set out in paragraph 43 above, the EU legislature did not subject the category of natural or legal persons to which the applicant belongs to the prior appeal procedure referred to in Article 28 of Regulation 2019/942, the requirement for that procedure to have been exhausted, laid down by Article 29 of that regulation, cannot be interpreted as applying to that category. It follows that natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, do not fall within the scope of the mandatory prior appeal procedure established by Articles 28 and 29 of Regulation 2019/942 and must, unlike those falling within the other two categories referred to in Article 28(1) of that regulation, bring their actions against the ACER acts in question directly before the General Court, as provided in relation to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.
47      As the Parliament, the Council and the Commission observe in their responses to the measures of organisation of procedure, Regulation 2019/942 cannot be interpreted as meaning that the EU legislature intended to make all acts adopted by ACER subject to review by the Board of Appeal, given that the material scope of Article 28 of that regulation is limited to the individual decisions referred to in point (d) of Article 2 of that regulation. Moreover, the EU legislature has taken the same ‘hybrid’ approach when setting up the appeal bodies of several other agencies, as is apparent from the regulations establishing the appeal bodies of the European Chemicals Agency (ECHA), the European Banking Authority (EBA), the Single Resolution Board (SRB), the European Aviation Safety Agency (EASA), the European Securities and Markets Authority (ESMA) and the European Insurance and Occupational Pensions Authority (EIOPA).
48      In that regard, it should be noted that, in their responses to the measures of organisation of procedure, the Parliament, the Council and the Commission submit that it is irrelevant that there is no explicit reference, in Regulation 2019/942, to the possibility of bringing an action directly before the EU judicature where the admissibility conditions laid down by Article 28 of that regulation are not met – given that Article 263 TFEU did not need to be transposed into secondary EU law in order to be applicable, any such reference would have been purely declaratory.
49      Furthermore, the interpretation endorsed in paragraph 46 above does not contradict paragraph 57 of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), in which the Court of Justice ruled that ‘[the] review bodies [of EU agencies] are an appropriate means of protecting the rights of the parties concerned’, since
that observation does not imply that the review conducted by the Board of Appeal of ACER represents the only appropriate means of protecting, with regard to ACER decisions, the rights of natural or legal persons who cannot bring an appeal before that board pursuant to Article 28 of Regulation 2019/942.
50      Nor is that interpretation inconsistent with recital 34 of Regulation 2019/942, which states that ‘where ACER has decision-making powers, interested parties should, for reasons of procedural economy, be granted a right of appeal to a Board of Appeal’. That recital must be read in conjunction with Articles 28 and 29 of Regulation 2019/942 and the case-law cited in paragraph 49 above, from which it follows that the Board of Appeal represents an appropriate means of protecting the rights of parties affected by ACER acts in so far as they satisfy the admissibility conditions set out in that regulation. However, neither recital 34 of Regulation 2019/942 nor that case-law can be interpreted as meaning that an action brought directly before the EU judicature, pursuant to Article 263 TFEU, by a natural or legal person who is not entitled to bring an appeal before the Board of Appeal pursuant to Article 28 of that regulation, is not an appropriate means of reviewing, at first instance, the legality of ACER acts.
51      While, as ACER, the Parliament, the Council and the Commission stated either at the hearing, in reply to oral questions from the Court, or in their responses to the measures of organisation of procedure addressed to them by the Court, the fifth paragraph of Article 263 TFEU confers on the EU legislature a discretion to determine the specific conditions and arrangements concerning actions brought by natural or legal persons against acts of an EU body, office or agency intended to produce legal effects in relation to them, that discretion may only ever be exercised in compliance with primary law and, in particular, with the general principles of EU law.
52      It is therefore necessary to consider, in the first place, whether, as the applicant submits, the difference in treatment established by Article 28(1) of Regulation 2019/942 between the category of natural or legal persons corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, and the other categories of natural or legal persons corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, as regards the ability to bring an appeal before the Board of Appeal, is incompatible with the principle of equality before the law enshrined in Article 20 of the Charter.
53      In that regard, it should be observed that, according to settled case-law, equality before the law, set out in Article 20 of the Charter, is a general principle of EU law which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified (see judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 57 and the case-law cited).
54      The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. If the situations are not comparable, a difference in the treatment of the situations concerned is not in breach of equality before the law as enshrined in Article 20 of the Charter (see judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 58 and the case-law cited).
55      In the present case, it is necessary to assess whether, having regard to the subject matter and purpose of ACER’s internal appeal system, established by Articles 28 and 29 of Regulation 2019/942, the situation of a natural or legal person falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, who wishes to bring an action for annulment of an ACER decision under that regulation, is comparable to that of a natural or legal person falling within the other categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, who also wishes to bring such an action.
56      As a preliminary remark, it should be stated that, as the EU judicature has confirmed, in so far as the EU legislature intended
to provide
the Board of Appeal with the necessary expertise to allow
it to carry out assessments of complex technical and economic facts relating to energy, that board may not confine itself to conducting a limited review of ACER decisions. On the contrary, relying on the scientific expertise of its members, it must examine whether the arguments put forward by the appellant are capable of demonstrating that the considerations on which the ACER decision is based are vitiated by error (see, to that effect, judgments of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 53 to 72, and of 18 November 2020, Aquind v ACER, T‑735/18, EU:T:2020:542, paragraphs 45 to 71).
57      In that context, the EU judicature has stated that the creation of the Board of Appeal forms part of an overall approach, adopted by the EU legislature, to provide the EU agencies with review bodies where they have been given decision-making powers on complex technical or scientific issues capable of directly affecting the legal situation of the parties concerned. Those review bodies are an appropriate means of protecting the rights of the parties concerned in a context in which, according to settled case-law, where the authorities of the European Union have a broad discretion, in particular in relation to highly complex scientific and technical facts, to determine the nature and scope of the measures which they adopt, review by the EU judicature must be limited to verifying whether there has been a manifest error of appraisal or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 56 and 57; see also judgment of 7 March 2013, Bilbaína de Alquitranes and Others v ECHA, T‑93/10, EU:T:2013:106, paragraph 76 and the case-law cited).
