JUDGMENT OF THE GENERAL COURT (Third Chamber)
11 June 2025 (*)
( Non-contractual liability - Energy - Proposed electricity interconnector connecting the electricity transmission systems in the United Kingdom and France - Sufficiently serious breach of a rule of law intended to confer rights on individuals )
In Case T‑342/23,
Aquind Ltd, established in London (United Kingdom), represented by S. Goldberg, Solicitor, E. White and J. Bille, lawyers,
applicant,
v
European Union Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and E. Tremmel, acting as Agents, and by B. Creve and T. Kölsch, lawyers,
defendant,
THE GENERAL COURT (Third Chamber),
composed of P. Škvařilová-Pelzl, President, I. Nõmm (Rapporteur) and R. Meyer, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 15 January 2025,
gives the following
Judgment
1 By its action under Article 268 TFEU, the applicant, Aquind Ltd, seeks compensation for the damage which it claims to have suffered as a result of a number of unlawful acts and omissions on the part of the European Union Agency for the Cooperation of Energy Regulators (ACER).
Background to the dispute
2 The applicant is a private limited company incorporated in the United Kingdom. It is the project promoter for a proposed electricity interconnector connecting the British and French electricity transmission systems ('the Aquind interconnector').
3 On 17 May 2017, the applicant submitted a request for an exemption for the Aquind interconnector project under 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). In the absence of agreement, the French and United Kingdom regulatory authorities, namely the Commission de régulation de l'énergie (CRE, Energy Regulatory Commission) and the Office of Gas and Electricity Markets Authority (OFGEM), forwarded the request in question to ACER.
4 On 23 November 2017, the Aquind interconnector project was placed on the list of 'projects of common interest' ('PCIs') of the European Union by Commission Delegated Regulation (EU) 2018/540 of 23 November 2017 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (OJ 2018 L 90, p. 38).
5 On 19 June 2018, ACER adopted Decision No 05/2018 rejecting the request for an exemption for the Aquind interconnector. ACER took the view that the condition that the level of risk attached to the investment was such that the investment would not take place without an exemption had not been fulfilled.
6 On 17 August 2018, the applicant brought an appeal against ACER's decision of 19 June 2018 before the Board of Appeal of ACER ('the Board of Appeal').
7 By decision A-001-2018, of 17 October 2018, the Board of Appeal dismissed the appeal and upheld ACER's decision of 19 June 2018 ('the Board of Appeal's decision of 17 October 2018').
8 By application lodged at the Court Registry on 14 December 2018, the applicant requested that the Court annul the Board of Appeal's decision of 17 October 2018 (Case T‑735/18).
9 On 23 August 2019, on the basis of the PCI status of the Aquind interconnector project, the applicant submitted an investment request to OFGEM together with a request for cross-border cost allocation, in accordance with Articles 12 and 13 of Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39). On 4 September 2019, the applicant submitted the same request to the CRE.
10 On 31 October 2019, the European Commission adopted Delegated Regulation (EU) 2020/389 amending Regulation No 347/2013 as regards the Union list of projects of common interest (OJ 2020 L 74, p. 1). That regulation established a new list of PCIs which did not include the Aquind interconnector.
11 By application lodged at the Court Registry on 25 December 2019, the applicant requested, for the first time, that the Court annul Delegated Regulation 2020/389 (Case T‑885/19).
12 On 15 April 2020, the CRE and OFGEM informed the applicant that the consideration of its request for cross-border cost allocation had been discontinued due to the entry into force of Delegated Regulation 2020/389.
13 On 11 May 2020, the applicant enquired whether ACER would be willing to reconsider its decision of 19 June 2018 in view of the fact that the Aquind interconnector project had lost its PCI status and that it could therefore no longer benefit from the regulated scheme provided for in Article 12 of Regulation No 347/2013.
14 By application lodged at the Court Registry on 21 May 2020, the applicant requested, for the second time, that the Court annul Delegated Regulation 2020/389 (Case T‑295/20).
15 On 29 May 2020, the ACER departments stated that they could not see how they could review the decision of 19 June 2018 and replace it with a decision approving the exemption.
16 On 29 May and 2 June 2020, the applicant submitted a new request for an exemption to the CRE and OFGEM respectively.
17 By judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), the Court annulled the Board of Appeal's decision of 17 October 2018. It held that the Board of Appeal had erred in law in finding that, as regards technical or complex assessments, it could only carry out a limited review and thus confine itself to ascertaining whether ACER had committed a manifest error of assessment. The Court also considered it appropriate, for reasons related to the good administration of justice, to continue its analysis. It held that, by requiring the applicant to have made an unsuccessful request for cross-border cost allocation under Article 12 of Regulation No 347/2013 before an exemption could be contemplated, the Board of Appeal had wrongly created an additional condition which was not provided for in Article 17(1) of Regulation No 714/2009.
18 On 27 January 2021, ACER lodged an appeal against the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542).
19 On 28 January 2021, OFGEM published a decision taken jointly with the CRE stating that it was discontinuing the public consultation on the applicant's exemption request due to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union. On 2 February 2021, the applicant was notified of that decision.
20 On 5 February 2021, following the annulment of the Board of Appeal's decision of 17 October 2018, the applicant resumed the appeal proceedings against ACER's decision of 19 June 2018.
21 By order of 5 March 2021, Aquind and Others v Commission (T‑885/19, EU:T:2021:118), the Court dismissed the first action against Delegated Regulation 2020/389. It held that the stage during which the European Parliament and the Council of the European Union could raise any objections to the contested regulation had not been completed at the time when the action for annulment was brought and inferred from this that, at that time, Delegated Regulation 2020/389 could not be regarded as definitive or as an act producing binding legal effects capable of affecting the applicant's interests.
22 On 26 April 2021, ACER made an application to the Court of Justice, under Articles 278 and 279 TFEU, for suspension of the application of the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542).
23 On 17 May 2021, the applicant lodged an appeal against the order of 5 March 2021, Aquind and Others v Commission (T‑885/19, EU:T:2021:118).
24 By a decision of 4 June 2021 concluding the reopened procedure following the annulment of the Board of Appeal's decision of 17 October 2018, the Board of Appeal declared that it was not competent to decide on the appeal against ACER's decision of 19 June 2018 and therefore dismissed that appeal as inadmissible. It held that, after the end of the transition period, EU law does not apply any more to future interconnectors between the UK and a Member State and concluded that the exemption regime provided for in 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), therefore no longer applied to the Aquind interconnector.
25 By order of 16 July 2021, ACER v Aquind (C‑46/21 P-R, not published, EU:C:2021:633), the Vice-President of the Court of Justice dismissed the application for suspension of operation on the ground that, in view of the adoption, by the Board of Appeal, of the decision of 4 June 2021, the application for interim measures had become devoid of purpose and that the condition relating to urgency was not therefore satisfied.
26 By judgment of 1 August 2022, Aquind and Others v Commission (C‑310/21 P, not published, EU:C:2022:615), the Court of Justice dismissed the appeal against the order of 5 March 2021, Aquind and Others v Commission (T‑885/19, EU:T:2021:118).
27 By judgment of 8 February 2023, Aquind and Others v Commission (T‑295/20, EU:T:2023:52), the General Court dismissed the second action against Delegated Regulation 2020/389. No appeal was brought against that judgment.
28 By judgment of 15 February 2023, Aquind and Others v ACER (T‑492/21, EU:T:2023:67), the General Court dismissed the action against the Board of Appeal's decision of 4 June 2021. No appeal was brought against that judgment.
29 By judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), the Court of Justice dismissed the appeal against the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542).
