Advocate General Manuel Campos Sánchez-Bordona proposed to the Court of Justice of the European Union, on Thursday 18 March, to reject Germany’s appeal against a judgment of the General Court of the European Union in September 2019 which annulled a European Commission decision on the OPAL gas pipeline used by Gazprom (Case C-848/19 P) for failing to respect the principle of energy solidarity.
In 2016, a Commission decision changed the conditions for derogations from the Gas Directive (2009/73/EC) to allow Gazprom to use almost the entire OPAL pipeline, resulting in a reduction in gas flows in Belarusian and Ukrainian pipelines and a strengthening of the Russian gas company’s position on the gas markets of Central and Eastern European countries.
Poland, supported by Latvia and Lithuania, then brought an action before the General Court of the EU which annulled the Commission’s 2016 decision (see EUROPE 12324/12) on the ground that it infringed the principle of energy solidarity under Article 194 TFEU. Germany has brought an appeal against this ruling, arguing, in essence, that energy solidarity is merely a political concept and does not entail any obligation for the European Union or for the Member States.
The Advocate General notes that solidarity is enshrined in primary EU law as a value (Article 2 TFEU) and an objective (Article 3 TFEU) which are increasingly drawn on to inform political and economic decisions by the European Union itself.
He also notes that the Court’s case law has also referred to the principle of solidarity, but without providing a general definition of its features. However, in the field of migration (Article 80 TFEU), the Court explicitly resorted to the principle of solidarity when it was required to adjudicate on the distribution between the Member States of quotas of applicants for international protection (see EUROPE 12460/28).
According to Campos Sánchez-Bordona, there is nothing to preclude the use of the principle of solidarity in the context of EU energy policy.
On the basis of these premises, the Advocate General concludes that the General Court rightly took the view that the principle of energy solidarity in Article 194 TFEU entails rights and obligations for both the European Union and the Member States and that it produces effects that are legal and not purely political, in particular for the purpose of interpreting the rules of secondary law adopted in implementation of the EU’s powers in energy matters.
Furthermore, he adds, the principle of energy solidarity requires the body putting that principle into practice, in this case the Commission, to assess the interests of both the Member States and the Union as a whole on a case-by-case basis. If the Commission manifestly overlooks one or more Member States in this balancing exercise, its decision will fail to comply with the requirements of this principle.
See the conclusions: http://bit.ly/38SYVV2 (Original version in French by Mathieu Bion)