December 02
2021
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Trajan Shipley
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7th October 2021
Energy & Transport External Relations & Trade Justice & Litigation

AG Bobek: Nord Stream 2 can challenge Gas Directive before EU Courts

Advocate General Bobek delivered his Opinion yesterday in Nord Stream 2 AG v Parliament and Council (C-348/20 P), advising the Court of Justice to annul an order of a General Court dismissing as inadmissible an action for annulment against the amended Gas Directive (2019/692) brought by Nord Stream 2 AG. He thus advises that such company is both directly and individually concerned and can therefore challenge the validity of the Directive.

The amended Directive extends certain rules applicable to gas transmission lines connecting two or more Member States are also applicable to gas transmission lines to and from third countries. It includes an obligation to unbundle transmission systems and transmission system operators and provides for the introduction of a system of non-discriminatory third-party access to gas transmission and distribution systems on the basis of published tariffs. Nord Stream 2 AG is a Swiss company, whose sole shareholder is the Russian public joint-stock company Gazprom, and is responsible for the Nord Stream 2 pipeline, which delivers gas from Russia to Germany through various Member States’ territorial waters

Nord Stream 2 AG brought an action for annulment against the Directive before the General Court, claiming the new obligations will lead to significant changes and forcing it either to sell the pipeline or entirely alter its business structure in order to comply with them. The General Court, however, dismissed it as inadmissible as it did not consider Nord Stream 2 to be directly concerned by the amending Directive, which lead to an appeal before the Court of Justice.

In his Opinion, Advocate General Bobek reasons that the fact that the act concerned is a directive does not preclude it from being of direct and individual concern to an operator, as it may produce binding legal effects on them. He notes that ​​it is indeed capable of producing such legal effects by extending the scope of the Gas Directive to situations that were not previously caught by that legal act. Despite Member States having different options to achieve the Directive’s goal, according to the Advocate General, any of these options will inevitably lead to Nord Stream 2 AG’s legal position being altered.

He thus advises the Court to annul the General Court’s order in its entirety and refer the matter back to it. 

The Opinion is available here. The Court’s press release can be read here.

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