delivered on 6 October 2021 (1)

Case C‑348/20 P

(Appeal – Energy – Internal market in natural gas – Directive (EU) 2019/692 – Application of Directive 2009/73/EC to gas lines to or from third countries – Fourth paragraph of Article 263 TFEU – Locus standi of an individual – Direct concern – Individual concern – Rules on the submission of evidence before the EU Courts – Admissibility of internal documents of the EU institutions)

1.Nord Stream 2 AG (‘the appellant’) is challenging the order of the General Court (2) which dismissed as inadmissible its action under Article 263 TFEU seeking the annulment of Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas (‘the contested measure’). (3) The contested measure is aimed at ensuring that the rules applicable to gas transmission lines connecting two or more Member States are also applicable, within the European Union, to gas transmission lines to and from third countries. (4) In that order, the General Court also ordered that some documents produced by the appellant in the course of the proceedings be removed from the file.

2.The present appeal raises two important and distinct issues of a procedural nature. First, can an individual be directly concerned, within the meaning of Article 263 TFEU, by a directive? Second, what considerations should guide the assessment of the admissibility of written evidence produced by the parties in proceedings before the EU Courts, in particular the admissibility of internal documents of the EU institutions?

II. Factual and legal background

3.The facts and the legal background of the present case can be summarised as follows.

4.Pursuant to its Article 1, 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 (‘the Gas Directive’) (5) establishes common rules for the transmission, distribution, supply and storage of natural gas. It lays down the rules relating to the organisation and functioning of the natural gas sector, access to the market, the criteria and procedures applicable to the granting of authorisations for transmission, distribution, supply and storage of natural gas and the operation of systems.

5.In order to remove any conflict of interests between producers, suppliers and transmission system operators, and to create incentives for the necessary investments and also to guarantee the access of new market entrants under a transparent and efficient regulatory regime, the Gas Directive provides for the separation of networks from the activities of production and supply. (6) In particular, Article 9 of that directive lays down an obligation to unbundle transmission systems and transmission system operators. (7) In addition, the Gas Directive also provides for the introduction of a system of non-discriminatory third-party access to gas transmission and distribution systems on the basis of published tariffs (Article 32), to be approved by the national regulatory authorities (Article 41).

6.Under Article 36 of the Gas Directive, major new gas infrastructure, including interconnectors, may, upon request and under certain conditions, be exempted, for a defined period of time, from some of the obligations laid down by that directive. In order to benefit from that exemption, it must, inter alia, be shown that the investment will enhance competition in gas supply, enhance security of supply, and that the level of risk attached to the investment is such that that investment would not take place unless an exemption was granted.

7.The appellant is a company incorporated under Swiss law whose sole shareholder is the Russian public joint stock company Gazprom. It is responsible for the planning, construction and operation of the Nord Stream 2 pipeline. Construction of that pipeline started in 2018 and, at the date on which the appeal in the present case was lodged, had not been completed. Like the Nord Stream (now commonly known as Nord Stream 1) pipeline – whose construction was completed in 2012 – the Nord Stream 2 pipeline consists of two gas transmission lines intended to ensure the flow of gas between Vyborg (Russia) and Lubmin (Germany).

8.On 17 April 2019, acting on a Proposal of the European Commission of 8 November 2017, the European Parliament and the Council of the European Union adopted the contested measure.

9.Pursuant to recital 3 of the contested measure, that directive seeks to address obstacles to the completion of the internal market in natural gas which resulted from the non-application, until then, of EU market rules to gas transmission lines to and from third countries.

10.In that regard, Article 2(17) of the Gas Directive, as amended by the contested measure, provides that the concept of an ‘interconnector’ covers not only ‘[any] transmission line which crosses or spans a border between Member States for the purpose of connecting the national transmission system of those Member States’, but also, now, ‘[any] transmission line between a Member State and a third country up to the territory of the Member States or the territorial sea of that Member State’.

11.Under Article 49a(1) of the Gas Directive, as added by the contested measure, in respect of gas transmission lines between a Member State and a third country completed before 23 May 2019, the Member State where the first connection point of such a transmission line with that Member State’s network is located may, under certain conditions, decide to derogate from certain provisions of the Gas Directive for the sections of such gas transmission line located in its territory and territorial sea. Derogations of that kind are limited to a maximum of 20 years but are renewable.

12.Regarding the implementation of the amendments made to the Gas Directive by the contested measure, Article 2 of the latter requires that, with some exceptions, Member States bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 24 February 2020, ‘without prejudice to any derogation pursuant to Article 49a of [the Gas Directive]’.

III. Proceedings before the General Court and the order under appeal

13.By its application of 26 July 2019, the appellant brought an action under Article 263 TFEU before the General Court, seeking the annulment of the contested measure.

