The European Union Agency for the Cooperation of Energy Regulators (ACER) is empowered to take individual decisions on cross-border issues, the EU General Court ruled on Wednesday 15 February (cases T-606&607/20).
The German, Austrian, Spanish, French, Dutch, Polish and Swedish energy transmission regulatory authorities are challenging two decisions taken by ACER under the Regulation (2017/2195) on electricity balancing.
In its judgment, the General Court ruled only on the decisions of ACER’s Board of Appeal, which these national authorities had requested - without success - to annul ACER’s decisions.
The European Court is of the opinion that ACER is competent to decide on individual issues or regulatory problems affecting cross-border trade or the security of the cross-border network, such as the methodologies of the European platforms aFRR and mFRR in charge of electricity balancing, when national authorities jointly request it to do so.
In the Court’s view, it does not follow from Regulations 2017/2195 and 2019/942 establishing ACER that the competence of the European agency is limited to points of disagreement between the authorities concerned. In fact, the EU legislator’s intention is to make decision-making on cross-border issues more efficient and faster by strengthening ACER’s individual decision-making powers in a way that is compatible with maintaining the central role of national authorities, in order to contribute to the efficient functioning of the internal markets in energy.
The Court concludes that ACER is entitled to modify initial proposals on the methodologies of the European aFRR and mFRR platforms that the transmission system operators had formulated and that they had transmitted to their respective national regulatory authorities. As such, it added, ACER was not bound by any points of agreement between the competent national authorities.
Second, the Court finds that the ACER Board of Appeal did not err in law in finding that the inclusion of the capacity management function among the “functions required” for the operation of the aFRR and mFRR platforms had not been imposed on the network operators by ACER, but resulted directly from the application of Regulation 2017/2195. Under EU law, such a function appears to be both technically and legally necessary for the efficient and secure establishment and operation of such platforms, it adds.
See the Court’s judgment: https://aeur.eu/f/5cg (Original version in French by Mathieu Bion)