Uniper Global Commodities SE v European Union Agency for the Cooperation of Energy Regulators (T-96/23)

Contents

Judgment of the General Court (Third Chamber, Extended Composition)25 June 2025^note(Energy — Internal market for electricity — Regulation (EU) 2017/2195 — ACER decision on the amendment to the methodology for pricing balancing energy — Imposition of a temporary price limit — Appeal brought before the Board of Appeal of ACER — Specific conditions and arrangements concerning actions — Article 28(1) and Article 29 of Regulation (EU) 2019/942 — Inadmissibility due to lack of standing to bring an appeal before the Board of Appeal — Plea of illegality — Equality before the law and effective judicial protection — Lack of individual concern — Attributes or factual circumstances not raised — Time limit for bringing proceedings — No excusable error)In Case T‑96/23,Uniper Global Commodities SE, established in Düsseldorf (Germany), represented by T. Richter, M. Schellberg, C. Sieberg and M. Schleifenbaum, lawyers,vEuropean Union Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet, E. Tremmel and G. Bertrand, acting as Agents, and by R. van der Hout, J. Wiemer and C. Wagner, lawyers,THE GENERAL COURT (Third Chamber, Extended Composition),composed of M. van der Woude, President, P. Škvařilová-Pelzl (Rapporteur), I. Nõmm, G. Steinfatt and D. Kukovec, Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure,further to the hearing on 9 September 2024,gives the following

Judgment

1By its action under Article 263 TFEU, the applicant, Uniper Global Commodities SE, seeks, principally, the annulment of Decision A-003-2022 of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER) of 9 December 2022 (‘the contested decision’), dismissing as inadmissible the appeal brought by the applicant against ACER Decision No 03/2022 of 25 February 2022 on the amendment to the methodology for pricing balancing energy and cross-zonal capacity used for the exchange of balancing energy or operating the imbalance netting process (‘the initial decision’), in so far as, in that decision, ACER had set, for a period of 48 months from 1 July 2022, a limit on the price at which balancing energy suppliers, such as the applicant, could exchange that energy on the European platforms PICASSO and MARI, and, in the alternative, the annulment of the initial decision.

Background to the dispute

2By decision No 01/2020 of 24 January 2020, ACER adopted, on a proposal from the transmission system operators (‘the TSOs’), a methodology for pricing balancing energy and cross-zonal capacity used for the exchange of balancing energy or operating the imbalance netting process (‘the methodology at issue’) which provided, inter alia, that prices for the supply of balancing energy must not be higher or lower than a technical price limit of plus or minus EUR 99999 per megawatt hour (MWh).

3On 2 June 2021, the European Network of Transmission System Operators for Electricity (‘the ENTSO for electricity’) drew up, on behalf of all the TSOs, a proposal to amend the methodology at issue with a view to replacing the existing technical price limit with a price limit of plus or minus EUR 15 000/MWh (‘the TSOs’ proposal’). That proposal was accompanied by an explanatory note dated 28 May 2021. In the course of the market consultation carried out by the ENTSO for electricity, the applicant submitted a negative view on that proposal to ENTSO on 20 July 2021.

4The ENTSO for electricity sent the TSOs’ proposal to ACER for approval, and on 13 October 2021, ACER launched a public consultation on its website and invited interested market participants to submit their comments on that proposal by 10 November 2021. In that context, it raised in particular the issue of whether it would be appropriate to approve a temporary price limit during the launch phase of the European balancing energy exchange platforms PICASSO and MARI. The applicant participated in that public consultation by submitting, on 10 November 2021, comments on the issues raised by ACER.

5Between 22 November and 6 December 2021, ACER sent, for the purposes of consultation, to the TSOs, the ENTSO for electricity and the regulatory authorities of the Member States (‘the NRAs’), a version, which it had itself amended, of the TSOs’ proposal that it had previously sent to them, together with a justification for the amendments.

6By the initial decision, adopted on 25 February 2022 and published on its website on 28 February 2022, ACER rejected the TSOs’ proposal, on the ground that it did not satisfy the requirements of Article 30(2) of Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6), and ordered that the existing technical price limit of plus or minus EUR 99 999/MWh would remain in force. However, by Annex I to the initial decision, ACER amended the methodology at issue by imposing a temporary price limit of plus or minus EUR 15 000/MWh, applicable only to exchanges of balancing energy on the European platforms PICASSO and MARI, for a period of 48 months from 1 July 2022.

7On 28 April 2022, the applicant brought an appeal against the initial decision before the Board of Appeal of ACER (‘the Board of Appeal’).

8By the contested decision, the Board of Appeal dismissed the applicant’s appeal against the initial decision as inadmissible, on the ground that the applicant did not have standing to bring such an appeal under Article 28(1) of 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), since the initial decision was not addressed to the applicant and did not concern the applicant individually.

Forms of order sought

9The applicant claims that the Court should:– principally, annul the contested decision;– in the alternative, annul the initial decision;– order ACER to pay the costs.

10ACER contends, in essence, that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

The principal claim, seeking annulment of the contested decision

11In support of the principal claim for annulment of the contested decision, the applicant puts forward two pleas in law, the first alleging infringement of the condition for application of Article 28(1) of Regulation 2019/942 relating to whether the applicant was individually concerned, and the second alleging, in essence, that Article 28(1) of Regulation 2019/942 was not interpreted in such a way as to ensure the effectiveness of the procedure before the Board of Appeal and the conformity of that provision with the principle of effective judicial protection, as set out in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and with the principle of equality before the law, as guaranteed by Article 20 of the Charter, in that the Board of Appeal refused to find that the applicant had standing to bring an appeal against a regulatory act which concerned it directly and did not entail implementing measures.

12ACER submits that the principal claim should be rejected as unfounded.

13It is appropriate to begin by examining the second plea.

The second plea, alleging that Article 28(1) of Regulation 2019/942 was not interpreted in such a way as to ensure the effectiveness of the procedure before the Board of Appeal and the conformity of that provision with the principle of effective judicial protection, as set out in Article 47 of the Charter, and with the principle of equality before the law, as guaranteed by Article 20 of the Charter

14The applicant submits that, in the contested decision, the Board of Appeal infringed the fourth paragraph of Article 263 TFEU by holding that it did not have standing to bring an appeal before it, even though the initial decision was a regulatory act which directly concerned the applicant and did not entail implementing measures.

15The applicant maintains that, in the contested decision, the Board of Appeal was correct to find, in the light of the case-law, that the initial decision constituted a regulatory act which directly concerned the applicant and did not entail implementing measures, and which could therefore be challenged before the EU judicature under the fourth paragraph of Article 263 TFEU. That is not disputed by ACER in the present action.

16However, according to the applicant, the Board of Appeal was incorrect to find, in the contested decision, that the applicant did not have standing to bring an appeal against the initial decision before it, having regard to the wording of Article 28(1) of Regulation 2019/942. The applicant submits that that provision can and must be interpreted and applied in such a way as to give the applicant standing to bring an appeal against that decision, as a regulatory act which is of direct concern to it and does not entail implementing measures, and which can therefore be challenged before the EU judicature under the fourth paragraph of Article 263 TFEU. Any other interpretation of Article 28(1) of Regulation 2019/942 would undermine the effectiveness of the procedure before the Board of Appeal and fail to ensure the conformity of that provision with the principle of effective judicial protection, as set out in Article 47 of the Charter, and with the principle of equality before the law, as guaranteed by Article 20 of the Charter.

17First, the procedure before the Board of Appeal, which is designed as a simplified mechanism for full review by the administrative body itself, in the interests of sound administration and to relieve the burden on the Courts of the European Union, can be effective only if it is open to the numerous stakeholders that are actually harmed by market regulation decisions adopted by ACER, such as the temporary price limit established by the initial decision. According to the case-law, provisions of EU law must be interpreted in such a way as to preserve their effectiveness. In the present case, a narrow interpretation of the right of appeal to the Board of Appeal would have the practical consequence of releasing ACER from any obligation to review the decisions it makes in the exercise of its essential market regulation functions, which continue to grow in number and importance. If natural or legal persons were able to challenge ACER decisions directly before the General Court, where those decisions are regulatory acts not entailing implementing measures and directly concerning those persons, it would undermine the effectiveness of the simplified mechanism for full review by the administrative body itself which is provided for by Article 28(1) of Regulation 2019/942, in that there would be a risk of parallel proceedings before different bodies (the Board of Appeal and the General Court), with different levels of control (full review and limited review).

