On 6 September 2023, the
Court of Justice of the European Union (CJEU) upheld GAZ-SYSTEM's appeal and
annulled the Decision No 10/2019 of the Board of Appeal of the European Union
Agency for the Cooperation of Energy Regulators (ACER). The complaint filed by
GAZ-SYSTEM, the GSA Platform operator, concerned objections in relation to
ACER's review and assessment of tenders, which resulted in the Agency's
selection of the Hungarian RBP Platform as the capacity booking tool for the
interconnection point at the German-Polish border.
The provisions
of the Network Code on Capacity Allocation Mechanisms in gas transmission
systems (Article 37(1) NC CAM) provides that gas transmission system operators
shall offer gas transmission capacity by means of a single joint booking
platform. In the absence of an agreement, a special procedure is foreseen.
Under the said procedure, in October 2018, ACER selected the GSA Platform to be
used for capacity booking at the German-Polish border for a period of three
years.
This decision
was contested by PRISMA GmbH platform. Consequently, on 22 February 2019,
ACER’s Board of Appeal (ACER BoA) annulled the Agency's decision on procedural
grounds at the awarding stage and remitted the case to the Director of ACER for
reconsideration.
The ACER Board
of Appeal recommended to the Director of the Agency two options how the
procedure should be completed: either repeating the procedure from the
assessment stage onwards (i.e. re-assessment the submitted tenders) or
conducting a new procedure. In February 2019, ACER announced the choice of the
second option.
In view of the
above,
as a consequence
of the annulment of Decision No. 11/2018, ACER launched a new selection
procedure of the capacity booking platform, which in August 2019 resulted in
the selection of the Regional Booking Platform (RBP) for capacity booking at
the German-Polish border to be used for a period of three years (ACER Decision
No. 10/2019). On 7 October 2019, the GSA Platform Operator brought an appeal
against this decision. In February 2020, the ACER’s Board of Appeal reported
that it upheld ACER's previous decision and dismissed the Operator's appeal
(ACER BoA Decision No. A-006-2019).
As the GSA
Platform Operator, GAZ-SYSTEM lodged an appeal against the ACER's Board of
Appeal decision with the CJEU Court of First Instance under Article 263 of the
Treaty on the Functioning of the European Union.
On 6 September 2023, the CJEU concluded that GAZ-SYSTEM's appeal was substantiated and consequently ordered that the decision of the ACER’s Board of Appeal of February 2020 is annulled. The CJEU found that the Board of Appeal had not carried out a sufficiently detailed review of ACER Decision No. 10/2019 and had restricted itself to the limited review of a manifest error of assessment made by ACER. This was not in line with the provisions of Regulation 2019/942 of 5 June 2019 establishing the European Union Agency for the Cooperation of Energy Regulators (ACER). As a result, based on GAZ-SYSTEM's appeal of October 2019, the appeal proceedings before the Board of Appeal ACER should be resumed. In addition, the CJEU ordered ACER to pay the costs of the legal proceedings.