Forms of order sought
30 The applicant claims, in the final form of its pleadings, that the Court should:
– order ACER to compensate it for the damage caused by the unlawful conduct of ACER resulting in:
– wasted costs incurred in relation to the unlawfully rejected request for exemption submitted on 17 May 2017 and the procedure leading to the Board of Appeal's decision of 17 October 2018, including the irrecoverable costs of the procedures before the General Court and the Court of Justice, estimated at 1 258 614.29 British pounds (GBP) (EUR 1 453 220) and EUR 19 850;
– wasted costs incurred in relation to the reopened Board of Appeal proceeding, including the irrecoverable costs of the procedures before the General Court and the Court of Justice, estimated at GBP 220 711.83 (EUR 245 896);
– wasted costs incurred in relation to the request for cross-border cost allocation estimated at GBP 1 069 968.66 (EUR 1 236 027) and EUR 133 875;
– wasted costs incurred in relation to the exemption request submitted on 29 May and 2 June 2020 and the request for application of the 'cap and floor' regime submitted on 5 June 2020, estimated at GBP 861 525.62 (EUR 994 889) and EUR 149 175;
– costs of the ongoing regulatory engagement, including the engagement with the OFGEM Interconnector Policy Review process and the preparation for submitting a new request for exemption under the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2021 L 149, p. 10; 'the TCA'), in the amount of GBP 771 897.57 (EUR 891 378) and EUR 241 750.03;
– loss of profit resulting from the delay in obtaining an exemption to be estimated based on potential free cash flow to investors in the amount of GBP 130 431 000 (EUR 150 634 761) per year from transmission services, GBP 65 295 000 (EUR 75 390 912) per year from capacity markets and up to further GBP 30 447 000 (EUR 35 148 016) per year from ancillary services and fibre optic leasing;
– order the parties to seek agreement on the precise amount of damages, within three months, or to return to the Court with their respective estimates to allow the Court to establish the amount of compensation to be paid by ACER;
– alternatively, suspend examination of the part of the action relating to the claim for compensation for the amount of expenses incurred and for the loss of profit resulting from the delay in commencing and implementing the Aquind interconnector project until it can provide the evidence deemed necessary by the Court;
– order ACER to pay the costs.
31 ACER contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
32 The applicant claims that, as a result of a number of unlawful acts and omissions by ACER relating to the Aquind interconnector project, it has suffered damage for which it seeks compensation.
33 ACER contends that the conditions for implementing non-contractual liability have not been met.
34 It should be borne in mind that, under the second paragraph of Article 340 TFEU on non-contractual liability, the Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its agents in the performance of their duties.
35 In accordance with settled case-law, in order for the European Union to incur non-contractual liability, under the provision referred to in paragraph 34 above, for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution's conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct complained of and the damage pleaded (judgment of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraph 28; see also, to that effect, judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 106 and 164 to 166).
36 To begin with, the Court will examine the first of the conditions for incurring non-contractual liability, namely the alleged unlawfulness of the EU Agency's conduct.
37 The applicant relies on a number of irregularities committed by ACER, which must be examined.
38 As a preliminary point, it should be recalled that the condition for unlawful conduct is met where the contested conduct involves a rule of law intended to confer rights on individuals and where the breach alleged against the institution is sufficiently serious (see, to that effect, judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 42; of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 67; and of 24 January 2017, Nausicaa Anadyomène and Banque d'escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 69).
39 As regards the first requirement, namely the breach of a rule of law intended to confer rights on individuals, the case-law states that such a rule creates an advantage which could be defined as a vested right, is designed for the protection of the interests of individuals or entails the grant of rights to individuals, the content of those rights being sufficiently identifiable (judgment of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph 140; see, also, judgment of 9 February 2022, QI and Others v Commission and ECB, T‑868/16, EU:T:2022:58, paragraph 90 and the case-law cited).
40 As regards the second requirement, namely that the breach is sufficiently serious, the test considered to be decisive for finding that a breach is sufficiently serious is whether the institution manifestly and seriously disregarded the limits on its discretion (judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 43, and of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 67; see also, to that effect, judgment of 24 January 2017, Nausicaa Anadyomène and Banque d'escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 69). Where that institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (judgment of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 47). A determining factor in deciding whether there has been such an infringement is therefore the discretion available to the institution concerned (judgment of 12 July 2005, Commission v CEVA and Pfizer, C‑198/03 P, EU:C:2005:445, paragraphs 65 and 66).
41 However, there is no automatic link between lack of discretion of the institution concerned and classification as a sufficiently serious breach of EU law. Although the extent of the discretion of the institution concerned is a determining factor, it is not an exclusive criterion (judgments of 3 March 2010, Artegodan v Commission, T‑429/05, EU:T:2010:60, paragraphs 59 and 60, and of 16 December 2020, Bawtry Carbon International v Commission, T‑637/18, not published, EU:T:2020:626, paragraphs 84 and 85).
42 In that regard, it is a matter for the EU judicature to take account of the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error of law made was inexcusable or intentional (judgments of 3 March 2010, Artegodan v Commission, T‑429/05, EU:T:2010:60, paragraph 62, and of 8 December 2021, Dyson and Others v Commission, T‑127/19, not published, EU:T:2021:870, paragraph 38).
43 It follows that mere errors of assessment cannot of themselves be sufficient to give rise to a manifest and grave infringement (see, to that effect, judgment of 9 December 2008, MyTravel v Commission, T‑212/03, EU:T:2008:315, paragraph 85). Only the finding that an irregularity would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence enables the liability of the European Union to be established (judgment of 3 March 2010, Artegodan v Commission, T‑429/05, EU:T:2010:60, paragraph 62).
44 In the light of the case-law cited in paragraphs 38 to 43 above, the alleged acts and omissions on the part of ACER relating to the Aquind interconnector project relied on by the applicant and capable of giving rise to that agency's non-contractual liability must be examined in turn.
The alleged fault based on the alleged unlawfulness of ACER's decision of 19 June 2018
45 The applicant puts forward a number of grounds for the unlawfulness of ACER's decision of 19 June 2018 rejecting the exemption request provided for in Article 17(1) of Regulation No 714/2009.
46 First, the applicant relies on the unlawful conduct established in 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), namely, (i) the finding, allegedly having the authority of res judicata, that Article 17(1) of Regulation No 714/2009 had been misinterpreted because of the imposition of an additional condition not laid down in that provision and (ii) the conclusion, confirmed by the Court of Justice, that an insufficient review had been carried out by the Board of Appeal. Second, the applicant complains that ACER infringed the principles of legal certainty, protection of legitimate expectations and equal treatment. In that regard, it relies on previous practice and previous projects. Third, ACER wrongly refused to take into account the restrictions laid down in French law. Fourth, the applicant submits that the infringements found are sufficiently serious. Fifth, it emphasises that it accepts that it had the burden of proof in question but states that it furnished sufficient evidence justifying the grant of an exemption.
47 ACER contends that those arguments should be rejected.
48 It should be noted that ACER's decision of 19 June 2018 had been upheld by the Board of Appeal's decision of 17 October 2018. As stated in paragraph 17 above, the latter decision was annulled by the General Court (judgment of 18 November 2020, Aquind v ACER, T‑735/18, EU:T:2020:542) on the ground that the Board of Appeal had carried out only a limited review of complex technical assessments. The Court also considered it appropriate, for reasons related to the good administration of justice, to continue its analysis and held that, by requiring the applicant to have made an unsuccessful request for cross-border cost allocation under Article 12 of Regulation No 347/2013 before an exemption could be contemplated, the Board of Appeal had wrongly established an additional condition which was not laid down in Article 17(1) of Regulation No 714/2009.
49 By judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), the Court of Justice dismissed the appeal against the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542). It should be noted that the Court of Justice examined and based its decision solely on the error of law committed by the Board of Appeal regarding the scope of its review. The Court of Justice therefore did not in any way rule on the question of the interpretation of Article 17(1) of Regulation No 714/2009.