18Second, only through the availability of an appeal before the Board of Appeal is it possible to avoid a deficit in effective judicial protection, which would be contrary to primary EU law and which the Treaty of Lisbon specifically sought to remedy. According to the applicant, although, in the light of recital 34 of Regulation 2019/942 and the case-law, the appeal procedure referred to in Article 28(1) of that regulation must be exhausted before an action can be brought before the EU judicature, the fact that that provision does not allow natural or legal persons to bring appeals before the Board of Appeal in respect of ACER acts which do not entail implementing measures and concern them directly, but not individually, means that, subsequently, they are deprived of their right to bring an action before the General Court under the fourth paragraph of Article 263 TFEU.

19According to academic commentary and to the case-law, specific arrangements concerning the internal appeal procedures of bodies, offices or agencies of the European Union, established pursuant to the fifth paragraph of Article 263 TFEU, cannot call into question the jurisdiction of the General Court. Such arrangements would undermine the principle of effective judicial protection, as set out in Article 47 of the Charter, which, according to the case-law, requires effective judicial protection against all acts of the institutions, bodies, offices and agencies of the European Union. Furthermore, if it were to be held that natural or legal persons must bring proceedings against ACER decisions directly before the General Court when they wish to challenge regulatory acts which do not entail implementing measures and which concern them directly, within the meaning of the fourth paragraph of Article 263 TFEU, that would not be consistent with the EU legislature’s intention that the ‘appeal body’ mechanism should be preferred, within the EU agencies, so that a full review of the complex technical or scientific assessments made by those agencies can be conducted, bearing in mind that, under the case-law, the review subsequently conducted by the EU judicature is a limited review.

20Nor would that be consistent with the principle of equality before the law, as guaranteed by Article 20 of the Charter and applied in the case-law, in so far as the natural or legal persons most adversely affected by ACER decisions would, without objective justification, be treated less favourably than others as regards their standing to bring an appeal, as can be seen in this case by comparing balancing energy suppliers with TSOs. Given that ACER adopts only a limited number of individual decisions with regulatory scope, and that it would be possible to deal with parallel proceedings together or make other case-management arrangements, in reality there is no risk of the Board of Appeal being overloaded and it would be able to fulfil the task assigned to it by the legislature, namely to relieve the burden on the Courts of the European Union and enable a full review of ACER decisions to be conducted.

21According to the applicant, in the contested decision the Board of Appeal should have looked further than the terms of Article 28(1) of Regulation 2019/942. It is apparent from the case-law that the terms of a provision of secondary legislation can and should be interpreted broadly – even going beyond the letter of the provision – where, as in the present case, that is necessary in order to bring the provision into line with primary law. It would be contrary to primary law, the applicant submits, to interpret the standing of natural or legal persons more narrowly in relation to Article 28(1) of Regulation 2019/942 than in relation to the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.

22ACER contests the applicant’s arguments and submits that the second plea should be rejected.

23As a preliminary remark, it must be stated that the EU judicature has accepted that a plea may be expressed in terms of its substance rather than its legal classification, provided that it is set out in the application with sufficient clarity (see judgments of 23 September 2004, Italy v Commission, C‑297/02, not published, EU:C:2004:550, paragraph 57 and the case-law cited; of 24 September 2015, Italy and Spain v Commission, T‑124/13 and T‑191/13, EU:T:2015:690, paragraph 33 and the case-law cited, and of 19 January 2017, Commission v Frieberger and Vallin, T‑232/16 P, not published, EU:T:2017:15, paragraph 33).

24Furthermore, in accordance with the case-law, a plea of illegality may be considered to have been raised implicitly where it is relatively clear from the application that the applicant is in fact making such a plea (see, to that effect, judgments of 6 June 1996 Baiwir v Commission, T‑262/94, EU:T:1996:75, paragraph 37; of 27 November 2018, Mouvement pour une Europe des nations et des libertés v Parliament, T‑829/16 EU:T:2018:840, paragraph 66; and of 21 December 2022, Falke v Commission, T‑306/21, EU:T:2022:834, paragraph 30).

25It is apparent from the content of the second plea, as developed in paragraphs 138 to 151 and 159 of the application and paragraphs 56 to 60 of the reply, that the applicant is submitting, in essence, that, in order for it to comply with the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU – pursuant to which the applicant has standing to bring proceedings before the EU judicature for annulment of any act which, like the initial decision, is a regulatory act that is of direct concern to it and does not entail implementing measures – and with the principle of equality before the law enshrined in Article 20 of the Charter, Article 28(1) of Regulation 2019/942 needed to be interpreted by the Board of Appeal, in the contested decision, as allowing the applicant to bring an appeal against that decision before it.

26The developments referred to in paragraph 25 above must be understood as covering, in essence, a twofold complaint, based either on the Board of Appeal having interpreted Article 28(1) of Regulation 2019/942, in the contested decision, in a manner contrary to the principle of effective judicial protection and to Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, and to the principle of equality before the law enshrined in Article 20 of the Charter (first complaint), or on an implied plea of illegality relating to Article 28(1) of Regulation 2019/942, on the ground that that provision is contrary to those same principles and articles of the Charter (second complaint).

27In response to a measure of organisation of procedure adopted on the basis of Articles 89 and 90 of the Rules of Procedure of the General Court, the applicant confirmed that the application contained such an implied plea of illegality in relation to Article 28(1) of Regulation 2019/942.

28Although ACER objected, in response to another measure of organisation of procedure, that the plea of illegality concerning Article 28(1) of Regulation 2019/942 had been raised out of time, in the applicant’s response to the measure of organisation of procedure addressed to it by the General Court, and should therefore be rejected as inadmissible, in accordance with the case-law deriving from paragraph 23 of the judgment of 15 May 2008, Spain v Council (C‑442/04, EU:C:2008:276), from paragraphs 38 and 39 of the judgment of 26 June 2008, Alferink and Others v Commission (T‑94/98, EU:T:2008:226), and from paragraphs 64 to 66 of the judgment of 24 September 2008, Reliance Industries v Council and Commission (T‑45/06, EU:T:2008:398), it must be stated that the two complaints referred to in paragraph 26 above were sufficiently clear from paragraphs 138 to 151 of the application. The objection raised by ACER must therefore be rejected, and the two complaints examined on their merits.

29As a preliminary remark, it should be observed that, as acknowledged by the parties in their pleadings and by the Board of Appeal in paragraphs 42 and 52 of the contested decision, the initial decision, although adopted in the form of a decision individually addressed to the TSOs of the region comprising Belgium, the Czech Republic, Germany, France, Croatia, Luxembourg, Hungary, the Netherlands, Austria, Poland, Romania, Slovenia and Slovakia (‘the CORE region’), is a regulatory act which directly concerns the applicant and does not entail implementing measures, for the purposes of the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, so that, in relation to that decision, the applicant falls within the category of natural or legal persons concerned by the third situation envisaged by the fourth paragraph of Article 263 TFEU.

30That being so, it is necessary to determine whether, as the applicant submits as part of the first complaint, Article 28(1) of Regulation 2019/942 should have been interpreted by the Board of Appeal, in the contested decision, as conferring standing on the applicant to bring an appeal against the initial decision before that board, in order to ensure that that provision complies with the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, and with the principle of equality before the law enshrined in Article 20 of the Charter.

31According to the case-law, an interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. Thus, where the meaning of such a provision is absolutely plain from its very wording, the EU judicature cannot depart from that interpretation (see judgment of 23 November 2023, Ministarstvo financija, C‑682/22, EU:C:2023:920, paragraph 31 and the case-law cited). According to settled case-law, in interpreting a provision of EU law, where its wording does not expressly delimit the provision’s scope, account must be taken of the context of the provision and the objectives pursued by the rules of which it forms part (see judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 34 and the case-law cited).

32Under Article 28(1) of Regulation 2019/942, which concerns ‘[ACER] decisions subject to appeal’, ‘any natural or legal person, including the regulatory authorities, may appeal against [an ACER] decision referred to in point (d) of Article 2 [of that regulation] which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person’.

33In the present case, it is common ground that the initial decision, by which ACER made a determination concerning amendments to the methodology at issue that had been proposed by the TSOs of the CORE region, pursuant to Article 5(2)(b) of Regulation 2019/942, is an ACER decision as referred to in point (d) of Article 2 of that regulation.

