21 July 2017 (*1)

(Application for interim measures — Internal market in natural gas — Directive 2009/73/EC — Application by the Bundesnetzagentur for review of the exemption of the OPAL pipeline from the EU requirements for its operation — Commission decision amending the exemption from the EU requirements — Application for a stay of execution of a measure — Lack of any urgency)

In Case T‑849/16 R,

PGNiG Supply & Trading GmbH, established in Munich (Germany), represented by M. Jeżewski, lawyer,

applicant,

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

defendant,

supported by

Federal Republic of Germany, represented by T. Henze and R. Kanitz, acting as Agents,

intervener,

REQUEST on the basis of Articles 278 and 279 TFEU seeking a stay of execution of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC,

makes the following

Background to the dispute

1By Decision C(2009) 4694 of 12 June 2009, the Commission of the European Communities requested the Bundesnetzagentur (BNetzA, the Federal Networks Agency, Germany), under Article 22 of 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), to amend its decision of 25 February 2009 excluding the transport capacities of the Ostseepipeline-Anbindungsleitung (OPAL) pipeline project, which is the eastern on-shore section of the Nord Stream 1 pipeline, the entry point of which is near to the town of Lubmin, near Greifswald, in Germany, and the exit point in the town of Brandov, in the Czech Republic, from the application of the requirements on third party access laid down in Article 18 of that directive and the tariff regulations laid down in Article 25(2) to (4) thereof.

The Commission Decision of 12 June 2009 laid down the following conditions:

‘(a) Without prejudice to the requirement in (b), an undertaking dominant on one or several large markets in natural gas upstream or downstream covering the Czech Republic shall not be authorised to reserve, in a single year, more than 50% of the transport capacities of the OPAL pipeline at the Czech border. Reservations from undertakings belonging to the same group, such as Gazprom and Wingas, shall be examined together. Reservations from dominant undertakings/groups of dominant undertakings having concluding significant long-term contracts for the supply of gas shall be examined on an aggregated basis ...

(b) The limit of 50% of the capacities may be exceeded if the undertaking concerned releases to the market a volume of 3 billion m³ of gas on the OPAL pipeline under an open, transparent and non-discriminatory procedure (“Gas release programme”). The undertaking managing the pipeline or the undertaking required to carry out the programme must ensure the availability of corresponding transport capacities and the free choice of the exit point (“Capacity release programme”). The form of the Gas Release and Capacity Release programmes is subject to the approval of the BNetzA.’

3On 7 July 2009, the BNetzA amended its decision of 25 February 2009, adapting it to the abovementioned conditions laid down in the Commission decision of 12 June 2009. The exemption from the rules (‘the 2009 exemption’) was granted by the BNetzA for a period of 22 years.

4The OPAL pipeline was put into service on 13 July 2011 and has a capacity of some 36.5 billion m³. By virtue of the decision of the Commission of 12 June 2009 and the decision of the BNetzA of 25 February 2009, as amended by its decision of 7 July 2009, the capacities of the OPAL pipeline were totally exempted from application of the requirements on third party access and tariff regulation on the basis of Directive 2003/55.

5The non-reserved 50% of that pipeline’s capacity has never been used since the company Gazprom did not implement the gas transfer programme referred to in the Commission decision of 12 June 2009. The entry capacity of the pipeline near to Greifswald is of interest only to third parties who are in a position to add gas at that point in the pipeline. In the current technical configuration, natural gas can be supplied at that entry point only by the Nord Stream 1 pipeline, used by the Gazprom group to transport gas from Russian gas fields, so that only 50% of the transport capacity of the OPAL pipeline appears, a priori, to be used.

6On 13 May 2016, the BNetzA notified the Commission, on the basis of Article 36 of 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 (OJ 2009 L 211, p. 94), of its intention to amend certain provisions of the 2009 exemption concerning the section of the OPAL pipeline managed by Opal Gastransport GmbH & Co. KG (‘OGT’).

