Case T-487/24: Action brought on 19 September 2024 – RWE Supply & Trading v ACER
Date: 2024-09-19
Institutions: General Court
Subjects: electrical energy, electricity supply, energy distribution, energy grid, energy supply, powers of the institutions (EU), price of energy, prices policy








C_202406944EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/6944


25.11.2024






Action brought on 19 September 2024 – RWE Supply & Trading v ACER


(Case T-487/24)

(C/2024/6944)
Language of the case: German

Parties


Applicant: RWE Supply & Trading GmbH (Essen, Germany) (represented by: U. Scholz, H. Weßling and M. von Armansperg, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:






—


annul the defendant’s initial decision of 5 July 2024 (No 09/2024), in so far as the decision amends existing technical price limits and amends and maintains transitional price limits, in particular as regards Articles 2 and 4 to 6 of Annex I to the initial decision;










—


order the defendant to pay the costs.





Pleas in law and main arguments

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






1.


First plea in law
The defendant was not competent to amend the existing technical price limits, on the ground that the transmission system operators had not submitted any proposal capable of being revised and approved pursuant to Article 5(1) of Regulation (EU) 2017/2195 (1) and Article 5(2)(b) and Article 5(6) of Regulation (EC) No 2019/942. (2) The proposal of the transmission system operators of 31 January 2024, which, in the applicant’s submission, suggested no amendments to the existing technical price limits but rather their replacement by regulatory price limits, did not meet the minimum requirements of Article 30(2) of Regulation (EU) 2017/2195. Furthermore, the transmission system operators failed to identify that the proposed price limits were needed for efficient functioning of the market. The defendant was thus neither competent to revise the proposal nor entitled to determine new price limits on its own initiative.










2.


Second plea in law
The amendment to the existing technical price limits made by the contested decision infringes Article 10(1) of Regulation (EU) 2019/943, (3) on the ground that the price limits decided on by the defendant under Articles 9 and 10 of the amended pricing methodology, which, in the applicant’s submission, are not technical, are not covered by Article 30(2) of Regulation (EU) 2017/2195. In addition, the defendant failed to identify that they are needed for efficient functioning of the market. Moreover, they do not take sufficient account, contrary to the second sentence of Article 30(2) of Regulation (EU) 2017/2195, of the maximum and minimum clearing price for day-ahead and intraday timeframes pursuant to Regulation (EU) 2015/1222. (4)











3.


Third plea in law
The contested decision is unlawful also on the ground that it is not consistent with the purpose of Regulation (EU) 2017/2195 and, furthermore, does not contribute to the objectives stated in Article 5(1) of Regulation (EU) 2017/2195 and Article 5(6) of Regulation (EU) No 2019/942.










4.


Fourth plea in law
The contested decision is unlawful also on the ground that it maintains the existing transitional price limits with minimal changes under the new Article 11 of the pricing methodology and, in that regard, infringes Article 10(1) of Regulation (EU) 2019/943. As already follows from decision No 03/2022 of the defendant, the transitional price limits are, in the defendant’s view, precisely not technical price limits for the purposes of Article 30(2) of Regulation (EU) 2017/2195. Even if transitional price limits were consistent with Article 10(1) of Regulation (EU) 2019/943, the defendant would also have had to establish – in a similar way to Article 30(2) of Regulation (EU) 2017/2195 – that the maintenance of the price limits is needed in order to attain the objectives pursued by it, which is not the case.










5.


Fifth plea in law
The contested decision does not set out reasons as required by Article 14(7) of Regulation (EC) No 2019/942 and Article 296 TFEU as well as Article 41(2) of the Charter of Fundamental Rights of the European Union. (5) In that decision, the defendant does not even set out the fundamental factual considerations capable of serving as basis for the decision determining transitional price limits. Second, the defendant does not indicate what the legal basis for the transitional price limits could be. Third, the defendant has not stated why transitional price limits, which differ from the adopted technical price limits only in the non-applicability of the adjustment mechanism, are needed to ensure the integration of the electricity balancing market or for any other purpose. In that regard, the defendant also has not stated what negative consequences could follow if the adjustment mechanism were to be applied during the transitional stage.






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

(2)  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 (OJ 2019 L 158, p. 22).

(3)  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).

(4)  Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).

(5)  
            OJ 2012 C 326, p. 391.


ELI: http://data.europa.eu/eli/C/2024/6944/oj
ISSN 1977-091X (electronic edition)