58      It must therefore be held that, by not allowing natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by Article 263 TFEU, in the version resulting from the Treaty of Lisbon, to bring an appeal before the Board of Appeal, Article 28(1) of Regulation 2019/942 establishes a difference in treatment, in so far as those persons will be able to benefit only from the limited review of ACER decisions conducted by the General Court as regards complex scientific, technical or economic assessments relating to energy, whereas natural or legal persons falling within the categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU are able to benefit from the full review conducted by the Board of Appeal as regards those scientific, technical or economic assessments.
59      As ACER, the Parliament, the Council and the Commission contended, in essence, in their responses to the measures of organisation of procedure addressed to them by the General Court, that difference in treatment as regards the availability of the full review conducted by the Board of Appeal is nevertheless justified by the closer or more distant link between the different categories of natural or legal persons concerned and the ACER decisions. While the natural or legal persons falling within the categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, are distinguished individually by those decisions, in that they are the addressees of those decisions or are in a position analogous to that of an addressee, in terms of the effect of the decision on them, by reason of certain attributes which are peculiar to them or factual circumstances which differentiate them from all other persons (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 93), that is not true of natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU.
60      Thus, that difference in treatment, based on the objective criteria established by Article 28 of Regulation 2019/942, is justified, because it relates to a legally permitted aim pursued by the legislation in question, and is proportionate to the aim pursued by the treatment in question (see, to that effect, judgments of 5 July 1977, Bela-Mühle Bergmann, 114/76, EU:C:1977:116, paragraph 7, and of 16 December 2008, Arcelor Atlantique et
Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 47).
61      The use of the objective criteria laid down by the EU legislature in Article 28 of Regulation 2019/942 relates to the aim pursued by that provision, which is to establish a system of administrative remedies for specific categories of ACER acts and for natural or legal persons closely linked to those acts.
62      Given that their link with ‘individual decisions’ of ACER is more distant, by comparison with natural or legal persons falling within the categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, it is justified and appropriate that natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU may obtain only a limited review of those decisions before the General Court, it being noted that, unlike persons falling within the other two categories, those persons are not subject either to the obligation, imposed by Article 29 of Regulation 2019/942, to exhaust the prior appeal procedure referred to in Article 28 of that regulation (see paragraph 45 above), or to the procedure for prior determination as to whether appeals should be allowed to proceed, provided for in Article 58a of the Statute of the Court of Justice of the European Union.
63      According to the case-law, for the EU legislature to be accused of breaching the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons to disadvantages as opposed to others (judgments of 13 July 1962, Klöckner-Werke and Hoesch v High Authority, 17/61 and 20/61, EU:C:1962:30, p. 345, and of 16 December 2008, Arcelor Atlantique et
Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 39).
64      In that regard, the direct review conducted by the General Court cannot be regarded as being disadvantageous to natural or legal persons who are not, in relation to an ACER act, in one of the situations referred to in Article 28 of Regulation 2019/942.
65      The fact that the examination of an ACER act by the Board of Appeal has been regarded as an appropriate means of protecting the rights of natural or legal persons who are closely linked to that act, in a context in which the authorities of the European Union have a broad discretion, in particular in relation to highly complex scientific and technical facts, to determine the nature and scope of the measures which they adopt (see, to that effect, judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraph 57), cannot be interpreted as meaning that an action brought directly before the General Court, on the basis of the fourth paragraph of Article 263 TFEU, cannot also be regarded as an appropriate means of protecting the rights of natural or legal persons who are more distantly linked to that act.
66      It follows that, in Article 28(1) of Regulation 2019/942, the EU legislature has established a justified difference in
treatment between natural or legal persons who are not in an identical or comparable situation with regard to ACER decisions and thus are not required to be subject to the same specific conditions or arrangements with regard to the remedies available to them against those decisions, such that the difference in treatment cannot be regarded as infringing the principle of equality before the law enshrined in Article 20 of the Charter.
67      In the second place, it is necessary to consider whether, as the applicant submits, the fact that natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, are unable to bring an appeal before the Board of Appeal, infringes the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU.
68      Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. It is apparent from the case-law of the Court of Justice and the European Court of Human Rights that the right of access to a court is not an absolute right and that, consequently, it may involve proportionate restrictions that pursue a legitimate aim and do not adversely affect the very essence of that right (see order of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 31 and the case-law cited). In accordance with Article 52(1) of the Charter, a limitation on the right to an effective remedy can be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 160, and of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 49).
69      In the present case, as has already been stated (see paragraphs 45 and 66 above), it follows from a combined reading of the fourth paragraph of Article 263 TFEU and Articles 28 and 29 of Regulation 2019/942, interpreted in the light of the general principle of interpretation stated in paragraph 38 above, that natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, may bring an action against an ACER decision directly before the General Court.
70      In that regard, it should be stated that, in so far as the possibility of bringing an action for annulment before the General Court remains open, it cannot be held that the EU legislature infringed the right to effective judicial protection by adopting Articles 28 and 29 of Regulation 2019/942.
71      It is true, as was emphasised by the Board of Appeal in paragraph 55 of the contested decision and by the applicant at the hearing, that the specific conditions and arrangements for appeals before the Board of Appeal put in place by the EU legislature in Articles 28 and 29 of Regulation 2019/942 create some unwelcome procedural complications. First, they could lead to parallel proceedings being brought before the Board of Appeal and the General Court against the same ACER decision, either by the same natural or legal persons, in the event of uncertainty as to which of the categories referred to in the fourth paragraph of Article 263 TFEU is relevant, or by natural or legal persons falling within different categories under that provision, with all the complications inherent in the management of such proceedings (stays, dismissal, and so on). Second, by making the respective jurisdiction of the Board of Appeal and the General Court to hear proceedings brought by a natural or legal person who is not the addressee of an ACER act, but in relation to whom that act produces legal effects, and accordingly
the procedure to be followed by that person in order to challenge that act, dependent on the complex legal question of whether or not that person is ‘individually concerned’ by that
act, the application of those specific conditions and arrangements could give rise to numerous disputes before the Board of Appeal, the General Court and the Court of Justice.
