Orders nº T-883/16 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-883/16

(Application for interim measures - Internal market in natural gas - Directive 2009/73/EC - Application by the Bundesnetzagentur for review of the exemption of the OPAL pipeline from the EU requirements for its operation - Commission Decision amending the exemption from the EU requirements - Application for a stay of execution of a measure - Lack of any urgency)

In Case T-883/16 R,

Republic of Poland, represented by B. Majczyna, M. Kawnik and K. Rudińska, acting as Agents,

applicant,

supported by

Republic of Lithuania, represented by D. Kriaučiūnas and R. Krasuckaitė, acting as Agents,

intervener,

v

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

defendant,

supported by

Federal Republic of Germany, represented by T. Henze and R. Kanitz, acting as Agents,

intervener,

REQUEST on the basis of Articles 278 and 279 TFEU seeking a stay of execution of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute

1 By Decision C(2009) 4694 of 12 June 2009, the Commission of the European Communities requested the Bundesnetzagentur (BNetzA), the Federal Networks Agency, Germany, under 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 excluding the transport capacities of the Ostseepipeline-Anbindungsleitung (‘OPAL’) pipeline project, which is the eastern on-shore 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.

2 The Commission Decision of 12 June 2009 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 having concluded significant long-term contracts for the supply of gas shall be examined on an aggregated basis …

(b) The limit of 50% of the capacities may be exceeded if the undertaking concerned releases to 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.’

3 On 7 July 2009, the BNetzA amended its decision of 25 February 2009, adapting it to the abovementioned conditions laid down in the Commission decision of 12 June 2009. The exemption from the rules was granted by the BNetzA for a period of 22 years.

4 The OPAL pipeline was put into service on 13 July 2011 and has a capacity of some 36.5 billion m³. By virtue of the decisions of the Commission of 12 June 2009 and of the BNetzA of 25 February 2009, as amended by its decision of 7 July 2009, the capacities of the OPAL pipeline were totally exempted from application of the requirements on third party access and tariff regulation on the basis of Directive 2003/55.

5 The non-reserved 50% of that pipeline’s capacity has never been used since the company Gazprom did not implement the gas transfer programme referred to in the Commission decision of 12 June 2009. The entry capacity of the pipeline near to Greifswald is of interest only to third parties who are in a position to add gas at that point in the pipeline. In the current technical configuration, natural gas can be supplied at that entry point only by the Nord Stream 1 pipeline, used by the Gazprom group to transport gas from Russian gas fields, so that only 50% of the transport capacity of the OPAL pipeline appears, a priori, to be used.

6 On 13 May 2016, the BNetzA notified the Commission, on the basis of 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), of its intention to amend certain provisions of the ‘exemption granted in 2009’ concerning the section of the OPAL pipeline managed by Opal Gastransport GmbH & Co. KG (‘OGT’).

7 On 28 October 2016, the Commission adopted, on the basis of Article 36(9) of Directive 2009/73/EC, Decision C(2016) 6950 final on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC (‘the contested decision’), which is addressed to the BNetzA.

8 In the contested decision, the Commission has maintained the exemption from the requirements on third party access granted to the OPAL pipeline for the section between the entry point near Greifswald and the exit point at Brandov for a maximum of 50% of the capacities, which it had already approved in its decision of 12 June 2009. However, the remaining 50% of the capacity on that section - unused until then because of the lack of implementation of the gas transfer programme by Gazprom - was liberalised, that is to say, made subject to the requirements on third party access. That liberalisation is to be carried out in the form of an allocation of the transport capacities which the pipeline manager is required to make in a transparent and non-discriminatory bidding procedure.

9 Since the non-discriminatory and transparent provision of the transport capacities thus liberalised could, de facto, also result in their use by Gazprom eksport, the Commission, in order to ensure that third parties may actually have access to the ‘liberalised’ capacities, raised the ceiling proposed by the BNetzA concerning the FZK interconnection capacities (feste frei zuordenbare Kapazitäten/fixed freely-attributable capacities) at the exit point of the pipeline.Thus, the OPAL pipeline manager will be required to make available to users other than the dominant company on the Czech natural gas market, in a bidding procedure, an FZK interconnection capacity of an initial volume of 3.2 million kWh. If, however, it appears, at the annual bidding procedure, that the demand for FZK capacities at the Brandov exit point is higher than 90% of the capacities offered, the BNetzA is required to increase the FZK capacities available by 1.6 million kWh at the following annual bidding procedure. The available FZK capacities may eventually reach a volume of 6.4 million kWh, namely 20% of the total capacity of the OPAL pipeline.

10 Furthermore, having regard to the upward trend of bids and in order to avoid any overbidding by the dominant entity on the Czech market, the Commission introduced an additional condition that such an entity may submit its bid in the bidding procedure for the FZK capacities only at the base price of the capacities, thus meaning that the price proposed cannot exceed the average base price of the regulated tariff on the transport network from the commercial area of Gaspool in Germany to the Czech Republic for comparable products in the same year.

11 On 28 November 2016, the BNetzA amended the exemption granted to the OPAL pipeline manager by its decision of 25 February 2009 in accordance with the contested decision.

Procedure and forms of order sought

12 By application lodged at the Registry of the General Court on 16 December 2016, the Republic of Poland brought an action for the annulment of the...