Provisional text
ORDER OF THE PRESIDENT
OF THE SEVENTH CHAMBER OF THE GENERAL COURT
14 November 2016(*)
(Procedure — Intervention — Action for annulment — Board of Appeal of the Agency for the Cooperation of Energy Regulators — No interest in the result of the case — Dismissal of the application to intervene)
In Case T‑63/16,
Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), established in Vienna (Austria), represented by F. Schuhmacher, lawyer,
applicant,
supported by
Republic of Austria, represented by C. Pesendorfer, acting as Agent,
intervener,
v
Agency for the Cooperation of Energy Regulators (ACER), represented by E. Tremmel, acting as Agent,
defendant,
supported by
Czech Republic, represented by M. Smolek, T. Müller, and J. Vláčil, acting as Agents,
Republic of Poland, represented by B. Majczyna, acting as Agent,
Polskie Sieci Elektroenergetyczne S.A., represented by M. Motylewski and A. Kulińska, lawyers,
interveners,
ACTION under Article 263 TFEU for the annulment of Decision No A‑001-2015 of the Board of Appeal of the Agency for the Cooperation of Energy Regulators, of 16 December 2015, concerning the annulment of Opinion No 09/2015 of the Agency for the Cooperation of Energy Regulators, of 23 September 2015, on the compliance of the decisions of National Regulatory Authorities approving the methods of allocation of cross-border transmission capacity in the Central and East Europe (CEE) region with Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15), and with the guidelines on the management and allocation of available transfer capacity of interconnections between national systems set out in Annex I to that regulation,
makes the following
Order
1        On 2 December 2014, the Urząd Regulacji Energetyki, the Polish National Regulatory Authority, lodged, with the Agency for the Cooperation of Energy Regulators (ACER), a request for an opinion pursuant to Article 7(4) of Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ 2009 L 211, p. 1) on the question whether the decision of the National Regulatory Authority of Slovenia, reference number 141‑4/2013‑09/203, the decision of the applicant, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), reference number V AUK 02/13, the decision of the National Regulatory Authority of Hungary, reference number 2538/2014, and the decision of the National Regulatory Authority of Slovakia, reference number 0027/2014/E-PP, (‘the decisions at issue’), were in compliance with Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15), and also with the guidelines on the management and allocation of available transfer capacity of interconnections between the national systems set out in Annex I to that regulation.
2        Following that request, on 23 September 2015, ACER adopted Opinion No 09/2015 on the compliance of the National Regulatory Authorities’ decisions approving the methods of allocation of cross-border transmission capacity in the Central and East Europe region with the regulation on the conditions of access and the management and allocation of available transfer capacity of interconnections between the national systems contained in Annex I to the regulation (‘the opinion at issue’). The opinion at issue identifies Article 7(4) of Regulation No 713/2009 as its legal basis.
3        As regards the operative part of the opinion at issue, ACER held, in essence, that, first, the interconnection between Germany and Austria had to be considered to be usually and structurally congested within the meaning of Article 2(2)(c) of Regulation No 714/2009, and points 1.2 and 1.4 of Annex I thereto. Secondly, it was necessary to implement transparent, non-discriminatory, and market-based congestion management procedures compliant with Regulation No 714/2009. Thirdly, it was necessary to implement a capacity allocation method on the German-Austrian border in accordance with Article 16(1) of that regulation and points 1.2, 1.4 and 3.1 of Annex I thereto. Fourthly, the decisions at issue did not comply with Article 16(1) of that regulation and points 1.2, 1.4 and 3.1 of Annex I thereto to the extent that they approved rules for the allocation of cross-border transmission capacity without providing for an allocation of cross-border capacity on the German-Austrian border.
