15 July 2021 (*1)

(Appeal – Article 194(1) TFEU – Principle of energy solidarity – Directive 2009/73/EC – Internal market in natural gas – Article 36(1) – Decision of the European Commission on review of the exemption of the OPAL pipeline from the requirements on third-party access and tariff regulation following a request by the German regulatory authority – Action for annulment)

In Case C‑848/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 November 2019,

Federal Republic of Germany, represented by J. Möller and D. Klebs, acting as Agents, and by H. Haller, T. Heitling, L. Reiser and V. Vacha, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

Republic of Poland, represented by B. Majczyna, M. Kawnik and M. Nowacki, acting as Agents,

applicant at first instance,

European Commission, represented by O. Beynet and K. Herrmann, acting as Agents,

defendant at first instance,

Republic of Latvia, represented initially by K. Pommere, V. Soņeca and E. Bārdiņš, and subsequently by K. Pommere, V. Kalniņa and E. Bārdiņš, acting as Agents,

Republic of Lithuania, represented by R. Dzikovič and K. Dieninis, acting as Agents,

interveners at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, E. Regan, N. Piçarra and A. Kumin, Presidents of Chambers, C. Toader (Rapporteur), D. Šváby, S. Rodin, F. Biltgen, K. Jürimäe, P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: M. Aleksejev, Head of Unit,

having regard to the written procedure and further to the hearing on 13 January 2021,

after hearing the Opinion of the Advocate General at the sitting on 18 March 2021,

gives the following

1By its appeal, the Federal Republic of Germany seeks to have set aside the judgment of the General Court of the European Union of 10 September 2019, Poland v Commission (T‑883/16, EU:T:2019:567, ‘the judgment under appeal’), by which the General Court annulled Commission Decision C(2016) 6950 final of 28 October 2016 (‘the decision at issue’) on review of the exemption of the Baltic Sea Pipeline Connector (‘the OPAL pipeline’) from the requirements on third-party access and tariff regulation granted under 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).

Legal context

European Union law

2Directive 2003/55 was repealed and replaced by 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 (OJ 2009 L 211, p. 94).

3Article 32 of Directive 2009/73, entitled ‘Third-party access’, which is identical to Article 18 of Directive 2003/55, provides:

Member States shall ensure the implementation of a system of third party access to the transmission and distribution system, and [liquefied natural gas (LNG)] facilities based on published tariffs, applicable to all eligible customers, including supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 41 by a regulatory authority referred to in Article 39(1) and that those tariffs – and the methodologies, where only methodologies are approved – are published prior to their entry into force.

Transmission system operators shall, if necessary for the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.

The provisions of this Directive shall not prevent the conclusion of long-term contracts in so far as they comply with Community competition rules.

4Article 36 of Directive 2009/73, entitled ‘New infrastructure’, which replaced Article 22 of Directive 2003/55, reads as follows:

Major new gas infrastructure, i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 9, 32, 33 and 34 and Article 41(6), (8) and (10) under the following conditions:

the investment must enhance competition in gas supply and enhance security of supply;

the level of risk attached to the investment must be such that the investment would not take place unless an exemption was granted;

the infrastructure must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built;

charges must be levied on users of that infrastructure; and

the exemption must not be detrimental to competition or the effective functioning of the internal market in natural gas, or the efficient functioning of the regulated system to which the infrastructure is connected.

…

The [national regulatory authority] may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.

…

An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.

In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.

The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:

the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to paragraph 1 including the relevant point or points of that paragraph on which such decision is based, including the financial information justifying the need for the exemption;

the analysis undertaken of the effect on competition and the effective functioning of the internal market in natural gas resulting from the grant of the exemption;

the reasons for the time period and the share of the total capacity of the gas infrastructure in question for which the exemption is granted;

in case the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; and

the contribution of the infrastructure to the diversification of gas supply.

ECLI:EU:C:2021:140

*1 Language of the case: English.

9.Within a period of two months from the day following the receipt of a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority.

…

The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.

