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Germany’s appeal in OPAL pipeline case has no grounds: CJEU spokesman

On Thursday, the Advocate General of the CJEU stated that Germany’s appeal against the EU General Court’s decision regarding the Ostseepipeline-Anbindungsleitung (OPAL) gas pipeline has no grounds. In Manuel Campos Sánchez-Bordona opinion the principle of energy solidarity can be used to review the lawfulness of acts of the EU institutions in energy-related matters, which is in line with the argument raised by Poland.

In 2016, following a request made by various companies of the Gazprom group, the Commission issued a decision changing the conditions for the operation of the OPAL gas pipeline, allowing Gazprom to use almost the entire capacity of the pipeline. This resulted in a reduction in the flow of gas through the Yamal and Brotherhood pipelines transporting Russian gas to the European Union via Belarus and Ukraine.

Poland, supported by Latvia and Lithuania, brought an action before the General Court of the European Union for the annulment of the Commission’s decision. 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 region of Central Europe. In its verdict of September 10, 2019, the EU Court found Poland right. It annulled the Commission’s decision of 2016 for breach of the principle of energy solidarity.

Germany, however, appealed to the Court of Justice against that verdict, arguing primarily that energy solidarity is only a political, not a legal, concept. Berlin pointed out that energy solidarity determines the obligation of mutual assistance only in crisis situations. Poland, supported by Latvia and Lithuania, defended the interpretation adopted by the EU Court.

The spokesman of the CJEU on Thursday agreed that Poland was right. According to Campos Sánchez-Bordona Germany’s appeal against the verdict of the EU General Court has no grounds. He assessed that “the principle of energy solidarity can be used to check the legality of acts issued by the EU institutions in the field of energy.”

“Before stating his views on the grounds of appeal, Advocate General Campos Sánchez-Bordona analysed how the principle of energy solidarity is set out in the Treaties on which the European Union is founded, concluding that, in primary EU law, solidarity is a value (Article 2 TEU) and an objective (Article 3 TEU) which are increasingly drawn on to inform political and economic decisions by the European Union itself,” the statement reads.

“The Advocate General did not accept the first ground of appeal and concluded that ‘the General Court rightly took the view that the principle of energy solidarity ‘entails rights and obligations both for the European Union and for the Member States’. He stated that “the principle of energy solidarity under Article 194 TFEU produces effects that are legal, and not merely political, for the interpretation of provisions of secondary law adopted in implementation of the European Union’s powers in energy matters, to fill gaps identified in those provisions and to carry out judicial review of those provisions or of decisions of bodies of the European Union in that field,” the statement continues.

According to the Advocate General, and in agreement with the General Court, “the principle of energy solidarity requires the body putting that principle into practice — in this case, the Commission when adopting its exemption decisions — to assess the interests involved on a case-by-case basis, both the interests of the Member States and the interests of the European Union as a whole. If that analysis manifestly overlooks one or more Member States, the Commission decision will fail to comply with the requirements of that principle.”

The Advocate General also disagreed with the other three grounds of Germany’s appeal.

The spokesman’s opinion is not binding on the Court of Justice. The CJEU may agree with it, and it usually does, but it may also issue a different verdict.

The Ostseepipeline-Anbindungsleitung (OPAL) gas pipeline is the terrestrial section, to the west, of the Nord Stream gas pipeline. Its point of entry is in Germany and its point of exit is in the Czech Republic.

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