JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
25 October 2023 (*) (1)
(Competition – Abuse of a dominant position – Internal market in natural gas – Decision finding an infringement of Article 102 TFEU – Regulated market – Definition of the relevant market – Romanian Transit Pipeline 1 – Holder of an exclusive right to use the Romanian Pipeline 1 – Refusal to grant access – Public supply obligation – State action defence – Transmission system operator – Storage system operator – Anticompetitive strategy – Exclusionary effects – Single and continuous infringement – Rights of the defence)
In Case T‑136/19,
Bulgarian Energy Holding EAD, established in Sofia (Bulgaria),
Bulgartransgaz EAD, established in Sofia,
Bulgargaz EAD, established in Sofia,
represented by M. Powell, A. Komninos, H. Gafsen and W. De Catelle, lawyers,
applicants,
supported by
Republic of Bulgaria, represented by L. Zaharieva and T. Mitova, acting as Agents,
intervener,
v
European Commission, represented by H. van Vliet, G. Meessen, J. Szczodrowski and C. Georgieva, acting as Agents,
defendant,
supported by
Overgas Inc., established in Sofia, represented by S. Cappellari and S. Gröss, lawyers,
intervener,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed, at the time of the deliberations, of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 29 September 2022,
gives the following
Judgment
1        By their action of 1 March 2019 based on Article 263 TFEU, Bulgarian Energy Holding EAD (‘BEH’), Bulgartransgaz EAD and Bulgargaz EAD (together, ‘the BEH Group’ or ‘the applicants’), seek, principally, annulment of Commission Decision C(2018) 8806 final of 17 December 2018 relating to proceedings under Article 102 TFEU (Case AT.39849 – BEH Gas) (‘the contested decision’) and, in the alternative, cancellation of the fine that was imposed on them in that decision, or a reduction in the amount of that fine.
I.      Background to the dispute
2        BEH is a company wholly owned by the Bulgarian State. The Bulgarian State’s rights in BEH are exercised by the Bulgarian Minister for Energy. BEH has several subsidiaries which operate in the energy sector in Bulgaria. In the gas sector, it holds 100% of the capital of its subsidiaries Bulgargaz and Bulgartransgaz.
3        Bulgargaz is the public gas supplier in Bulgaria.
4        Bulgartransgaz is:
–        the licensed gas transmission system operator (‘TSO’) in Bulgaria; on that basis, it operates the Bulgarian gas transmission network (‘the transmission network’) and the Bulgarian transit pipeline;
–        the storage system operator (‘SSO’) of the only natural gas storage facility of that country, situated underground in Chiren (‘the Chiren storage facility’).
A.      Factual background
5        The contested decision concerns the gas supply markets in Bulgaria between 30 July 2010 and 1 January 2015 (‘the infringement period’).
1.      Gas supply in Bulgaria
6        During the infringement period, there were two sources of gas supply in Bulgaria, namely domestic production and imports from Russia. Since domestic production was negligible at that time, the country’s supply depended almost entirely on imports of Russian gas.
7        The Russian gas was transported to Bulgaria via Ukraine, and then Romania, through three pipelines, namely the Romanian Transit Pipelines 1, 2 and 3, managed by Transgaz SA, the gas transmission system operator in Romania.
8        The Romanian Transit Pipeline 1 (‘the Romanian Pipeline 1’) crossed Romania from the entry point at Gas Metering Station Isaccea 1, situated on the Ukrainian-Romanian border, up to the Negru Vodă 1 entry point of the transmission network, situated on the Romanian-Bulgarian border. The transmission network, which in turn was connected to the Chiren storage facility, was a purely national network to which the majority of customers and local distribution networks in Bulgaria were connected, with the exception of customers and distribution networks situated in the south-west of Bulgaria.
9        The Romanian Transit Pipelines 2 and 3 transported the Russian gas from the Ukrainian-Romanian border to the Romanian-Bulgarian border at the Negru Vodă 2 and 3 entry points, and merged on Bulgarian territory, forming the Bulgarian transit pipeline. That pipeline was used for limited supplies in the south-west of Bulgaria and mainly transported gas to the former Yugoslav Republic of Macedonia, Greece and Türkiye.
10      Accordingly, at least until April 2016, the Romanian Pipeline 1 was the only viable option for transporting gas to Bulgaria with the aim of supplying most parts of the country.
11      The Romanian Pipeline 1, which has a total annual capacity of 7.4 billion cubic metres, was built in 1974 in accordance with the intergovernmental agreement concluded between the People’s Republic of Bulgaria and the Socialist Republic of Romania on 29 November 1970 (‘the 1970 Intergovernmental Agreement’).
12      On 5 July 1974, Bulgargaz’s predecessor, the company Neftochim, concluded an agreement with the company Rompetrol, Transgaz’s predecessor, for the use of the Romanian Pipeline 1. That agreement remained in force until 2005.
13      On 18 February 2003, the Republic of Bulgaria and Romania concluded a new intergovernmental agreement (‘the 2003 Intergovernmental Agreement’). Under Article 3 of that agreement, the contracting parties committed to requiring their respective gas operators, namely Bulgargaz and Transgaz, to enter into a new contract for the use of the Romanian Pipeline 1 in order to reflect the new transit tariffs.
14      Thus, on 19 October 2005, Transgaz and Bulgargaz concluded a new agreement (‘the 2005 Agreement’), under which Bulgargaz was granted exclusive use of the Romanian Pipeline 1 until 31 December 2011. That contract essentially guaranteed a capacity of 6.49 billion cubic metres per year. In return, Bulgargaz paid Transgaz a fixed annual fee, irrespective of the capacity actually used. In 2009, that agreement was extended until 31 December 2016.
2.      Gas supply in Bulgaria
15      During the infringement period, Bulgargaz purchased gas from Russia and was the sole or the main importer of Russian gas to Bulgaria. It had also acquired the majority of domestic gas production. Bulgargaz was thus the main gas supplier, on the one hand, as regards upstream wholesale trade and, on the other hand, as regards final customers, namely the companies directly connected to the transmission network.
16      During the infringement period, Bulgargaz operated as a public gas supplier on the Bulgarian markets under licence No JI-214-14/29.11.2006 for the public supply of gas in the territory of the Republic of Bulgaria (‘Bulgargaz’s licence’). That licence had been awarded to it by Decision No P-046 of the Komisia za energiyno i vodno regulirane (Energy and Water Regulatory Commission, Bulgaria; ‘the Bulgarian regulator’) of 29 November 2006 (‘the decision of the Bulgarian regulator’), on the basis of the ЗАКОН ЗА ЕНЕРГЕТИКАТА (Law on Energy) of 9 December 2003 (DV No 107 of 9 December 2003), which was most recently amended on 13 December 2018 (DV No 103 of 13 December 2018) (‘the Bulgarian Law on Energy’) for a term of 35 years (Article 2.6.1 of that licence).
3.      The Bulgarian Law on Energy
17      It is apparent from Article 178b of the Bulgarian Law on Energy that the supply of gas by a public supplier or by final suppliers constitutes a service of general interest.
18      That concept of ‘service of general interest’ covers, inter alia, the transmission and supply of gas of a certain quality, in accordance with a price that is regulated or defined and approved by the Bulgarian regulator, and methods and other contractual conditions, which may not be refused for reasons other than those provided for by the Bulgarian Law on Energy (paragraph 1(66b) of the Supplementary Provisions of the Bulgarian Law on Energy).
19      Only one licence could be issued for the public supply of gas in the territory of the Republic of Bulgaria (see Article 43(3) of the Bulgarian Law on Energy). The main purpose of that licence was to ensure that customers were supplied with continuous, reliable and high-quality gas (see Article 51(2)(1) and Article 70(1) and (2)(1) of the Bulgarian Law on Energy).
20      The requirements imposed on the licensee, in this case Bulgargaz, were binding on it (see Article 40(1) and Article 45(8) of the Bulgarian Law on Energy). The Bulgarian regulator was required to revoke the licence if its holder did not comply with its obligation to guarantee customers a continuous and reliable supply of high-quality gas (see Article 59(1)(1) of the Bulgarian Law on Energy) or its obligations under that licence (see Article 59(1)(2) of the Bulgarian Law on Energy).
4.      The Chiren storage facility
21      Natural gas can be stored for later use in underground gas storage facilities. Those facilities can serve as a tool to adjust supply according to demand, mainly in view of the seasonal variations in demand for gas. In addition, especially when there is a high dependence on a single source of supply, those facilities may provide important back-up possibilities in case of disruption of supply.
22      In Bulgaria, the Chiren storage facility, which has a capacity of 0.5 billion cubic metres, was the only existing storage facility during the infringement period. It was not a multicycle storage facility, since gas could only be injected into it during the ‘summer’ months and withdrawn during the ‘winter’ months.
B.      Administrative procedure
23      On 18 November 2010, further to a meeting with the European Commission on 13 October 2010, Overgas Inc., which operates in the gas supply market in Bulgaria, submitted to the Commission an informal complaint against the applicants for infringement of Article 102 TFEU. The Commission organised, with Overgas, three further meetings in 2011 and another meeting on 17 June 2013.
24      Between 27 September and 30 September 2011, the Commission, assisted by the Bulgarian national competition authority, carried out inspections, pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), at the applicants’ premises in Sofia (Bulgaria). During that period, it also carried out an inspection at Overgas’ premises, in accordance with Article 20(3) of Regulation No 1/2003.
25      On 4 July 2013, the Commission initiated proceedings against the applicants on the basis of Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18) and Article 11(6) of Regulation No 1/2003.
26      Prior to the adoption of a statement of objections, the Commission held, with the BEH Group, four meetings in 2013 and a fifth meeting in 2014.
27      On 23 March 2015, the Commission sent a statement of objections to the applicants (‘the statement of objections’). On 2 April 2015, it granted Bulgargaz and Bulgartransgaz access to the investigation file, and, on 8 April 2015, granted BEH access. BEH, Bulgargaz and Bulgartransgaz replied to the statement of objections on 9, 10 and 17 July 2015 respectively.
28      On 27 March 2015, the Commission admitted Overgas to the proceedings as an interested third party that had shown sufficient interest within the meaning of Article 27(3) of Regulation No 1/2003 and Article 13(1) of Regulation No 773/2004, following which the Commission held three further meetings with Overgas. Those meetings took place on 13 October 2015 and on 17 March and 20 October 2016.
29      On 6 October 2015, a technical meeting was held between the Commission team responsible for the investigation file and the BEH Group, at the latter’s request. Further meetings between the Commission and the BEH Group took place on 2 December 2015, on 20 April, 6 July and 7 October 2016, and on 15 March 2017.
30      On 26 September 2016, the Commission adopted a Letter of Facts, to which the applicants replied on 9 December 2016.
31      The applicants also submitted observations to the Commission on 13 June, 13 and 20 October 2016, and on 13 December 2017 and 12 March 2018.
32      On 28 June 2018, the applicants’ external representatives obtained access to a data room where they were able to consult the confidential versions of the minutes of the meetings held between the Commission and Overgas throughout the proceedings. The applicants’ external representatives set out their conclusions on the content of those minutes in two reports, one of which was confidential. The applicants were given access to the non-confidential report of their external representatives on 10 July 2018.
33      On 17 December 2018, the Commission adopted the contested decision.
C.      Contested decision
34      In the contested decision, the Commission concluded, in essence, that the applicants had committed a single and continuous infringement of Article 102 TFEU between 30 July 2010 and 1 January 2015 (see recital 653).
1.      The relevant markets and the applicants’ dominant position on those markets
35      The Commission identified five relevant markets (see recital 352 of the contested decision), namely:
–        the market for capacity-related services on the transmission network;
–        the market for capacity-related services on the Romanian Pipeline 1 (‘the market for capacity services on the Romanian Pipeline 1’);
–        the market for capacity-related services for the Chiren storage facility;
–        on the one hand, the Bulgarian market for the downstream wholesale supply of gas, except for the supply of gas to customers in the south-west of Bulgaria (‘the Bulgarian wholesale gas supply market’) and, on the other hand, the market for the retail supply of gas to large end customers connected to the transmission network, except for customers in the south-west of Bulgaria (together with the Bulgarian wholesale gas supply market, ‘the Bulgarian gas supply markets’).
36      The Commission concluded that the BEH Group, through Bulgargaz and Bulgartransgaz, had a dominant position on those five markets during the infringement period (see recitals 426 and 427 of the contested decision).
2.      The applicants’ conduct constituting abuse of a dominant position
37      The Commission alleged that the applicants had abused their dominant position by preventing, restricting and delaying third-party access to the transmission network, the Chiren storage facility and the Romanian Pipeline 1, thus foreclosing the Bulgarian gas supply markets (see recitals 450 and 451 of the contested decision). The identified infringement was characterised by a pattern of behaviour, in relation to each infrastructure, that formed part of an anticompetitive strategy, determined by BEH and implemented by the BEH Group, intended to protect Bulgargaz’s dominant position on the Bulgarian gas supply markets by foreclosing them (see recitals 1, 2, 454, 471, 472, 491, 492, 534, 535, 570 and 671 of the contested decision).
38      In the first place, with regard to the pattern of behaviour consisting in hindering third-party access to the gas transmission network, the Commission, first, alleged that Bulgartransgaz had adopted delaying tactics in relation to access requests made by third parties. Second, it took the view that the conditions under which Overgas had been granted access to that network in 2013 were restrictive and non-transparent. In addition, the Commission observed that Bulgartransgaz had adopted far more favourable conduct towards its sister company Bulgargaz (see recitals 95, 96 and 471 to 473 of the contested decision).
39      In the second place, as regards the Chiren storage facility, first, the Commission took the view that Bulgartransgaz’s responses to the third-party access requests, the storage access rules adopted by it in 2012 and 2014 (‘the 2012 Storage Access Rules’ and ‘the 2014 Storage Access Rules’, respectively) and the application of those rules constituted a refusal to supply. In particular, the Commission criticised Bulgartransgaz for having employed the following delaying tactics when examining the access requests made by third parties:
–        failing to respond to those requests or to process them internally;
–        asking the third parties to provide an unreasonable amount of information or to submit new access requests, on the basis of a deliberate misinterpretation of that information;
–        failing to be transparent by not, inter alia, making information on the available storage capacity publicly accessible (see recitals 178 and 492 of the contested decision).
40      Second, the Commission found that the 2012 Storage Access Rules had been devised by Bulgartransgaz to grant priority access to Bulgargaz and that, therefore, those rules amounted to a further refusal to supply (see recital 493 of the contested decision).
41      In addition, the Commission found that Bulgartransgaz had given preferential treatment to Bulgargaz by replying to access requests made by the latter without any delays, even without signed contracts (see recital 179 of the contested decision).
42      In the third place, the Commission criticised Bulgargaz for refusing to grant third parties access to the Romanian Pipeline 1 by hoarding capacity on that pipeline. In the Commission’s view, the capacity hoarding comprised the following three elements:
–        Bulgargaz’s booking of the entire capacity of the Romanian Pipeline 1, even though it used only a limited part of that capacity;
–        the refusal to return to Transgaz the capacity requested by it or the imposition of certain conditions for that capacity to be returned;
–        Bulgargaz’s failure to reply to an access request by a third party (see recitals 273, 297 and 534 of the contested decision).
43      In addition, the Commission found that, when Bulgargaz granted Overgas access to the Romanian Pipeline 1 in 2013, the procedure which led to that access had been neither transparent nor based on objective and non-discriminatory criteria (see recitals 536 and 543 of the contested decision).
3.      The anticompetitive effects of the applicants’ conduct
44      The Commission found that the applicants’ conduct had the ability to prevent the development of effective competition on the Bulgarian gas supply markets. That conduct was capable of creating barriers to market entry and therefore also of limiting the degree of competition on those markets. According to the Commission, the BEH Group made it more difficult, or even impossible, for potential competitors to enter the Bulgarian gas supply markets. It submits that, if competition had not been restricted, suppliers other than Bulgargaz could have been operating on those markets earlier and to a greater extent. That would have brought further competition and choice to the benefit of Bulgarian consumers (see recital 620 of the contested decision).
45      In the first place, the Commission observed that the refusal to grant access to the transmission network had had the ability to block third-party access to the Bulgarian gas supply markets or, at least, to restrict it very severely for years. It also noted that, during the infringement period, there had been an increased interest by customers in Bulgaria in diversifying their gas supplies, as shown by the number of potential contracts between suppliers (such as Overgas) and end customers. Some of those contracts were lost due to the lack of access to the transmission network (see recital 622 of the contested decision).
46      In the second place, the Commission found that the lack of access or the limited access to the Chiren storage facility had been able to prevent Bulgargaz’s competitors from developing their offers on equal terms on the Bulgarian gas supply markets because that infrastructure was the only storage facility enabling suppliers to manage fluctuations in demand and changes to contracted gas deliveries. The applicants’ conduct had thus made it considerably more difficult for competitors seriously to challenge the BEH Group’s dominant position on the Bulgarian gas supply markets (see recital 623 of the contested decision).
47      In the third place, the Commission stated that Bulgargaz’s capacity hoarding on the Romanian Pipeline 1 had also had the ability to restrict the possibility of viable competition on the Bulgarian gas supply markets. On account of that conduct, Bulgargaz’s potential competitors were prevented, at least until 1 January 2015, from viably competing with it on the Bulgarian wholesale gas supply market (see recital 624 of the contested decision).
48      Lastly, the Commission found that the potential effects of the BEH Group’s behaviour on the Bulgarian gas supply markets were reinforced by the fact that that group controlled the infrastructures that were indispensable for the third parties wishing to compete on those markets (see recitals 625 to 629 of the contested decision).
4.      The duration of the infringement
49      In the first place, the Commission considered that the anticompetitive conduct relating to the transmission network had started on 30 July 2010. In its view, the end of that conduct had to coincide with the end of the abusive conduct relating to the Romanian Pipeline 1, namely on 1 January 2015, since access to the transmission network was entirely dependent on access to that pipeline (see recitals 646, 647 and 652 of the contested decision).
50      In the second place, the Commission took the view that the anticompetitive conduct relating to the Chiren storage facility had started on 30 July 2010 and ended on 19 September 2014 (see recitals 648 and 649 of the contested decision).
51      In the third place, as regards the anticompetitive conduct vis-à-vis the Romanian Pipeline 1, the Commission found that it had started on 31 January 2011 and had ended on 1 January 2015 (see recitals 650 to 652 of the contested decision).
52      Since all that conduct formed part of a single and continuous infringement, the Commission concluded that that infringement had started on the date of the first anticompetitive conduct, namely on 30 July 2010, and had ended when the last abusive practice had ended, namely on 1 January 2015 (see recital 653 of the contested decision).
5.      The fine and the remedies
53      The Commission imposed a fine of EUR 77 068 000 on the applicants for their participation in the identified single and continuous infringement and held them jointly and severally liable for the payment of that fine. The Commission stated that it had set the amount of the fine in accordance with its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (see recitals 686 to 720 of the contested decision).
54      Furthermore, the Commission observed that, at the time of adoption of the contested decision, the BEH Group had brought the infringement to an end. Nevertheless, it considered that the BEH Group should be ordered to refrain from any practices which would have the same or a similar object or effect as that described in the contested decision (see recital 679 of the contested decision).
6.      Operative part
55      Articles 1 to 4 of the contested decision read as follows:
‘Article 1
Bulgarian Energy Holding EAD and its subsidiaries Bulgargaz EAD and Bulgartransgaz EAD have committed a single and continuous infringement of Article 102 [TFEU] by refusing third-party access to the … transmission network, the Romanian … Pipeline 1 and [the] UGS Chiren [storage facility] resulting in foreclosure of the gas supply markets in Bulgaria.
Article 2
The infringement commenced on 30 July 2010 and lasted until 1 January 2015.
Article 3
For the infringement referred to in Article 1, a fine of EUR 77 068 000 is imposed on Bulgarian Energy Holding EAD and its subsidiaries Bulgargaz EAD and Bulgartransgaz EAD, being jointly and severally liable for the payment of the entire fine.
…
Article 4
Bulgarian Energy Holding EAD and its subsidiaries Bulgargaz EAD and Bulgartransgaz EAD shall immediately bring the infringement referred to in Article 1 to an end, in so far as they have not already effectively done so. They shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or equivalent object or effect.’
II.    Forms of order sought
56      The applicants, supported by the Republic of Bulgaria, claim, in the final form of order sought, that the Court should:
–        adopt a measure of organisation of procedure or a measure of inquiry, ordering the Commission to produce the statement of objections in Case AT.39816 – Upstream gas supplies in Central and Eastern Europe (‘the Gazprom case’), and the related documents in so far as they concern the Bulgarian gas market;
–        annul the contested decision in whole or in part, in so far as it concerns them or one of them;
–        failing that, annul or reduce the fine imposed on them;
–        order the Commission to pay the costs.
57      The Commission, supported by Overgas, contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
III. Law
58      The applicants put forward seven pleas in law, alleging, respectively:
–        first, infringement of their rights of defence, the principle of good administration and the principle of transparency;
–        second, a failure to state reasons and errors of law and of fact concerning the definition of the market for capacity services on Romanian Pipeline 1;
–        third, an incorrect finding that the applicants held a dominant position on the relevant markets;
–        fourth, an incorrect finding that they abused a dominant position;
–        fifth, an incorrect assessment of the duration of the alleged infringement;
–        sixth, that they were deprived of the possibility of terminating the case by means of commitments, in accordance with Article 9 of Regulation No 1/2003;
–        seventh, that there were errors in the calculation of the amount of the fine.
59      The Court considers that it is appropriate to deal with, first of all, the second, third and fourth pleas and then the first plea, the scope of which can be fully assessed only in the light of the considerations made in the assessment of the other pleas.
A.      The second plea in law, alleging a failure to state reasons and errors of law and of fact concerning the definition of the market for capacity services on the Romanian Pipeline 1
60      The applicants, supported by the Republic of Bulgaria, dispute the definition of the market for capacity services on the Romanian Pipeline 1. This plea is divided, in essence, into three parts.
1.      The first part, alleging an inadequate statement of reasons for the definition of the market for capacity services on the Romanian Pipeline 1
61      The applicants, supported by the Republic of Bulgaria, submit that the contested decision is vitiated by an inadequate statement of reasons concerning the definition of the market for capacity services on the Romanian Pipeline 1 because the Commission did not explain why it had departed from its decision-making practice. According to that practice, gas transmission networks are natural monopolies generally having a national scope, in which the dominant service provider is the TSO. However, in the present case, the Commission ‘carved out’ an isolated section of the Romanian gas transmission network, namely the Romanian Pipeline 1, and the capacity services provided on that pipeline as constituting a separate market and attributed control over that market to the user of that pipeline, namely Bulgargaz.
62      In that regard, it must be noted that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to defend their rights and the Court to exercise its power of review. In the case of a decision adopted pursuant to Article 102 TFEU, that principle requires that the contested decision mention facts forming the basis of the legal grounds of the measure and the considerations which led to the adoption of the decision (see judgment of 13 December 2018, Slovak Telekom v Commission, T‑851/14, EU:T:2018:929, paragraph 163 and the case-law cited).
63      First of all, it is apparent from the contested decision that, during the infringement period, the Romanian Pipeline 1 was not connected to the Romanian gas transmission network and that the Bulgarian and Romanian gas transmission networks were not connected to each other (see recitals 266 and 268). Thus, the contested decision enabled the applicants to understand why the Commission had defined the market for capacity services on the Romanian Pipeline 1 without including the Romanian gas transmission network.
