According to S&P Global Platts, a provider of information and analysis in the energy sector, the Swiss company Nord Stream 2, wholly owned by the Russian gas company Gazprom, decided on Tuesday 28 July to bring an action before the Court of Justice of the European Union (CJEU) to challenge the rejection by the EU Court of Justice of its application for annulment of the European Directive (2019/692) amending the Directive (2009/73) on the market in natural gas (see EUROPE 12491/23).
Contacted by EUROPE, Nord Stream 2 confirmed that it “does not share the procedural arguments of the court and maintains that the amendment of the Gas Directive constitutes an unlawful discrimination”.
In force since 23 May 2019, the revision of the Directive (2009/73) ensures that the rules on gas transmission pipelines connecting Member States are also applicable within the Union to gas transmission pipelines to and from third countries (see EUROPE 12193/16).
Among these rules is the requirement that the undertaking in charge of the gas transmission network must be different from the undertaking in charge of gas production and supply, in order to mitigate the risk of discrimination in the operation of the network and thus ensure a level playing field.
In their action before the EU Court of First Instance, Nord Stream 2 and Nord Stream 1 argued that such rules adversely affect their organisational structures, the financing of their activities and the gas transmission agreement with Gazprom.
However, according to the orders issued by the Court of First Instance (Cases T-526/19 and T-530/19) on 20 May last, the two undertakings are not directly concerned by the amending directive. Dismissing the actions, the Court of First Instance held that Nord Stream 2 and Nord Stream 1 would be subject to the amended directive (2009/73) only through national measures transposing EU rules for which the Member States have a discretionary power.
It had also stressed that national regulatory authorities may grant derogations from the directive (2009/73) on new gas infrastructure and gas transmission pipelines between Member States and third countries completed before 23 May 2019.
This is what the German Federal Network Agency did with Nord Stream 1. After the rejection of the gas company’s appeal by the European Court of Justice, the Agency decided to exempt the part of the Nord Stream pipeline located on German territory from the rules of the Directive (2009/73) for the next 20 years.
However, on 15 May this year, the Commission refused to grant such a derogation in the case of Nord Stream 2, as the construction of the pipeline was not completed until 23 May 2019. Still in progress, the finalisation of Nord Stream 2 has been delayed due to US sanctions (see EUROPE 12396/19).
As regards the admissibility of the appeal of Nord Stream 2, the ECJ is expected to give its decision within the next twelve months.
See the orders of the Tribunal: https://bit.ly/3jTtCx0 and https://bit.ly/2P3ySjt (Original version in French by Damien Genicot)