The CRE on its launch to©a third decision DELIVERED in 2 months! On 25 June, the CoRDiS (Dispute Settlement and Sanctions Committee) of the French energy regulator published a decision adopted in May imposing a fine of 80,000 euros on Engie for insider trading, in violation of Article 3 of THE REMIT. The decision is particularly interesting because of its (very brief) analysis of the « default exemption » provided for in Article 3(4)(b) of REMIT, which I do not recall seeing in a decision so far. However, the CoRDiS rejected this argument on the grounds that Engie had not provided any evidence to support its argument (e.g. details of its contractual obligations, portfolio, clearing obligations, etc.) and that Article 3(4)(b) requires a Member wishing to avail itself of this to inform ACER and the NRA concerned, which Engie did not do. The CoRDiS also rejected the arguments that the notification had been made in the normal course of work of the member of the dispatch team concerned and that it was necessary. The CoRDiS considered that the fact that this was due to human error was no excuse. However, it also noted that Engie had cooperated with the investigation, acknowledged the facts and taken immediate corrective action. It did not appear to have obtained any financial benefit and there was no indication that the market or end-users were affected. These factors explain the relatively low penalty that is imposed. 1. At the written stage of the procedure, requests and instructions on procedural matters shall be answered by means of communication.
In an important judgment of 7 September, the Court of the EU annulled the decision of acer`s Board of Appeal rejecting the appeal of the German NRA, BNetzA, against the 2019 decision of ACER Core CCM. The dispute stems from the requirement in the CACM Regulation that TSOs in each region must develop a methodology for calculating intraday and daily capacity. The NRAs of the Central Region agreed on some aspects of the TSO proposal, but could not agree on all issues, so they referred it back to ACER for decision. ACER adopted the methodology in February 2019. BNetzA appealed to ACER BoA and then to the General Court against the acerbic BoA decision and decision 02/2019. The General Court declared inadmissible the appeal against ACER`s initial decision. Articles 28 and 29 of ACER Regulation 2019/942 provide that an action for annulment of an acerbic decision may be brought before the General Court only after the end of the appeal procedure before ACER BoA. The court can therefore only review the decision of the administrative authority. BNetzA had argued that ACER was required to take into account the points of agreement between the NRAs concerned and to decide only on the points of disagreement and that the BoA had erred in law in rejecting that argument. The General Court rejected that argument. The aim of giving ACER more decision-making powers is to make cross-border decision-making more efficient.
ACER`s power could therefore not be limited by the position of the NRAs and by the fact that they had agreed on certain aspects of a proposal. It therefore rejected that plea. However, the General Court upheld BNetzA`s second plea in law, alleging that BoA erred in law in failing to review the lawfulness of ACER`s decision in the light of Articles 14 to 16 of Regulation No 943. Regulation 943 entered into force after the date of adoption of the CCM Central Decision. Since the CCM`s base decision became final when it was upheld by the BoA in the appeal decision, it follows that it was adopted after the effective date of Regulation 943. The case is therefore referred back to ACER for reconsideration.