72      Nevertheless, first, the risk of parallel proceedings against the same ACER act exists independently of Articles 28 and 29 of Regulation 2019/942, since, as is apparent in particular from paragraph 31 of the judgment of 16 March 2022, MEKH and FGSZ v ACER (T‑684/19 and T‑704/19, EU:T:2022:138), privileged applicants have the right to bring an action for annulment of an ACER decision directly before the General Court. Second, the fact that the concept of ‘individual concern’ is complex is not specifically due to the system of administrative remedies established by Articles 28 and 29 of Regulation 2019/942.
73      In any event, such procedural complications could not be a sufficient reason to hold that the system of remedies established is, in itself, contrary to the principle of effective judicial protection, as guaranteed by Article 47 of the Charter.
74      Accordingly, Article 28(1) of Regulation 2019/942 cannot be regarded as infringing the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU.
75      Consequently, the plea of illegality must be dismissed as unfounded, and it follows that the second plea must be rejected in its entirety.
76      It is appropriate to continue by examining the third plea, alleging infringement of the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law.
The third plea, alleging infringement of the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law
77      The applicant submits that, in the contested decision, the Board of Appeal infringed the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law, by holding that it did not have standing to bring an appeal before that
board, when that resulted in it being deprived of effective judicial protection in respect of a decision, namely the initial decision, which restricts its freedom to conduct a business, as guaranteed by Article 16 of the Charter. According to the case-law, the European Union is a community based on the rule of law, with a complete system of remedies and procedures designed to permit the EU judicature to review the legality of acts of
the institutions, bodies, offices and agencies of the European Union. The general scheme of the Treaty is to make a direct action available against all decisions adopted by those institutions, bodes, offices and agencies which are intended to have legal effects. Against that background, the admissibility conditions laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, as set out in Article 47 of the Charter. In the absence of any possibility of appeal to the Board of Appeal, the applicant states that it has been deprived of any effective judicial protection in respect of the initial decision, which, by virtue of its regulatory effects, adversely affects its legal position as a supplier of balancing energy (see paragraphs 86 and 92 below), given that, in the present case, access to the EU judicature is conditional on such an appeal (see paragraph 16 above). The applicant states that it nevertheless has standing to bring an action for annulment of the initial decision under the fourth paragraph of Article 263 TFEU.
78      ACER disputes the applicant’s arguments and contends that the third plea should be rejected.
79      In that regard, it must be stated that, according to settled case-law which has already been cited (see paragraph 34 above), recourse to a broad interpretation is possible only in so far as it is compatible with the wording of the provision at issue and that even the principle of interpretation in conformity with a rule of superior binding force cannot serve as the basis for an interpretation that is contra legem.
80      In the present case, having regard to the clear wording of Article 28(1) of Regulation 2019/942, which is not called into question by the content of the relevant legislation or the objectives it pursues (see paragraphs 32 to 35 above), the Board of Appeal was entitled, in the contested decision, notwithstanding its obligation to comply with the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law, not to interpret Article 28(1) of Regulation 2019/942 as permitting the applicant, who was neither a privileged applicant
nor an addressee of the initial decision, to bring an appeal against the decision in question before it, without having to establish that the applicant
was not only directly but also individually concerned by that decision.
81      If the third plea were
also to be understood as incorporating an implied plea of illegality in respect of Article 28(1) of Regulation 2019/942, on the ground that that provision infringes the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law, that plea would also have to
be dismissed as unfounded, on same grounds as those set out in paragraphs 68 to 71 above.
82      It is therefore appropriate to reject the third plea as unfounded and to continue by examining the merits of the first plea, alleging infringement of Article 28(1) of Regulation 2019/942.
The first plea, alleging infringement of Article 28(1) of Regulation 2019/942
83      The applicant submits that the Board of Appeal infringed Article 28(1) of Regulation 2019/942, in the contested decision, by holding that the applicant did not have standing to bring an appeal against the initial decision before it, whereas the applicant was directly and individually concerned by that decision.
84      The applicant
submits that, in paragraph 39 et seq. of the contested decision, the Board of Appeal correctly held, in the light of the case-law, that it was directly concerned by the initial decision, which directly affected its legal position by temporarily preventing it from freely setting the prices of its bids on the balancing energy market, since bids exceeding the temporary price limit set by the initial decision could no longer be accepted by the TSOs of the CORE region via the European platforms PICASSO and MARI.
85      By contrast, according to the applicant, the Board of Appeal erred in refusing to find, in the contested decision, that it was individually concerned by the initial decision, within the meaning of the fourth paragraph of Article 263 TFEU, as interpreted in the case-law.
86      First, the applicant states that it is individually concerned by the initial decision in that, in accordance with the case-law, that decision substantially affects its position on the market for the supply of balancing energy, by artificially lowering the price at which it can sell such electricity to the TSOs, which are the only buyers, in such a way that it is temporarily prevented from benefiting from a market price that should be higher (to cover the opportunity cost of the bids) or from competing on price in respect of such electricity. The initial decision concerns only a small number of economic operators which, like the applicant, operate in the Czech Republic, Germany and Austria – the only areas in which the European platforms PICASSO and MARI are currently operational – and have succeeded, following a long and costly procedure, in obtaining prequalification for facilities for the supply of balancing energy. The initial decision thus infringes, in a targeted manner, the freedom of those balancing energy suppliers to conduct a business, by preventing them from selling such energy at a price exceeding the temporary price limit set by that decision, despite the fact that even efficient and competitive facilities might have marginal variable costs that would not be covered by that limit.