34It is apparent from the clear and precise wording of Article 28(1) of Regulation 2019/942 that the applicant, as a legal person who is not an addressee of the initial decision, which was addressed, as is apparent from Article 2 thereof, to the TSOs of the CORE region, may bring an action against that decision only if it concerns the applicant not only directly, but also individually.

35While it is true that the condition of individual concern thus imposed by Article 28(1) of Regulation 2019/942 must be interpreted in the light of the general principles of EU law, as guaranteed by the Charter, such an interpretation cannot set aside that condition, which is expressly laid down by the regulation, without resulting in an interpretation that is contra legem.

36In that regard, it must be stated that, according to settled case-law, recourse to a broad interpretation is possible only in so far as it is compatible with the wording of the provision at issue and that even the principle of interpretation in conformity with a rule of superior binding force cannot serve as the basis for an interpretation that is contra legem (see order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 30 and the case-law cited; see also, by analogy, judgments of 19 September 2019, Rayonna prokuratura Lom, C‑467/18, EU:C:2019:765, paragraph 61, and of 5 October 2020, Brown v Commission, T‑18/19, EU:T:2020:465, paragraph 111).

37Accordingly, it must be held that, in the contested decision, the Board of Appeal was justified in not interpreting Article 28(1) of Regulation 2019/942 as permitting the applicant, as a legal person within the meaning of that provision, to bring an appeal against the initial decision before that board without having to establish that that decision concerns the applicant not only directly but also individually.

38The first complaint must therefore be rejected as unfounded.

39It is appropriate to continue by examining the merits of the second complaint, which corresponds to the implied plea of illegality referred to in paragraph 26 above.

40In that regard, it should be borne in mind that, according to a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity (judgments of 4 October 2001, Italy v Commission, C‑403/99, EU:C:2001:507, paragraph 37, and of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 47). Likewise, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 47; see also, to that effect, judgment of 22 September 1988, Saarland and Others, 187/87, EU:C:1988:439, paragraph 19 and the case-law cited).

41In the present case, it should be noted that, in their responses to the measures of organisation of procedure addressed to them by the General Court, ACER argued, as an alternative submission, and the European Parliament, the Council of the European Union and the European Commission argued, as a principal submission, in essence, that Article 28(1) of Regulation 2019/942 is not contrary to the principle of effective judicial protection or to Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU, or to the principle of equality before the law enshrined in Article 20 of the Charter, because, in circumstances such as those of the present case, it does not preclude natural or legal persons who are not the addressees of an ACER act of general application not entailing implementing measures and who are directly but not individually concerned by that act, or in other words the category of natural or legal persons corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, from bringing an action for annulment of that act directly before the General Court.

42Since the initial decision is, in relation to the applicant, a regulatory act which is of direct concern to it and does not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon (see paragraph 29 above), the applicant belongs to the category of natural or legal persons corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, who, like the other two categories of natural or legal persons corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, namely natural or legal persons to whom the act is addressed or who are directly and individually concerned by it, may bring an action against that act before the EU judicature, under the conditions set out in the first and second paragraphs of Article 263 TFEU.

43However, the fifth paragraph of Article 263 TFEU provides that acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of those bodies, offices or agencies intended to produce legal effects in relation to them.

44On a proposal from the Commission, the EU legislature provided, in Articles 28 and 29 of Regulation 2019/942, read in the light of recital 34 of that regulation, that natural or legal persons who are the addressees of ACER acts or are individually and directly concerned by such acts must, for reasons of procedural economy, have a right to appeal to the Board of Appeal.

45In that context, and as is apparent from their responses to the measures of organisation of procedure addressed to them by the General Court, the Parliament, the Council and the Commission took the view that it would not be appropriate to include, among the natural or legal persons who, under Article 28(1) of Regulation 2019/942, may bring an action against an ACER decision referred to in point (d) of Article 2 of that regulation, natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, in so far as, as a general rule, the decisions adopted by ACER under point (d) of Article 2 of that Regulation were ‘individual decisions’, in respect of which an appeal lay to the Board of Appeal. If ACER were to adopt a regulatory act, as in the present case (see paragraph 29 above), the legal remedy provided for by the fourth paragraph of Article 263 TFEU would be directly available.

46In so far as the applicant submits, in that regard, that pursuant to Article 29 of Regulation 2019/942, it was unable to bring an action for annulment of the initial decision directly before the General Court on the basis of the third situation envisaged by the fourth paragraph of Article 263 TFEU, it must be observed that Article 29 of Regulation 2019/942 does provide that ‘actions for the annulment of a decision issued by ACER pursuant to [that regulation] … may be brought before the Court of Justice [of the European Union] only after the exhaustion of the [prior] appeal procedure referred to in Article 28 [of that regulation]’, and that that provision requires non-privileged parties to seek annulment of decisions adopted by the Board of Appeal before the General Court (see, to that effect, judgment of 16 March 2022, MEKH and FGSZ v ACER, T‑684/19 and T‑704/19, EU:T:2022:138, paragraphs 35 to 42).

47However, it should be stated that the judgment of 16 March 2022, MEKH and FGSZ v ACER (T‑684/19 and T‑704/19, EU:T:2022:138) must be interpreted in the light of its context and, in particular, the fact that the applicants in that case indisputably had standing to bring an appeal before the Board of Appeal, but, having regard to Articles 28 and 29 of Regulation 2019/942, were not entitled to challenge the legality of initial decisions of ACER before the General Court.

48In that regard, in so far as, for the reasons set out in paragraph 45 above, the EU legislature did not subject the category of natural or legal persons to which the applicant belongs to the prior appeal procedure referred to in Article 28 of Regulation 2019/942, the requirement for that procedure to have been exhausted, laid down by Article 29 of that regulation, cannot be interpreted as applying to that category. It follows that natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, do not fall within the scope of the mandatory prior appeal procedure established by Articles 28 and 29 of Regulation 2019/942 and must, unlike those falling within the other two categories referred to in Article 28(1) of that regulation, bring their actions against the ACER acts in question directly before the General Court, as provided in relation to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.

49As the Parliament, the Council and the Commission observe in their responses to the measures of organisation of procedure, Regulation 2019/942 cannot be interpreted as meaning that the EU legislature intended to make all acts adopted by ACER subject to review by the Board of Appeal, given that the material scope of Article 28 of that regulation is limited to the individual decisions referred to in point (d) of Article 2 of that regulation. Moreover, the EU legislature has taken the same ‘hybrid’ approach when setting up the appeal bodies of several other agencies, as is apparent from the regulations establishing the appeal bodies of the European Chemicals Agency (ECHA), the European Banking Authority (EBA), the Single Resolution Board (SRB), the European Aviation Safety Agency (EASA), the European Securities and Markets Authority (ESMA) and the European Insurance and Occupational Pensions Authority (EIOPA). In that regard, it should be noted that, in their responses to the measures of organisation of procedure, the Parliament, the Council and the Commission submit that it is irrelevant that there is no explicit reference, in Regulation 2019/942, to the possibility of bringing an action directly before the EU judicature where the admissibility conditions laid down by Article 28 of that regulation are not met – given that Article 263 TFEU did not need to be transposed into secondary EU law in order to be applicable, any such reference would have been purely declaratory.

50Furthermore, the interpretation endorsed in paragraph 48 above does not contradict paragraph 57 of the judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182), in which the Court of Justice ruled that ‘[the] review bodies [of EU agencies] are an appropriate means of protecting the rights of the parties concerned’, since that observation does not imply that the review conducted by the Board of Appeal of ACER represents the only appropriate means of protecting, with regard to ACER decisions, the rights of natural or legal persons who cannot bring an appeal before that board pursuant to Article 28 of Regulation 2019/942.

51Nor is that interpretation inconsistent with recital 34 of Regulation 2019/942, which states that ‘where ACER has decision-making powers, interested parties should, for reasons of procedural economy, be granted a right of appeal to a Board of Appeal’. That recital must be read in conjunction with Articles 28 and 29 of Regulation 2019/942 and the case-law cited in paragraph 50 above, from which it follows that the Board of Appeal represents an appropriate means of protecting the rights of parties affected by ACER acts in so far as they satisfy the admissibility conditions set out in that regulation. However, neither recital 34 of Regulation 2019/942 nor that case-law can be interpreted as meaning that an action brought directly before the EU judicature, pursuant to Article 263 TFEU, by a natural or legal person who is not entitled to bring an appeal before the Board of Appeal pursuant to Article 28 of that regulation, is not an appropriate means of reviewing, at first instance, the legality of ACER acts.

