Judgment of the General Court (Seventh Chamber) of 29 June 2017 —
E-Control v ACER

(Case T‑63/16)

(Energy — Conditions for access to the network for cross-border exchanges in electricity — National regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity — Compatibility with Regulation (EC) No 714/2009 — Opinion of ACER — Definition of a decision open to appeal before ACER — Article 19 of Regulation (EC) No 713/2009 — Decision of the Board of Appeal of ACER dismissing the appeal as inadmissible — Error of law — Failure to state reasons)

EU agencies — Agency for the Cooperation of Energy Regulators (ACER) — Appeals procedure — Action before the Board of Appeal of ACER — Admissibility criteria — Decision open to challenge — Concept — ACER opinion finding decisions of the national regulatory authorities approving methods of allocation of cross-border transmission capacity non-compliant — Not included — No infringement of the principle of effective legal protection and the right to be heard

(Charter of Fundamental Rights of the European Union, Arts 41 and 47; European Parliament and Council Regulation No 713/2009, Arts 7(4) and (5), 16(1), and 19; European Parliament and Council Directive 2009/72, Art. 39(3) and (6))

(see paras 45-49, 53, 54, 59, 62, 63)

EU agencies — Agency for the Cooperation of Energy Regulators (ACER) — Appeals procedure — Action before the Board of Appeal of ACER — Obligation to state reasons for decisions — Scope

(Art. 296, second para., TFEU; European Parliament and Council Regulation No 713/2009, Art. 19)

(see paras 68-70)

Re:

ACTION under Article 263 TFEU for the annulment of Decision No A-001-2015 of the Board of Appeal of ACER of 16 December 2015, dismissing an appeal against Opinion No 09/2015 of ACER of 23 September 2015 on the compliance of the decisions of national regulatory authorities approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region 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 (OJ 2009 L 211, p. 15), including the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto.

Operative part

The Court:

1.	Dismisses the action;

2.	Orders Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) to bear its own costs and to pay those incurred by the Agency for the Cooperation of Energy Regulators (ACER);

3.	Orders the Czech Republic, the Republic of Poland, the Republic of Austria and Polskie Sieci Elektroenergetyczne S.A. each to bear their own costs.