64      Next, the Commission explained that its decision-making practice drew a distinction, within gas transportation infrastructure, between capacity-related services on high-pressure pipeline networks (namely transmission networks), capacity-related services on low-pressure networks (namely distribution networks) and capacity-related services for gas imports (see recital 336 of the contested decision).
65      In that regard, first, the contested decision states that the competitive conditions differ significantly between gas transmission networks and distribution networks and that those two types of network are regulated separately (see recital 337). Second, it states that, in its previous decision-making practice, the Commission has recognised that an additional distinction can be drawn with regard to the infrastructure specifically used for the import of gas, which essentially includes pipeline interconnectors and import terminals (see recital 338 of the contested decision).
66      Lastly, as regards the definition of the relevant geographic market for gas import infrastructures, the Commission stated that, in a previous decision, it had already considered that, in terms of demand, the origin of the gas was irrelevant. It explained that the aim of the activity of supplying gas was to sell gas on downstream wholesale or retail markets and that, in order to do so, it was necessary to have a viable transportation route between the source of origin and the destination point. Therefore, all routes that could potentially be used to import gas into Bulgaria had to be taken into account for the definition of the relevant market (see recital 349 of the contested decision).
67      In that regard, the Commission stated in detail that, in the present case, until April 2016, the only viable route for importing gas into Bulgaria was the Romanian Pipeline 1 and that, therefore, during the infringement period, all the quantities of gas imported into Bulgaria had been transported through that pipeline. The Commission thus concluded that, for the purposes of the present case, one of the five relevant markets was the market for capacity services on the Romanian Pipeline 1 (see recitals 49, 51 to 54, 58, 59, 263 to 269 and 349 of the contested decision).
68      It follows from the considerations set out in paragraphs 63 to 67 above that the contested decision enabled the applicants to understand the reasons why the Commission had limited the definition of the relevant market to capacity services on the Romanian Pipeline 1 and why it had taken the view that that definition was consistent with its previous decision-making practice. The grounds of that decision enabled the applicants to understand that the Commission had arrived at defining the market in that way because, first, it considered that the capacity-related services on the Romanian gas transmission network were not interchangeable with the capacity services on the Romanian Pipeline 1 (see recitals 268 and 349). Second, the Romanian Pipeline 1 was, during the infringement period, the only viable route for importing gas into Bulgaria (see paragraph 67 above).
69      The applicants state, however, that the previous decisions relied on by the Commission to support its definition of the market for capacity services on the Romanian Pipeline 1 concerned undertakings which were both the owners and TSOs of the networks in question, whereas, in the present case, Bulgargaz was merely the user of that pipeline. They therefore maintain that the mere reliance on that decision-making practice cannot replace an adequate statement of reasons and an adequate market analysis.
70      In that regard, it is apparent from the contested decision that the Commission first of all explained that Bulgargaz had obtained, through the 2005 Agreement, exclusive use of all the capacity on the Romanian Pipeline 1. Next, the Commission indicated that Article 17.1 of that agreement prevented Transgaz from offering capacity to third parties without Bulgargaz’s consent. Finally, it noted that, during the infringement period, Bulgargaz could have sublet the capacity on the Romanian Pipeline 1 to a third party without the involvement of Transgaz (see recitals 260, 261, 312, 418, 420 and 564 of the contested decision).
71      It follows that the Commission clearly set out the reasons why it had considered that, despite the fact that Bulgargaz was not the TSO of the Romanian Pipeline 1, Bulgargaz was in a similar situation to that of an owner of a gas transmission network in so far as, during the infringement period, it controlled third-party access to that pipeline.
72      In those circumstances, the applicants cannot claim that the definition of the market for capacity services on the Romanian Pipeline 1 is not supported by sufficient reasoning, on the ground that the decisions cited by the Commission concerned owners of gas transmission networks and not users of those networks.
73      Consequently, the first part of the plea must be rejected.
2.      The second part, alleging a failure to analyse the market for capacity services on the Romanian Pipeline 1
74      The applicants submit that, by refusing to consult Transgaz and the Autoritatea Națională de Reglementare în domeniul Energiei (ANRE) (National Energy Regulatory Authority, Romania; ‘the Romanian regulator’) concerning the definition of the market for capacity services on the Romanian Pipeline 1, the Commission did not carry out a market analysis in accordance with the requirements of point 33 of the Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5) (‘the Notice on market definition’).
75      In that regard, it should be noted that, contrary to the applicants’ assertion, point 33 of the Notice on market definition does not impose on the Commission an obligation to carry out a consultation in order to define a market. Point 33 merely states that ‘when a precise market definition is deemed necessary, the Commission will often contact the main customers and the main companies in the industry to enquire into their views about the bou[n]daries of product and geographic markets and to obtain the necessary factual evidence to reach a conclusion’.
76      Therefore, point 33 of the Notice on market definition merely recognises a frequent exercise of consultation with those operating in the market, without, however, imposing on the Commission an obligation to consult them before defining the relevant markets.
77      It follows that the applicants’ argument that it was obligatory that the definition of the market for capacity services on the Romanian Pipeline 1 should have been preceded by a consultation with Transgaz and the Romanian regulator must be rejected.
78      In the light of the foregoing considerations, the second part must be rejected.
3.      The third part, alleging errors of law and errors in the assessment of the facts in the definition of the market for capacity services on the Romanian Pipeline 1
79      The applicants, supported by the Republic of Bulgaria, submit that the definition of the market for capacity services on the Romanian Pipeline 1 is vitiated by:
–        an error of law, in that the Commission failed to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1;
–        a first error in the assessment of the facts, in that the Commission did not identify Transgaz as being a supplier of capacity-related services on the Romanian Pipeline 1;
–        a second error in the assessment of the facts, in that the Commission identified Bulgargaz as being a supplier of capacity on that pipeline, and not as being a buyer.
80      It is appropriate to begin with the joint examination of the first two errors raised by the applicants.
(a)    The errors of law and of fact based, respectively, on the argument that the Commission failed to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1 and did not identify Transgaz as being a supplier of that capacity
81      The applicants submit that Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36) distinguishes between primary and secondary gas capacity markets. They state that, under that regulation, only the TSO may sell capacity on the primary market, whereas network users may only resell capacity on the secondary market. Thus, by failing to distinguish between primary and secondary gas capacity markets, the Commission, first, erred in law by adopting a definition of the market for capacity services on the Romanian Pipeline 1 that was contrary to Regulation No 715/2009 and, second, disregarded the fact that Transgaz was the supplier on that primary market.
82      In that regard, it is true that Regulation No 715/2009 draws a distinction between primary and secondary gas capacity markets. Under that regulation, the primary market is the market of the capacity traded directly by the TSO (see Article 2(1)(22)), whereas the secondary market is the market of the capacity traded otherwise than on the primary market (see Article 2(1)(6)).
83      However, recital 34 of Regulation No 715/2009 states that that regulation, as with the guidelines adopted pursuant to it, is without prejudice to the application of EU competition rules.
84      In addition, as is apparent from paragraphs 2 and 3 of the Notice on market definition, the concept of market in competition matters differs from other definitions of market often used in other contexts (judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 97). Its main objective is to identify in a systematic way the competitive constraints that the undertakings concerned face (judgment of 18 May 2022, Wieland-Werke v Commission, T‑251/19, not published, EU:T:2022:296, paragraph 40).
85      Thus, in the context of the application of Article 102 TFEU, the definition of the relevant market is carried out in order to define the boundaries within which it must be assessed whether an undertaking is able to behave, to an appreciable extent, independently of its competitors, its customers and, ultimately, consumers and therefore whether it holds a dominant position within the meaning of that provision (judgments of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 37, and of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 30).
86      According to settled case-law, for the purposes of investigating the possibly dominant position of an undertaking, the possibilities of competition must be judged in the context of the market comprising the totality of the products or services which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products or services; those possibilities of competition must also be assessed in the light of the competitive conditions and of the structure of supply and demand (see judgments of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 37 and the case-law cited, and of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 31 and the case-law cited).
87      Therefore, in order to determine whether the Commission was required to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1, it is necessary to ascertain whether, during the infringement period, that distinction was relevant in relation to the services offered on each of those markets, in order thus to define the boundaries within which the question of whether the applicants held a dominant position on that relevant market had to be assessed.
88      It is common ground that, during the infringement period, the Romanian Pipeline 1 was the only viable route for transporting Russian gas to Bulgaria, with the result that the capacity services on that pipeline were not interchangeable with other services within the meaning of the case-law cited in paragraph 86 above, for the purposes of transporting gas between Russia and Bulgaria. It follows a contrario, and still within the meaning of the same case-law, that the capacity services on the primary and secondary markets on the Romanian Pipeline 1 constituted a range of services particularly suitable for satisfying constant needs and, therefore, were interchangeable with each other.
89      In that respect, the Commission rightly noted that, during the infringement period, Bulgargaz had, under the 2005 Agreement, not only reserved all capacity on the Romanian Pipeline 1, but could also prevent any attempt by Transgaz to grant capacity to third parties on the primary market (see recitals 260 and 261 of the contested decision). Article 17.1 of that agreement stipulated that ‘the [Romanian] [P]ipeline [1] shall be used exclusively for [Bulgargaz], and without [Bulgargaz]’s consent[,] it shall not be allowed to connect other consumers to that pipeline, and no other natural gas amounts shall be transited’.
90      Thus, despite the fact that Transgaz was the TSO of the Romanian Pipeline 1, during the infringement period:
–        Bulgargaz was the only operator able to offer capacity services on that pipeline on the secondary market, as a result of the exclusive use of that infrastructure granted to it by the 2005 Agreement;
–        Bulgargaz also had, by virtue of the right of prior consent conferred on it by the 2005 Agreement, the possibility of opposing any request for access on the primary market.
91      Therefore, the distinction between the primary and secondary markets was irrelevant for the analysis under Article 102 TFEU.
92      The applicants consider that that conclusion is incorrect because, in their view, under Regulation No 715/2009 Transgaz was required unilaterally to take over the capacity that Bulgargaz had not used on the Romanian Pipeline 1 and to offer it to third parties, irrespective of the existence of the 2005 Agreement. In that regard, they state that that regulation and the guidelines annexed to that regulation in the version in force until 16 September 2012 (‘the 2009 Guidelines’) concerning the procedures for managing contractual congestion have direct effect. Accordingly, they submit that the fact that Romania did not implement those rules cannot adversely affect them.
93      In that regard, it should be noted that, under Regulation No 715/2009:
–        ‘firm capacity’ is the gas transmission capacity contractually guaranteed as uninterruptible by the TSO (see Article 2(1)(16));
–        ‘technical capacity’ is the maximum firm capacity that the TSO can offer to the network users, taking account of system integrity and the operational requirements of the transmission network (see Article 2(1)(18));
–        there is ‘contractual congestion’ where the level of firm capacity demand exceeds the technical capacity (see Article 2(1)(21));
–        ‘unused capacity’ is firm capacity which a network user has acquired under a transport contract but which that user has not nominated by the deadline specified in the contract (see Article 2(1)(4));
–        ‘interruptible capacity’ is gas transmission capacity that may be interrupted by the TSO in accordance with the conditions stipulated in the transport contract (see Article 2(1)(13)).
94      Article 16(3)(a) of Regulation No 715/2009 provides that, in the event of contractual congestion, the TSO is to offer unused capacity on the primary market at least on a day-ahead and interruptible basis.
95      The 2009 Guidelines, which supplemented Regulation No 715/2009, provided, in point 2.2(1), that, in the event that contracted capacity went unused, TSOs were to make that capacity available on the primary market on an interruptible basis via contracts of differing duration. However, that obligation related only to cases where unused capacity was not offered by the relevant network user on the secondary market at a reasonable price.
96      However, as regards the possibility of withdrawing and reallocating unused capacity as firm capacity, the 2009 Guidelines provided only, in point 2.2(4) thereof, that, where appropriate, TSOs would make reasonable endeavours to offer at least parts of the unused capacity to the market as firm capacity.
97      Two findings are apparent from Article 16(3)(a) of Regulation No 715/2009, interpreted in the light of the 2009 Guidelines. In the first place, Transgaz had to offer unused capacity on the Romanian Pipeline 1 only if Bulgargaz did not offer it on the secondary market at a reasonable price. In the second place, in such a case, Transgaz was only obliged to offer Bulgargaz’s unused capacity to third parties as short-term and interruptible capacity, and not as firm capacity.
98      In recital 35 of the contested decision, which is not disputed by the applicants, the Commission stated that downstream gas suppliers could not normally rely on interruptible capacity in order to respect their supply obligations to their customers, because that capacity was not guaranteed by the TSO. Therefore, Transgaz’s offer of Bulgargaz’s unused capacity as short-term and interruptible capacity would not have enabled that TSO to meet the constant needs of the undertakings wishing to obtain access to the Romanian Pipeline 1.
99      The amendment of the 2009 Guidelines by the adoption of Commission Decision 2012/490/EU of 24 August 2012 on amending Annex I to Regulation No 715/2009 (OJ 2012 L 231, p. 16; ‘the 2012 Guidelines’) confirms that the obligation laid down in Article 16(3) of Regulation No 715/2009 was insufficient. It is apparent from recital 2 of Decision 2012/490/EU that the 2012 Guidelines were adopted because practice had shown that, despite the application of certain congestion-management principles such as the offering of interruptible capacities, contractual congestion remained an obstacle to the development of a well-functioning internal market in gas.
100    Therefore, in order to resolve that situation, the 2012 Guidelines laid down four different procedures the purpose of which was to enable TSOs, in the event of contractual congestion, to reallocate the unused capacity as firm capacity. Only three of those procedures had to be implemented from 1 October 2013 and, therefore, during the infringement period.
101    In the present case, the applicants refer to two of those mechanisms, namely, first, the mechanism for increasing capacity through a system of oversubscription and buy-back provided for in point 2.2.2 of the 2012 Guidelines (‘the oversubscription and buy-back mechanism’) and, second, the long-term ‘use it or lose it’ (UIOLI) mechanism, provided for in point 2.2.5 of those guidelines (‘the UIOLI mechanism’ and, together with the oversubscription and buy-back mechanism, ‘the incentive mechanisms’).
102    In the first place, the oversubscription and buy-back mechanism allowed the TSO to increase the capacity of its network by offering, as firm capacity, the additional capacity exceeding what could be transported. The TSO had to buy back the capacity that was ultimately nominated by the users exceeding what the gas transmission network was able to transport (see point 2.2.2(1) and (6) of the 2012 Guidelines). In order to encourage the TSO to bear the risks associated with overselling, the system provided for financial compensation (see point 2.2.2(3) of the 2012 Guidelines).
103    In order for the oversubscription and buy-back mechanism to apply, the 2012 Guidelines provided that it had to be approved in advance by the national regulatory authority (‘the national regulator’) and be the subject of consultations with the national regulators of adjacent Member States (see point 2.2.2(1) of those guidelines).
104    In the second place, under the UIOLI mechanism, the national regulators were obliged to require TSOs to withdraw, partially or fully, systematically underutilised contracted capacity on an interconnection point by a network user where that user had not sold or offered under reasonable conditions its unused capacity and where other network users requested firm capacity (see point 2.2.5(1) of the 2012 Guidelines).
105    However, for the TSO to be able to use the UIOLI mechanism, the national regulator first had to verify whether the conditions laid down by the 2012 Guidelines enabling a TSO to withdraw capacity were satisfied (see point 2.2.5(1) and (4) of the 2012 Guidelines).
106    The applicants submit, in essence, that, from 2012, Transgaz could have used the incentive mechanisms unilaterally to withdraw Bulgargaz’s unused capacity on the Romanian Pipeline 1 and to reallocate it to third parties.
107    In that regard, it is apparent from paragraphs 103 to 105 above that, in order for those incentive mechanisms to apply, the Romanian regulator had to adopt certain preliminary measures.
108    In recitals 293 and 294 of the contested decision, the Commission found that the Romanian regulator had not, at the time, taken the necessary preliminary measures to enable the TSO to use the incentive mechanisms.
109    However, the applicants dispute the need for intervention by the Romanian regulator in order for Transgaz to be able to offer to third parties Bulgargaz’s unused capacity on the Romanian Pipeline 1.
110    The applicants’ position does not stand up to analysis. In the absence of prior intervention by the national regulator during the infringement period, the incentive mechanisms could not be implemented (see paragraphs 103 and 105 above). That means that, during that period, Transgaz could not have relied on those mechanisms unilaterally to withdraw Bulgargaz’s unused capacity on the Romanian Pipeline 1 and to offer it to third parties as firm capacity. Therefore, Transgaz could offer that unused capacity to third parties, under Regulation No 715/2009, only as short-term and interruptible capacity.
111    As follows from paragraph 98 above, a short-term and interruptible offer would not have enabled Transgaz, in practice, to circumvent the restrictions imposed by the 2005 Agreement and, thus, to meet the constant needs of suppliers wishing to have access to the Romanian Pipeline 1, given that such capacity would not have been attractive to downstream gas suppliers because it did not allow them to respect their supply obligations to their customers.
112    In those circumstances, the distinction between the primary and secondary gas capacity markets was irrelevant in the present case for the assessment of whether the applicants enjoyed a dominant position in respect of the capacity services on the Romanian Pipeline 1. As stated in paragraph 89 above, as a result of the 2005 Agreement, not only was Bulgargaz, throughout the infringement period, the only possible supplier of capacity services on the Romanian Pipeline 1 on the secondary market, but it also controlled third-party access to the primary market due to exclusive use of that pipeline and the right of prior consent which it held under the 2005 Agreement. Similarly, since Transgaz could offer unused capacity, without Bulgargaz’s consent, only as short-term and interruptible capacity during the infringement period, the Commission did not make an error of assessment in not finding that Transgaz was a supplier in the context of the definition of the market for capacity services on the Romanian Pipeline 1.
113    Those conclusions are not called into question by the other arguments put forward by the applicants.
114    In the first place, the applicants submit that the Commission’s definition of the market for capacity services on the Romanian Pipeline 1 departs from its decision-making practice.
115    It must be noted that the Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings, other product and service markets or other geographic markets at different times (see judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 55 and the case-law cited). Furthermore, economic operators are not entitled to have a legitimate expectation that a previous practice in taking decisions that is capable of being varied will be maintained, depending on changing circumstances or the evolution of the Commission’s analysis (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraphs 142 and 143).
116    Thus, the applicants are not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case (judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 118; see also judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 55 and the case-law cited).
117    In the second place, the applicants submit that Legea nr. 123/2012 energiei electrice şi a gazelor naturale (Law No 123/2012 on electricity and natural gas) of 10 July 2012 (Monitorul Oficial al României,  part I, No 485  of 16 July 2012; ‘the Romanian Law on Energy’)  incorporated Regulation No 715/2009 and gave Transgaz, as the TSO, power to withdraw unused capacity on the Romanian Pipeline I. In that regard, they refer to Article 130(1) and Article 194 of that law, and to the methodology for allocating capacity on the Romanian Pipeline I, published by the Romanian regulator on 11 July 2012 (Monitorul Oficial al României,  part I, No 472 of 11 July 2012; ‘the capacity allocation methodology’).
118    That argument cannot succeed for the following reasons.
119    First, Article 130(1) of the Romanian Law on Energy did not apply to the Romanian Pipeline 1. That provision required the TSO to allocate capacity within the interconnection pipelines, in accordance with Regulation No 715/2009 (see Article 130(1)(q) of the Romanian Law on Energy). According to that law, an interconnection pipeline was a transmission pipeline crossing a border between two Member States of the European Union for the sole purpose of connecting the gas transmission systems of those two States (see Article 100(34) of that law). The Romanian Pipeline 1 was not connected to the Romanian gas transmission network during the infringement period and therefore was not an interconnection pipeline within the meaning of Article 130(1) of the Romanian Law on Energy.
120    Second, Article 194 of the Romanian Law on Energy provided that an infringement, by the TSO, of the provisions concerning capacity allocation and congestion management mechanisms laid down by EU law also constituted an infringement of the relevant Romanian rules (see Article 194(36) of that law). However, in so far as, as follows from paragraph 110 above, the EU legislation in force at the time did not allow Transgaz to withdraw unused capacity and reallocate it to third parties as firm capacity, Article 194 of the Romanian Law on Energy also did not empower it to act to that effect.
121    Third, as regards the capacity allocation methodology, it did not require Transgaz, as TSO, to withdraw any existing capacity that Bulgargaz had not used, but only obliged Transgaz to sell the available capacity on that pipeline (see Article 1 of that methodology), namely capacity that was not the subject of a contract. Under Article 17.1 of the 2005 Agreement, ‘the [Romanian] [P]ipeline [1] shall be used exclusively for [Bulgargaz], and without [Bulgargaz’s] consent[,] it shall not be allowed to connect other consumers to that pipeline, and no other natural gas amounts shall be transited except those which [Bulgargaz] delivered to [Transgaz] at the [Gas Metering Station] Isaccea 1’. Since that agreement remained in force throughout the infringement period, it is clear that there was no available capacity that Transgaz could have sold to third-party undertakings on that pipeline at that time.
122    Accordingly, the complaints alleging that the Commission erred in law by failing to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1, and alleging that the Commission made an error of assessment by failing to identify Transgaz as being a supplier of those capacities, must be rejected.
(b)    The error of fact regarding the identification of Bulgargaz as being a supplier on the Romanian Pipeline 1
123    In the first place, the applicants claim that Bulgargaz was merely a buyer of capacity services on the Romanian Pipeline 1 on the primary market for those services, and not a supplier of those services.
124    The contested decision does not classify Bulgargaz as a supplier on the primary market for capacity services on the Romanian Pipeline 1. The Commission merely stated that Transgaz had allocated capacity on that primary market to Bulgargaz by concluding the 2005 Agreement (see recital 291 of the contested decision). However, as follows from paragraphs 89 and 90 above, in view of the exclusive use of that pipeline and the right of prior consent, which were granted to Bulgargaz by Article 17.1 of that agreement, which remained in force throughout the infringement period, the Commission found that Transgaz could not offer third parties capacity on the primary market without Bulgargaz’s consent and that, therefore, Bulgargaz was the only one that could provide third parties with access to the Romanian Pipeline 1 (see recitals 261, 288 and 306 of the contested decision).
125    Accordingly, the applicants’ argument that the Commission incorrectly classified Bulgargaz as a supplier on the primary market for capacity services on the Romanian Pipeline 1 must be rejected.
126    In the second place, the applicants submit that the Commission incorrectly concluded, in recital 292 of the contested decision, that Bulgargaz could resell capacity on the secondary market for the Romanian Pipeline 1 during the infringement period, when Transgaz had not yet adopted the rules permitting such trade in accordance with Article 22 of Regulation No 715/2009.
127    In that regard, it is true that Article 22 of Regulation No 715/2009 required the TSOs to adopt certain measures to enable and facilitate the trade of capacity on the secondary market. However, it should be noted that, on 31 January 2013, Bulgargaz concluded an agreement with Overgas under which Overgas was granted access to the Romanian Pipeline 1, even though the measures envisaged by Article 22 of that regulation had still not been adopted by Transgaz.
128    Therefore, as the Commission found in recital 292 of the contested decision, the fact that Transgaz had not adopted the measures envisaged by Article 22 of Regulation No 715/2009 did not, in practice, constitute an obstacle to Bulgargaz being able to offer capacity on the secondary market for capacity on the Romanian Pipeline 1.
