62023TJ0096_RES
Case T‑96/23
Uniper Global Commodities SE
v
European Union Agency for the Cooperation of Energy Regulators
Judgment of the General Court (Third Chamber, Extended Composition) of 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)
Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Identification of pleas in law by reference to their substance and not their formal characterisation
(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(d))
(see paragraphs 23, 25)
Plea of illegality – Incidental nature – Implied but clear wording in the application – Admissibility
(Art. 277 TFEU)
(see paragraphs 24, 26, 27)
EU law – Interpretation – Methods – Provision with clear and precise wording – Obligation to ensure the effectiveness of the provision
(see paragraphs 31-34)
EU law – Interpretation – Methods – Obligation to interpret secondary EU law in accordance with a rule of superior binding force – Limits – Interpretation contra legem – Not permissible
(see paragraphs 35-37, 79, 80)
Action for annulment – Natural or legal persons – Regulatory acts – Acts not entailing implementing measures and concerning the applicant directly – Decision of the European Union Agency for the Cooperation of Energy Regulators (ACER) amending the methodology for pricing balancing energy – Included
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2019/942)
(see paragraph 42)
Action for annulment – Natural or legal persons – Admissibility criteria – Decision of the European Union Agency for the Cooperation of Energy Regulators (ACER) amending the methodology for pricing balancing energy – Act establishing ACER providing for an internal remedy against the decision of ACER – Action for annulment brought against the decision of ACER without exhausting the internal remedy – Admissibility – Condition – Applicant not fulfilling the admissibility conditions for bringing an internal appeal – Condition fulfilled – Infringement of the principles of equality and effective judicial protection – None
(Art. 263, fifth para., TFEU; Charter of Fundamental Rights of the European Union, Arts 20 and 41; European Parliament and Council Regulation 2019/942, recital 34 and Arts 28(1) and 29)
(see paragraphs 43-45, 48, 54-75)
Action for annulment – Natural or legal persons – Acts of direct and individual concern to them – Individual concern – Criteria – Decision of the European Union Agency for the Cooperation of Energy Regulators (ACER) amending the methodology for pricing balancing energy – Action brought by an undertaking active on the market affected by that decision – Undertaking not having demonstrated that its position on the market was substantially affected – Inadmissibility
(Art. 263, fourth para., TFEU)
(see paragraphs 92-111)
EU agencies – European Union Agency for the Cooperation of Energy Regulators (ACER) – ACER decision – Procedure for bringing an internal appeal before the Board of Appeal – Action before the EU judicature – Jurisdiction – Review of the legality of decisions of the Board of Appeal – Account to be taken only of the matters of fact and law presented to the Board of Appeal
(Art. 263 TFEU; European Parliament and Council Regulation 2019/942, Art. 29)
(see paragraphs 115, 122)
Judicial proceedings – Time limits for instituting proceedings – Time-barred – Excusable error – Meaning – Scope
(Art. 263, sixth para., TFEU)
(see paragraphs 128-136)
Résumé
The General Court confirms the validity of the decisions of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) dismissing, as inadmissible, the actions brought by two companies against ACER’s decision on the amendment to the methodology for pricing balancing energy. In doing so, the Court rules, first, on the standing of natural or legal persons to bring appeals before the Board of Appeal of ACER, pursuant to Article 28(1) of Regulation 2019/942. (
1
) Secondly, it provides clarification as to the assessment of whether natural or legal persons are individually concerned by decisions adopted by ACER.
By decision of 24 January 2020, ACER adopted, on a proposal from the transmission system operators, a methodology for pricing balancing energy 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 99999 per megawatt hour (MWh).
By decision of 25 February 2022 (‘the initial decision’), ACER temporarily amended that methodology, replacing the technical price limit in question with a price limit of plus or minus EUR 15 000/MWh, applying exclusively to exchanges of balancing energy on the European platforms PICASSO and MARI, for a period of 48 months from 1 July 2022.
The applicants, RWE Supply & Trading GmbH and Uniper Global Commodities SE, are two balancing energy suppliers active on the German market, on which the European platforms PICASSO and MARI are operational.
Considering themselves to have been adversely affected by the initial decision, they each brought an appeal before the Board of Appeal of ACER (‘the Board of Appeal’). By two decisions of 9 December 2022 (‘the contested decisions’), that board dismissed the appeals as inadmissible on the ground of lack of standing under Article 28(1) of Regulation 2019/942.
Under that provision, any natural or legal person may appeal against a decision of ACER which is addressed to that person or against a decision which is of direct and individual concern to that person. In circumstances where the applicants were not the addressees of the initial decision, the Board of Appeal took the view that that decision was of direct but not individual concern to them.
Against that background, the applicants brought actions before the Court seeking annulment of the contested decisions and, in the alternative, of the initial decision.
