ORDER OF THE PRESIDENT OF THE GENERAL COURT
22 April 2020
(*)
(Application for interim relief — Energy — Trans-European energy infrastructure — Regulation (EU) No 347/2013 — Commission Delegated Regulation amending Regulation No 347/2013 — Application for suspension of operation — No urgency)
In Case T‑885/19 R,
Aquind Ltd, established in Wallsend (United Kingdom),
Aquind Energy Sàrl, established in Luxembourg (Luxembourg),
Aquind SAS, established in Rouen (France),
represented by S. Goldberg, C. Davis and J. Bille, Solicitors, and by E. White, lawyer,
applicants,
v
European Commission, represented by O. Beynet, Y. Marinova and B. De Meester, acting as Agents,
defendant,
APPLICATION pursuant to Articles 278 and 279 TFEU seeking the suspension of the operation of the
Commission Delegated
Regulation
of
31 October 2019 amending
Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the list of projects of common interest of the Union,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute and legal framework
1        On 31 October 2019 the European Commission adopted, pursuant to Article 290 TFEU, Delegated Regulation (EU) 2020/389 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the list of projects of common interest of the Union (OJ 2020 L 74, p. 1) (‘the contested delegated regulation’).
2        Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39) delegates to the Commission the power to adopt and revise the Union list of projects of common interest in the field of trans-European strategic energy infrastructure, without prejudice to the right of Member States to approve projects of common interest having a link to their territory.
3        In accordance with Article 3(3) and the second subparagraph of Article 3(4) of Regulation No 347/2013, the Union list is to be drawn up by the Commission on the basis of the regional lists adopted by the decision-making bodies of the regional groups, composed of the Member States and the Commission, on the basis of the contribution of each project to the implementation of energy infrastructure priority corridors and areas according to their fulfilment of the criteria for projects of common interest.
4        Under
Article 16(4)
of
Regulation
No 347/2013, as soon as the Commission adopts
a delegated act, it is to notify
the European Parliament and the
Council of the
European Union of it simultaneously. In accordance with
Article 16(5) of that
regulation, a delegated act is to enter into force only if no objection has been expressed either by the European Parliament or by the Council within two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object.
That period is to be extended by two months at the initiative of the European Parliament or of the Council.
5        On 29 February 2020, the time limit for expressing objections expired, after being extended by two months, without any objection being raised by the Parliament or the Council.
6        Consequently, the contested delegated regulation will enter into force on the 20th day following its publication.
7        The proposed electricity interconnection between the United Kingdom and France (‘the AQUIND Interconnector’), developed by the applicants, companies belonging to the same group,
Aquind Ltd, Aquind Energy Sàrl and Aquind SAS, was included in the Union list of projects of common interest by Commission Delegated Regulation (EU) 2018/540 of 23 November 2017 amending Regulation No 347/2013 as regards the list of projects of common interest of the European Union (OJ 2018 L 90, p. 38).
8        Since that list of projects of common interest of the European Union must be drawn up every two years in order to be limited to projects which contribute most to the implementation of strategic energy infrastructure priority corridors and areas, the list established by Delegated Regulation 2018/540 is to be replaced by a new list in the annex to the contested delegated regulation, which lists the AQUIND Interconnector
as one of the projects that are no longer considered to be projects of common interest of the Union.
Procedure and forms of order sought
9        By application lodged at the Registry of the General Court on 25 December 2019, the applicants brought an action for the annulment of the contested delegated regulation.
10      By a separate document, lodged at the Court Registry on 10 January 2020, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the General Court should:
–        order the suspension of operation of the contested delegated regulation in so far as it withdraws the AQUIND Interconnector from the list of projects of common interest of the European Union;
–        in the alternative, order that the operation of the contested delegated regulation be suspended in its entirety;
–        order such other interim or additional measures as may be appropriate in the circumstances of the case;
–        order the Commission to pay the costs.
11      In its observations on the application for interim measures, lodged at the Registry of the General Court on 7 February 2020, the Commission contends,
in essence, that the President of the General Court should:
–        dismiss the application for interim measures;
–        order the applicants to pay the costs.
Law
12      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU lays down the principle that actions do not have suspensory effect, since measures adopted by the EU institutions are presumed to be lawful. It is therefore only in exceptional cases that the judge hearing an application for interim measures may order the suspension of the operation of an act contested before the General Court, or prescribe interim measures
(see, to that effect,
order
of
19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
13      Article 156(4) of the Rules of Procedure provides that applications for interim measures
must state ‘the subject
matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
14      Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent. Where appropriate, the judge hearing an application for interim measures must also weigh the interests involved
(see
order
of
2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21
and the case-law cited).
