Advocate General Michal Bobek ruled in his opinion delivered on Wednesday, 6 October, (case C-348/20) that the Swiss company Nord Stream 2 AG—which operates the gas pipeline of the same name between Russia and Germany and which is owned by the Russian gas company Gazprom—can challenge the revised Gas Directive (2019/692), which extends certain rules for the internal market in natural gas to gas pipelines from non-EU countries, before the European Union courts.
Nord Stream 2 AG is challenging the General Court’s order that its action against the revised Gas Directive was inadmissible because it would not be directly concerned by the amending directive (cases T-526 and 530/19) (see EUROPE 12491/23).
Mr Bobek considers the General Court’s reasoning to be incorrect and believes that it erred in law.
The revised Gas Directive sets out three options with regard to unbundling activities subject to competition (gas production and supply) from those where competition is either not possible or not allowed (transport). The advocate general believes that, regardless of which option is chosen, the legal position of Nord Stream 2 AG is inevitably altered. In fact, the Swiss company will have to sell the entire Nord Stream 2 gas pipeline, sell the part of the pipeline falling under the jurisdiction of the German authorities, or transfer ownership of the pipeline to a separate subsidiary.
Mr Bobek therefore considers that it is the amending directive itself that immediately affects Nord Stream 2 AG’s position and not merely the subsequent transposition measures.
The same is true, in his view, of the provisions of the amended Gas Directive relating to third-party access and tariff regulation—provisions that impose new regulatory constraints altering Nord Stream 2 AG’s legal position and, consequently, affect it directly.
Mr Bobek is also of the opinion that the Swiss company is individually concerned by the amending directive. In fact, he notes that the contested directive only affects the Nord Stream 2 gas pipeline, whose construction had reached a very advanced stage by the time this legal act was adopted in 2019.
See the opinion: https://bit.ly/3mAnDzq (Original version in French by Mathieu Bion)