(AGENPARL) - Roma, 15 Febbraio 2023

(AGENPARL) – mer 15 febbraio 2023 Dear All,
Please find attached press release in respect of Cases T-606/20 and T-607/20:
The Court confirms the enhanced powers of the European Union Agency for the Cooperation of Energy Regulators (ACER) to take individual decisions on cross-border issues
Thus, ACER is entitled to amend the proposals of the transmission system operators in order to ensure their compliance with EU energy law, without being bound by any points of agreement between the competent national regulatory authorities
Kind regards,
Georgios Georgopoulos
Trainee
Press and Information Unit
Communication Department
[cid:image002.jpg@01D5E282.B6DDC230]
Rue du Fort Niedergrünewald
L-2925 Luxembourg
[curia.europa.eu](https://www.curia.europa.eu/)

Testo Allegato:
Communications Directorate

Press and
Information Unit

curia.europa.eu

PRESS RELEASE No
26
/23

Luxembourg, 15 February 2023

Judgment
s

of the General Court in Case
s

T
–
606
/20
and T
–
607/20
| Austrian Power Grid and Others v

ACER

The Court confirms the
enhanced powers of the European Union Agency
for the Cooperation of Energy Regulators (ACER) to take individual
decisions on cross
–
border issues

Thus, ACER is entitled to amend the proposals of the transmission system operators in order to ensure their
com
national regulatory authorities

European Commission Regulation 2017/2195 on
electricity
bal
ancing

1

provides for the implementation of several
European platfor
ms for the exchange of balancing energy. Those platforms include, first, the European platform for
the exchange of balancing energy from frequency restoration reserves with automatic activation (â??the aFRR
platformâ??) and, secondly, the European platform for

the exchange of balancing energy from frequency restoration
reserves with manual activation (â??the mFRR platformâ??)

2
.

3
, all tra
nsmission system operators (â??TSOsâ??
) have
submitted for approval

by the national regu
latory authorities (
â??the NRAsâ??
)
4

common methodology proposals for the
implementation of the aFRR platform and the mFRR platform.

Following a joint request by the NRAs, the EU Agency for the Cooperation of Energy Reg
ulators (ACER), und
er that
r
egulation

5
, took a decision on tho
se proposals, as amended following exchanges and consultations between ACER,
â??the
ACER de
cisionsâ??
were attached.

Austrian Power Grid, Ä?EPS, a.s., Polskie sieci elektroenergetyczne S.A., Red Eléctrica de España SA, RTE Réseau de
transport d’électricité, Svenska kraftnät
, TenneT TSO

BV and TenneT TSO GmbH brought an action
6

to the ACER
Board of Appeal (
â??the Board of Appealâ??
) against those decisions. Their appeals having been dismissed, they brought
two actions before the Court seeking annulment of the decisions of the Bo
ard of Appeal, in so far as they concern
them
, of certain provisions of
the ACER

1

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

2

Articles 20 and 21 of Regulation 2017/2195, respectively.

3

Article 20(1) and Article 21(1) of Regulation 2017/2195.

4

Article 5(1) and (2)(a) of Regulation 2017/2195.

5

Article 5(7) of Regulation 2017/2195.

6

Under Article 28 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

(OJ 2019 L 158, p. 22).

Communications Directorate

Press and Information Unit

curia.europa.eu

Tho
se action
s were dismissed by the Second Chamber (Extended Composition) of the Court
, which, on that

occasion, ruled, f
ly
, on the functions required for the operation of the aFRR and mFRR
platforms under Regulation 2017/2195.

The Cour
tâ??s assessment

As a preliminary point, the Court declares the actions for annulment inadmissible in so far as they are directed
against
the ACER

decisions and their annexes. In that regard, it notes that, in accordance with the fifth paragraph of
Article 2
63 TFEU and the act establishing A
CER, namely Regulation 2019/942

7
, the applicants, as non
–
privileged
parties

8
, may only seek annulment before the Court of the decisions adopted by the Board of Appeal, but not of
the
ACER

decisions and their annexes. Con
sequently, the Court is limited, in the present case, to reviewing the legality of

In acc
es its analysis on the merits. In the first place, it
rejects the applicantsâ??

argument that the Board of Appeal erred in law by failing to find that ACER had exceeded the
limits of its competence
in adopting the decisions concerned.