Findings of the Court
In support of their action, the applicants object, inter alia, that the Board of Appeal infringed the fourth paragraph of Article 263 TFEU (
2
) by finding that they did not have the requisite standing to bring an appeal against the initial decision before it. However, that decision is a regulatory act which concerns the applicants directly and does not entail implementing measures. Accordingly, it is challengeable before the EU judicature under the fourth paragraph of Article 263 TFEU.
According to the applicants, in order to comply with the principle of effective judicial protection laid down in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as implemented by the fourth paragraph of Article 263 TFEU, and with the principle of equality before the law, enshrined in Article 20 of the Charter, Article 28(1) of Regulation 2019/942 should have been interpreted as allowing them to bring an appeal against the initial decision before the Board of Appeal.
The Court notes, as a preliminary point, that that first plea is in essence a two-fold complaint based, first, on the interpretation of Article 28(1) of Regulation 2019/942 having been inconsistent with the principles of effective judicial protection and equality before the law set out in Articles 20 and 47 of the Charter and, secondly, on an implicit plea of illegality relating to Article 28(1) of Regulation 2019/942, advanced on the ground of non-compliance with those same principles and articles of the Charter.
As regards the first complaint, it is apparent from settled case-law that 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.
In the present case, it is apparent from the clear and precise wording of Article 28(1) of Regulation 2019/942 that the applicants, as legal persons who are not addressees of the initial decision, may bring an action against that decision only if that decision concerns them not only directly but also individually. While it is true that the condition of individual concern laid down by that provision must be interpreted in the light of the general principles of EU law, as guaranteed by the Charter, a broad interpretation is possible only in so far as it is compatible with the wording of the provision in question and does not result in an interpretation that is contra legem.
It follows that, in the contested decisions, the Board of Appeal was justified in interpreting Article 28(1) of Regulation 2019/942 as permitting the applicants, as legal persons, to bring an appeal against the initial decision before that board only if they were concerned both directly and individually by that decision.
As regards the second complaint, the Court notes that, in accordance with the fifth paragraph of Article 263 TFEU, acts setting up bodies, offices and agencies of the European 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.
Thus, the EU legislature has provided, in Articles 28 and 29 of Regulation 2019/942, that natural or legal persons must, for reasons of procedural economy, have a right to appeal to the Board of Appeal against ACER acts which are addressed to them or which are of direct and individual concern to them. In that context, it decided not to include, among the natural or legal persons who may bring an appeal directly before the Board of Appeal, those falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU. Where, as in the present case, ACER adopts a regulatory act, such persons may bring an action for annulment directly before the Court.
In that regard, the Court rules that Article 29 of Regulation 2019/942, which provides that the internal appeal procedure must be exhausted before an action can be brought before the EU judicature, does not prevent the applicants from bringing an action for annulment directly before the Court. That provision must be interpreted as applying only to the categories of natural or legal persons who have standing to bring an appeal before the Board of Appeal for the purposes of Article 28 of that regulation.
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 do not fall within the scope of the mandatory prior appeal procedure established by Articles 28 and 29 of Regulation 2019/942, and must accordingly bring an action directly before the Court.
In the light of those considerations, the Court analyses, in the first place, whether the difference of treatment established by Article 28 of Regulation 2019/942 between natural or legal persons in the third situation envisaged by the fourth paragraph of Article 263 TFEU and natural or legal persons who are authorised to bring an appeal directly before the Board of Appeal, and who are in the first or second of the situations envisaged by the fourth paragraph of Article 263 TFEU, is compatible with the principle of equality before the law enshrined in Article 20 of the Charter.
As a preliminary remark, the Court observes that the creation of a board of appeal forms part of an overall approach to provide the EU agencies with review bodies where they have been given decision-making powers on complex technical or scientific issues. Those review bodies are an appropriate means of protecting the rights of the parties concerned in a context in which, where the EU authorities have a broad discretion, in particular in relation to highly complex scientific and technical facts, review by the EU judicature must be limited to verifying whether there has been a manifest error of assessment or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion.
Thus, by not allowing natural or legal persons in the third situation envisaged by the fourth paragraph of Article 263 TFEU to bring an action before the Board of Appeal, Article 28 of Regulation 2019/942 establishes a difference of treatment between, on the one hand, natural or legal persons who, like the applicant, can benefit only from the limited review of ACER decisions that is carried out by the Court – limited, in particular, as regards complex scientific, technical or economic assessments related to energy – and, on the other hand, those who are able to bring an appeal directly before the Board of Appeal and thus benefit from a full review of ACER decisions with regard to those assessments.
However, such a difference of treatment is justified by the closer or more distant link between the different categories of natural or legal persons concerned and the ACER decision. Those authorised to bring an appeal directly before the Board of Appeal 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 contrast, 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.
