62023TJ0556_RES
Case T‑556/23
Swissgrid AG
v
European Union Agency for the Cooperation of Energy Regulators
Judgment of the General Court (Third Chamber, Extended Composition) of 8 October 2025
(Energy – Internal market for electricity – Guideline on electricity balancing – Article 1 of Regulation (EU) 2017/2195 – European platform for the imbalance netting process – Non-participation of the Swiss Transmission System Operator – ACER decision amending the Implementation Framework for the platform – Appeal brought before the ACER Board of Appeal – Specific conditions and arrangements for appeals – Article 28 of Regulation (EU) 2019/942 – Inadmissibility for lack of standing to bring proceedings before the Board of Appeal – Direct and individual concern)
Energy – Electricity balancing – Regulation 2017/2195 – European platform for the imbalance netting process – Scope – Swiss Transmission System Operators – Not included – Exceptions
(Commission Regulation 2017/2195, Art. 1(2), (6) and (7))
(see paragraphs 24-39)
EU agencies – Agency for the Cooperation of Energy Regulators (ACER) – Appeals procedure – Appeal before the ACER Board of Appeal – Admissibility criteria – Natural or legal persons – Acts of direct and individual concern to them – ACER decision amending the Implementation Framework for the European platform for the imbalance netting process – Amendment depriving Swiss Transmission System Operators of their right to participate in that platform under agreements concluded prior to the adoption of that decision – Decision affecting the legal position of those operators – Admissibility
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2019/942, Art. 28)
(see paragraphs 55-73)
Résumé
By its judgment, the General Court annuls the decision of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) dismissing, as inadmissible, the appeal brought by a Swiss electricity transmission system operator (‘TSO’) against a decision of ACER excluding it from participating in the European platform for the imbalance netting process (‘the IN Platform’) under Regulation 2017/2195. (
1
) In so doing, the General Court rules on the scope of that regulation and on the standing of such an operator to bring proceedings against a decision of ACER of which it is not the addressee.
Since 2012, the applicant, Swissgrid AG, in its capacity as the sole TSO in Switzerland, has participated in the International Grid Control Cooperation (IGCC), a structure for cooperation among TSOs the purpose of which is to optimise the automated operation of frequency restoration reserves through an imbalance netting process.
On 2 August 2017, the European Commission adopted Regulation 2017/2195, which provides, in Article 22 thereof, for the establishment of a European platform for the imbalance netting process.
Pursuant to that provision, ACER adopted Decision 13/2020 on the creation of a European platform for the IN Platform, including, in the annex to that decision, a framework for implementing that platform (‘the Implementation Framework’).
On 30 September 2022, ACER adopted Decision 16/2022 amending the designation of the entities that would perform the functions defined in the Implementation Framework. In that regard, the definition of ‘member TSO’ which previously covered ‘any TSO which has joined the IN Platform, including TSOs from multi-TSO [load-frequency control] areas from different Member States or third countries’ was amended so that it now covers ‘any TSO to which Regulation 2017/2195 applies and which has joined the IN Platform, including TSOs from multi-TSO [load-frequency control] areas’.
Taking the view that that amendment excludes it from participating in the IN Platform, the applicant lodged an appeal against that decision with the ACER Board of Appeal, which dismissed the appeal as inadmissible under Article 28(1) of Regulation 2019/942. (
2
) According to the Board of Appeal, participating in the IN Platform is reserved to EU TSOs, with the result that the amendment of the Implementation Framework for that platform did not affect the legal position of the applicant as a Swiss TSO.
It is against that background that the applicant brought proceedings before the General Court for the annulment of the Board of Appeal’s decision.
Findings of the Court
The General Court starts by examining the Board of Appeal’s conclusion that, in principle, Regulation 2017/2195 limits participation in the platforms which it governs solely to EU TSOs and therefore excludes Swiss TSOs from the IN Platform.
Based on a textual and contextual interpretation of Regulation 2017/2195, the General Court notes that, although Article 1(2) of that regulation does not expressly refer only to EU TSOs for the purpose of determining its scope, the fact that the Commission is afforded the possibility, under Article 1(6) and (7) of that regulation, of accepting the participation of Swiss TSOs alone, in certain platforms and under certain conditions only, must be interpreted as an exception, revealing the absence of a rule of principle that includes the participation of TSOs from outside the European Union in the platforms provided for by Regulation 2017/2195, including the IN Platform.
