On March 18th 2021, the Advocate General of the Court of Justice of the EU Manuel Campos Sánchez-Bordona delivered Opinion on the German appeal against the judgment of the General Court of the EU on the European Commission’s decision, which practically exempted the OPAL gas pipeline from the EU rules prohibiting the monopolization of transmission infrastructure. The Advocate General’s Opinion affirms the main points of the judgment of the EU General Court, which held that the EC decision was issued with a breach of EU law.

‘The Advocate General’s Opinion delivered today confirms arguments raised by the Polish government and PGNiG SA since 2016. The case has relevance beyond a single particular pipeline. Preventing monopoly use of the entire OPAL pipeline capacity is good news not only for Poland but also for the European Union’s energy security and proper functioning of the EU gas market,’ noted Paweł Majewski, President of the Management Board of PGNiG SA.

Concluding the first-instance proceedings in the case in September 2019, the General Court of the EU not only annulled the European Commission’s decision but also confirmed the key role of the principle of energy solidarity and clarified its meaning. In Advocate General’s Opinion, the EU General Court rightly took the view that the principle of energy solidarity ‘entails rights and obligations both for the European Union and for the Member States’ and requires the European Commission, when adopting its decisions, to assess the interests of each of them on a case-by-case basis. Consequently, the Advocate General supported upholding the judgment of the EU General Court annulling the European Commission decision on the grounds of non-compliance with the principle of energy solidarity.

‘We do not want energy solidarity in the European Union to be just empty words, freely interpreted to suit current needs, but a legal principle that is binding on the EU institutions and respected by the Member States. We expect the energy solidarity principle to be applied also with respect to Nord Stream 2,’ Mr Majewski added.

The Advocate General’s Opinion is relevant to, but not binding on, the Court in passing final judgment.

The judgment will be crucial in deciding the complaint filed by PGNiG SA and PGNiG Supply&Trading GmbH against the administrative settlement between the German regulator (Bundesnetzagentur), PAO Gazprom, OOO Gazprom Export and OPAL Gastransport GmbH, implementing the rules of regulatory exemption for the OPAL gas pipeline in Germany and allowing Gazprom to use the entire capacity of the pipeline. Proceedings in this case are pending before the Higher Regional Court of Düsseldorf.

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As a result of actions taken by the governments of Poland, Lithuania and Latvia, on September 10th 2019 the EU General Court annulled the European Commission’s Decision of October 28th 2016 authorising the exemption of the OPAL gas pipeline from the obligations arising under the Third Energy Package. The judgment confirmed Poland’s arguments that, when issuing its decision, the European Commission infringed the European Union’s regulations by failing to examine its impact on Poland’s energy security.

In December 2019, the German government brought an appeal against the judgment of the General Court of the European Union before the Court of Justice, demanding it be set aside.

The EC Decision approved the monopoly on the use of Germany’s OPAL gas pipeline given to Gazprom by the German energy regulatory authority. PGNiG S.A., PGNiG Supply&Trading GmbH, Ukraine’s Naftohaz and Poland, supported by Lithuania and Latvia, filed a complaint against the Decision in December 2016. Also in December 2016, PGNiG SA and PGNiG Supply&Trading filed a complaint before the Higher Regional Court of Düsseldorf against the administrative settlement between the German energy regulatory authority (Bundesnetzagentur) and PAO Gazprom, OOO Gazprom Export and OPAL Gastransport GmbH implementing the rules of regulatory exemption for the OPAL gas pipeline. The case is pending.