129    It follows that the applicants’ complaint that the Commission made an error of fact in finding that Bulgargaz could provide capacity on the Romanian Pipeline 1 is unfounded.
130    Consequently, the present part and, therefore, the second plea in its entirety must be rejected.
B.      The third plea in law, alleging an incorrect finding that the applicants held a dominant position on the relevant markets
131    The applicants dispute the finding in recitals 426 and 427 of the contested decision that the BEH Group held, through Bulgargaz and Bulgartransgaz, a dominant position on the five relevant markets.
132    There are two parts to this plea. The applicants submit that the Commission incorrectly concluded, first, that Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1 and, second, that BEH indirectly held such a position on the five markets in question.
1.      The first part, alleging an incorrect finding that Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1
133    In the first place, the applicants submit that the definition of the market for capacity services on the Romanian Pipeline 1 is vitiated by errors of law and of fact. Therefore, the finding that Bulgargaz is dominant on that market is also incorrect.
134    In that regard, it follows from the analysis of the second plea that the Commission did not make an error of law or of fact when defining the market for capacity services on the Romanian Pipeline 1. It follows that the applicants’ first argument must be rejected at the outset.
135    In the second place, the applicants submit that, even if the definition of the market for capacity services on the Romanian Pipeline 1 were correct, the Commission’s assessment that Bulgargaz held a dominant position on that market is incorrect.
136    More specifically, the applicants claim that the contested decision does not contain an analysis of the market structure or the market power of the undertakings active on the Romanian Pipeline 1, in breach of the requirements set out in points 13 to 15 of the Communication on Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7). Accordingly, they consider that the Commission has not established to the requisite legal standard that Bulgargaz was dominant on the market for capacity services on the Romanian Pipeline 1.
137    In that regard, it should be noted that, according to settled case-law, a dominant position referred to in Article 102 TFEU relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, of the consumers. In general, a dominant position derives from a combination of various factors which, taken separately, are not necessarily determinative (judgments of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraphs 65 and 66, and of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraphs 38 and 39).
138    Furthermore, the existence of a dominant position does not preclude some competition, but enables the undertaking which profits by it, if not to determine, to have an appreciable influence on the conditions under which competition will develop and, in any event, to act largely in disregard of it so long as such conduct does not operate to its detriment (judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 39).
139    In the present case, the Commission noted that gas transmission infrastructures constituted a natural monopoly and that, therefore, the undertaking that controlled capacity on those infrastructures became an unavoidable trading partner whose market power could not be neutralised. As regards the Romanian Pipeline 1, the Commission concluded that, during the infringement period, it was Bulgargaz that controlled any possible third-party access to that pipeline (see recitals 335, 418 and 420 of the contested decision).
140    The applicants submit that that assessment is vitiated by four errors.
(a)    The first complaint, alleging that the Commission erred in finding that Bulgargaz controlled third-party access to the Romanian Pipeline 1
141    The applicants submit that the Commission was wrong in finding that Bulgargaz controlled third-party access to the Romanian Pipeline 1. They state that that control was exercised by Transgaz, as the TSO of that infrastructure.
142    In support of that complaint, in the first place, the applicants submit that, even if the 2005 Agreement were an exclusivity agreement, Bulgargaz was granted only consultative rights as regards the possibility of offering capacity to third parties, and those rights were never used.
143    In that regard, it should be recalled that, according to the wording of Article 17.1 of the 2005 Agreement, ‘the [Romanian] [P]ipeline [1] shall be used exclusively for [Bulgargaz], and without [Bulgargaz’s] consent[,] it shall not be allowed to connect other consumers to that pipeline, and no other natural gas amounts shall be transited’.
144    It is therefore clear that Transgaz could not offer third parties capacity on the Romanian Pipeline 1 without first obtaining Bulgargaz’s consent.
145    That interpretation of the 2005 Agreement is supported by the discussions between Transgaz and BEH at their meeting on 24 January 2011. It is apparent from the minutes of that meeting prepared by BEH, dated 31 January 2011, that Transgaz asked BEH whether it was possible to recover part of the unused capacity on the Romanian Pipeline 1 with a view to the future construction of a liquefied natural gas terminal near Constanţa (Romania) (‘the terminal in Constanţa’). BEH replied that the entire capacity of that pipeline had been reserved for Bulgargaz, but that the possibility raised by Transgaz could nevertheless be the subject of a discussion which, first, had to take place at governmental level (see recital 297(a) of the contested decision).
146    It follows that, contrary to what the applicants submit, the 2005 Agreement did not grant Bulgargaz mere consultation rights, but granted it a genuine power of prior consent in relation to any attempt by Transgaz to take over unused capacity on the Romanian Pipeline 1, including to offer such capacity to third parties.
147    In the second place, the applicants consider that the fact that Bulgargaz sublet part of its capacity to Overgas from 2013 does not support the conclusion that Bulgargaz controlled access to the Romanian Pipeline 1. They argue that that was merely a gesture of good faith by Bulgargaz to Overgas, given that the rules permitting trade on the secondary market had not yet been established.
148    In that respect, it should be noted that the fact that Bulgargaz sublet to Overgas part of the capacity of the Romanian Pipeline 1, irrespective of that having allegedly been an act of good faith, illustrates that, as a matter of fact, Bulgargaz succeeded in giving third parties access to that pipeline, despite the absence of rules governing the secondary market for capacity services.
149    That fact was relevant to the analysis carried out in the contested decision since, under the 2005 Agreement, Bulgargaz had reserved capacity on the Romanian Pipeline 1 under exclusivity conditions. Therefore, a third party wishing to have access to that pipeline during the infringement period would have obtained it only if Bulgargaz had agreed to Transgaz offering capacity in accordance with the terms of Article 17.1 of the 2005 Agreement, or if Bulgargaz had agreed to sublet part of its capacity, as it did with Overgas from 1 January 2013.
150    It follows that the Commission was fully entitled to find that Bulgargaz controlled third-party access to the Romanian Pipeline 1 during the infringement period.
151    The first complaint must, therefore, be rejected.
(b)    The second complaint, alleging that the Commission did not identify Transgaz as being a supplier of capacity services on the Romanian Pipeline 1
152    The applicants submit that the assessment of Bulgargaz’s dominant position on the market for capacity services on the Romanian Pipeline 1 is vitiated by an error of fact, in that it does not identify all the suppliers of capacity services on that market.
153    On that point, the applicants complain that the Commission ignored the fact that Bulgargaz was not the TSO of the Romanian Pipeline 1 and that Transgaz had regulatory powers allowing it to withdraw unused capacity unilaterally in order to offer it to third parties. In so doing, the Commission failed to identify the primary and dominant supplier on the market for capacity services on the Romanian Pipeline 1.
154    In that regard, it must be noted, in the first place, that, as follows from paragraphs 89 and 90 above, and from the analysis of the first complaint, the Commission found that, although Bulgargaz was not the TSO of the Romanian Pipeline 1, it controlled access to it under the 2005 Agreement.
155    In the second place, it is apparent from the contested decision that, before examining whether Bulgargaz enjoyed a dominant position on the market for capacity services on the Romanian Pipeline 1, the Commission correctly concluded that, during the infringement period, Transgaz could not have unilaterally withdrawn capacity and offered it to third parties as firm capacity (see paragraphs 97 and 98 above).
156    In that regard, in its analysis, the Commission stated that the 2012 Guidelines, under which TSOs could implement the incentive mechanisms, which allowed them to combat capacity hoarding and thus offer unused contractual capacity to third parties on a long-term basis, did not enter into force until 1 October 2013. It also found that, in order for Transgaz to be able to implement those mechanisms, those guidelines required the Romanian regulator to adopt certain measures beforehand and that, in the present case, those measures had not been adopted before the end of the infringement period (see recitals 293 and 294 of the contested decision).
157    Therefore, the applicants cannot argue that the Commission’s analysis ignored the fact that Transgaz was the TSO of the Romanian Pipeline 1 or that the Commission did not examine the issue of Transgaz’s regulatory powers, before concluding that Bulgargaz held a dominant position on the market for capacity services on that pipeline.
158    The applicants consider, in any event, that the Commission’s interpretation of the applicable regulatory framework is incorrect and that the involvement of the Romanian regulator was not required in order for Transgaz to be able to offer Bulgargaz’s unused capacity on the Romanian Pipeline 1 to third parties.
159    It should be noted that, during the infringement period, Regulation No 715/2009, interpreted in the light of the 2009 and 2012 Guidelines, did not allow Transgaz to offer to third parties Bulgargaz’s unused capacity on the Romanian Pipeline 1 as firm capacity without Bulgargaz’s consent. The regulatory framework applicable at that time allowed Transgaz unilaterally to withdraw Bulgargaz’s unused contractual capacity, in order to offer it to third parties, only as interruptible and short-term capacity, which, as follows from paragraphs 93 to 111 above, would have been insufficient to allow Transgaz to give third parties access to enable the latter to respect their obligations to their customers. By contrast, the possibility of offering unused capacity as firm capacity required the prior intervention of the Romanian regulator, as follows from paragraphs 102 to 107 above. However, the Romanian regulator did not take the necessary measures during the infringement period.
160    It follows that, during the infringement period, Transgaz could, without Bulgargaz’s consent, offer only limited and insufficient capacity services on the Romanian Pipeline 1 to third parties. Therefore, the fact that the EU regulatory framework allowed Transgaz to offer unused capacity as short-term and interruptible capacity was insufficient to enable Transgaz to circumvent the restrictions imposed by Article 17.1 of the 2005 Agreement and thus could not have an appreciable effect on the actual control exercised by Bulgargaz over the Romanian Pipeline 1.
161    In those circumstances, it must be held that the Commission was right not to identify Transgaz as being a genuine alternative source of supply for third parties wishing to have access to the Romanian Pipeline 1 during the infringement period.
162    That conclusion is not called into question by the applicants’ other arguments.
163    In the first place, in support of their argument that Transgaz could have unilaterally withdrawn capacity on the Romanian Pipeline 1 from Bulgargaz, the applicants rely on Commission Regulation (EU) No 984/2013 of 14 October 2013 establishing a Network Code on Capacity Allocation Mechanisms in Gas Transmission Systems and supplementing Regulation No 715/2009 (OJ 2013 L 273, p. 5).
164    It is apparent from Article 28 of Regulation No 984/2013 that the relevant provisions of that regulation did not enter into force until 1 November 2015, that is to say, after the end of the infringement period. Accordingly, those provisions cannot affect the assessment of the facts and the applicants’ argument must be rejected at the outset as being ineffective.
165    In the second place, the applicants complain that the Commission failed to obtain the views of Transgaz and the Romanian regulator on whether Bulgargaz enjoyed a dominant position on the market for capacity services on the Romanian Pipeline 1.
166    That argument must be rejected since, in order to assess the powers conferred on the TSOs by EU law and by the applicable national law and thus to take a position on whether Bulgargaz enjoyed a dominant position on the market for capacity services on the Romanian Pipeline 1, the Commission’s legal assessment did not depend on the views of Transgaz or the Romanian regulator.
167    In the third place, the applicants submit, in essence, that the Commission could not conclude that Bulgargaz was dominant on the market for capacity services on the Romanian Pipeline 1 because the Commission had already concluded, in Case AT.40335 – Romanian gas interconnectors (‘the Transgaz case’), that Transgaz held a dominant position on that same market.
168    In that regard, it is apparent from Commission Decision C(2020) 1232 of 6 March 2020 relating to a proceeding under Article 102 TFEU (the Transgaz case), as published on its website, that, following the preliminary assessment of that case, the Commission concluded that Transgaz enjoyed a dominant position within the meaning of Article 102 TFEU on the market for natural gas transmission in Romania, including transmission through the interconnectors with neighbouring countries. It stated, however, that the three transit pipelines operated at the same time by Transgaz, including the Romanian Pipeline 1 supplying the Bulgarian market, were not part of the Commission’s preliminary assessment since they were not connected to the Romanian gas transmission network (see recital 25 of the decision of 6 March 2020).
169    The Commission therefore did not conclude, in the Transgaz case, that the undertaking under investigation held a dominant position on the market for capacity services on the Romanian Pipeline 1.
170    Therefore, the applicants’ argument that the Commission’s preliminary findings in the Transgaz case prevented it from concluding that Bulgargaz was dominant on the market for capacity services on the Romanian Pipeline 1 during the infringement period must be rejected.
171    The second complaint must therefore be rejected.
(c)    The third complaint, alleging that the Commission failed to assess whether Bulgargaz held a dominant position in the context of the discussions with Transgaz relating to the renegotiation of the 2005 Agreement
172    The applicants submit that the Commission could not conclude that Bulgargaz’s conduct in the context of the renegotiation of the 2005 Agreement was abusive without first assessing whether Bulgargaz held a dominant position in those negotiations.
173    In that regard, it must be noted that the dominant position referred to in Article 102 TFEU relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, of the consumers (judgments of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraphs 65 and 66, and of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraphs 38 and 39).
174    It is apparent from the definition of a dominant position within the meaning of Article 102 TFEU, referred to in paragraph 173 above, that this must be assessed with regard to the relevant market, and not with regard to a particular undertaking, let alone a particular transaction or negotiation, as the applicants claim.
175    In the present case, as set out in the context of the first complaint in this part of the plea, the Commission did not err in law in finding that, as a result of the 2005 Agreement, during the infringement period, Bulgargaz was the undertaking that controlled third-party access to the market for capacity services on the Romanian Pipeline 1.
176    In those circumstances, the applicants cannot validly complain that the Commission failed to assess whether Bulgargaz enjoyed a dominant position vis-à-vis Transgaz in the context of the discussions on the renegotiation of the 2005 Agreement.
177    It follows that the third complaint must be rejected.
(d)    The fourth complaint, alleging that the Commission misinterpreted its decision-making practice
178    The applicants submit, in essence, that the Commission could not conclude that Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1 because, in the Commission’s previous decisions, it had concluded that it was the TSO that held a dominant position on the gas transmission network.
179    The applicants submit that, in recital 435 of the contested decision, the Commission erred in law its interpretation of its decision-making practice by referring to its Decisions C(2009) 1885 of 18 March 2009 relating to a proceeding under Article [102 TFEU] and Article 53 of the EEA Agreement (Case COMP/B-1/39.402 – RWE (Gas foreclosure)) and C(2010) 6701 of 29 September 2010 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case COMP/39.315 – ENI) in order to substantiate the conclusion that, as a result of the 2005 Agreement, Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1, when Bulgargaz was not the TSO of that pipeline.
180    The applicants submit that, in those two cases, it is true that the undertakings which the Commission regarded as holding a dominant position on the gas transmission networks in question had reserved capacity on those networks on a long-term and exclusive basis. However, in each of those cases, as well as in its Decisions C(2009) 9375 final of 3 December 2009 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case COMP/39.316 – GDF) and C(2010) 2863 final of 4 May 2010 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case COMP/39.317 – E.ON Gas) concerning similar issues, the Commission established that the undertakings in question had economic, organisational or legal links with the companies that owned and were the TSOs of those networks. However, that is not the case here.
181    In that regard, it must be noted that the Commission is required to carry out an individual analysis of the circumstances of each case, without being bound by previous decisions concerning other economic operators, other product and service markets or other geographic markets at different times (see, to that effect and by analogy, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraphs 142 and 143).
182    As follows from the examination of the first complaint of this part of the plea, the Commission has sufficiently demonstrated, in the present case, that Bulgargaz controlled access to the Romanian Pipeline 1 during the infringement period. Consequently, the applicants cannot claim that the Commission incorrectly concluded that Bulgargaz held a dominant position on the market for capacity services on that pipeline, on the sole ground that, in previous decisions, each undertaking which it had considered to hold a dominant position on the relevant market had economic, organisational or legal links with the TSO of the transmission network in question.
183    Accordingly, the fourth complaint and, therefore, the first part must be rejected.
2.      The second part, alleging an incorrect finding that BEH held a dominant position on the relevant markets
(a)    The existence of an ‘indirect’ dominant position
184    The applicants criticise the Commission for having concluded that BEH ‘indirectly’ held a dominant position, through its subsidiaries Bulgargaz and Bulgartransgaz, on the five relevant markets. They submit that:
–        BEH was not present on any of the relevant markets and that the activities carried out in those markets were regulated and required a licence which BEH did not hold;
–        BEH, as a financial holding company, could not ‘indirectly’ occupy a dominant position through its two subsidiaries which, although present in its holding structure, were legally independent and autonomously determined their course of action on those markets.
185    The Commission considers that the argument that BEH, as a legal entity, was not active on any of the markets in question is irrelevant, since the conduct of Bulgartransgaz and Bulgargaz, as well as their dominant position, were attributed to BEH in the context of the concept of ‘single economic entity’. In addition, the Commission did demonstrate, in recital 365 of the contested decision, that BEH had exercised decisive influence over its two subsidiaries.
186    The Court notes at the outset that, in Section 6.2.3.5 of the contested decision (entitled ‘Conclusions on dominance’), the Commission reached the conclusion that the BEH Group, as defined in recital 1 (namely, BEH, Bulgargaz and Bulgartransgaz; together ‘the BEH Group’), held a dominant position on the relevant markets. Then, in Section 6.2.2 (entitled ‘The BEH group forms a single economic unit’), the contested decision seeks to demonstrate that the BEH Group formed a single economic entity by relying on the fact that, during the infringement period, BEH, which held the entire share capital of Bulgargaz and Bulgartransgaz (see recitals 362, 366 and 670), exercised decisive influence over them and that they therefore did not enjoy genuine autonomy to determine their conduct on the relevant markets (see recitals 374 to 392).
187    According to settled case-law, the Commission may impute to a parent company responsibility for the conduct of one of its subsidiaries in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. In such a situation, the parent company and its subsidiary are part of the same economic unit and therefore form a single undertaking for the purposes of Article 102 TFEU (see judgment of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 40 and the case-law cited; judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 27).
188    In the present case, in recitals 426 and 427 of the contested decision, the Commission concluded that the BEH Group, through Bulgartransgaz and Bulgargaz, held a dominant position on the markets, first, for capacity-related services on the Bulgarian transmission network and capacity-related services for the Chiren storage facility and, second, for capacity-related services on the Romanian Pipeline 1 and, in essence, on the Bulgarian gas supply markets.
189    The applicants specifically dispute the findings in Section 6.2.3.5 of the contested decision, in so far as that section erroneously assumes that BEH, namely the holding company, indirectly held a dominant position on those markets on which it was not active.
190    However, it should be noted that the applicants’ argument set out in paragraph 189 above does not correspond to the considerations set out in the contested decision, in particular in Section 6.2.3.5 on which the applicants rely, which, as noted in paragraph 188 above, reaches the conclusion that ‘the BEH Group’, as a single economic unit, held a dominant position.
191    It is true that the contested decision interchangeably uses:
–        on the one hand, the expression ‘BEH Group’, which, as is apparent from recital 1 of that decision, is merely a defined term aimed at referring to all three separate legal entities, namely BEH, Bulgartransgaz and Bulgargaz, and not the single economic unit;
–        on the other hand, the single economic unit to which the dominant position is attributed, made up of Bulgargaz, Bulgartransgaz and BEH.
192    It is nevertheless apparent from recital 433 of the contested decision that it is precisely the single economic unit that, according to the Commission, holds the dominant position.
193    The applicants have therefore misinterpreted the contested decision as regards the attribution of the dominant position, in so far as they dispute that BEH holds a dominant position, whereas the contested decision finds that it is the single economic unit composed of BEH, Bulgartransgaz and Bulgargaz that holds such a position.
194    Accordingly, the applicants’ arguments criticising the allegedly incorrect nature of the finding, in the contested decision, that BEH indirectly held a dominant position on those markets, through its two subsidiaries, cannot succeed.
(b)    The independence of Bulgargaz and Bulgartransgaz from BEH
195    In their description of the context of the case, the applicants submit that Bulgargaz and Bulgartransgaz are independent of BEH and that, as a holding company, BEH focuses exclusively on financial management.
196    In that regard, it follows from settled case-law that, in the specific scenario where the parent company holds, directly or indirectly, all or almost all of the capital of the subsidiary which has infringed EU competition rules, it can be presumed that the parent company has actually exercised a decisive influence (judgments of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 41; of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 28; and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 109).
197    That presumption is, however, rebuttable (see, to that effect, judgment of 8 May 2013, Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 47). As highlighted by the Court of Justice, it is not the holding of such a percentage of the capital of the subsidiary that gives rise to the presumption of the actual exercise of decisive influence by the parent company, but the degree of control that such a holding implies (judgments of 27 January 2021, The Goldman Sachs Group v Commission, C‑595/18 P, EU:C:2021:73, paragraph 35, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 110).
198    In order to rebut that presumption, a parent company must put before the EU judicature any evidence relating to the organisational, economic and legal links between itself and its subsidiary which are apt to demonstrate that they do not constitute a single economic entity (see, to that effect, judgment of 20 January 2011, General Química and Others v Commission, C‑90/09 P, EU:C:2011:21, paragraph 51 and the case-law cited).
199    Furthermore, it should be noted that the actual exercise, by a parent company, of decisive influence over its subsidiary may be established by a body of evidence (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 65), or by a combination of such evidence and the rebuttable presumption of the exercise of decisive influence (see, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 49).
200    In the present case, even though the Commission stated that, during the infringement period, BEH held the entire capital of Bulgargaz and Bulgartransgaz (see recitals 362, 366 and 670 of the contested decision), its finding that the three applicants constituted a single economic unit is not based on the presumption, referred to in paragraph 196 above, drawn from that fact. It is apparent from recitals 374 to 382 of the contested decision that that conclusion stems from the fact, based on a number of factors, that, throughout the infringement period, BEH closely controlled its subsidiaries’ actions.
201    In the first place, the Commission relied on BEH’s participation in the management of its two subsidiaries. It noted that, during the infringement period, BEH had the power to appoint and remove Bulgargaz’s board of directors. It also had the power to appoint and remove the members of Bulgartransgaz’s board of directors until March 2013, when a statutory amendment, first, replaced the board of directors with a supervisory board and a management board and, second, granted Bulgartransgaz the right to appoint the members of its management board. However, Bulgartransgaz’s first management board was composed, until the end of the infringement period, of the same people as those who made up the former board of directors, all of whom were appointed by BEH (see recitals 374 and 375 of the contested decision).
202    In the second place, the Commission took into account the fact that BEH approved Bulgargaz’s business plans during the infringement period and Bulgartransgaz’s business plans until January 2013. In addition, from January 2013, Bulgartransgaz’s business plans were adopted by Bulgartransgaz’s supervisory board, of which half of the members were appointed by BEH (see recitals 376 and 377 of the contested decision).
203    In the third place, the Commission noted that, during the infringement period, BEH approved, directly or indirectly, the contracts for access to the group’s gas infrastructures. In that regard, it found that, at that time, Bulgargaz had to submit to BEH’s board of directors, for approval, the contracts for access to the Romanian Pipeline 1 concluded with third parties. The Commission also noted that, not only had BEH been informed of the discussions on the renegotiation of the 2005 Agreement, but it had also participated in some of the meetings in that regard (see recital 311(b) and recitals 315 and 378 of the contested decision).
