62023TJ0558_RES
Case T‑558/23
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(6) and (7) of Regulation (EU) 2017/2195 – European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation – Non-participation of the Swiss Transmission System Operator – 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 – Lack of direct concern – Plea of illegality)
Energy – Electricity balancing – Regulation 2017/2195 – European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation – Scope – Swiss Transmission System Operators – Included – Conditions – Adoption by the Commission of a decision authorising their participation in the platform – Possibility for those operators to bring an action for failure to act before the EU Courts where the Commission fails to take a decision
(Commission Regulation 2017/2195, Art. 1(6) and (7))
(see paragraphs 29-32, 35-37)
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 exchange of balancing energy from frequency restoration reserves with automatic activation – Amendment not entailing the introduction of a further condition to the participation of Swiss Transmission System Operators in that platform – Participation remaining subject exclusively to the adoption by the Commission of a decision authorising participation – ACER decision not producing effects on the legal position of those operators – Inadmissibility
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2019/942, Art. 28(1))
(see paragraphs 42-51)
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 – Measures of direct and individual concern to them – ACER decision amending the Implementation Framework for the European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation – Amendment not depriving the Swiss Transmission System Operators of their contractual rights in the absence of a Commission decision authorising their participation in the platform – ACER decision not producing effects on the legal position of those operators – Inadmissibility
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2019/942, Art. 28(1))
(see paragraphs 64-71)
Acts of the institutions – Basic legislation and implementing legislation – Implementing legislation not capable of amending or supplementing the essential elements of the basic legislation – Classification of the essential elements – Consideration of the characteristics and particular features of the field concerned – Implementing act seeking the integration of balancing energy markets and providing for the exclusion of Swiss Transmission System Operators from the European platforms for the exchange of balancing energy without prejudice to a bilateral arrangement with the European Union – Attainment of the objectives pursued by the basic legislation – Whether permissible
(Article 291(2) TFEU; European Parliament and Council Regulations No 714/2009 and 2019/943; Commission Regulation 2017/2195)
(see paragraphs 80-88, 96)
International agreements – European Union Agreements – Primacy over secondary legislation of the European Union – Obligation to interpret secondary legislation in the light of international agreements
(Art. 216(2) TFEU)
(see paragraphs 105, 106)
International agreements – European Union Agreements – EEC-Switzerland Free Trade Agreement – Agreement prohibiting the introduction of quantitative restrictions on imports or measures having equivalent effect – EU legislation excluding Swiss Transmission System Operators from the European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation unless there is a Commission decision authorising their participation in that platform – Whether permissible
(EEC-Switzerland Free Trade Agreement, Art. 13; Commission Regulation 2017/2195, Art. 1(6) and (7))
(see paragraphs 109, 111-115)
Public international law – Principles – Principles of customary international law – Examination of the validity of a regulation in the light of customary international law – EU legislation excluding Swiss Transmission System Operators from the European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation unless there is a Commission decision authorising their participation in that platform – Failure to observe the principle of prevention – Conditions – No manifest error of assessment as to the conditions for applying that principle
(Art. 3(5) TEU; Commission Regulation 2017/2195, Art. 1(6) and (7))
(see paragraphs 118-128)
Résumé
By its judgment, the General Court confirms the validity of 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’). In so doing, the Court rules on the conditions for such an operator’s participation in European platforms for the exchange of balancing energy under Regulation 2017/2195, (
1
) on that operator’s standing to bring proceedings against a decision of ACER of which it is not the addressee, and on the conformity of Regulation 2017/2195 with the principle of prevention under customary international law.
On 2 August 2017, the European Commission adopted Regulation 2017/2195, which provides, in particular, for the establishment of a European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation. Pursuant to that regulation, ACER adopted a decision on the creation of a European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation (‘the aFRR Platform’), including, in the annex to that decision, the framework for implementing the aFRR Platform (‘the Implementation Framework’).
The applicant, Swissgrid AG, in its capacity as the sole TSO in Switzerland, concluded a memorandum of understanding with other TSOs formalising the terms of its participation in a project aimed at establishing a Platform for the International Coordination of Automated Frequency Restoration and Stable System Operation (‘Picasso’).
On 1 July 2020, the member TSOs of Picasso, including the applicant, entered into the Picasso platform cooperation agreement (‘the Picasso Cooperation Agreement’), which is subject to a principal agreement regarding the balancing platforms, common to all the platforms (‘the Principal Agreement’).