50 In that regard, in the first place, the applicant wrongly claims that the General Court's conclusion that the Board of Appeal erred in law by upholding ACER's erroneous interpretation of Article 17(1) of Regulation No 714/2009 has the force of res judicata.
51 In order to ensure both stability of the law and legal relations and the good administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question (judgments of 16 March 2006, Kapferer, C‑234/04, EU:C:2006:178, paragraph 20, and 14 July 2021, Veronese v EUIPO – Veronese Design Company (VERONESE), T‑749/20, not published, EU:T:2021:430, paragraph 28).
52 In that regard, res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question (judgment of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 87). Similarly, res judicata does not attach only to the operative part of the judgment in question, but also attaches to the ratio decidendi of that judgment, which provides the necessary underpinning for the operative part and is inseparable from it (judgment of 15 November 2012, Gothaer Allgemeine Versicherung and Others, C‑456/11, EU:C:2012:719, paragraph 40).
53 The scope of the force of res judicata of the judgment of the General Court of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), must therefore be determined in the light of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182) delivered by the Court of Justice following the appeal lodged by ACER against that judgment of the General Court (see, to that effect, judgment of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 88).
54 In the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182, paragraphs 77 to 79), first of all, the Court of Justice stated that the General Court had upheld the ninth plea in law alleging an error of law with regard to the intensity of the review which had to be undertaken by the Board of Appeal in relation to complex technical and economic assessments, and that it was only for the sake of completeness that it had examined the fourth plea alleging an error of law with regard to the interpretation of Article 17(1)(b) of Regulation No 714/2009. Second, it stated that the grounds which led the General Court to uphold the ninth plea in law had been unsuccessfully criticised by ACER in its first ground of appeal. The Court also stated that, where one of the grounds adopted by the General Court was sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned had, in any event, no bearing on that operative part and, accordingly, a plea relying on such defects was ineffective, and consequently it held that the second ground of appeal alleging an error of law with regard to the interpretation of Article 17(1)(b) of Regulation No 714/2009 concerning the relationship between the exemption regime and the regulated regime had to be rejected as ineffective.
55 Therefore, the Court of Justice has not resolved the question of the interpretation of Article 17(1)(b) of Regulation No 714/2009 brought before it by ACER in connection with its appeal against the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542). The operative part of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), is sustained only by the grounds of the abovementioned judgment relating to the error of law with regard to the intensity of the review which was carried out by the Board of Appeal in order to adopt the decision of 17 October 2018.
56 It follows from this that, contrary to what the applicant claims, the factual and legal findings concerning the infringement by ACER of Article 17(1)(b) of Regulation No 714/2009 have not acquired the force of res judicata, unlike those concerning the intensity of the review carried out by the Board of Appeal (see, to that effect, judgment of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraphs 88 to 93).
57 Therefore, the applicant cannot rely on the alleged force of res judicata in relation to ACER's unlawful conduct resulting from an infringement of Article 17(1)(b) of Regulation No 714/2009 which the EU judicature is alleged to have recognised.
58 In the second place, it must be examined whether, if it is not possible to rely on factual and legal findings which have acquired the force of res judicata, the applicant provided the evidence of ACER's unlawful conduct when the decision of 19 June 2018 was adopted and, where applicable, whether the conduct in question is a sufficiently serious infringement of a rule of law intended to confer rights on individuals, within the meaning of the case-law cited in paragraphs 38 to 43 above.
59 In support of its demonstration of the existence of fault on the part of ACER, the applicant raises three complaints, which must be examined in turn.
The alleged infringement of Article 17(1)(b) of Regulation No 714/2009 concerning the relationship between the exemption regime and the regulated regime
60 The applicant relies on the General Court's reasoning in the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), in order to claim that there was fault such as to incur ACER's liability.
61 ACER, for its part, relies on the Opinion of Advocate General Campos Sánchez-Bordona in ACER v Aquind (C‑46/21 P, EU:C:2022:695) in order to contend that no irregularity or, a fortiori, any fault on its part or that of the Board of Appeal had been committed.
62 In the first place, it is apparent from the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542, paragraphs 100 and 101), that the General Court considered that the existence of possible financial support under Article 12 of Regulation No 347/2013 might validly constitute a relevant criterion for assessing whether there was a risk attached to the investment which justified an exemption from the regulated scheme in accordance with Article 17(1) of Regulation No 714/2009 without constituting a separate condition requiring the promoter to go through an unsuccessful cross-border cost allocation procedure under Article 12 of Regulation No 347/2013 before an exemption could be granted.
63 The error of law committed by ACER therefore lay in the requirement imposed on the applicant to take effective administrative steps as a priority with a view to securing funding that might be granted to the PCI pursuant to Article 12 of Regulation No 347/2013, and not the fact that possible financial support under that provision was taken into account.
64 However, ACER has discretion to examine the level-of-risk criterion attached to the investment (see, by analogy, judgment of 4 December 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission, C‑342/18 P, not published, EU:C:2019:1043, paragraphs 48 to 52).
65 In the second place, it is clear that the General Court and Advocate General Campos Sánchez-Bordona have adopted different approaches.
66 First, the General Court considered that by requiring the applicant for an exemption under Article 17 of Regulation No 714/2009 to have made an unsuccessful request for cross-border cost allocation under Article 12 of Regulation No 347/2013 before an exemption could be contemplated, the Board of Appeal had, in fact, made the submission by the applicant of a request for financial support under Article 12 of Regulation No 347/2013 a separate condition for proving the risk attached to the investment. It held that, in so doing, the Board of Appeal had considered, in essence, that only a refusal of such a request for financial support and, therefore, the unavailability of the regulated scheme linked to the applicant's PCI supported the conclusion that there was a level of risk attached to the investment such that it justified the exemption being granted to the applicant. Therefore, the General Court concluded that the Board of Appeal had infringed Article 17 of Regulation No 714/2009.
67 Second, in his Opinion in ACER v Aquind (C‑46/21 P, EU:C:2022:695), Advocate General Campos Sánchez-Bordona considers that the General Court's reasoning is vitiated by an error of law because, in his view, the General Court put two different schemes of law on a par with each other. He considered that Regulation No 347/2013 establishes the general scheme for the financing of interconnectors constituting PCIs and that the rules on the exemption provided for in Article 17 of Regulation No 714/2009, on the contrary, make up an exceptional scheme, meaning that promotors are not entitled to choose whether to process their project under one or the other of the two schemes.
68 Advocate General Campos Sánchez-Bordona states that Regulation No 347/2013 was adopted in 2013 and that EU law had not previously contained an equivalent provision setting out a similar scheme for the financing of trans-European energy infrastructure. In his view, that is why Article 12(9)(b) and point (b) of the second subparagraph of Article 13(1) of Regulation No 347/2013 did not apply to PCIs 'having received' an exemption pursuant to Article 17 of Regulation No 714/2009. He therefore considers that that set of rules was not intended to offer a choice between the application of the regulated scheme for the financing of electricity interconnectors, on the one hand, and the application of the exemption scheme, on the other. He states that the aforementioned articles of Regulation No 347/2013 tried to ensure that electricity interconnectors which had benefited from the exemption scheme under Article 17 of Regulation No 714/2009 did not qualify for financing under the general scheme established by Article 12 of Regulation No 347/2013 and that those articles were irrelevant for new interconnectors, since they were provisions which could be described as 'transitional' (Opinion of Advocate General Campos Sánchez-Bordona in ACER v Aquind, C‑46/21 P, EU:C:2022:695, points 97 to 102).
