Judgment of the General Court Fourth Chamber, Extended Composition of 25 October 2023, Bulgarian Energy Holding and Others v Commission, T-136/19

• Date: 25 October 2023
• Year: 2023

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market was not independent, in that it relied on a licence and subject to significant royalties. As a

result, strong price competition between Teva and Cephalon was unlikely.

Since the other pleas raised by Cephalon and Teva have also proved to be unfounded, the Court

dismisses the action in its entirety.

2. ABUSE OF A DOMINANT POSITION (ARTICLE 102 TFEU)

Judgment of the General Court (Fourth Chamber, Extended Composition) of 25 October

2023, Bulgarian Energy Holding and Others v Commission, T-136/19

Link to the judgment as published in extract form

Competition – Abuse of a dominant position – Internal market in natural gas – Decision finding an

infringement of Article 102 TFEU – Regulated market – Definition of the relevant market – Romanian

Transit Pipeline 1 – Holder of an exclusive right to use the Romanian Pipeline 1 – Refusal to grant access –

Public supply obligation – State action defence – Transmission system operator – Storage system

operator – Anticompetitive strategy – Exclusionary effects – Single and continuous infringement – Rights

of the defence

At the time of the facts, the applicants, namely the company Bulgarian Energy Holding EAD, which was

wholly owned by the Bulgarian State, and its subsidiaries Bulgargaz and Bulgartransgaz (together, ‘the

BEH Group’), were active in the energy sector in Bulgaria. Bulgargaz was the public gas supplier in

Bulgaria whereas Bulgartransgaz was the gas transmission system operator (‘the TSO’) and the

operator of the only natural gas storage facility in Bulgaria (‘the Chiren storage facility’).

During the infringement period (namely 30 July 2010 to 1 January 2015), the supply of gas in Bulgaria

depended almost entirely on imports of Russian gas, of which Bulgargaz was the sole or main

importer. Bulgargaz was thus also the main supplier of gas to downstream wholesale customers on

the market and to end customers, namely undertakings directly connected to the gas transmission

network.

The Russian gas was transported to Bulgaria via Ukraine, then Romania, up to the Bulgarian network

connection point, mainly through a transit pipeline (‘the Romanian Pipeline 1’) which was managed by

Transgaz, the Romanian TSO. During the infringement period, that pipeline ensured the supply of the

majority of Bulgarian territory, via the national transmission network which, in turn, was connected to

the Chiren storage facility.

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Under an agreement concluded between Transgaz and Bulgargaz in

2005 (‘the 2005 Agreement’) which remained in force throughout the infringement period, Bulgargaz

was granted exclusive use of the Romanian Pipeline 1, in return for a fixed annual fee.

On 18 November 2010, Overgas Inc., an operator in the gas supply market in Bulgaria, lodged with the

European Commission an informal complaint against the BEH Group, alleging that it had infringed

Article 102 TFEU.

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The Romanian Transit Pipelines 2 and 3 transported the Russian gas from the Ukrainian-Romanian border to the Romanian-Bulgarian

border at the Negru Vodă 2 and 3 entry points, and merged on Bulgarian territory, forming the Bulgarian transit pipeline. That pipeline was

used for limited supplies in the south-west of Bulgaria and mainly transported gas to the former Yugoslav Republic of Macedonia, Greece

and Türkiye.