That conclusion is reinforced by a teleological interpretation of Regulation 2017/2195, in so far as that regulation aims to create a fully functioning and interconnected internal energy market based on a level-playing field. In the present case, since the Swiss Confederation has not joined the internal market of the European Union and Swiss TSOs are not, therefore, subject to the same rules as those applicable to TSOs of the EU Member States, excluding them from participating in the platforms provided for in Regulation 2017/2195, without prejudice to any alternative bilateral arrangement which always remains a possibility, is fully justified in the light of the objective pursued by that regulation.
It follows that the Board of Appeal did not err in law in finding that the participation of Swiss TSOs, outside the situations provided for in Article 1(6) and (7) of Regulation 2017/2195, was excluded.
However, the Board of Appeal infringed Article 28(1) of Regulation 2019/942 in finding that Decision 16/2022 did not bring about a distinct change in the applicant’s legal position and in dismissing its appeal as inadmissible as a result.
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. Interpreting that provision in the light of the case-law on the fourth paragraph of Article 263 TFEU on which it is modelled, the General Court recalls that a natural or legal person other than the person to whom an act is addressed may claim to be individually concerned only if the act in question 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 these factors, distinguishes them individually just as in the case of the person addressed.
In the light of those clarifications, the General Court states, as a preliminary observation, that the finding in the Board of Appeal’s decision that the applicant’s legal position was directly governed by Regulation 2017/2195 and not by Decisions 13/2020 and 16/2022 was not capable of substantiating the conclusion that the appeal brought before it was inadmissible. Since Decision 16/2022 was based on Article 22(1) of Regulation 2017/2195, the applicant was entitled to challenge its legality, irrespective of the scope of that regulation. Thus, the fact that Regulation 2017/2195 does not provide for the possibility of the applicant participating in the IN Platform was a relevant consideration for the examination of the substance of the appeal, rather than for the assessment of its admissibility.
As regards whether Decision 16/2022 was of direct and individual concern to the applicant, the General Court observes, first, that the applicant is a party to a (principal) agreement regarding the balancing platforms concluded with other TSOs, and has also been a ‘participating member’ of a cooperation agreement on the IGCC since March 2012, that the IGCC is the implementation project that is to evolve into the IN Platform and that the adoption of an implementation framework for the IN Platform has not made the contracts to which the applicant is a party irrelevant, since those contracts continue to govern the operation of that platform in line with that implementation framework.
Second, it was not clear from the Implementation Framework, as annexed to Decision 13/2020, that the applicant could not continue to participate in the IN Platform on the basis of its contractual rights. The Implementation Framework then defined a ‘member TSO’ by the fact that it joined the IN Platform and expressly included ‘TSOs from multi-TSO [load-frequency control] areas from different Member States or third countries’.
Even an interpretation of the relevant provisions of the Implementation Framework in conformity with Regulation 2017/2195 cannot be regarded as having been capable of dispelling any doubt as to whether the applicant could continue to participate in the IN Platform on the basis of its contractual rights. First, Article 1 of Regulation 2017/2195 had not, at that time, been interpreted by the Courts of the European Union. Second, the way in which that regulation was drafted could have led the applicant to believe that it was able to continue to participate in the IN Platform given, in particular, the fact that that regulation does not refer only to EU TSOs in the definition of its scope in Article 1(2).
In the light of those clarifications, the General Court notes that it was only with the adoption of Decision 16/2022 amending the definition of ‘member TSO’ in the Implementation Framework to now refer only to TSOs to which Regulation 2017/2195 applies that a formal position explicitly excluding the applicant’s participation in the IN Platform was adopted by ACER.
As a result of the amendment made by Decision 16/2022, the applicant could no longer continue to participate in the IN Platform under the agreements to which it was a party, with the result that that decision must be regarded as depriving the applicant of the exercise of its contractual rights and, therefore, as directly affecting its legal position. Similarly, the applicant must be regarded as being affected by Decision 16/2022 by reason of certain attributes which are peculiar to it and by reason of circumstances in which it is differentiated from all other persons.
Since the IGCC is, according to the Implementation Framework itself, the project which evolves into the IN Platform, the applicant, as a participant in that platform since 2012, is in a different situation from other third-country TSOs which have not been entitled to participate. In addition, as the sole Swiss TSO, the applicant is, taking into account the purpose of Regulation 2017/2195, in a different situation from TSOs from other third countries, since Switzerland has the geographical uniqueness of being, de facto, surrounded by EU Member States.
In the light of the above, the General Court annuls the Board of Appeal’s decision.
(
1
)	Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6).
(
2
)	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).