52While, as ACER, the Parliament, the Council and the Commission stated either at the hearing, in reply to oral questions from the Court, or in their responses to the measures of organisation of procedure addressed to them by the Court, the fifth paragraph of Article 263 TFEU confers on the EU legislature a discretion to determine the specific conditions and arrangements concerning actions brought by natural or legal persons against acts of an EU body, office or agency intended to produce legal effects in relation to them, that discretion may only ever be exercised in compliance with primary law and, in particular, with the general principles of EU law.

53It is therefore necessary to consider, in the first place, whether, as the applicant submits, the difference in treatment established by Article 28(1) of Regulation 2019/942 between the category of natural or legal persons corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, and the other categories of natural or legal persons corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, as regards the ability to bring an appeal before the Board of Appeal, is incompatible with the principle of equality before the law enshrined in Article 20 of the Charter.

54In that regard, it should be observed that, according to settled case-law, equality before the law, set out in Article 20 of the Charter, is a general principle of EU law which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified (see judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 57 and the case-law cited).

55The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. If the situations are not comparable, a difference in the treatment of the situations concerned is not in breach of equality before the law as enshrined in Article 20 of the Charter (see judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 58 and the case-law cited).

56In the present case, it is necessary to assess whether, having regard to the subject matter and purpose of ACER’s internal appeal system, established by Articles 28 and 29 of Regulation 2019/942, the situation of a natural or legal person falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, who wishes to bring an action for annulment of an ACER decision under that regulation, is comparable to that of a natural or legal person falling within the other categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, who also wishes to bring such an action.

57As a preliminary remark, it should be stated that, as the EU judicature has confirmed, in so far as the EU legislature intended to provide the Board of Appeal with the necessary expertise to allow it to carry out assessments of complex technical and economic facts relating to energy, that board may not confine itself to conducting a limited review of ACER decisions. On the contrary, relying on the scientific expertise of its members, it must examine whether the arguments put forward by the appellant are capable of demonstrating that the considerations on which the ACER decision is based are vitiated by errors (see, to that effect, judgments of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 53 to 72, and of 18 November 2020, Aquind v ACER, T‑735/18, EU:T:2020:542, paragraphs 45 to 71).

58In that context, the EU judicature has stated that the creation of the Board of Appeal forms part of an overall approach, adopted by the EU legislature, to provide the EU agencies with review bodies where they have been given decision-making powers on complex technical or scientific issues capable of directly affecting the legal situation of the parties concerned. Those review bodies are an appropriate means of protecting the rights of the parties concerned in a context in which, according to settled case-law, where the authorities of the European Union have a broad discretion, in particular in relation to highly complex scientific and technical facts, to determine the nature and scope of the measures which they adopt, review by the EU judicature must be limited to verifying whether there has been a manifest error of appraisal or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion (judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraphs 56 and 57; see also judgment of 7 March 2013, Bilbaína de Alquitranes and Others v ECHA, T‑93/10, EU:T:2013:106, paragraph 76 and the case-law cited).

59It must therefore be held that, by not allowing natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by Article 263 TFEU, in the version resulting from the Treaty of Lisbon, to bring an appeal before the Board of Appeal, Article 28(1) of Regulation 2019/942 establishes a difference in treatment in so far as those persons will be able to benefit only from the limited review of ACER decisions conducted by the General Court as regards complex scientific, technical or economic assessments relating to energy, whereas natural or legal persons falling within the categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU are able to benefit from the full review conducted by the Board of Appeal as regards those scientific, technical or economic assessments.

60As ACER, the Parliament, the Council and the Commission contended, in essence, in their responses to the measures of organisation of procedure addressed to them by the General Court, that difference in treatment as regards the availability of the full review conducted by the Board of Appeal is nevertheless justified by the closer or more distant link between the different categories of natural or legal persons concerned and the ACER decisions. While the natural or legal persons falling within the categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, are distinguished individually by those decisions, in that they are the addressees of those decisions or are in a position analogous to that of an addressee, in terms of the effect of the decision on them, by reason of certain attributes which are peculiar to them or factual circumstances which differentiate them from all other persons (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 93), that is not true of natural or legal persons falling within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU.

61Thus, that difference in treatment, based on the objective criteria established by Article 28 of Regulation 2019/942, is justified, because it relates to a legally permitted aim pursued by the legislation in question, and is proportionate to the aim pursued by the treatment in question (see, to that effect, judgments of 5 July 1977, Bela-Mühle Bergmann, 114/76, EU:C:1977:116, paragraph 7, and of 16 December 2008, Arcelor Atlantique et Lorraine and Others., C‑127/07, EU:C:2008:728, paragraph 47).

62The use of the objective criteria laid down by the EU legislature in Article 28 of Regulation 2019/942 relates to the aim pursued by that provision, which is to establish a system of administrative remedies for specific categories of ACER acts and for natural or legal persons closely linked to those acts.

63Given that their link with ‘individual decisions’ of ACER is more distant, by comparison with natural or legal persons falling within the categories corresponding to the first and second situations envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, it is justified and appropriate that natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU may obtain only a limited review of those decisions before the General Court, it being noted that, unlike persons falling within the other two categories, those persons are not subject either to the obligation, imposed by Article 29 of Regulation 2019/942, to exhaust the prior appeal procedure referred to in Article 28 of that regulation (see paragraph 47 above), or to the procedure for prior determination as to whether appeals should be allowed to proceed, provided for in Article 58a of the Statute of the Court of Justice of the European Union.

64According to the case-law, for the EU legislature to be accused of breaching the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons reads ‘p. 652’.to disadvantages as opposed to others (judgments of 13 July 1962, Klöckner-Werke and Hoesch v High Authority, 17/61 and 20/61, EU:C:1962:30, p. 345, and of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 39).

65In that regard, the direct review conducted by the General Court cannot be regarded as being disadvantageous to natural or legal persons who are not, in relation to an ACER act, in one of the situations referred to in Article 28 of Regulation 2019/942.

66The fact that the examination of an ACER act by the Board of Appeal has been regarded as an appropriate means of protecting the rights of natural or legal persons who are closely linked to that act, in a context in which the authorities of the European Union have a broad discretion, in particular in relation to highly complex scientific and technical facts, to determine the nature and scope of the measures which they adopt (see, to that effect, judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraph 57), cannot be interpreted as meaning that an action brought directly before the General Court, on the basis of the fourth paragraph of Article 263 TFEU, cannot also be regarded as an appropriate means of protecting the rights of natural or legal persons who are more distantly linked to that act.

67It follows that, in Article 28(1) of Regulation 2019/942, the EU legislature has established a justified difference in treatment between natural or legal persons who are not in an identical or comparable situation with regard to ACER decisions and thus are not required to be subject to the same specific conditions or arrangements with regard to the remedies available to them against those decisions, such that the difference in treatment cannot be regarded as infringing the principle of equality before the law enshrined in Article 20 of the Charter.

68In the second place, it is necessary to consider whether, as the applicant submits, the fact that natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, are unable to bring an appeal before the Board of Appeal, infringes the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU.

69Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. It is apparent from the case-law of the Court of Justice and the European Court of Human Rights that the right of access to a court is not an absolute right and that, consequently, it may involve proportionate restrictions that pursue a legitimate aim and do not adversely affect the very essence of that right (see order of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 31 and the case-law cited). In accordance with Article 52(1) of the Charter, a limitation on the right to an effective remedy can be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraph 160, and of 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 49).

70In the present case, as has already been stated (see paragraphs 47 and 67 above), it follows from a combined reading of the fourth paragraph of Article 263 TFEU and Articles 28 and 29 of Regulation 2019/942, interpreted in the light of the general principle of interpretation stated in paragraph 40 above, that natural or legal persons who, like the applicant, fall within the category corresponding to the third situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon, may bring an action against an ACER decision directly before the General Court.

71In that regard, it should be stated that, in so far as the possibility of bringing an action for annulment before the General Court remains open, it cannot be held that the EU legislature infringed the right to effective judicial protection by adopting Articles 28 and 29 of Regulation 2019/942.