7On 28 October 2016, the Commission adopted, on the basis of Article 36(9) of Directive 2009/73, Decision C(2016) 6950 final on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55 (‘the contested decision’), which is addressed to the BNetzA.

8In the contested decision, the Commission has maintained the exemption from the requirements on third party access granted to the OPAL pipeline for the section between the entry point near Greifswald and the exit point at Brandov for a maximum of 50% of the capacities, which it had already approved in its decision of 12 June 2009. However, the remaining 50% of the capacity on that section — unused until then because of the lack of implementation of the gas transfer programme by Gazprom — was liberalised, that is to say, made subject to the requirements on third party access. That liberalisation is to be carried out in the form of an allocation of the transport capacities which the pipeline manager is required to make in a transparent and non-discriminatory auction.

9Since the non-discriminatory and transparent provision of the transport capacities thus liberalised could, de facto, also result in their use by Gazprom eksport, the Commission, in order to ensure that third parties may actually have access to the ‘liberalised’ capacities, raised the ceiling proposed by the BNetzA concerning the FZK interconnection capacities (feste frei zuordenbare Kapazitäten/fixed freely-attributable capacities) at the exit point of the pipeline. Thus, the OPAL pipeline manager will be required to make available to users other than the dominant company on the Czech natural gas market, in a bidding procedure, an FZK interconnection capacity of an initial volume of 3.2 million kWh. If, however, it appears, at the annual bidding procedure, that the demand for FZK capacities at the Brandov exit point is higher than 90% of the capacities offered, the BNetzA is required to increase the FZK capacities available by 1.6 million kWh at the following annual bidding procedure. The available FZK capacities may eventually reach a volume of 6.4 million kWh, namely 20% of the total capacity of the OPAL pipeline.

10Furthermore, having regard to the upward trend of bids and in order to avoid any overbidding by the dominant entity on the Czech market, the Commission introduced an additional condition that such an entity may submit its bid in the bidding procedure for the FZK capacities only at the base price of the capacities, thus meaning that the price proposed cannot exceed the average base price of the regulated tariff on the transport network from the commercial area of Gaspool in Germany to the Czech Republic for comparable products in the same year.

11On 28 November 2016, the BNetzA amended the exemption granted to the OPAL pipeline manager by its decision of 25 February 2009 in accordance with the contested decision.

Procedure and forms of order sought

12By application lodged at the Registry of the General Court on 4 December 2016, the applicant, PGNiG Supply & Trading GmbH (‘PGNiG Supply’), brought an action for the annulment of the contested decision.

13By a separate document, lodged at the Court Registry on the same date, PGNiG Supply brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:

–stay the execution of the contested decision until delivery of the judgment closing the main proceedings;

–order the Commission to require the BNetzA to suspend the implementation of the Commission position, set out in the contested decision, until delivery of the judgment closing the main proceedings;

–order the Commission to require the BNetzA to take all possible legal measures in order to suspend, until delivery of the judgment closing the main proceedings, the execution of a decision, operation, public law contract or any other implementing measure amending, supplementing, repealing or affecting in any other way the decision of the BNetzA of 25 February 2009, in the version of 7 July 2009;

–order the Commission to require the BNetzA to exercise its right of termination of the contract concluded on 28 November 2016 with OGT, PJSC Gazprom and Gazprom eksport and subsequently adopt a new implementing measure under national law, by a procedure guaranteeing the participation of third parties, including non-governmental organisations;

–order the Commission to require OGT to abstain, until delivery of the judgment closing the main proceedings, from granting access to the transport capacities of the OPAL pipeline on conditions other than those fixed by the decision of the BNetzA of 25 February 2009, in the version of 7 July 2009;

–order the Commission or OGT to take any other measures which the President of the General Court considers appropriate, in order to achieve a similar effect;

–consider the present application before 23 December 2016, by application of Article 157(2) of the Rules of Procedure of the General Court.

In its observations on the application for interim measures, lodged at the Registry of the General Court on 14 December 2016, the Commission contends essentially that the President of the General Court should:

–dismiss that application;

–order PGNiG Supply to pay the costs.