69 Advocate General Campos Sánchez-Bordona observes that the drafting history of Regulation (EC) No 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (OJ 2003 L 176, p. 1), which preceded Regulation No 714/2009, confirmed the relationship between the regulated scheme and the exemption scheme. He states that the common position of the Council contained in it on the adoption of Regulation No 1228/2003 included a declaration by the Commission on the exemption scheme, in which it indicated 'its intention of interpreting this exemption restrictively in order to ensure that such an exemption is restricted to the minimum necessary, in particular for the duration of the exemption and the relevant capacity of the project to which the exemption relates, in order to achieve the objective of financing investments of an exceptional level of risk'. He concluded that the drafting history and the Commission's explanatory documents highlighted the exceptional nature of the exemption scheme under Article 17 of Regulation No 714/2009 and its ancillary application in relation to the general scheme for the financing of electricity interconnectors provided for in Regulation No 347/2013 (Opinion of Advocate General Campos Sánchez-Bordona in ACER v Aquind, C‑46/21 P, EU:C:2022:695, points 103 to 106).
70 On the basis of those developments, Advocate General Campos Sánchez-Bordona takes the view that promoters of an electricity interconnector classified as a PCI must, in order to secure financial viability status for their project, submit to the regulated scheme provided for in Article 12 of Regulation No 347/2013 and that, if they do not obtain support through cross-border cost allocation, they can, if appropriate, demonstrate that the level of financial risk attached to their project is such as to justify the grant of an exemption. He therefore considers that promotors cannot opt for the exceptional exemption scheme directly. To do so would be to subvert the relationship between the exemption scheme and the general scheme for financial support for new interconnectors (Opinion of Advocate General Campos Sánchez-Bordona in ACER v Aquind, C‑46/21 P, EU:C:2022:695, points 107 to 110).
71 Lastly, Advocate General Campos Sánchez-Bordona states that the unavailability of financial support generates an economic risk capable of jeopardising the construction of the interconnector, that that factor must be taken into account by ACER when applying the condition as to the existence of a risk attached to the investment such as to justify the exemption, that, consequently, ACER's verification of the existence or otherwise of financial support through the general scheme is necessary in order to verify the risk and grant or refuse the exemption, and that that is what ACER did, which the Board of Appeal considered to be an examination satisfying the requirements of Article 17(1) of Regulation No 714/2009 (Opinion of Advocate General Campos Sánchez-Bordona in ACER v Aquind, C‑46/21 P, EU:C:2022:695, points 112 to 115).
72 Advocate General Campos Sánchez-Bordona infers from this that the General Court wrongly concluded that ACER had added another condition to those already laid down in Article 17(1) of Regulation No 714/2009 for the grant of an exemption. In his view, ACER and the Board of Appeal did not require the applicant to submit a request for financing under the regulated scheme, but simply assessed to what extent the economic risk attached to construction of the Aquind Interconnector would have been reduced if financing had been obtained under the regulated scheme.
73 The fact that the General Court and Advocate General Campos Sánchez-Bordona arrived at different conclusions in interpreting the Board of Appeal's decision shows how, in any event, the Board of Appeal's reasoning cannot be held to be manifestly incorrect (see, to that effect, judgment of 6 March 2003, Dole Fresh Fruit International v Council and Commission, T‑56/00, EU:T:2003:58, paragraph 77).
74 Having regard to the case-law cited in paragraphs 40 to 43 above, it must be considered in the present case that the alleged infringement of EU law by ACER and the Board of Appeal concerning that assessment cannot be sufficient to establish the existence of a sufficiently serious breach of a rule of law.
75 In the light of all the foregoing, the applicant is wrong to claim that the fault on the part of ACER was such as to render the European Union liable for the alleged infringement of Article 17(1)(b) of Regulation No 714/2009.
The infringement of the principles of legal certainty, protection of legitimate expectations and equal treatment
76 In the context of the complaint alleging infringement of the principles of legal certainty, protection of legitimate expectations and equal treatment, the applicant claims that the Board of Appeal and ACER did not take into account the uniform approach adopted by the Commission in the previous decisions and maintains that that uniform approach, which is at variance with the approach adopted by the Board of Appeal and ACER, is more consistent with the interpretation of Article 17 of Regulation No 714/2009 which it advocated before those bodies.
77 ACER disputes the applicant's arguments.
78 In the first place, the principle of legal certainty, which is one of the general principles of European Union law, requires that rules of law be clear and precise, and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by European Union law (judgments of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100, and of 15 December 2016, Spain v Commission, T‑808/14, not published, EU:T:2016:734, paragraph 193; see also, to that effect, judgment of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel, C‑231/15, EU:C:2016:769, paragraph 29).
79 The corollary of the principle of legal certainty is the principle of protection of legitimate expectations, which is also a fundamental principle of the European Union. The right to rely on that principle extends to any individual with regard to whom a European Union institution has given rise to hopes based on precise, unconditional and consistent assurances originating from authorised, reliable sources which it has given to that individual (see, to that effect, judgments of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 77, and of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 134).
80 However, in the present case, first of all, it should be noted that Article 17(4) of Regulation No 714/2009 provides that decisions on exemption requests must be taken 'on a case-by-case basis'. The legislature thereby underlined the fact that the area of new interconnectors and their financing was a complex and specific area and that, therefore, account had to be taken of the characteristics specific to each case when assessing exemption requests.
81 Moreover, in so far as the applicant relies on a number of decisions relating to exemption requests under Article 17 of Regulation No 714/2009 which had been adopted by the Commission, it should be noted that, apart from the fact that the applicant does not state how the Commission, by those decisions, provided it with precise, unconditional and consistent assurances and the fact that it did not submit any decision of the Commission or a national regulatory authority stating that the exemption regime and the regulated regime are equal schemes, the Commission's decision-making practice cannot be used as a legal framework for exemptions granted to new interconnectors and, therefore, the Commission's previous exemption decisions are not binding on ACER and the Board of Appeal (see, to that effect and by analogy, judgment of 27 June 2024, Prysmian Cabluri şi Sisteme, C‑168/23, EU:C:2024:557, paragraphs 45 and 46).
82 In the second place, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 70). Compliance with the principle of equal treatment must, however, be reconciled with compliance with the principle of legality (judgment of 8 February 2023, Aquind and Others v Commission, T‑295/20, EU:T:2023:52, paragraph 79).
83 In the present case, with regard to the ElecLink interconnector project to which the applicant refers in support of its complaint, the specific nature of that project lies in the fact that the cables of that interconnector pass through the Channel Tunnel, making it difficult to draw any comparison with the Aquind interconnector project. In any event, it is clear that the similarities which the Aquind interconnector project has with the ElecLink interconnector project relied on by the applicant are, to say the least, vague and general.
84 In the light of the foregoing, the applicant has not shown that ACER had infringed the principles of legal certainty, protection of legitimate expectations and equal treatment, and had committed a fault capable of rendering the European Union liable.
The complaint alleging the erroneous application of Article 17(1)(b) of Regulation No 714/2009 owing to the failure to take into account the restrictions under French law
85 The applicant claims that ACER was at fault for not taking into account French legislation which did not allow it to operate an interconnector with France unless it established a jointly owned company with the Réseau de transport d'électricité (RTE, Electricity transmission grid), that is to say, the French electricity transmission system operator. It states that RTE informed it of its refusal to establish a jointly owned company and that, therefore, its only option for operating its interconnector was to obtain an exemption under Article 17 of Regulation No 714/2009. It also relies on another fault committed by ACER, resulting from an error of law consisting in a refusal to take into account the legal restrictions laid down in French law applicable to interconnectors operated by private operators having access to the regime linked to PCI status and therefore benefiting from the financial support available pursuant to a cross-border cost allocation decision.