72It is true, as was emphasised by the Board of Appeal in paragraph 57 of the contested decision, and by the applicant at the hearing, that the specific conditions and arrangements for appeals before the Board of Appeal put in place by the EU legislature in Articles 28 and 29 of Regulation 2019/942 create some unwelcome procedural complications. First, they could lead to parallel proceedings being brought before the Board of Appeal and the General Court against the same ACER decision, either by the same natural or legal persons, in the event of uncertainty as to which of the categories referred to in the fourth paragraph of Article 263 TFEU is relevant, or by natural or legal persons falling within different categories under that provision, with all the complications inherent in the management of such proceedings (stays, dismissal, and so on). Second, by making the respective jurisdiction of the Board of Appeal and the General Court to hear proceedings brought by a natural or legal person who is not the addressee of an ACER act, but in relation to whom that act produces legal effects, and accordingly the procedure to be followed by that person in order to challenge that act, dependent on the complex legal question of whether or not that person is ‘individually concerned’ by that act, the application of those specific conditions and arrangements could give rise to numerous disputes before the Board of Appeal, the General Court and the Court of Justice.

73Nevertheless, first, the risk of parallel proceedings against the same ACER act exists independently of Articles 28 and 29 of Regulation 2019/942, since, as is apparent in particular from paragraph 31 of the judgment of 16 March 2022, MEKH and FGSZ v ACER (T‑684/19 and T‑704/19, EU:T:2022:138), privileged applicants have the right to bring an action for annulment of an ACER decision directly before the General Court. Second, the fact that the concept of ‘individual concern’ is complex is not specifically due to the system of administrative remedies established by Articles 28 and 29 of Regulation 2019/942.

74In any event, the fact remains that such procedural complications could not be a sufficient reason to hold that the system of remedies established is, in itself, contrary to the principle of effective judicial protection, as guaranteed by Article 47 of the Charter.

75Accordingly, Article 28(1) of Regulation 2019/942 cannot be regarded as infringing the principle of effective judicial protection and Article 47 of the Charter, as implemented by the fourth paragraph of Article 263 TFEU.

76Consequently, the plea of illegality must be dismissed as unfounded, and it follows that the second plea must be rejected in its entirety.

77It is therefore appropriate to continue by examining the merits of the first plea, alleging infringement of Article 28(1) of Regulation 2019/942.

The first plea, alleging infringement of Article 28(1) of Regulation 2019/942

78The applicant submits that the Board of Appeal infringed Article 28(1) of Regulation 2019/942, in the contested decision, by holding that the applicant did not have standing to bring an appeal against the initial decision before it, whereas the applicant was directly and individually concerned by that decision.

79The applicant submits that, in paragraph 41 et seq. of the contested decision, the Board of Appeal correctly held, in the light of the case-law, that it was directly concerned by the initial decision, which directly affected its legal position by temporarily preventing it from freely setting the prices of its bids on the balancing energy market, since bids exceeding the temporary price limit set by the initial decision could no longer be accepted by the TSOs of the CORE region via the European platforms PICASSO and MARI.

80By contrast, according to the applicant, the Board of Appeal erred in refusing to find, in the contested decision, that it was individually concerned by the initial decision, in accordance with the case-law principles established in the context of applying the fourth paragraph of Article 263 TFEU, as adapted to the objective of the procedure before the Board of Appeal – which, in accordance with recital 34 of Regulation 2019/942, is designed as a simplified mechanism for full review by the administrative body itself, in the interests of sound administration, that is open to the numerous parties that have an interest in the market regulation decisions adopted by ACER, such as the temporary price limit set by the initial decision. The applicant submits that that mechanism is a response to the concerns expressed by the Court of Justice as regards the delegation of individual decisions involving the exercise of a broad discretion to bodies and agencies.

81In the present case, it states, certain market participants, namely the TSOs, are tightly integrated into the decision-making process and designated as the sole addressees of acts which, as a matter of form, are undoubtedly individual decisions within the meaning of the second sentence of the fourth paragraph of Article 288 TFEU, but which, in practice, are regulatory in scope, which demands that a full review of those acts is available to the other market participants affected by them, so that they can defend their interests, which may be opposed to those of the TSOs.

82To address that situation, the applicant submits that Article 28(1) of Regulation 2019/942 must be interpreted in a manner consistent with Article 5(8) of Regulation 2017/2195, which gives any party, including market participants, a right to make a complaint to the NRAs in relation to decisions of the TSOs. The applicant argues that ACER’s proposed interpretation of Article 28 of Regulation 2019/942 is not only ‘unsatisfactory’, as the Board of Appeal found in paragraph 57 of the contested decision, but also contrary to the principles of effective judicial protection and non-discrimination, and to the objective of the mechanism put in place by that article, which is to relieve the burden on the Courts of the European Union.

83First, the applicant states that it actively participated in the procedure leading to the adoption of the initial decision, which, according to the case-law, constitutes a relevant factor, among others, in determining whether an applicant is individually concerned. In the present case, it states, it actively participated in the public consultation launched by the ENTSO for electricity, under Article 10 of Regulation 2017/2195, prior to the submission to ACER of the TSOs’ proposal, by submitting to the ENTSO for electricity its view of 30 July 2021. It also actively participated in the public consultation on that proposal that was conducted by ACER, by submitting its comments to ACER on 10 November 2021. Under Article 10(6) of Regulation 2017/2195, the TSOs and, ultimately, ACER should have followed its view of 30 July 2021 or explained in their proposal exactly why they were departing from it.

84Second, the applicant states that it is individually concerned by the initial decision, in a manner analogous to the TSOs to which that decision is addressed, if not to a greater extent, in that, in accordance with the case-law, that decision substantially and adversely affects its competitive position on the market for the supply of balancing energy, by artificially lowering the price at which it can sell such electricity to the TSOs, which are the only buyers, in such a way that it is temporarily prevented from benefiting from a market price that should be higher (to cover the high opportunity cost of the bids) or from competing on price in respect of such electricity. The applicant submits that, like some other balancing energy suppliers that have obtained prequalification for facilities with high marginal variable costs, it is a principal target of the initial decision and is harmed by it, while the TSOs to whom it was addressed are favoured by it.

85Thus, from a practical point of view, the applicant submits that it was one of the principal addressees of the initial decision, which infringed its freedom to conduct a business by preventing it from selling balancing energy at a price covering not only the variable costs of its power stations, but also the significant investments made in order to ensure that they remain operationally available on the balancing energy market, despite the fact that they are unlikely to be activated because they have high marginal variable costs and are therefore at the bottom of the merit order.

86The applicant submits that, as envisaged by the case-law, the substantial effect on its market position results, in the present case, from a loss of profit, which is the consequence, as far as the applicant is concerned, of the initial decision, regardless of whether other competitors may be affected in a similar way. In that regard, the applicant relies, in particular, on circumstances relating to two power stations which it operates in Audorf and Itzehoe, Germany, emphasising that it has made significant investments in order to keep those power stations in working condition and operationally available on the balancing energy market. Furthermore, according to the applicant, the initial decision affects it in a specific way as a supplier of balancing energy operating in Germany, which is to say in one of the few control areas already connected to the European platforms PICASSO and MARI, having succeeded, after a long and costly procedure, in obtaining prequalification for facilities for the supply of balancing energy, and now finding itself prevented from submitting bids which, having regard to the high marginal variable costs of the facilities in question, might justifiably have been far in excess of EUR 15 000/MWh.

87The applicant submits that, in the contested decision, the Board of Appeal proceeded on the erroneous basis that the applicant was required to demonstrate that it was affected in a qualitatively different way from all other participants in the balancing energy market. That requirement does not follow from the principles established by the case-law on the application of the fourth paragraph of Article 263 TFEU, nor is it justified by the objective of the procedure before the Board of Appeal, as described in paragraph 80 above.

88Third, the applicant submits that it is distinguished individually by the initial decision in the same way as the TSOs to which it is addressed, in so far as that decision infringed the procedural guarantees which EU law affords the applicant in relation to its adoption, within the meaning of the case-law. From the moment it substituted itself for the TSOs of the CORE region by amending their proposal, ACER should also have complied with the right of consultation provided for in Article 10 of Regulation 2017/2195. In the present case, by participating in the public consultation launched by the ENTSO for electricity pursuant to that article, prior to the submission to ACER of the TSOs’ proposal, and then in the consultation procedure conducted by ACER, the applicant demonstrated an intention to defend its rights and interests in connection with the amendment of the methodology at issue. In the reply, the applicant adds that ACER failed to observe the applicant’s right to be heard before the adoption of the decision, as guaranteed by Article 14(6) of Regulation 2019/942.

89ACER disputes the applicant’s arguments and contends that the first plea should be rejected.

