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Flick of the switch

The General Court of the EU has confirmed the power of the EU Agency for the Cooperation of Energy Regulators to make decisions on cross-border energy issues. Alan McCarthy plugs it in.

The European Union Agency for the Cooperation of Energy Regulators (ACER) was established in March 2011 as an independent body to foster the integration and completion of the EU internal energy market for electricity and natural gas.

ACER is a decentralised agency and is distinct from the other EU institutions. As with other decentralised agencies, ACER is set up as a separate legal entity to perform specific technical and scientific tasks that help EU institutions and member states to implement policies and take decisions. ACER’s headquarters are in Ljubljana, Slovenia.

Ruling confirmed

On 15 February, the General Court of the EU confirmed that ACER has the power to make individual decisions on cross-border energy issues (see Cases T-606/20 and T-607/20).

ACER can alter proposals of transmission-system operators (TSOs) to ensure compliance with EU energy laws without being bound by any agreements made between national regulatory authorities.

Regulation 2017/2195 on electricity balancing provides for the implementation of several EU platforms for the exchange of balancing energy. Those platforms include (a) the EU platform for the exchange of balancing energy from frequency-restoration reserves with automatic activation (aFRR platform), and (b) the European platform for the exchange of balancing energy from frequency-restoration reserves with manual activation (mFRR platform).

Annulments sought

TSOs submit common methodology proposals for the implementation of the aFRR platform and the mFRR platform for approval by national regulatory authorities (NRAs). Following a joint request by NRAs, ACER took a decision on these proposals.

Austrian Power Grid and others brought an action to the ACER board of appeal against those ACER decisions. After having been dismissed, they brought two actions before the General Court seeking annulment of the decisions of the board of appeal of certain provisions and methodologies of the ACER decisions.

Actions dismissed

The General Court dismissed the actions for annulment. It ruled that, under article 6(10) of Regulation 2019/942 (which recasts the original 2009 regulation that established ACER) and article 5(7) of Regulation 2017/2195, ACER can adopt decisions on the aFRR methodology and the mFRR methodology and attach the methodologies to them.

Also, the General Court noted that ACER has specific decision-making powers that ensure the efficient functioning of EU internal markets in electricity and natural gas. In that way, ACER can amend the proposals of the TSOs to ensure their compliance with EU energy law.

This decision underscores the continued role and future influence of ACER in making decisions to integrate and complete the EU internal energy market for electricity and natural gas – including in Ireland.

Look it up

CASES:

• Austrian Power Grid AG and Others v ACER [Case T606/20; Case T607/20, 15 February 2023]

LEGISLATION:

• Regulation 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing
• 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 (recast)

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