86 ACER disputes the applicant's arguments.
87 It must be pointed out that a possible restriction under national law does not amount to a risk such as that referred to in Article 17(1)(b) of Regulation No 714/2009 which the Board of Appeal should have taken into account when the exemption request was examined. That provision refers only to risks related to the application of Article 16(6) of Regulation No 714/2009, and Articles 9 and 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).
88 First, any congestion-management revenues resulting from the allocation of interconnection under Article 16(6) of Regulation No 714/2009, must be used in order to ensure the actual availability of the allocated capacity or to maintain or increase interconnection capacities through network investments, in particular in new interconnectors. Under that provision, interconnector operators must comply with obligations on the use of revenues in a specific manner and cannot therefore make free use of them. The exemption provided for in Article 17(1) of that regulation means that they are guaranteed the use of some or all of those revenues as they see fit. Therefore, the risk related to the application of Article 16(6) of Regulation No 714/2009 is that inherent in the mandatory use of congestion revenues and, consequently, in the fact, a priori, that those revenues cannot be used to make a return. However, the legal restrictions laid down in French law which would prevent the promotor from having access to the development of interconnectors because of the monopoly held by RTE do not concern the situation in which the promotor would be prevented from using the revenues as it sees fit.
89 Second, under Article 9 of Directive 2009/72, (i) each undertaking which owns a transmission system is to act as a transmission system operator, and (ii) the same person or persons are entitled neither, directly or indirectly, to exercise control over an undertaking performing any of the functions of generation or supply, nor, directly or indirectly, to exercise control over a transmission system operator or over a transmission system and must, inter alia, comply with the rules on voting rights, on the appointment of members of the supervisory board, the administrative board or bodies legally representing the undertaking or on the holding of a majority share. Under that article, promotors must comply with all obligations connected with the separation of company assets likely to dissuade investors. The exemption provided for in Article 17(1) of Regulation No 714/2009 would therefore be necessary in order not to compromise the investment strategy. In that context, the risk related to the application of Article 9 of Directive 2009/72 is inherent in the mandatory obligations attached to the separation of company assets. The question of legal restrictions laid down in French law is unrelated to the risk which might result from the mandatory obligations attached to the separation of company assets.
90 Third, under Article 32 of Directive 2009/72, Member States must ensure the implementation of a system of third party access to the transmission and distribution systems based on published tariffs, applicable to all eligible customers and applied objectively and without discrimination between system users. Those tariffs, or the methodologies underlying their calculation, must be approved in accordance with Article 37 of that directive on the approval of the tariff methodologies. The risk, in accordance with those articles, is therefore inherent in the constraints relating to third-party access to the system and in the approval of the tariff methodologies. That risk is unrelated to the question of the legal restrictions laid down in French law.
91 Therefore, in so far as the application of Article 16(6) of Regulation No 714/2009, and Articles 9 and 32, and Article 37(6) and (10) of Directive 2009/72 may compromise the financing of an interconnector project, the only option in order to mitigate or manage the risks associated with that application would be to grant the exemption provided for in Article 17(1) of Regulation No 714/2009. It follows that the only risks to be taken into account are those necessarily related to the constraints associated with the application of the obligations laid down in the provisions of the regulated regime, namely those referred to in Article 16(6) of Regulation No 714/2009 and in Articles 9 and 32, and in Article 37(6) and (10) of Directive 2009/72, irrespective of how Member States organise their cooperation for the purpose of implementing a regulated regime. It follows from this that the other risks which are not related to the application of the aforementioned provisions are not covered by Article 17(1)(b) of Regulation No 714/2009.
92 Therefore, for the reasons set out in paragraphs 87 to 91 above, the Court considers that the alleged restrictions resulting from French law cannot be related to the concept of 'risk attached to the investment' provided for in Article 17(1)(b) of Regulation No 714/2009. As the Board of Appeal held in its decision of 17 October 2018, the interpretation of the concept of 'risk attached to the investment' as referring also to any restrictions under national law would lead to situations in which exemptions from the regulated regime would be granted merely as a result of situations created by the Member States themselves.
93 Similarly, the applicant relies in vain on a fault on the part of ACER based on the fact that both ACER in its decision of 19 June 2018 and the Board of Appeal in its decision of 17 October 2018 refused to address the issue of whether the restrictions laid down in French law were unlawful. As the Board of Appeal stated, the interpretation of the relevant provisions of EU law could, in the present case, be carried out irrespective of that question.
94 In that context, even assuming that ACER can be criticised for not having set out, to the requisite legal standards, the reasons for its decision on the matter of the restrictions laid down in French law, such a defect cannot, in any event, amount, as such, to a fault so as to incur ACER's liability. According to consistent case-law, a breach of the obligation to state reasons laid down in Article 296 TFEU is not, in itself, sufficient for the European Union to incur liability (judgments of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207, paragraph 238, and of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 243).
95 Moreover, for the reasons stated in paragraphs 87 to 94 above, the applicant's argument that, in essence, the Board of Appeal and ACER did not take into account the fact that, because of the restrictions laid down in French law, it could not, in any event, benefit from financial support under the regulated regime provided for in Article 12 of Regulation No 347/2013, must be rejected.
96 Accordingly, the complaint alleging the erroneous application of Article 17(1)(b) of Regulation No 714/2009 owing to the failure to take into account the restrictions under French law must be rejected.
97 In the light of all the of foregoing, the argument alleging a fault committed by ACER when it adopted the decision of 19 June 2018 based on an allegedly sufficiently serious breach of a rule of law must be rejected.
The alleged fault based on the unlawfulness of the Board of Appeal's decision of 17 October 2018
98 The applicant relies on the unlawfulness of the Board of Appeal's decision of 17 October 2018 upholding ACER's decision of 19 June 2018 for the same reasons as those which, in its view, affected the latter decision. It also relies on the ground based on the Board of Appeal's failure to carry out a full review of ACER's decision, established by 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). It adds that the Board of Appeal's unlawful conduct is serious, because the review it is required to carry out is designed to protect individuals from any arbitrary treatment by the agencies and to preserve the right to a fair trial.
99 ACER disputes the applicant's arguments.
100 It should be recalled that the applicant's arguments must be examined in the light of the case-law cited in paragraphs 38 to 43 above.
101 First of all, it is apparent from the examination of the unlawful conduct relied on by the applicant in paragraphs 48 to 96 above that ACER did not commit any sufficiently serious infringement when the decision of 19 June 2018 was adopted. Since the Board of Appeal upheld the reasoning of that decision on those matters, it cannot, a fortiori, be criticised for any fault resulting from the alleged infringement of Article 17(1)(b) of Regulation No 714/2009 because of the creation of an additional condition not laid down in that provision, of the alleged infringement of the principles of legal certainty, protection of legitimate expectations and equal treatment, and the allegedly unlawful misapplication of Article 17(1)(b) of Regulation No 714/2009 owing to the failure to take into account restrictions under French law.
102 The only illegality recognised by the EU legislature on which the applicant can rely is therefore that resulting from an error of law owing to an insufficient review of ACER's decision of 19 June 2018 by the Board of Appeal, which carried out a limited review instead of a full review.
103 It must therefore be determined whether the error of law committed by the Board of Appeal is a fault capable of giving rise to liability on the part of the European Union. That involves examining whether the Board of Appeal committed a sufficiently serious breach of a rule of law intended to confer rights on individuals.
104 The requirement of a sufficiently serious breach of a rule of law is not met in the present case.
105 In the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182, paragraph 55), the Court of Justice, first, highlighted the difficulty of interpreting the provisions concerned, stating that 'it is not expressly apparent from the wording of the provisions of Articles 18 and 19 of Regulation No 713/2009, relating to the composition, organisation and powers of the Board of Appeal, that its review of ACER's decisions involving assessments of complex economic and technical issues is necessarily limited to the review of a manifest error of assessment'. It follows that those provisions did not contain anything further specifically suggesting that the review that had to be carried out by the Board of Appeal of ACER's decisions was not limited to that of a manifest error of assessment or had to be a full review.