4        Consequently, and fifthly, ACER invited, first of all, the transmission system operators and the national regulatory authorities of the Central and East Europe region:
–        to commit, within four months of the date on which the opinion at issue was adopted and published, to the adoption of a coordinated capacity allocation procedure on the German-Austrian border, with a realistic but ambitious implementation calendar with concrete steps. That implementation calendar should give transmission system operators and market participants a reasonable amount of time to prepare themselves for that important change;
–        to allocate maximum resources and efforts to the implementation of flow-based market coupling in the Central and East Europe region as early as possible and to work together constructively to avoid any further delays or disputes; and
–        to evaluate, within four months of the date on which the opinion at issue was adopted and published, whether the interim measures already implemented are sufficient to ensure network security, or whether additional interim measures coordinated at regional level are necessary to ensure that the network is operated safely until a coordinated capacity allocation procedure on the German-Austrian border is implemented.
5        Next, ACER invited the German and Austrian transmission system operators and national regulatory authorities to evaluate the need for potential transitory regulatory measures for market participants in order to accompany the implementation of a coordinated capacity allocation procedure on the German-Austrian border.
6        Furthermore, it invited ‘all relevant [national regulatory authorities]’ to continue supporting the market integration process during the transitional period until a coordinated allocation procedure on the German-Austrian border was implemented. That support might require the approval, in the Central and East Europe region, of congestion management rules which did not comply in full with Regulation No 714/2009 and Annex I thereto until the measure recommended above became effective.
7        Sixthly, the operative part of the opinion at issue points out that it is without prejudice to the determination of the capacity calculation regions pursuant to Article 15 of Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24) and to the final outcome of the bidding zone review process, pursuant to Article 32 of that regulation.
8        On 23 November 2015, the applicant lodged an appeal with the Board of Appeal of ACER seeking to have the opinion at issue annulled.
9        By decision of 16 December 2015 (‘the contested decision’), the Board of Appeal of ACER dismissed the appeal as inadmissible on the ground that, in essence, the opinion at issue was not an act that could be the subject of an appeal before it.
10      By application lodged with the Court Registry on 15 February 2016, the applicant brought the action in the present case, by which it asks the General Court to annul the contested decision.
11      By document lodged with the Court Registry on 15 May 2016, the applicant for leave to intervene, Verbund AG, made an application to intervene in support of the form of order sought by the applicant (‘the application to intervene’), by which it also requested that it receive all procedural documents that had been served on the parties. The applicant for leave to intervene submits, in essence, that it is an electricity undertaking and accordingly an economic operator in the Austrian and German electricity markets and that the introduction of a capacity allocation procedure on the German-Austrian border would result in distortion on those markets. More specifically, the applicant for leave to intervene submits, first, that implementation of the opinion at issue would affect the functioning of the Austrian electricity sector and its own commercial activities. Its implementation would restrict the possibility for the applicant for leave to intervene to perform contracts with German clients, thus affecting its legal position in relation to its German clients, and its investments in the German-Austrian common electricity market would lose their usefulness. Second, according to it, the contested decision infringes its interest in an examination of the legality of the opinion at issue.
12      The application to intervene was served on the parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
13      By document lodged with the Court Registry on 30 June 2016, ACER raised objections to the application to intervene and invited the Court to dismiss it.
14      The application to intervene was brought in accordance with Article 143 of the Rules of Procedure.
15      Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case. An application to intervene is to be limited to supporting the form of order sought by one of the parties.
16      It follows from settled case-law that the concept of ‘an interest in the result of the case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The words ‘result of a case’, used in that provision, refer to the final decision sought, as set out in the operative part of the future judgment. It is appropriate, in particular, to ascertain that the applicant for leave to intervene is directly affected by the contested measure and that its interest in the result of the case is certain. Generally, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the party applying to intervene (see order of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraphs 6 and 7 and the case-law cited).
17      It is also clear from the case-law that it is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific act whose annulment is sought and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties (order of 25 February 2003, BASF v Commission, T‑15/02, EU:T:2003:38, paragraph 27 and the case-law cited).
18      In addition, it is for the applicant for leave to intervene to adduce the necessary evidence to prove that it satisfies the conditions set out in paragraph 16 above (see, to that effect, order of 17 October 2011, Gesamtverband der Deutschen Textil- und Modeindustrie and Others v Council and Others, C‑3/11 P(I), not published, EU:C:2011:665, paragraph 31).
