ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
27 April 2018 (*)
(Procedure — Intervention — Action for annulment — Energy — Decision of the Board of Appeal of the Agency for the Cooperation of Energy Regulators — Interest in the result of the case)
In Case T‑333/17,
Austrian Power Grid AG, established in Vienna (Austria),
Vorarlberger Übertragungsnetz GmbH, established in Bregenz (Austria),
represented by H. Kristoferitsch and S. Huber, lawyers,
applicants,
v
Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and E. Tremmel, acting as Agents,
defendant,
supported by
Czech Republic, represented by M. Smolek, J. Vláčil and T. Müller, acting as Agents,
by
Republic of Poland, represented by B. Majczyna, acting as Agent,
and by
Polskie Sieci Elektroenergetyczne S.A., represented by M. Szambelanczyk, lawyer,
interveners,
ACTION under Article 263 TFEU seeking annulment of Decision No A-001-2017 (consolidated) of the Board of Appeal of ACER of 17 March 2017 dismissing the appeal against Decision No 6/2016 of ACER on the determination of Capacity Calculation Regions,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1        On 13 November 2015, the European Network of Transmission System Operators for Electricity published a proposal for the determination of the system capacity calculation regions (‘the CCR proposal’), in accordance with 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). On 17 November 2015, the transmission system operators submitted a proposal regarding the determination of the capacity calculation regions to the national regulatory authorities for approval pursuant to Article 9(6)(b) of Regulation 2015/1222.
2        On 13 May 2016, the national regulatory authority in Austria requested the system operators to amend the CCR proposal.
3        On 17 May 2016, the Chair of the Energy Regulators’ Forum, the platform on which the national regulatory authorities consulted with each other and cooperated in order to reach an agreement on the CCR proposal, informed the Agency for the Cooperation of Energy Regulators (ACER) that the national regulatory authorities had not been able to reach a unanimous agreement on that proposal and that ACER therefore had to adopt a decision concerning the CCR proposal within six months in accordance with Article 9(11) of Regulation 2015/1222 and Article 8(1) 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).
4        On 17 November 2016, ACER adopted Decision No 6/2016 on the determination of the Capacity Calculation Regions (‘Decision 6/2016’). Article 1 of and Annex I to Decision 6/2016 determine the capacity calculation regions in accordance with Article 15 of Regulation 2015/1222. According to Article 2 of Decision 6/2016, the definition of bidding zone borders in Annex I to that decision is without prejudice to any decision adopted under Articles 32 to 34 of Regulation 2015/1222.
5        Decision 6/2016 has been the subject of several appeals before the Board of Appeal of ACER, including that brought by the applicants and that brought by Verbund AG (‘the applicant for leave to intervene’).
6        By Decision No A-001-2017 (consolidated) of 17 March 2017 on the annulment of Decision 6/2016 of ACER on the determination of capacity calculation regions (‘the contested decision’), the Board of Appeal of ACER rejected the appeal brought by the applicant for leave to intervene as inadmissible and dismissed the other appeals in their entirety as unfounded.
7        By application lodged at the Registry of the General Court on 29 May 2017, the applicants brought the present action, by which they request the Court, primarily, to annul the contested decision and Articles 1 and 2 of Decision 6/2016, its Annexes IV and V and the parts of its Annex I which refer, according to the applicants, to the border between Germany and Austria. In the alternative, they ask the Court to annul the contested decision and to refer the case back to the Board of Appeal of ACER.
8        By document lodged at the Court Registry on 18 September 2017, the applicant for leave to intervene lodged an application requesting the Court to declare admissible its application to intervene in support of the form of order sought by the applicants and to communicate to it all the procedural documents served on the main parties in this case.
9        The application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
10      By document lodged with the Court Registry on 2 November 2017, ACER raised objections to the application to intervene and requested the Court to dismiss it.
11      The applicant for leave to intervene seeks, by its first head of claim set out in paragraph 8 above, a declaration by the Court that its application is admissible. In that regard, it should be observed that, according to Articles 142 to 144 of the Rules of Procedure, the General Court has to decide on the admission of the applicant to intervene as an intervener. However, those provisions do not allow the Court to adopt a decision which merely contains a declaration on the admissibility of an application to intervene.
12      However, without it being necessary to rule on the admissibility of the applicant’s first head of claim, it must be held that it is sufficiently clear from the application as a whole that the applicant for leave to intervene wishes to be admitted as intervener in support of the form of order sought by the applicants.
13      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 European Union or between Member States and institutions of the European 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.
14      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 the 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).
15      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).
16      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 15 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).