…’

German law

5Paragraph 28a(1) of the Gesetz über die Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz – EnWG) (Law on the supply of electricity and gas) of 7 July 2005 (BGBl. 2005 I, p. 1970), in the version applicable to the facts of the present case, allows the Bundesnetzagentur (Federal Network Agency, Germany), in particular, to exempt interconnectors between Germany and other States from the application of the provisions governing third-party access. The conditions for the application of Paragraph 28a are the same, in essence, as those of Article 36(1) of Directive 2009/73.

Background to the dispute and the decision at issue

6For the purposes of these proceedings, the background to the dispute, as set out in paragraphs 5 to 18 of the judgment under appeal, may be summarised as follows.

7On 13 March 2009, the Federal Network Agency notified the Commission of two decisions of 25 February 2009 which excluded, for a period of 22 years, the capacities for cross-border transmission of the planned OPAL pipeline, which is the terrestrial section, to the west, of the Nord Stream 1 gas pipeline, from the application of the rules on third-party access laid down in Article 18 of Directive 2003/55, reproduced in Article 32 of Directive 2009/73, and tariff regulation laid down in Article 25(2) to (4) of Directive 2003/55. The two decisions concerned the shares held by the two owners of the OPAL pipeline. The company operating the 80% share of the OPAL pipeline belonging to one of those two owners is OPAL Gastransport GmbH & Co. KG (‘OGT’).

8By Decision C(2009) 4694 of 12 June 2009, the Commission asked the Federal Network Agency, pursuant to the third subparagraph of Article 22(4) of Directive 2003/55, now Article 36(9) of Directive 2009/73, to vary its decisions of 25 February 2009 by adding two conditions. The first of these concerned a prohibition against an undertaking that is dominant on one or several large markets in natural gas reserving, in a single year, more than 50% of the transport capacities of the OPAL pipeline at the Czech border. The second condition introduced an exception to that limit, which could be exceeded in the event of a release to the market, by the undertaking concerned, of an annual volume of 3 billion m³ of gas on the OPAL pipeline under an open, transparent and non-discriminatory procedure, in so far as, first, the undertaking managing the pipeline or the undertaking required to carry out the programme ensured the availability of corresponding transport capacities and the free choice of the exit point and, second, the form of the gas release and capacity release programmes was subject to the approval of the Federal Network Agency.

9On 7 July 2009, the Federal Network Agency amended its decisions of 25 February 2009 by incorporating those conditions, and granted the exemption from the rules on third-party access and tariff regulation for a period of 22 years on the basis of Directive 2003/55.

10In the technical configuration of the OPAL pipeline, which was put into service as from 13 July 2011, natural gas can be supplied at the pipeline entry point close to Greifswald (Germany) only by the Nord Stream 1 pipeline, used by the Gazprom group to transport gas from Russian gas fields. As Gazprom did not implement the gas release programme referred to in Decision C(2009) 4694, the non-reserved 50% of the capacity of the OPAL pipeline has never been used.

11On 12 April 2013, OGT, OAO Gazprom and Gazprom Export OOO formally requested the Federal Network Agency to vary certain provisions of the exemption granted by its decisions of 25 February 2009.

12Following that request, on 13 May 2016 the Federal Network Agency notified the Commission, on the basis of Article 36 of Directive 2009/73, of its intention to vary certain provisions of the exemption granted by its decisions of 25 February 2009 regarding the share of the OPAL pipeline operated by OGT. The variation proposed by the Federal Network Agency consisted, in essence, in replacing the restriction imposed by Decision C(2009) 4694 on the capacity that could be reserved by dominant undertakings with the obligation, for OGT, to offer, by auction, at least 50% of its operating capacity at the exit point of Brandov (Czech Republic).

13On 28 October 2016, the Commission adopted, on the basis of Article 36(9) of Directive 2009/73, the decision at issue, which is addressed to the Federal Network Agency and was published on the Commission website on 3 January 2017.

