On Thursday, the Court of Justice of the European Union (CJEU) dismissed the appeal brought by Germany against the judgment of the EU General Court in the case of the OPAL gas pipeline, a branch of Nord Stream.
In 2016, Germany submitted an application to the European Commission (EC) to change the rules for using the OPAL gas pipeline. The EC issued a decision changing the conditions for using this line, allowing the Russian company Gazprom to use in practice the entire capacity of the Nord Stream branch. This resulted in a reduction in gas flow through the Yamal and Brotherhood gas pipelines, which transport gas from Russia to the European Union via Belarus and Ukraine.
Poland, supported by Latvia and Lithuania, brought an action before the Court of Justice of the European Union for annulment of the EC’s decision requested by Germany. According to Poland, the granting of a new exemption for the OPAL gas pipeline poses a threat to the security of gas supplies in the EU, in particular in the Central European region.
In its judgment of September 10, 2019, the EU court found Poland right. It annulled the EC’s decision of 2016 in connection with the breach of the principle of energy solidarity.
However, Germany appealed to the CJEU against this judgment, arguing primarily that energy solidarity is only a political, not a legal, concept.
On Thursday, the CJEU dismissed Germany’s appeal. It further stated that, contrary to what was argued by Berlin, “the legality of any act of the EU institutions falling within the scope of its energy policy must be assessed in the light of the principle of energy solidarity.”
The Court recalled that, according to the EU Treaty, the EU’s energy policy aims to ensure the functioning of the energy market, ensure the security of energy supply in the Union, promote energy efficiency and energy savings, as well as the development of new and renewable forms of energy, and promote the interconnection between energy networks.
As stated by the CJEU, when issuing a decision, the EC is obliged to examine possible risks to gas supplies on the markets of the Member States.
OPAL is the western onshore section of the Nord Stream gas pipeline, the entry point of which is in Germany and the exit point in the Czech Republic.