ORDER OF THE GENERAL COURT (First Chamber)
9 March 2018 (*)
(Action for annulment — Internal market in natural gas — Directive 2009/73/EC — Commission Decision on review of the exemption of the OPAL pipeline from the requirements on third-party access and tariff regulation — Lack of direct concern — Inadmissibility)
In Case T‑196/17,
NJSC Naftogaz of Ukraine, established in Kiev (Ukraine), represented by D. Mjaaland, A. Haga, M. Krakowiak and P. Grzejszczak, lawyers,
applicant,
v
European Commission, represented by Y.G. Marinova, O. Beynet and K. Herrmann, acting as Agents,
defendant,
ACTION based on Article 263 TFEU and seeking annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on the review of the conditions for exemption of the OPAL pipeline, granted under Directive 2003/55/EC, from the rules on third-party access and tariff regulation,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová (Rapporteur), President, P. Nihoul and J. Svenningsen, Judges,
Registrar: E. Coulon
makes the following
Order
Background to the dispute
1        By Decision C(2009) 4694 of 12 June 2009, the Commission of the European Communities requested the Bundesnetzagentur (BNetzA, the Federal Networks Agency, Germany), under Article 22 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), to amend its decision of 25 February 2009 excluding the transport capacities of the Ostseepipeline-Anbindungsleitung (OPAL) pipeline project, which is the eastern on-shore section of the Nord Stream 1 pipeline, the entry point of which is near to the town of Lubmin, near Greifswald, in Germany, and the exit point in the town of Brandov, in the Czech Republic, from the application of the requirements on third-party access laid down in Article 18 of that directive and the tariff regulations laid down in Article 25(2) to (4) thereof.
2        Decision C(2009) 4694 laid down the following conditions:
‘(a)      Without prejudice to the requirement in (b), an undertaking dominant on one or several large markets in natural gas upstream or downstream covering the Czech Republic shall not be authorised to reserve, in a single year, more than 50% of the transport capacities of the OPAL pipeline at the Czech border. Reservations from undertakings belonging to the same group, such as Gazprom and Wingas, shall be examined together. Reservations from dominant undertakings/groups of dominant undertakings having concluding significant long-term contracts for the supply of gas shall be examined on an aggregated basis ...
(b)      The capacity limit of 50% may be exceeded if the undertaking concerned releases onto the market a volume of 3 billion m³ of gas on the OPAL pipeline under an open, transparent and non-discriminatory procedure (“Gas Release Programme”). The undertaking managing the pipeline or the undertaking required to carry out the programme must ensure the availability of corresponding transport capacities and the free choice of the exit point (“Capacity Release Programme”). The form of the Gas Release and Capacity Release programmes is subject to the approval of the BNetzA.’
3        On 7 July 2009, the BNetzA amended its decision of 25 February 2009, adapting it to the abovementioned conditions laid down in Decision C(2009) 4694. The exemption from the rules (‘the 2009 exemption’) was granted by the BNetzA for a period of 22 years.
4        The OPAL pipeline was put into service on 13 July 2011 and has an annual capacity of some 36.5 billion m³. By virtue of Decision C(2009) 4694 and the decision of the BNetzA of 25 February 2009, as amended by its decision of 7 July 2009, the capacities of the OPAL pipeline were totally exempted from application of the rules governing third-party access and tariff regulation on the basis of Directive 2003/55.
5        In the current technical configuration, natural gas can be supplied at the pipeline entry point close to Greifswald only by the Nord Stream 1 pipeline, used by the Gazprom group to transport gas from Russian gas fields. As Gazprom did not implement the gas release programme referred to in Decision C(2009) 4694, the non-reserved 50% of the capacity of that pipeline has never been used, with the result that only 50% of the transport capacity of the OPAL pipeline appears, a priori, to have been used.
6        On 13 May 2016, the BNetzA notified the Commission, on the basis of Article 36 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94), of its intention, further to a request made by Opal Gastransport GmbH & Co. KG (operating company of the OPAL pipeline, ‘OGT’), OAO Gazprom and Gazprom Eksport LLC, to amend certain provisions of the 2009 exemption concerning the section of the OPAL pipeline managed by OGT.
7        On 28 October 2016, the Commission adopted, on the basis of Article 36(9) of Directive 2009/73, Decision C(2016) 6950 final on review of the exemption of the OPAL pipeline from the requirements on third-party access and tariff regulation granted under Directive 2003/55 (‘the contested decision’), which is addressed to the BNetzA. The procedure laid down in Article 36 of Directive 2009/73 corresponds to that laid down in Article 22 of Directive 2003/55, which constituted the legal basis for Decision C(2009) 4694, amended by the contested decision.
8        In the contested decision, the Commission maintained the exemption from the requirements on third-party access granted to the OPAL pipeline for the section between the entry point near Greifswald and the exit point at Brandov for a maximum of 50% of the capacities, which it had already approved in its Decision C(2009) 4694. However, the remaining 50% of the capacity on that section — unused until then because of the non-implementation of the gas release programme by Gazprom — was liberalised, that is to say, made subject to the requirements on third-party access. That liberalisation is to be carried out in the form of an allocation of the transport capacities, which the pipeline manager is required to make in a transparent and non-discriminatory auction.
9        Since the non-discriminatory and transparent provision of the transport capacities thus liberalised could, de facto, also result in their use by Gazprom Eksport, the Commission, with a view to ensuring that third parties may indeed have access to the ‘liberalised’ capacities, raised the ceiling proposed by the BNetzA concerning the FZK interconnection capacities (feste frei zuordenbare Kapazitäten, fixed freely attributable capacities) at the exit point of the pipeline. Thus, the OPAL pipeline manager will be required to make available to users other than the dominant company on the Czech natural gas market, in a bidding procedure, an FZK interconnection capacity of an initial volume of 3.2 million kWh. If, however, it should appear, at the annual bidding procedure, that the demand for FZK capacities at the Brandov exit point is higher than 90% of the capacities offered, OGT is required to increase the FZK capacities available by 1.6 million kWh at the following annual bidding procedure. The available FZK capacities may eventually reach a volume of 6.4 million kWh.
10      Furthermore, having regard to the upward trend of bids and in order to avoid any overbidding by the dominant entity on the Czech market, the Commission introduced an additional condition that such an entity may submit its bid in the bidding procedure for the FZK capacities only at the base price of the capacities, thus meaning that the price proposed cannot exceed the average base price of the regulated tariff on the transport network from the commercial area of Gaspool in Germany to the Czech Republic for comparable products in the same year.
11      On 28 November 2016, the BNetzA amended the exemption granted to the manager of the OPAL pipeline by its decision of 25 February 2009, in accordance with the contested decision, by entering into a public-law contract with OGT which, under German law, is equivalent to an administrative decision.
Procedure and forms of order sought
12      By application lodged at the Registry of the General Court on 27 March 2017, the applicant, NJSC Naftogaz of Ukraine, brought the present action.
13      By documents lodged at the Court Registry on 6 and 20 June 2017 respectively, OGT and Gazprom Eksport applied for leave to intervene in the present case in support of the form of order sought by the Commission.
14      By document lodged at the Court Registry on 6 July 2017, Polskie Górnictwo Naftowe i Gazownictwo S.A. applied to intervene in the proceedings in support of the form of order sought by the applicant.
15      By separate document lodged at the Court Registry on 19 September 2017, the Commission raised an objection of inadmissibility to the action.
16      By document lodged at the Court Registry on 17 November 2017, the applicant submitted its observations on the objection of inadmissibility.
17      The Commission contends that the Court should:
–        dismiss the action as manifestly inadmissible;
–        order the applicant to pay the costs.
18      The applicant claims that the Court should:
–        dismiss the objection of inadmissibility;
–        in the alternative, reserve until final judgment the issue of the admissibility of the action;
–        annul the contested decision;
–        order the Commission to pay the costs.
Law
19      Under Article 130(1) of its Rules of Procedure, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.
20      In support of its objection of inadmissibility, the Commission argues that the applicant does not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU. According to the Commission, the contested decision is not a regulatory act and is not of direct or individual concern to the applicant. Furthermore, the Commission doubts whether the applicant has any interest in bringing proceedings.
21      Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
22      In the present case, the contested decision is addressed to the BNetzA, in accordance with Article 36(9) of Directive 2009/73. The applicant, which is a company active in the import and export, storage, sale and distribution of gas and liquid fuels, is therefore not an addressee of that decision and its standing to bring proceedings may be founded only on the second or third limb of the fourth paragraph of Article 263 TFEU.
