Orders nº T-849/16 of Tribunal General de la Unión Europea, July 21, 2017

• Resolution Date: July 21, 2017
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-849/16

(Action for annulment - Internal market in natural gas - Directive 2009/73/EC - Commission decision amending the conditions for exemption from the EU requirements of the rules governing operation of the OPAL pipeline in regard to third-party access and tariff regulation - Lack of direct concern - Inadmissibility)

In Case T-849/16,

PGNiG Supply & Trading GmbH, established in Munich (Germany), represented by M. Jeżewski, lawyer,

applicant,

v

European Commission, represented by O. Beynet and K. Herrmann, acting as Agents,

defendant,

ACTION based on Article 263 TFEU and seeking annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on the review of the conditions for exemption of the OPAL pipeline, granted under Directive 2003/55/EC, from the rules on third-party access and tariff regulation,

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová (Rapporteur), President, P. Nihoul and J. Svenningsen, Judges,

Registrar: E. Coulon,

makes the following

Order

Legal framework

1 Article 36 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94) is worded as follows:

‘1. Major new gas infrastructure, i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 9, 32, 33 and 34 and Article 41(6), (8) and (10) under the following conditions:

(a) the investment must enhance competition in gas supply and enhance security of supply;

(b) the level of risk attached to the investment must be such that the investment would not take place unless an exemption was granted;

(c) the infrastructure must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built;

(d) charges must be levied on users of that infrastructure; and

(e) the exemption must not be detrimental to competition or the effective functioning of the internal market in natural gas, or the efficient functioning of the regulated system to which the infrastructure is connected.

...

3. The [national regulatory authority] may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.

   ...

6. An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.

   In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.

   ...

8. The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:

   (a) the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to paragraph 1 including the relevant point or points of that paragraph on which such decision is based, including the financial information justifying the need for the exemption;

   (b) the analysis undertaken of the effect on competition and the effective functioning of the internal market in natural gas resulting from the grant of the exemption;

   (c) the reasons for the time period and the share of the total capacity of the gas infrastructure in question for which the exemption is granted;

   (d) in case the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; and

   (e) the contribution of the infrastructure to the diversification of gas supply.

9. Within a period of two months from the day following the receipt of a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority.

   ...

   The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.

   ...’

   2 Paragraph 28a(1) of the Gesetz über die Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz - EnWG) (German Law on electricity and gas supply - Law on the energy industry) of 7 July 2005 (BGBl. 2005 I, p. 1970, 3621) (‘the EnWG’), in the version applicable to the facts in the present case, allows the Bundesnetzagentur (BNetzA, Federal Network Agency, Germany), inter alia, to exempt interconnectors between the Federal Republic of Germany and other States from the provisions governing third-party access. The conditions in which Paragraph 28a of the EnWG applies are the same, in essence, as those of Article 36(1) of Directive 2009/73.

   Background to the dispute

   3 By Decision C(2009) 4694 of 12 June 2009, the Commission of the European Communities requested the BNetzA, pursuant to Article 22 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), to amend its decision of 25 February 2009 to exclude the transport capacities of the Ostseepipeline-Anbindungsleitung (OPAL) pipeline project, which is the eastern onshore section of the Nord Stream 1 pipeline, the entry point of which is near to the town of Lubmin, near Greifswald, in Germany, and the exit point in the town of Brandov, in the Czech Republic, from the application of the requirements on third-party access laid down in Article 18 of that directive and the tariff regulations laid down in Article 25(2) to (4) thereof.

   4 Decision C(2009) 4694 laid down the following conditions:

   ‘(a) Without prejudice to the requirement in (b), an undertaking dominant on one or several large markets in natural gas upstream or downstream covering the Czech Republic shall not be authorised to reserve, in a single year, more than 50% of the transport capacities of the OPAL pipeline at the Czech border. Reservations from undertakings belonging to the same group, such as Gazprom and Wingas, shall be examined together. Reservations from dominant undertakings/groups of dominant undertakings which have concluding significant long-term contracts for the supply of gas shall be examined on an aggregated basis ...

   (b) The capacity limit of 50% may be exceeded if the undertaking concerned releases onto the market a volume of 3 billion m³ of gas on the OPAL pipeline under an open, transparent and non-discriminatory procedure (“Gas Release Programme”). The undertaking managing the pipeline or the undertaking required to carry out the programme must ensure the availability of corresponding transport capacities and the free choice of the exit point (“Capacity Release Programme”). The form of the Gas Release and Capacity Release programmes is subject to the approval of the BNetzA.’

   5 On 7 July 2009, the BNetzA amended its decision of 25 February 2009, adapting it to the abovementioned conditions laid down in Decision C(2009) 4694. The exemption from the rules was granted by the BNetzA for a period of 22 years.

   6 The OPAL pipeline was put into service on 13 July 2011 and has an annual capacity of some 36.5 billion m³. By virtue of Decision C(2009) 4694 and the decision of the BNetzA of 25 February 2009, as amended by its decision of 7 July 2009, the...