87      Second, the applicant states that it actively participated in the procedure leading to the adoption of the initial decision, which, according to the case-law, constitutes a relevant factor, among others, in determining whether an applicant is individually concerned. According to the case-law, it is sufficient if the action taken by the applicant was capable of influencing the procedure in question. In the present case, the applicant actively participated in the public consultation on the TSOs’ proposal that was conducted by ACER, pursuant to Article 14(1) of Regulation 2019/942, prior to the adoption of the initial decision, by responding to the questionnaire prepared by ACER and submitting a legal opinion on the substantive issues. In the initial decision, ACER took those comments and observations into account, in some cases rejecting them, in others – for example in relation to price formation on the balancing energy market – commenting on them, and in still others acting on them, in particular by rejecting the TSOs’ proposal.
88      Third, the applicant states that ACER does not dispute that it took due account, in the initial decision, of the applicant’s position on a substantive level, which, according to the case-law, is also among the factors that are relevant in establishing that an applicant is individually concerned. As indicated in paragraph 87 above, ACER was influenced, in the initial decision, by the comments and observations that the applicant had made in the public consultation on the TSOs’ proposal. Moreover, according to the applicant, ACER was under a legal obligation to take account of the consequences that the initial decision might have on its situation – which, according to the case-law, also distinguished it individually in relation to that decision. Under Article 10(6) of Regulation 2017/2195, the TSOs are obliged to consult stakeholders, so that their interests can be taken into account in their proposals. Similarly, under Article 9 of Regulation 2017/2195 and Article 14(1) and (3) of Regulation 2019/942, ACER is obliged to consult stakeholders and market participants, so that their interests can be taken into account in its decisions.
89      Fourth and in the alternative, the applicant submits that it is distinguished individually by the initial decision in the same way as the TSOs to which it is addressed, in so far as that decision infringed the procedural guarantees which EU law affords the applicant in relation to the
adoption of that decision, within the meaning of the case-law. It states that, as it argued before the Board of Appeal in the procedure leading to the adoption of the initial decision, ACER failed to notify it of the draft initial decision, and thus infringed its right, guaranteed by Article 14(6) of Regulation 2019/942 and Article 41 of the Charter, to express its views in advance, as a party concerned by that decision, which would directly affect its position on the German market for balancing energy. Furthermore, from the moment it substituted itself for the TSOs by amending their proposal, ACER should also have complied with the right of consultation provided for in Article 10(6) of Regulation 2017/2195. That requirement is not disproportionate in view of the fact that the number of participants on the market for balancing energy, and in particular on the German market, is limited.
90      Similarly, according to the applicant, the Board of Appeal erred in refusing to find, in the contested decision, that it was individually concerned by the initial decision, on an interpretation of Article 28(1) of Regulation 2019/942 informed by the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107) and having regard to the specific features of ACER’s internal appeal procedure. That case-law is open and leaves room for new situations to be identified, based on the particularities of the appeal procedure in question.
91      With regard to the specific features of ACER’s internal appeal procedure, the applicant observes that, according to recital 34 of Regulation 2019/942, ACER decisions, as market regulation measures, concern a large number of actors who, for reasons of procedural economy, must be granted a right to bring an
internal appeal, before an independent Board of Appeal within ACER, before potentially bringing the matter before the EU judicature. According to the case-law, the ‘specific conditions and arrangements concerning actions brought … against acts of [the] bodies, offices or agencies [of the European Union]’ referred to in the fifth paragraph of Article 263 TFEU relate precisely to the establishment of purely internal procedures, conducted before legal proceedings are brought, such as the administrative mechanism of full technical self-monitoring by experts that was set up within ACER.
92      With regard to the interpretation of Article 28(1) of Regulation 2019/942, in accordance with the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), the applicant states that, in the present case, it wishes only to rely on the fact that it is materially concerned by the initial decision in the same way as the TSOs, which are, as a matter of form, the only addressees, in accordance with the system of self-regulation of the balancing energy market by the TSOs, subject to approval by the NRAs or ACER, established by Article 4(1) of Regulation 2017/2195. That decision temporarily regulates the price of the balancing energy exchanges that it and the other suppliers concerned could agree, as contractual partners, with those TSOs and other third parties via the European platforms PICASSO and MARI. The applicant states that, while that decision accords with the TSOs’ proposal to reduce the price of the balancing energy they purchase, it is detrimental to its own interests and to those of the other suppliers concerned, in that, whereas they were previously free to negotiate the supply of balancing energy at a market price potentially exceeding EUR 15 000/MWh, and in some cases reaching EUR 99 999/MWh, that
decision deprives them of that possibility. It submits that, in the context of such a system of self-regulation of the market by the TSOs, subject to approval by ACER, the right to bring an internal appeal before ACER, and the full technical review conducted by the Board of Appeal, provided for in Article 28 of Regulation 2019/942, are an essential safeguard granted to market participants so that they can defend their interests.
93      ACER disputes the applicant’s arguments and contends that the first plea should be rejected.
94      As a preliminary remark, it should be observed that the reference to ‘specific conditions and arrangements’ in the fifth paragraph of Article 263 TFEU must be interpreted as concerning only the drawing up, by an institution, body, office or agency of the European Union, of purely internal terms and conditions which are prerequisites to legal proceedings, governing, inter alia, the operation of a self-monitoring mechanism or the course of an out-of-court settlement with a view to avoiding litigation before the Courts of the European Union (see, to that effect, order of 12 September 2013, European Dynamics Luxembourg and Others v OHIM, T‑556/11, EU:T:2013:514, paragraph 60, and judgment of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 107). Those specific conditions and arrangements must therefore remain entirely consistent with the general scheme laid down in Article 263 TFEU so far as concerns the jurisdiction of the EU judicature to hear proceedings assigned to it (see, to that effect, judgments of 4 February 2016, Italian International Film v EACEA, T‑676/13, EU:T:2016:62, paragraph 27; of 8 June 2016, Monster Energy
v EUIPO (Representation of a peace symbol), T‑583/15, EU:T:2016:338, paragraph 43, and of 8 June 2016 Monster Energy v EUIPO (GREEN BEANS), T‑585/15, not published, EU:T:2016:339, paragraph 41).
