Sygn. akt T-671/15
ORDER OF THE PRESIDENT OF THE GENERAL COURT
December 2015 (*)
(Application for interim measures — Opinion on the compliance of national regulatory authorities’ decisions approving the methods of cross-border electricity transmission capacity — Application for suspension of operation of a measure — Infringement of the procedural requirements — Inadmissibility)
In Case T‑671/15 R,
Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), established in Vienna (Austria), represented by F. Schuhmacher, lawyer,
applicant,
v
Agency for the Cooperation of Energy Regulators (ACER),
defendant,
APPLICATION for suspension of operation of Opinion of the Agency for the Cooperation of Energy Regulators No 09/2015 of 23 September 2015 on the compliance of national regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15), and the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts, procedure and form of order sought by the applicant
By application lodged at the Court Registry on 23 November 2015, the applicant, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), brought an action seeking annulment of Opinion of the Agency for the Cooperation of Energy Regulators No 09/2015 of 23 September 2015 on the compliance of national regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15), and the guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto (‘the contested act’).
By separate document lodged at the Court Registry on the same day, the applicant made the present application for interim measures, requesting the President of the General Court to suspend the operation of the contested act.
In the application for interim measures, the applicant — after noting that, under Article 278 TFEU, actions for annulment lodged pursuant to Article 263 TFEU are not to have suspensory effect — refers to Article 156 of the Rules of Procedure of the General Court, under which applications to suspend the operation of a measure may be brought, while indicating that those applications must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for. The applicant continues by stating that:
‘For the pleas of fact and law we refer to the action for annulment lodged simultaneously with this application.
As established in the action for annulment, the Opinion has a binding effect on E-Control requiring inter alia to commit, within 4 months of the date in which this Opinion is adopted and published, to the adoption of a coordinated capacity allocation procedure on the German-Austrian border, with a realistic but ambitious implementation calendar with concrete steps. … Thereby E-Control has to commit [itself] to the result of the decision without effective legal remedy creating an irreversible situation, where market participants rely on the implementation of the capacity management system. The Opinion has a direct effect on market participants including E-Control. Thereby E-Control and other market participants face direct negative effects amounting to a serious and irreparable damage for E-Control and other market participants.’
Law
In accordance with Articles 278 TFEU and 279 TFEU read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure.
Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim measures to consider at the outset of the proceedings, if necessary of his own motion, whether the applicable provisions of those Rules have been complied with (see order of 20 June 2014 in Wilders v Parliament and Others, T‑410/14 R, EU:T:2014:564, paragraph 7 and the case-law cited).
Article 156(3) of the Rules of Procedure requires applications for interim measures to state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for. Thus, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable damage to the interests of the party seeking such relief, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied (orders of 14 October 1996 in SCK and FNK v Commission, C‑268/96 P(R), ECR, EU:C:1996:381, paragraph 30, and 12 May 2010 in Torresan v OHIM, C‑5/10 P(R), EU:C:2010:269, paragraphs 14 and 15).
Furthermore, under Article 156(4), and Article 76(d) of the Rules of Procedure, an application for interim measures must, in particular, be made by a separate document, indicate the subject-matter of the proceedings and contain a summary of the pleas in law and arguments relied on.
It follows from a combined reading of those provisions of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the defendant to prepare its defence and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if annexed to the application for interim measures, cannot make up for the absence of essential elements in that application (see order in Wilders v Parliament and Others, paragraph 5 above, EU:T:2014:564, paragraph 10 and the case-law cited; see also, to that effect, order of 30 April 2010 in Ziegler v Commission, C‑113/09 P(R), EU:C:2010:242, paragraph 13).
Moreover, point 264 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.
In the present case, it must be found that, in order to establish a prima facie case, the applicant confines itself in the application for interim measures to making a general reference to the application lodged before the Court in the main proceedings. That reference clearly does not suffice to establish a prima facie case capable of justifying the grant of the suspension of operation sought. It is not for the judge hearing the application for interim measures to seek, in the applicant’s stead, those matters contained in the annexes or in the main application which could support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires the application for interim measures to be made by a separate document (see, to that effect, order in Wilders v Parliament and Others, paragraph 5 above, EU:T:2014:564, paragraph 16 and the case-law cited).
It follows that, as regards the requirement of a prima facie case, the application for interim measures does not comply with the requirements laid down in Article 156(3) and (4) of the Rules of Procedure.
It must be added that the application for interim measures also fails to comply with those requirements as regards the condition relating to urgency.
In that respect, it should be recalled that, according to settled case-law, urgency must be assessed in the light of the need of an interlocutory order so as to avoid serious and irreparable damage to the party seeking the interim relief (see, to that effect, order of 11 March 2013 in Calestep v ECHA, T‑89/13 R, EU:T:2013:123, paragraph 13 and the case-law cited).
In order to determine whether the harm alleged is serious and irreparable, the judge hearing the application for interim measures must have actual and specific information, supported by detailed, certified documentary evidence showing the financial situation of the party seeking interim measures and enabling an assessment of the consequences likely to occur if the measures sought are not granted. It follows that that party must provide, with supporting documentation, an accurate and comprehensive picture of the situation which it claims justifies the grant of those measures (see, to that effect, orders of 16 October 2013 in Spain v Commission, T‑461/13 R, EU:T:2013:545, paragraph 35; 20 August 2014 in Alsharghawi v Council, T‑532/14 R, EU:T:2014:732, paragraph 22, and 27 November 2014 in SEA v Commission, T‑674/14 R, EU:T:2014:1009, paragraph 55 and the case-law cited).
In the present case, the applicant merely refers, inter alia, to the binding nature of the contested act and to the period of four months laid down for its implementation, the negative effects of which would, according to the applicant, cause serious and irreparable damage to it and other market participants.
Such allegations, which are not supported by any evidence, can in no circumstances be regarded as providing an accurate and comprehensive picture of the applicant’s situation. Consequently, the judge hearing the application for interim measures is not in a position to assess whether the harm alleged is serious and irreparable.
It follows from all the foregoing that the present application for interim measures must be dismissed as inadmissible.
On those grounds,
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 4 December 2015.
E. Coulon
M. Jaeger
Registrar
President
* Language of the case: English.