By order of 23 December 2016, PGNiG Supply & Trading v Commission (T‑849/16 R), the President of the General Court, by virtue of Article 157(2) of the Rules of Procedure, granted the stay of execution sought until delivery of the order closing the present interim proceedings. In addition, he put a series of questions to the parties, who replied to them on 16 January 2017.

By documents lodged at the Registry of the General Court on 10 January 2017, OGT and Gazprom eksport applied for leave to intervene in the present interim proceedings in support of the form of order sought by the Commission. On 18 January 2017, the main parties lodged their observations on those applications.

On 1 February 2017, the President of the General Court granted the application for leave to intervene made by the Federal Republic of Germany, lodged on 19 January 2017, to which neither the Commission nor PGNiG Supply expressed any objection in their observations lodged on 30 and 31 January 2017 respectively. The statement in intervention of the Federal Republic of Germany in support of the form of order sought by the Commission was lodged at the Registry of the General Court on 9 February 2017. The Commission and PGNiG Supply lodged their observations on that statement on 3 and 10 March 2017 respectively.

On 3 February 2017, Operator Gazociągów Przesyłowych Gaz-System S.A. (‘Gaz-System’) applied for leave to intervene in support of the form of order sought by PGNiG Supply. On 14 February 2017, the main parties submitted their observations on that application.

On 28 February 2017, PGNiG Supply lodged a supplementary statement and an annex consisting of [confidential]. (1) On 28 June 2017, PGNiG Supply requested confidential treatment for those documents as regards the Federal Republic of Germany, which did not contest that request.

Since the contested decision was published on 3 January 2017 on the Commission’s internet site, on 13 March 2017 PGNiG Supply lodged a supplementary pleading to its application for interim measures, on which the Commission and the Federal Republic of Germany lodged their observations on 3 April 2017.

By letter of 22 June 2017, the parties were invited to a hearing on 5 July 2017 to set out their arguments concerning the conditions relating to the urgency and the balancing of the interests. On that occasion, the Commission and the Federal Republic of Germany were informed that, due to the request for confidential treatment as regards the supplementary statement and its annex lodged by PGNiG Supply on 28 February 2017, those documents would not be discussed at the hearing, without prejudice to the possibility of their observations on those documents being requested at a later stage.

OGT, Gazprom and Gaz-System (together ‘the three applicants for leave to intervene’) were also invited to attend the hearing in order to put forward their arguments concerning the balancing of the interests, without prejudice to the final decision on admission of their respective applications for leave to intervene.

On 5 July 2017, PGNiG Supply, the Commission, the Federal Republic of Germany and the three applicants for leave to intervene submitted their arguments at the hearing and answered questions posed by the President of the General Court. Although the three applicants for leave to intervene were all permitted to submit arguments on the balancing of the interests present in the context of these interim proceedings, the President of the General Court nonetheless reserved his decision on their definitive intervention.

Law

General considerations

It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

Moreover, the first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for’.

Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid causing serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent. Where appropriate, the judge hearing such an application must also weigh the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

In the circumstances of the present case, without it being necessary to rule on the pleas of inadmissibility put forward by the Commission, it is appropriate to begin by examining whether the requirement of urgency is fulfilled.

In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

In the present case, PGNiG Supply fears that it will suffer harm consisting, in essence, of a serious and irreparable alteration to its position on the market if the application for interim measures is rejected.

It is of the opinion that the contested decision and the decision of the BNetzA of 28 November 2016 implementing it will have the effect of restricting its access, for the delivery of gas on the Polish market, to both the OPAL pipeline and the Yamal-Europe pipeline.

First, as regards the allegation concerning the restriction of its access to the OPAL pipeline, PGNiG Supply points out, on the one hand, that the reservations of the transport capacities subject to the bidding procedure in accordance with the new conditions for use of the OPAL pipeline can be made for a period of 15 years. It states that it can be expected that Gazprom will reserve the greater part of the transport capacities for that period, thus freezing the situation for the next 15 years.

