Action brought on 25 December 2019 – Aquind and Others v Commission

(Case T-885/19)

(2020/C 68/61)

Language of the case: English

Parties

Applicants: Aquind Ltd (Wallsend, United Kingdom), Aquind Energy Sàrl (Luxembourg, Luxembourg), Aquind SAS (Rouen, France) (represented by: S. Goldberg, C. Davis, J. Bille, Solicitors, and E. White, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— annul the contested measure, that is the Delegated Regulation insofar as it removes AQUIND Interconnector from the Union List;

— in the alternative, annul the Delegated Regulation in its entirety; and

— order the European Commission to pay the costs of the applicants in the present proceedings.

Pleas in law and main arguments

In their application, the applicants ask the Court to annul Commission Delegated Regulation of 31 October 2019 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest.

In support of the action, the applicants rely on seven pleas in law.

1. First plea in law, alleging a failure to state reasons for the removal of AQUIND Interconnector from the Union list. — In breach of the obligation to state reasons, the Delegated Regulation does not contain or refer to any statement of reasons for the removal of AQUIND Interconnector from the Union list and the applicants were not given any reasons for the removal.

2. Second plea in law, alleging an infringement of the procedural and substantive requirements under Regulation (EU) No 347/2013 (1) (the ‘TEN-E Regulation’) and in particular Article 5(8) thereof. — The establishment of the list of projects of common interest for the purposes of the Delegated Regulation was not in compliance with the requirements of the TEN-E Regulation.

3. Third plea in law, alleging an infringement of Article 10(1) of the Energy Charter Treaty. — The removal of AQUIND Interconnector from the Union list and the lack of any reasons for such removal infringe obligations under Article 10(1) of the Energy Charter Treaty to provide stable, equitable and transparent conditions and to accord fair and equitable treatment to investments.

4. Fourth plea in law, alleging an infringement of the right to good administration under Article 41 of the Charter of Fundamental Rights of the European Union. — In breach of the Article 41 of the Charter of Fundamental rights, AQUIND Interconnector’s removal from the Union list was not handled impartially and the applicants had no right to be heard before the adoption of the Delegated Regulation.

5. Fifth plea in law, alleging an infringement of the Union law principle of equal treatment. — In breach of the Union law principle of equal treatment, AQUIND Interconnector was treated in a different and unfair manner in comparison to comparable proposed projects of common interest (PCI) without any objective justification for such unequal treatment.

6. Sixth plea in law, alleging an infringement of the Union law principle of proportionality. — As an existing PCI in the development stage, the simple removal of AQUIND Interconnector from the Union list without carrying out a detailed comparison of comparable projects and without the applicants being given an opportunity to remedy any problems is disproportionate.

7. Seventh plea in law, alleging an infringement of the Union law principles of legal certainty and legitimate expectations. — The contested measure infringes the applicants’ legitimate expectations that it would be entitled to rely on its inclusion in the Union list and that the process of preparing the Union list of PCIs would be carried out in accordance with the objectives and obligations of the TEN-E Regulation and other applicable legal requirements.

(1) Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39).