Portal partners
Poland won the dispute over OPAL gas pipeline
Author:Mariusz Dasiewicz
The Court of Justice of the European Union found that the European Commission had violated the principle of energy solidarity by issuing a decision on the OPAL pipeline. The judgment strengthens the energy security of Poland and may be of significant importance for the further fate of the Nord Stream 2 project.
The Court of Justice of the European Union (TEU) acknowledged Poland’s right to challenge the European Commission’s decision to exempt OPAL gas pipeline from the obligation to apply EU regulations. According to the judgment, the Commission’s proceedings were contrary to the principle of energy solidarity and did not take into account the interests of all the Member States concerned.
– Principle Energy solidarity is fundamental and EU authorities are obliged to apply it when deciding on energy issues. We are also looking forward to its application to the Nord Stream 2 project, and the judgment of the EUSEU significantly strengthens our position in this matter – emphasized Paweł Majewski, President of the Management Board of PGNiG SA.
The proceedings before the TEU concerned the use of the OPAL pipeline, which constitutes a land extension of the Nord Stream pipeline in Germany. 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 this way, it made it possible to use practically all gas capacity by one user – Gazprom.
The Commission decision was challenged by the Polish Government, supported by PGNiG, and the Polish Governments intervened. In their view, the European Commission has not examined the impact of the regulatory exemption for OPAL on the energy security of these countries. In 2019, the Court of the European Union in Luxembourg acknowledged Poland's right and felt that the Commission decision violated the principle of energy solidarity. This ruling was opposed by the German Government, which appealed to the Court questioning the legal importance of the principle of energy solidarity.
The court ruling of the TEU of 15 July 2021 is final for Poland. This means that OPAL will be subject to regulations limiting the dominant supplier's ability to use all gas capacity as foreseen by the European Commission's 2009 decision. At the same time, the ruling clarifies the importance of the principle of energy solidarity, which is a key Treaty principle, and its application, as set out in the judgment, will strengthen the internal market and energy security for both the EU and individual Member States. This provides an important basis for the development of Polish interests, including the legal regime that the Nord Stream 2 pipeline should be subject to.
Nord Stream 2 AG's application for a derogation under EU law is currently under way before the Düsseldorf Supreme National Court. PGNiG is an active participant in this proceeding and cooperates with the Government of the Republic of Poland.
Source: PGNiG
