Information;Order — ECLI:EU:C:2019:1041
Date: 2019-12-04
Language of the case: Polish
Court formation: Fifth Chamber
Subject matter: Energy;Approximation of laws
Procedure: Action for annulment;Appeal - inadmissible
Origin: Poland

Appeal brought on 5 March 2018 by the Republic of Poland against the order of the General Court (First Chamber) made on 14 December 2017 in Case T-849/16, PGNiG Supply & Trading v European Commission (Case C-181/18 P) Language of the case: Polish Parties Appellant: Republic of Poland (represented by: B. Majczyna, acting as Agent) Other parties to the proceedings: PGNiG Supply & Trading GmbH, European Commission Form of order sought The appellant claims that the Court should: set aside, in its entirety, the order of the General Court of the European Union (First Chamber) of 14 December 2017 in Case T-849/16, PGNiG Supply & Trading v European Commission; refer the case back to the General Court for reconsideration; order each party to bear its own costs. Grounds of appeal and main arguments By the order under appeal, the General Court dismissed the action brought by PGNiG Supply & Trading seeking annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL gas pipeline from the requirements on third-party access and tariff regulation granted under Directive 2003/55/EC, stating that that company did not have standing to bring proceedings. The Republic of Poland takes the view that, in paragraphs 6, 10, 11 and 43 of the order under appeal, the General Court concurrently made findings on the substance of the dispute regarding the validity of the contested decision. In connection with the foregoing, the Republic of Poland raises the following grounds against the order under appeal: First, the General Court infringed Article 130(1) and (7) of its Rules of Procedure, and also infringed the rights of the Republic of Poland to an effective judicial remedy and to a fair trial as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, as well as infringing the principle of audi alteram partem, by making findings of fact and of law in the order under appeal which concern the substance of the dispute regarding the validity of the contested decision before the substance of that dispute could be addressed in the proceedings in Case T-883/16 Republic of Poland v European Commission. Second, the General Court erred in its legal assessment of the contested decision, relying on the assumption that that decision provides that 50% of the transport capacities of the OPAL gas pipeline between Greifswald and Brandov are to be opened to third-party access by way of a transparent and non-discriminatory auction, in such a way that other persons will be able to acquire those capacities, and on the assumption that the contested decision does not introduce a new regulatory exemption, but removes in part the existing exemption. The Republic of Poland considers that that assessment of the legal nature and of the effects of the contested decision is incorrect, because the contested decision only ostensibly introduces solutions presented as transparent and non-discriminatory. In fact it constitutes a mechanism enabling undertakings from the Gazprom group to acquire exclusive use of at least 90% of the transport capacities of the OPAL gas pipeline covered by the contested decision (of which 50% is completely exempt from the rules on third-party access, while 40% is DZK (Dynamically Allocable Capacity), which only Gazprom may reserve). Third, the General Court failed in its duty to provide a proper statement of reasons for the order under appeal. The Republic of Poland considers that the General Court did not explain the conditions on the basis of which it made the findings as to the substance of the contested decision. Consequently, it is impossible to know the reasons why the General Court stated that the contested decision makes the capacities of the OPAL gas pipeline accessible to undertakings not connected with the Gazprom group and that it will have a positive impact on competition on the natural gas market. ____________