EN

Official Journal of the European Union

C 267/66

(Case T-317/09)

2009/C 267/120

Language of the case: German

Parties

Applicant: Concord Power Nordal GmbH (Hamburg, Germany) (represented by: C. von Hammerstein, C.-S. Schweer and C. Wünschmann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—Annul the Commission’s decision of 12 June 2009 (ref: CAB D(2009)) in so far as it concerns the gas pipeline project Ostseepipeline-Anbindungsleitung (‘OPAL’);

—order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant, which is responsible for the NORDAL gas pipeline project, objects to a letter from the Commission to the German energy regulatory authority, the Bundesnetzagentur, of 12 June 2009 in which the Commission requests the Bundesnetzagentur to make certain amendments to the exemption granted in respect of OPAL pursuant to Article 22 of Directive 2003/55/EC. (<span class="super">1</span>) The applicant complains that the Commission failed to object fundamentally to the exemption from regulation granted in respect of some of OPAL’s transportation capacity to the Czech Republic.

In support of its claim, the applicant puts forward five pleas in law.

First, the applicant complains that OPAL does not satisfy the requirements of Article 22(1) of Directive 2003/55/EC, as it is not an interconnector, does not enhance competition or security of supply, does not amount to an extraordinary investment risk and infringes the unbundling requirement. In that respect, it is also submitted that the exemption will be detrimental to competition and to the effective functioning of the internal market and of the regulated system.

Second, the applicant submits that the conditions attached to the grant of the exemption are not capable of preventing harm to competition, or enforceable.

Further, the applicant alleges infringement of Article 82 EC, of its fundamental rights (namely the freedom of enterprise and of ownership) and of the principle of Community loyalty.

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).