106 Second, along the same lines, 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), revealed the process of establishing EU agencies, the powers that they have acquired, the lack of a single model agency and, therefore, the differences in their structure, their functioning and their powers. In his Opinion in ACER v Aquind (C‑46/21 P, EU:C:2022:695), Advocate General Campos Sánchez-Bordona also rightly noted that, when the Board of Appeal's decision of 17 October 2018 was adopted, ACER was not covered by the prior determination mechanism provided for in Article 58a of the Statute of the Court of Justice of the European Union, unlike other EU agencies. The fact that the Board of Appeal was able to infer from this that its review of ACER's decisions differed from that carried out by other Boards of Appeal is therefore understandable.
107 Moreover, other factors relied on by ACER, such as the existence of a short period of time in which the Board of Appeal was required to give a decision, could also have led the Board of Appeal to consider, albeit wrongly, but understandably, that the review that it was required to carry out was limited to that of a manifest error of assessment.
108 Lastly, in the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), the General Court ruled, for the first time, on the admissibility of an action for annulment against a decision of ACER in an area of competence where the Board of Appeal could be seised. It concluded that the applicant was barred from challenging ACER's decision before the EU judicature. Until the General Court had determined that delicate question, doubts remained as to whether an action could be brought before it both against ACER's decision and that of the Board of Appeal and, therefore, as to the possible impact of that question on the scope of the review which that Board of Appeal was required to carry out.
109 Those objective restrictions and those circumstances make it possible to explain and justify the Board of Appeal's conduct and to consider that the provisions applicable to it were not sufficiently clear and precise for their infringement to be characterised as manifest and serious within the meaning of the case-law cited in paragraph 40 above.
110 It follows from the foregoing that the unlawful conduct of the Board of Appeal does not constitute a sufficiently serious breach of a rule of law. It is therefore not necessary to consider whether Articles 18 and 19 of Regulation No 713/2009 are rules conferring rights on individuals.
The alleged fault based on the alleged refusal of ACER to re-examine the exemption request following the loss of PCI status of the Aquind interconnector project
111 The applicant claims that ACER refused to re-examine the exemption request under Article 17 of Regulation No 714/2009 following the loss of PCI status of the Aquind interconnector project. ACER thereby infringed the principle of good administration requiring it to amend a decision when it realises that the decision was adopted in error or on the basis of essential facts which turn out to be incorrect. ACER used the erroneous pretext of the case registered under number T‑735/18 in order not to elaborate on its refusal. The applicant states that, contrary to what ACER maintains, the subsequent withdrawal of PCI status is not relied on as an additional reason for invalidity, but that the relevant unlawfulness is the failure to carry out a full review of ACER's decision of 19 June 2018.
112 ACER disputes the applicant's arguments.
113 As is clear from paragraphs 10 to 15 above, Delegated Regulation 2020/389 established a new list of EU PCIs which did not include the Aquind interconnector. The applicant asked ACER whether it could reconsider its decision to reject the application submitted on 17 May 2017 to benefit from the exemption regime under Article 17 of Regulation No 714/2009, given that the Aquind interconnector project had lost its PCI status and therefore it could no longer benefit from the cross-border cost allocation regime or from incentives under Article 12 of Regulation No 347/2013. On 29 May 2020, the ACER departments stated that they did not see how they could review the decision of 19 June 2018 and replace it with a decision granting exemption.
114 In order to establish whether any fault was committed by Acer, it must be determined whether ACER was obliged to reconsider its decision of 19 June 2018.
115 First, it should be noted that Regulation No 714/2009 did not contain any provision on the reopening of the procedure relating to an exemption request. 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), which replaced Regulation No 714/2009, provides, in Article 63(10) thereof, that the Commission may, on request or on its own initiative, reopen proceedings relating to an exemption request. That provision lists the cases in which the Commission may consider a reopening of proceedings. Such a reopening may, inter alia, take place where, 'taking due account of the legitimate expectations of the parties and of the economic balance achieved in the original exemption decision, there has been a material change in any of the facts on which the decision was based' or where 'the decision was based on incomplete, incorrect or misleading information, which was provided by the parties'.
116 Apart from the fact that Article 63(10) of Regulation 2019/943 provides that a procedure relating to an exemption request is to be reopened by the Commission and not ACER, none of the cases referred to in it concerns the situation in which the applicant has requested the reopening of the procedure relating to its exemption request.
117 It does not appear that the decision of ACER of 19 June 2018 was based on incomplete, incorrect or misleading information. In that regard, as ACER rightly states, the letter which the applicant sent to it on 11 May 2020 makes no mention of incomplete, incorrect or misleading information affecting ACER's decision of 19 June 2018, but refers to 'developments that have occurred since the decision was originally taken', namely the loss of its PCI status.
118 As regards 'developments that have occurred since the decision was originally taken', it should be noted that those events occurred on 31 October 2019, after ACER and the Board of Appeal made their respective decisions and before the General Court, by its judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), annulled the Board of Appeal's decision of 17 October 2018. Those developments could have no bearing whatsoever on the legality of ACER's decision of 19 June 2018. It is settled case-law that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (judgments of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraphs 31 and 45, and of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 50).
119 Moreover, at the time when the applicant sent its request to reopen the procedure relating to the exemption request submitted to ACER on 17 May 2017, that is to say, 11 May 2020, the General Court had not yet ruled on the legality of the decision of 19 June 2018. That decision therefore benefited from a presumption of the legality of the measures of EU institutions which means that they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (judgments of 5 October 2004, Commission v Greece, C‑475/01, EU:C:2004:585, paragraph 18, and of 12 February 2008, CELF and ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraph 60).
120 Against that background, it must be observed that the situation would a priori have been different if the loss of PCI status had occurred before the Board of Appeal adopted the decision of 17 October 2018. It cannot be ruled out that the Board of Appeal was then required to take into account the new legal situation of the Aquind interconnector project, characterised by the loss of its PCI status (see, to that effect, judgment of 7 September 2022, BNetzA v ACER, T‑631/19, EU:T:2022:509, paragraphs 81 to 88).
121 Second, in so far as the applicant's somewhat unclear reasoning is to be understood as meaning that the 'inaccuracy' on the basis of which its exemption request was rejected is the CPI status granted to the Aquind interconnector project and, following the removal of that status, ACER's decision of 19 June 2018 had to be reviewed, that reasoning must be rejected. As is apparent from the judgment of 8 February 2023, Aquind and Others v Commission (T‑295/20, EU:T:2023:52, paragraph 68), the Aquind interconnector project was not 'removed' from the EU list of PCIs, but was not included in the new list at the end of the procedure for drawing up that list. Recital 24 of Regulation No 347/2013 states unequivocally that a 'new' Union list of PCIs is to be drawn up every two years, that existing PCIs to be included in the new Union list of PCIs are subject to the same selection procedure as the projects proposed for the purpose of drawing up Union lists of PCIs, and that those which no longer meet the relevant criteria and requirements laid down by that regulation should not be included in the new Union list of PCIs. Projects that have already been included in the previous Union list of PCIs therefore do not have any advantage over the new projects (judgment of 8 February 2023, Aquind and Others v Commission, T‑295/20, EU:T:2023:52, paragraph 69).
122 It follows that the inclusion of the Aquind interconnector project in the list of PCIs is not an 'inaccurate situation', that is to say, an unlawful situation – on the basis of which the decision rejecting the exemption request of 17 May 2017 was taken – which was subsequently 'removed'.