204    As regards the contracts for access to the transmission network and to the Chiren storage facility concluded by Bulgartransgaz with third parties, the Commission found that, up to 19 January 2012, those contracts had to be approved by BEH’s board of directors (see recitals 379 and 380 of the contested decision), which the applicants confirm in the application. Although, subsequently, that authorisation was no longer required, the Commission found that, in practice, BEH continued to control access to those two infrastructures because Bulgartransgaz made access to those infrastructures subject to obtaining access to the Romanian Pipeline 1, which was still subject to authorisation by BEH’s board of directors (see paragraph 203 above). The Commission inferred from that that BEH thus continued to control, indirectly, access to the infrastructures managed by Bulgartransgaz (see recital 381 of the contested decision).
205    The applicants do not dispute the findings set out in paragraphs 201 to 204 above.
206    In that regard, it should be noted that the ability to decide upon the composition of the board of directors of a company constitutes an objective factor which determines, in itself, whether it is possible to control the decisions that may be adopted by that board and, therefore, by the company concerned (judgment of 12 July 2018, The Goldman Sachs Group v Commission, T‑419/14, EU:T:2018:445, paragraph 91).
207    It is also recognised by the case-law that the fact that a parent company approves its subsidiary’s business plan is an indication of the actual exercise of decisive influence (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 83). The fact that a parent company approves the draft tenders drawn up by its subsidiary also constitutes evidence of the actual exercise of decisive influence.
208    In the present case, since the Commission has demonstrated, without being challenged by the applicants, that BEH determined, in essence, the composition of the management bodies of Bulgargaz and Bulgartransgaz and that it approved their business plans and the access agreements concluded by them, it must be held that the Commission has adduced a body of consistent evidence which proves that, throughout the infringement period, BEH exercised decisive influence over the conduct of its subsidiaries and, therefore, that it constituted a single economic unit with those subsidiaries.
209    However, the applicants rely on three documents to substantiate the alleged autonomy of Bulgargaz and Bulgartransgaz vis-à-vis their parent company.
210    In the first place, the decision of 24 June 2008 of the Komisia za zashtita na konkurentsiata (Competition Commission, Bulgaria) approving the creation of BEH confirms that BEH is a ‘pure holding company’, separate from its subsidiaries. In that regard, it is sufficient to observe that the Commission is not bound by the assessments made by a national authority which, moreover, do not concern the conduct at issue.
211    In any event, the Competition Commission’s assessments, according to which BEH’s subsidiaries were independent of BEH, is based on the fact that BEH was a financial holding company without any operational activity.
212    It follows from settled case-law that the mere fact that a parent company is a holding company is not sufficient to preclude the possibility that it exercised decisive influence over that subsidiary (see judgment of 15 July 2015, HIT Groep v Commission, T‑436/10, EU:T:2015:514, paragraph 125 and the case-law cited).
213    The argument based on the conclusions of the decision of 24 June 2008 of the Competition Commission must therefore be rejected.
214    In the second place, the applicants refer to the decision of 22 June 2015 of the Bulgarian regulator certifying Bulgartransgaz as the TSO of the gas transmission network in Bulgaria (‘the certification decision’). However, that certification, in so far as it does not contain any analysis of the applicants’ conduct on the relevant markets, is also irrelevant.
215    In any event, the certification decision refers to the European Commission’s observations on the draft of that decision, which were issued on 22 April 2015, in which the Commission took the view that, until that date, BEH was still capable of exercising a decisive influence over Bulgartransgaz, in particular as regards access to the transmission network, since third-party access to that network was subject, inter alia, to those third parties providing proof of access to the Romanian Pipeline 1 (see, also, recital 382 of the contested decision).
216    In addition, the certification decision refers to:
–        BEH’s power to appoint and remove the members of Bulgartransgaz’s supervisory board, and the decisions taken in that regard by BEH in 2013 and 2014;
–        that supervisory board’s power to appoint and remove the members of Bulgartransgaz’s management board;
–        the fact that the supervisory board exercised a power of supervision and control over the management board’s activities and had decision-making power covering, inter alia, decisions likely to have a significant impact on the value of the shareholders’ assets and decisions on the approval of Bulgartransgaz’s annual and long-term financial plans, as well as the fact that the supervisory board also had to give prior approval for any public procurement procedure above a certain amount.
217    That evidence supports the conclusion concerning the influence exercised by BEH over the management bodies of its subsidiary Bulgartransgaz and, therefore, BEH’s involvement in the management of Bulgartransgaz, which supports the Commission’s findings in recitals 374, 375 and 378 to 381 of the contested decision (see paragraphs 201 to 204 above).
218    In the third place, the applicants rely on the compliance programme adopted by Bulgartransgaz in April 2013, which provided that its conduct would not be determined by its parent company. However, that compliance programme alone is not sufficient to demonstrate that Bulgartransgaz actually engaged in autonomous market behaviour, both before and after April 2013 (see, by analogy, judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 113).
219    It follows that, contrary to what the applicants submit, it is apparent from the file that BEH was not, during the infringement period, merely a financial investor that refrained from intervening in the activities of its subsidiaries. As stated in paragraph 208 above, a number of factors show that BEH exercised decisive influence over the conduct of its subsidiaries throughout that period.
220    Consequently, the Commission could validly conclude, in recitals 426 and 427 of the contested decision, that the BEH Group held a dominant position on the relevant markets through Bulgargaz and Bulgartransgaz, even if BEH itself was not present on those markets. In those circumstances, the fact relied on by the applicants that BEH had not received a licence, either from the Bulgarian regulator or from the Romanian regulator, to allow it to operate on the relevant markets is irrelevant.
221    The Commission has thus duly established, first, that BEH was, with Bulgargaz and Bulgartransgaz, part of a single economic unit in the form of the BEH Group and, second, that that group held a dominant position on the five relevant markets. Accordingly, the applicants’ arguments criticising the allegedly incorrect nature of the finding in the contested decision that BEH indirectly held a dominant position on those markets, through its two subsidiaries, cannot succeed.
222    Consequently, this part, and thus the third plea in its entirety, must be rejected.
C.      The fourth plea in law, alleging an incorrect finding of abuse of a dominant position by the applicants
223    The fourth plea consists, in essence, of six ‘sub-pleas’. The first three allege, respectively, errors of law and of fact vitiating the contested decision as regards the finding that the applicants refused access to:
–        the Romanian Pipeline 1;
–        the transmission network;
–        the Chiren storage facility.
224    The fourth ‘sub-plea’, for its part, alleges a lack of evidence that there was an anticompetitive strategy determined by BEH, while the fifth ‘sub-plea’ alleges that Bulgartransgaz had no incentive to refuse access to the gas infrastructures and the sixth ‘sub-plea’ alleges that there was an objective justification for the applicants’ conduct.
225    As a preliminary point, it is appropriate to set out the principles applicable to the assessment of evidence in EU competition law cases and the scope of the General Court’s review of legality, as well as the concept of ‘abuse of a dominant position’ within the meaning of Article 102 TFEU.
1.      Applicable principles and case-law
(a)    The principles applicable to the assessment of evidence
226    First of all, it follows from settled case-law that, where there is a dispute as to the existence of an infringement of EU competition law, it is incumbent on the Commission to prove the infringement found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see, to that effect, judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 71 and the case-law cited; of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 17; and of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 67).
227    In order to establish that there has been an infringement of Article 102 TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 477 and the case-law cited; see also, to that effect and by analogy, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited).
228    In that regard, it should be noted that the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered evaluation of evidence, and that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value (judgment of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 161).
229    As regards documentary evidence, it is settled case-law that, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see, to that effect and by analogy, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 118 and the case-law cited).
230    In that regard, when the Commission relies on evidence which is, in principle, sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance has arisen which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, the fact that that circumstance calls into question the probative value of the evidence relied on by the Commission (judgments of 15 December 2010, E.ON Energie v Commission, T‑141/08, EU:T:2010:516, paragraph 56, and of 18 November 2020, Lietuvos geležinkeliai v Commission, T‑814/17, EU:T:2020:545, paragraph 297).
231    Lastly, it follows from the case-law that the principle of the presumption of innocence, as a general principle of EU law, now enshrined in Article 48(1) of the Charter of Fundamental Rights of the European Union, applies, inter alia, to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments. Consequently, where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (judgment of 22 November 2012, E.ON Energie v Commission,  C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73; see, also, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited).
(b)    The scope of the Court’s review
232    The judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Article 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicants and taking into account all the relevant evidence submitted by the latter, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72; see also, to that effect, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 53, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 48).
233    Not only must those Courts thus establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgments of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 39; of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 54; and of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 54).
234    Finally, it should be noted that the EU judicature cannot, under any circumstances, in the context of the review of legality referred to in Article 263 TFEU, substitute its own reasoning for that of the author of the contested act (judgments of 27 January 2000, DIR International Film and Others v Commission, C‑164/98 P, EU:C:2000:48, paragraph 38; of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 73). In so far as the review of the legality of the contested decision relates to the reasons stated in that decision, the EU judicature cannot, either on its own initiative or at the request of the administration, add reasons to those given in that decision (judgment of 10 November 2021, Google and Alphabet v Commission (Google Shopping), T‑612/17, under appeal, EU:T:2021:763, paragraph 135).
(c)    The concept of ‘abuse of a dominant position’
235    Under the first paragraph of Article 102 TFEU, any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.
236    A dominant undertaking therefore has a special responsibility not to allow its behaviour to impair genuine, undistorted competition in the internal market (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 135; see, also, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 40 and the case-law cited).
237    Although Article 102 TFEU lists abusive practices, that list does not exhaust the methods of abusing a dominant position prohibited by the FEU Treaty (see judgment of 15 March 2007, British Airways v Commission, C‑95/04 P, EU:C:2007:166, paragraph 57 and the case-law cited).
238    Thus, according to settled case-law, the concept of ‘abuse of a dominant position’ within the meaning of Article 102 TFEU is an objective concept relating to the conduct of a dominant undertaking which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 148 and the case-law cited).
239    Lastly, it must be noted that if conduct such as that under examination in the present case is to be characterised as abusive, that presupposes that that conduct was capable of restricting competition and, in particular, of producing the alleged exclusionary effect, in that it was capable of making it more difficult for competitors to enter or remain on the market in question and, by so doing, was capable of having an impact on the market structure. That assessment must be undertaken having regard to all the relevant facts surrounding that conduct (see judgments of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 154 and the case-law cited, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraphs 50, 61, 64 and 72 and the case-law cited).
240    However, those exclusionary effects must not be purely hypothetical. As a result, the Commission cannot rely on the effects that that practice might produce or might have produced if certain specific circumstances – which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise – had arisen or did arise (see, to that effect, judgments of 6 October 2015, Post Danmark, C‑23/14, EU:C:2015:651, paragraph 65, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 70).
241    The first three ‘sub-pleas’ must be examined in the light of the considerations set out in paragraphs 226 to 240 above.
2.      The first ‘sub-plea’, alleging an incorrect finding that access to the Romanian Pipeline 1 was refused
242    The applicants submit that the finding, in the contested decision, as to the refusal of access to the Romanian Pipeline 1 which is imputed to them is vitiated by errors of law and of fact. That line of argument consists, in essence, of eight parts, alleging, respectively:
–        an error of law in that Article 102 TFEU was applied to a contractual clause that had been agreed bilaterally (first part);
–        an error of law in that an abusive refusal to supply was imputed to Bulgargaz, even though the latter was merely a user of the Romanian Pipeline 1 (second part);
–        Transgaz’s failure to forward to the applicants requests for access to the Romanian Pipeline 1 (third part);
–        an inadequate statement of reasons in the contested decision concerning the inclusion, in the infringement, of a restriction on Overgas gaining access to the Romanian Pipeline 1 (fourth part);
–        a lack of evidence of a refusal or restriction on Overgas gaining access to the Romanian Pipeline 1 in 2013 (fifth part);
–        the absence of a refusal to supply C Energy Group (sixth part);
–        the lack of probative value of the reservation of all the capacity on the Romanian Pipeline 1 (seventh part);
–        the lack of probative value of the discussions relating to the renegotiation of the 2005 Agreement (eighth part).
243    The Commission, supported by Overgas, disputes those arguments.
(a)    The first part, alleging an error of law in the application of Article 102 TFEU to a contractual clause that had been agreed bilaterally
244    The applicants submit that the contested decision is vitiated by an error of law, in that the refusal to provide access to the capacity of the Romanian Pipeline 1 is not the result of unilateral conduct, but stems from a contractual provision that was agreed bilaterally, set out in the 2005 Agreement. They consider that such a contractual agreement falls outside the scope of Article 102 TFEU.
245    In that regard, it is apparent from recital 534 of the contested decision that Bulgargaz’s alleged refusal to supply consists, first of all, in capacity hoarding on the Romanian Pipeline 1 resulting from the following three elements, taken together:
–        exclusive use of the capacity of the Romanian Pipeline 1, set out in Article 17.1 of the 2005 Agreement, together with the fact that Bulgargaz used only a limited part of that capacity (see recitals 260, 275, 276, 534(a) and 537 of that decision);
–        the refusal to return to Transgaz the capacity which the latter had requested, or the imposition of certain conditions before that capacity was returned (see recitals 297, 534(b), 535 and 539 to 541 of that decision);
–        Bulgargaz’s failure to respond to C Energy Group’s access request (see recitals 331, 534(c) and 546 of that decision).
246    Next, the Commission alleged that Bulgargaz granted Overgas access to the Romanian Pipeline 1 in 2013 after a delay, following a procedure that was neither transparent nor based on objective, non-discriminatory criteria (see recitals 311 to 314, 323 to 326, 536, 543 and 545 of the contested decision).
247    Lastly, the Commission concluded that all the conduct referred to in paragraphs 245 and 246 above formed part of the BEH Group’s anticompetitive strategy, intended to protect its position on the Bulgarian gas supply markets (see recital 548 of the contested decision).
248    It follows from the foregoing that, in any event, the conduct of which the applicants are accused in relation to the Romanian Pipeline 1 is not linked to Article 17.1 of the 2005 Agreement as such, or to concerted action by the parties to that agreement, but is based on a series of unilateral conduct, including Bulgargaz’s application of that article.
249    The first part must therefore be rejected.
(b)    The second part, alleging an error of law in the application of the ‘essential facilities’ doctrine in that an abusive refusal to supply was imputed to Bulgargaz, even though the latter was merely a user of the Romanian Pipeline 1
250    The applicants submit that the contested decision is vitiated by an error of law, in that it imputes to Bulgargaz an abusive refusal to supply on the Romanian Pipeline 1, when Bulgargaz was neither the owner nor the TSO of that essential facility, and was merely a user of it. According to the judgments of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569; ‘the judgment in Bronner’), and of 10 July 1991, RTE v Commission (T‑69/89, EU:T:1991:39), on which the Commission based its analysis in recital 549 of the contested decision, and the subsequent case-law relating to a refusal to grant access to an essential facility, abusive conduct can be imputed only to the owner or operator of that facility, in the sense that access to essential facilities has always been intrinsically linked to the ownership and control of the facility or service in question.
251    The Commission disputes this part.
252    In that regard, it is appropriate to reject at the outset the applicants’ argument that a number of Commission decisions regarding refusals to grant access to gas infrastructures were addressed to undertakings which were, based on their organisational, economic and legal links, both owners and TSOs of the relevant infrastructures (Commission Decision C(2009) 1885 of 18 March 2009 relating to a proceeding under Article [102 TFEU] and Article 53 of the EEA Agreement (Case COMP/B-1/39.402 – RWE (Gas foreclosure)); Commission Decision C(2009) 9375 final of 3 December 2009 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case COMP/39.316 – GDF); Commission Decision C(2010) 2863 final of 4 May 2010 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case COMP/39.317 – E.ON Gas); Commission Decision C(2010) 6701 of 29 September 2010 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case COMP/39.315 – ENI)).
253    According to the case-law, the Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings or other markets at different times. Thus, undertakings are not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case (judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 118; see, also, judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 55 and the case-law cited).
254    Next, it is apparent from recitals 532 and 549 to 564 of the contested decision that the Commission assessed the validity of Bulgargaz’s conduct on the market for capacity services on the Romanian Pipeline 1 in the light of the case-law resulting from paragraph 41 of the judgment in Bronner and also from paragraph 73 of the judgment of 10 July 1991, RTE v Commission (T‑69/89, EU:T:1991:39).
255    According to that case-law, the refusal by an undertaking in a dominant position to supply a service to which third parties must have access in order to be able to carry on an activity on a neighbouring market, in particular downstream, constitutes an infringement of Article 102 TFEU if the following three cumulative conditions are met:
–        refusal of the service is likely to eliminate all competition on the part of the person requesting the service in that market;
–        the service in question is indispensable for carrying on that person’s business, inasmuch as there is no actual or potential substitute for that service;
–        that refusal cannot be objectively justified.
256    The conditions set out in the judgment in Bronner apply, in principle, to infrastructures or to services that are often described as an ‘essential facility’ in the sense that they are indispensable for carrying on a business on a market where there is no actual or potential substitute (judgments of 15 September 1998, European Night Services and Others v Commission, T‑374/94, T‑375/94, T‑384/94 and T‑388/94, EU:T:1998:198, paragraphs 208 and 212, and of 10 November 2021, Google and Alphabet v Commission (Google Shopping), T‑612/17, under appeal, EU:T:2021:763, paragraph 215), so that refusing access may lead to the elimination of all competition on the part of the person requesting access.
257    In that regard, the Court has already pointed out that a finding that a dominant undertaking had abused its position due to a refusal to conclude a contract with a competitor had the consequence of forcing that undertaking to conclude a contract with that competitor. Such an obligation is especially detrimental to the freedom of contract and the right to property of the dominant undertaking, since an undertaking, even if dominant, remains, in principle, free to refuse to conclude contracts and to use the infrastructure it has developed for its own needs (judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 46).
258    Thus, the case-law on ‘essential facilities’ relates to situations in which that freedom to conclude contracts and, in particular, the free exercise of an exclusive right, being a right which rewards investment or innovation, may be limited in the interest of undistorted competition in the internal market, to the exclusion of any other conduct (see, to that effect, judgments of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 679, and of 10 November 2021, Google and Alphabet v Commission (Google Shopping), T‑612/17, under appeal, EU:T:2021:763, paragraph 215).
259    In the present case, as the applicants rightly submit, Bulgargaz was not the owner of the Romanian Pipeline 1. Nevertheless, it is apparent from the file and from paragraph 14 above that, under the 2005 Agreement, Bulgargaz benefited from exclusive use of that infrastructure.
260    In that regard, it should be noted, in the first place, that it is common ground between the parties that, during the infringement period, the Romanian Pipeline 1 was the only viable route for transporting Russian gas to Bulgaria (see paragraph 88 above). It was therefore an essential facility within the meaning of the judgment in Bronner (see paragraph 256 above).
261    In the second place, as follows from paragraphs 143 and 144 above, the 2005 Agreement provided, first, that the Romanian Pipeline 1 was reserved for the exclusive use of Bulgargaz and, second, that Transgaz could not offer capacity on that pipeline to third parties without first obtaining Bulgargaz’s consent. Consequently, although Bulgargaz was not the owner of the Romanian Pipeline 1, the exclusive right enjoyed by it took the form, during the infringement period, of a situation of control and, therefore, of a dominant position on the market for capacity services on that pipeline in so far as third-party access to the Romanian Pipeline 1 was impossible without Bulgargaz’s consent.
262    In that regard, it should be noted, as Advocate General Rantos did in his Opinion in European Superleague Company
(C‑333/21, EU:C:2022:993, point 138), that, in accordance with the ‘essential facilities’ doctrine, a dominant undertaking which owns or controls an ‘essential infrastructure’ may be forced to cooperate with its competitors by giving them access to that infrastructure without any discrimination.
263    In those circumstances, the nature of the exclusive right linking Bulgargaz to the infrastructure is irrelevant, since that exclusive right took the form of a situation of control over the Romanian Pipeline 1 which constituted an ‘essential facility’ within the meaning of the case-law cited in paragraph 256 above. Moreover, the applicants themselves expressly acknowledge that the case-law on ‘essential facilities’ applies to situations associated with the control of that facility, even though they consider, wrongly, that the status of owner is also required.
264    Yet, the legal nature of the link between the dominant undertaking and the infrastructure or service which it controls cannot be a decisive factor in determining whether a refusal of access to an ‘essential facility’ by an undertaking in a dominant position constitutes an infringement of Article 102 TFEU.
265    The Commission was therefore right to assess Bulgargaz’s conduct on the market for capacity services on the Romanian Pipeline 1 in the light, inter alia, of paragraph 41 of the judgment in Bronner.
266    That conclusion is not invalidated by the recent judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12), delivered after the close of the oral part of the procedure in the present case, but which confirmed the General Court’s analysis in the judgment of 18 November 2020, Lietuvos geležinkeliai v Commission (T‑814/17, EU:T:2020:545). In that case, which concerned the removal of a railway track, the Court of Justice held that the destruction of an infrastructure by a dominant undertaking, a situation in which the infrastructure inevitably becomes unusable not only by competitors, but also by the dominant undertaking itself, must be distinguished from that of a refusal of access, as provided for in the case-law arising from the judgment in Bronner (judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C‑42/21 P, EU:C:2023:12, paragraphs 81 and 83).
267    Against this background, it is true that the Court of Justice confirmed that the analysis in the light of the criteria arising from the judgment in Bronner was required in the event of a refusal of access to an infrastructure owned by the dominant undertaking and which it has developed for the needs of its own business by means of its own investments. It also concluded that the General Court had not erred in law in holding, in essence, that, having regard to their purpose, those criteria do not apply where, in a situation where the infrastructure has been destroyed, the infrastructure in question was financed by means not of investments specific to the dominant undertaking, but by means of public funds and that that undertaking is not the owner of that infrastructure (judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C‑42/21 P, EU:C:2023:12, paragraphs 86 and 87).
268    However, that case-law does not preclude the application of the criteria arising from the judgment in Bronner in a situation such as that in the present case, where, first, as follows from paragraphs 261 to 263 above, although Bulgargaz was not the owner of the Romanian Pipeline 1, it enjoyed an exclusive right over it which took the form, during the infringement period, of a situation of control comparable to that of an owner and where, second, although it is true that Bulgargaz did not develop the Romanian Pipeline 1, the fact remains that, under the 2005 Agreement, it paid, in return for the use of that infrastructure, a fixed annual fee thus constituting its investment in relation to the exclusive right which had been granted to it by Transgaz.
269    Therefore, the second part, alleging that the judgment in Bronner and the case-law arising from it concerning the refusal to grant access to an ‘essential facility’ can apply only to the undertaking which owns the property and controls it, must be rejected.
(c)    The third part, alleging that Transgaz did not forward, to the applicants, requests for access to the Romanian Pipeline 1
270    In recital 297 of the contested decision, the Commission stated that, although Overgas’ requests in 2010 and 2011 for access to the Romanian Pipeline 1 had been made to Transgaz, the latter had, at least from January 2011, on numerous occasions, requested Bulgargaz to terminate exclusive use of that pipeline, and so the applicants were aware of the fact that there was general interest from third parties in using the Romanian Pipeline 1.
271    In that regard, the applicants put forward, in essence, two complaints. First, Transgaz’s request during the meeting of 24 January 2011 did not constitute a request for access to the Romanian Pipeline 1; second, Transgaz also did not forward to the applicants requests from third parties for access to that pipeline, under Article 17.1 of the 2005 Agreement.
272    The Commission disputes this part.
(1)    The first complaint, concerning Transgaz’s request of 24 January 2011
273    The Commission found, in recital 534(b) of the contested decision, that capacity hoarding by Bulgargaz on the Romanian Pipeline 1, which constituted the alleged refusal to supply by Bulgargaz, comprised three elements, including the fact that Bulgargaz refused to return the capacity requested by Transgaz.