14In that decision, the Commission approved the amendments to the exemption regime proposed by the Federal Network Agency, subject to certain conditions, concerning, in particular (i) restriction of the initial offer of capacities to be auctioned to 3200000 kWh/h (approximately 2.48 billion m³/year) of fixed freely allocable capacities and to 12664532 kWh/h (approximately 9.83 billion m³/year) of fixed dynamically allocable capacities; (ii) an increase in the volume of fixed freely allocable capacities which had to be offered at auction in the subsequent year, if, at an annual auction, demand exceeded 90% of the capacities offered, and which had to be made in tranches of 1600000 kWh/h (approximately 1.24 billion m³/year) up to a maximum of 6400000 kWh/h (approximately 4.97 billion m³/year); and (iii) the fact that an undertaking or a group of undertakings with a dominant position in the Czech Republic or controlling more than 50% of the gas arriving at Greifswald could bid for fixed freely allocable capacities only at the base price, which was required to be set no higher than the average base price of regulated tariffs on transmission networks from the Gaspool area, comprising the north and east of Germany, to the Czech Republic for comparable products in the same year.

15On 28 November 2016, the Federal Network Agency amended the exemption granted by its decision of 25 February 2009 concerning the share of the OPAL pipeline operated by OGT, in accordance with the decision at issue, by entering into a public-law contract with OGT which, under German law, is equivalent to an administrative decision.

The procedure before the General Court and the judgment under appeal

16By application lodged at the General Court Registry on 16 December 2016, the Republic of Poland brought an action for annulment of the decision at issue.

17In support of its action, the Republic of Poland relied on six pleas in law, alleging, first, infringement of Article 36(1)(a) of Directive 2009/73, read in conjunction with Article 194(1)(b) TFEU and the principle of solidarity; second, the lack of competence of the Commission and infringement of Article 36(1) of that directive; third, infringement of Article 36(1)(b) of that directive; fourth, infringement of Article 36(1)(a) and (e) of that directive; fifth, infringement of international conventions to which the European Union is a party; and, sixth, breach of the principle of legal certainty.

18The General Court granted the Federal Republic of Germany leave to intervene in support of the form of order sought by the Commission, and granted the Republic of Latvia and the Republic of Lithuania leave to intervene in support of the form of order sought by the Republic of Poland.

19By the judgment under appeal, the General Court annulled the decision at issue on the basis of the first plea in law, without ruling on the other pleas put forward, and ordered the Commission to bear its own costs and to pay those incurred by the Republic of Poland.

20In the context of the examination of the first plea in law, after having rejected that plea, in paragraph 60 of the judgment under appeal, as being ineffective to the extent that it was based on Article 36(1)(a) of Directive 2009/73, the General Court held that the decision at issue had been adopted in breach of the principle of energy solidarity, as provided for in Article 194(1) TFEU. As regards the scope of that principle, the General Court stated, in paragraphs 72 and 73 of the judgment under appeal, that that principle entails a general obligation, for the European Union and the Member States, to take into account the interests of all stakeholders liable to be affected, and that the European Union and the Member States must therefore endeavour, in the exercise of their powers in the field of the energy policy of the European Union, to avoid adopting measures that might affect those interests, as regards security of supply, its economic and political viability and the diversification of sources of supply, and to do so in order to take account of their interdependence and de facto solidarity.

21In its assessment as to whether the decision at issue breached the principle of energy solidarity, the General Court found, in paragraphs 81 and 82 of the judgment under appeal, that that decision undermined it, in so far as, first, the Commission did not carry out an examination of the impact of the variation of the regime governing the operation of the OPAL pipeline on the security of supply in Poland and, second, it does not appear that the Commission examined what the medium-term consequences, inter alia for the energy policy of the Republic of Poland, might be of the transfer to the Nord Stream 1/OPAL transit route of part of the volumes of natural gas previously transported via the Yamal and Braterstwo pipelines, or that it balanced those effects against the increased security of supply that it had observed at EU level.

Forms of order sought

The Federal Republic of Germany claims that the Court should:

–set aside the judgment under appeal;

–refer the case back to the General Court; and

–reserve the costs.

The Republic of Poland contends that the Court should:

–dismiss the appeal in its entirety as unfounded and, as regards the third ground of appeal, as inadmissible; and

–order the Federal Republic of Germany to pay the costs.

The Republic of Latvia and the Republic of Lithuania, interveners at first instance, contend that the Court should dismiss the appeal.

The Commission, which did not submit a response pursuant to Article 172 of the Rules of Procedure of the Court of Justice, requested the Court, during the oral part of the procedure before the Court, to uphold the first ground of appeal.

The appeal

The Federal Republic of Germany relies on five grounds of appeal.