23      It will therefore be considered in turn below whether the contested decision is of direct concern to the applicant, whether it is of individual concern to the applicant and whether it is a regulatory act.
Whether the applicant is directly concerned by the contested decision
24      The Commission argues that the contested decision does not directly concern the applicant, inter alia as it does not directly affect its legal situation.
25      The applicant contends that the contested decision directly affects its legal situation inter alia in that it has an impact on its contractual obligations and its rights vis-à-vis third parties. It claims that the contested decision will result in the volumes of gas currently transiting through Ukraine being transferred to the Nord Stream/OPAL pipeline, which will have a significant effect on the applicant’s contractual rights and obligations so far as concerns gas supply, the security of that supply, and the transit and sale of gas.
26      It is settled case-law that the ‘direct concern’ condition requires that the contested measure must directly affect the legal situation of the individual and that it must leave no discretion to the addressees of the measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from the contested rules without the application of other intermediate rules. The same applies where the possibility for addressees not to give effect to the EU measure is purely theoretical and their intention to act in conformity with it is not in doubt (see judgment of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraphs 43 and 44 and the case-law cited).
27      However, the second of those two requirements, relating to the addressees’ lack of discretion, is not satisfied in the present case. The decision of the national authority implementing the contested decision was not automatic. Contrary to the applicant’s contention, Article 36 of Directive 2009/73 imposed no obligation on the BNetzA to implement the contested decision, as it was free to withdraw its proposal to amend the operating conditions of the OPAL pipeline. Furthermore, the possibility for the BNetzA not to give effect to the contested decision was not, in the present case, purely theoretical. It should be recalled, in this regard that, first, in the contested decision, the Commission attached additional conditions to its approval of the measure proposed by the BNetzA, going beyond the restrictions proposed by the latter (see paragraphs 9 and 10 above). Although the BNetzA was therefore unable as a result to decide to amend the operating conditions of the OPAL pipeline without taking those additional conditions into account, it could, within the discretion conferred on it by Paragraph 28a of the Gesetz über die Elektrizitäts- und Gasversorgung (Energiewirtschaftsgesetz — EnWG) (German Law on the supply of gas and electricity) (BGBl. 2005 I, p. 1970, 3621), reassess whether it was appropriate to adopt that measure in the light of those conditions and, as the case may be, withdraw the proposed measure. Second, the proceedings at national level were opened by an application brought by OGT, operator of the OPAL pipeline (see paragraph 6 above). In those circumstances, it was possible for OGT to withdraw its application and, thus, prevent the implementation of the contested decision, whether by a decision or by a contract, if it was of the opinion that the additional conditions imposed by the Commission were inappropriate or unsuitable.
28      Consequently, the applicant could not be directly affected by the contested decision for the purposes of the case-law cited in paragraph 26 above.
29      It should also be noted, in this regard, that, even if the applicant’s legal situation could be regarded as having been directly affected, it would have been so affected by the national measures adopted by the BNetzA, which would have been, as the case may be, a matter to bring before the national courts, invoking the illegality of the contested decision in order to obtain a reference for a preliminary ruling under Article 267 TFEU (see, to that effect, order of 8 April 2008, Saint-Gobain Glass Deutschland v Commission, C‑503/07 P, EU:C:2008:207, paragraph 78).
Whether the applicant is individually concerned by the contested decision
30      The Commission argues that the contested decision does not concern the applicant individually.
31      The applicant maintains that it is individually concerned in several respects. Firstly, according to the applicant, given that the contested decision will have a detrimental effect for it as the de facto Ukrainian gas transmission operator on the Ukrainian transit market, it must be considered, on that factual basis alone, as differentiated from all other persons and individually concerned in the same way as OGT as the main addressee of the contested decision. Secondly, the applicant argues that, in its capacity as a gas purchaser in Eastern Europe, it is part of a closed circle of clearly identifiable legal persons concerned by the contested decision. Thirdly, the applicant considers itself to be individually concerned by the contested decision owing to the fact that the latter decision has altered the applicant’s rights over the Ukrainian gas network transport system and its contractual rights and obligations arising from its supply and transit contracts, acquired prior to the adoption of the contested decision. Fourthly, the applicant maintains that it is only in response to certain conducts on the part of the Gazprom group on the Ukrainian market, particularly so far as concerns the control of gas flows and the destination clause contained in the supply contract between Gazprom and the applicant, that it is not active on the relevant market in the present case.
