ACER’s opinions under Regulation No 713/2009: open to challenge?
Energy - Electricity market – Cross-border exchanges – Transmission capacity – Capacity allocation – Congestion management – National regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity – ACER (Agency for the Cooperation of Energy Regulators) – Opinion of ACER – Appeal – Definition of a decision open to appeal before ACER
In a recent judgement, rendered on 29 June 2017 in a case between the Austrian national regulatory authority (“NRA”) Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (“E-Control”) and the Agency for the Cooperation of Energy Regulators (“ACER”), the General Court of the European Union confirmed that it is not possible to appeal against an opinion of ACER before the board of appeal of ACER.
The background of the dispute can be briefly summarized as follows.
On 2 December 2014, the Urząd Regulacji Energetyki (“URE”), the Polish NRA, lodged with the ACER a request for an opinion under Article 7(4) of Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (“Regulation (EC) No 713/2009”) on whether decision No 141-4/2013-09/203 of the NRA of Slovenia, E-Control’s decision No V AUK 02/13, decision No 2538/2014 of the NRA of Hungary and decision No 0027/2014/E-PP of the NRA of Slovakia (“the decisions at issue”) were in compliance with 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 (“Regulation (EC) No 714/2009”), including the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto (“guidelines in Annex 1”).
According to URE, the decisions at issue did, amongst others, not provide for a capacity allocation procedure on the German-Austrian border, resulting in significant power flows through the transmission grids in neighbouring countries. It considered, therefore, that the decisions at issue did not comply with the provisions of Regulation No 714/2009 or with the guidelines in Annex I.
In its opinion dated 23 September 2015, ACER, in essence, held that :
1) the interconnection between Germany and Austria should be considered to be usually and structurally congested for the purposes of Article 2, (2), c) of Regulation No 714/2009 and points 1.2 and 1.4 of the guidelines in Annex I;
2) it is necessary to implement transparent, non-discriminatory and market-based congestion management procedures that are compliant with Regulation (EC) No 714/2009; and
3) the implementation of a capacity allocation procedure on the German-Austrian border is required.
The decisions at issue were thus considered not to comply with article 16, (1) of Regulation (EC) No 714/2009 and points 1.2, 1.4 and 3.1 of the guidelines in Annex 1.
ACER invited, amongst others, the transmission system operators and the NRAs of the Central-East Europe region to adopt a coordinated capacity allocation procedure for the German-Austrian border and to allocate maximum resources and effort to the implementation of flow-based market coupling in the Central-East Europe region as early as possible.
Subsequently, E-Control filed an administrative appeal before the board of appeal of ACER pursuant to article 19 of Regulation (EC) No 714/2009.
In its decision, the board of appeal of ACER dismissed the administrative appeal as inadmissible on the ground that the opinion in question is not an act of ACER that can be the subject of an appeal pursuant to article 19 of Regulation (EC) No 714/2009 because it has no binding legal effects.
On 15 February 2016, E-Control brought an action for the annulment of the ACER’s board of appeal its decision before the General Court under article 263 of the Treaty of the Functioning of the European Union.
Decision of the General Court
The main legal question at stake in this issue is whether or not the board of appeal of ACER incorrectly dismissed E-Control’s appeal as inadmissible on the ground that an opinion is not an act which is open to challenge. E-Control upheld that ACER’s opinion constituted a decision within the meaning of Article 19, (1) of Regulation No 713/2009 and that, consequently, administrative appeal was possible.
According to this Article 19, (1) “any natural or legal person, including national regulatory authorities, may appeal against a decision referred to in Articles 7, 8 or 9 which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.”
The General Court noted that, whereas Article 7, (1) of Regulation (EG) No 713/2009 assigns the task to ACER to adopt individual decisions on technical issues where those decisions are provided for in Directive 2009/72/EC, Directive 2009/73/EC, Regulation (EC) No 714/2009 or Regulation (EC) No 715/2009, Article 7, (4) of Regulation (EG) No 713/2009 foresees the task for ACER to provide opinions, based on matters of fact, at the request of any regulatory authority or of the European Commission, on whether a decision taken by a regulatory authority complies with, inter alia, the guidelines referred to in Directive 2009/72 or in Regulation No 714/2009 or with other relevant provisions of those acts.
The General Court established that the opinion at stake constitutes, as suggested by its title, an opinion on the compliance of the decisions at issue approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation (EC) No 714/2009 and with the guidelines in Annex I and that it specifically referred to Article 7, (4) of Regulation (EG) No 713/2009 as its legal basis.
The General Court also established that the opinion at stake contains only non-binding invitations to abide by certain findings that do not in any way restrict any discretion the NRAs may have.
It emphasized that, pursuant to article 7, (5) of Regulation (EG) No 713/2009 and article 39, (3) of Directive 2009/72/EC, the only consequence of non-compliance with such an ACER opinion is that ACER is to inform the European Commission and the member state concerned. As such, the opinion does not have binding legal effects – it creates neither rights for an individual’s benefit nor obligations to which an individual might be subject. Only a final decision of the European Commission within the meaning of article 39, (6) of Directive 2009/72/EC may have binding legal effects vis-à-vis an NRA.
Based on these considerations, the General Court concluded that the opinion in question is not a decision for the purpose of article 19 of Regulation (EG) No 713/2009 which may be the subject of an administrative appeal before the ACER’s board of appeal.
The action of E-Control was dismissed and the decision of ACER’s board of appeal was upheld.
Régine Feltkamp & Gerrit Hendrikx