Friday, May 22, 2020

EGC dismisses Nord Stream 2 actions against EU-gas-directive

The General Court of the European Union declares that the actions brought by Nord Stream AG and Nord Stream 2 AG against Directive 2019/692, which extends certain rules of the internal market in natural gas to pipelines from third countries, are inadmissible.

Those companys objected to provisions of the EU-gas-directive "that those operators have, inter alia, an obligation to unbundle transmission systems and transmission system operators and to introduce a system of non-discriminatory third-party access to gas transmission and distribution systems on the basis of published tariffs." 

"The General Court finds that they are not directly concerned by the amending directive. 
Indeed, it is only through the intermediary of the national measures transposing that directive that the Member States will adopt or have adopted that operators such as those who have brought the actions in question will be or are subject (under the conditions agreed on by those Member States) to obligations under Directive 2009/73, as amended. 
Regarding the national transposing measures which are intended, as from 24 February 2020, to make the obligations under Directive 2009/73, as amended, binding with regard to operators, the Member States have a margin of discretion. 
Moreover, according to the amending directive, the national regulatory authorities may, under certain conditions, decide to grant exemptions or derogations from certain provisions of Directive 2009/73, as amended, to major new gas infrastructure, on the one hand, and to gas transmission lines between the Member States and third countries completed before 23 May 2019, on the other. For the purposes of implementing those provisions, the national regulatory authorities have a wide discretion as regards the grant of such exemptions or derogations and any specific conditions to which those exemptions or derogations may be subject. 
Regarding Nord Stream AG, the General Court finds, in addition, that it is also not individually concerned by the amending directive. 
In that regard, the General Court notes, inter alia, that Nord Stream AG did not have a right to operate and/or continue to operate the Nord Stream dual pipeline system free from any regulatory constraints of the EU, at the very least as regards the part of that gas transmission line located in the territory of the EU, in this instance in the territorial sea of a Member State. 
Thus, the fact that, when the amending directive was adopted, Nord Stream AG was part of a limited, identified or identifiable, circle of operators concerned by the extension of the territorial and/or material scope of Directive 2009/73 does not permit a finding that it is individually concerned by the amending directive. Indeed, it is common ground that the amending directive is applied by virtue of objective criteria defined by the EU legislature, including the criterion requiring gas transmission lines in respect of which certain derogations have been requested to have been completed before 23 May 2019, the date on which the amending directive entered into force."

You can find the press release of the EGS via the below link: 

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