90As a preliminary remark, it should be observed that the reference to ‘specific conditions and arrangements’ in the fifth paragraph of Article 263 TFEU must be interpreted as concerning only the drawing up, by an institution, body, office or agency of the European Union, of purely internal terms and conditions which are prerequisites to legal proceedings, governing, inter alia, the operation of a self-monitoring mechanism or the course of an out-of-court settlement with a view to avoiding litigation before the Courts of the European Union (see, to that effect, order of 12 September 2013, European Dynamics Luxembourg and Others v OHIM, T‑556/11, EU:T:2013:514, paragraph 60, and judgment of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 107). Those specific conditions and arrangements must therefore remain entirely consistent with the general scheme laid down in Article 263 TFEU so far as concerns the jurisdiction of the EU judicature to hear proceedings assigned to it (see, to that effect, judgments of 4 February 2016, Italian International Film v EACEA, T‑676/13, EU:T:2016:62, paragraph 27; of 8 June 2016, Monster Energy v EUIPO (Representation of a peace symbol), T‑583/15, EU:T:2016:338, paragraph 43; and of 8 June 2016 Monster Energy v EUIPO (GREEN BEANS), T‑585/15, not published, EU:T:2016:339, paragraph 41).

91It follows that, where the same admissibility conditions are found in both the general scheme laid down in Article 263 TFEU and the specific conditions and arrangements adopted pursuant to the fifth paragraph of Article 263 TFEU, those conditions must, in principle, be interpreted in the same way. Thus, in order to determine whether the applicant was individually concerned by the contested act, namely the initial decision, for the purposes of Article 28(1) of Regulation 2019/942, reference must be made to the case-law relating to the second situation envisaged by the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.

92As regards the condition of individual concern under the fourth paragraph of Article 263 TFEU, it should be observed that natural or legal persons other than those to whom an act is addressed may claim to be individually concerned by that act only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (judgment of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107).

93Furthermore, the case-law based on the fourth paragraph of Article 263 TFEU establishes a principle that it is for the applicant, being a natural or legal person who is not the addressee of the contested measure, to rely on and substantiate, in support of its action, the attributes peculiar to it or the factual circumstances which differentiate it from any other person and distinguish it individually just as in the case of the person addressed (see, to that effect, orders of 28 September 2011, UCAPT v Council, T‑96/09, not published, EU:T:2011:542, paragraph 47, and of 6 May 2020, Sabo and Others v Parliament and Council, T‑141/19, not published, EU:T:2020:179, paragraph 32). In that regard, Article 15(1)(d) of the Rules of Procedure of the Board of Appeal makes clear that it is for the appellant to establish that it is directly and individually concerned by the ACER decision, in accordance with Article 28(1) of Regulation 2019/942.

94In the present case, as is apparent from the description of its arguments given in paragraph 45 of the contested decision, a description which it does not contest in the present action, read in conjunction with paragraphs 99 to 110 of its statement of the grounds of the appeal before the Board of Appeal, of 28 April 2022, the applicant claimed, before the Board of Appeal, to be individually concerned by the initial decision on the basis that it substantially affected its competitive position on the German market for balancing energy, on which it was one of the largest active suppliers. It stated that it actively defends its interests on that market and, in particular, had participated in the consultation procedure on the TSOs’ proposal and responded to ACER’s questions. It also stated that it is particularly affected by the initial decision, in that several of its prequalified facilities have high marginal variable costs. That decision, it submitted, affects a predetermined group of economic actors, including itself, consisting of suppliers of balancing energy which have successfully obtained prequalification for facilities for the supply of balancing energy, or which are in the process of obtaining prequalification for their facilities.

95In paragraphs 46 to 50 of the contested decision, the Board of Appeal examined the ‘attributes’ or ‘factual circumstances’ thus relied on by the applicant and found that they were not sufficient to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).

96In the present action, the applicant complains, in essence, that the Board of Appeal did not find, in the contested decision, that it was individually concerned by the initial decision by reason of attributes which were peculiar to it and differentiated it from any other person.

97First, the applicant relies on its active participation in the public consultation launched by the ENTSO for electricity, pursuant to Article 10 of Regulation 2017/2195, prior to the submission to ACER of the TSOs’ proposal, through the submission of its view of 30 July 2021, and in the public consultation on that proposal conducted by ACER, through the submission of its comments of 10 November 2021, and submits that, under Article 10(6) of Regulation 2017/2195, the TSOs and, ultimately, ACER should have followed its view of 30 July 2021 or explained in their proposal exactly why they were departing from it.

98Second, the applicant argues that the initial decision substantially and adversely affected its competitive position on the German market for the supply of balancing energy. The initial decision constitutes interference in that market, it submits, in that it prevents free price formation, reduces the scope for price competition, and prevents the small number of balancing energy suppliers which operate in one of the few control areas already connected to the European platforms PICASSO and MARI and have obtained prequalification for facilities with high marginal variable costs, in which they have made significant investments, and which are therefore exposed to a high opportunity cost due to their position at the bottom of the merit order, from recovering their costs.

99Third, the applicant alleges a breach of the procedural guarantees afforded to it by EU law in connection with the adoption of the initial decision, within the meaning of the case-law, in that ACER did not observe the applicant’s right to be consulted under Article 10(1) of Regulation 2017/2195 or its right to be heard before adoption of the decision, guaranteed by Article 14(6) of Regulation 2019/942.

100In its pleadings, ACER supports the Board of Appeal’s position that the ‘attributes’ or ‘factual circumstances’ relied on by the applicant before the General Court are not sufficient to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107) (see paragraph 95 above).

101As regards the ‘attributes’ or ‘factual circumstances’ which were relied on by the applicant before the Board of Appeal and examined by the board in the contested decision, namely the fact that it was active on the German market for balancing energy and the fact that it was one of the largest suppliers on that market, and which it has developed in the present action by submitting that its position on that market was substantially affected by the initial decision (see paragraphs 84 to 87, 94 and 98 above), the applicant refers to the case-law of the EU judicature on State aid and concentrations.

102In that regard, it is true that, according to the case-law, in addition to the undertaking which is the beneficiary of the aid measure which is the subject of the contested decision, competing undertakings have been recognised as individually concerned by a Commission decision terminating a formal investigation procedure in the field of State aid where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid measure (see judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 33 and the case-law cited). In that context, an undertaking cannot rely solely on its status as a competitor of the undertaking which is the beneficiary of the aid measure but must additionally show that its circumstances distinguish it in a similar way to the beneficiary (judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 48).

103Furthermore, it is apparent from the case-law in the field of concentrations that, in the case of a decision finding a concentration to be compatible with the internal market, and with regard to an undertaking which is not a party to that concentration, whether that undertaking is individually concerned must be determined on the basis, first, of its participation in the administrative procedure and, second, of the effect on its market position. In order to accept, in that context, that an applicant’s market position is affected, the EU judicature takes account of the fact that that applicant is one of the main competitors of the parties to the concentration, which are the beneficiaries of the decision authorising that concentration (see, to that effect, judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 37; of 20 December 2023, Mainova v Commission, T‑64/21, not published, under appeal, EU:T:2023:843, paragraph 85; and of 20 December 2023, enercity v Commission, T‑65/21, not published, under appeal, EU:T:2023:844, paragraph 83), or the fact that, although it is merely a competitor of those parties, the concentration has a specifically identified potential impact on its economic situation, such as a reduction in the value of significant investments made and calculated over the long term, in the light of the pre-existing market structure (see, to that effect, judgments of 17 May 2023, EVH v Commission, T‑312/20, under appeal, EU:T:2023:252, paragraphs 42 and 46; of 17 May 2023, TEAG v Commission, T‑315/20, not published, under appeal, EU:T:2023:259, paragraphs 42 and 46; and of 17 May 2023, GGEW v Commission, T‑319/20, not published, under appeal, EU:T:2023:263, paragraphs 42 and 46), or the fact that it is a potential competitor of the parties to the concentration in the case of an oligopolistic market, or, in certain circumstances, the fact that it is present on neighbouring markets upstream or downstream of a market on which an undertaking holding a monopoly sees its position strengthened by the concentration (see, to that effect, judgment of 30 September 2003, ARD v Commission, T‑158/00, EU:T:2003:246, paragraph 78).

104However, the case-law cited in paragraphs 102 and 103 above is based, at least in part, on the existence of an actual or potential competitive relationship between the beneficiaries of the contested decision, on the market concerned by that decision, and the applicant, whose position on that market or on neighbouring markets, upstream or downstream, is, in a specifically identified way, adversely and, as the case may be, substantially affected by that decision.

