EN

Official Journal of the European Union

C 297/22

(Case T-381/09)

2009/C 297/33

Language of the case: German

Parties

Applicant: RWE Transgas a.s. (Prague, Czech Republic) (represented by: W. Deselaers, D. Seeliger and S. Einhaus, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—Declare invalid the third sentence of Point 89(a) of Commission Decision C(2009) 4694 of 12 June 2009, insofar as it finds that the applicant and Gazprom — to be considered for this purpose jointly — may together account for no more than 50 % of capacity as long as substantial long-term gas supply agreements exist between them;

—in the alternative, annul the decision in its entirety;

—order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an importer of gas into the Czech Republic, has brought an action against the letter of 12 June 2009 sent by the Commission to the German energy regulator, the Bundesnetzagentur (Federal Network Agency) in which the Commission asks the Bundesnetzagentur to amend certain aspects of the exemption it has granted, pursuant to Article 22 of Directive 2003/55/EC, for the gas pipeline project Ostseepipeline-Anbindungsleitung (Baltic Sea Pipeline Link) (‘OPAL’). The applicant complains that one of the Commission’s conditions would have the effect of restricting or, as the case may be, preventing the applicant’s access to OPAL’s transport/release capacities in the Czech Republic.

In support of its action, the applicant claims, first, that the defendant infringed its right to a fair hearing by denying it any opportunity to comment on the condition imposing a burden on it before it was adopted.

Second, the applicant contends that the defendant infringed the applicant’s right of access to documents, by denying it any access to the file of the proceedings.

Finally, the applicant complains that the defendant misapplied Article 22(4) of Directive 2003/55/EC and the principle of proportionality, the principle of equal treatment and the duty to state reasons (Article 253 EC).

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).