PGNiG Supply argues that the execution of the contested decision will allow Gazprom to reserve at least 90% of the transport capacities of the OPAL pipeline. The contested decision organises a bidding procedure for 50% of the total transport capacity of the OPAL pipeline. However, in the view of PGNiG Supply, the conditions for the regulatory exemption laid down in the contested decision will mean that Gazprom will be able to take at least 80% of the partially regulated transport capacities of the OPAL pipeline which are subject to the bidding procedure. Since the other 50% of the transport capacities of the OPAL pipeline is outside EU law and the rules on third party access, and is granted in its entirety to Gazprom, that company will, in reality, have guaranteed access to at least 90% of the total transport capacities of the OPAL pipeline. Accordingly, the contested decision will strengthen Gazprom’s dominant position and, at the same time, will directly weaken PGNiG Supply’s position on the market.

On the other hand, PGNiG Supply states that Gazprom’s reservation of the additional, newly ‘liberalised’, transport capacities of the OPAL pipeline will have irreversible effects on the downstream contracts concluded by operators involved in the transport, distribution and delivery of gas supplied by Gazprom. In the view of PGNiG Supply, the reservations, taking the form of agreements under private law, will then be sources of rights and obligations for natural or legal persons which will be protected whatever the outcome of the action in the main proceedings. Accordingly, even the annulment of the contested decision will not be able to give rise to the annulment of transport or supply contracts in respect of gas using the OPAL pipeline. It also points out that those transport contracts will have the parallel result of the conclusion of commercial gas trading contracts, thus giving rise to an additional obstacle to the termination of those transport contracts.

Thus, because, on the one hand, of the complexity of the relations between the administrative authorities and the individual entities involved and, on the other, the legal relationships connecting those entities which will act on the basis of measures benefiting from the presumption of legality of the contested decision, PGNiG Supply is of the view that it will be possible neither to backtrack from the legal situation which result from it to return to the position which it previously had, nor to obtain any financial compensation.

Without it being necessary to assess, first, the possibly hypothetical nature of the conduct which Gazprom will adopt when the transport capacities liberalised by the contested decision are put to the bidding procedure and, secondly, the relevance of PGNiG Supply’s arguments as to the restriction on access to the OPAL pipeline because of the conditions laid down in the contested decision compared to those previously in force, it is sufficient to note that the harm alleged appears, a priori, to depend on the long-term irreversibility of the situations arising from the legal regime made possible by the contested decision.

PGNiG Supply appears to be of the opinion that the fact that it is possible, in the next annual bidding procedure for that part of the 50% of transport capacities liberalised under the contested decision, for Gazprom to make long-term reservations will have the effect of freezing the situation so that the range of the legal effects of the contested decision will greatly exceed the period of its existence in law.

However, it must be noted, first of all, that that analysis rests on an incorrect understanding of the functioning of the specific legal order instituted by the Treaties (see, to that effect, judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, p. 585). If the contested decision were annulled, the conditions for use of the OPAL pipeline, as authorised under that decision, would no longer apply. Consequently, no private-law measure based on those conditions could be implemented. Both the Commission and the Federal Republic of Germany have, correctly, pointed to that aspect both in their written submissions and at the hearing on 5 July 2017.

