Judgment_paragraph 31 · Austrian Power Grid AG and Others v European Union Agency for the Cooperation of Energy Regulators (T-607/20)

31Second, the applicants claim that, by adopting a decision which exceeded the limits of its competence, as defined by the joint request, ACER infringed the principle of conferral enshrined in Article 5(2) TEU. The mFRR methodology was adopted on the basis of Regulation 2017/2195, which is an implementing act. As can be seen from recital 16 thereof, Regulation 2017/2195 sets the limits of the competence attributed to ACER and only the European Commission could, through the comitology procedure, modify those limits. Moreover, contrary to what the Board of Appeal contends, in paragraph 108 of the contested decision, ACER did not exercise, in the present case, a competence of its own, but a competence delegated or derived from the NRAs. In accordance with the case-law, only the need to ensure the effectiveness of Regulation 2017/2195 could justify ACER exceeding the limits of the competence conferred on it. However, it would appear from paragraph 69 of the judgment of 24 October 2019, E-Control v ACER (T‑332/17, not published, EU:T:2019:761), that there would be no justification for ACER, as in the present case, to substitute its position for that of the NRAs, as expressed in the joint request, regarding the functions required to operate the mFRR platform and the entity or entities designated to perform them.

Austrian Power Grid AG and Others v European Union Agency for the Cooperation of Energy Regulators (T-607/20)

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