On that

point, the Court notes that, under Article 6(10) of Regulation 2019/942 and Article 5(7) of Regulation
nt to
decide or adopt individual decisions on regulatory issues or problems having an effect on cross
–
border trade or on
the security of the cross
–
the NRAs make a joint

request t
o that effect. In the Courtâ??
s v
iew, it does not follow from tho
se provisions that ACER’s

That

s pursue
d by the regulation of which tho
se
prov
isions form part. In that regard
, the explanatory memorandum of the proposed Regulation 2019/942 and the
previously applicable Regulation 713/2009

9

indicate a clear intention of the EU legislator to make decision
–
making
on cross
–
border issues more efficient and ex
peditious by strengthening ACER
â??
s individual decision
–
making powers in
a way that is consistent with the maintenance of the central role of

NRAs in the field of energy regulation, in
accordance with the principles of subsidiarity and proportionality. It is also clear from the preamble of Regulation
2019/942

10

that ACER was established to fill the regulatory vacuum at EU level and to contribut
e to the efficient

Therefore, the purpose and context of the relevant provisions of Regulations 2019/942 and 2017/2195, as well as
the specific circumstances of the present case, confirm
that ACER is empowered to decide on the development of
granted its own decision
–
making powers to enable it to carry out its regulatory functions

independently and
effectively, it

is entitled to modify the TSOsâ??

proposals in order to ensure their compliance with EU energy law,

It follows that the ACER Board of Appeal did n
ot
err in law in upholding ACERâ??
s jurisdiction to rule on points in the

7

Recital 34, Article 28(1) of Regulation 2019/942.

8

The privileged parties are the parties referred to in the first and second paragraphs of Article 19

of the Court’s Statute, namely the Member States,
the institutions of the Union, the States, other than the Member States, which are parties to the Agreement on the European E
conomic Area (EEA) and
the EFTA Surveillance Authority referred to in that Agree
ment.

9

Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Coop
eration of Energy
Regulators

(OJ 2009

L 211, p. 1).

10

Recital 10 of Regulation 2019/942, previously recital 5 of Regulation

713/2009.

Communications Directorate

Press and Information Unit

curia.europa.eu

Stay Connected
!

In the s
econd

place
,

the Court rejects the applicantsâ??

claims that the Board of Appeal erred in law by finding that the
incl
usion of the capacity management function among the functions required for the operation of the aFRR and
mFRR platforms had not been imposed on the TSOs by ACER, but resulted directly from the application of
Regulation 2017/2195.

The Court makes

clear from

the outset that that

11

where, as in the
present case, the TSOs envisage designating several entit
ies to perform the diffe
rent functions required. In that
regard
include the definition of the functions required for the operation of the aFRR and mFRR pl
atforms

12
. While it follows
fr
om Regulation 2017/2195 that those platforms are to

include at least the activation optimisation function and the
TSO
–
TSO

13
, it is not excluded that another function, such as capacity management, is also
co
nsidered to be r
equired for the operation of tho
se platforms, in particular if the addition of such a function
appears to be necessary to en
sure a high
–
level design of that

platform in line with common governance principles
and business processes.

An i
nter
pretation of the notion of â??
function requiredâ??

for the operation of aFRR and mFRR platforms, in the light of
the context and objectives pursued by Regulation 2017/2195, suggests that it is a function which, both technically
and legally, appears to be neces
sary for the efficient and safe es
tablishment and operation of tho
se platforms.

In the Courtâ??
ondition of necessity. F
rom a legal point of
view, Regulation 2017/2195 requires TSOs to upd
ate continuously

available cross
–
zonal

transmission capacity for
the purpose of balancing energy exchange or imbalance compensation. Technically, as is evident from the proposed
aFRR and mFRR
case,

the continuous updating of that

cap
acity, which
underpins the capacity management function, is an essential input to the activation
optimisation function. T
he
capacity management function has been added to the platforms by the TSOs themselves, in order for them to meet
the requirements of a

In the light of the above considerations in particular, the decisions of t
he Board of Appeal are upheld
.

NOTE
: An action for annulment seeks the annulment of acts of th
e institutions of the European Union that are
contrary to European Union law.

The Member States, the European institutions and individuals may, under certain
conditions, 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 G
eneral 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 publ
ished on the CURIA website on the day of delivery.

Press contact: Jacques René Zammit
â??
(+352) 4303 3355

11

Article 20(3)(e)(i) to (iii) and Article 21(3)(e)(i) to (iii) of Regulation 2017/2195.

12

Article 20(3)(c) and Article 21(3)(c) of Regulation 2017/2195.

13

Article

20(2) and
Article
21(2) of Regulation 2017/2195.

Communications Directorate

Press and Information Unit

curia.europa.eu