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In that regard, in addition to legal obstacles, the existence of which cannot be accepted, as has been recalled in paragraph 38 above, PGNiG Supply next alleges that there are practical difficulties in the implementation of the effects of such an annulment. However, that objection must also be rejected. As both the Federal Republic of Germany in its statement in intervention and the Commission in its observations on that statement point out categorically, if, on the one hand, the General Court annuls the contested decision, it will not be possible to perform the contracts reserving capacity products for periods after delivery of the judgment of the General Court. On the other, at the hearing on 5 July 2017, the Commission pointed out that, first, it is clear from the general conditions of the contract applicable to the transport of gas via the OPAL pipeline that the transport contract concluded between the users of the network and OGT as regards the acquisition of capacity products through a bidding procedure could be terminated immediately on serious grounds, annulment of the contested decision by the General Court undoubtedly being such a ground; secondly, that annulment constitutes a fortuitous circumstance with consequences in law for the contract, in that it would justify an amendment to the terms of the contract; and, thirdly, those general conditions authorised OGT to amend the terms of the contract in future if that were made necessary by the need to take account of a change in the legal situation, for example where a judgment is delivered by an international court. Moreover, it does not appear to be impossible, a priori, in the light of the dispute pending before the General Court, for a safeguard clause to be inserted into all the contracts signed relating to future bidding procedures (for example, downstream contracts concluded by operators involved in the transport, distribution and delivery of gas supplied by Gazprom but also commercial gas trading contracts) in order to allow for the consequences of any new suspension of the contested decision or its annulment. In any event, since proceedings have been brought before the General Court against the contested decision, there is undoubtedly a commercial risk of which the actors on the market cannot be unaware.

Finally, in both its observations of 10 March 2017 on the statement in intervention of the Federal Republic of Germany and in its additional statement of 13 March 2017, PGNiG Supply points to the fact that, despite the order of 23 December 2016, PGNiG Supply & Trading v Commission (T‑849/16 R), the OPAL pipeline has been operated at a level showing a use of capacities which were organised before the suspension of the execution of the contested decision following the conditions authorised by that decision. In that regard, it suffices to note, first, that, although legitimate questions may arise as regards the facts of the use of the transport capacities on the OPAL pipeline which followed the adoption of the order of the same date, it is apparent from the file, in particular the statement in intervention of the Federal Republic of Germany, that the current use of that pipeline in fact continues to be regulated by the conditions applicable before the adoption of the contested decision and, secondly, that, although the Federal Republic of Germany did indeed confirm, at the hearing on 5 July 2017, that some contracts, concerning bidding procedures organised before the adoption of the order of 23 December 2016, PGNiG Supply & Trading v Commission (T‑849/16 R), had been executed in breach of the effects of the suspension declared by the Judge hearing applications for interim measures in his order, it did, however, emphasise the confusion which surrounded that situation. Following the adoption of that order, proceedings were brought before the Oberlandesgericht (Higher Regional Court, Düsseldorf, Germany) and led to the adoption of a decision of 30 December 2016 suspending the agreement concluded between OGT and the BNetzA on 28 November 2016. The Federal Republic of Germany thus took the view, incorrectly, as it accepted at the hearing, that only the organisation of bidding procedures for the future was affected, excluding any effect on the performance of the contracts relating to past bidding procedures. In the light of the exchanges which then took place in the context of the present proceedings, the Federal Republic of Germany is of the opinion that such an incorrect interpretation could not happen again in the event of either a new suspension declared by the Judge hearing applications for interim measures or an annulment of the contested decision by the General Court. In that regard, it has stated that the German legislation granted it powers of injunction against the BNetzA which suffice to ensure that the decisions of the General Court and the Judge hearing applications for interim measures are given their full effect. Accordingly, there is nothing to suggest that a new suspension, ordered in the hypothetical situation of an application to the Judge hearing applications for interim measures under Article 160 of the Rules of Procedure and the annulment of the contested decision would not be followed by the effects which accompany such legal decisions.

41It follows from the foregoing that, even if their certainty were shown with the requisite degree of probability, all the consequences of the events described in paragraphs 32 to 34 above, far from being effective over a period of 15 years, would in fact be limited to the period preceding the date of delivery of the judgment of the General Court closing the main proceedings.

42Accordingly, only the hypothetical situation described in paragraphs 32 and 33 above, suggested by PGNiG Supply, could potentially come about during the period preceding the delivery of the judgment of the General Court closing the main proceedings. That hypothetical situation, consisting of the use of at least 90% of the transport capacities of the OPAL pipeline by Gazprom, does not per se constitute the harm alleged by PGNiG Supply since that depends on the long-term continuation of that situation. Consequently, although the effects of that hypothetical situation would be irreversible, the requirement that PGNiG Supply show serious and irreparable harm justifying the adoption of the interim measures applied for is not satisfied.