14.In its application, the appellant argued that the stated objectives of the contested measure, namely to extend the application of the provisions of the Gas Directive to offshore import pipelines in order to improve the functioning of the internal market while allowing for derogation so as to protect existing investments, are not in fact its actual purpose. According to the appellant, the contested measure was adopted for the purposes of discouraging and placing at a disadvantage the exploitation of the Nord Stream 2 pipeline. As such, the lawfulness of that measure was, in the appellant’s view, vitiated by an infringement of the principles of non-discrimination, proportionality and legal certainty, by a breach of essential procedural requirements, by a misuse of power and by a failure to state reasons.

15.On 10 and 11 October 2019, respectively, the Parliament and the Council each raised a plea of inadmissibility of the action. The appellant filed its observations on the pleas of inadmissibility on 29 November 2019, asking the General Court to reserve its decision until it ruled on the substance of the case or, in the alternative, to reject the pleas as unfounded.

16.On 11 October 2019, the Council asked the General Court, pursuant to Article 130(2) of the Rules of Procedure of the General Court (‘the application for a decision on a procedural issue’), to: (i) order that certain documents not form part of the case file or, regarding three documents produced by the appellant, that they be removed from that file; and (ii) disregard all the passages of the application and the annexes thereto which refer to those documents of the Council that are classified as ‘Restreint UE/EU Restricted’, describe their content, or rely thereon. The three documents produced by the appellant, which the Council asked to have removed, were, first, an opinion of the Council’s Legal Service of 27 September 2017 (8) (‘the Legal Service Opinion’ or ‘Annex A.14’), second, the Recommendation, submitted by the Commission on 9 June 2017, for a Council decision authorising the opening of negotiations on an agreement between the European Union and the Russian Federation on the operation of the Nord Stream 2 pipeline (‘the Recommendation’ or ‘Annex O.20’), and third, the Negotiating Directives of 12 June 2017, appended to the Recommendation (‘the Negotiating Directives’).

17.On 4 November 2019, the appellant filed its observations regarding the application for a decision on a procedural issue, in which it asked the General Court to reject that application.

18.On 29 November 2019, the appellant also requested the General Court, pursuant to Article 88 of the Rules of Procedure of the General Court, to adopt a measure of organisation of procedure or, if appropriate, a measure of inquiry, consisting in asking the defendants to produce certain documents held by the Council (‘the request for a measure of organisation of procedure’). That request concerned the production of unredacted versions of those documents, since a redacted version thereof had already been made available by the Council, following a request for access under Regulation (EC) No 1049/2001 (9) by an employee of the appellant. In that context, the appellant annexed to its request two unredacted versions of the requested documents which it had previously obtained: certain comments from the German Government on the proposal for the contested measure (‘the Unredacted Germany Documents’ or ‘Annexes M.26 and M.30’).

19.On 17 January 2020, the Parliament and the Council filed their observations regarding the request for a measure of organisation of procedure. Inter alia, the Council requested that Annexes M.26 and M.30 be removed from the file.

20.On 20 May 2020, the General Court adopted the order under appeal. The operative part of the order under appeal reads as follows:

1.‘1. The documents produced by Nord Stream 2 AG as Annexes A. 14 and O. 20 are removed from the file and there is no need to take account of the passages of the application and annexes in which extracts of those documents are reproduced.

2.The application for a decision on a procedural issue submitted by the Council of the European Union is dismissed as to the remainder.

3.The documents produced by Nord Stream 2 as Annexes M. 26 and M. 30 are removed from the file.

4.The action is dismissed as inadmissible.

5.There is no need to adjudicate on the applications for leave to intervene submitted by the Republic of Estonia, by the Republic of Latvia, by the Republic of Lithuania, by the Republic of Poland and by the European Commission.

6.Nord Stream 2 is ordered to pay the costs of the European Parliament and of the Council, except for those relating to the applications for leave to intervene.

7.Nord Stream 2, the Parliament and the Council, as well as the Republic of Estonia, the Republic of Latvia, the Republic of Lithuania, the Republic of Poland and the Commission, are to bear their own costs in relation to the applications for leave to intervene.’

21.In its appeal before the Court, lodged on 28 July 2020, the appellant asks the Court:

–to set aside the order under appeal, in particular points 1, 3, 4 and 6 of the operative part;

–to the extent that the Court of Justice considers the state of the proceedings so permit, to reject the plea of inadmissibility, declare the action admissible and refer the case back to the General Court to rule on the substance or, in the alternative, to declare the contested measure to be of direct concern to the appellant and refer the case back to the General Court to rule on individual concern or join it to the substance; and

–order the Council and Parliament to pay the appellant’s costs, including the costs before the General Court.

22.For their part, the Council and the Parliament (‘the defendants’) ask the Court to dismiss the appeal and order the appellant to pay the costs.