6 September 2023 (*)

(Action for annulment – Energy – Regulation (EU) 2017/459 – Capacity allocation mechanisms in gas transmission systems – Selection of gas transmission capacity booking platforms – ACER decision in the absence of agreement between the national regulatory authorities – Selection procedure by ACER – Conditions for ACER to resume the proceedings after referral back by the Board of Appeal – Scope and intensity of the Board of Appeal’s review of the legality of ACER decisions – Manifestly well-founded action)

In Case T‑212/20,

established in Warsaw (Poland), represented by E. Buczkowska and M. Trepka, lawyers,

applicant,

supported by

Republic of Poland,

represented by B. Majczyna, acting as Agent,

intervener,

European Union Agency for the Cooperation of Energy Regulators (ACER),

represented by P. Martinet and S. Vaona, acting as Agents, and by E. Ameye, M. Sousa Ferro and E. Abril Fernández, lawyers,

defendant,

THE GENERAL COURT (Third Chamber),

composed of F. Schalin, President, P. Škvařilová-Pelzl (Rapporteur) and I. Nõmm, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

makes the following

By its action under Article 263 TFEU, the applicant, Operator Gazociągów Przesylowych Gaz-System S.A., asks the General Court to annul Decision No A-006-2019 of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) (‘the Board of Appeal’) of 7 February 2020 (‘the contested decision’).

Background to the dispute

The network codes, established by means of European Commission regulations, are a key instrument for European harmonisation and the development of an integrated energy market. They are a set of common rules concerning technical and commercial conditions for access to gas and electricity transmission networks, which are intended to apply in the same way throughout the European Union and to facilitate trade between different marketplaces.

Commission Regulation (EU) 2017/459 of 16 March 2017 establishing a network code on capacity allocation mechanisms in gas transmission systems and repealing Regulation (EU) No 984/2013 (OJ 2017 L 72, p. 1) aims to facilitate trade in gas by creating standardised allocation rules between the various European market areas. Gas transmission capacity to interconnectors is allocated to auctions in a uniform manner within the European Union (joint allocations on both sides of interconnectors, standardised capacity products, capacity quotas booked for short-term periods, etc.).

Article 37 of Regulation 2017/459 provides that transmission system operators (‘TSOs’) are to apply that regulation by offering gas transmission capacity by means of one or a limited number of joint web-based booking platforms.

The procedure before ACER which led to the adoption of the contested decision by the Board of Appeal concerned the selection of a booking platform for gas transmission capacity at the German-Polish border.

Gascade Gastransport GmbH, Ontras Gastransport GmbH and Operator Gazociągów Systemowych GAZ-SYSTEM S.A. are TSOs, the first two of which operate in Germany and the third in Poland. Having failed jointly to select a single gas transmission capacity booking platform at the ‘Mallnow’ interconnection point (‘the Mallnow IP’) and the ‘GCP’ virtual interconnection point (‘the GCP VIP’), those TSOs, in accordance with Article 37(3) of Regulation 2017/459, referred the matter to the corresponding two national regulatory authorities (‘NRAs’), namely that of the Federal Republic of Germany, the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (BNetzA), and that of the Republic of Poland, the Urząd Regulacji Energetyki (URE), on 6 and 16 October 2017 respectively.

Pursuant to Article 37(3) of Regulation 2017/459, read in conjunction with Article 8(1) 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 (OJ 2009 L 211, p. 1), BNetzA and the URE informed ACER, on 13 and 19 April 2018 respectively, that they had not succeeded in jointly selecting a single gas transmission capacity booking platform at the Mallnow IP and the GCP VIP. ACER considered that the selection decision for that platform had been entrusted to it on the date of the last referral, namely 19 April 2018.

ACER consulted the NRAs and TSOs concerned, launched a public consultation and held public workshops in order to properly assess the needs of the market, including the needs of entities that would use the services of the platform.