17      The applicant for leave to intervene submits that it has a direct and existing interest in the form of order sought by the applicants because its legal, economic and financial situation will be affected by the judgment to be delivered in the present case. In particular, it argues that the implementation of Decision 6/2016 will have a direct effect on the long-term electricity supply contracts concluded with business customers in Austria and Germany since the conditions for the pricing of those contracts will have to be reviewed. Those contracts are based on the existence of a single bidding zone. Furthermore, the implementation of Decision 6/2016 will, it submits, interfere with the use of its power stations as the applicant for leave to intervene will be forced to acquire the capacity rights and participate in the auction processes for supply between Germany and Austria.
18      ACER disputes those arguments, submitting, in essence, that the claims of the applicant to intervene do not concern it directly but refer exclusively to its subsidiaries. Therefore, the applicant for leave to intervene has not established the existence of a direct, certain and present interest in the result of the case. The interest expressed by the applicant for leave to intervene is linked exclusively to the introduction of a German-Austrian bidding zone border and the related implementation of a capacity allocation mechanism at that border, as provided for by Decision 6/2016. None of those decisions obliges the applicant for leave to intervene to implement a capacity allocation procedure on the German-Austrian border. Consequently, the contested decision will have no direct or existing effect on the applicant for leave to intervene. ACER argues that the negative effects alleged by the applicant for leave to intervene are indirect economic consequences that the congestion management to be implemented by transmission systems operators may have and may thus stem from changing market realities. However, the applicant for leave to intervene is neither directly nor individually affected by the contested decision, by Decision 6/2016 or by the outcome of the proceedings in the present case. For ACER, the alleged financial and economic disadvantages for the applicant for leave to intervene and its subsidiaries cannot suffice to found a right to intervene. ACER adds that the markets for electricity production and supply are not directly concerned by the contested decision on the ground that Decision 6/2016 and the introduction of a capacity allocation procedure on the German-Austrian bidding zone border concern the functioning of the interconnection and transmission of electricity between Germany and Austria. According to ACER, the applicant for leave to intervene is not active in this market. Finally, ACER submits that the applicant for leave to intervene has not proved the assertions made in its application to intervene.
19      It should be noted that the present application seeks leave to intervene in support of the form or order by which the applicants seek, inter alia, annulment of the contested decision. By the contested decision, the Board of Appeal of ACER, inter alia, rejected the applicant’s claim for annulment of Article 1 of Decision 6/2016, read in conjunction with Article 1(1)(c), Article 5(1)(s) and Article 5(3) thereof and with plan No 3 of Annex I to that decision.
20      In that regard, it is common ground between the applicant for leave to intervene and ACER that, prior to the adoption of Decision 6/2016, there was a single electricity bidding zone covering, inter alia, both Germany and Austria.
21      Article 2(3) of Commission Regulation (EU) No 543/2013 of 14 June 2013 on submission and publication of data in electricity markets and amending Annex I to Regulation No 714/2009 (OJ 2013 L 163, p. 1) defines a ‘bidding zone’ as the largest geographical area within which market participants are able to exchange energy without capacity allocation.
22      According to Article 2(3) of Regulation 2015/1222, the term ‘capacity calculation region’ is defined as the geographic area in which coordinated capacity calculation is applied.
23      Article 1 of Decision 6/2016 states that the capacity calculation regions pursuant to Article 15 of Regulation 2015/1222 are to be determined in accordance with Annex I thereto.
24      Article 1(1) of Annex I to Decision 6/2016 states that the capacity calculation regions cover existing bidding zone borders between Member States, some proposed bidding zone borders and, under point (c), the ‘Germany/Luxembourg — Austria bidding zone border in accordance with Article 5 of this document’. Article 5(1)(s) of Annex I to Decision 6/2016 provides that ‘core’ calculation region No 3 is to include a bidding zone border between Germany/Luxembourg and Austria, as shown on plan No 3 of the same annex and as assigned to the transmission system operators Austrian Power Grid AG, TransnetBW GmbH, TenneT TSO GmbH and Amprion GmbH.
25      It follows from those provisions that a bidding zone border between Germany/Luxembourg and Austria has been established directly pursuant to Decision 6/2016.
26      Since it has been demonstrated that the applicant for leave to intervene is a producer in Germany and Austria who distributed electricity to large consumers in those two Member States, it is clear that the creation of a bidding zone border between those Member States directly affects its legal position by reason of the fact that the legal conditions under which the distribution of energy can take place have been changed.
27      It follows that the contested decision concerns a direct and ongoing change to the legal position of the applicant for leave to intervene on the ground that it dismissed the actions brought by the applicants seeking annulment of Decision 6/2016 in so far as the latter had created a bidding zone border between Germany/Luxembourg and Austria. That conclusion is not affected by the arguments of ACER.
28      First, ACER submits that the contested decision was not addressed to the applicant for leave to intervene, but solely to specific transmission system operators since that decision rejected the actions brought against Decision 6/2016. According to ACER, none of those decisions required the applicant for leave to intervene to implement a capacity allocation procedure on the German-Austrian border.