95      It follows that, where the same admissibility conditions are found in both the general scheme laid down in Article 263 TFEU and the specific conditions and arrangements adopted pursuant to the fifth paragraph of Article 263 TFEU, those conditions must, in principle, be interpreted in the same way. Thus, in order to determine whether the applicant was individually concerned by the contested act, namely the initial decision, for the purposes of Article 28(1) of Regulation 2019/942, reference must be made to the case-law relating to the second situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.
96      As regards the condition of individual concern under the fourth paragraph of Article 263 TFEU, it should be observed that natural or legal persons other than those to whom an act is addressed may claim to be individually concerned by that act only if it 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 those 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. 107).
97      Furthermore, the case-law based on the fourth paragraph of Article 263 TFEU establishes a principle
that it is for the applicant, being a natural or legal person who is not the addressee of the contested measure, to rely on
and substantiate, in support of its action, the attributes peculiar to it or the factual circumstances which differentiate it from any other person and distinguish it individually just as in the case of the person addressed (see, to that effect, orders of 28 September 2011, UCAPT v Council, T‑96/09, not published, EU:T:2011:542, paragraph 47, and of 6 May 2020, Sabo and Others v Parliament and Council, T‑141/19, not published, EU:T:2020:179, paragraph 32). In that
regard, Article 15(1)(d) of the Rules of Procedure of the Board of Appeal makes clear that it is for the appellant to establish that it is directly and individually concerned by the ACER decision, in accordance with Article 28(1) of Regulation 2019/942.
98      In the present case, as is apparent from the description of its arguments given in paragraph 43 of the contested decision, which is not challenged in the present action, read in conjunction with paragraphs 24 to 28 of its statement of the grounds of the appeal before the Board of Appeal, of 27 April 2022, the applicant claimed, before the Board of Appeal, to be individually concerned by the initial decision on the basis that it was active on the German market for balancing energy and was one of the largest suppliers on that market. That decision, it submitted, affects a predetermined group of economic actors, consisting of suppliers of balancing energy which have successfully obtained prequalification for facilities for the supply of balancing energy, or which are in the process of obtaining prequalification for their facilities.
99      In paragraphs 44 to 48 of the contested decision, the Board of Appeal examined the ‘attributes’ or ‘factual circumstances’ thus relied on by the applicant and found that they were not sufficient to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).
100    In the present action, the applicant complains, in essence, that the Board of Appeal did not find, in the contested decision, that it was individually concerned by the initial decision by reason of attributes which were peculiar to it and which, especially when taken together, differentiated it from any other person.
101    First, the applicant argues that the initial decision substantially affected its position on the German market for the supply of balancing energy. The initial decision constitutes interference in that market, in that it prevents free price formation, infringes the freedom to conduct a business, reduces the scope for price competition and prevents energy suppliers, even those with efficient and competitive facilities, from covering their opportunity costs, which can be very high during periods of high demand for balancing energy. The initial decision concerns only a relatively small and stable number of balancing energy suppliers which, like the applicant, operate in the Czech Republic, Germany or Austria – the only areas in which the European platforms PICASSO and MARI are currently operational – and have succeeded, following a long and costly procedure, in obtaining prequalification for facilities for the supply of balancing energy. The initial decision caused a reduction in the value of the significant investments that those balancing energy suppliers had made in order to obtain prequalification for their facilities, whereas their potential competitors were able to avoid making such investments by refraining from
entering the market.
102    Second, the applicant relies on its active participation in the procedure leading to the adoption of the initial decision.
103    Third, the applicant relies on the fact that ACER took due account, in the initial decision, of its position on a substantive level.
104    Fourth, the applicant submits that procedural guarantees conferred on it by EU law were infringed in the context of the adoption of the initial decision. Last, the applicant
submits, in essence, that the requirement for appellants to be individually concerned must be interpreted in a specific way in the context of appeals against ACER decisions brought before the Board of Appeal, given the large number of market participants liable to be affected by such decisions.
105    In its pleadings, ACER supports the Board of Appeal’s position that the ‘attributes’ or ‘factual circumstances’ relied on by the applicant before the General Court are not sufficient, whether taken by themselves or together, to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107) (see paragraph 99 above).
106    As regards the ‘attributes’ or ‘factual circumstances’ which were relied on by the applicant before the Board of Appeal and examined by that
board in the contested decision, namely the fact that it was active on the German market for balancing energy and the fact that it was one of the largest suppliers on that market, and which it has developed in the present action by submitting that its position on that market was substantially affected by the initial decision (see paragraphs 98, 99 and 101 above), the applicant refers to the case-law of the EU judicature on State aid and concentrations.
107    In that regard, it is true that, according to the case-law, in addition to the undertaking which is the beneficiary of the aid measure which is the subject of the contested decision, competing undertakings have been recognised as individually concerned by a Commission decision terminating a formal investigation procedure in the field of State aid where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid measure (see judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 33 and the case-law cited). In that context, an undertaking cannot rely solely on its status as a competitor of the undertaking which is the beneficiary of the aid measure but must additionally show that its circumstances distinguish it in a similar way to the beneficiary (judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 48).