105In the present case, the applicant does not claim, let alone demonstrate, that some of its competitors, on the German market for balancing energy on which it operates and to which the initial decision relates, benefit from that decision on that market. On the contrary, in the arguments it has presented it goes no further than to assert a general impact of the initial decision on the German market for balancing energy, adversely affecting all balancing energy suppliers which, like the applicant, operate on that market as well as on the Czech and Austrian markets.

106Even supposing that, as one of the largest suppliers on the German market for balancing energy, the applicant suffered a greater adverse economic effect than some of its competitors on that market, that would not be sufficient to distinguish it individually under the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107). It is settled case-law that it is not sufficient that certain operators may be more affected economically by an act than their competitors for them to be considered to be individually concerned by it. Thus, even assuming that a decision has a particular impact on the economic situation of the applicant, that fact is not sufficient to differentiate it from any other person (orders of 2 April 2004, Gonnelli and AIFO v Commission, T‑231/02, EU:T:2004:105, paragraph 45; of 12 March 2007, Confcooperative, Unione regionale della Cooperazione Friuli-Venezia Giulia Federagricole and Others v Commission, T‑418/04, not published, EU:T:2007:83, paragraph 57; and of 13 November 2008, Lemaître Sécurité v Commission, T‑301/06, not published, EU:T:2008:495, paragraph 24).

107Moreover, the fact that the initial decision concerned a relatively small and stable number of balancing energy suppliers which, like the applicant, had succeeded in obtaining prequalification for facilities for the supply of balancing energy and were active on the German market for balancing energy, as well as the Czech and Austrian markets, is also not sufficient to distinguish the applicant individually under the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107). It is also clear from settled case-law that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that those persons must be regarded as being individually concerned by that measure as long as it is applied by virtue of an objective legal or factual situation defined by the measure at issue (see judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 35 and the case-law cited; orders of 19 September 2022, TDK Foil Italy v Commission, T‑788/21, not published, EU:T:2022:581, paragraph 18, and of 7 December 2022, Sunrise Medical and Sunrise Medical Logistics v Commission, T‑721/21, not published, EU:T:2022:791, paragraph 53). In the present case, as the Board of Appeal observed, in essence, in paragraph 50 of the contested decision, the initial decision concerns all suppliers of balancing energy in the same way, in that it applies to all market participants wishing to exchange balancing energy, in Germany, but also in the Czech Republic and Austria, on the European platforms PICASSO and MARI.

108Furthermore, the applicant does not claim, let alone demonstrate, that it is in an actual or potential competitive relationship with the addressees and, in its view, the true beneficiaries of the initial decision on the German market for balancing energy, namely the TSOs to which that decision relates.

109Last, as regards the investments made by the applicant in the Audorf and Itzehoe power stations that it operates in Germany, in order to keep them in working condition and operationally available on the market for balancing energy (see paragraph 86 above), it is, admittedly, apparent from the case-law that a reduction in the value of significant investments made and calculated over the long term, in the light of the pre-existing market structure, has been taken into account in determining whether an applicant is individually concerned by a decision (judgments of 17 May 2023, EVH v Commission, T‑312/20, under appeal, EU:T:2023:252, paragraphs 42 and 46; of 17 May 2023, TEAG v Commission, T‑315/20, not published, under appeal, EU:T:2023:259, paragraphs 42 and 46; and of 17 May 2023, GGEW v Commission, T‑319/20, not published, under appeal, EU:T:2023:263, paragraphs 42 and 46). However, in the present case, even supposing that the specific investments referred to by the applicant were ‘devalued’ by the initial decision, in that that decision affected their depreciation, the applicant has not provided sufficient information to justify a finding that its competitive position on the balancing energy market was substantially affected as a result. In particular, the applicant has not provided any information that would enable an assessment to be made of the relative importance of the two power stations at issue in its total production, in terms of value or volume, of balancing energy in Germany.

110In those circumstances, the applicant, which has not established that it was in an actual or potential competitive relationship with the beneficiaries of the initial decision on the German market for balancing energy, on which it operates and to which the initial decision relates, cannot usefully rely on the case-law cited in paragraphs 102 and 103 above in order to claim, as it does in the present case, that its position on that market was substantially affected by that decision.

111As regards the ‘attributes’ or ‘factual circumstances’ which were relied on by the applicant before the Board of Appeal, namely the fact that it was active on the German market for balancing energy and the fact that it was one of the largest suppliers on that market, and which it has developed in the present action by submitting that its position on that market was substantially affected by the initial decision, within the meaning of the case-law cited in paragraphs 102 and 103 above, it must therefore be held that the Board of Appeal was correct to hold, in paragraphs 46 to 50 of the contested decision, that those were not, in themselves, such as to distinguish the applicant individually, within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).

112As regards the ‘attributes’ or ‘factual circumstances’ that were not referred to, in the contested decision, as having been relied on by the applicant before the Board of Appeal, and which, accordingly, were not considered by that board in that decision, but which are relied on by the applicant in the present action (see paragraphs 83, 88, 97 and 99 above), the General Court invited the parties, by means of a measure of organisation of procedure, to indicate a position as to their admissibility.

113In that regard, the applicant claimed that, in paragraph 134 of its statement of the grounds of the appeal and in paragraph 31 et seq. of its response to a question of 22 August 2022 from the Board of Appeal, it relied on an infringement of its right to be consulted, under Article 10(6) of Regulation 2017/2195, in the administrative procedure leading to the adoption of the initial decision. The later reliance on an infringement of its right to be heard, guaranteed by Article 14(6) of Regulation 2019/942, is, it submits, merely an amplification of arguments already put forward before the Board of Appeal.

114ACER contended, with regard to whether the applicant was individually concerned, that, in paragraphs 94 to 101 of its statement of the grounds of the appeal, which concern that issue, the applicant had essentially relied on the fact that it was one of the largest suppliers operating on the German market for balancing energy, and that the applicant was therefore unable to raise, at a later stage and thus out of time, other ‘attributes’ or ‘factual circumstances’ that might distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107).

115In that regard, it must be stated that ‘attributes’ or ‘factual circumstances’ not relied on or demonstrated by the applicant before the Board of Appeal cannot be taken into account by the General Court in assessing the legality of the decision which is challenged. Under Article 29 of Regulation 2019/942, read in conjunction with Article 263 TFEU, the General Court is called upon to assess the legality of the decision of the Board of Appeal by reviewing the application of EU law made by that board, particularly in the light of facts which were submitted to the latter. By contrast, that Court cannot carry out such a review by taking into account matters of fact newly raised or produced before it (see, to that effect and by analogy, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 54, and of 15 April 2010, Schräder v CPVO, C‑38/09 P, EU:C:2010:196, paragraph 76).

116Furthermore, it follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court of Justice of the European Union and Article 76 and Article 84(1) of the Rules of Procedure, that the dispute is in principle determined and circumscribed by the parties and that the EU judicature may not rule ultra petita (see judgment of 17 September 2020, Alfamicro v Commission, C‑623/19 P, not published, EU:C:2020:734, paragraph 40 and the case-law cited; judgment of 22 December 2022, Parliament v Moi, C‑246/21 P, not published, EU:C:2022:1026, paragraph 55). Moreover, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, Article 120(c) and (d) of the Rules of Procedure of the Court of Justice and points (c) and (d) of the first paragraph of Article 76 of the Rules of Procedure, in direct actions before the Courts of the European Union, the application by which the action is brought must state, inter alia, the subject matter of the proceedings, a summary of the pleas in law relied on and the form of order sought by the applicant.

117In the present case, in paragraphs 94 to 101 of its statement of the grounds of the appeal, the applicant relied, in essence, in support of its claim to be individually concerned by the initial decision, which temporarily froze the price at which balancing energy could be sold to the TSOs, on the specific fact that it was one of the largest suppliers operating on the German market for balancing energy.

118In accordance with the case-law and with the wording of Article 15(1)(d) of the Rules of Procedure of the Board of Appeal, referred to in paragraph 93 above, that board was entitled, in the contested decision, to take into consideration only the specific circumstance that the applicant had duly raised before it, as being such as to distinguish it individually within the meaning of the case-law originating from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), and was not obliged to examine whether other ‘attributes’ or ‘factual circumstances’ capable of distinguishing the applicant individually could be deduced from the statement of the grounds of the appeal, the annexes thereto or the supplementary observations, or, more generally, from the case file.