29      In that regard, it must be observed that Article 5(3) of Annex I to Decision 6/2016 does indeed call on the national regulatory authorities and the transmission system operators concerned to establish a timetable for the implementation of the mechanism for allocating electricity capacity on the German-Austrian border. The establishment of the electricity capacity allocation mechanism will not therefore automatically have an effect on the legal situation of the applicant for leave to intervene.
30      However, even if that mechanism for allocating electricity capacity does not allow the applicant for leave to intervene to invoke its direct interest in that regard, it must be pointed out that it is Decision 6/2016 which constitutes the measure which directly created the new bidding zone border between Germany/Luxembourg and Austria. Decision 6/2016 is therefore the measure which abolishes the single bidding zone between Germany and Austria.
31      Second, ACER submits that the effects which the applicant for leave to intervene sets out in its application do not concern it directly, but relate solely to its subsidiaries, namely Verbund Trading GmbH, Donaukraftwerk Jochenstein AG and Verbund Hydro Power GmbH. Therefore, ACER submits, the applicant for leave to intervene has not been able to establish the existence of a direct, certain and present interest in the form of order sought by the applicants.
32      In that regard, first, it has been held that the fact of having a holding, even a significant one, in the capital of an undertaking which is a party to proceedings does not, in itself, demonstrate the existence of an interest in the result of the case. Furthermore, where it turns out that an application to intervene ultimately has no purpose other than to support a legal action which might, if successful, have an effect on the economic prosperity of the applicant and, by way of repercussion or analogy, on the position of the person applying to intervene, that application is to be regarded as unjustified (order of 29 October 2004, Hynix Semiconductor v Council, T‑383/03, not published, EU:T:2004:322, paragraphs 71 to 72 and the case-law cited).
33      On the other hand, the EU Courts have recognised the existence of a direct and existing interest to intervene merely because in certain cases the prospective intervener was a ‘parent company’ of the recipient of State aid or of an undertaking affected by a merger at issue in the proceedings (orders of the President of the Second Chamber, Extended Composition, of the Court of 19 October 1995, BP Chemicals v Commission, T‑11/95, not published, paragraph 10, and of the Fourth Chamber, Extended Composition, of the Court of 26 February 1996, Union Carbide v Commission, T‑322/94, not published, paragraph 17).
34      A fortiori, according to the case-law, even associations may be granted leave to intervene in order to protect the interests of their members in cases raising questions of principle liable to affect those interests (see order of 17 February 2011, Gas Natural Fenosa SDG v Commission, T‑484/10 R, not published, EU:T:2011:53, paragraph 36 and case-law cited).
35      It follows that, although a financial participation in the capital of a company for which an interest to intervene can be established is not normally sufficient, in itself, to establish an interest in intervening, the fact that an entity carries out its economic activities through subsidiaries does not, merely by virtue of such a differentiated internal structure, exclude the possible existence of an interest to intervene.
36      In the present case, the applicant for leave to intervene has adduced a body of indicia which provides sufficient evidence that it is an undertaking which pursues its economic activities through subsidiaries and not that it only holds a mere financial interest in the capital of its subsidiaries. For example, it should be noted that the supply contracts provided by the applicant for leave to intervene identify the subsidiary which concluded them simply as ‘Verbund’, which indicates that that subsidiary is indeed a main part of the economic activity of the Verbund group.
37      Third, concerning the argument of ACER that the applicant for leave to intervene has not established that it is individually concerned by the contested decision, suffice it to note that, for the purposes of admission as an intervener, it is not necessary for it to show that it is individually concerned.
38      It follows from all of the foregoing that the applicant for leave to intervene has established that it has a direct and existing interest in the ruling on the form of order sought by the applicants. It is therefore necessary to admit it as intervener, without it being necessary to consider the other arguments raised in its application to intervene.
39      As regards the request to receive communication of the procedural documents, it should be recalled that Article 144(7) of the Rules of Procedure provides that, if the application is granted, the intervener is to receive a copy of every procedural document served on the main parties, save, where applicable, for the confidential information excluded from such communication pursuant to Article 144(5). In the present case, no request for confidential treatment of procedural documents has been lodged. It is therefore appropriate to serve on the intervener a copy of every procedural document served on the main parties.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Verbund AG is granted leave to intervene in Case T‑333/17 in support of the form of order sought by Austrian Power Grid AG and Vorarlberger Übertragungsnetz GmbH.
2.      The Registrar shall serve on Verbund a copy of all the procedural documents served on the main parties.
3.      A period shall be prescribed within which Verbund may submit a statement in intervention.
4.      The costs are reserved.
Luxembourg, 27 April 2018.
E. Coulon
V. Tomljenović
Registrar
President
*      Language of the case: English.