.jpg)
The Agency takes note of the ACER Board of Appeal (BoA) Decision, published today, in the appeal case A-002-2018, PRISMA European Capacity Platform GmbH v ACER, in which the BoA annuls the Agency Decision No 11/2018 on the gas booking platform to be used at the ‘Mallnow’ interconnection point (‘IP’) and the ‘GCP’ virtual interconnection point (‘VIP’) on the German-Polish border. The case was referred to the Agency by the national regulatory authorities of Germany and Poland, as they failed to reach an agreement.
In its decision, the BoA confirmed the evaluation method as presented by the Agency and ruled that this method, “by its very content and nature would have been incapable of favouring any of the tenderers.” The BoA nonetheless decided to annul the contested Decision, as the case file did not contain documents corroborating the Agency’s evaluation method.
In order to remedy this procedural flaw, the BoA suggested in its decision two possible approaches. In particular, the Agency could “choose to reiterate the entire tendering procedure from its very beginning, asking for new offers by the tenderers”. However, “in the absence of flaws in the first step of the procedure prior to the evaluation by the Agency and assuming that the Agency continues to adopt the same evaluation method, there is nothing to prevent the Agency from continuing this procedure from this second step, rectifying the procedural shortcomings.”
Whilst the Agency appreciates the two options outlined by the BoA, it considers that the expiry, in October last year, of the period over which the offers submitted by the candidate booking platforms were binding would significantly impair the practical implementation of the second option.
Therefore, having carefully considered the two options, the Agency has decided to reiterate the procedure from the outset. When defining the process for the adoption of the new decision, the Agency will take account of the BoA’s positive assessment of the evaluation method of the annulled decision, as presented by the Agency to the BoA, as well as of the useful and constructive considerations and comments which the Agency has received from the parties and stakeholders during the proceedings.
A new public consultation will soon be launched by the Agency as part of the new proceedings, after which candidate booking platforms will be invited to submit a new offer. The Agency will take its decision within a period of 6 months following the notification of the BoA’s decision.
Access the BoA Decision here.
Access the Agency’s Decision here.
