On 23 November 2015, the Board of Appeal received two
appeals, lodged by the Austrian energy regulator E-Control and by the Austrian
Power Grid (APG), seeking the annulment of ACER (the Agency) ’s Opinion No
09/2015 of 23 September 2015 on the compliance of National Regulatory
Authorities (NRAs)’ decisions, approving the methods of allocation of
cross-border electricity transmission capacity in the Central-East Europe (CEE)
region, with Regulation (EC) No 714/2009.

The Opinion was adopted having regard to the
respective provisions of Regulation (EC) No 713/2009 of 13 July 2009 (the ACER
Regulation) and, in particular, Articles 7(4) and 17(3) thereof. In the Opinion,
the Agency concluded that there is currently structural congestion on the
DE-PL, DE-CZ and CZ-AT interconnectors as well as on network elements within
Germany, that the cross-border exchanges between Austria and Germany are
physically realised partly through those structurally congested interconnectors
and internal network elements, and that they have a significant impact on those
structural congestions.

Therefore, the German-Austrian interconnector should
be considered to be usually and structurally congested according to Regulation
714/2009 on conditions for access to the network for cross-border exchanges in
electricity. According to the Opinion, it thus requires the implementation of a
capacity allocation method, in accordance with the Guidelines.

Therefore, the Agency invited the CEE National
Regulatory Agencies (NRAs) and Transmission System Operators (TSOs) to commit,
within the following four months, to the implementation of a coordinated capacity
allocation procedure on the German-Austrian border. The German and the Austrian
NRAs and TSOs were also invited to evaluate whether additional interim measures
coordinated at regional level are needed until a coordinated capacity
allocation procedure on the German-Austrian border is implemented.

The appeals by E-Control and APG were directed in
particular against the establishment of such a capacity allocation procedure on
the German / Austrian border, arguing inter alia that such a procedure would artificially
split the currently integrated electricity market between Germany and Austria
and require the respective NRAs to limit cross border flows of electricity
between Austria and Germany.

The appeals have been registered under the case
numbers A-001-2015 and A-002-2015.

Applications for leave to intervene in support of
E-Control were filed by Osterreichs E-Wirtschaft, Vereinigung der
Österreichischen Industrie (the Federation of Austrian Industries), VERBUND AG,
the European Federation of Energy Traders, Mondi AG and EXAA Abwicklungsstelle
für Energieprodukte AG.

An application for leave to intervene was also filed
in support of both E-Control and APG by Wirtschaftskammer Österreich. Applications
for leave to intervene in support of the Agency were filed in both cases by the
Regulatory Office for Network Industries of Slovakia, Polski Komitet Energii
Elektrycznej (Polish Electricity Association – PKEE), Polskie Sieci
Elektroenergetyczne Spółka Akcyjna (PSE SA); Towarzystwo Obrotu Energią (TOE, Polish
Association for Energy Trading), and the President of the Polish Energy
Regulatory Office – ERO)(Urzad Regulacji Energetyki – URE).

Regulation (EC) No 713/2009 governing ACER limits
reviews by its Board of Appeal to appeals against ACER individual decisions or
measures having equivalent legal effects. As regards the two appeals, the Board
of Appeal found that even if the Agency not only adopted an Opinion on
compliance with the existing Guidelines but also invited the NRAs concerned to
adopt very concrete and specific measures such as the implementation of a
capacity allocation procedure within a detailed schedule, this does not
transform the Opinion into a binding measure with direct legal effects.

Even if the Board of Appeal fully appreciates the importance
of the issues raised, the Opinion therefore does not fall under the power of
review of the Board of Appeal. Therefore, the Board of Appeal has dismissed the
applications as inadmissible (and has therefore not given a ruling on the
substantial claims of both appeals nor on the applications for leave to
intervene and statements in intervention lodged in both cases).

The non-confidential version of the decisions will be
made available under the case numbers A-001-2015 and A-002-2015 on the Board of
Appeal website once any confidentiality issues have been resolved. Questions
should be directed to: BoA@acer.europa.eu