On 19 July 2018, following its consultations, ACER requested the operators of gas transmission capacity booking platforms interested in offering their services at the Mallnow IP and the GCP VIP to submit their tenders. In that context, it provided them with a list of requirements to be met by the platform and by its operator in order for a tender to be taken into consideration. Three tenders complying with those requirements were taken into consideration by ACER, namely, first, that of the applicant, which operated the online gas capacity booking platform GSA (‘the GSA platform’), second, that of the FGSZ Natural Gaz Transmission Closed Company Ltd, which was an operator of the Regional Booking Platform, and, third, that of Prisma European Capacity Platform GmbH (‘Prisma’), which operated the Prisma online gas capacity booking platform.

By Decision No 11/2018 of 16 October 2018, ACER selected the GSA platform as the gas transmission capacity booking platform to be used, for a period no longer than three years, at the Mallnow IP and the GCP VIP interconnection points, on the ground that that platform and its operator best met its tender award criteria, in the light of the requirements it had set.

On 14 December 2018, Prisma filed an appeal under Article 19 of Regulation No 713/2009 against Decision No 11/2018.

By Decision A-002-2018 of 14 February 2019, the Board of Appeal annulled Decision No 11/2018 on the ground that ACER had failed to prove that it had communicated to the platform operators, prior to the submission of their tenders, the evaluation criteria which were ultimately to be used to select the successful tender, and referred the case back to ACER.

ACER organised a new selection procedure, in which the minimum requirements and criteria to be met by the tenders submitted in order to be taken into account and the award criteria, which included the technical quality of a case study prepared by ACER, had been communicated in advance to the platform operators. At the end of that procedure, ACER, by Decision No 10/2019 of 6 August 2019 (‘Decision No 10/2019’), selected the Regional Booking Platform as the gas transmission capacity booking platform at the Mallnow IP and the GCP VIP, to be used for a period of three years or until the TSOs concerned reached an agreement on the use of a permanent booking platform, if such an agreement were to be made earlier.

On 7 October 2019, the applicant, pursuant to 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 (recast) (OJ 2019 L 158, p. 22), brought an appeal before the Board of Appeal against Decision No 10/2019.

By the contested decision, the Board of Appeal dismissed that appeal as unfounded.

Forms of order sought

The applicant, supported by the Republic of Poland, claims that the Court should:

–require ACER to add to the case file in the present case the files relating to the proceedings before ACER and before the Board of Appeal which were terminated by Decision No 10/2019 and by the contested decision respectively;

–annul the contested decision;

–order ACER to pay the costs.

ACER contends, in essence, that the Court should:

–reject the applicant’s head of claim seeking that ACER be ordered to add to the case file of the present case the confidential files of the proceedings before ACER, or, in the alternative, uphold that head of claim on the condition that access to the confidential files in question be limited to the Court and not given to the applicant;

–dismiss the second head of claim as being, in part, inadmissible and, as to the remainder, unfounded or, in the alternative, dismiss that head of claim as unfounded in its entirety;

–order the applicant to pay the costs.

Substance

Under Article 132 of the Rules of Procedure of the General Court, where the Court of Justice or the General Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the action, and the General Court finds that the facts have been established, it may, after the written part of the procedure has been closed, on a proposal from the Judge-Rapporteur and after hearing the parties, decide by reasoned order, in which reference is made to the relevant case-law, to declare the action manifestly well founded.

In their response to a measure of organisation of procedure adopted by the Court on 12 May 2023 on the basis of Article 89 of the Rules of Procedure, the applicant and the intervener submit, in the light of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), that the conditions for the application of Article 132 of the Rules of Procedure are satisfied in the present case. In its response to that same measure, ACER, while reiterating a position which it claims to have already expressed in its defence and rejoinder, according to which the action is inadmissible, acknowledges that the ambiguous wording of paragraphs 51 to 56 of the contested decision could lead the Court to apply Article 132 of the Rules of Procedure in the light of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182).

As a preliminary point, it should be noted that ACER is not justified in claiming that it put forward grounds of inadmissibility in its defence and rejoinder. It is apparent from Section IV, entitled ‘Admissibility’, of the defence, as supplemented by Section I, entitled ‘Admissibility’, of the rejoinder, that the grounds of inadmissibility relied on by ACER were directed solely against the second plea of the action and specific to it.

