Action brought on 15 October 2019 - FGSZ v ACER

(Case T-704/19)

(2019/C 406/52)

Language of the case: English

Parties

Applicant: Földgázszállító Zártkörűen Működő Részvénytársaság (FGSZ) (Siófok, Hungary) (represented by: M. Horányi, N. Niejahr and S. Zakka, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

— annul ACER decision No 5/2019 of 9 April 2019 on the incremental capacity project proposal for the Mosonmagyaróvár interconnection point (the ‘HUAT Project’), as upheld by the decision of the Board of Appeal of the Agency of 6 August 2019 in case number A-004-2019 (the ‘Board of Appeal Decision’);

— in the alternative, annul the Contested Decision as upheld by the Board of Appeal Decision and declare void Article 1(1) and (2) of the Contested Decision to the extent that the applicant is obliged to carry out a binding phase for the marketing of incremental capacity at offer level I and offer level II of the HUAT Project as well as Article 2(4) of the Contested Decision insofar as it obliges the applicant to implement the HUAT project in case of a positive outcome of the economic test to be carried out;

— in the alternative, annul and declare void the Board of Appeal Decision;

— order ACER to bear its own costs and those of the Applicant in connection with these proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging that ACER lacked competence to adopt the Contested Decision.

2. Second plea in law, alleging that ACER violated Article 8(1)(a) of Regulation 713/2009 (1) by obliging the applicant to implement the HUAT project.

3. Third plea in law, alleging that ACER violated Article 28(1)(d) and 22(1) of Regulation (EU) 2017/459 (2) by amending the economic test parameters required under Article 22(1) of that Regulation.

4. Fourth plea in law, alleging that ACER violated Article 22(1)(b) of Regulation (EU) 2017/459 by failing to include the present value of the estimated increase in the allowed or target revenue of the applicant with the incremental capacity.

5. Fifth plea in law, alleging that ACER violated Article 28(2) of Regulation (EU) 2017/459 by failing to properly analyse and take into account any potential detrimental effects on competition and on the effective functioning of the internal gas market of the HUAT project.

6. Sixth plea in law, alleging that ACER violated Article 194(1) TFEU by failing to take into consideration the principle of energy solidarity which would have required ACER to take into account the interest of other actors and to avoid adopting measures that would affect the Union’s or a Member State’s interests.

7. Seventh plea in law, alleging that ACER violated Articles 17, 18 and 51 of the Charter of Fundamental Rights and violated the freedom of the applicant to conduct business and the applicant’s right to property by adopting the Contested Decision.

8. Eighth plea in law, alleging that ACER violated Article 41 of the Charter of Fundamental Rights by accepting to take the case before the dossier was sufficiently prepared and by failing to establish or consider all relevant facts.

9. Ninth plea in law, alleging that the Board of Appeal violated the applicant’s rights of defence by failing to grant sufficient time to the applicant to reply to the defence and to analyse the rejoinder prior to the oral hearing.

10. Tenth plea in law, alleging that the Board of Appeal Decision is vitiated by a manifest error in the interpretation of Union law as it failed to conduct a full review and assessment of the legality of the Contested Decision.

(1) 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 L 211, 14.08.2009, p. 1.

(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, 17.03.2017, p. 1.