Furthermore, it is apparent from the case-law that, for the EU legislature to be accused of infringing the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons to disadvantages as opposed to others. The direct review of an ACER act that is carried out by the Court cannot be regarded as disadvantageous to natural or legal persons who are unable to bring an appeal directly before the Board of Appeal of ACER. That review mechanism must be regarded as an appropriate means of protecting the rights of natural or legal persons who have a more distant link with the act.
It follows that the EU legislature established, in Article 28(1) of Regulation 2019/942, a justified difference of treatment between natural or legal persons who are not in an identical or comparable situation with regard to ACER decisions. There is thus no requirement for those persons to be subject to the same specific conditions or arrangements concerning the legal recourse available to them against such decisions, and consequently the difference of treatment does not infringe the principle of equality before the law enshrined in Article 20 of the Charter.
In the second place, as regards the infringement of the principle of effective judicial protection and of Article 47 of the Charter (
3
) that is alleged to arise from the fact that natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU cannot bring an appeal before the Board of Appeal, the Court observes that, since it remains open to them to bring an action for annulment before the Court, the EU legislature cannot be regarded as having infringed that principle when it adopted Articles 28 and 29 of Regulation 2019/942.
The Court adds that the procedural complications that might arise from that system of remedies, in particular the possibility of parallel proceedings being brought against the same decisions of ACER before the Board of Appeal and the Court, and the complexity of the concept of ‘individual concern’, on which the respective competence of the Board of Appeal and the Court depends, do not constitute a sufficient reason to hold that that system is, in itself, contrary to the principle of effective judicial protection.
Continuing its analysis of the action, the Court also rejects the plea alleging infringement of Article 28(1) of Regulation 2019/942 in so far as the Board of Appeal did not find, in the contested decisions, that the applicants were individually concerned by the initial decision by reason of attributes which were peculiar to them and which differentiated them from all other persons.
First, the Court states that, in order to assess whether the applicants are individually concerned within the meaning of Article 28(1) of Regulation 2019/942, reference must be made to the case-law of the EU judicature concerning the second situation envisaged by the fourth paragraph of Article 263 TFEU.
The specific conditions and arrangements for actions laid down by Regulation 2019/942 pursuant to the fifth paragraph of Article 263 TFEU must remain fully consistent with the general scheme provided for by Article 263 TFEU as regards the jurisdiction of the EU judicature to hear and determine the actions that are assigned to it. It follows that, where the same admissibility conditions are found in both the general scheme provided for by Article 263 TFEU and the specific conditions and arrangements adopted pursuant to the fifth paragraph of that provision, those conditions must, in principle, be interpreted in the same way.
Secondly, as regards the attributes and factual circumstances which the applicants relied on before the Court with a view to demonstrating individual concern, the Court limits its examination to those which had also been raised before the Board of Appeal and analysed by that board in the contested decisions. Admittedly, the Court is called upon to assess the legality of those decisions by reviewing the application of EU law made by the Board of Appeal, particularly in the light of the facts which were submitted to the latter. However, the Court cannot carry out that review by taking into account matters of fact newly raised or produced before it.
In the light of those clarifications, the Court notes that, as regards the attributes and factual circumstances that were raised by the applicants before the Board of Appeal, namely the fact that they are active on the German market for balancing energy and are among the largest suppliers on that market, and later developed, in the context of the present action, through the submission that their position on that market was substantially affected by the initial decision, the applicants refer to the case-law of the EU judicature on State aid and mergers.
However, first, the applicants cannot usefully rely on that case-law in support of the claim that their position on that market was substantially affected by the initial decision. That case-law is based, at least in part, on the existence of an actual or potential competitive relationship between the beneficiaries of the decision in question, on the market concerned by that decision, and the applicant, whose position on the market concerned or on neighbouring markets, upstream or downstream, is, in a specifically identified way, negatively and, as the case may be, substantially affected by that decision.
In the present case, the applicants do not claim, let alone demonstrate, that they are in an actual or potential competitive relationship with the addressees and, in their view, the true beneficiaries of the initial decision on the German market for balancing energy on which they operate and which is the market concerned by that decision.
Secondly, and in any event, the attributes and factual circumstances relied on by the applicants were not such as to distinguish them individually from all other persons.
Having rejected the pleas in law put forward by the applicants, the Court dismisses the action for annulment of the contested decisions.
As regards the alternative claims for annulment of the initial decision, since those were brought after the time limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, they must be rejected as inadmissible. In that regard, the Court notes that there is no excusable error, such as to justify a derogation from the obligation to comply with the prescribed time limit for bringing proceedings, that can legitimately be relied on by the applicants in the circumstances of the present case.
Consequently, the Court dismisses the action in its entirety.
(
1
)	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).
(
2
)	Under the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person (first situation) or which is of direct and individual concern to them (second situation), and against a regulatory act which is of direct concern to them and which does not entail implementing measures (third situation).
(
3
)	As implemented by the fourth paragraph of Article 263 TFEU.