In the present case, the Court considers that the conditions for applying Article 132 of the Rules of Procedure have been met and has decided to give a decision without taking further steps in the proceedings.

In support of its action, the applicant puts forward five pleas in law. The first plea alleges misinterpretation by the Board of Appeal of Article 28(4) of Regulation 2019/942, in that it interpreted that provision as meaning that it did not have to carry out a full review of the legality of Decision No 10/2019. The second plea alleges that the Board of Appeal erred in law, in so far as it confirmed the legality of ACER’s decisions, first, to organise a new selection procedure and, second, to modify, in the context of that procedure, the technical quality requirements to be met by the tenders. The third plea alleges that the Board of Appeal erred in law by failing to find an infringement of Article 15 TFEU and of the principle of equal treatment between platform operators on the ground that tasks that were included in the case study arbitrarily favoured some of those operators to the detriment of others. The fourth plea in law alleges that the Board of Appeal erred in failing to find a breach of the principle of transparency enshrined in Article 15 TFEU and Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union linked to a failure to provide a sufficient explanation, before the tenders were submitted, of its expectations and requirements in relation to the case study. The fifth plea alleges errors committed by the Board of Appeal, in that it did not find an infringement of Article 296 TFEU and of Article 41(2)(c) of the Charter of Fundamental Rights in connection with a failure to state adequate reasons in Decision No 10/2019 as regards the successful tender.

In the context of the first plea, alleging, in essence, infringement by the Board of Appeal of its obligation to carry out a full review of the legality of Decision No 10/2019, the applicant, supported by the Republic of Poland, complains that the Board of Appeal, without any legal basis, limited the scope and intensity of its review solely to the review of manifest errors of assessment committed by ACER. The applicant, supported by the Republic of Poland, submits that the judgments of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), and of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), confirm that the first plea is well founded.

ACER disputes the applicant’s arguments. In that regard, it submits, in essence, that the first plea is based on a misreading of the contested decision and, consequently, that it is not necessary, in the present case, for the Court to rule on the scope and intensity of the review of the legality of its decisions by the Board of Appeal. In particular, it maintains that the Board of Appeal considered that the issues addressed in Decision No 10/2019 and which were the subject of the appeal brought before it by the applicant were mainly matters of law or of fact that were not complex. Therefore, in its examination of those pleas, the Board of Appeal carried out a full review of Decision No 10/2019. It follows that the judgments of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), and of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), have no bearing on the merits of the contested decision. Furthermore, the present case differs from Cases T‑735/18 and C‑46/21 P, in that the applicable provisions are those of Regulation 2019/942 and not those of Regulation No 713/2009.

The main question raised in the context of the first plea is whether the review carried out by the Board of Appeal, in the contested decision, of Decision No 10/2019 was consistent with the provisions of Regulation 2019/942 relating to the definition of the powers of that board, in particular Article 28 of that regulation.

In paragraph 72 of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), the Court of Justice held, in the light of the considerations set out in paragraphs 54 to 71 of that judgment, that the General Court was right to find, in paragraphs 50 to 71 of the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), that the provisions of Regulation No 713/2009 defining the powers of the Board of Appeal, namely Articles 18 and 19 of that regulation relating to composition, to the organisation and to the powers of that board, had to be interpreted as meaning that the review carried out by that board of the technical or complex assessments contained in a decision of ACER which was challenged before it could not be restricted to the limited review of a manifest error of assessment.

First, the Court of Justice noted that such a limitation was not expressly apparent from the wording of Articles 18 and 19 of Regulation No 713/2009 (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraph 55).

Secondly, it observed that the objectives pursued by the establishment of internal review bodies of EU agencies were to provide an appropriate means of protecting the rights of the parties concerned in a context in which, according to settled case-law, those agencies had a broad discretion, in particular in relation to highly complex scientific and technical facts, to determine the nature and scope of the measures which they adopted and review by the courts of the European Union had to be limited to verifying whether there had been a manifest error of appraisal or a misuse of powers, or whether those agencies had manifestly exceeded the limits of their discretion (see judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 56 and 57 and the case-law cited).

