(AGENPARL) - Roma, 8 Febbraio 2023(AGENPARL) – mer 08 febbraio 2023 Dear All,
Please find attached press release in respect of Judgment of the General Court in Case T-295/20 | Aquind and Others v Commission
Internal energy market and Union list of projects of common interest: General Court dismisses the Aquind group’s action
EU law confers on the Member State concerned by the project the power to accept or to refuse to include the project in the list of PCIs, without the Commission being able to overrule a refusal
Kind regards,
Vittorio Quartetti
Trainee
Press and Information Unit
Communication Department
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Testo Allegato:
Communications Directorate
Press and Information Unit
curia.europa.e
u
PRESS RELEASE No 23
/23
Luxembourg, 8 February 2023
Judgment of the General Court
in Case T
–
295/20 | Aquind and Others v
Commission
General Court dismisses the Aquind groupâ??s action
E
U law confers on the Member State concerned by the project the power to accept or to refuse to include the
project in the list of PCIs, without the Commission b
eing able to overrule a refusal
The applicants, Aquind Ltd, Aquind SAS and Aquind Energy Sàrl, a
re the promoters of a proposed electricity
interconnector connecting the electricity transmission systems of the United Kingdom and France (â??the proposed
Aquind interconnectorâ??). Considered to be fundamental in the infrastructure needed for the completion
of the
â??projects of common interestâ?? (
PCIs) of the European
Union by Delegated Regulation 2018/540.
1
Since that Union list of PCIs is to be drawn up every two years, the list established by
Delegated Regulation 2018/540
was replaced by the one established by Delegated Regulation 2020/389
2
(â??the contested regulationâ??). The new list in
annex to the contested regulation listed the proposed Aquind interconnector as one of the projects which are
no
longer considered to be Union PCIs.
The applicants then brought an action before the General Court seeking annulment of the contested regulation, in
so far as it removes the proposed Aquind interconnector from the Union list of PCIs.
The Court
dismisses
that action in its entirety
. In its judgment, it holds, inter alia, that where a Member State
decides to refuse the inclusion, in the list provided for in Regulation No
347/2013,
3
of a PCI located in its territory,
that Member State has a discretion in t
he matter which the European Commission cannot call into question
.
Findings of the Court
In the first place, the Court examines the question whether the Commissionâ??s statement of reasons for not including
the proposed Aquind interconnector in the contested
regulation as a Union PCI, on the basis of the French
Republicâ??s refusal to give its approval to the inclusion of that project in the Union list of PCIs, could be regarded as a
sufficient statement of reasons.
4
In that regard, after recalling the wording
of the second paragraph of Article
172 TFEU, according to which guidelines
1
Commission Delegated Regulation (EU) 2018/540 of
23
November
2017 amending Regulation (EU)
No
3
47/2013 of the European Parliament an
d of
the Council as regards the Union list of projects of common interest (
OJ 2018 L
90
,
p.
38
).
2
Commission Delegated Regulation (EU)
2020/389
of 31 October 2019
amending Regulation (EU) No
347/2013 of the European Parliament and of the
Council as regard
s the Union list of projects of common interest
(
OJ 2020
L
74,
p.
1).
3
Article
3
of Regulation (EU)
No
3
47/2013 of the European Parliament and of the Council of
17
April
2013 on guidelines for trans
–
European energy
infrastructure and repealing Decision
No
1
364/2006/EC and amending Regulations (EC)
No
7
13/2009, (EC)
No
7
14/2009 and (EC)
No
7
15/2009 (
OJ
2013 L
115
,
p.
39
).
4
In the light of the settled case
–
law on the matter.
Communications Directorate
Press and Information Unit
curia.europa.eu
and PCIs which relate to the territory of a Member State
are to require that Member Stateâ??s approval
, the Court
considers that, in view of its clear wording, which presents no diff
confers a
discretion on the Member State concerned to give its approval to the inclusion of a project in the Union list
of PCIs or to refuse to do so
. The legislatureâ??s choice to introduce a form of right of veto in
favour of the Member
State concerned is explained by the fact that the trans
–
includes territorial aspects
and
thus, in some way, touches upon
town and country planning
, which is an area
that traditionally falls within the
sovereign
ty of the Member States
.
In the present case, the Court finds that
the Commission fulfilled the obligation to state reasons
5
by referring to
the French Republicâ??s refusal
to give its approval to the inclusion of the proposed Aquind interconnector in the
U
nion list of PCIs. Similarly, the Commission cannot be criticised for not having asked the French Republic for
explanations of the detailed reasons for that refusal. In that context, the provisions of Regulation No
347/2013
6
ng that the Commission could be held liable for a possible unlawful act committed
by a Member State where that Member State refuses to give its approval to a project and that it must therefore
answer for a potential infringement of the obligation to state
reasons committed by that Member State. According
to the Court,
such an approach
would be contrary
to the rules governing
the division of powers between the
Member States and the Commission
, as provided for in Article
172 TFEU and reiterated in Regulation
No
347/2013. The FEU Treaty has
clearly established limits on the competence of the European Union in the
field of Union PCIs
, since the Commission
is prevented from including in the list of those PCIs a project which
has not received the approval of the M
ember State
on whose territory the project is to be implemented.
In the second place, the Court examines an alleged infringement of the procedural and substantive rules laid down
in Regulation No
347/2013.
7
In that regard, it finds that the applicants
hav
e not demonstrated
that the fact that
the proposed Aquind interconnector was the most uncertain of the projects that could have been included in the
Union list of PCIs
could call into question the legality of the contested regulation
. The Court points out
that,
under Regulation No
347/2013,
8
the Commission was required to take into consideration the French
Republicâ??s refusal to approve the inclusion of the proposed Aquind interconnector in the Union list of PCIs
and that
it could not call into question the
reasons why that project was the most uncertain
. It adds that
Regulation No
347/2013
9
provided that the grounds for the refusal put forward by a Member State must be
examined
if a Member State of the regional group concerned so requests
. The Commission w
as therefore
not
entitled
to request that the grounds relied on by the French Republic be examined and therefore it
did not commit
any error
in that regard. In the present case,
no Member State came forward to ask the French Republic to
explain the reasons
for its refusal
. Even if the French Republicâ??s conclusion that the proposed Aquind
interconnector was the most uncertain is based on an error of assessment, the Commission
did not have the
power to correct it, any more than the Court itself has jurisdicti
on to examine that issue
.
NOTE:
An action for annulment seeks the annulment of acts of the institutions of the European Union that are
5
Under point (a) of the second subparagraph of
Article
3
(3) of Regulation
No
3
47/2
013 and
Annex
III
.2(10) to that regulation.
6
Article
3
(1) and (4) and
Article
16
of Regulation
No
3
47/2013.
7
In particular,
Article
5
(8) of Regulation
No
3
47/2013.
8
Under point (a) of the second subparagraph of
Article
3
(3) of Regulation
No
3
47/2013 and
Annex
III
.2(10) to that regulation.
9
Annex III.2(10) to Regulation No
347/2013.
Communications Directorate
Press and Information Unit
curia.europa.eu
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contrary to European Union law. The Member States, the European institutions and individuals may, under certain
condi
tions, bring an action for annulment before the Court of Justice or the General Court. If the action is well
founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the
act.
NOTE:
An appeal, limited to
points of law only, may be brought before the Court of Justice against the decision of
the General Court within two months and ten days of notification of the decision.
Unofficial document for media use, not binding on the General Court.
The
full text
of the judgment is published on the CURIA website on the day of delivery.
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