On Tuesday 10 September, the EU Court decided, in a judgment (T-883/16 - Poland v Commission), to annul the Commission's decision approving the amendment of the derogatory regime for the operation of the OPAL gas pipeline. For the Court, this decision was adopted in breach of the principle of energy solidarity (see also EUROPE 11835/19).
Poland asked the Court to annul the 2016 decision on the grounds that the granting of a new derogation for the OPAL gas pipeline “threatens the security of gas supply in the Union, in particular in Central Europe”.
By its judgment, the Court rejects, first of all, Poland's argument that the 2016 Decision would grant a new derogation from third party access. It notes that the Commission did not approve the introduction of a new derogation, but the modification of an existing derogation.
The Court examines in particular Poland's argument that the 2016 decision violates the principle of energy solidarity in that it allows Gazprom to redirect additional volumes of gas to the Union market by fully exploiting the capacities of the Nord Stream 1 gas pipeline. For Poland, this has the effect of influencing the conditions of use of transport services on OPAL's competing pipelines.
The Court considers that it was for the Commission, in the context of the 2016 decision, to assess whether the amendment of the OPAL pipeline regime could affect the energy interests of other Member States and, if so, to weigh those interests against the interest that this amendment represented for Germany and, where appropriate, the Union.
The Court notes that the principle of solidarity is not mentioned in the 2016 decision and that it does not show that the Commission has in fact examined that principle.
It does not appear that the Commission has examined the possible medium-term consequences, in particular for Poland's energy policy, of the transfer to the Nord Stream 1/OPAL transit route of part of the volumes of natural gas previously transported by the Yamal and Braterstwo pipelines, or that it has weighed these effects against the increase in security of supply at EU level it has noted. In those circumstances, the Court finds that the 2016 decision was adopted in breach of the principle of energy solidarity. Consequently, the General Court annuls that Commission decision. (Original version in French by Lionel Changeur)