119Even supposing that the Board of Appeal had unlawfully failed to take account, in the contested decision, of all the ‘attributes’ or ‘factual circumstances’ relied on before it by the applicant, it would have been for the applicant to object to that failure, by raising a plea to that effect which satisfied the requirements of clarity and precision laid down in Article 76(d) of the Rules of Procedure (see paragraph 116 above).

120Failure to rule on a head of claim may result in the annulment, at least in part, of a decision adopted by an independent Board of Appeal of one of the bodies, offices or agencies of the European Union referred to in Article 58a of the Statute of the Court of Justice of the European Union (see, to that effect and by analogy, judgment of 8 June 2016, GREEN BEANS, T‑585/15, not published, EU:T:2016:339, paragraph 27 and the case-law cited).

121While it is true that, in paragraphs 89 to 92 and 117 to 120 of the application, the applicant refers, as circumstances capable of distinguishing it individually within the meaning of the case-law originating from the judgment in Plaumann v Commission (25/62, EU:C:1963:17, p. 107), to its active participation in the administrative procedure that preceded the adoption of the initial decision, and to infringement of its right to be consulted prior to the adoption of that decision, under Article 10(1) of Regulation 2017/2195, it has not clearly and specifically raised, in that regard, a plea seeking annulment of the contested decision on the ground that, in that decision, the Board of Appeal unlawfully failed to rule on those ‘attributes’ or ‘factual circumstances’, which had been duly relied on before it.

122Consequently, the applicant is not entitled to rely, in the present action, on ‘attributes’ or ‘ factual circumstances’ which were not referred to in the contested decision as having been relied on by it before the Board of Appeal, and which, accordingly, were not examined by that board in that decision (see paragraphs 83, 88, 97 and 99 above).

123The first plea must therefore be dismissed as unfounded, with the result that the principal claim, seeking annulment of the contested decision, has no basis and must itself be dismissed as unfounded. It is therefore appropriate to continue by examining the alternative claim.

The alternative claim, seeking annulment of the initial decision

124In support of the alternative claim, the applicant puts forward six pleas in law alleging, in essence, first, that ACER had no power to adopt an initial decision diverging from the TSOs’ proposal, second, that ACER infringed the obligation, laid down by Article 10 of Regulation 2017/2195, to consult stakeholders before adopting a new methodology, third, that there was no legal basis for the adoption of the initial decision, fourth, an inadequate statement of reasons, fifth, a failure to comply with the objectives pursued by Regulation 2017/2195, and sixth, an infringement of the principle of proportionality.

125ACER submits that the alternative claim, which was made on 17 February 2023, is manifestly inadmissible for failure to comply with the time limit of two months and ten days for bringing an action for annulment of the initial decision, as laid down in the sixth paragraph of Article 263 TFEU, read in conjunction with Article 60 of the Rules of Procedure, which would have run, at the latest, from the date on which the applicant lodged its appeal with the Board of Appeal, namely 28 April 2022. There is no excusable error that can legitimately be relied on by the applicant, bearing in mind that the information on remedies contained in the initial decision was expressly addressed to the addressees of that decision and that, on a proper interpretation of the wording of Article 29 of Regulation 2019/942, that provision did not prejudice the applicant’s right to bring an action for annulment of that decision directly before the General Court on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. In any event, the alternative claim should be dismissed as unfounded.

126The applicant submits that the alternative claim meets the admissibility conditions for an action for annulment of a decision taken by an EU body, in this case ACER, brought pursuant to the fourth paragraph of Article 263 TFEU. According to the applicant, such an action is not subject to the requirement that the appeal procedure has been exhausted, in accordance with the fifth paragraph of Article 263 TFEU and Article 29 of Regulation 2019/942, since it is a requirement of primary law that the applicant may bring a direct action. Furthermore, the applicant submits that the expiry of the time limit of two months running from publication of the initial decision, on 28 February 2022, does not render the alternative claim inadmissible, given that it could not have anticipated, having regard to the classification of the initial decision as an individual decision within the meaning of recital 34, of point (d) of Article 2, and of Articles 28 and 29 of Regulation 2019/942, to the case-law, to the information on remedies contained in the initial decision, and to the deficit in judicial protection and the potential conflicts arising from it, that it would have to bring a direct action against that decision, having been unable, because of a purported lack of standing, to obtain a prior decision of the Board of Appeal. According to the case-law, a failure to comply with the time limit for bringing an action does not render an action inadmissible where it is the result of an excusable error of law on the part of the applicant, which was misled by the author of the decision.

127As regards the plea of inadmissibility raised by ACER in respect of the alternative claim, it should be observed, first of all, that, as is apparent from paragraph 47 above, the applicant in the present case was able to bring an action for annulment of the initial decision directly before the EU judicature, on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon.

128Furthermore, it is apparent from the sixth paragraph of Article 263 TFEU that actions for annulment are to be brought within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

129No derogation from the application of the European Union’s rules on procedural time limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 56 and the case-law cited).

130It is also apparent from the case-law that, in the context of the European Union’s rules on time limits for instituting proceedings, the concept of ‘excusable error’ justifying a derogation from those rules can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person (see judgment of 14 December 2016, SV Capital v EBA, C‑577/15 P, EU:C:2016:947, paragraph 59 and the case-law cited).

131In the present case, the initial decision was published on the ACER website on 28 February 2022, and the applicant brought its appeal before the Board of Appeal on 28 April 2022. Even supposing that the initial decision came to the knowledge of the applicant only on the day it lodged its appeal with the Board of Appeal, applying the rules on the calculation of time limits laid down in Articles 58 and 60 of the Rules of Procedure, which correspond to Articles 49 and 51 of the Rules of Procedure of the Court of Justice, it must be held that, on the date on which the present action was brought, namely 17 February 2023, the applicant was barred from challenging that decision.

132Furthermore, the applicant is not entitled, in the circumstances of the present case, to rely on an excusable error within the meaning of the case-law cited in paragraph 130 above.

133First, ACER did not give the applicant any specific assurance that the Board of Appeal was competent to hear an appeal brought by the applicant against the initial decision, since the information on remedies given at the end of the initial decision was expressly intended for the ‘addressees’ of that decision, namely the TSOs of the CORE region, in relation to which that information was, moreover, correct (see paragraph 47 above). By contrast, the initial decision did not provide any information on the remedies available to natural or legal persons other than those addressees. Thus, the statements in question cannot be characterised as conduct of ACER that was such as to give rise to a pardonable confusion in the mind of the applicant as regards the competence of the Board of Appeal to hear an appeal brought by the applicant against the initial decision.

134Second, on an interpretation of the wording of Article 29 of Regulation 2019/942 that accords with primary EU law, that article does not preclude natural or legal persons who, like the applicant, are directly but not individually concerned by an ACER act of general application not entailing implementing measures from bringing an action for annulment of that act directly before the EU judicature, on the basis of the fourth paragraph of Article 263 TFEU, in the version resulting from the Treaty of Lisbon. Moreover, in paragraph 165 of the application, the applicant itself argues that, in the context of the present action, ‘it must be granted … the right to bring an action challenging a regulatory act pursuant to [the third limb of] the fourth paragraph … of Article 263TFEU’, since ‘that remedy is expressly provided for by [the third limb of] the fourth paragraph … of Article 263 TFEU’.

135Thus, in the present case, the applicant cannot usefully rely on the case-law based on the general wording of certain texts governing remedies or on the current practice with regard to findings of excusable error in a situation where an action has been brought before the EU judicature out of time, following the exhaustion of an internal appeal procedure which, in this specific case and in accordance with the case-law, was not applicable (see, to that effect, judgments of 14 June 1972, Marcato v Commission, 44/71, EU:C:1972:53, paragraphs 5 to 9, and of 5 April 1979, Orlandi v Commission, 117/78, EU:C:1979:109, paragraphs 9 to 11).

136It follows that the applicant cannot rely on any excusable error that might justify a derogation, in the present case, from the obligation to comply with the prescribed time limit for bringing proceedings.

137Consequently, the alternative claim for annulment of the initial decision must also be dismissed, as inadmissible, and the action must therefore be dismissed in its entirety.

Costs

138Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

139Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by ACER.

Operative part

On those grounds,THE GENERAL COURT (Third Chamber, Extended Composition),hereby:

1.Dismisses the action;

2.Orders Uniper Global Commodities SE to pay the costs.

Delivered in open court in Luxembourg on 25 June 2025.