Federal Republic of Germany v European Commission.

• Jurisdiction: European Union
• Date: 15 July 2021
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

15 July 2021 (*)

(Appeal – Article 194(1) TFEU – Principle of energy solidarity – Directive 2009/73/EC – Internal market in natural gas – Article 36(1) – Decision of the European Commission on review of the exemption of the OPAL pipeline from the requirements on third-party access and tariff regulation following a request by the German regulatory authority – Action for annulment)

In Case C‑848/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 November 2019,

Federal Republic of Germany, represented by J. Möller and D. Klebs, acting as Agents, and by H. Haller, T. Heitling, L. Reiser and V. Vacha, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

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

applicant at first instance,

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

defendant at first instance,

Republic of Latvia, represented initially by K. Pommere, V. Soņeca and E. Bārdiņš, and subsequently by K. Pommere, V. Kalniņa and E. Bārdiņš, acting as Agents,

Republic of Lithuania, represented by R. Dzikovič and K. Dieninis, acting as Agents,

interveners at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, E. Regan, N. Piçarra and A. Kumin, Presidents of Chambers, C. Toader (Rapporteur), D. Šváby, S. Rodin, F. Biltgen, K. Jürimäe, P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: M. Aleksejev, Head of Unit,

having regard to the written procedure and further to the hearing on 13 January 2021,

after hearing the Opinion of the Advocate General at the sitting on 18 March 2021,

gives the following

Judgment

1 By its appeal, the Federal Republic of Germany seeks to have set aside the judgment of the General Court of the European Union of 10 September 2019, Poland v Commission (T‑883/16, EU:T:2019:567, ‘the judgment under appeal’), by which the General Court annulled Commission Decision C(2016) 6950 final of 28 October 2016 (‘the decision at issue’) on review of the exemption of the Baltic Sea Pipeline Connector (‘the OPAL pipeline’) from the requirements on third-party access and tariff regulation granted under 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).

Legal context

European Union law

2 Directive 2003/55 was repealed and replaced by 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).

3 Article 32 of Directive 2009/73, entitled ‘Third-party access’, which is identical to Article 18 of Directive 2003/55, provides:

‘1. Member States shall ensure the implementation of a system of third party access to the transmission and distribution system, and [liquefied natural gas (LNG)] facilities based on published tariffs, applicable to all eligible customers, including supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 41 by a regulatory authority referred to in Article 39(1) and that those tariffs – and the methodologies, where only methodologies are approved – are published prior to their entry into force.

2. Transmission system operators shall, if necessary for the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.

3. The provisions of this Directive shall not prevent the conclusion of long-term contracts in so far as they comply with Community competition rules.’

4 Article 36 of Directive 2009/73, entitled ‘New infrastructure’, which replaced Article 22 of Directive 2003/55, reads 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.

…’

German law

5 Paragraph 28a(1) of the Gesetz über die Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz – EnWG) (Law on the supply of electricity and gas) of 7 July 2005 (BGBl. 2005 I, p. 1970), in the version applicable to the facts of the present case, allows the Bundesnetzagentur (Federal Network Agency, Germany), in particular, to exempt interconnectors between Germany and other States from the application of the provisions governing third-party access. The conditions for the application of Paragraph 28a are the same, in essence, as those of Article 36(1) of Directive 2009/73.

Background to the dispute and the decision at issue

6 For the purposes of these proceedings, the background to the dispute, as set out in paragraphs 5 to 18 of the judgment under appeal, may be summarised as follows.

7 On 13 March 2009, the Federal Network Agency notified the Commission of two decisions of 25 February 2009 which excluded, for a period of 22 years, the capacities for cross-border transmission of the planned OPAL pipeline, which is the terrestrial section, to the west, of the Nord Stream 1 gas pipeline, from the application of the rules on third-party access laid down in Article 18 of Directive 2003/55, reproduced in Article 32 of Directive 2009/73, and tariff regulation laid down in Article 25(2) to (4) of Directive 2003/55. The two decisions concerned the shares held by the two owners of the OPAL pipeline. The company operating the 80% share of the OPAL pipeline belonging to one of those two owners is OPAL Gastransport GmbH & Co. KG (‘OGT’).

8 By Decision C(2009) 4694 of 12 June 2009, the Commission asked the Federal Network Agency, pursuant to the third subparagraph of Article 22(4) of Directive 2003/55, now Article 36(9) of Directive 2009/73, to vary its decisions of 25 February 2009 by adding two conditions. The first of these concerned a prohibition against an undertaking that is dominant on one or several large markets in natural gas...