The Court of Justice of the European Union has upheld the EU General Court’s ruling that annulled the European Commission’s decision in September 2019 on changes to the conditions of access to the OPAL pipeline, the onshore section of the Nord Stream 1 gas pipeline (see EUROPE 12324/12), in a judgment handed down on Thursday 15 July (Case C-848/19).
The background to the case is that in 2009 the European Commission conditionally approved the decision of the German Federal Network Agency to exempt the OPAL pipeline from the rules of the Directive (2003/55) governing the Internal market in natural gas. The exemption concerned, among other things, the conditions for third party access to the gas pipeline networks and the tariff regulation.
The Russian group Gazprom, which has a monopoly on the operation of OPAL, has never been able to operate the pipeline to its full capacity, but only at 50%.
The German Federal Network Agency notified the Commission in 2016 of its intention to amend the exemption granted in 2009. The aim was to allow full operation of the pipeline, on condition that at least 50% of that capacity would be sold by way of auction. These changes were approved by the European Commission in the same year.
But Poland said the decision threatened the security of its gas supply.
This approval would result in the transfer of gas volumes previously transiting through its territory to the OPAL pipeline. Warsaw, therefore, brought an action for annulment of that decision before the EU General Court which ruled in its favour. The General Court annulled the Commission’s decision on the grounds that it disregarded the principle of energy solidarity enshrined in the European treaties (Article 194 TFEU).
This decision was in turn challenged by Germany, which appealed to the Court of Justice.
The latter upheld the judgment of the General Court. The Court of Justice reaffirmed the primacy of the “fundamental” principle of solidarity, which requires loyal cooperation and mutual assistance between Member States.
It thus contradicts the German argument, which stressed the absence of an express reference to the principle of solidarity in Directive 2009/73, which replaced Directive 2003/55.
Therefore, the Court states that the Commission is obliged to examine the possible risks for the gas supply of the different Member States.
It adds that this principle of energy solidarity goes beyond situations of terrorist attacks or natural or man-made disasters.
To consult the judgment: https://bit.ly/36AWtB9 (Original version in French by Pascal Hansens)