32      It is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision (see judgment of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraph 70 and the case-law cited).
33      It is also clear from the case-law of the Court of Justice that, where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders (see judgment of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraph 71 and the case-law cited).
34      In that regard, it should be noted that the contested decision concerns the conditions under which OGT, as operator of the OPAL pipeline, must make gas available to third parties at the exit point of the OPAL pipeline on Czech territory, at Brandov. The applicant is an oil and gas company, wholly owned by the Ukrainian State, and active in the production, marketing and transport of natural gas on the Ukrainian market. In particular, the applicant is party to a gas sales contract and a transit contract with the Gazprom group, for the period 2009-2019; the applicant also carries out public service tasks in Ukraine, in particular as the supplier of last resort.
35      Admittedly, it cannot be excluded that the amendment to the conditions for the operation of the OPAL pipeline may have economic repercussions on those activities of the applicant, inter alia following an increase in the gas flows transported by that pipeline.
36      In that regard, the applicant fears, inter alia, the consequences for its gas sales prices, a strengthening of the dominant position enjoyed by Gazprom on the gas supply market in Central and Eastern Europe, a fall in revenue from gas transit through Ukraine, and a reduction in the applicant’s future opportunities to sell gas on the Central and Eastern European markets, including Ukraine.
37      However, on the one hand, that alleged damage remains largely speculative and depends, in any case, on many future factors, the scope of which is uncertain. Thus the realisation of the potential consequences of a possible future decrease in the use of pipelines towards and through Ukraine depends on whether or not the contracts between the applicant and Gazprom for gas supply and transit through Ukraine will be renewed following their expiry in 2019. The answer to that question depends, inter alia, on Gazprom’s future commercial strategy, on the applicant’s future competitive position and the overall future developments on the gas markets. A meaningful answer cannot therefore be given to that question at present.
38      In the same way, with regard to the alleged damage arising from the fact that, following the contested decision, the diversification of the applicant’s supply sources could be hampered, it is not clear how such damage may result from an increase in the extent of use of a pipeline crossing Germany and not connected to Ukraine, even if it were supposed that this may result in a disruption in the existing gas flow in the pipeline connecting Ukraine to Russia. In particular, the applicant has failed to explain how such a disruption, which concerns only one supply source, namely Russian gas, could prevent the applicant from resorting to other potential supply sources.
39      On the other hand, even if the damage feared by the applicant were realised, at least in part, the applicant has not shown that the alleged damage is of such a nature as to differentiate it from all other market participants active in the trade, transport, import and export of gas in Central and Eastern Europe, whose activities may be exposed to the economic repercussions of the amendment to the conditions for the operation of the OPAL pipeline and, therefore, to distinguish it individually just as in the case of the person to whom that decision is addressed. Thus, if the contested decision were liable to reduce the applicant’s competitiveness in relation to the undertakings connected to the Gazprom group or to strengthen the latter’s dominant position, on the wholesale and retail gas markets in Central and Eastern Europe, that decision would necessarily affect all market participants active in that sector, and not solely the applicant.
40      Moreover, the applicant cannot be regarded as being a member of a group of persons which were identified or identifiable when the contested decision was adopted by reason of criteria specific to the members of the group, for the purposes of the case-law cited in paragraph 33 above. The fact that it belongs to the alleged closed circle of persons ‘in its capacity as a gas purchaser in Eastern Europe’, invoked by the applicant, cannot distinguish it individually in respect of the operating conditions of the OPAL pipeline transporting gas through Germany towards the Czech Republic, as fixed by the contested decision. In the same way, contrary to what the applicant appears to assert, the fact, if established, that it is in competition with the Gazprom group, itself concerned by the contested decision, does not imply that the applicant will in turn be individually concerned by that decision.
