Case T-342/23: Action brought on 16 June 2023 — Aquind v ACER
Date: 2023-06-16
Institutions: General Court
Subjects: damage, damages, discretionary power, electrical energy, energy grid, energy transport, equal treatment, operation of the Institutions, principle of legal certainty, project of common interest








C_2023278EN.01002601.xml










7.8.2023   


EN


Official Journal of the European Union


C 278/26






Action brought on 16 June 2023 — Aquind v ACER
(Case T-342/23)
(2023/C 278/37)
Language of the case: English

Parties


Applicant: Aquind Ltd (London, United Kingdom) (represented by: S. Goldberg, Solicitor, E. White and J. Bille, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:






—


hold that (i) certain acts of the Agency were unlawful and such acts have caused damage to the applicant that the Agency is obliged to compensate; or (ii) in the alternative, that the Agency’s decision has caused damage to the applicant that the Agency is obliged to compensate;
as a result, find the Agency liable to compensate the applicant for the damage caused to AQUIND Interconnector by the unlawful conduct of the Agency, which includes:






—


wasted costs incurred since the unlawful conduct began;










—


loss of a Connecting Europe Facility grant;










—


costs of ongoing regulatory engagement; and










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loss of profit resulting from delays;














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order the parties to seek agreement on the precise amount of damages within three months or to return to the Court with their respective estimates, to allow the Court to establish the amount of compensation to be paid by the Agency; and










—


order the Agency to pay the costs of the present procedure.





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 unlawfulness of the refusal to grant an exemption to AQUIND Interconnector in the Agency decision (Decision No 05/2018 of 19 June 2018). The applicant submits that unlawfulness is established by the fourth ground for annulment in the judgment of the General Court in Case T-735/18, (1) as upheld by the Court of Justice in Case C-46/21 P (2). The Agency deliberately exceeded the limits of its discretion by imposing an additional condition for the grant of an exemption pursuant to Regulation (EC) 714/2009 of the European Parliament and of the Council. (3) The Agency’s conduct also violated the principles of legitimate expectations, legal certainty, and equal treatment.










2.


Second plea in law, alleging unlawfulness of the Board of Appeal’s decision (Decision A-001-2018 of 17 October 2018) to uphold the Agency decision.










3.


Third plea in law, alleging unlawfulness of the Agency’s failure of review the Agency decision once AQUIND Interconnector lost its status of a Project of Common Interest, in a breach of the principle of good administration guaranteed by Article 41 of the Charter of Fundamental Rights.










4.


Fourth plea in law, alleging the Agency’s failure to comply promptly with the judgment of the General Court in Case T-735/18 in violation of Article 266 of the Treaty on the Functioning of the European Union and Article 29 of Regulation 2019/943 of the European Parliament and of the Council. (4)











5.


Fifth plea in law, alleging illegality of the deliberate and unjustified delay in re-opening proceedings following the judgment of the General Court.
The applicant alleges that this series of unlawful conduct has caused the applicant to suffer certain, specific and quantifiable damage.






(1)  Judgment of 18 November 2020, Aquind v ACER (T-735/18, EU:T:2020:542).

(2)  Judgment of 9 March 2023, ACER v Aquind (C-46/21 P, EU:C:2023:182).

(3)  Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15).

(4)  Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54).