Poland Wins the Dispute over the OPAL Gas Pipeline
The Court of Justice of the European Union has ruled that the European Commission violated the principle of energy solidarity by issuing a decision on the OPAL (Ostsee-Pipeline-Anbindungsleitung) gas pipeline. The verdict strengthens Poland’s energy security and may be important for the further fate of the Nord Stream 2 project.
The Court of Justice of the European Union (CJEU) agreed with Poland, which challenged the European Commission’s decision exempting the OPAL gas pipeline from EU regulations. According to the ruling, the Commission’s action was contrary to the principle of energy solidarity and did not take into account the interests of all member states concerned.
“The principle of energy solidarity is fundamental and EU institutions are obliged to apply it when making decisions on energy matters. We expect the energy solidarity principle to be applied to the Nord Stream 2 project. The CJEU judgment significantly strengthens our position in this matter,” emphasised Paweł Majewski, President of the Management Board of PGNiG SA.
The proceedings before the CJEU concerned the rules of use of the OPAL gas pipeline, which is an onshore extension of the Nord Stream gas pipeline in German territory. In 2016, the European Commission issued a new decision exempting OPAL from the need to apply EU rules prohibiting the monopolisation of transmission infrastructure. In doing so, it allowed all of the pipeline’s capacity to be used by a single user, Gazprom.
The Commission’s decision was challenged by the Polish government, which was supported by PGNiG, and the intervention on the Polish side was filed by the Lithuanian and Latvian governments. In their view, the European Commission failed to examine the impact of the regulatory exemption for OPAL on the energy security of these countries. In 2019, the General Court of the European Union in Luxembourg agreed with Poland and found that the Commission’s decision violated the principle of energy solidarity. This ruling was challenged by the German government, which appealed to the Court of Justice questioning the legal meaning of the energy solidarity principle.
The CJEU judgment of 15 July 2021, favourable to Poland, is final. This means that OPAL will be subject to regulations limiting the dominant supplier’s ability to use the entire capacity of the pipeline, as provided for in the European Commission’s 2009 decision. At the same time, the ruling clarifies the importance of the principle of energy solidarity, which is the key principle enshrined in the Treaties. Its application in accordance with the guidelines expressed in the judgment will strengthen the internal market and energy security of both the EU as a whole and individual member states. This provides an important basis for the articulation of Polish interests, e.g. in the matter of the legal regime to which the Nord Stream 2 gas pipeline should be subject.
Currently, proceedings concerning Nord Stream 2 AG’s application for derogation from the EU law are pending before the Higher Regional Court in Düsseldorf. PGNiG is an active participant of the proceedings and cooperates with the Polish government in the case.