41      Consequently, it must be held that the applicant is not individually concerned by the contested decision.
Whether the contested decision is a regulatory act
42      The Commission argues that the contested decision, as an act of individual scope, is not a regulatory act within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
43      The applicant has not taken a view on this point.
44      According to the case-law, in order to determine the scope of a measure, it is appropriate to consider whether the measure in question concerns specific subjects individually. In this regard, the Court must not look merely at the official name of the measure but must first take account of its purpose and its content (judgment of 14 December 1962, Confédération nationale des producteurs de fruits et légumes and Others v Council, 16/62 and 17/62, EU:C:1962:47, p. 472, 478). Accordingly, a decision which is addressed to a Member State is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract (see, on the scheme established by Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), order of 8 April 2008, Saint-Gobain Glass Deutschland v Commission, C‑503/07 P, EU:C:2008:207, paragraph 71).
45      In the present case, as is apparent from Article 1 of the contested decision, the latter merely approves, subject to certain modifications, the amendment to the exemption decision of 25 February 2009, proposed by the BNetzA on 13 May 2016. In turn, the purpose of that amendment to the initial exemption decision, which took effect on 28 November 2016 (see paragraph 11 above), is to amend, subject to certain conditions, the exemption from the application of certain provisions of Directive 2009/73 granted in respect of the OPAL pipeline. Therefore, the contested decision concerns only a single individual and defined situation, namely the conditions under which OGT operates part of the capacity of the OPAL pipeline. More specifically, the potential economic consequences which that decision may have for market participants in the gas transport and trade sector other than OGT do not constitute legal effects for a category of persons envisaged generally and in the abstract, for the purposes of the case-law cited in paragraph 44 above.
46      Consequently, the contested decision cannot be a measure of general application and, therefore, is not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.
47      What is more, it should be recalled that the concept of a ‘regulatory act which is of direct concern to [any natural or legal person] and does not entail implementing measures’, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU, is to be interpreted in the light of that provision’s objective, which, as is clear from its origin, consists in preventing an individual whose legal situation is nevertheless directly altered by an act from being denied effective judicial protection with regard to that act. In the light of that objective, it appears that the third limb of the fourth paragraph of Article 263 TFEU is designed to apply only when the disputed act, in itself, in other words irrespective of any implementing measures, alters the legal situation of the applicant. Accordingly, where this is not the case, that finding suffices for the conclusion that the third limb of the fourth paragraph of Article 263 TFEU is inapplicable, without there being any need in those circumstances to verify whether that act entails implementing measures in respect of the applicant (see, to that effect, judgment of 7 July 2015, Federcoopesca and Others v Commission, T‑312/14, EU:T:2015:472, paragraphs 27 to 43).
48      In the present case, any potential infringement of the applicant’s rights, invoked by the latter, would arise as a consequence of the implementing measure, that is to say, the contract between the BNetzA and OGT as operator of the OPAL pipeline.
49      Consequently, in accordance with the case-law cited in paragraph 47 above, the third limb of the fourth paragraph of Article 263 TFEU is inapplicable.
50      The action must therefore be dismissed as inadmissible.
The applications to intervene
51      In accordance with Article 142(2) of the Rules of Procedure, an intervention is ancillary to the main proceedings and becomes devoid of purpose, inter alia, when the application is declared inadmissible.
52      Consequently, there is no longer any need to adjudicate on the applications to intervene brought by OGT, Gazprom Eksport and Polskie Górnictwo Naftowe i Gazownictwo.
Costs
53      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
54      Since the applicant has been unsuccessful, it must, in accordance with the form of order sought by the Commission, be ordered to pay, in addition to its own costs, the costs incurred by the latter.
55      Furthermore, under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before an application to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own respective costs relating to the application to intervene.
56      In the present case, the applicant, the Commission, OGT, Gazprom Eksport and Polskie Górnictwo Naftowe i Gazownictwo are therefore each to bear their own costs relating to the applications to intervene.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no longer any need to adjudicate on the applications to intervene.
3.      NJSC Naftogaz of Ukraine shall bear its own costs and the costs of the European Commission.
4.      Naftogaz of Ukraine, the Commission, OPAL Gastransport GmbH & Co. KG, Gazprom Eksport LLC and Polskie Górnictwo Naftowe i Gazownictwo S.A. shall each bear their own costs relating to the applications to intervene.
Luxembourg, 9 March 2018.
E. Coulon
I. Pelikánová
Registrar
President
*      Language of the case: English.