First ground of appeal: incorrect legal assessment of the principle of energy solidarity

Arguments of the parties

27By its first ground of appeal, the appellant submits that, contrary to the General Court’s finding in paragraph 70 of the judgment under appeal, the principle of energy solidarity as set out in Article 194(1) TFEU does not have binding effect, in the sense that it does not entail rights and obligations for the European Union and the Member States. According to the Federal Republic of Germany, it is an abstract, purely political notion, and not a legal criterion for the assessment of the validity of an act of an EU institution. It is only by the adoption of more specific rules in secondary legislation that such a principle could become a legal criterion to be implemented and applied by the executive. This follows from the fact that it is not the purpose of primary law to establish legal criteria that might be relied on before the courts, but to define in political terms the general framework within which the European Union is to develop and the European Union’s objectives, the latter being pursued and more closely defined by regulations and directives.

28According to the appellant, the Commission did not err in examining the requirements of Article 36(1) of Directive 2009/73, that provision being the only criterion by which the legality of the decision at issue may be reviewed. That provision, which imbues the principle of energy solidarity with specific legal content, requires that only security of supply must be verified. By contrast, other abstract aspects of the principle of energy solidarity cannot be relied on before the courts.

29In addition, the Federal Republic of Germany submits that there is no evidence to suggest an obligation on the Commission, as executive body of the European Union, arising from the principle of energy solidarity as such, beyond the specific form given to that principle in Article 36(1) of Directive 2009/73, that principle being binding, at most, on the EU legislature.

30The Republic of Poland, supported by the Republic of Latvia and the Republic of Lithuania, contends that the first ground of appeal is unfounded.

31In particular, the Republic of Poland counters that the principle of energy solidarity, to which Article 194(1) TFEU refers, constitutes the specific expression of the general principle of solidarity between the Member States. According to the Republic of Poland, in the hierarchy of sources of EU law, general principles rank equally with primary law. In that regard, it argues that acts of secondary legislation must be interpreted, and their legality assessed, in the light of that principle. Consequently, the claim by the Federal Republic of Germany that Article 36(1) of Directive 2009/73 constitutes the only criterion for reviewing the legality of the decision at issue is incorrect.

32Thus, according to the Republic of Poland, the principle of solidarity is binding not only on the Member States but also on the EU institutions, including the Commission, which, as guardian of the Treaties, must ensure that the general interest of the European Union is served.

33In addition, the Republic of Poland claims that the security of gas supply in the European Union, which is one of the objectives of EU energy policy, must be ensured in accordance with the principle of solidarity laid down in Article 194(1) TFEU, that principle being a criterion for the assessment of the legality of measures adopted by the EU institutions, and in the present case of the decision at issue. It follows that the arguments of the Federal Republic of Germany aimed at reducing that principle to a purely political notion are unfounded.

34The Republic of Latvia submits that the Federal Republic of Germany wrongly seeks to reduce the scope and application of the principle of energy solidarity, when Article 194(1) TFEU, which is a provision of primary law, imposes obligations on the Member States and on the EU institutions. That principle prevents the Member States from taking certain measures which impede the functioning of the European Union. The Commission should ensure in that respect that the Member States respect the principle of energy solidarity when implementing Article 36(8) of Directive 2009/73.

35The Republic of Lithuania also takes issue with the categorisation of the principle of energy solidarity in the appeal. In its view, that principle is derived from the principle of sincere cooperation, laid down in Article 4(3) TEU, and from the principle of solidarity, laid down in Article 3(3) TEU. As a general principle of EU law, the principle of energy solidarity could be relied on in the context of the judicial review of the legality of Commission decisions, under Article 263 TFEU.

36At the hearing, the Commission was invited by the Court to comment on the first ground of appeal. The Commission stated that it concurred with the argument put forward by the Federal Republic of Germany, in so far as the principle of energy solidarity is not an autonomous legal criterion that may be invoked in order to assess the legality of an act. According to the Commission, that principle is binding on the EU legislature only when it adopts an act of secondary legislation. The Commission, as executive body, is bound only by the requirements laid down in Article 36(1)(a) of Directive 2009/73, and the principle of energy solidarity can only be a criterion in the light of which the provisions of secondary legislation are interpreted.

Findings of the Court