274    The Commission alleged that the applicants, inter alia, rejected Transgaz’s request made to BEH, at their meeting on 24 January 2011, for the return of capacity on Romanian Pipeline 1 (see recital 297(a) and recitals 650 and 665 of the contested decision).
275    The applicants submit that Transgaz never sought Bulgargaz’s consent for the granting of access to other network users, and, in particular, that Transgaz did not submit any request for access to the Romanian Pipeline 1 to BEH on 24 January 2011.
276    In the present case, it is apparent from the file that, on 24 January 2011, a meeting took place between BEH, Transgaz and the Romanian gas supplier Romgaz. The minutes of that meeting were prepared by BEH and dated 31 January 2011.
277    It is apparent from the minutes of the meeting of 24 January 2011 that, during that meeting, Romgaz disclosed to BEH its intention to set up a joint venture with two other third-party undertakings in order to build a terminal in Constanța. With a view to that future construction, Transgaz raised with BEH the question of possibly providing part of the unused capacity on the Romanian Pipeline 1. BEH replied that all of that capacity had been reserved for Bulgargaz, but that ‘talks could be held on a governmental level and then on corporate level’.
278    In that regard, it should be noted that neither BEH, nor any other applicant, was bound by a regulatory obligation to grant third-party access to the capacity of the Romanian Pipeline 1 (see recitals 460, 532 and 549 of the contested decision). Such a regulatory obligation fell exclusively on the TSO (see paragraph 261 above).
279    However, as a result of the provisions of the 2005 Agreement, it was Bulgargaz, not Transgaz, that controlled access to the Romanian Pipeline 1 (see recital 420 of the contested decision and paragraphs 143 to 146 above), with the result that Bulgargaz could, as the dominant undertaking, be required to grant access to that infrastructure under the conditions defined in paragraph 41 of the judgment in Bonner. Therefore, in order to establish that the refusal to supply a service, of which the applicants are accused, constituted an abuse of a dominant position, the Commission had to prove that that refusal was liable to eliminate all competition, on the part of the person requesting that service, on the related market.
280    The exclusionary effects must not be purely hypothetical, with the result that (i) a practice cannot be characterised as abusive if it remained at the project stage without having been implemented, and (ii) the analysis of the conduct complained of cannot rely on the effects that that practice might produce or might have produced if certain specific circumstances – which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise – had arisen or did arise (see, to that effect, judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 70 and the case-law cited).
281    First, it is, therefore, for the Commission to prove that the refusal of access is capable of producing exclusionary effects that are not purely hypothetical (see, to that effect, judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 98), including proof that the potential competitor has, at the very least, a sufficiently advanced project to enter the market in question within such a period of time as would impose competitive pressure on the operators already present (see, to that effect, judgments of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 43 and 46, and of 25 March 2021, Lundbeck v Commission, C‑591/16 P, EU:C:2021:243, paragraph 57).
282    Second, since, as follows from the case-law cited in paragraph 257 above, a finding that there has been an abusive refusal to grant access results in the dominant undertaking being forced to conclude a contract with the applicant, which is especially detrimental to the principle of freedom of contract, the Commission must also prove that the request for access reflects that project sufficiently precisely for the dominant undertaking to be in a position to assess whether it is required to respond to it, failing which it might be exposed to the risk of an abusive refusal of access. However, a purely exploratory approach on the part of a third party to the dominant undertaking controlling access to the infrastructure in question cannot constitute a request for access, to which the dominant undertaking would be required to respond.
283    In the present case, it is apparent from the minutes of the meeting of 24 January 2011 that:
–        the reason given by Transgaz to justify its question to BEH regarding use of the unused capacity on the Romanian Pipeline 1 was the project for the construction of a terminal in Constanța;
–        on that date, that project was only at the ‘prefeasibility’ stage; the applicants submit, in that regard, without being challenged by the Commission, that the completion of the construction of that terminal would not be until 2027.
284    However, it is not apparent either from the contested decision, or from the minutes of 31 January 2011 or from any other material in the file that, at the meeting of 24 January 2011, Transgaz referred to any intention to use the capacity of the Romanian Pipeline 1 itself to enter the Bulgarian gas supply markets and to compete with Bulgargaz on those markets.
285    In those circumstances, the question put by Transgaz at the meeting of 24 January 2011 cannot constitute a request for access to the capacity of the Romanian Pipeline 1, aimed at competing with Bulgargaz on the Bulgarian gas supply markets, that would be capable of satisfying the requirements set out in paragraphs 280 to 282 above. It was a preliminary request the purpose of which was to determine whether the BEH Group was open to the possibility of Transgaz taking over part of Bulgargaz’s unused capacity on the Romanian Pipeline 1 for a very different purpose, namely the construction of the terminal in Constanța, the completion of which was not scheduled until 12 years after the end of the infringement period, that is to say, in the very distant future.
286    Furthermore, even if the question which Transgaz put to BEH at the meeting of 24 January 2011 constituted a request for the return of the capacity on the Romanian Pipeline 1, the Commission has not adduced evidence that BEH’s response was then capable of producing exclusionary effects on the Bulgarian gas supply markets, within the meaning of the case-law cited in paragraphs 279 and 280 above, since, as the Commission acknowledged at the hearing, there is nothing in the file to establish that the purpose of the Constanța terminal was to enter those Bulgarian markets. That is all the more so since, as stated in paragraph 277 above, BEH did not reject the possibility, raised by Transgaz, of returning the capacity of that pipeline, but merely stated that the capacity of that pipeline had been reserved for Bulgargaz, while at the same time referring to the possibility of discussing it, first at governmental level and then at corporate level.
287    In those circumstances, the Commission could not allege that BEH had refused access for the purposes of Article 102 TFEU on the ground that BEH had not agreed to Transgaz’s request at the meeting of 24 January 2011.
288    It follows from the foregoing that the first complaint is well founded.
(2)    The second complaint, alleging a failure to forward to the applicants requests for access that had been made by third parties and addressed to Transgaz
289    The applicants claim that Transgaz also failed to forward to them individual requests for access to the Romanian Pipeline 1 made by third parties, pursuant to Article 17.1 of the 2005 Agreement.
290    In the contested decision, the Commission claims that the BEH Group had been informed by Transgaz, since at least January 2011, of a general interest held by third parties in gaining access to the Romanian Pipeline 1 (see recitals 539 and 650 of the contested decision).
291    There is nothing in the file to demonstrate that, during the infringement period, Transgaz ever informed the applicants that there were individual requests by third parties for access to the capacity of the Romanian Pipeline 1. In particular, as follows from the analysis of the first complaint (see paragraphs 277, 283 and 284 above), the minutes of the meeting of 24 January 2011 do not refer to the existence of such requests. Furthermore, the Commission has not adduced any evidence to establish that Transgaz informed the applicants of the requests for access which Overgas had sent to it on 25 March, 12 August, 28 September, 11 October and 11 November 2010 (see recital 296 of the contested decision) or, a fortiori, that Transgaz forwarded those requests to the applicants (see recital 309 of the contested decision).
292    On the contrary, the Commission conceded, in its rejoinder, and subsequently confirmed at the hearing, that it did not have evidence establishing that Transgaz had sent to the BEH Group individual requests made by third parties for access to the Romanian Pipeline 1.
293    It is also apparent from the file that Transgaz rejected Overgas’ requests on 1 and 26 October 2010, and on 20 April 2011 (see recital 296 of the contested decision) without notifying the applicants.
294    In so doing, as early as 2010, Transgaz unilaterally chose to reject those requests without even seeking Bulgargaz’s consent, under Article 17.1 of the 2005 Agreement, in order to allow it to grant Overgas’ requests for access to the Romanian Pipeline 1.
295    It follows from the foregoing that the second complaint is well founded.
296    The third part must therefore be upheld.
(d)    The fourth part, alleging an inadequate statement of reasons in the contested decision concerning the inclusion, in the infringement, of a restriction on Overgas gaining access to the Romanian Pipeline 1 in 2013
297    The applicants submit that the contested decision does not contain an adequate statement of reasons because it does not clearly indicate whether the examples of restrictions on Overgas gaining access to the Romanian Pipeline 1 in 2013, which are set out in Section 5.4.4.2 of that decision dealing with the facts, constitute elements of the infringement, since those elements are not mentioned either in the operative part of the contested decision or in the description of the allegations relating to capacity hoarding set out in recital 534 of that decision. That omission prevents an understanding of the scope of the contested decision.
298    The Commission disputes this part of the plea.
299    In that regard, according to settled case-law, the statement of reasons required by Article 296(2) TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the contested measure, in such a way as to provide the persons concerned with sufficient information to determine whether the measure is well founded or whether it is vitiated by a defect which may permit its validity to be contested and to enable the EU Courts to review the lawfulness of the decision (see, to that effect, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 462 and the case-law cited, and of 16 December 2015, Air France-KLM v Commission, T‑62/11, not published, EU:T:2015:996, paragraphs 36 and 90 and the case-law cited).
300    In that regard, the Commission is required to set out the facts and considerations having fundamental importance in the context of its decision in order to make clear to the competent court and the persons concerned the circumstances in which it has applied EU law (see judgment of 16 December 2015, Air France-KLM v Commission, T‑62/11, not published, EU:T:2015:996, paragraph 38 and the case-law cited).
301    Furthermore, the operative part of the decision finding an infringement of EU competition rules must be particularly clear and precise so that the undertakings held liable and penalised are in a position to understand and to dispute the attribution of that liability and the imposition of those penalties, as set out in the wording of that operative part (judgment of 16 December 2015, Air France-KLM v Commission, T‑62/11, not published, EU:T:2015:996, paragraph 42).
302    It is in the operative part of its decisions that the Commission must indicate the nature and extent of the infringements of EU competition rules which it sanctions or determines (see judgments of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 210 and the case-law cited, and of 16 December 2015, Air France-KLM v Commission, T‑62/11, not published, EU:T:2015:996, paragraph 43 and the case-law cited).
303    That said, according to settled case-law, the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (judgment of 15 May 1997, TWD v Commission, C‑355/95 P, EU:C:1997:241, paragraph 21; see, also, judgments of 26 March 2020, Hungeod and Others, C‑496/18 and C‑497/18, EU:C:2020:240, paragraph 69 and the case-law cited, and of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 1258 and the case-law cited).
304    In the present case, Article 1 of the contested decision states that the applicants committed a single and continuous infringement of Article 102 TFEU by refusing third-party access to the transmission network, the Romanian Pipeline 1 and the Chiren storage facility, which resulted in foreclosure of the gas supply markets in Bulgaria.
305    Although the operative part does not specify whether the refusal of access to the Romanian Pipeline 1 alleged against the applicants includes a restriction on Overgas gaining access to that pipeline in 2013, the fact remains that, first, the restriction on access which would result, inter alia, from a delay in dealing with the corresponding request is akin to a refusal of access (see, to that effect, judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 151) and that, second, the restriction on access faced by Overgas occurred in 2013, that is to say, during the infringement period. Thus, in accordance with the case-law cited in paragraph 303 above, the operative part must be interpreted in the light of the relevant grounds of the contested decision.
306    In that regard, in the first place, it should be noted that, in Section 5.4.4.2 of the contested decision, which deals with the facts and is entitled ‘Examples of access refusals or access made more difficult’, the Commission set out, inter alia, Bulgargaz’s conduct with regard to Overgas’ request for access to the Romanian Pipeline 1 for 2013, submitted on 23 November 2012 (see recitals 311 to 327 of the contested decision).
307    In the second place, it should also be noted that those facts were reproduced in the part of the contested decision dealing with the characterisation of the BEH Group’s abuse of a dominant position (see Section 6.2.4 of that decision).
308    Thus, first of all, in Section 6.2.4.1 of the contested decision, entitled ‘Application to the present case’, the Commission found that the BEH Group had abused its dominant position, inter alia, as regards the Romanian Pipeline 1, by hoarding capacity on that pipeline (see recital 450).
309    Similarly, in Section 6.2.4.3 of the contested decision, entitled ‘Refusals to allow access’, the Commission found that the BEH Group’s alleged conduct consisted in preventing, restricting and delaying access, through capacity hoarding on the Romanian Pipeline 1 (see recital 468).
310    Next, in Section 6.2.4.6 of the contested decision, entitled ‘Capacity hoarding on the Romanian Transit Pipeline 1’:
–        first, the Commission included in its analysis two types of conduct, namely, strictly speaking, capacity hoarding on the Romanian Pipeline 1, which it classified successively as a ‘refusal to supply’ and as a ‘refusal of access’ (see recital 534 of the contested decision), but also the granting of access to that pipeline to Overgas for 2013 after a delay and on the basis of a procedure that was neither transparent nor based on objective and non-discriminatory criteria (see recitals 536, 543 to 545 and 552 of the contested decision);
–        second, the Commission also stated that capacity hoarding and additional measures preventing, restricting and delaying access to the Romanian Transit Pipeline 1 formed part of the BEH Group’s anticompetitive strategy to protect its position on the gas supply markets in Bulgaria (see recital 548 of the contested decision).
311    Lastly, by way of conclusion to Section 6.2.4 of the contested decision, dealing with the characterisation of an abuse of a dominant position by the BEH Group, the Commission found that, on the basis of the assessment of the evidence set out, inter alia, in Section 5.4.4.2 of that decision, which, as follows from paragraph 306 above, concerned, in particular, Bulgargaz’s conduct in relation to Overgas’ request for access to the Romanian Pipeline 1 for 2013, the BEH Group’s conduct constituted a refusal to supply which was intended to prevent third parties from entering the Bulgarian gas supply markets. The Commission stated, inter alia, that it included two types of conduct in that refusal, namely capacity hoarding on the Romanian Pipeline 1, and also the fact of having offered access on disadvantageous conditions (see recital 565 of the contested decision).
312    In the third place, the Commission specified, in Section 6.4 of the contested decision, that the BEH Group’s practices referred to in Section 6.2.4 of that decision, falling within the scope of a refusal to supply and which led to foreclosure of the Bulgarian gas supply markets, constituted a single and continuous infringement of Article 102 TFEU (see recital 608 of the contested decision).
313    The Commission also reiterated, in Section 6.4 of the contested decision, that all of the applicants’ practices constituting the single and continuous infringement had contributed to ‘preventing, restricting and delaying third-party access to the infrastructure owned or controlled by the BEH group’ (see recital 612 of the contested decision).
314    In the fourth place, the Commission confirmed its position in Section 6.10.3 of the contested decision, which deals with the assessment of the duration of the anticompetitive conduct relating to the Romanian Pipeline 1. In that section, it found that the anticompetitive conduct in relation to that pipeline could not have ended before Bulgargaz granted an objective, transparent and non-discriminatory access to that pipeline, that it was not until 1 January 2015 that those conditions were satisfied, but that they were not satisfied, in particular, for the access granted to Overgas in 2013 (see recital 651 of that decision). The Commission referred, in that regard, to recital 312 of the contested decision, in which it stated that that access had been granted, in the first place, late and, in the second place, for too short a period, under non-transparent extension conditions and without guarantee of an extension beyond 2013.
315    It follows from the foregoing that the grounds of the contested decision are not ambiguous as to the fact that the single and continuous infringement found in Section 6.4 of the contested decision included not only the conduct referred to in recital 534 as regards capacity hoarding on the Romanian Pipeline 1, but also Bulgargaz’s conduct towards Overgas in relation to its request for access to that pipeline for 2013, conduct which, according to the Commission, prevented, restricted and delayed that access.
316    In the light of the grounds of the contested decision set out in recitals 536, 543 to 545, 548, 552, 565, 608, 612 and 651, referred to in paragraphs 310 to 314 above and which are unambiguous, the single and continuous infringement found in Article 1 of that decision must be understood, as regards the Romanian Pipeline 1, as including the granting to Overgas, for 2013, of access after a delay and on the basis of a procedure which was neither transparent nor based on objective and non-discriminatory criteria.
317    The operative part of the contested decision, thus interpreted, taking into account the reasons which led to its adoption for the purposes of the case-law cited in paragraph 303 above, was therefore sufficiently clear and precise to enable, first, the applicants to understand the exact scope of the infringement alleged against them and to dispute its merits and, second, the Court to carry out its review of legality effectively.
318    The fourth part must therefore be rejected.
(e)    The fifth part, alleging a lack of evidence of a refusal or restriction on Overgas gaining access to the Romanian Pipeline 1 in 2013
319    The applicants submit that the Commission has not adduced evidence of a refusal or restriction on Overgas gaining access to the Romanian Pipeline 1 that is attributable to them. They raise, in essence, five complaints alleging, respectively, that:
–        the Commission cannot attribute to Bulgargaz a rejection of Overgas’ requests, made to Transgaz, for access to the Romanian Pipeline 1;
–        Bulgargaz provided Overgas with access to the Romanian Pipeline 1, without delay, from its first request;
–        Bulgargaz did not delay the signing of the agreement concluded with Overgas on 31 January 2013 for access to that pipeline (‘the 2013 pipeline access agreement’) until it had concluded contracts downstream with its own customers;
–        the Commission incorrectly concluded that the initial three-month duration of the 2013 pipeline access agreement was insufficient;
–        the conditions for the extension of that agreement were not uncertain.
320    In that regard, in the contested decision, the Commission found that Bulgargaz had granted Overgas access to the Romanian Pipeline 1 after a delay (see recitals 312, 323 and 536), and on the basis of a procedure that was neither transparent nor based on objective and non-discriminatory criteria. In particular, that access was subject to the discretion of Bulgargaz and BEH (see recital 543 of the contested decision). More specifically, the Commission’s criticism relates to the fact that:
–        Overgas was granted access only after Bulgargaz had concluded contracts for the year 2013 with all the Bulgarian customers except Overgas’ subsidiaries (see recital 312(a) and recital 543(a) of the contested decision);
–        despite the high levels of unused capacity on the Romanian Pipeline 1, the access granted to Overgas covered only a short period of time, initially three months and then nine months (see recital 312(b), recital 536 and recital 543(b) of the contested decision);
–        the conditions for a possible extension of the 2013 pipeline access agreement were uncertain (see recital 312(b), recital 536 and recital 543(c) of the contested decision).
321    The Commission considered that Bulgargaz had granted Overgas satisfactory access to the Romanian Pipeline 1 only from 2014 and in 2015 (see recitals 327 and 546 of the contested decision).
322    As a preliminary point, it should be noted that, in accordance with Article 43(3) of the Bulgarian Law on Energy, which provides that only one licence may be granted for the public supply of gas in Bulgaria, Bulgargaz’s licence provided that Bulgargaz was the only public supplier of gas in Bulgaria (see Article 2.2 of that licence). In that regard, that licence imposed on it, inter alia, the following obligations:
–        upstream, Bulgargaz had to enter into contracts, with gas producers and traders, in respect of the volumes of gas necessary to cover the consumption of users directly connected to the transmission network and the agreed volumes to enable it to comply with its obligations as a public supplier (see Article 2.5.1 of that licence);
–        downstream, it had to ensure an uninterrupted supply of high-quality gas in Bulgaria (see Article 3.1.1 of that licence);
–        it did not have the power to refuse to conclude a gas supply contract with users directly connected to the transmission network (see Article 3.4.3 of that licence);
–        it had to ensure regular cooperation with the users directly connected to the transmission network (see Article 3.2.2(d) and Article 3.5 of that licence) under rules which it had to lay down and which had to provide, inter alia, for the procedure applicable to the sale of gas to those users (see Article 3.5.2(b) to (d) of that licence); those rules, which were subject to the approval of the Bulgarian regulator and incorporated into the licence, were therefore binding on Bulgargaz (see Article 3.5.2, third paragraph of Article 3.5.3, and Articles 3.5.5 and 3.13 of that licence);
–        it had to submit to the Bulgarian regulator, for approval, a business plan covering a minimum period of five years detailing the conditions and measures to be taken to ensure an uninterrupted, efficient and high-quality supply of the required quantities of gas (see Article 3.6.1 and first indent of Article 3.6.2 of that licence); once approved, the business plan formed part of the terms and conditions of Bulgargaz’s licence and was therefore binding on it (see Articles 3.6.5, 3.6.7 and 3.13 of that licence);
–        it also had to provide the Bulgarian regulator, each year, with an annual report which had to cover, inter alia, the implementation of its activities as a public supplier, its collaboration with users and the public supply contracts that it had concluded the previous year (see Article 3.10.4 of that licence);
–        lastly, it had to carry out its activities under licence by applying the regulated prices previously approved by the Bulgarian regulator (see Article 3.9.1 of that licence), which is also confirmed by the decision of the Bulgarian regulator.
323    It is in that context that the complaints put forward by the applicants must be examined.
(1)    The first complaint, arguing that the Commission cannot impute to Bulgargaz a rejection of Overgas’ requests that were made to Transgaz for access to the Romanian Pipeline 1
324    The applicants submit that the requests for access to the Romanian Pipeline 1 made by Overgas in 2010 and 2011 were addressed to Transgaz and that, therefore, the way in which those requests were dealt with cannot be attributed to the applicants.
325    In that regard, it should be noted that, as follows from the analysis set out in paragraph 291 above, Overgas did not submit any request for access to the Romanian Pipeline 1 to Bulgargaz before 23 November 2012.
326    Before that date, Overgas approached only Transgaz to request access to the Romanian Pipeline 1 for 2011, and did so as early as 25 March 2010, before the beginning of the infringement period, and then on four occasions during that period, on 12 August, 28 September, 11 October and 11 November 2010 (see paragraph 291 above).
327    Transgaz refused those requests, in part, on 1 and 26 October 2010, that is, more than three months before the beginning of the infringement period in respect of the Romanian Pipeline 1, which was set by the Commission as being 31 January 2011 (see recital 650 of the contested decision), and then on 20 April 2011. In its response of 1 October 2010, Transgaz informed Overgas that all the capacity on that pipeline had been reserved in its entirety (see recital 296 of the contested decision). In its response of 26 October 2010, Transgaz stated that the legal regime governing the Romanian Pipeline 1 was included in the 1970 Intergovernmental Agreement. In addition, on 20 April 2011, Transgaz informed Overgas that the 1970 Intergovernmental Agreement was to be amended and the 2005 Agreement renegotiated because of infringement proceedings initiated against Romania for non-compliance with Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks (OJ 2005 L 289, p. 1) (replaced, from 3 March 2011, by Regulation No 715/2009) (Case 2009/2193; ‘the infringement proceedings against Romania’).
328    Against this background, in the first place, the Commission submits that, as regards the years 2010 and 2011, Transgaz informed Bulgargaz and BEH of the legal need to grant third-party access to the Romanian Pipeline 1.
329    There is nothing in the file to show that Transgaz forwarded to Bulgargaz the 2010 requests for access made by Overgas and referred to in paragraph 326 above. On the contrary, the Commission conceded, in its rejoinder, that it did not have proof that Transgaz had forwarded those requests to Bulgargaz (see paragraph 292 above).
330    Furthermore, although, at the meeting of 24 January 2011, Transgaz expressed to BEH an interest in recovering part of the unused capacity on the Romanian Pipeline 1, Transgaz did not in any way refer to the requests for access that Overgas had sent to it. It merely stated that that interest was in the context of the future construction of the terminal in Constanța, which was to take place in the distant future. It is thus apparent from the minutes of that meeting, as acknowledged by the Commission at the hearing, that the information provided by Transgaz to BEH did not make it possible to understand that Transgaz wished to offer capacity on the Romanian Pipeline 1 to Overgas (see paragraphs 277 and, a fortiori, 284 above).
