The EU Court of Justice’s advocate has upheld the EU court decision on OPAL, the onshore extension of the Nord Stream pipeline. The German gas pipeline cannot be exempt from the Community energy law, said the EUCJ in a ruling granting the request made by Poland, Lithuania and Latvia and initially confirmed by the EU court. However, the fight is far from over.

Manuel Campos Sánchez-Bordona – Advocate General of the EU Court of Justice issued an opinion Thursday regarding the German appellate proceeding against the EU court’s verdict concerning the European Commission’s decision exempting the OPAL gas pipeline from the EU rules prohibiting the monopolization of transmission infrastructure.

According to the official, the EU court rightly ruled that the principle of energy solidarity ‘comprises rights and obligations for both the Union and the Member States.’ It therefore requires the European Commission to individually assess the interests of each of them when issuing decisions. As a result, Sánchez-Bordona opted to uphold the EU court’s judgment annulling the European Commission’s decision.

On 10 September 2019, following action by the Polish, Lithuanian and Latvian governments, the EU Court annulled the European Commission’s decision of 28 October 2016. The Commission agreed to exempt the OPAL gas pipeline from the Third Energy Package requirements.

The court’s verdict confirmed the arguments of Poland that by issuing the decision, the EC violated European Union rules by failing to examine the impact of its decision on Poland’s energy security. The German government appealed to the Court of Justice in December 2019, demanding that the ruling should be reversed.

The Advocate’s opinion on Thursday is important but not binding for the EUCJ’s final judgment. The ruling will be crucial in deciding PGNiG SA and PGNiG Supply&Trading GmbH’s complaint against the administrative settlement between the German regulatory authority (Bundesnetzagentur) and PAO Gazprom, OOO Gazprom Export and Opal Gastransport GmbH, implementing the regulatory exemption rules for the OPAL gas pipeline in Germany. This allows Gazprom to use the entire capacity of this pipeline. Now, according to the third package, half of the pipeline’s capacity must be made available to third parties. If this were to happen, the onshore extension wouldn’t be big enough to accommodate gas from Nord Stream and Nord Stream 2.

The case has been on-going since 2016 before the Higher Land Court in Düsseldorf.

By Martin Chomsky (photo.: