Stuttgart – On 14 February 2019 and on appeal of capacity booking platform operator PRISMA European Capacity Platform GmbH (PRISMA), the Board of Appeal of the Agency for the Cooperation of Energy Regulators (ACER) annulled ACER’s decision of 16 October 2018 on the gas booking platform to be used at the ‘Mallnow’ interconnection point (IP) and ‘GCP’ virtual interconnection point (VIP) on the German-Polish border.
A CMS team headed by lead partner Dr Christian Haellmigk successfully advised and acted on behalf of PRISMA, represented by inhouse counsel Falk Porzig.
Under the relevant EU energy law, Transport System Operators are required to reach a contractual agreement to use a booking platform to offer capacity on an IP or VIP. As GAZ-SYSTEM S.A. (Poland) and GASCADE Gastransport GmbH (Germany) and ONTRAS Gastransport GmbH (Germany) did not reach an agreement on the use of a single booking platform at the Mallnow IP or at the GCP VIP, the matter was referred to the national regulators concerned, i.e. Bundesnetzagentur for the Federal Republic of Germany and Urząd Regulacji Energetyki for the Republic of Poland. These authorities did not reach an agreement on the use of a single booking platform either. Therefore, ACER was called upon to adopt a decision concerning the booking platform to be used.
On 16 October 2018 ACER ordered that the capacity booking platform to be used at the aforementioned interconnection points shall be GSA and not PRISMA or competitor RBP. PRISMA contested the decision arguing that ACER had, inter alia, failed to disclose the method of evaluation, to provide evaluation benchmarks, to allocate weighting to sub-sub-criteria, to correctly implement the weighting rules, to correctly award points to the offers submitted and to grant PRISMA full access to ACER's file.
The Board of Appeal annulled the contested decision. It is the first time that the Board of Appeal ever annulled an ACER decision. ACER recently announced that it will reiterate the booking platform selection procedure from the outset. A new public consultation will soon be launched as part of the new proceedings, after which candidate booking platforms will be invited to submit a new offer.
PRISMA European Capacity Platform GmbH, with its headquarters in Leipzig, is the joint capacity booking platform of major European Transmission System Operators.
ACER, a European Union Agency, was created by the Third Energy Package to further progress the completion of the internal energy market both for electricity and natural gas. ACER was officially launched in March 2011, and has its seat in Ljubljana, Slovenia.
Dr Christian Haellmigk, Lead Partner
Cosima Gräfin von Rechteren, Counsel
Malena Hansen, Associate, all Energy
PRISMA European Capacity Platform GmbH
Falk Porzig, Principal Legal Expert