331    Accordingly, the Commission cannot rely on the content of the meeting of 24 January 2011 to impute to Bulgargaz a rejection of Overgas’ access requests made to Transgaz before 23 November 2012.
332    In the second place, the Commission submits that, as follows from recital 297 of the contested decision, Transgaz took all reasonable measures to amend the 2005 Agreement so that third-party access could be granted to the Romanian Pipeline 1. However, the Commission has not demonstrated how the steps taken by Transgaz for the renegotiation of the 2005 Agreement can amount to a forwarding, to Bulgargaz, of Overgas’ access requests. Accordingly, that circumstance has, in any event, no bearing on the imputability of the rejection of Overgas’ access requests made in 2010.
333    That is all the more so since, as the applicants rightly submit, the fact that Transgaz chose not to initiate the procedure laid down in Article 17.1 of the 2005 Agreement, which provided for a mechanism allowing for the resolution of third-party requests for access to the Romanian Pipeline 1, by seeking Bulgargaz’s prior consent, cannot be imputed to the applicants.
334    The first complaint must therefore be upheld.
(2)    The second complaint, alleging that Bulgargaz provided Overgas with access to the Romanian Pipeline 1 without delay from the time of its first request
335    The applicants consider that the Commission incorrectly concluded that Bulgargaz had delayed Overgas’ access to the Romanian Pipeline 1 for 2013. They submit that Bulgargaz fully cooperated with Overgas as soon as it received the latter’s request for access of 23 November 2012 and that it handled that request diligently, despite the absence of rules governing the trade of secondary capacity on the Romanian Pipeline 1 and the fact that the 2005 Agreement did not provide for any mechanism allowing Bulgargaz to sell or sublet such capacity.
336    The Commission, supported by Overgas, disputes that complaint.
337    In the contested decision, the Commission found that the negotiations for the 2013 pipeline access agreement had lasted three months and thus alleged that Bulgargaz granted Overgas access to the Romanian Pipeline 1 for 2013 after a delay (see recitals 311, 312, 323, 536, 543, 581 and 651 of the contested decision).
338    In that regard, in the first place, it should be noted that the 2005 Agreement did not provide for any mechanism allowing Bulgargaz to sell or sublet secondary capacity. At the hearing, the Commission agreed, in that regard, that Bulgargaz’s consent under Article 17.1 of the 2005 Agreement allowed only Transgaz, not Bulgargaz, to grant third-party access to the capacity of the Romanian Pipeline 1.
339    In the second place, it should also be noted that, in accordance with Article 22(1) of Regulation No 715/2009, Transgaz was required to adopt certain measures to allow Bulgargaz to sell or sublet capacity on the secondary market (see paragraph 127 above). However, during the infringement period, no such measures were adopted.
340    Consequently, in order to accept Overgas’ access request for 2013, Bulgargaz had to conclude a new type of contract with Overgas which was not governed by any rule in respect of secondary trade of capacity on the Romanian Pipeline 1. In particular, no rule laid down the time period within which such a contract had to be concluded.
341    In that context, Bulgargaz was not bound by any contractual or regulatory deadline to grant Overgas access to the Romanian Pipeline 1.
342    However, as a dominant undertaking controlling access to capacity on the Romanian Pipeline 1, Bulgargaz had to grant such access to Overgas within a reasonable period of time (see, to that effect and by analogy, judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 151).
343    That reasonableness must be assessed in the light of the relevant facts.
344    In that regard, it should be noted that Overgas submitted its first request for access to the Romanian Pipeline 1 directly to Bulgargaz by letter of 23 November 2012. In that letter, Overgas asked Bulgargaz to inform it of the conditions under which Bulgargaz could sell part of its capacity on the Romanian Pipeline 1 to Overgas, but did not, however, specify the date from which access to that capacity was requested. Overgas merely stated that it had purchased 420 million cubic metres of natural gas for 2013 and that it wished to transport it at regular intervals, ‘at [35 million] m3/month’.
345    Moreover, Overgas concluded its letter of 23 November 2012 by stating that ‘given the short time to address this issue, we will be very much obliged by your prompt reply. Thank you in advance for your understanding!’. Overgas thus acknowledged the relatively late nature of its own request.
346    Bulgargaz replied to Overgas on 27 November 2012, that is, the second following working day, proposing a meeting on 30 November 2012. As Overgas acknowledges, the parties met regularly from that date, inter alia on 20 December 2012.
347    The day after that meeting, namely 21 December 2012, Overgas sent Bulgargaz two draft agreements for the transmission of gas, through the Romanian Pipeline 1 and Bulgarian territory respectively, with a request that those documents be signed, at the latest on 27 December 2012, that is to say, less than one week after they were sent to Bulgargaz.
348    On 28 December 2012, Overgas sent a reminder letter to Bulgargaz in which:
–        it thanked Bulgargaz for its ‘partnership and constructive manner during the negotiations regarding the specific texts of these Agreements’;
–        it assumed that Bulgargaz’s failure to reply to the draft agreements referred to in paragraph 347 above was due to in-house procedures;
–        it proposed that Bulgargaz start transporting its gas, on a provisional basis, from January 2013, without a signed contract, indicating the conditions of that provisional transport and stating that those conditions had already been accepted by the parties during their negotiations;
–        one of those conditions was that Overgas would undertake to pay, in due proportion, the amounts paid by Bulgargaz to Transgaz for the use of the Romanian Pipeline 1;
–        lastly, Overgas stated that it had concluded gas supply contracts with several gas distributors and with the company Razgrad DHP EAD for 2013, that the volumes of gas to which those contracts related were covered by the volumes which it had purchased from Gazprom and that it had provided Bulgargaz with a letter from Gazprom dated 20 December 2012 confirming as much.
349    According to Overgas, Bulgargaz replied to its letter of 28 December 2012 stating that it could not enter into an agreement without BEH’s authorisation and that it wished to continue the negotiations at the beginning of 2013. However, it is apparent from the information in the file referred to in paragraphs 350 and 354 below, and from the parties’ confirmation at the hearing, that that fact did not prevent Overgas from obtaining access to the Romanian Pipeline 1 from 1 January 2013, namely five and a half weeks after it had submitted its request.
350    By letter of 7 January 2013, Bulgargaz proposed to Overgas:
–        that a contract be concluded covering the period 1 January to 31 March 2013, in order to take account of the fact that Overgas had ensured the upstream supply of gas from its parent company Gazprom only for the first quarter of 2013, while providing for an option to renew that contract;
–        that they apply a principle of allocation of the costs associated with the use of the capacity of the Romanian Pipeline 1 in proportion to the relevant quantities of gas, as Overgas had proposed in its letter of 28 December 2012 (see paragraph 348 above).
351    Bulgargaz also insisted that Overgas’ volumes of gas transported through the Romanian Pipeline 1 should not be resold outside Bulgarian territory, in order to comply with the contractual commitments that Bulgargaz had entered into vis-à-vis Gazprom. It added that this was a crucial issue which they had to discuss at a meeting.
352    In response, Overgas proposed to Bulgargaz that they continue the negotiations at a meeting on 8 January 2013. According to Overgas, the parties met in mid-January 2013 and, at that meeting, agreed on a mechanism for the distribution of capacity at the common points of delivery.
353    On 16 January 2013, Bulgargaz submitted to BEH, for approval, the draft 2013 pipeline access agreement.
354    On 30 January 2013, BEH approved the 2013 pipeline access agreement and, the following day, namely 31 January 2013, that agreement was signed with retroactive validity, covering the period 1 January to 31 March 2013, and included a tacit renewal clause for the entire year in the event that neither of the parties had sent to the other a written notification to terminate the agreement at least 15 days before the expiry date (see Article 1.3 of that agreement).
355    In the first place, it follows from the foregoing that Bulgargaz and Overgas concluded an ex novo agreement within less than 10 weeks, despite the difficult conditions due to Transgaz’s failure to adopt the framework measures prescribed by EU legislation to enable such transactions.
356    Despite that difficulty, Bulgargaz agreed that access for Overgas would be operational one month before the signing of the 2013 pipeline access agreement, from 1 January 2013, that is, only five and a half weeks, including the Christmas holiday period, after the access request had been submitted to Bulgargaz on 23 November 2012.
357    Moreover, Overgas itself acknowledged, in its request of 23 November 2012, that that request was made too late for access to be granted to it from the beginning of January 2013 and, during the negotiations for the 2013 pipeline access agreement, it praised Bulgargaz’s constructive attitude (see paragraphs 345 and 348 above).
358    Overgas also stated, in response to a request for information from the Commission, that during its various meetings with Bulgargaz between the end of November and 21 December 2012 for the negotiation of the 2013 pipeline access agreement, Bulgargaz had given Overgas the impression that it was willing to enter into such an agreement before the end of 2013. Overgas added that, on that basis, it had entered into supply contracts.
359    Bulgargaz’s constructive attitude is apparent from the abovementioned elements of the file, summarising the way in which the negotiations for the 2013 pipeline access agreement took place:
–        Bulgargaz reacted very quickly to Overgas’ request, replying to it within the following two working days, and proposed that a first meeting be held one week after that request (see paragraph 346 above).
–        Bulgargaz organised several meetings over a relatively short period, namely from December 2012 to January 2013;
–        even though the negotiations had not yet been completed, Bulgargaz agreed to transport Overgas’ gas from 1 January 2013, on the provisional conditions that Overgas had proposed in its letter of 28 December 2012 (see paragraphs 348 and 354 above); those conditions included Bulgargaz agreeing that Overgas pay only the proportion of the sum paid to Transgaz, under the 2005 Agreement, that corresponded to the capacity of the Romanian Pipeline 1 allocated to Overgas, namely with no benefit to Bulgargaz.
360    In the second place, by comparison, it follows from recital 315 of the contested decision that the negotiations for the contract giving access to the Romanian Pipeline 1 for 2014, between the same parties, lasted from 16 October 2013 to 23 January 2014, namely more than 14 weeks, that is, almost 9 weeks longer than the negotiations that led to the conclusion of the 2013 pipeline access agreement. In addition, as in the case of the 2013 pipeline access agreement, the 2014 agreement, which was deemed to have entered into force on 1 January 2014, was not signed until several weeks later, in this case on 23 January 2014.
361    It follows that the access for 2014 was operational 11 weeks after the beginning of the negotiations between Bulgargaz and Overgas, which is more than twice the length of the negotiations that had been necessary to grant operational access for 2013.
362    The Commission found that the access granted to Overgas in 2014 was satisfactory (see recitals 327 and 546 of the contested decision).
363    There is nothing in the file to justify such a difference in the Commission’s assessment as regards the period within which access was granted to Overgas for 2013 and the period within which access was renewed in favour of Overgas for 2014.
364    It follows from the foregoing that the Commission has not established to the requisite legal standard that Bulgargaz delayed Overgas’ access to the Romanian Pipeline 1 for 2013 due to the unreasonable length of the negotiations for the 2013 pipeline access agreement and because of that duration being attributable to Bulgargaz.
365    The second complaint must therefore be upheld.
(3)    The third complaint, arguing that Bulgargaz did not delay signing the 2013 pipeline access agreement until it had concluded downstream contracts with its own customers
366    The applicants submit that the Commission has failed to establish that Bulgargaz delayed the signing of the 2013 pipeline access agreement until it had concluded gas supply contracts with its own customers.
367    The Commission, supported by Overgas, disputes this complaint.
368    In the contested decision, the Commission found that Bulgargaz had granted Overgas access to the Romanian Pipeline 1 in 2013 only after concluding gas supply contracts with its own customers. Accordingly, that access allowed Overgas to conclude similar supply contracts only with its own subsidiaries (see recital 312(a) and recital 543(a) of the contested decision).
369    In that regard, it should be noted that that conclusion by the Commission in the contested decision is based exclusively on Overgas’ response of 3 October 2013 to a request for information made by the Commission dated 18 September 2013 (‘Overgas’ statement of 3 October 2013’) (see recital 312 of and footnotes 450 and 451 to the contested decision). In that statement, Overgas indicated that:
‘… At the beginning of September 2012 under pressure from Bulgargaz, all users in the country, with the exception of companies majority-owned by Overgas, were forced, under threat of being left without guaranteed amounts of natural gas in the next year, to submit their binding requests to Bulgargaz for 2013, although according to then effective contracts of Bulgargaz[,] the deadline for the submission of such requests was October 2012. As a result, the customers of Bulgargaz submitted their requests for delivery in 2013 as early as September 2012, thus indicating their desire to use gas from Bulgargaz.
However, Bulgargaz did not immediately conclude contracts with these customers for 2013, nor did it extend the contracts effective in 2012 until the end of 2013. It was only at the beginning of December 2012, after information in the media that Bulgargaz had reached an agreement with Gazprom … for delivery in 2013, that Bulgargaz offered a new contract to its customers, unilaterally drawn up by [it]’.
370    In that regard, it should be noted, first of all, that, according to the case-law, it is permissible for the Commission to rely on evidence submitted by the parties to the administrative procedure, provided that that evidence is reliable and relevant, the onus being on the Commission, if necessary, to supplement it with other evidence where the information submitted by those parties proves to be insufficient or defective (judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 79).
371    The only relevant criterion for the purpose of assessing the probative value of evidence relates to its credibility (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65 and the case-law cited).
372    Thus, statements which run counter to the interests of the declarant must in principle be regarded as being particularly reliable evidence (judgment of 17 May 2013, MRI v Commission, T‑154/09, EU:T:2013:260, paragraph 104; see also, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 137).
373    However, the Court has acknowledged on a number of occasions that statements made by undertakings in the context of applications for leniency, complaining of the anticompetitive conduct of other undertakings party to the administrative procedure, must be assessed with caution and, in general, cannot be regarded as being particularly reliable evidence if they have not been corroborated by other evidence (see, to that effect, judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 99 and the case-law cited).
374    Although that case-law was developed in the context of the application of Article 101 TFEU, the Court considers that it is also necessary to assess the probative value of the statements made by complainants, whether official or not, in the context of the application of Article 102 TFEU, against an undertaking in a dominant position, with a degree of caution.
375    Although, unlike applicants for leniency, complainants do not risk any penalty in the context of the administrative procedure conducted on the basis of Article 102 TFEU, they nevertheless clearly have an interest in accusing the dominant undertaking of unlawful conduct, and thus in having that undertaking penalised for the infringement of which they complain, or, at the least, in obtaining a declaration concerning an infringement of Article 102 TFEU by that undertaking, especially when such a declaration results in the dominant undertaking being forced to conclude a contract with the complainant (see, to that effect, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 46).
376    As regards, therefore, the statements made by an interested party, it must be noted that, while those statements cannot be considered to have no probative value, the fact remains that such statements are intended either to mitigate the liability of the undertaking concerned by the proceedings or to support a finding of liability on the part of that undertaking in order either to defend or to accuse it, depending on the particular interests of the party submitting the statement. Therefore, while those statements have probative value, this must be viewed in the light of the other evidence (see, to that effect, judgments of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraph 379, and of 14 September 2022, Google and Alphabet v Commission (Google Android), T‑604/18, under appeal, EU:T:2022:541, paragraph 95).
377    That consideration must be taken into account in order to assess at least the impartiality of the complainants, or even the reliability of their statements, in an investigation into abuse of a dominant position. Above all, it must be held that the complainants’ statements must be assessed with caution and cannot constitute sufficient evidence, in themselves, to establish the abusive conduct complained of, with the result that they must be supported by other evidence.
378    In the present case, although, as follows from paragraph 23 above, Overgas lodged an informal complaint with the Commission against the applicants, its formal status during the subsequent investigation is that of an interested third party that has demonstrated a sufficient interest, within the meaning of Article 27(3) of Regulation No 1/2003 and Article 13(1) of Regulation No 773/2004 (see paragraph 28 above). The fact remains that it is clear from the file that, by its participation in the administrative procedure, Overgas sought, at least, a finding that the applicants had infringed Article 102 TFEU, in order thus to force them to enter into a contract with it.
379    The Court therefore considers that, in the present case, it was indeed permissible for the Commission to regard, within the meaning of the case-law cited in paragraph 370 above, the allegation set out in Overgas’ statement of 3 October 2013 as a relevant factor in order to determine whether Bulgargaz had delayed signing the 2013 pipeline access agreement until it had itself concluded downstream contracts with its own customers. However, given Overgas’ clear interest in the administrative procedure in question, that statement could not be regarded as being particularly reliable, let alone sufficiently probative by itself, and it was therefore for the Commission to supplement it with other evidence within the meaning of the case-law cited in paragraph 370 above.
380    Thus, Overgas’ statement of 3 October 2013 is not sufficient, by itself, for it to be considered established that Bulgargaz had delayed signing the 2013 pipeline access agreement until it had itself concluded downstream contracts with its own customers, particularly since that allegation could have been supported or disproved by requests for information made to the market participants.
381    Furthermore, according to the case-law, where the Commission finds that there has been an infringement of the competition rules on the basis of the assumption that the facts established cannot be explained otherwise than by the existence of anticompetitive conduct, proof of the existence of such an infringement cannot be considered to have been adduced if the undertakings concerned put forward arguments which cast the facts established by the Commission in a different light and which thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement has occurred (see judgment of 18 November 2020, Lietuvos geležinkeliai v Commission, T‑814/17, EU:T:2020:545, paragraph 296 and the case-law cited).
382    In the present case, it is apparent from the contested decision that, by relying exclusively on the allegations in Overgas’ statement of 3 October 2013, the Commission merely assumed that the fact that Bulgargaz had concluded gas supply contracts with its customers before concluding the 2013 pipeline access agreement could be explained only by Bulgargaz’s anticompetitive conduct.
383    First, the applicants dispute Overgas’ allegations by relying on the chronology of the facts. They argue that:
–        Overgas did not contact Bulgargaz regarding access to the Romanian Pipeline 1 before 23 November 2012, that is, one to two months after Bulgargaz had, according to Overgas’ statement of 3 October 2013, asked its customers to submit their requests for 2013;
–        some contracts between Bulgargaz and its customers had already been concluded before Overgas’ access request was submitted;
–        until 23 November 2012, Bulgargaz could not have known that Overgas would submit a request for access to the Romanian Pipeline 1 to it;
–        if Overgas had submitted its request earlier, Bulgargaz would have had the possibility of granting it access before signing contracts with its customers for 2013.
384    It must be stated that, even if Bulgargaz had exerted pressure on the Bulgarian customers in September 2012, as Overgas alleges in its statement of 3 October 2013, the Commission has not adduced any evidence or argument capable of establishing that that applicant knew that Overgas would send it a request for access to the Romanian Pipeline 1 in November 2012.
385    Similarly, as Overgas acknowledges, Bulgargaz’s customers were, in any event, required, under their supply contracts with Bulgargaz, to submit their supply requests for 2013 in October 2012 (see paragraph 369 above), namely before Overgas submitted its access request to Bulgargaz. Overgas had, moreover, stated, in its follow-up observations of 10 June 2011 regarding its meeting with the Commission on 17 March 2011, that the timetable had been the same one year earlier. Overgas had stated that the deadline imposed by Bulgargaz on its customers to renew their supply contracts for 2012 was 1 October 2011 and, furthermore, that the supply requests in respect of 2012 had to be submitted from the end of August or the beginning of September 2011.
386    Thus, there is nothing in the file to establish the existence of a link between the date of conclusion of the supply contracts for 2013 between Bulgargaz and its customers and Overgas’ access request of 23 November 2012. On the contrary, the setting of the date for the conclusion of those contracts as being the beginning of December 2012 seems to be a logical consequence of the submission, by those customers, of their supply requests in respect of 2013, which had had to take place two months earlier, in October 2012 (see paragraph 369 above).
387    Furthermore, in so far as this was the renewal of supply contracts that would apply from 1 January 2013, it was legitimate for those contracts to be signed before the end of the ongoing contracts and, accordingly, before the end of 2012.
388    Therefore, the Commission has not proved that Bulgargaz made any approaches to the Bulgarian customers, as early as September 2012, that were related to Overgas’ request for access to the Romanian Pipeline 1, which was made two months later, on 23 November 2012.
389    Second, the applicants also claim that:
–        Bulgargaz signed the 2013 pipeline access agreement shortly after receiving Overgas’ request, and gave the contract retroactive effect from 1 January 2013;
–        the contracts concluded between Bulgargaz and its customers for 2013 were short-term contracts providing for a right of unilateral termination by the customers, subject to three months’ notice, in the event that those customers changed their gas supplier; those contractual provisions therefore enabled Overgas, from January 2013, to persuade Bulgargaz’s customers to change supplier and enter into a contract with Overgas;
–        in February 2013, one of Bulgargaz’s customers thus became a customer of Overgas.
390    The arguments put forward by the applicants, referred to in paragraphs 383 and 389 above, constitute an alternative plausible explanation, within the meaning of the case-law cited in paragraph 381 above, to that of the Commission, according to which Bulgargaz waited until it had signed contracts with its own customers before granting Overgas access to the Romanian Pipeline 1.
391    Furthermore, according to the case-law, it is necessary to attach great importance to the fact that a document was drawn up in close connection with the facts or by a direct witness of those facts (see judgments of 12 December 2014, Eni SpA v Commission, T‑558/08, EU:T:2014:1080, paragraph 43, and of 13 July 2018, Stührk Delikatessen Import v Commission, T‑58/14, not published, EU:T:2018:474, paragraph 77 and the case-law cited). Thus, evidence contemporaneous with the facts at issue has a greater probative value than statements submitted after the facts, for the purposes of the administrative procedure (see, to that effect, judgments of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 50, and of 13 December 2018, Deutsche Telekom v Commission, T‑827/14, EU:T:2018:930, paragraphs 300, 355, 368 and 386 (not published and the case-law cited)).
392    It must be noted that Overgas’ allegations resulting from its statement of 3 October 2013, which was made after the facts at issue for the purposes of the administrative procedure, and on which the Commission exclusively relies (see recital 312(a) of the contested decision), are contradicted by a certain number of pieces of evidence in the file that are contemporaneous with the facts at issue.
393    In the first place, as set out in paragraph 322 above, it is apparent from Bulgargaz’s licence that Bulgargaz was under an obligation to ensure an uninterrupted supply of gas on the Bulgarian market as a public supplier and, on that basis, had to regularly collaborate with the users directly connected to the transmission network, with whom it could not refuse to conclude a gas supply contract. That collaboration with those users was governed by rules approved by the Bulgarian regulator, integrated into Bulgargaz’s licence and therefore binding on it.
394    Those obligations, imposed by Bulgargaz’s licence, provide additional justification for the approaches that Bulgargaz made to its customers to ensure their supply for 2013, before Overgas submitted its access request on 23 November 2012.
395    In the second place, as is apparent from the analysis of the second complaint of the fifth part (see, inter alia, paragraphs 346, 350 and 354 above), several pieces of evidence that are contemporaneous with the facts demonstrate Bulgargaz’s constructive and diligent attitude in its handling of Overgas’ access request, and the fact that the access to the Romanian Pipeline 1 in 2013 was granted without delay.
396    In the third place, the elements in the file that are contemporaneous with the facts make no reference at any point to the difficulties that Overgas might have had in concluding supply contracts with downstream customers on the Bulgarian gas supply markets.