15      In the context of that overall examination, the judge hearing an application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see
order
of
19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23
and the case-law
cited).
16      Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
17      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
18      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27).
19      To attain that objective, urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party requesting interim protection. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable harm (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P‑R, EU:C:2016:21, paragraph 27 and the case-law cited).
20      Furthermore, according to well-established case-law, there is urgency only if the serious and irreparable harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts forming the basis of its claim that such harm is likely, it being understood that purely hypothetical harm, based on future and uncertain events, cannot justify the grant of interim measures
(see
order
of
11 July 2018, GE
Healthcare v Commission, T‑783/17 R, EU:T:2018:503, paragraph 23
and the case-law
cited).
21      It is also settled case-law that, to determine whether all the conditions referred to in paragraphs 19 and 20 above are fulfilled, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of harm of a financial nature, must produce, with supporting documentation, an accurate overall picture of its financial situation
(see
order
of
11 July 2018, GE Healthcare v Commission, T‑783/17 R, EU:T:2018:503, paragraph 26
and the case-law
cited).
22      Moreover, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application
(see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P‑R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
23      Those criteria must serve as guidance in examining whether the applicants have demonstrated urgency.
24      In order to demonstrate the urgency of the suspension of operation sought, in the first place, the applicants submit that the contested delegated regulation would lead to: a loss of rights connected with the status of project of common interest of the European Union, which would result in the rejection of their investment application submitted in accordance with Article 12 of Regulation No 347/2013; uncertainty as to the viability of the project, which would lead suppliers to consider the significant costs associated with their participation in the tendering procedures; delay and uncertainty in the acquisition of all required approvals, permissions and authorisations to build the AQUIND Interconnector, and an adverse effect on the applicants’ ability to negotiate and secure construction financing.
25      In that regard, it must be observed that maintaining the status of project of common interest of the European Union solely by reason of the grant of interim measures would not guarantee with a sufficient degree of probability that the competent authorities and the suppliers involved would take their decisions without taking account of the fact that the main action is pending before the General Court and accordingly that
(i) the competent authorities would accept ipso
facto their
application for investment, particularly when those authorities may, in accordance with
Article 12
of
Regulation
No 347/2013, decide to allocate only part of the
investment costs or
to allocate those costs
among a package of several
projects of common interest,
and
(ii)
the suppliers
would not reconsider
their participation
in the tendering procedures.
26      In the second place, the applicants submit that there would be a detrimental effect on their capacity to obtain financing as a result of the United Kingdom’s withdrawal from the European Union.
27      As regards that argument of the applicants, it should be noted that it is not necessarily or principally the loss of the status of project of common interest of the European Union that may have a detrimental effect on their ability to obtain financing, but the withdrawal of the United Kingdom from the European Union itself, which calls into question any decision on the allocation of investment costs in accordance with Article 12 of Regulation No 347/2013 and creates uncertainty as to the capacity to negotiate and obtain financing for construction.
28      In the third place, the applicants claim that the viability of the AQUIND Interconnector is under threat, in so far as that project is developed in parallel with two other alternative interconnection projects which also benefit from the status of project of common interest of the European Union. As a result, a delay of at least two years in its
restoration to the Union list would irretrievably jeopardise its ability to compete with those two projects.
29      In that regard, it should be noted, as the Commission observes, that the status of project of common interest of the European Union does not guarantee that projects will not be subject to competition from competing or potentially competing projects of common interest that are also included on the Union list.
30      As stated in Annex VII to Regulation No 347/2013, as amended by Delegated Regulation 2018/540 (Part A, entitled ‘Principles applied in establishing the Union list’), some projects of common interest form part of a cluster
by reason of the fact that they are competing or potentially competing. Where there is a group of projects of common interest which compete, a single project must be implemented. It is left to the market to determine which project is to be implemented, subject to the necessary planning, permit and regulatory approvals. Where necessary, the need for a project
is to be reassessed in a subsequent project identification process. On the other hand, where the projects are potentially
in competition with one another, it is not necessary for all the projects of a cluster to be implemented. It is left to the market to determine whether one, several or all projects are to be implemented, subject to the necessary planning, permit and regulatory approvals.
