CELEX: 62019TN0631
Language: en
Date: 2019-09-21 00:00:00
Title: Case T-631/19: Action brought on 21 September 2019 — BNetzA v ACER

11.11.2019   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 383/69
            
         
      Action brought on 21 September 2019 — BNetzA v ACER
      (Case T-631/19)
      (2019/C 383/78)
      Language of the case: German
      
         Parties
      
      
         Applicant: Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (BNetzA) (represented by: H. Haller, T. Heitling, L. Reiser, N. Gremminger and V. Vacha, lawyers)
      
         Defendant: Agency for the Cooperation of Energy Regulators (ACER)
      
         Form of order sought
      
      The applicant claims that the Court should:
      
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                  annul the provisions listed below of Decision No 2/2019 of the defendant of 21 February 2019, and the related decision No A-003-2019 of the defendant’s Board of Appeal of 11 July 2019:
                  
                              (i)
                           
                           
                              Article 5(5) to (9) of Annex I;
                           
                        
                              (ii)
                           
                           
                              the second half of the sentence in Article 10(4) of Annex I and Article 10(5) of that annex;
                           
                        
                              (iii)
                           
                           
                              the second sentence of Article 16(2) of Annex I and Article 16(3)(d)(vii) of that annex;
                           
                        
                              (iv)
                           
                           
                              Article 5(5) to (9) of Annex II;
                           
                        
                              (v)
                           
                           
                              Article 17(3)(d)(vii) of Annex II;
                           
                        
                              (vi)
                           
                           
                              all the provisions of Annexes I and II which refer expressly to the provisions listed in points (i) to (v);
                           
                        
            
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                  in the alternative, annul in its entirety Decision No 2/2019 of the defendant of 21 February 2019, and the related decision No A-003-2019 of the defendant’s Board of Appeal of 11 July 2019;
               
            
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                  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, alleging the formal unlawfulness of the contested decision.
                  The contested decision taken by ACER is formally unlawful since ACER exceeded the limits of its competence by taking that decision.
               
            
                  2.
               
               
                  Second plea in law, alleging an infringement of Regulation (EU) 2019/943 of the European Parliament and of the Council. (1)
                  
                  
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                              ACER is not empowered to establish a mechanism allowing the exclusion of internal network elements from the capacity calculation in the context of a pre-selection.
                           
                        
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                              In its decision, ACER (i) defined the critical network elements, (ii) provided for a differentiated application of the Power-Transfer-Distribution-Factor (PTDF) value to internal network elements, on the one hand, and cross-zonal elements, on the other hand, and (iii) introduced a criterion of efficiency for the internal network elements. It thus infringes Article 16(4) and (8) of Regulation (EU) 2019/943.
                           
                        
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                              In the contested decision, ACER provides that the bidding zone configuration must be revised according to a specific method and within a precise time-frame. That is contrary to Regulation (EU) 2019/943.
                           
                        
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                              The transmission system operators are de facto required to maintain a minimum exchange capacity of 100 % available on their internal network elements and more for cross-border exchanges. That is contrary to Regulation (EU) 2019/943.
                           
                        
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                              ACER wishes to exclude over the long-term internal lines which have a Power-Transfer-Distribution-Factor (PTDF) value lower than 10 % from the capacity calculation. That is contrary to Regulation (EU) 2019/943.
                           
                        
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                              The introduction of a criterion of efficiency would circumvent the transitional provision of Article 15(2) of Regulation (EU) 2019/943.
                           
                        
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                              The ACER decision infringes Article 14(5) of Regulation (EU) 2019/943 since it does not take into account new investments in the network infrastructure.
                           
                        
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                              ACER requires an extensive use of corrective actions. That is contrary to the provisions of Regulation (EU) 2019/943.
                           
                        
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                              ACER circumvents the provisions of Regulation (EU) 2019/943 relating to the new configuration of bidding zones.
                           
                        
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                              ACER claims competence in relation to the reorganisation of bidding zones and thus infringes Article 14(3), (6), (7) and (8) and Article 15(5) and (7) of Regulation (EU) 2019/943.
                           
                        
            
                  3.
               
               
                  Third plea in law, alleging an infringement of Commission Regulation (EU) 2015/1222. (2)
                  
                  
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                              The criterion of efficiency introduced by ACER obliges the Member States de facto to reconfigure their bidding zones. That is contrary to the requirements of Regulation (EU) 2015/1222.
                           
                        
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                              ACER requires an extensive use of corrective actions. That is contrary to the requirements of Regulation (EU) 2015/1222.
                           
                        
            
                  4.
               
               
                  Fourth plea in law, alleging a breach of the principle of proportionality.
                  The ACER decision is disproportionate because it is not capable of achieving the objectives of Regulation (EU) 2015/1222.
               
            
                  5.
               
               
                  Fifth plea in law, alleging a breach of the principle of non-discrimination.
                  The determination of critical network elements and the early adoption of corrective actions in order to remove loop flows amounts to indirect discrimination on the basis of nationality.
               
            
         (1)  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).
      
         (2)  Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).