Case T-556/23: Action brought on 8 September 2023 — Swissgrid v ACER
Date: 2023-09-08
Institutions: General Court
Subjects: Switzerland, electrical energy, electricity supply, energy cooperation, energy distribution, energy grid, energy law, energy supply, trans-European network








C_202300227EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/227


23.10.2023





Action brought on 8 September 2023 — Swissgrid v ACER
(Case T-556/23)
(C/2023/227)
Language of the case: English

Parties


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

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:






—


annul the decision of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators of 29 June 2023 in Case A-009-2022, dismissing as inadmissible the appeal of the applicant against Decision No 16/2022 of the European Union Agency for the Cooperation of Energy Regulators (‘contested decision’), and










—


order the defendant to bear the costs of the proceedings.





Pleas in law and main arguments

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






1.


First plea in law, arguing that the defendant erred in law in finding that Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing precludes the participation of the applicant in the European platform for the imbalance netting process (1).






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Regulation (EU) 2017/2195 does not contain a general rule precluding the participation of third country TSOs in the European platform for the imbalance netting process, the European platform for the exchange of balancing energy from replacement reserves, the European platform for the exchange of balancing energy from frequency restoration reserves with manual activation, or the European platform for the exchange of balancing energy from frequency restoration reserves with automatic activation.










—


The inapplicability of Articles 1(6) and 1(7) of Regulation (EU) 2017/2195 to the European platform for the imbalance netting process does not imply that the applicant is barred from participating in that platform.














2.


Second plea in law, alleging that the defendant misapplied in the contested decision the conditions of admissibility under Article 28(1) of 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 (recast) (2).






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The defendant erred in finding that decision No 13/2020 did not have the effect of admitting the applicant to the European platform for the imbalance netting process.










—


The defendant erred in finding that the effects of decision No 16/2022 on the contractual framework in force between the EU TSOs and the applicant are not capable of rendering the appeal against decision No 16/2022 admissible.














3.


Third plea in law, alleging that Regulation (EU) 2017/2195 is invalid to the extent it is applied to prohibit the EU TSOs from including the applicant in the European platform for the imbalance netting process.






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To the extent it is applied to prohibit the EU TSOs from including the applicant in the European platform for the imbalance netting process, Regulation (EU) 2017/2195 is outside the limits of the implementing powers of the Commission under Article 291(2) TFEU.










—


To the extent it is applied to prohibit the EU TSOs from including the applicant in the European platform for the imbalance netting process, Regulation (EU) 2017/2195 is contrary to Articles 3(f) and 3(i) of Regulation (EU) 2019/943 of 5 June 2019 on the internal market for electricity (recast) (3).










(1)  
            OJ L 312, 28.11.2017, p. 6.

(2)  
            OJ L 158, 14.06.2019, p. 22.

(3)  
            OJ L 158, 14.06.2019, p. 54.


ELI: http://data.europa.eu/eli/C/2023/227/oj
ISSN 1977-091X (electronic edition)