30Thirdly, the Court of Justice stated that all the internal review bodies of the EU agencies had common characteristics, such as independence, the performance of quasi-judicial functions through adversarial procedures and technically qualified staff (lawyers and technical experts), the wide scope for the right of appeal to those bodies by the addressees of the decisions adopted by the agencies, in addition to the natural and legal persons to whom those decisions are of direct and individual concern, their ability to review decisions having effects on third parties and their role as a quick, accessible, specialised and inexpensive mechanism for protecting the rights of the addressees and persons concerned by those decisions (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 58 and 59).

31Fourthly, the Court of Justice noted that the appeal before the Board of Appeal was not subject to any conditions of admissibility other than those laid down in Article 19 of Regulation No 713/2009, paragraph 2 of which draws no distinction between the type of pleas in law which may be relied on in support of the appeal (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 60 and 61).

32Fifthly, the Court of Justice held that, under Article 18(1) of Regulation No 713/2009, the members of the Board of Appeal had to have prior experience in the energy sector, with the result that the composition of that board met, in terms of expertise reflecting the specific nature of the field concerned, the requirements necessary to enable it to carry out a full review of decisions adopted by ACER (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 62 to 65).

33Sixthly, the Court of Justice held that the case-law relating to the limited nature of the review carried out by the EU judicature of complex technical, scientific and economic assessments could not be applied to the internal review bodies of the EU agencies, since that would lead to a system which would fail to offer the guarantees of effective judicial protection, since the EU judicature would carry out a limited review of a decision which was itself the result of a limited review (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 66 and 67).

34Seventhly, the Court of Justice rejected the arguments that ACER sought to derive, on the one hand, from the differences between the Board of Appeal and the Board of Appeal of the European Chemicals Agency (ECHA) in terms of objectives, procedure, time limits and staff rules and, on the other hand, from the brevity of the time limit for the Board of Appeal to give a decision under Article 19(2) of Regulation No 713/2009 (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 68 to 71).

35Although Articles 18 and 19 of Regulation No 713/2009 were repealed by Regulation 2019/942, in accordance with the first paragraph of Article 46 of that regulation, the grounds that led the Court of Justice, in the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), to interpret those provisions as meaning that the Board of Appeal could not confine itself to carrying out a limited review of assessments of a technical or complex nature contained in one of ACER’s decisions that was challenged before it are fully applicable to the provisions which, in Regulation 2019/942, determine the composition, organisation and powers of that board, namely Articles 25 to 28 of that regulation.

36Those provisions of Regulation No 713/2009 and of Regulation 2019/942 are, in essence, identical, subject to two differences. First, although, under Article 19(2) of Regulation No 713/2009, the Board of Appeal was obliged to decide on an appeal before it within two months of the lodging of the appeal, it may, under Article 28(2) of Regulation 2019/942, do so within a period of four months. Secondly, although, under Article 19(5) of Regulation No 713/2009, the Board of Appeal was entitled to exercise any power which lies within the competence of ACER, it can, under Article 28(5) of Regulation 2019/942, only confirm the decision of ACER or remit the case to the competent body of ACER, which is then bound by its decision. It follows that, where the Board of Appeal, after exercising its review of legality over a decision adopted by ACER, is not in a position to confirm that decision, it no longer has the power to alter it, but must remit the case to ACER for it to amend its decision itself, taking into account all the points of law and fact which have been decided by the Board of Appeal in the exercise of its review of legality.

37However, there is nothing to suggest from the removal, in Regulation 2019/942, of the power of the Board of Appeal to alter decisions in Regulation No 713/2009 that the EU legislature intended to alter the scope or intensity of the review of legality carried out by that board, as a review body, in respect of decisions of ACER. Nor does it follow from the wording of Articles 25 to 28 of Regulation 2019/942 that it did not follow from the wording of Articles 18 and 19 of Regulation No 713/2009 that that review was necessarily limited, as regards assessments of a technical or complex nature in ACER’s decisions, to a review of a manifest error of assessment. The choice of the EU legislature to extend from two to four months the time limit set for the Board of Appeal to decide on the appeal also shows its concern to enable that board, as a review body, to carry out a full review of ACER decisions, while ensuring a rapid internal appeal procedure (see, to that effect, judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraph 71).