43Secondly, as regards the allegation concerning the restriction of its access to the Yamal-Europe pipeline, PGNiG Supply describes its basic sphere of activity as being the trade in natural gas and electric energy on both the German and international markets, including, in particular, the export of gas to Poland via the interconnection points Mallnow and Lasów. It is of the opinion that, since the contested decision will lead to an increase in the transport capacities via the OPAL pipeline, the use of the other pipelines enabling the export of gas by Gazprom to western Europe, in particular the Yamal-Europe and Fraternité pipelines, will diminish. That reduction in use will give rise to an increase in transport tariffs, leading to a significant loss in revenue for PGNiG Supply at the Lasów point and will make virtual transport in the other direction via the Mallnow point impossible.

44Again, without it being necessary to examine, first, the possibly hypothetical nature of the events described in paragraph 43 above, in respect of which PGNiG Supply produces a certain amount of information and documents to show a sufficient degree of certainty, nonetheless disputed by the Commission and the Federal Republic of Germany; secondly, the reality of the causal link between those events and the contested decision; and, thirdly, the possible exclusively pecuniary nature of the harm, it is sufficient to note that the harm alleged in the present case lacks immediacy.

45As has been recalled in paragraph 29 above, it is settled case-law that the urgency of an application for interim measures must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief before judgment is delivered on the principal action for annulment and that it is for that party to adduce sound evidence that it cannot wait for the outcome of the main proceedings if it is not to suffer personally harm of that kind.

46In the present case, it is apparent from the application for interim measures that a transit contract concluded with Gazprom for the transport of natural gas via the Polish section of the Yamal-Europe pipeline to supply the western European markets, including Poland, and a contract concluded between PGNiG S.A. and Gazprom for deliveries of natural gas apply until 2020 and the end of 2022 respectively. In its replies to the General Court’s questions of 23 December 2016, lodged on 16 January 2017, PGNiG Supply states that Gazprom’s possible decision to redirect all of the current flow passing through the Yamal-Europe pipeline to other forms of transport infrastructure could be taken only after the date of termination of the gas transport contracts in effect until May 2020. Furthermore, the two possible scenarios which it envisages as being harmful to its situation concern, on the one hand, a period covering the years 2020 to 2022 and, on the other, a period beginning after 2023.

47It follows from those contracts that the use of the transport capacity of the Polish section of the Yamal-Europe pipeline is, prima facie, guaranteed until at least the end of 2019 and that Gazprom’s deliveries to the Polish market are guaranteed until 2022. As the Federal Republic of Germany rightly points out in its statement in intervention of 9 February 2017, since the use of the Yamal-Europe pipeline is determined, at the very least, until 2020 for transit towards western Europe on the basis of a long-term contract, a change in the flow transported via the Yamal-Europe pipeline is not expected. In that regard, it must be borne in mind that the failure to perform those contractual obligations would give rise to specific legal remedies which it would be for PGNiG Supply to implement if necessary. In that context, it is, moreover, possible to envisage PGNiG Supply having recourse to Article 160 of the Rules of Procedure, thus guaranteeing it effective judicial protection in its litigation before the General Court in the event of breach of those obligations.

48Consequently, even if the harm alleged by PGNiG Supply were shown sufficiently to be certain, it could not occur until those contracts had expired, at the earliest, if, in addition, those contracts were not renewed. Having regard to the average duration of proceedings before the General Court, the judgment on the substance in the present case will probably be delivered within two years, namely during 2019. Moreover, if those contracts came to an end before the General Court had delivered its judgment, it cannot be ruled out that the General Court would consider that there were exceptional circumstances so that it would decide of its own motion to rule on the case in an expedited procedure, by virtue of Article 151(2) of the Rules of Procedure. Failing that, it remains possible, if the circumstances so require, to decide to give the case priority over others, in accordance with Article 67(2) of those rules.