However, by letter of 17 December 2020, the Director of the Commission’s Directorate-General for Energy stated that she did not see grounds for adopting a decision which would allow Swiss participation in the European balancing platforms under Article 1(7) of Regulation 2017/2195.
On 30 September 2022, ACER adopted Decision 15/2022 amending the designation of the entities that would perform the functions defined in the Implementation Framework. Thus, the definition of ‘member TSO’ which previously covered ‘any TSO which has joined the aFRR platform’ was amended so that it now covers ‘any TSO to which Regulation 2017/2195 applies and which has joined the aFRR Platform’.
On 30 November 2022, the applicant lodged an appeal against that decision with the ACER Board of Appeal.
The Board of Appeal, finding that Decision 15/2022 did not constitute an act capable of affecting the applicant’s legal position in the absence of a Commission decision authorising it to participate in the aFRR platform, rejected the applicant’s appeal as being inadmissible under Article 28(1) of Regulation 2019/942. (
2
)
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
In the first place, the General Court endorses the Board of Appeal’s conclusion that the applicant was not entitled to participate in the aFRR Platform in the absence of a Commission decision under Article 1(7) of Regulation 2017/2195. As set out in that provision, the participation of Switzerland in the European platforms for the exchange of standard products for balancing energy is to be decided by the Commission based on an opinion given by ACER and all TSOs, subject to the conditions of Article 1(6).
It follows from both a textual and a contextual interpretation of Regulation 2017/2195 that it is for the Commission to adopt a decision on Switzerland’s participation in the platforms under Article 1(7) of that regulation and, in that context, to examine whether the conditions laid down in Article 1(6) are satisfied. The applicant cannot, therefore, criticise the Board of Appeal for not having examined whether those conditions were satisfied or whether the Commission should have adopted a decision under Article 1(7) of Regulation 2017/2195.
In that regard, the fact that both ACER and the Board of Appeal are not able to examine whether the conditions for the applicant’s participation in the aFRR platform are satisfied does not constitute a lacuna in the judicial review of Article 1(6) and (7) of Regulation 2017/2195. In the event that the Commission were to refuse to adopt a decision under that latter provision, the applicant would be able to avail itself of the legal remedy provided for in Article 265 TFEU, which relates to a failure to act in the sense of a failure to take a decision or to define a position.
In the second place, the General Court holds that the Board of Appeal did not infringe Article 28(1) of Regulation 2019/942 in finding that the amendment of the definition of ‘member TSO’ resulting from Decision 15/2022 to refer to ‘any TSO to which Regulation 2017/2195 applies and which has joined the aFRR Platform’ did not bring about a distinct change in the applicant’s legal position.
Indeed, the concept of ‘TSO to which Regulation 2017/2195 applies’ now found in the definition of ‘member TSO’ is capable of including the applicant should it obtain a Commission decision approving its participation in the aFRR Platform under Article 1(7) that regulation.
In addition, the amendment of the definition of ‘member TSO’ likewise did not affect the applicant’s legal position from the perspective of the claim that it was prevented from exercising its contractual rights.
It is true that the applicant is a signatory to both the Principal Agreement and the Picasso Cooperation Agreement, the purpose of which is to govern the operation of the aFRR Platform in line with Regulation 2017/2195 and the Implementation Framework. However, even prior to Decision 15/2022, the applicant did not have an unconditional contractual right to use the aFRR Platform.
First, that possibility is not open to all ‘member TSOs’, but only to those that can be categorised as ‘participating TSOs’ and, second, the contracts to which the applicant is a party make its participation in the aFRR Platform conditional on the adoption of a Commission decision under Article 1 of Regulation 2017/2195.
Accordingly, in so far as, prior to Decision 15/2022, the applicant did not have the contractual right to use the aFRR Platform to exchange standard balancing energy products without a Commission decision to that effect, irrespective of whether it could be categorised as a ‘member TSO’, it cannot be held that Decision 15/2022 deprived it of such a right and, therefore, directly affected its legal position.
Since the Board of Appeal did not err in law in dismissing the appeal as inadmissible on the ground that the conditions laid down in Article 28(1) of Regulation 2019/942 were not satisfied, the General Court analyses the plea of illegality raised by the applicant against Article 1(6) and (7) of Regulation 2017/2195.
