Action brought on 17 April 2020 — Gaz-System v ACER

(Case T-212/20)

(2020/C 191/53)

Language of the case: English

Parties

Applicant: Operator Gazociągów Przesylowych Gaz-System S.A. (Warsaw, Poland) (represented by: E. Buczkowska, M. Trepka, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

— annul the Board of Appeal of ACER Decision No. A-006-2019 of 7 February 2020;

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging a manifest error in the interpretation of Article 28(4) of Regulation (EU) 2019/942 (1), as the Board of Appeal of ACER failed to conduct a full review and scrutiny of the ACER's Decision No. 10/2019. This unjustified self-limitation allegedly made by the Board of Appeal of ACER had a direct impact on the operative part of the Contested Decision.

2. Second plea in law, alleging an error in assuming that ACER was not in breach of the transparency principle enshrined in Article 15 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Article 37(3) of Regulation (EU) 2017/459 (2) and Article 6(4) of Regulation (EU) 2019/942, although ACER (i) arbitrarily changed the requirements related to the technical quality requirements criteria that must be met by submitted offers and (ii) has chosen the option of repetition of the proceedings leading to the designation of the platform from the very beginning, without giving any justification of that change and choice.

3. Third plea in law, alleging an error in assuming that ACER was not in breach of the principle of equal treatment by setting requirements for the Case Study in Task B(i) and B(ii) in an arbitrary way that favoured platforms which had not fulfilled the basic requirements at the time the offers were submitted.

4. Fourth plea in law, alleging an error in assuming that ACER was not in breach of the principle of transparency, enshrined in Article 15 of TFEU and Article 41(1) and Article 41(2)(c) of the Charter, by acting arbitrarily and not providing an explanation of the requirements of the Case Study which affected the preparation of the offers by capacity booking platforms, before those offers were submitted.

5. Fifth plea in law, alleging an error in assuming that the ACER Decision 10/2019 was duly reasoned and therefore does not manifestly breach Article 296 TFEU and Article 41 (2)(c) and 47 of the Charter, while the justification presented therein does not allow for reconstruction of ACER’s reasoning which led to the choice of RBP Platform and significantly hinders the Applicant’s ability to challenge that decision.

(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. 22–53).

(2) Commission Regulation (EU) 2017/459 of 16 March 2017 establishing a network code on capacity allocation mechanisms in gas transmission systems and repealing Regulation (EU) No 984/2013 (OJ L 72, 17.3.2017, p. 1–28).