On Wednesday 27 November, the EU General Court dismissed Nord Stream 2’s action contesting the directive extending the internal market rules on natural gas to cover gas pipelines from third countries.
In April 2019, through the adoption of a directive, the EU legislature amended the ‘gas’ directive in order to ensure that the rules applicable to gas transmission pipelines connecting two or more Member States were equally applicable, within the European Union, to gas transmission pipelines to and from third countries.
However, as regards pipelines between a Member State and a third country completed before the date of entry into force of the amending directive, namely 23 May 2019, the amending directive provides that the Member State where the first connection point of such a pipeline with that Member State’s network is located may decide to derogate from those rules for the sections of that gas pipeline located in its territory and territorial sea.
Nord Stream 2 AG is a Swiss subsidiary of Gazprom. In 2022, the Court of Justice held that the action brought was partially admissible (see EUROPE 12991/30).
The General Court dismisses the action. It considers (Case T-526/19) that, taking into account the state of progress of the works relating to its pipeline at the time that the proposal for the amending directive was submitted in November 2017, Nord Stream 2 AG was in a position to foresee that it would not be able to benefit from the derogation envisaged for gas pipelines completed before the date of entry into force of the text.
The General Court considers that the fact that Nord Stream 2 AG could not benefit from that derogation did not prevent the company from operating the Nord Stream 2 gas pipeline under economically acceptable conditions. Consequently, the Union legislature did not infringe the principle of legal certainty or the principle of the protection of legitimate expectations.
Secondly, the General Court considers that the derogation in question is not contrary to the principle of equal treatment.
Finally, having regard to the Union legislature’s margin of discretion, the fact that the Nord Stream 2 gas pipeline cannot escape the extension of the internal market rules is not manifestly inappropriate for the attainment of the objectives pursued by the text.
Link to the judgment: https://aeur.eu/f/eia (Original version in French by Lionel Changeur)