ORDER OF THE VICE-PRESIDENT OF THE COURT

16 July 2021 (*)

(Application for interim relief – Appeal – Articles 278 and 279 TFEU – Application for suspension of operation of a measure – Application for interim measures – Regulation (EC) No 714/2009 – Conditions for access to the network for cross-border exchanges in electricity – Article 17 – Decision of the European Union Agency for the Cooperation of Energy Regulators (ACER) refusing a request for exemption relating to new electrical interconnectors – Appeal brought before the Board of Appeal of ACER – Annulment of the decision adjudicating on that appeal)

In Case C‑46/21 P-R,

APPLICATION for suspension of the operation of a measure, and for other interim measures under Articles 278 and 279 TFEU, made on 26 April 2021,

European Union Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and E. Tremmel, acting as Agents, and by B. Creve, advocaat,

applicant,

the other party to the proceedings being:

Aquind Ltd, established in Wallsend (United Kingdom), represented by S. Goldberg, E. White, C. Davis and J. Bille, Solicitors,

applicant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By its application for interim relief, the European Union Agency for the Cooperation of Energy Regulators (ACER) requests the Court of Justice to order suspension of the operation of the judgment of the General Court of the European Union of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542; ‘the judgment under appeal’), by which the General Court annulled Decision A‑001‑2018 of the Board of Appeal of ACER of 17 October 2018 (‘the decision at issue’) which had upheld Decision No 05/2018 of ACER of 19 June 2018 refusing a request for exemption relating to an electrical interconnector connecting the electricity transmission systems in the United Kingdom and France.

2        That application was made in parallel with an appeal brought by ACER on 27 January 2021 under Article 56 of the Statute of the Court of Justice of the European Union seeking to have the judgment under appeal set aside.

 Legal context

3        Article 17 of 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), entitled ‘New interconnectors’, provides:

‘1.      New direct current interconnectors may, upon request, be exempted, for a limited period of time, from the provisions of Article 16(6) of this Regulation and Articles 9, 32 and Article 37(6) and (10) of Directive 2009/72/EC [of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55)] under the following conditions:

(a)      the investment must enhance competition in electricity supply;

(b)      the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted;

(c)      the interconnector must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that interconnector will be built;

(d)      charges are levied on users of that interconnector;

(e)      since the partial market opening referred to in Article 19 of Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity [(OJ 1997 L 27, p. 20)], no part of the capital or operating costs of the interconnector has been recovered from any component of charges made for the use of transmission or distribution systems linked by the interconnector; and

(f)      the exemption must not be to the detriment of competition or the effective functioning of the internal market in electricity, or the efficient functioning of the regulated system to which the interconnector is linked.

…

4.      The decision on the exemption under paragraphs 1, 2 and 3 shall be taken on a case-by-case basis by the regulatory authorities of the Member States concerned. An exemption may cover all or part of the capacity of the new interconnector, or of the existing interconnector with significantly increased capacity.

…

5.      The decision referred to in paragraph 4 shall be taken by the Agency:

(a)      where all the regulatory authorities concerned have not been able to reach an agreement within six months from the date the exemption was requested before the last of those regulatory authorities; or

(b)      upon a joint request from the regulatory authorities concerned.

Before taking such a decision, the Agency shall consult the regulatory authorities concerned and the applicants.

…’

 Background to the dispute, the procedure before the General Court and the judgment under appeal

4        The facts giving rise to the dispute, as set out in paragraphs 1 to 13 of the judgment under appeal, are as follows:

5        Aquind Ltd is the project promoter for a proposed electricity interconnector connecting the electricity transmission systems in the United Kingdom and France.

6        On 17 May 2017, Aquind submitted a request under Article 17 of Regulation No 714/2009 for an exemption for that interconnector project. That request was submitted to the regulatory authorities in France and the United Kingdom, which, having failed to reach agreement on that request, forwarded it, on 29 November and 19 December 2017 respectively, to ACER, pursuant to Article 17(5) of Regulation No 714/2009, in order to have ACER take the decision itself.

7        By Decision No 05/2018 of 19 June 2018, ACER refused Aquind’s request on the ground that one of the conditions necessary for obtaining such an exemption was not satisfied, in the present case the condition laid down in Article 17(1)(b) of that regulation, according to which the level of risk attached to the investment must be such that the investment would not take place unless an exemption is granted.

8        On 17 August 2018, Aquind brought an appeal against that decision before the Board of Appeal of ACER (‘the Board of Appeal’), which, by the decision at issue, upheld that decision.

9        By application lodged at the Registry of the General Court on 14 December 2018, Aquind brought an action seeking annulment of the decision at issue.

10      By the judgment under appeal, the General Court annulled the decision at issue.

11      On 5 February 2021, the Board of Appeal decided to resume the appeal proceedings and, by Decision A‑001‑2018_R of 4 June 2021, dismissed Aquind’s appeal as inadmissible.

 Forms of order sought by the parties

12      ACER claims that the Court should:

–        suspend the operation of the judgment under appeal until a ruling has been given in the main proceedings;

–        suspend immediately the operation of the judgment under appeal, before the submission of observations by the other party, until an order has been made closing the proceedings for interim measures or until the conclusion of the main proceedings in Case C‑46/21 P, whichever is the earlier;

–        adopt any other interim measure that the Court considers appropriate in order to preserve the full effectiveness of the decision closing the main proceedings; and

–        order Aquind to pay the costs of the proceedings.

13      Aquind contends that the Court should dismiss the application for interim measures and order ACER to pay the costs of the present proceedings for interim measures.

 The application for interim measures

14      In accordance with Article 160(3) of the Rules of Procedure of the Court of Justice, applications for suspension of the operation of a measure adopted by an EU institution must state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for.

