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The decision of ACER on the creation of incremental capacity for the transmission of Black Sea gas between Hungary and Austria, adopted pursuant to those provisions, is consequently annulled

In 2015, FGSZ Földgázszállító Zrt. (FGSZ), the Hungarian gas transmission system operator, and its Bulgarian, Romanian and Austrian counterparts engaged in a regional cooperation project to increase energy independence by bringing Black Sea gas to markets. Entitled ‘ROHUAT/BRUA’, that project provided for the creation of incremental capacity, inter alia between Hungary and Austria.

In May 2017, the project was split into two separate projects, one relating to the transmission infrastructure connecting Hungary to Austria (‘the HUAT project’). In accordance with Regulation 2017/459 (‘the Network Code Regulation’), 1 FGSZ and the Austrian gas transmission system operator (GCA) carried out an assessment of market demand for the HUAT project.

On 6 April 2018, FGSZ submitted to Magyar Energetikai és Közmű-szabályozási Hivatal (MEKH), the Hungarian energy and public utility regulatory authority, the proposal for the HUAT project, stating that it was not in favour of the implementation of that project. On 9 April 2018, GCA submitted the HUAT project proposal to the regulatory authority for the Austrian electricity and natural gas sectors (E-Control). On 27 April 2018, E-Control adopted a decision approving the HUAT project proposal, whereas, on 5 October 2018, MEKH adopted a decision rejecting that proposal.

On 10 October 2018, the European Union Agency for the Cooperation of Energy Regulators (ACER) informed MEKH and E-Control that, as those national regulatory authorities had failed to adopt a coordinated decision, it was empowered, under the Network Code Regulation and the ACER Regulation, 2 to decide on the HUAT project proposal. By decision of 6 August 2019, ACER approved that proposal.

MEKH and FGSZ each brought an action against the decision of ACER before the General Court of the European Union. In its action, MEKH pleads, in particular, that the provisions of the Network Code Regulation pursuant to which the decision of ACER was adopted 3 are unlawful. According to MEKH, the basic regulation, 4 which served as the basis for the adoption of the Network Code Regulation, does not allow the Commission to adopt a network code providing for a process for the creation of incremental capacity that may lead to the obligation being imposed on the operator to make the necessary investments for the creation of such capacity.