123 Third, the applicant also appears to maintain that, owing to the annulment of the Board of Appeal's decision of 17 October 2018 by the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), ACER's decision of 19 June 2018 recovered all its effects. According to the applicant, that equally unlawful decision should therefore have been amended by the only authority empowered to do so, namely ACER itself, and, when making that amendment, it should, applying the principle of good administration, have taken into account the new factor, which was the loss of PCI status. Those arguments must be rejected.
124 It should be noted that, in accordance with Article 266 TFEU, the institution, body, office or agency whose act has been declared void is required to take the necessary measures to comply with the annulling judgment. In the present case, it was for the Board of Appeal, and not ACER, to draw the consequences of the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542). Those consequences entailed carrying out a new, no longer limited but full, review of ACER's decision of 19 June 2018. In the meantime, ACER had lodged an appeal against that judgment, which it was perfectly justified in doing. It cannot therefore be criticised for not having directly amended that decision. The fact that the Aquind interconnector project had lost its PCI status could not impose any obligation on ACER to reopen immediately the procedure relating to the exemption request submitted on 17 May 2017.
125 In that sense, the applicant unsuccessfully relies on the case-law concerning the retroactive withdrawal of an unlawful administrative act which has created individual rights. As ACER states, that case-law applies only to acts which are considered unlawful based on elements of fact and of law existing at the time when the measure was adopted. In the present case, there is nothing to suggest that the unlawfulness of the Board of Appeal's decision of 17 October 2018 established by the Court of Justice implied ipso jure that ACER's decision of 19 June 2018 was, itself, unlawful and that it therefore had to be amended.
126 Lastly, the applicant claims that the only interpretation compatible with the right to an effective remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union is that the competence for deciding on the exemption request submitted on 17 May 2017 was definitively transferred to ACER and it relies in that context on the judgment of 7 September 2022, BNetzA v ACER (T‑631/19, EU:T:2022:509, paragraph 39). That argument is irrelevant in the present case, since new facts cannot justify an amendment of ACER's decision of 19 June 2018, which is presumed lawful.
127 Fourth, finally, without it being necessary to examine the admissibility of the argument put forward in the applicant's reply that, in essence, ACER infringed its duty of diligence, that argument must be rejected. The principle of diligence requires institutions, bodies, offices and agencies of the European Union to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, judgment of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14). The applicant cannot rely on a fact subsequent to ACER's decision of 19 June 2018, namely the loss of PCI status, in order to argue that the principle of diligence was not observed. Moreover, it does not submit any evidence to suggest that ACER did not examine all the relevant aspects of the individual case carefully and impartially.
128 In the light of the foregoing, the applicant has not shown that ACER had committed a sufficiently serious breach of a rule of law consisting in an alleged refusal to re-examine the exemption application following the loss of PCI status of the Aquind interconnector project.
The alleged fault based on the alleged refusal of ACER to comply promptly with the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542)
129 The applicant claims that ACER's refusal to comply promptly with the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542) was unlawful and that the obligation to take all necessary measures to comply with a judgment was therefore infringed in a serious manner. In that regard, it emphasises ACER's lack of cooperation which obliged it to send to ACER a letter of formal notice and the absence of a reply to that letter obliged it to send to ACER a formal letter referencing Article 265 TFEU and requiring it to act.
130 ACER contends that those arguments should be rejected.
131 According to the case-law, pursuant to the first paragraph of Article 266 TFEU, the institution, body, office or agency whose act has been declared void is required to take the necessary measures to comply with the judgment declaring that act void. It must be stated that that article constitutes a rule of law intended to confer rights on individuals within the meaning of the case-law cited in paragraph 39 above. It establishes an absolute, unconditional obligation on the part of the institution which adopted the annulled act to take, in the interests of the successful applicant, the measures necessary to ensure compliance with the annulling judgment, to which the applicant's right to full compliance with that obligation corresponds (judgment of 8 March 2023, Campine and Campine Recycling v Commission, T‑94/20, not published, EU:T:2023:110, paragraph 39).
132 It must also be emphasised that the lack of care shown by the institution, body, office or agency whose act has been declared void must be manifest. Such is, for example, the case with the competent institution which took 15 months to rectify a manifest error (see, to that effect, judgment of 15 March 1995, Cobrecaf and Others v Commission, T‑514/93, EU:T:1995:49, paragraph 70) or which waited several years before acting (see, to that effect, judgments of 9 December 1965, Société anonyme des laminoirs, hauts fourneaux, forges, fonderies et usines de la Providence and Others v High Authority, 29/63, 31/63, 36/63, 39/63 to 47/63, 50/63 and 51/63, EU:C:1965:120, p. 936, and of 30 January 1992, Finsider and Others v Commission, C‑363/88 and C‑364/88, EU:C:1992:44, paragraph 22). Similarly, the conduct of an institution, body, office or agency of the European Union in refusing to take any specific measure to comply with the judgment which declared its act void constitutes an infringement of Article 266 TFEU and, consequently, unlawful conduct capable of rendering the European Union liable (see, to that effect, judgments of 8 October 1992, Meskens v Parliament, T‑84/91, EU:T:1992:103, paragraph 81, and of 12 December 2000, Hautem v EIB, T‑11/00, EU:T:2000:295, paragraph 43).
133 In the light of the case-law cited in paragraphs 131 and 132 above, it must be determined whether ACER refused to comply promptly with the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), and whether that conduct constituted a sufficiently serious breach of a rule of law.
134 In that regard, a brief reminder of the chronology of the facts is required:
– the judgment in Aquind v ACER (T‑735/18, EU:T:2020:542), annulling the Board of Appeal's decision was delivered on 18 November 2020;
– a conference call between the applicant's lawyers and a Board of Appeal representative was held during the period from 30 November 2020 to 4 December 2020; during that exchange, the Board of Appeal's representative stated that the Board of Appeal had not yet taken a position on how to proceed but indicated that it would be likely to wait for the deadline for an appeal to expire and that the decision on whether to appeal was a matter for ACER rather than the Board of Appeal to decide; she also indicated that the Board of Appeal would, if there was no appeal, subsequently ask the parties to comment on the implications of that judgment before reopening the case;
– on 7 December 2020, the applicant sent to ACER a letter of formal notice pursuant to Article 265 TFEU;
– on 27 January 2021, ACER brought an appeal seeking to have the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542) set aside; in parallel with the appeal, it lodged an application for interim relief asking the Court of Justice to order the suspension of operation of that judgment;
– in an email of 5 February 2021, the Board of Appeal informed the applicant that it was relaunching the procedure following the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542); it invited the applicant to indicate which consequences should be drawn from that judgment and whether the withdrawal of the United Kingdom from the European Union (or Brexit) had, in its opinion, any impact on its initial notice of appeal, in particular as regards ACER's competence and the admissibility of the appeal; it also informed the applicant that, following the entry into force of Regulation 2019/942, it had modified its Rules of Procedure and its other procedural documents, that the initial date of the proceeding was 5 February 2021 and that the deadline for it to reach a final decision was 5 June 2021, unless it decided to stay the proceedings on the basis of Article 20 of its Rules of Procedure in order to await the ruling of the Court of Justice in Case C‑46/21 P;
– on 4 June 2021, the Board of Appeal adopted a decision declaring the appeal inadmissible on the ground that, as a consequence of Brexit, it was no longer competent to rule in the procedure relating to the application for exemption for the Aquind interconnector;
– by order of 16 July 2021, ACER v Aquind (C‑46/21 P‑R, not published, EU:C:2021:633), the application for suspension was dismissed on the ground that, in view of the adoption, by the Board of Appeal, of the decision of 4 June 2021, the application for interim relief had become devoid of purpose and that the condition relating to urgency was not therefore satisfied.
