Published 7 October 2022
In joined cases T-684/19 and T-704/19 MEKH and FGSZ v ACER ('the HUAT Case'), the General Court ('GC') delivered a blow to the European Commission ('the Commission') and the EU Agency for the Cooperation of Energy Regulators ('ACER') regarding the adoption of network codes. This came about concerning the legality of a decision by ACER ordering the expansion of interconnection capacity for gas transmission between Hungary and Austria (the 'HUAT project'). The GC discussed whether the existing network codes legislation allows the Commission or ENTSOG to order a transmission system operator ('TSO') to invest in new capacity for transporting gas.
In this opinion, we discuss the case and its implications for the future of network codes and the European internal energy market. We focus on three key legal issues: i) Can the EU require investment decisions to promote interconnection capacity, even if unwillingness exists? ii) Have the Commission and ENSTO-G gone too far when adopting the rules on capacity increment in the Capacity Network Code? What are the consequences of the HUAT Case for the future expansion of technical rules in EU energy law?