19      In the present case, as regards the argument that the implementation of the opinion at issue would affect the functioning of the Austrian electricity sector and the commercial activities of the applicant for leave to intervene, the latter submits that it is an electricity undertaking within the meaning of Article 2.35 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55), namely a legal person carrying out functions relating to generation, transmission, distribution, supply or purchase of electricity, which is responsible for the commercial, technical or maintenance tasks related to those functions, but not including final customers.
20      It must be held that, as was set out in paragraphs 3 to 7 above, the opinion at issue is addressed to the national regulatory authorities and the transmission system operators of the Central and East Europe region and therefore not to electricity undertakings, such as the applicant for leave to intervene. Even if, contrary to the finding in the contested decision, the opinion at issue creates binding obligations for those authorities and operators, it would be capable of creating effects as regards the applicant for leave to intervene only to the extent that those bodies actually took the measures described in paragraphs 3 to 7 above. There is nothing automatic, therefore, as regards the impact that the realisation of those effects might have on the legal position of the applicant for leave to intervene.
21      The applicant for leave to intervene does not raise any argument that it is a transmission system operator, within the meaning of Article 2.4 of the directive, or a national regulatory authority within the meaning of Article 35 of that directive.
22      It must be held that the opinion at issue, on the assumption that it is binding, leaves, in any event, a broad discretion to the national regulatory authorities and transmission system operators of the Central and East Europe region as to the choice of appropriate measures in order to attain the objectives described in its operative part. Furthermore, even if the national regulatory authorities and transmission system operators of the Central and East Europe region take measures in order to comply with the opinion at issue, it must be held that the elements relied on by the applicant for leave to intervene in its application are insufficient to establish that the consequences of implementation of that opinion which it invokes, such as, in particular, the restriction of possibilities of performing contracts with German clients, and the fact that its investments in the common German-Austrian electricity market would lose their usefulness, would, necessarily, actually and directly follow as a result of such implementation.
23      In so far as the applicant for leave to intervene submits that the contested decision infringes its interest in having the legality of the opinion at issue examined, it must be noted that the annulment of that opinion would also not necessarily lead to an examination of its merits, since it is for the Board of Appeal of ACER to determine whether an appeal before it is admissible on other grounds and whether it is necessary to carry out an assessment of the merits thereof.
24      It follows that, if the Court were to annul the contested decision or dismiss the present action, that would have no direct or existing effect on the legal position of the applicant for leave to intervene.
25      In the alternative, it must be noted that the contested decision found that the opinion at issue does not include any obligation for the national regulatory authorities and the transmission system operators of the Central and East Europe region to take any particular measure on the ground that the opinion is non-binding. The form of order sought by the applicant, which the applicant for leave to intervene wishes to support, seeks the annulment of the contested decision on the ground, inter alia, that it does have such legal effects. It must therefore be observed that the application to intervene seeks to support a form of order that is not capable of procuring any advantage for the applicant for leave to intervene and which therefore goes against its own interests.
26      It follows from all the foregoing that the applicant for leave to intervene has not established that it has a direct and existing interest in the ruling on the form of order sought by the applicant and, hence, the application to intervene must be dismissed.
27      Since the applicant for leave to intervene is not to be admitted as an intervener, it is not necessary to adjudicate on its request to have served on it all the procedural documents served on the parties.
28      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. Since neither the applicant for leave to intervene nor any of the main parties have sought an order, in the context of the present application to intervene, requiring the unsuccessful party to pay the costs, it is appropriate to order each of them to bear its own costs.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The application to intervene lodged by Verbund AG is dismissed.
2.      It is unnecessary to adjudicate on the request by Verbund AG to have served on it all the procedural documents served on the parties.
3.      Verbund AG, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) and the Agency for the Cooperation of Energy Regulators (ACER) shall bear their own respective costs relating to the application to intervene.
Luxembourg, 14 November 2016.
E. Coulon
V. Tomljenović
Registrar
President
* Language of the case: English.