135 It is clear from the chronology of the facts that ACER cannot be criticised for any unlawful lack of diligence.
136 First of all, a period of two and a half months elapsed between the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), and the reopening of the procedure relating to the exemption request submitted on 17 May 2017 to the Board of Appeal. During that period, an exchange took place between the applicant's lawyers and a Board of Appeal representative. The Board of Appeal informed those lawyers in the clearest terms that it might await the expiry of the period for bringing an appeal before beginning proceedings.
137 Second, ACER was invited by the applicant's lawyers, pursuant to Article 265 TFEU, to draw the consequences of the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542). The Board of Appeal reopened the procedure within the time limit of two months following that notice to act and therefore fully complied with the time limit laid down in the second paragraph of Article 265 TFEU.
138 The Board of Appeal also requested the applicant to comment on the impact of Brexit. In view of the potentially considerable impact of Brexit on the case, the Board of Appeal cannot be criticised for having invited the applicant to submit its observations in that regard. The criticism of a lack of diligence appears even less tenable since the request was sent to the applicant in the email concerning the reopening of the procedure.
139 Moreover, ACER took care to lodge, in parallel with the appeal brought against the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), a request for interim relief asking the Court of Justice to order the suspension of operation of the judgment. It should be noted that that request was not rejected by the Vice-President of the Court of Justice on the ground that it was unfounded, but only because it had become devoid of purpose owing to the adoption of the Board of Appeal's decision of 4 June 2021. There is therefore no evidence to suggest that ACER could not, in any event, have obtained a suspension.
140 Furthermore, the importance of the matter of the impact of Brexit and, therefore, of the resultant need to address that matter with the parties is also confirmed by the fact that, by the judgment of 15 February 2023, Aquind and Others v ACER (T‑492/21, EU:T:2023:67), the General Court dismissed the appeal brought by the applicant against the Board of Appeal's decision of 4 June 2021, taking the view that it was no longer competent, following Brexit, to take the measures necessary to comply with the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542). Since the General Court had established that the Board of Appeal was no longer competent to grant the applicant the exemption requested on 17 May 2017, the Board of Appeal could not be given notice under Article 265 TFEU to adopt a measure for which it was not now competent.
141 Lastly, the prescribed period running until 5 June 2021, the last date for making a final decision stated in the email of 5 February 2021, was observed. That period corresponds to the four-month period laid down in Article 28(2) of Regulation 2019/942.
142 In those circumstances, the applicant unsuccessfully relies on the judgment of 12 December 2000, Hautem v EIB (T‑11/00, EU:T:2000:295). Unlike ACER, the European Investment Bank (EIB) had, in the case giving rise to that judgment, awaited the judgment of the Court of Justice before implementing the judgment of the General Court and it had not submitted an application for interim relief to the Court of Justice seeking suspension of operation of the General Court's judgment.
143 Therefore, the applicant has not shown that ACER had demonstrated a lack of diligence constituting a sufficiently serious breach of a rule of law consisting in an alleged refusal to comply promptly with the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542).
The alleged fault based on the alleged deliberate and unjustified delay by the Board of Appeal in reopening proceedings
144 The applicant submits that ACER's conduct is unlawful in that, deliberately and without any justification, the Board of Appeal delayed the reopening of proceedings by two months and ten days from the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542). It maintains that the unlawful acts could have been rectified before Brexit if ACER had acted in good faith and complied with its duty of care and diligence. It submits that if the Board of Appeal had re-opened proceedings without awaiting ACER's decision of 19 June 2018, that would have allowed an exemption to be granted by 31 December 2020, which would have automatically continued to apply pursuant to Article 309 of the TCA.
145 ACER contends that those arguments should be rejected.
146 It should be recalled that the judgment in Aquind v ACER (T‑735/18, EU:T:2020:542) is dated 18 November 2020, that the Brexit transition period (which began on 31 January 2020) ended on 31 December 2020 and that the TCA was concluded on 24 December 2020, a non-definitive version of which was published in the Official Journal on 31 December 2020 (OJ 2020 L 444, p. 14).
147 The applicant claims that the Board of Appeal should have given a decision before 31 December 2020 and that the unlawful acts could therefore have been rectified before Brexit if ACER had acted in good faith and complied with its duty of care and diligence. That amounts, in other words, to stating that the Board of Appeal should necessarily have, in one and a half months, reopened the proceedings, requested the parties' observations on the file, held a hearing and carried out a full review of ACER's decision of 19 June 2018, all while exercising the discretion available to it in that regard.
148 Taking those factors into account, it cannot reasonably be considered that non-compliance with the time limit of one and a half months referred to in paragraph 147 above constitutes, as such, a manifest lack of diligence. The chronology of the facts set out in paragraph 134 above supports the finding that ACER and the Board of Appeal fulfilled their obligations to draw the consequences of the judgment of 18 November 2020, Aquind v ACER (T‑735/18, EU:T:2020:542), without delay.
149 In that context, the argument based on Article 309 of the TCA must be rejected. The adoption of that article does not call into question the fact that, inherently, the duty of care and the duty of diligence cannot be interpreted in the present case as imposing on the Board of Appeal a period as short as one and a half months for giving a new decision on the exemption request.
150 In any event, the non-definitive version of the TCA was published on 31 December 2020, and therefore ACER cannot in any way be criticised for not having taken into account Article 309 of the TCA.
151 It follows that, since the applicant has not shown that the Board of Appeal had, deliberately and without justification, delayed the reopening of the procedure, ACER cannot be criticised for any manifest lack of diligence or, a fortiori, any sufficiently serious infringement of a rule of law.
152 In the light of all the foregoing considerations, the applicant has not shown that ACER had committed any fault capable of giving rise to non-contractual liability on the part of the European Union.
153 In order for the European Union to incur non-contractual liability for the unlawful conduct of its institutions or bodies, a number of conditions must be satisfied: the conduct alleged against the institution or body of the European Union must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage complained of.
154 In the present case, it is clear from an examination of the condition of unlawfulness, namely a sufficiently serious breach of a rule of law intended to confer rights on individuals, that that condition has not been met.
155 Since one of the three conditions required for the European Union to incur non-contractual liability is not satisfied, it cannot be held liable. The action for non-contractual liability must therefore be dismissed, without it being necessary to examine whether the other two conditions have been met (see, to that effect, judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81, and of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraph 33).
156 Consequently, without it being necessary to examine the pleas of inadmissibility raised by ACER and without it being necessary to grant ACER's request for a measure of organisation of procedure, the action must be dismissed as unfounded.
Costs
157 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by ACER.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Aquind Ltd to pay the costs.
Škvařilová-Pelzl | Nõmm | Meyer |
Delivered in open court in Luxembourg on 11 June 2025.
V. Di Bucci | S. Papasavvas |
Registrar | President |
Table of contents
Background to the dispute
Forms of order sought
Law
The alleged fault based on the alleged unlawfulness of ACER's decision of 19 June 2018
The alleged infringement of Article 17(1)(b) of Regulation No 714/2009 concerning the relationship between the exemption regime and the regulated regime
The infringement of the principles of legal certainty, protection of legitimate expectations and equal treatment
The complaint alleging the erroneous application of Article 17(1)(b) of Regulation No 714/2009 owing to the failure to take into account the restrictions under French law
The alleged fault based on the unlawfulness of the Board of Appeal's decision of 17 October 2018
The alleged fault based on the alleged refusal of ACER to re-examine the exemption request following the loss of PCI status of the Aquind interconnector project
The alleged fault based on the alleged refusal of ACER to comply promptly with the judgment of 18 November 2020, Aquind v ACER (T 735/18, EU:T:2020:542)
The alleged fault based on the alleged deliberate and unjustified delay by the Board of Appeal in reopening proceedings
Costs
* Language of case: English.
© European Union
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