Action brought on 26 February 2021 — Swissgrid v Commission

(Case T-127/21)

(2021/C 189/20)

Language of the case: English

Parties

Applicant: Swissgrid AG (Aarau, Switzerland) (represented by: P. De Baere, P. L’Ecluse, K. T’Syen and V. Lefever, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the contested decision;

— order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

By its action, the applicant seeks the annulment of the decision of the Commission, contained in its letter of 17 December 2020, by which it informs the transmission system operators (TSOs) that the applicant is not qualified to participate in European platforms for the exchange of standard product for balancing energy, including the Trans European Replacement Reserves Exchange (TERRE), and orders the TERRE TSOs to exclude the applicant from the TERRE platform by 1 March 2020 at the latest. In support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging that the contested decision incorrectly applies Article 1(6) of Commission Regulation (EU) 2017/2195 of 23 November 2017 (1). — The contested decision violates Article 1(6) of Regulation 2017/2195 in that it holds that, for the applicant to be able to participate in the European platforms for the exchange of standard products for balancing energy, the applicant’s participation should be ‘necessary’ to remedy a system security problem resulting from unscheduled physical power flows, while the relevant criterion is whether the exclusion of Switzerland ‘may lead to unscheduled physical power flows via Switzerland endangering the system security of the region’. — The contested decision violates Article 1(6) of Regulation (EU) 2017/2195 because it reads the alternative conditions of Article 1(6) of Regulation (EU) 2017/2195 as cumulative conditions.

2. Second plea in law, alleging that the contested decision incorrectly applies Article 1(7) of Regulation (EU) 2017/2195 — The contested decision violates Article 1(7) of Regulation (EU) 2017/2195 because it reads the second sentence of Article 1(7) of Regulation (EU) 2017/2195 as requiring the conclusion of an intergovernmental agreement on electricity cooperation with the EU within the meaning of the first alternative condition under Article 1(6) of Regulation (EU) 2017/2195; — The contested decision breaches Article 1(7) of Regulation (EU) 2017/2195 because it is not properly based on the opinions given by ACER and by all transmission system operators (TSOs).

3. Third plea in law, alleging that the contested decision breaches Article 41(2)(a) of the Charter of Fundamental Rights of the European Union and the applicant’s rights of defence, because the European Commission failed to consider and respond to the arguments put forward by the applicant in its letters to the European Commission of 29 September 2020 and 8 December 2020.

4. Fourth plea in law, alleging that the contested decision breaches Article 41(2) (c) of the Charter of Fundamental Rights of the European Union and Article 296 TFEU, because it (i) fails to give appropriate reasons for the European Commission decision to disregard the (a) arguments put forward by the applicant in its letters to the European Commission of 29 September 2020 and 8 December 2020, (b) all TSOs’ opinion and (c) ACER opinion; and (ii) contains contradictory and inadequate reasoning.

(1) Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (Text with EEA relevance) (OJ 2017 L 312, p. 6-53)