397    On the contrary, it should be noted, first, that Overgas expressly stated in its letter to Bulgargaz of 21 December 2012 that it wished to sign the 2013 pipeline access agreement as a matter of urgency because it had already concluded such supply contracts with customers on the Bulgarian gas supply markets for the beginning of January 2013. Similarly, in its letter of 28 December 2012, Overgas stated that, as of that date, it had already concluded gas supply contracts with six customers for 2013 and that the volumes corresponding to those contracts were covered by supplies from Gazprom.
398    The letters referred to in paragraph 397 above also contradict Overgas’ subsequent claim, set out in recital 312 of the contested decision, that ‘before Bulgargaz had signed the 31 January 2013 [pipeline access agreement for 2013], Overgas was unable to confirm to its potential customers that it would be able to supply gas to them in 2013’. Moreover, the alleged concerns held by Overgas in that regard were disproved by the fact that, at the beginning of 2013, at least one of Bulgargaz’s customers had terminated its supply contract, signed with Bulgargaz, on 16 December 2012, in order to conclude one with Overgas from 1 March 2013. Furthermore, Overgas could not complain that it had had difficulties in concluding supply contracts with downstream customers since, as it stated in the two letters of 12 and 28 December 2012, it had already concluded such contracts.
399    Second, Bulgargaz took due account of the urgent circumstances referred to by Overgas, by agreeing to grant it, in advance, access to the Romanian Pipeline 1 from 1 January 2013, even though the 2013 pipeline access agreement had not yet been signed (see paragraph 356 above). Thus, Bulgargaz agreed that that contract would be concluded with retroactive effect from 1 January 2013 (see recital 312 of the contested decision).
400    Third, the Commission relies on Overgas’ argument that Overgas was able to conclude supply contracts for 2013 only with customers that were its own subsidiaries (see recital 312(a) of the contested decision). That fact is irrelevant in the absence of the slightest evidence that Bulgargaz took steps to prevent Overgas from concluding supply contracts on the Bulgarian gas supply markets for 2013.
401    It follows from the foregoing that the Commission has not established to the requisite legal standard that Bulgargaz delayed Overgas’ access to the Romanian Pipeline 1 for 2013 until that applicant had concluded contracts with its customers on the Bulgarian gas supply markets, or that that alleged fact adversely affected Overgas’s ability to conclude such contracts on those markets.
402    Consequently, the third complaint must be upheld.
(4)    The fourth complaint, alleging that the Commission incorrectly concluded that the initial three-month duration of the 2013 pipeline access agreement with Overgas was insufficient
403    The applicants dispute the Commission’s conclusion, in recitals 312 and 543 of the contested decision, that the initial three-month duration set out in the agreement for Overgas’ access to the Romanian Pipeline 1 for 2013 was insufficient. They consider that that initial period does not constitute wrongful conduct on their part.
404    The Commission disputes this complaint.
405    In the contested decision, the Commission found that Overgas complained about the short duration of the 2013 pipeline access agreement, which prevented it from concluding medium- or long-term contracts with its gas supplier, upstream, and with its customers in Bulgaria, downstream (see end of recital 312(b) of the contested decision).
406    The Commission thus took the view that the 2013 pipeline access agreement had not been concluded following a procedure that was transparent and based on objective and non-discriminatory criteria, on account of, inter alia, the very short duration of that agreement, being initially three months, and on account of the subsequent extension of that agreement being up to a maximum of nine months, even though a high proportion of the capacity of the Romanian Pipeline 1 was unused (see recital 543(b) of the contested decision).
407    First of all, it must be noted that, upon submitting its request to Bulgargaz, on 23 November 2012, Overgas had indicated that it wished to have access to the Romanian Pipeline 1 for the year 2013.
408    Article 1.2 of the 2013 pipeline access agreement stipulated that that agreement was in force from 1 January to 31 March 2013.
409    However, according to Article 1.3 of that agreement, ‘the validity of this Agreement shall be renewed for another three-month period if none of the parties send[s] a written notice about its termination to the other party at least 15 days prior to the expiration of its term. If the possibility to renew the term of validity is applied to the Agreement, it shall be finally terminated on 31 [December] 2013’. That article therefore provided for a tacit renewal of the 2013 pipeline access agreement for the whole year.
410    Next, it should be noted that Bulgargaz required an initial period of three months on the ground that Overgas had demonstrated that it had ensured an upstream supply of gas only for the first quarter of 2013. That is apparent from Bulgargaz’s letter to Overgas on 7 January 2013. In that letter, Bulgargaz stated that, since Overgas had obtained a supply of gas from Gazprom for the first quarter of 2013, Overgas was offered an agreement for the use of the capacity of the Romanian Pipeline 1 for that same period, that is, from 1 January to 31 March 2013, with an option for renewal.
411    Thus, more than three weeks before signing the 2013 pipeline access agreement, Bulgargaz had clearly informed Overgas that the duration of that agreement depended on the duration of Overgas’ upstream supply of gas on the Romanian Pipeline 1, explaining the reasons for that choice. The Commission acknowledges in recital 108(c) of the contested decision that the agreement between Overgas and Gazprom in force on that date covered only the first quarter of 2013, as expressly confirmed by an internal letter from Gazprom of 29 December 2012, which Overgas produced as an annex to its statement in intervention.
412    The Commission has not proved that Overgas opposed such a condition at the time, let alone that it complained that such a condition would place it in a situation of commercial uncertainty as regards the gas supply contracts to be concluded upstream and above all with its downstream customers.
413    It is apparent from Overgas’ letter of 28 December 2012, when Overgas proposed to Bulgargaz the provisional solution for access to the Romanian Pipeline 1, without an agreement yet signed, from 1 January 2013, that Overgas was already aware that an upstream supply of gas on the Romanian Pipeline 1 was a necessary condition for gaining access to that pipeline. Thus, Overgas stated that the gas volumes for which it had already concluded supply contracts with six customers for 2013 were covered by a supply from Gazprom, as evidenced by a letter from Gazprom dated 20 December 2012 which Overgas had already forwarded to Bulgargaz.
414    Furthermore, there is nothing in the file to show that Overgas opposed the condition of an upstream supply of gas on the Romanian Pipeline 1 as being unreasonable, or that it attempted to demonstrate to Bulgargaz that it had an upstream supply of gas for the whole year.
415    The fact that Overgas provided Bulgartransgaz, Bulgargaz’s sister company, on 22 January 2013, with a copy of the contract that it had concluded with Gazprom for its gas supply does not affect that conclusion.
416    Thus, it is apparent from the information in the file that, when the 2013 pipeline access agreement was signed on 31 January 2013, at that point Overgas had, upstream, entered into a contract only for quantities of gas requiring use of the Romanian Pipeline 1 until 31 March 2013, and not beyond.
417    Lastly, no document contemporaneous with the negotiation for the 2013 pipeline access agreement proves that, at that time, Overgas considered that the short duration of the agreement offered to it by Bulgargaz would impede its ability to conclude contracts with downstream customers. On the contrary, as set out in paragraphs 348 and 413 above, the only concern raised by Overgas during the negotiations with Bulgargaz was the need to conclude a contract quickly so that it could honour the contracts which it had already concluded with downstream customers.
418    According to the case-law, if such conduct is to be characterised as abusive, that presupposes that that conduct was capable of restricting competition and, in particular, of producing the alleged exclusionary effects (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 154 and the case-law cited).
419    It follows from the elements referred to in paragraphs 407 to 418 above that, in the present case, since the Commission has not demonstrated that the initial three-month duration of the 2013 pipeline access agreement had had the ability to produce exclusionary effects on the Bulgarian gas supply markets by making it more difficult for Overgas to enter those markets, the abusive nature of that duration in the light of Article 102 TFEU has not been established to the requisite legal standard.
420    The fourth complaint must, therefore, be upheld.
(5)    The fifth complaint, alleging that the conditions for extending the 2013 pipeline access agreement were not uncertain
421    The applicants dispute the finding in the contested decision that the extension of the 2013 pipeline access agreement was subject to uncertain conditions. In that regard, the Commission’s position that the letter sent by Bulgargaz to Overgas on 25 February 2013 constituted an interruption in the supply of services to Overgas and adversely affected the latter’s operations on the Bulgarian wholesale supply market is incorrect.
422    The Commission, supported by Overgas, disputes this complaint.
423    In the contested decision, the Commission found that the conditions for the extension of the 2013 pipeline access agreement, concluded for an initial period of three months with an automatic renewal clause, remained unclear (see recital 312(b) of the contested decision).
424    Next, it is apparent from recital 313 of the contested decision that, by the letter of 25 February 2013, Bulgargaz had announced to Overgas that it would not automatically extend the 2013 pipeline access agreement, on the ground that it had not received clear evidence that Overgas had concluded a gas supply contract with Gazprom for the whole of 2013. On 22 March 2013, after receiving proof that Overgas had entered into a contract for volumes in respect of the whole year, Bulgargaz confirmed that an agreement could be concluded until the end of 2013.
425    However, the Commission noted that, according to Overgas, the letter of 25 February 2013 ‘cancelling the automatic extension of the contract’ had adversely affected its activity on the Bulgarian wholesale market, because it could no longer be sure that its contract would actually be extended until the end of 2013. Overgas informed the Commission that Bulgargaz’s announcement of the termination of the 2013 pipeline access agreement less than one month after that agreement was signed showed that even existing agreements were by no means certain and that Overgas was entirely dependent on Bulgargaz’s goodwill to give it access to the Romanian Pipeline 1 (see recital 314 of the contested decision). The Commission relies, in that regard, on Overgas’ response of 2 May 2013 to its request for information of 26 April 2013 (‘Overgas’ statement of 2 May 2013’).
426    The Commission thus concluded that the access granted by Bulgargaz to Overgas in 2013 had not been under a procedure that was transparent and based on objective and non-discriminatory criteria because, inter alia, the extension of the 2013 pipeline access agreement was uncertain and the conditions for that extension were not specified (see recital 543(c) of the contested decision).
427    In that regard, it must be noted that the 2013 pipeline access agreement, initially concluded for the period from 1 January to 31 March 2013, contained a tacit renewal clause in respect of the whole year (see Articles 1.2 and 1.3 of that agreement and paragraphs 408 and 409 above).
428    However, not only did Article 1.3 of the 2013 pipeline access agreement allow each of the two parties to send a written notification requesting termination at the time of the automatic quarterly renewal, but also, under Article 6.1 of that agreement, the latter could be unilaterally terminated by Overgas with one month’s written notice. Those provisions show that there was no imbalance between the respective powers of the two parties to terminate that agreement.
429    It is true that, by its letter of 25 February 2013, Bulgargaz notified Overgas of the termination of the 2013 pipeline access agreement from 1 April 2013, pursuant to Articles 1.2 and 1.3 of that agreement, without providing any explanation.
430    However, in the first place, it is apparent from the file that, at the time of receipt of Bulgargaz’s letter of 25 February 2013, the context in which that letter was sent necessarily enabled Overgas to know why Bulgargaz wished to terminate the 2013 pipeline access agreement with effect from 31 March 2013. That reason had been clearly communicated to Overgas beforehand in Bulgargaz’s letter of 7 January 2013, in which Bulgargaz stated that, in so far as Overgas had obtained a supply of gas for the first quarter of 2013, it was offered an agreement for the use of the Romanian Pipeline 1 for that same period, namely from 1 January to 31 March 2013, with an option to renew that agreement (see paragraphs 350 and 410 above).
431    Thus, it is apparent from the letter of 7 January 2013 that, more than three weeks before signing the 2013 pipeline access agreement, Bulgargaz had clearly informed Overgas that the duration of that agreement depended on the duration of Overgas’ upstream supply of gas on the Romanian Pipeline 1, so that, consequently, the renewal of the agreement beyond the initial term of three months clearly depended on Overgas’ upstream supply of gas from 1 April 2013.
432    The Commission has not proved that Overgas opposed such conditions at the time.
433    In those circumstances, and since, within the meaning of the case-law cited in paragraph 391 above, contemporaneous evidence of the facts at issue has greater probative value than that of statements submitted for the purposes of the administrative procedure, the Commission could not rely solely on Overgas’ statement of 2 May 2013, in response to a request for information by the Commission, in order to conclude that Bulgargaz had imposed on Overgas uncertain or imprecise conditions for an extension that caused it commercial uncertainty.
434    In the second place, Bulgargaz expressly informed Overgas of the reason for the non-renewal of the 2013 pipeline access agreement, announced on 25 February 2013, that is to say, three days later. It is apparent from a letter from Overgas to Bulgargaz of 1 March 2013 that, at a meeting on 28 February 2013, Bulgargaz explained that it had decided not to extend the 2013 pipeline access agreement because Overgas had not provided proof of a supply of gas for the rest of the year. Thus, the reason for non-renewal of that agreement was made clear more than one month before the end of the agreement, that is, more than two weeks before the deadline for providing the notice of non-renewal laid down in Article 1.3 of that agreement, set at 16 March 2013.
435    Nor has the Commission proved that Overgas objected, following the meeting of 28 February 2013, to the renewal of the 2013 pipeline access agreement being subject to the guarantee of an upstream supply of gas.
436    On the contrary, Overgas, as early as 1 March 2013, that is, the day after the meeting of 28 February 2013, provided Bulgargaz with proof that it had a supply of gas covering the whole of 2013. In that regard, it attached a letter also dated 1 March 2013 sent to it by Gazprom, in which the latter confirmed that it had the capacity to supply Overgas with 400 million cubic metres of gas at the entry point of the Romanian Pipeline 1 in 2013.
437    In the third place, on 12 March 2013, Bulgargaz sent Overgas a draft addendum amending the 2013 pipeline access agreement and invited Overgas to discuss it the following day. The draft addendum proposed, inter alia, that Article 1.2 of that agreement, regarding its duration, should stipulate, from then onwards, that ‘this Agreement shall be in force from 01.01.2013 to 31.12.2013’ and that Article 1.3 regarding the tacit renewal of that agreement after 31 March 2013 should be deleted.
438    Ten days later, on 22 March 2013, Bulgargaz confirmed that the agreement would be extended until the end of 2013 (see recital 313 of the contested decision). Bulgargaz thus confirmed, nine days before the end of the first quarter of 2013, that the 2013 pipeline access agreement would be extended for the whole year. The parties subsequently signed the addendum on 3 April 2013.
439    It thus follows from the findings in paragraphs 423 to 431 above that Overgas had been aware, since 7 January 2013, that is to say, three weeks before signing the 2013 pipeline access agreement, of the condition that would allow that agreement to be renewed beyond 31 March 2013, with the result that the finding in recital 312(b) of the contested decision that the extension of the 2013 pipeline access agreement was subject to uncertain conditions cannot be accepted.
440    Lastly, it should be noted that Overgas’ claim in its statement of 2 May 2013 that the letter sent by Bulgargaz on 25 February 2013 affected its activity on the Bulgarian wholesale market is not supported by any other evidence.
441    As follows from the case-law cited in paragraphs 370 to 373 and 376 above, statements made by an interested third party in the context of proceedings under Article 102 TFEU cannot be regarded as particularly reliable evidence, or even as having sufficient probative value, if they have not been corroborated by other evidence (see paragraph 374 above). Thus, Overgas’ statement of 2 May 2013 is not sufficient, in itself, to establish that the letter of 25 February 2013 caused it the alleged damage, especially since the applicants have put forward a line of argument capable of constituting an alternative plausible explanation, within the meaning of the case-law referred to in paragraph 381 above.
442    Furthermore, as the reason for non-renewal was formally made clear at the meeting of 28 February 2013, Overgas, as early as the following day, namely 1 March 2013, provided Bulgargaz with proof that it had a supply covering the whole of 2013 (see paragraphs 434 and 436 above). Therefore, the contemporaneous evidence of the facts shows that Overgas had no difficulty in responding to and meeting the stipulated condition within a very short period of time. Accordingly, no proof of the uncertainty of which it complains in its statement of 2 May 2013, for the purposes of the administrative procedure, has been adduced.
443    In the light of the foregoing considerations, the Commission has not established to the requisite legal standard that the conditions for the extension of the 2013 pipeline access agreement were uncertain and imprecise, that they placed Overgas in a position of uncertainty, and that they are, as such, capable of constituting abuse within the meaning of Article 102 TFEU.
444    Accordingly, the fifth complaint and, therefore, the fifth part must be upheld.
(f)    The sixth part, alleging that that there was no refusal to supply C Energy Group
445    The applicants submit that, in recital 534(c) of the contested decision, the Commission incorrectly classified Bulgargaz’s failure to reply to C Energy Group’s letter of 26 September 2013 (‘the letter of 26 September 2013’) as a refusal to supply, which prevented C Energy Group from entering the Bulgarian gas supply markets (see recital 331 of the contested decision). According to the applicants, by that letter, C Energy Group, which was only an electricity trader, merely requested information on the conditions for obtaining access to the Romanian Pipeline 1 and never followed up on that request. Moreover, when C Energy Group sent that letter, Overgas already had access to the Romanian Pipeline 1 as a result of the 2013 pipeline access agreement.
446    The Commission disputes this part.
447    In that regard, it must be noted that Bulgargaz was under no statutory obligation to provide third parties with the capacity of the Romanian Pipeline 1. Thus, in order to establish that Bulgargaz’s conduct with regard to the letter of 26 September 2013 could fall within the scope of Article 102 TFEU, the Commission had to prove that that conduct constituted a refusal of access capable of eliminating all competition on the part of the person making the request, within the meaning of paragraph 41 of the judgment in Bronner, on the downstream market, in the present case the Bulgarian gas supply markets. However, such an exclusionary capability cannot be purely hypothetical (see, to that effect, judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 70 and the case-law cited).
448    That meant that, in the circumstances of the present case, the Commission had to demonstrate that C Energy Group had the firm determination and the very capacity to enter those markets and that, inter alia, it had taken sufficient preparatory steps to enable it to enter those markets within such a period of time as would impose competitive pressure on Bulgargaz (see, to that effect, judgments of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 43, and of 25 March 2021, Lundbeck v Commission, C‑591/16 P, EU:C:2021:243, paragraph 57).
449    First, it was thus for the Commission to prove that C Energy Group had, at least, a sufficiently tangible project to enter the Bulgarian gas supply markets and that, therefore, the effective competition on those markets would be threatened if it were refused access to the capacity of the Romanian Pipeline 1, with the result that a purely exploratory step could not have constituted a request for access to which Bulgargaz was required to respond.
450    Second, the Commission also had to prove that the request for access reflected such a project in a sufficiently precise manner for Bulgargaz to be able to assess whether it was required to respond to it, so as not to run the risk of an abusive refusal of access.
451    That requirement is justified, as follows from paragraph 282 above, by the obligation, arising from a finding that there has been an abusive refusal of access by an undertaking in a dominant position, to conclude a contract with the competitor that made the request; that obligation is especially detrimental to the dominant undertaking’s freedom of contract (see, to that effect, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 46).
452    It was therefore for the Commission to demonstrate that the letter of 26 September 2013 constituted a sufficiently precise and serious request by C Energy Group for access to the Romanian Pipeline 1 and, more specifically, that it reflected C Energy Group’s firm determination and very capacity to enter the Bulgarian gas supply markets within such a period of time as would impose competitive pressure on the operators already present on those markets and, in particular, on Bulgargaz.
453    In the contested decision, the Commission merely stated that, in 2013, C Energy Group had attempted to obtain access to the Romanian Pipeline 1, that that undertaking was an electricity supplier, but that it was planning to sell gas to non-household clients in Bulgaria, that that undertaking was planning to purchase gas at Isaccea 1 and that, in order to transport it to the Romanian-Bulgarian border (at the Negru Vodă 1 exit point), it needed access to the Romanian Pipeline 1 (see recitals 328 and 329 of the contested decision).
454    In that regard, the Commission noted that, in September 2013, C Energy Group had submitted to Bulgargaz a request for access to the Romanian Pipeline 1 for 2014, seeking confirmation of the possibility of being granted such access and that it had attached a schedule including the volumes of gas that it was planning to transport in 2014 (see recital 330 of the contested decision).
455    Thus, first, it should be noted that, as the Commission states in the contested decision (see paragraph 453 above), and as is apparent from the letter of 26 September 2013, at the time, C Energy Group did not operate in the gas sector. That letter stated (i) that C Energy Group was a licensed trader in electricity and a licensed coordinator of a balancing group and (ii) that it had received enquiries from customers regarding the possibility of purchasing gas from it and that, therefore, it intended to expand its scope of activities to that trade.
456    Second, it is apparent from the letter of 26 September 2013 that C Energy Group had not yet concluded a gas supply contract with an upstream supplier and that, at that time, it merely intended to do so.
457    It is true that, as the Commission stated (see paragraph 454 above), the letter of 26 September 2013 indicated the volumes of gas which C Energy Group was planning to transport over each quarter of 2014. However, that letter did not indicate within what period of time C Energy Group could potentially have concluded a gas supply contract with an upstream supplier and, therefore, from which date it could actually have been able to deliver gas at the entry point of the Romanian Pipeline 1. Nor did C Energy Group state whether that supply contract could actually cover all of the volumes of gas, referred to in that letter, which it was planning to have transported in that pipeline, for all of 2014.
458    Third, following the letter of 26 September 2013, C Energy Group never contacted Bulgargaz again in that regard, even though the Romanian Pipeline 1 was the only viable route for importing gas into Bulgaria.
459    It can therefore be inferred from the content of the letter of 26 September 2013 and from the conduct of C Energy Group itself that, at that time, the plan to enter the Bulgarian gas supply markets was still only at a preliminary, or even exploratory, stage.
460    Thus, the letter of 26 September 2013 does not permit the inference that C Energy Group had the firm determination and the very capacity to supply gas in Bulgaria, within the meaning of the case-law cited in paragraph 448 above. On the contrary, it demonstrates that, on that date, that undertaking had not taken sufficient preparatory steps to enable it to access the Bulgarian gas supply markets within such a period of time as would impose competitive pressure on Bulgargaz.
461    It should be noted, by comparison, that, in Overgas’ request of 23 November 2012, which Bulgargaz had previously granted from 1 January 2013, Overgas had specified that the volume of gas which it was seeking to transport through the Romanian Pipeline 1 had already been purchased.
462    In those circumstances, the Commission has not established that Bulgargaz’s failure to respond to the letter of 26 September 2013 was capable of restricting competition on the Bulgarian gas supply markets and, in particular, of producing exclusionary effects that were not purely hypothetical, within the meaning of the case-law cited in paragraphs 280 and 447 above.
463    Therefore, the Commission has not proved that the letter of 26 September 2013 constituted a sufficiently precise and serious request for Bulgargaz to be required to respond to it. That being so, the Commission could not find that the failure to respond to such a request was proof of a refusal to supply that was capable of falling within the scope of Article 102 TFEU and attributable to Bulgargaz.
464    That conclusion is not called into question by the fact referred to in recital 331 of the contested decision that, at the time of the letter of 26 September 2013, Bulgargaz was in discussions with Transgaz to amend the 2005 Agreement regarding third-party access to the Romanian Pipeline 1.
465    The Commission has not explained how the fact that the renegotiation of the 2005 Agreement was ongoing when C Energy Group sent the letter of 26 September 2013 constituted evidence to support the conclusion that that operator was refused access.
466    In that regard, it should be noted that, as the applicants submit, the renegotiation of the 2005 Agreement in no way prevented Bulgargaz, almost nine months before the letter of 26 September 2013, from granting access to Overgas, whose request of 23 November 2012 was sufficiently precise and serious for it to be dealt with and accepted by Bulgargaz (see analysis of the fifth part above).