38Thus, an application, by analogy, of paragraphs 54 to 72 of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), in the present case entails a finding that, in the context of the appeal brought before it by the applicant on 7 October 2019, the Board of Appeal should have carried out a full review of the legality of Decision No 10/2019, including the technical or complex assessments contained in that decision, even if the provisions under which it had to carry out that review were those of Regulation 2019/942 and no longer those of Regulation No 713/2009.

39It should be noted that, in paragraph 49 of the contested decision, the Board of Appeal observed, prior to the examination of the merits of the seven pleas relied on by the applicant, that ‘when acting in accordance with Article 37(3) of Regulation (EU) 2017/459, the Agency [was] called on to exercise regulatory functions, which, in some cases, [entailed] analysis of significantly complex and technical matters’ and that ‘this [tended] to be the case, namely, as regards the choice of award criteria, weightings, sub-criteria and evaluation methodology, as well [as] in the assessment of how these criteria are met, in light of the documents and information submitted to it’.

40In paragraphs 51 to 56 of the contested decision, under the heading ‘The Board of Appeal’s limited review of ACER’s complex, technical assessment’, the Board of Appeal went on to state, explicitly and generally, that, in accordance with the case-law relating to the limited nature of the review carried out by the EU Courts of complex technical, scientific and economic assessments and its consistent decision-making practice, its review, on appeal, of ACER’s decisions was only limited when ACER’s assessments were of a complex economic or technical nature and thus it was obliged merely to determine whether ACER had committed a manifest error of assessment in the exercise of its competence under Article 37(3) of Regulation 2017/459 as regards the selection of gas transmission capacity booking platforms. According to the applicant, the time allowed for it to take a decision, the means available to it to do so and its composition and the principle of procedural economy justified such a limitation of its review of ACER’s decisions, apart from in the case of non-complex matters or matters of pure law.

41In the light of the conclusion drawn in paragraph 37 above, it is clear that, by declaring, in the contested decision, that it was obliged, under Article 28(4) of Regulation 2019/942, merely to carry out a limited review of the technical or complex assessments contained in Decision No 10/2019, the Board of Appeal misinterpreted that provision.

42Furthermore, it is to no avail that ACER contends that that error of law had no effect on the merits of the contested decision, in so far as the issues examined in Decision No 10/2019 and which formed the subject matter of the action brought before it by the applicant were mainly matters of law or of fact which were not complex.

43As the Board of Appeal itself acknowledged, in paragraph 49 of the contested decision, ACER’s exercise of its competence under Article 37(3) of Regulation 2017/459, in particular as regards the choice of the award criteria, weightings, sub-criteria and evaluation methodology and the assessment of how those criteria are met, in the light of the documents and information communicated to it by the platform operators which had submitted a tender, entailed analysis of a technical or complex nature.

44It is an established fact that, by the sixth and seventh pleas in its action brought before the Board of Appeal, the applicant called into question ACER’s assessment, in Decision No 10/2019, of compliance with the award criteria by the three tenders taken into account. The mere fact that, in the heading of those pleas, the applicant expressly referred to ‘manifest errors of assessment’ committed by the Board of Appeal could not prevent that board from reviewing the existence of those errors with the full scope and intensity required by the applicable legislation.

45In those circumstances, it cannot be presumed, as ACER suggests, that the error committed by the Board of Appeal in the contested decision, in interpreting Article 28(4) of Regulation 2019/942 as being limited to carrying out a limited review of the technical or complex assessments contained in Decision No 10/2019, had no bearing on the merits of that decision.

46In the light of the foregoing considerations, it is necessary to uphold the first plea in law as manifestly well founded and, therefore, without it being necessary to examine the other pleas in law, or the first head of claim, to uphold the second head of claim and to annul the contested decision in its entirety.

Costs

47Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

48Since ACER has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.

On those grounds,

hereby orders:

1.Decision No A-001-2018 of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) of 7 February 2020 is annulled.

2.ACER is ordered to pay the costs.

Luxembourg, 6 September 2023.

Registrar

President

—

Language of the case: English.