On September 10, 2019, the General Court annulled a European Commission decision concerning the Ostseepipeline-Anbindungsleitung (“OPAL”) gas pipeline for breaching the principle of energy solidarity. The decision approved raising a cap on Gazprom’s use of the pipeline.

OPAL is a southwestern spur of Nord Stream 1, a gas pipeline owned and operated by Gazprom, running from northeastern Germany to the Czech Republic. The German energy regulator initially exempted the pipeline from EU rules on third-party access and tariff regulation,[1] subject to certain conditions. One of these conditions— imposed by the Commission in 2009—stipulated that dominant undertakings (such as Gazprom) could not reserve more than 50% of OPAL’s cross- border capacity without offering at least 3 billion cubic meters of gas per year on the market. OPAL’s capacity remains at 50%, as Gazprom has not met these conditions. In 2016, the Commission approved the German energy regulator’s decision to replace the 50% capacity restriction with an obligation to offer through auction a total of 12.3 billion cubic meters of gas per year.

Poland, Latvia, and Lithuania appealed the Commission’s approval to the General Court. They claimed that the decision breached the principle of energy solidarity. This principle requires, broadly speaking, EU Member States and institutions to avoid adopting measures that threaten each other’s energy security. The General Court held that the Commission failed, however, to take Poland’s interests into account, examining only security of supply for the EU in general, and annulled the Commission’s decision. It remains to be seen whether the Commission will appeal the General Court’s decision (or re-adopt a new decision).

[1]      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 [2003] OJ L 176/57. 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 [2009] OJ L 211/94.