First, the General Court notes that Regulation 2017/2195, in accordance with the objectives set out in Regulations No 714/2009 (
3
) and 2019/943, (
4
) seeks the integration of balancing energy markets, which should be facilitated with the establishment of common European platforms with a view to the creation of a fully functioning and interconnected internal energy market. However, since the Swiss Confederation has not joined the internal market of the European Union and the Swiss TSOs are not, therefore, subject to the same rules as those applicable to TSOs of the EU Member States, their exclusion from participation 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 objectives pursued by that regulation and, in particular, that of the creation of an internal market.
Second, there is no contradiction between the limitation of the range of TSOs that may participate in the aFRR Platform set out in Article 1 of Regulation 2017/2195 and the objective laid down in Regulation 2019/943 of removing barriers to cross-border electricity flows and cross-border transactions on electricity markets and related services markets. For that latter purpose, where EU TSOs and third-country TSOs are present within the same synchronous area, Regulation 2017/1485 (
5
) expressly provides for the conclusion of agreements setting the basis for their cooperation concerning secure system operations and setting out arrangements for the compliance of the third-country TSOs with the obligations set by the regulation.
Third, Article 1(6) and (7) of Regulation 2017/2195 cannot be interpreted as allowing the Commission to refuse to authorise the applicant’s participation in the balancing platforms in the event that an agreement between the Swiss Confederation and the European Union were concluded. The primacy of international agreements concluded by the European Union over instruments of secondary law means that such instruments must, so far as is possible, be interpreted in a manner that is consistent with those agreements.
Fourth, excluding the applicant from participating in the aFRR Platform cannot be regarded as a quantitative restriction on imports of balancing energy, or as a measure having equivalent effect, which would be contrary to Article 13(1) of the Free Trade Agreement between the European Economic Community and the Swiss Confederation. (
6
) In any event, since the applicant is not subject to compliance with the same common rules as EU TSOs and cannot, therefore, be regarded as being in a situation comparable to that of EU TSOs in relation to the objective of creating an internal market in electricity, it cannot meaningfully rely on the existence of arbitrary discrimination against it.
Fifth, excluding it from participating in the aFRR Platform cannot be regarded as manifestly contrary to the principle of prevention under customary international law, which, when adopting acts, the European Union is bound to observe pursuant to Article 3(5) TEU.
In that regard, it is true that the International Court of Justice has emphasised, as one of a number of general and well-recognised principles, every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States, from which it follows, in essence, that a person subject to international law is under a duty to act with due diligence when exercising their powers.
Nevertheless, in order for a principle of customary international law to be relied on by an individual for the purposes of the examination by the Courts of the European Union of the validity of an act of the European Union, it is necessary, first, that it is capable of calling into question the competence of the European Union to adopt that act and, second, that the act in question is liable to affect rights which the individual derives from EU law or to create obligations under EU law in his or her regard.
In the present case, it is common ground that Switzerland is part of the Continental Europe Synchronous Area and, from that perspective, it could be considered that the principle of prevention is capable of calling into question the competence of the European Union to adopt legislation capable of affecting the whole of that synchronous area, including Switzerland. Furthermore, since the applicant is the sole operator of the Swiss electricity network, in the event that its non-participation in the aFRR Platform were to result in it having to take the measures required by unscheduled physical power flows, the view could be taken that Regulation 2017/2195 creates obligations with regard to the applicant.
Nevertheless, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying that principle. It cannot be found that the Commission manifestly disregarded the European Union’s due diligence obligation by limiting, in principle, participation in the aFRR Platform solely to EU TSOs.
First, EU law makes express provision for the conclusion of agreements between EU TSOs and third-country TSOs present within the same synchronous area. It follows that the applicant’s non-participation in the aFRR Platform in no way precludes collaboration between the applicant and EU TSOs as regards system security in the synchronous area, which, on the contrary, is encouraged.
Second, Article 1(6) and (7) of Regulation 2017/2195 provides for the possibility of the applicant participating in the aFRR Platform, should the Commission find that the exclusion of Switzerland may lead to unscheduled physical power flows via Switzerland endangering the system security of the region, provided that the rights and responsibilities of Swiss TSOs are consistent with those of TSOs operating in the European Union.
In the light of the above, the General Court dismisses the action for annulment in its entirety.
(
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).
(
3
)	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).
(
4
)	Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54).
(
5
)	Commission Regulation (EU) 2017/1485 of 2 August 2017 establishing a guideline on electricity transmission system operation (OJ 2017 L 220, p. 1).
(
6
)	Agreement between the European Economic Community and the Swiss Confederation of 22 July 1972 (OJ English Special Edition: Series I Volume 1972, p. 191).