49Accordingly, it must be observed that PGNiG Supply has failed to adduce sound evidence that it cannot wait for the outcome of the main proceedings if it is not to suffer personally serious and irreparable harm.

50In that regard, it is appropriate, however, to note that, in its observations on the statement in intervention of the Federal Republic of Germany, PGNiG Supply states that it is possible that it may suffer harm before 2020. Although the elements on which such an allegation rests are not clear from its written submissions, it appears, at the very least, that it refers to the arguments raised in its supplementary statement of 28 February 2017. Accordingly, although it appears nonetheless to support its arguments relating to the demonstration of the existence of a prima facie case, the document annexed by PGNiG Supply to that statement could, therefore, be interpreted as an element seeking to prove the immediacy of the harm alleged, despite the existence of the transport and delivery contracts referred to in paragraph 46 above which are due to expire in 2020 and 2022 respectively.

[confidential]

[confidential] According to PGNiG Supply, the materialisation of the risks referred to in paragraph 43 above is not solely linked to the expiry of the contract for the transit of gas via the Yamal-Europe pipeline to western Europe in 2020, followed by the expiry of the contract for the supply of gas to Poland via that pipeline in 2022 but, more particularly, by the approach followed by Gazprom and the Russian Federation as regards the questions concerning compliance with the agreements concluded and the risk of the supply of gas ceasing at any time, since there will be an alternative enabling gas to be delivered by another route (for example that of Nord Stream 1 and OPAL).

53First of all, it must be noted that, despite the crucial importance which PGNiG Supply appears to attach to that additional evidence, it was absent from its application for interim measures lodged on 4 December 2016. Next, without it being necessary to rule at this stage on the existence of a link between the content of that document and the contested decision, it suffices to note that the alleged threats are, prima facie, dependent of the implementation of the decision of the Polish Energy Regulation Office of 19 May 2015 which was to have taken place no later than the month of May 2017 but is still not effective. Accordingly, if such repressive actions were to materialise after that implementation, in all probability they would constitute new facts enabling PGNiG Supply to apply to the Judge hearing applications for interim measures, in accordance with Article 160 of the Rules of Procedure, who could then order a new stay of execution without hearing the other party, by virtue of Article 157(2) of the Rules of Procedure, in order temporarily to re-establish the rules applicable before the implementation of the system provided for in the contested decision until a decision on the merits of the new application in the light of the new facts.

54Consequently, it must be concluded that, since the immediacy of the alleged harm has not been demonstrated, PGNiG Supply has failed to satisfy the condition that it cannot await the outcome of the proceedings in the main action without personally suffering serious and irreparable harm due to the execution of the contested decision.

55It follows that the condition of urgency has not been met, so that this application for interim relief must be dismissed without it being necessary to examine the requirement that there be a prima facie case or to weigh up the interests at stake.

56In those circumstances, and having regard to the case-law according to which the interest invoked by the intervener is, if appropriate, taken into account in the balancing of interests (order of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraph 34), it is not necessary to rule on the applications for leave to intervene made by the three applicants for leave to intervene.

57In that regard, it must be noted that, by application of 18 January 2017, PGNiG Supply requested confidential treatment of a certain amount of information as regards OGT and Gazprom. In the light of paragraph 56 above, it is necessary to reclassify that request as a request for confidential treatment as regards the public in accordance with Article 66 of the Rules of Procedure. In that context, it suffices to note that, as regards the information in this order, with the exception of the information specifically omitted in paragraphs 19, 51 and 52 above, either it was submitted and discussed at the public hearing held on 5 July 2017 or insufficient justification has been given for its omission and there is therefore no legitimate ground on which to grant the application.

58By virtue of Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The order of 23 December 2016, PGNiG Supply & Trading v Commission (T‑849/16 R) is revoked.

3.The costs are reserved.

Luxembourg, 21 July 2017.

Registrar

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*1 Language of the case: Polish.

*1 Confidential data omitted.