108    Furthermore, it is apparent from the case-law in the field of concentrations that, in the case of a decision finding a concentration to be compatible with the internal market, and with regard to an undertaking which is not a party to that concentration, whether that undertaking is individually concerned must be determined
on the basis, first, of its participation in the administrative procedure and, second, of
the effect on its market position. In order to accept, in that context, that an applicant’s market position is affected, the EU judicature
takes account of the fact that that applicant is one of the main competitors of the parties to the concentration, which are the beneficiaries of the decision authorising that concentration
(see, to that effect, judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 37; of 20 December 2023, Mainova v Commission, T‑64/21, not published, under appeal, EU:T:2023:843, paragraph 85; and of 20 December 2023, enercity v Commission, T‑65/21, not published, under appeal, EU:T:2023:844, paragraph 83), or the fact that, although it is merely a competitor of those parties, the concentration
has a specifically identified potential impact on its economic situation, such as a reduction in the value of significant investments made and calculated over the long term, in the light of the pre-existing market structure (see, to that effect, judgments of 17 May 2023, EVH v Commission, T‑312/20, under appeal, EU:T:2023:252, paragraphs 42 and 46; of 17 May 2023, TEAG v Commission, T‑315/20, not published, under appeal, EU:T:2023:259, paragraphs 42 and 46; and of 17 May 2023, GGEW v Commission, T‑319/20, not published, under appeal, EU:T:2023:263, paragraphs 42 and 46), or the fact that it is a potential competitor of the parties to the concentration
in the case of an oligopolistic market, or, in certain circumstances, the fact that it is present on neighbouring markets upstream or downstream of a market on which an undertaking holding a monopoly sees its position strengthened by the concentration
(see, to that effect, judgment of 30 September 2003, ARD v Commission, T‑158/00, EU:T:2003:246, paragraph 78).
109    However, the case-law cited in paragraphs 107 and 108 above is based, at least in part, on the existence of an actual or potential competitive relationship between the beneficiaries of the contested decision, on the market concerned by that decision, and the applicant, whose position on that market or on neighbouring markets, upstream or downstream, is, in a specifically identified way, adversely and, as the case may be, substantially affected by that decision.
110    In the present case, the applicant does not claim, let alone demonstrate, that some of its competitors, on the German market for balancing energy on which it operates and to which the initial decision relates, benefit from that decision on that market. On the contrary, in the arguments it has presented it goes no further than to assert a general impact of the initial decision on the German market for balancing energy, adversely affecting all balancing energy suppliers which, like the applicant, operate on that market as well as on the Czech and Austrian markets.
111    Even supposing that, as one of the largest suppliers on the German market for balancing energy, the applicant suffered a greater adverse economic effect than some of its competitors on that market, that would not be sufficient to distinguish it individually under the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107). It is settled case-law that it is not sufficient that certain operators may be more affected economically by an act than their competitors for them to be considered to be individually concerned by it. Thus, even assuming that a decision has a particular impact on the economic situation of the applicant, that fact is not sufficient to differentiate it from any other person (orders of 2 April 2004, Gonnelli and AIFO v Commission, T‑231/02, EU:T:2004:105, paragraph 45; of 12 March 2007, Confcooperative, Unione regionale della Cooperazione Friuli-Venezia Giulia Federagricole and Others v Commission, T‑418/04, not published, EU:T:2007:83, paragraph 57; and of 13 November 2008, Lemaître Sécurité v Commission, T‑301/06, not published, EU:T:2008:495, paragraph 24).
112    Moreover, the fact that the initial decision concerned a relatively small and stable number of balancing energy suppliers which, like the applicant, had succeeded in obtaining prequalification for facilities for the supply of balancing energy and were active on the German market for balancing energy, as well as the Czech and Austrian markets, is also not sufficient to distinguish the applicant individually under the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107). It is also clear from settled case-law that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that those persons must be regarded as being individually concerned by that measure as long as it is applied by virtue of an objective legal or factual situation defined by the measure at issue (see judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 35 and the case-law cited; orders of 19 September 2022, TDK Foil Italy v Commission, T‑788/21, not published, EU:T:2022:581, paragraph 18, and of 7 December 2022, Sunrise Medical and Sunrise Medical Logistics v Commission, T‑721/21, not published, EU:T:2022:791, paragraph 53). In the present case, as the Board of Appeal observed, in essence, in paragraph 48 of the contested decision, the initial decision concerns all suppliers of balancing energy in the same way, in that it applies to all market participants wishing to exchange balancing energy, in Germany, but also in the Czech Republic and Austria, on the European platforms PICASSO and MARI.
113    Last, the comparison made by the applicant in its pleadings between, on the one hand, the situation of the applicant and that of its competitors on the German market for balancing energy, following the initial decision, and, on the other, the situation of potential competitors on that market who were able to benefit from that decision by refraining, in the light of that
decision, from incurring the costs of obtaining prequalification for their facilities in order to be able to enter that market is not such as to establish an actual or potential competitive relationship between the former and the latter.
114    Furthermore, the applicant does not claim, let alone demonstrate, that it is in an actual or potential competitive relationship with the addressees and, in its view, the true beneficiaries of the initial decision on the German market for balancing energy, namely the TSOs to which that decision relates.
115    In those circumstances, the applicant, which has not established that it was in an actual or potential competitive relationship with the beneficiaries of the initial decision on the German market for balancing energy,
on which it operates and to which the initial decision relates,
cannot usefully
rely on the case-law cited in paragraphs 107 and 108 above in order to claim, as it does in the present case, that its position on that market was substantially affected by that decision.
116    As regards the ‘attributes’ or ‘factual circumstances’ which were relied on by the applicant before the Board of Appeal, namely the fact that it was active on the German market for balancing energy and the fact that it was one of the largest suppliers on that market, and which it has developed in the present action by submitting that its position on that market was substantially affected by the initial decision, within the meaning of the case-law cited in paragraphs 107 and 108 above, it must therefore be held that the Board of Appeal was correct
to hold, in paragraphs 45 to 48 of the contested decision, that those were not, in themselves, such as to distinguish the applicant individually, within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).
117    As regards the ‘attributes’ or ‘factual circumstances’ that were not referred to, in the contested decision, as having been relied on by the applicant before the Board of Appeal, and which, accordingly, were not considered by that
board in that decision, but which are relied on by the applicant in the present action (see paragraphs 102 to 104 above), the General Court invited the parties, by means of a measure of organisation of procedure, to indicate a position as to their admissibility.
