VBB successfully challenges Swissgrid’s exclusion from electricity balancing platforms before Court of Justice of EU

• 21/02/2025
• News

VBB has helped Swiss electricity transmission system operator Swissgrid prevail in the challenge of its exclusion from European electricity balancing platforms before the EU’s highest court, which has overturned a judgment of the General Court that had confirmed a European Commission decision.

Due to Switzerland’s central position in Europe and the random paths which electricity follows, Switzerland and the EU are exposed to unscheduled physical power flows that may jeopardise system security. To mitigate this risk, Swissgrid has for many years been cooperating with its EU neighbours through European platforms for the exchange of standard products for balancing energy.

In December 2020, the Commission wrote to the EU transmission system operators requiring them to exclude Swissgrid from TERRE and other balancing platforms. Swissgrid brought an action for annulment before the General Court which dismissed the action, holding that the Commission’s decision was not a challengeable act.

In a judgment of 13 February 2025, the Court of Justice of the EU (CJEU) set aside the General Court’s judgment and held that the General Court not only applied the wrong admissibility test, but also disregarded the content and nature of the Commission’s decision, which was intended to produce binding legal effects.

Importantly, the CJEU observed that, in “a community based on the rule of law in which institutions are subject to judicial review of the compatibility of their acts with the Treaty”, even irregularly adopted acts can be subject to judicial review. Otherwise, “the Commission could avoid review by the EU judicature by failing to adhere to the formal requirements that govern the adoption of the act at issue”.

Swissgrid was represented by Philippe De Baere, Victor Ion, Peter L’Ecluse, Valérie Lefever, and Koen T’Syen.

Read full judgment here