Official Journal of the European Union

EN

C series

—

C/2024/7037

(Case T-488/24)

(C/2024/7037)

Language of the case: German

Parties

Applicant: Uniper Global Commodities SE (Düsseldorf, Germany) (represented by: T. Richter and M. Schellberg, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

—stay the proceedings pursuant to Article 69 of the Rules of Procedure of the General Court, until such time as a final decision is adopted regarding the action for the annulment of decision No 03/2022 of ACER (Case T-96/23);

—annul the decision of the defendant of 5 July 2024 (No 09/2024);

—order the defendant to pay the costs.

Pleas in law and main arguments

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

1.First plea in law

There is no legal basis for the price limits determined by the defendant. Regulation (EU) 2017/2195 does not provide any legal basis for transitional price limits. The adjustable price limits are not technical price limits for the purposes of Article 30(2) of Regulation (EU) 2017/2195. The price limits determined infringe Article 10 of Regulation (EU) 2019/943.

2.Second plea in law

The defendant exceeded its powers under the second sentence of Article 5(1) and Article 5(6) of Regulation (EU) 2017/2195, in conjunction with Article 6(3) thereof, inasmuch as it did not adopt a decision on the request of the European Network of Transmission System Operators for Electricity but made its own determination.

3.Third plea in law

Even if it were assumed the defendant was empowered under Regulation (EU) 2017/2195 and Regulation (EU) 2019/942 to draw up a decision that considerably deviates from the submitted proposal, it should not have determined the price limits without renewed consultation pursuant to Article 10 of Regulation (EU) 2017/2195 and consultation pursuant to Article 14(6) of Regulation (EU) 2019/942.

4.Fourth plea in law

The defendant failed to state sufficient reasons for the determination of the price limit, contrary to Article 14(7) of Regulation (EU) 2019/942 and Article 296 TFEU; in particular, the defendant failed to refer to any legal basis.

5.Fifth plea in law

The defendant’s decision infringed Article 3(1)(a), (b) and (e) of Regulation (EU) 2017/2195. The transitional and the adjustable price limits are detrimental to effective competition. They interfere with the free price formation on the part of the balancing energy suppliers. The price limit is also discriminatory, on the ground that the operators of facilities at the bottom of the merit order are prevented from setting rational prices and are thus hindered in their effective market participation. The decision of the defendant is also in clear contradiction with its previous decisions.

6.Sixth plea in law

In its determination of the price limit, the defendant fails to observe the principle of proportionality pursuant to the first and second sentences of Article 5(4) TFEU and Article 3(2)(a) of Regulation (EU) 2017/2195. The transitional price limit is not appropriate to address any potential transitional competition or liquidity deficits. In addition, the adjustable price limit is neither appropriate nor necessary to prevent abusively excessive prices. Rather, the low price limits reduce market liquidity. Furthermore, there is no apparent legitimate ground that can serve as a basis for an interference with free price formation being proportionate.

*

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

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).

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).

ELI: http://data.europa.eu/eli/C/2024/7037/oj

ISSN 1977-091X (electronic edition)

—