31      The Union list of projects of common interest set out in Annex VII to Regulation No 347/2013, as amended by Delegated Regulation 2018/540 (Part B, entitled ‘The Union list of projects of common interest’), includes, as one the projects incorporating the ‘Priority Corridor Northern Seas Offshore Grid (“NSOG”)’,
‘Cluster France — United Kingdom interconnections’, a number of projects of common interest that are
liable to compete with the AQUIND Interconnector.
32      Consequently, that annex clearly indicates that the other projects of common interest belonging to the ‘Cluster France — United Kingdom interconnections’
are liable to compete with the AQUIND Interconnector and that it is the market which will determine whether only one, several, or all the projects are to be implemented.
33      Moreover, as the Commission also observes, the grant of the status of project of common interest of the Union does not in itself guarantee that the project will subsequently be developed or financed, in so far as that status cannot be maintained for periods in excess of two years.
The promoters of existing projects of common interest of the Union wishing to maintain that status must, after two years, submit a new request for selection and are subject to the same procedure as the new projects proposed.
34      In accordance with the second subparagraph of Article 3(4) of Regulation No 347/2013, the Commission is to ensure that the Union list is established every two years, on the basis of the regional lists adopted by the decision-making bodies of the regional groups responsible for proposing and reviewing projects of common interest.
35      On that point, recital 24 of that regulation provides that projects of common interest which no longer meet the relevant criteria and requirements laid down in that regulation should not be included in the new Union list. That is why the existing projects of common interest which must be placed on the new Union list should be subject to the same selection procedure as the projects proposed for the purpose of establishing regional lists and the Union list.
36      In the light of the foregoing, it must be concluded that the status of project of common interest of the Union does not guarantee the viability of a project.
37      In the fourth place, the applicants claim, without further detail, that the AQUIND Interconnector is their only activity and that they cannot therefore rely on other projects pending the favourable outcome of the main action or the restoration of the AQUIND Interconnector to the EU list.
38      It is necessary to bear in mind that, in accordance with settled case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the person harmed to the situation that pertained before he or she suffered the damage.
Redress for any such damage could, in particular, be obtained by the applicant
bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see, to that effect, order of 7 July 2016, Commission v Bilbaína de Alquitranes and Others, C‑691/15 P‑R, not published, EU:C:2016:597, paragraph 43 and the case-law cited).
39      Where the harm relied on is of a financial nature, the interim measures sought are justified if it is clear that, in the absence of those measures, the party applying for the interim measures would be in a position that would imperil its financial viability before final judgment is given in the main action, or if its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs
(see
order
of
12 June 2014, Commission v Rusal Armenal, C‑21/14 P‑R, EU:C:2014:1749, paragraph 46
and the case-law
cited).
40      In particular, the applicants rely, first, on the investments which they had to make in order to obtain consents, concessions and
rights and
the listing as a project of common interest, the amount of that investment being approximately EUR 27 million, and, second, on the fact that the interconnection project is their only activity.
41      Accordingly, since the first argument refers to purely financial considerations, it is clear that the applicants are not in a position that would jeopardise their financial viability before final judgment is given in the main proceedings, within the meaning of the case-law cited in paragraph 39 above.
As regards the second argument, the fact that the interconnection project is the only activity of the applicants does not,
however, mean that it is the only economic activity of the group to which they belong. The applicants have not provided any information on the size and characteristics of their group or on their turnover.
42      Moreover, in the absence of any information regarding the matters referred to in paragraph 41 above, it cannot be concluded that the applicants, by claiming that the AQUIND Interconnector is their only activity and that they cannot rely on other projects pending the favourable outcome of the main action or the restoration of the AQUIND Interconnector to the Union list, have established urgency.
43      In that regard, it should be added that, in so far as the applicants do not put forward in their application for interim measures specific and precise information, supported by detailed, certified documentary evidence, within the meaning of the case-law referred to in paragraph 21 above, it is not for the judge hearing the application for interim measures to attempt to obtain that information in place of and on behalf of the persons concerned.
44      In those circumstances, it must be concluded that the present application for interim measures does not satisfy the condition of urgency.
45      Since the conditions governing granting suspension of operation and interim measures are cumulative, it follows from all the foregoing that the application for interim measures must be dismissed, there being no need to consider the admissibility of that application, to rule on whether there is a prima facie case or to weigh the interests involved.
46      Under Article 158(5) of the Rules of Procedure, the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The costs are reserved.
Luxembourg, 22 April 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.