118    In that regard, the applicant claimed
that the issue of standing to bring an appeal before the Board of Appeal should have been examined by that
board of its own motion, through an application, by analogy, (i) of the
case-law according to which the admissibility of an action for annulment before the General Court is a question of public policy which is for that court to examine at any time, even of its own motion, and (ii) of Article 15 of the Rules of Procedure of the Board of Appeal. As regards the issue of whether an applicant is individually concerned, the Board of Appeal should thus have taken into account, of its own motion, all the relevant information at its disposal. In the present case, that
board had at its disposal the evaluation report on the public consultation carried out by ACER pursuant to Article 14(6) of Regulation 2019/942, which was in Annex II to the initial decision and attested to the applicant’s active participation in the administrative procedure that
preceded the adoption of the initial decision. Furthermore, the applicant states that it referred to its participation in that procedure in paragraphs 27 and 49 of its statement of the grounds of the appeal
before the Board of Appeal, of 27 April 2022, where it referred for further detail to Annex II to the initial decision, in footnotes 9 and 19, as well as in paragraphs 25 to 33 of its supplementary observations of 22 July 2022. The applicant also states that, in connection with the sixth ground of its appeal, it relied on its right to express its views, under Article 14(6) of Regulation 2019/942, having been infringed in the administrative procedure, in paragraph 118 et seq. of the statement of the grounds of the appeal and in paragraph 26 of its supplementary observations, where it also referred to its right to be consulted under Article 14(1) of that regulation.
119    ACER contended, with regard to whether the applicant was individually concerned, that, in paragraphs 24 to 28 of its statement of the grounds of the appeal, which concern that issue, the applicant had essentially relied on the fact that it was one of the largest suppliers operating on the German market for balancing energy, and that the applicant was therefore unable to raise, at a later stage and thus out of time, other ‘attributes’ or ‘factual circumstances’ that might distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).
120    In that regard, it must be stated that ‘attributes’ or ‘factual circumstances’ not relied on or demonstrated by the applicant before the Board of Appeal cannot be taken into account by the General Court in assessing the legality of the decision which is challenged. Under Article 29 of Regulation 2019/942, read in conjunction with Article 263 TFEU, the General Court is called upon to assess the legality of the decision of the Board of Appeal by reviewing the application of EU law made by that board, particularly in the light of facts which were submitted to the latter. By
contrast, that Court cannot carry out such a review by taking into account matters of fact newly raised or produced before it (see, to that effect and by analogy, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 54, and of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 76).
121    Furthermore, it follows from the rules governing the procedure before the Courts of the European Union, in
particular Article 21 of the Statute of the Court of Justice of the European Union and Article 76 and Article 84(1) of the Rules of Procedure, that the dispute is in principle determined
and circumscribed by the parties and that the EU judicature may not rule
ultra petita (see judgment of 17 September 2020, Alfamicro v Commission, C‑623/19 P, not published, EU:C:2020:734, paragraph 40 and the case-law cited; judgment of 22 December 2022, Parliament v Moi, C‑246/21 P, not published, EU:C:2022:1026, paragraph 55). Moreover, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, Article 120(c) and (d) of the Rules of Procedure of the Court of Justice and points (c) and (d) of the first paragraph of
Article 76 of the Rules of Procedure, in direct actions before the Courts of the European Union, the application by which the action is brought must state, inter alia, the subject matter of the proceedings, a summary of the pleas in law relied on and the form of order sought by the applicant.
122    In the present case, in paragraphs 24 to 28 of its statement of the grounds of the appeal, the applicant relied, in essence, in support of its claim to be individually concerned by the initial decision, which temporarily froze the price at which balancing energy could be sold to the TSOs, on the specific fact that it was one of the largest suppliers operating on the German market for balancing energy.
123    In accordance with the case-law and with the wording of Article 15(1)(d) of the Rules of Procedure of the Board of Appeal, referred to in paragraph 97 above, that
board was entitled, in the contested decision, to take into consideration only the specific circumstance that the applicant had duly raised before it, as being such as to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), and was not obliged to examine
whether other ‘attributes’ or ‘factual circumstances’ capable of distinguishing the applicant individually could be deduced from the statement of the grounds of the appeal, the
annexes thereto or the supplementary observations, or, more generally, from the case file.
124    Even supposing that the Board of Appeal had unlawfully failed to take account, in the contested decision, of all the ‘attributes’ or ‘factual circumstances’ relied on before it by the applicant, it would have been for the applicant to object to that failure, by raising a plea to that effect which satisfied the requirements of clarity and precision laid down in Article 76(d) of the Rules of Procedure (see paragraph 114 above).
125    Failure to rule on a head of claim may result in the annulment, at least in part, of a decision adopted by an independent Board of Appeal of one of the bodies, offices or agencies of the European Union referred to in Article 58a of the Statute of the Court of Justice of the European Union (see, to that effect and by analogy, judgment of 8 June 2016, GREEN BEANS, T‑585/15, not published, EU:T:2016:339, paragraph 27 and the case-law cited).
126    While it is true that, in paragraphs 50 to 59 of the application, the applicant refers, as circumstances capable of distinguishing it individually within the meaning of the case-law originating from the judgment in Plaumann v Commission (25/62, EU:C:1963:17, p. 107), to its active participation in the administrative procedure that preceded the adoption of the initial decision, and to infringement of its right to express its views prior to the adoption of that decision, under Article 14(6) of Regulation 2019/942 and Article 41 of the Charter, it has not clearly and specifically raised, in that regard, a plea seeking annulment of the contested decision on the ground that, in that decision, the Board of Appeal unlawfully failed to rule on those ‘attributes’ or ‘factual circumstances’, which had been duly relied on before it.
127    Consequently, the applicant is not entitled to rely, in the present action, on ‘attributes’ or ‘ factual circumstances’ which were not referred to
in the contested decision as having been relied on by it before the Board of Appeal, and which, accordingly, were not examined by that
board in that decision (see paragraphs 102 to 104 above).
128    The first plea must therefore be dismissed as unfounded, with the result that the principal claim, seeking annulment of the contested decision, has no basis and must itself be dismissed as unfounded. It is therefore appropriate to continue by examining the alternative claim.