15      According to settled case-law, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently applications for interim measures must be dismissed if any one of those conditions is not satisfied. The judge hearing an application for interim relief is also required to undertake, when necessary, a weighing-up of the competing interests (order of the Vice-President of the Court of 13 April 2021, Lithuania v Parliament and Council, C‑541/20 R, not published, EU:C:2021:264, paragraph 12 and the case-law cited).

16      In the context of the examination of those conditions, the judge hearing the application for interim measures has a wide discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the Vice-President of the Court of 13 April 2021, Lithuania v Parliament and Council, C‑541/20 R, not published, EU:C:2021:264, paragraph 13 and the case-law cited).

17      As regards the condition relating to urgency, ACER submits, in essence, that the operation of the judgment under appeal is likely to cause serious and irreparable harm to the general interests of the European Union, in the present case the proper functioning of its legal order and internal energy market, on the ground that it is very likely that, after the resumption of the appeal proceedings before the Board of Appeal, the latter will adopt, before delivery of the final judgment of the Court of Justice in the appeal proceedings in Case C‑46/21 P, a new decision implementing the judgment under appeal.

18      First, ACER takes the view that, in that event, that new decision will replace the decision at issue, which could lead the Court to find that that appeal has become devoid of purpose and to decide that there is no longer any need to adjudicate on the appeal, in accordance with Article 149 of the Rules of Procedure.

19      According to ACER, such an outcome would seriously harm the EU legal order and internal energy market due to the resulting absence of a full judicial review by the EU Courts of questions of legal principle raised by that appeal.

20      Furthermore, ACER considers that, even if the Court were to rule on ACER’s appeal in Case C‑46/21 P, the effectiveness of the Court’s judgment, if the Court were to set aside the judgment under appeal, would be seriously and irreparably compromised by the new decision of the Board of Appeal, since the latter would have to follow the reasoning in the judgment under appeal and that new decision would become final because ACER would be unable to bring proceedings against that new decision.

21      Second, ACER submits that the continuation of two parallel sets of appeal proceedings, resulting from the resumption, after that appeal had been brought before the Court, of the appeal proceedings before the Board of Appeal, would cause serious and irreparable damage to the integrity of the review, by the EU Courts, of the legality of acts of EU agencies such as ACER.

22      By letter of 7 June 2021, ACER informed the Court that, following the resumption of the appeal proceedings before the Board of Appeal, the latter, by Decision A‑001‑2018_R of 4 June 2021, had dismissed Aquind’s appeal as inadmissible.

23      According to ACER, following the adoption of that decision, the operation of the judgment under appeal is no longer likely to cause serious and irreparable damage to the general interests of the European Union, in particular the full effectiveness of the final judgment of the Court of Justice in the appeal proceedings in Case C‑46/21 P, with the result that it is no longer necessary to rule on the application for interim measures.

24      By letter of 14 June 2021, ACER stated that it did not intend to discontinue the proceedings, but that it left it up to the Court to assess whether, in the light of that decision, it is necessary, in accordance with Article 149 of the Rules of Procedure, to find that there is no longer any need to rule on the application for interim measures.

25      When requested by the Court to express its views in that regard, Aquind, by letter of 18 June 2021, stated that, although it could accept that the application for interim measures has become devoid of purpose, the disappearance of the purpose of the application was the result of ACER’s conduct.

26      Furthermore, Aquind submits that, as it contended in its written observations on the application for interim measures, since that application is, for other reasons, wholly unfounded, it would surely have been dismissed by the Court.

27      According to settled case-law, the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts. It is in order to attain that objective that the urgency must be assessed in relation to the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering damage of that kind. While it is true that, in order to establish the existence of that damage, it is not necessary to require that the occurrence and imminence of that damage be established with absolute certainty and that it is sufficient for that damage to be foreseeable with a sufficient degree of probability, the fact remains that the party seeking an interim measure is still required to prove the facts that form the basis of its claim that such damage is likely (order of the Vice-President of the Court of 13 April 2021, Lithuania v Parliament and Council, C‑541/20 R, not published, EU:C:2021:264, paragraph 18 and the case-law cited).

28      In the present case, it is sufficient to note that the serious and irreparable damage alleged by ACER is purely hypothetical and that, therefore, it cannot, in accordance with the case-law referred to in the preceding paragraph of the present order, justify the granting of the suspension of operation sought.

29      That damage is based on, inter alia, the premiss that the Board of Appeal would adopt a new decision following the reasoning in the judgment under appeal, against which ACER would be unable to bring proceedings, and on the dual assumption that the Court would decide that there would therefore no longer be any need to adjudicate on the appeal in Case C‑46/21 P, or that the Court would rule on that appeal by setting aside the judgment under appeal.

30      In any event, even if the operation of the judgment under appeal were likely to cause serious and irreparable damage to the general interests of the European Union, that is no longer the case since the Board of Appeal, on 4 June 2021, adopted Decision A‑001‑2018_R.

31      Since, by that decision, the Board of Appeal dismissed Aquind’s appeal as inadmissible and since, as noted in paragraph 29 of the present order, the damage alleged by ACER is based on, inter alia, the premiss that the Board of Appeal would adopt a new decision following the reasoning in the judgment under appeal, against which ACER would be unable to bring proceedings, the application for interim measures has become devoid of purpose.

32      In those circumstances, it must be held that the condition relating to urgency is not satisfied.

33      Since the conditions referred to in paragraphs 15 and 16 of the present order are cumulative, there is no need to examine the condition relating to a prima facie case or to weigh up the competing interests.

34      Consequently, the application for interim measures must be dismissed.

35      In accordance with Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

On those grounds, the Vice-President of the Court hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 16 July 2021.

*      Language of the case: English.