The alternative claim, seeking annulment of the initial decision
129    In support of the alternative claim, the applicant puts forward six pleas in law alleging, in essence, first, infringement of Article 10(1) of Regulation 2019/943, second, that ACER had no power to make a determination on the TSOs’ proposal, third, that ACER had no power to create a regulatory scheme that was independent of that proposed by the TSOs, fourth, failure to comply with the objectives pursued by Regulation 2017/2195, fifth, failure to state reasons, and sixth, infringement of the right to be heard guaranteed by Article 41 of the Charter and by Article 14(6) of Regulation 2019/942.
130    ACER submits that the alternative claim, which was made on 17 February 2023, is manifestly inadmissible for failure to comply with the time limit of two months and ten days for bringing an action for annulment of the initial decision, as laid down in the sixth paragraph of Article 263 TFEU, read in conjunction with Article 60 of the Rules of Procedure, which would have run, at the latest, from the date on which the applicant lodged its appeal with the Board of Appeal, namely 27 April 2022. There is no excusable error that can legitimately be relied on by the applicant, bearing in mind that the information on remedies contained in the initial decision was expressly addressed to the addressees of that decision and that, on a proper interpretation of the wording of Article 29 of Regulation 2019/942, that provision did
not prejudice the applicant’s right to bring an action for annulment of that decision directly before the General Court on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. In any event, the alternative claim should be dismissed as unfounded.
131    The applicant objects that the failure to observe the time limit for bringing an action results, in the present case, from an excusable error, in so far as, in the light of the information on remedies provided in the initial decision, and the wording of Article 29 of Regulation 2019/942, it was justified in not believing that it was able to bring an action for annulment before the General Court without first exhausting the appeal procedure referred to in Article 28 of that regulation.
132    As regards the plea of inadmissibility raised by ACER in respect of the alternative claim, it should be observed, first of all, that, as is apparent from paragraph 45 above, the applicant in the present case was able to bring an action for annulment of the initial decision directly before the EU judicature, on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.
133    Furthermore, it is apparent from the sixth paragraph of Article 263 TFEU that actions for annulment are to be brought within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
134    No derogation from the application of the European Union’s rules on procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 56 and the case-law cited).
135    It is also apparent from the case-law that, in the context of the European Union’s rules on time limits for instituting proceedings, the concept of ‘excusable error’ justifying a derogation from those rules can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 59 and the case-law cited).
136    In the present case, the initial decision was published on the ACER website on 28 February 2022, and the applicant brought its appeal before the Board of Appeal on 27 April 2022. Even supposing that the initial decision came to the knowledge of the applicant only on the day it lodged its appeal with the Board of Appeal, applying the rules on the calculation of time limits laid down in Articles 58 and 60 of the Rules of Procedure, which correspond to Articles 49 and 51 of the Rules of Procedure of the Court of Justice, it must be held that, on the date on which the present action was brought, namely 17 February 2023, the applicant was barred from challenging that decision.
137    Furthermore, the applicant is not entitled, in the circumstances of the present case, to rely on an excusable error within the meaning of the case-law cited in paragraph 135 above.
138    First, ACER did not give the applicant any specific assurance that the Board of Appeal was competent to hear an appeal brought by the applicant
against the initial decision, since the information on remedies given at the end of the initial decision was expressly intended for the ‘addressees’ of that decision, namely the TSOs of the CORE region, in relation to which that information was, moreover, correct (see paragraph 44 above). By
contrast, the initial decision did not provide any information on the remedies available to natural or legal persons other than those addressees. Thus, the statements in question cannot be characterised as conduct of ACER that
was such as to give rise to a pardonable confusion in the mind of the applicant as regards the competence of the Board of Appeal to hear an appeal brought by the applicant against the initial decision.
139    Second, on an interpretation of the wording of Article 29 of Regulation 2019/942 that accords with primary EU law, that article does not preclude natural or legal persons who, like the applicant, are directly but not individually concerned by an ACER act of general application not entailing implementing measures from bringing an action for annulment of that act directly before the EU judicature, on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. Moreover, in paragraph 117 of the application, the applicant itself has stated that ‘the action to which the alternative claim relates is not subject to the requirement that the appeal procedure has been exhausted, in accordance with the fifth paragraph of Article 263 TFEU and Article 29 of Regulation 2019/942, since it is a requirement of primary law that the applicant may bring a direct action’.
140    Thus, in the present case, the applicant cannot usefully
rely on the case-law based on the general wording of certain texts governing remedies or on the current practice with regard to findings of excusable error in a situation where an action has been brought before the EU judicature out of time, following the exhaustion of an internal appeal procedure which, in this specific case and in accordance with the case-law, was not applicable (see, to that effect, judgments of 14 June 1972, Marcato v Commission, 44/71, EU:C:1972:53, paragraphs 5 to 9, and of 5 April 1979, Orlandi v Commission, 117/78, EU:C:1979:109, paragraphs 9 to 11).
141    It follows that the applicant cannot rely on any excusable error that might justify a derogation, in the present case, from the obligation to comply with the prescribed time limit for bringing proceedings.
142    Consequently, the alternative claim for annulment of the initial decision must also be dismissed, as inadmissible, and the action must therefore be dismissed in its entirety.
Costs
143    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
144    Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by ACER.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition),
hereby:
1.      Dismisses the action;
2.      Orders RWE Supply & Trading GmbH to pay the costs.
van der Woude
Škvařilová-Pelzl
Nõmm
Steinfatt
Kukovec
Delivered in open court in Luxembourg on 25 June 2025.
[Signatures]
Contents
Background to the dispute
Forms of order sought
Law
The principal claim, seeking annulment of the contested decision
The second plea, alleging infringement of the fourth paragraph of Article 263 TFEU
The third plea, alleging infringement of the principle of effective judicial protection, as expressed in Article 47 of the Charter and in the general principles of EU law
The first plea, alleging infringement of Article 28(1) of Regulation 2019/942
The alternative claim, seeking annulment of the initial decision
Costs
*      Language of the case: German.