467    In addition, the Commission has not established that, during the renegotiation of the 2005 Agreement, the participants in that renegotiation had referred to C Energy Group’s letter of 26 September 2013, or to any other request for access to the Romanian Pipeline 1 made by that company.
468    Moreover, as Bulgargaz argued during the administrative procedure, at the time of the letter of 26 September 2013, it had already informed Transgaz, during a meeting of 10 October 2012 on the renegotiation of the 2005 Agreement, of its consent to free up the unused capacity on the Romanian Pipeline 1 so as to enable Transgaz to grant third-party access to it. As follows from the analysis of the eighth part of the first ‘sub-plea’ of the fourth plea below, that line of argument must be accepted.
469    It follows that the sixth part  must be upheld.
(g)    The seventh part, alleging the lack of probative value of the reservation of the entire capacity on the Romanian Pipeline 1
470    The applicants dispute, in essence, the probative value of the reservation, for Bulgargaz, of the entire capacity of the Romanian Pipeline 1 in order to establish a refusal to supply, when no individual request for access to that pipeline was refused.
471    The Commission disputes this part.
472    As a preliminary point, it must be noted that the reservation of the entire capacity of the Romanian Pipeline 1, provided for in Article 17.1 of the 2005 Agreement, when Bulgargaz used only a limited part of the available capacity, is one of the factors on which the Commission relied in order to demonstrate:
–        first, and as confirmed in the analysis in the context of the third plea (see paragraphs 133 to 171 above), the existence of Bulgargaz’s dominant position on the market for capacity services on the Romanian Pipeline 1;
–        second, the existence of capacity hoarding on the Romanian Pipeline 1, which constituted Bulgargaz’s refusal to supply (see recital 534(a) of the contested decision); the Commission thus took the view that Bulgargaz should either have renounced the exclusivity stipulated for its benefit in the 2005 Agreement or should have offered the capacity of the Romanian Pipeline 1 on the secondary market in accordance with an objective, transparent and non-discriminatory procedure (see recitals 542, 563 and 564 of the contested decision).
473    In the first place, according to settled case-law, a finding that an undertaking has a dominant position is not in itself a ground of criticism of the undertaking concerned. It is the abuse of such a dominant position that is prohibited by Article 102 TFEU (see judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 21 and the case-law cited).
474    In that regard, it is for the Commission, in order to characterise such abuse, to identify how the undertaking in question, by using its dominant position, has had recourse to methods different from those governing normal competition, which have had the effect of hindering the maintenance of the degree of competition existing in the market or the growth of that competition (see judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 24 and the case-law cited).
475    Thus, the contractual exclusivity granted to Bulgargaz by the 2005 Agreement, even though Bulgargaz used only part of the capacity of the Romanian Pipeline 1, cannot constitute an abuse of that applicant’s dominant position if the Commission has not proved that Bulgargaz’s conduct had, in fact, given it the ability to foreclose competitors from the Bulgarian gas supply markets, in particular within the meaning of the judgment in Bronner and the subsequent case-law concerning the refusal of access to an ‘essential facility’ cited in paragraphs 255 and 256 above.
476    The facts show that Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1, provided for in Article 17.1 of the 2005 Agreement, did not prevent it, from the time of the first request for access to the unused capacity of that pipeline which it received on 23 November 2012, from granting Overgas that access, from 1 January 2013, and the Commission has not succeeded in demonstrating that that access was late or unsatisfactory and therefore that Bulgargaz’s conduct fell, in that regard, within the scope of Article 102 TFEU.
477    Nor has the Commission established to the requisite legal standard that Bulgargaz abusively refused requests for access from other third parties. Thus:
–        it follows from paragraph 284 above that the Commission has neither demonstrated, nor even alleged, that Transgaz’s request of 24 January 2011 constituted a request for access to the Romanian Pipeline 1 seeking to allow that operator to enter the Bulgarian gas supply markets, which, moreover, the Commission acknowledged at the hearing; according to the case-law, the applicants were therefore not required to respond favourably to that request (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 42, 43 and 46);
–        the Commission also conceded that it had no proof that Transgaz had forwarded to Bulgargaz individual requests for access to the Romanian Pipeline 1 from third parties, in particular those sent to it by Overgas in 2010;
–        nor has the Commission established that C Energy Group’s request of 26 September 2013 was sufficiently precise and serious so as to constitute a request for access to the Romanian Pipeline 1, to which Bulgargaz was required to respond (see analysis of the sixth part above).
478    Furthermore, the Commission could not rely on the assumption that, due to Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1, third parties refrained from submitting requests for access to that capacity (see recital 278 and the end of recital 537 of the contested decision). It has not adduced any evidence establishing that they refrained from doing so and, therefore, has not discharged its burden of proof. It should also be noted that, under Article 17.3 of the 2005 Agreement, the latter and its content were confidential and that the Commission has failed to demonstrate that, despite that confidentiality clause, third parties could have been aware of the exclusivity clause that was set out in the 2005 Agreement for the benefit of Bulgargaz. In any event, even if the third parties did refrain from making a request, since those third parties did not, by definition, make any request in that regard, Bulgargaz cannot be criticised for refusing access due to not replying to requests which were never sent to it.
479    In the second place, the Commission found that the part of the infringement relating to the Romanian Pipeline 1 continued only until 1 January 2015, that is to say, up until the date from which Bulgargaz, in the Commission’s view, granted third parties satisfactory access to that pipeline (see recital 651 of the contested decision).
480    It must be stated that, on that date, the provisions of the 2005 Agreement granting Bulgargaz exclusive use of the Romanian Pipeline 1 were still in force. It was not until 30 September 2016 that that contractual exclusivity ended, when the 2005 Agreement was terminated, that is to say, one year and nine months after the end of the infringement period. Consequently, the Commission itself has implicitly accepted that the existence of that contractual right of exclusivity was not decisive.
481    In that context, the evidence relating to Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1 under the 2005 Agreement, even though Bulgargaz used only part of it, is insufficient to establish the alleged abuse on the market for the capacity of that pipeline.
482    The seventh part must therefore be upheld.
(h)    The eighth part, alleging that the discussions relating to the renegotiation of the 2005 Agreement have no probative value
483    The applicants, supported by the Republic of Bulgaria, dispute the probative value of the discussions relating to the renegotiation of the 2005 Agreement. In that regard, the contested decision incorrectly establishes that those intergovernmental discussions constituted a refusal to grant access to the Romanian Pipeline 1 and that Bulgargaz had not acted constructively during the negotiations relating to the 2005 Agreement. In that regard, they put forward three complaints:
–        the intergovernmental nature of the renegotiation of the 2005 Agreement;
–        the constructive nature of their conduct during the negotiations;
–        the fact that they are not responsible for the duration of those negotiations.
484    The Commission disputes this part.
(1)    The first complaint, regarding the intergovernmental nature of the renegotiation of the 2005 Agreement
485    The applicants, supported by the Republic of Bulgaria, submit that the discussions on the renegotiation of the 2005 Agreement were initiated and took place at intergovernmental level, involving the governmental and regulatory authorities of the Republic of Bulgaria and Romania. Those discussions cannot therefore be imputed to Bulgargaz. The applicants rely on three elements in that regard:
–        the fact that the 2005 Agreement stemmed from the 2003 Intergovernmental Agreement;
–        the fact that the purpose of the renegotiation of the 2005 Agreement was to resolve the concerns raised in the infringement proceedings against Romania;
–        the central nature of the security of gas supply in Bulgaria and Bulgargaz’s role as a public supplier in the renegotiation of the 2005 Agreement.
486    The Commission disputes those arguments.
487    In the contested decision, the Commission alleged that Bulgargaz did not return the unused capacity of the Romanian Pipeline 1 when Transgaz requested it to do so or had made the return of that capacity subject to conditions (see recital 297, recital 534(b) and recitals 535, 536, 538 and 541 of the contested decision).
488    In particular, the Commission criticised Bulgargaz for insisting, during the discussions on the renegotiation of the 2005 Agreement, that Transgaz guarantee it a capacity of [3-4] (2) billion cubic metres per year on that pipeline before allowing Transgaz to offer the rest of the capacity to third parties. Thus, despite the pressure exerted by Transgaz, BEH and Bulgargaz defended the maintenance of the 2005 Agreement which ensured them the entirety of that capacity (see recitals 297, 305, 307, 536, 538, 540 and 541 of the contested decision).
489    As a preliminary point, in the first place, it should be noted that it is in no way apparent from the file that, during the discussions on the renegotiation of the 2005 Agreement, there were specific requests by third parties for access to the Romanian Pipeline 1. In particular, the Commission conceded that it did not have proof that Transgaz had informed the applicants, or, a fortiori, that it had forwarded to them, requests by third parties for access to that pipeline, in particular the requests that Overgas had sent to Transgaz in 2010. As follows from the analysis of the third part above, there is also no evidence in the file that Transgaz itself planned to enter the Bulgarian gas supply markets in order to compete with Bulgargaz on those markets.
490    In the second place, it is also important to point out that, alongside the renegotiation of the 2005 Agreement, Bulgargaz granted Overgas uninterrupted access, from 1 January 2013, and the Commission has not been able to establish that such access was late or granted on the basis of a procedure that was neither transparent nor based on objective and non-discriminatory criteria. That was at a time when the TSO, namely Transgaz, had not yet taken the measures imposed by the applicable regulatory framework to allow secondary capacity trading (see analysis of the fifth part above).
491    In the third place, it should be noted that, as is apparent from the letter of 30 November 2011 sent by Transgaz to Bulgargaz in the context of the renegotiation of the 2005 Agreement (‘the letter of 30 November 2011’) (see recital 297(c) of the contested decision), those discussions began, in June 2011, with exclusively intergovernmental exchanges.
492    Subsequently, as stated in recital 297(b) of the contested decision, the applicants were involved in that renegotiation only from the point at which an intergovernmental meeting was held on 28 September 2011, in which, as is apparent from the file, BEH and Bulgartransgaz participated. Next, the first contact with Bulgargaz on that subject was established by Transgaz’s letter of 30 November 2011, which informed Bulgargaz of the intergovernmental exchanges dating back to June 2011 and of the decision then taken by the government representatives of the Republic of Bulgaria and Romania that Transgaz and Bulgargaz renegotiate the 2005 Agreement. That letter also set out the reason for that intergovernmental decision, namely the infringement proceedings against Romania. Transgaz also invited Bulgargaz to a meeting on that subject between 12 and 16 December 2011.
493    It is against that background that the arguments raised by the applicants in the context of the first complaint must be examined.
(i)    The fact that the 2005 Agreement stemmed from the 2003 Intergovernmental Agreement
494    The applicants submit that the 2005 Agreement was signed in accordance with the 2003 Intergovernmental Agreement, with the result that the renegotiation of the 2005 Agreement required the involvement of the governmental authorities of the Republic of Bulgaria and Romania.
495    In that regard, it must be noted that the 2005 Agreement, concluded pursuant to the 2003 Intergovernmental Agreement, dated back to the period prior to the accession of the Republic of Bulgaria and Romania to the European Union. It took place in a context characterised, inter alia, by Bulgaria’s dependence on Russia for its gas supply, which had lasted for several decades.
496    The applicants thus state, without being contradicted on that point by the Commission, that that dependence dates back to the construction, in 1974, of the Romanian Pipeline 1, under the 1970 Intergovernmental Agreement. They claim that the construction of that pipeline was a means for the Union of Soviet Socialist Republics (USSR) to embed its influence in the People’s Republic of Bulgaria.
497    In that regard, it is apparent from the 1970 Intergovernmental Agreement and from the agreement concluded on 5 July 1974 between Rompetrol, the predecessor of Transgaz, and Neftochim, the predecessor of Bulgargaz, relating to the operation and maintenance of the Romanian Pipeline 1 (‘the 1974 Agreement’), which remained in force until 2005, that the sole purpose of that pipeline was to meet the internal gas needs in Bulgaria by transporting gas there from the USSR (see Article 1(a) and Article 3(2) of the 1970 Intergovernmental Agreement and Articles 1.4 and 2.1 of the 1974 Agreement).
498    The Bulgarian State had borne the costs of the pipeline site and 40% of the construction costs (see Article 7(3) and Article 8(3) of the 1970 Intergovernmental Agreement), but it was Romania that owned the pipeline (see Article 3(1) of that agreement and Article 1.4 of the 1974 Agreement). The applicants submit that the Bulgarian financing of the Romanian Pipeline 1 is the reason why Bulgargaz and its predecessors have historically been the only ones to use that infrastructure.
499    One of the objectives of the 2003 Intergovernmental Agreement, which succeeded the 1970 Intergovernmental Agreement, was to expand cooperation between the Republic of Bulgaria and Romania in the gas sector and to ensure the security of gas supply in those two countries (see fourth recital and Article 4(1) of the 2003 Intergovernmental Agreement).
500    In the context of that cooperation, the Republic of Bulgaria and Romania undertook to ensure that their respective gas operators, namely Bulgargaz and Transgaz, entered into a contract for the transfer of gas from Russia to Bulgaria, via Romania, and that they agreed on the corresponding transit tariffs (see Article 3 of, and Annex No 1 to, the 2003 Intergovernmental Agreement).
501    The 2003 Intergovernmental Agreement thus required the conclusion of an operational agreement between the predecessor of Bulgargaz and Transgaz for the transit of gas through the Romanian Pipeline 1.
502    It was on the basis of the 2003 Intergovernmental Agreement that the 2005 Agreement was concluded, which was therefore a key element of the cooperation between the Republic of Bulgaria and Romania in the gas sector and, therefore, of the security of gas supply in Bulgaria.
503    The 2005 Agreement, which was originally concluded until 31 December 2011, was extended by the parties, in 2009, until 31 December 2016.
504    It is true, as the Commission correctly points out, that the 2003 Intergovernmental Agreement did not set out the details of the content of the 2005 Agreement, in particular the detailed rules governing the operation of the Romanian Pipeline 1 and the allocation of the capacity of that infrastructure or, therefore, the grant of exclusive use of that capacity to Bulgargaz.
505    The fact remains that the parties to the 2003 Intergovernmental Agreement, on the basis of which the 2005 Agreement was concluded, had agreed, first, to organise regular bilateral consultations at ministerial level in order to examine the state of the cooperation actions undertaken, those consultations being required to take place on a commercial basis, second, to set up an expert group from the Ministry of Energy and Energy Resources of the Republic of Bulgaria and from the Ministry of Industry and Resources of Romania to monitor the implementation of that intergovernmental agreement and the cooperation projects provided for under that agreement and, third, to enable the economic operators involved in those cooperation projects to participate in the meetings of the expert group (see Article 5 of the 2003 Intergovernmental Agreement). Thus, there were elements of intergovernmental cooperation in any renegotiation of the 2005 Agreement.
506    It was in the context of intergovernmental cooperation, provided for under the 2003 Agreement, that the renegotiation of the 2005 Agreement was initiated, following the third meeting of the Bulgarian-Romanian Energy Working Group, which took place on 28 September 2011. That working group brought together, on the one hand, a Bulgarian delegation chaired by the Deputy Minister of Economy, Energy and Tourism of the Republic of Bulgaria, composed, inter alia, of nine representatives of that ministry, a representative of BEH and two representatives of Bulgartransgaz and, on the other hand, a Romanian delegation chaired by the Secretary of State of the Ministry of Economy, Trade and Business Environment of Romania, composed, inter alia, of four representatives of that ministry, two representatives of the Romanian regulator and two representatives of Transgaz. Bulgargaz was not part of that working group, even though it was one of the two parties to the 2005 Agreement.
507    The material in the file shows that, during the infringement period, the renegotiation of the 2005 Agreement was the subject of two subsequent meetings of the Bulgarian-Romanian Energy Working Group, on 30 October 2012 and 22 November 2013, and of another intergovernmental meeting on 9 December 2013.
508    At the meeting of 30 October 2012, the Bulgarian and Romanian governmental authorities discussed the proposal for the guarantee of a minimum capacity on the Romanian Pipeline 1, made by Bulgargaz at its bilateral meeting with Transgaz on 10 October 2012, and the proposal to release the remaining capacity so that Transgaz could offer it to third parties (see paragraph 468 above).
509    Furthermore, it is apparent from the file that the national regulators concerned were also involved in the renegotiation of the 2005 Agreement. Thus, in its letter to the Romanian regulator of 16 January 2014, the Bulgarian regulator stressed its ‘active participation’ in the meeting of 9 December 2013, during which the discussion on the proposal for the guarantee of a minimum capacity continued, in the presence of Bulgargaz and Transgaz. It is apparent from the minutes of that meeting that it was then agreed that Bulgargaz would send a letter to Transgaz stating, inter alia, that it gave its consent for the capacity on the Romanian Pipeline 1 not reserved for it to be released for third parties.
510    Following the meeting of 9 December 2013, the Bulgarian regulator, in its letter of 16 January 2014, stressed that:
–        the gas requirements of the Bulgarian market were almost entirely met by a single supplier, under long-term supply contracts concluded between Bulgargaz and Gazprom;
–        the 2005 Agreement, guaranteeing the transit of gas provided by Gazprom, was ‘exceptionally important’ for the security of supply in the Republic of Bulgaria;
–        since the reservation of the entire capacity of the Romanian Pipeline 1 did not satisfy the requirements 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) and of Regulation No 715/2009, the proposal for a guarantee of a minimum capacity enabling the unused capacity of that pipeline to be released for it to be offered to third parties, and a corresponding revision of the price stipulated in the 2005 Agreement, constituted a necessary and important step towards resolving the dispute in question.
511    It follows from the foregoing that the applicants’ first argument that the 2005 Agreement stemmed from the 2003 Intergovernmental Agreement and was, therefore, also intergovernmental in nature is well founded.
(ii) The fact that the purpose of the renegotiation of the 2005 Agreement was to resolve the concerns raised in the infringement proceedings against Romania
512    The applicants submit, next, that it was on the initiative of the Romanian governmental authorities that the discussions concerning the renegotiation of the 2005 Agreement began in June 2011 and that the trigger for those discussions was the initiation, by the Commission, in 2009, of the infringement proceedings against Romania. They submit that, in the context of those proceedings, the Commission found that Transgaz had failed to fulfil its obligations, as TSO of the Romanian Pipeline 1, under EU law, and that the Commission required, in particular, that Romania amend the 2005 Agreement.
513    In that regard, in the first place, it should be noted that it is apparent from the minutes of the intergovernmental meeting of 28 September 2011, referred to in paragraph 506 above, and from the letter of 30 November 2011 sent by Transgaz to Bulgargaz that it was indeed in response to the Commission’s criticisms raised in the infringement procedure against Romania that the governmental authorities of the Republic of Bulgaria and Romania initiated the process of renegotiating the 2005 Agreement.
514    In particular, in its letter of 30 November 2011, Transgaz stated that:
–        at a meeting with representatives of the Romanian Ministry of Economy, Trade and Business Environment, the Romanian regulator and Transgaz, which took place in the context of the infringement proceedings against Romania, the Commission considered that the 2005 Agreement did not comply with Regulation No 715/2009, which had replaced Regulation No 1775/2005, and that it should be renegotiated;
–        following that meeting with the Commission, the governmental representatives of the Republic of Bulgaria and Romania agreed to initiate the renegotiation of the 2005 Agreement in order to ensure that it complied with Regulation No 715/2009; the Romanian Ministry of Economy, Trade and Business Environment first contacted its Bulgarian counterpart in June 2011 to request that Bulgargaz and Transgaz start that renegotiation as soon as possible; in August 2011, the Bulgarian Ministry of Economy, Energy and Tourism agreed to the initiation of those discussions.
515    Following those first intergovernmental exchanges, the Romanian Minister of Economy, Trade and Business Environment informed his Bulgarian counterpart, on 12 October 2011, that Transgaz was ready to discuss the renegotiation of the 2005 Agreement with Bulgargaz from 1 November 2011.
516    In its letter of 30 November 2011, Transgaz proposed to Bulgargaz that a meeting be held on that subject between 12 and 16 December 2011 (see recital 297(c) of the contested decision). That same day, Bulgargaz replied, stating its agreement, and proposed that the meeting be held in January 2012. That meeting ultimately took place on 11 January 2012.
517    Following the meeting of 11 January 2012, Transgaz sent Bulgargaz, on 26 January 2012, a draft memorandum of understanding (‘the draft memorandum of understanding’) stipulating that the purpose of the renegotiation of the 2005 Agreement was to address the Commission’s concerns in the infringement proceedings against Romania.
518    According to the draft memorandum of understanding, the parties, first of all, had to undertake to prepare, by 15 February 2012 at the latest, an inventory of the clauses of the 2005 Agreement which were contrary to EU law. Next, the Romanian regulator had to provide the draft methodology for the establishment of the transmission tariff and the capacity allocation mechanism, in order to enable Transgaz to prepare the operation agreement and the capacity allocation agreement in accordance with the methodology for the establishment of the transmission tariff and the capacity allocation mechanism, and in accordance with Regulation No 715/2009.
519    The exchanges referred to in paragraphs 514 to 518 above show that, as the applicants submit, the aim of the renegotiation of the 2005 Agreement was to address the concerns raised by the Commission in the infringement proceedings against Romania.
520    As a result of that context, the Bulgarian and Romanian governmental authorities were involved throughout the renegotiation of the 2005 Agreement, as was the Romanian regulator.
521    In the second place, it should be noted that, on account of the context relating to the infringement proceedings against Romania, the latter wished to involve the Commission in the renegotiation of the 2005 Agreement and to submit to the Commission, for approval, the amendments to that agreement that had been agreed with the Bulgarian party.
522    First of all, at the intergovernmental meeting of 28 September 2011 (see paragraph 506 above), in which BEH and Transgaz also participated, the Bulgarian and Romanian authorities agreed to keep the Commission informed of the progress of the negotiations aimed at resolving the issues that had given rise to the infringement proceedings against Romania, including the renegotiation of the 2005 Agreement.
523    In addition, the draft memorandum of understanding stated, inter alia, that, before 26 January 2012, Romania had already tried, unsuccessfully, in the context of the infringement proceedings against it, to obtain the Commission’s agreement to maintain Bulgargaz’s exclusive right to use the Romanian Pipeline 1 and to retain the fixed annual fee stipulated in the 2005 Agreement.
524    Next, in a letter to Bulgargaz of 28 October 2013, Transgaz indicated its willingness to submit to the Commission, for approval, the proposal for the guarantee of a minimum capacity which Bulgargaz had requested on 10 October 2012, emphasising the urgent need to resolve that issue due to the imminent risk of heavy financial penalties against Romania, thus again referring to the infringement proceedings against the latter.
525    The Romanian party reiterated its willingness to involve the Commission in the renegotiation of the 2005 Agreement during the three discussions that followed, namely:
–        the letter from Transgaz to Bulgargaz of 21 November 2013, in which it repeated that, since the issue of the validity of the 2005 Agreement in the light of Regulation No 1775/2005 had been raised in the infringement proceedings against Romania, Transgaz was ready to submit to the Commission, for approval, the proposal for the guarantee of a minimum capacity; in order to do so, it wished to obtain from Bulgargaz, or from the Bulgarian authorities, the information supporting the importance of the 2005 Agreement for the security of gas supply in Bulgaria;
–        the meeting held on 9 December 2013 between Bulgargaz, Transgaz and the regulatory and governmental authorities of the Republic of Bulgaria and Romania for the purposes of agreeing on a common approach to be presented to the Commission, in the context of the infringement proceedings against Romania, concerning the 2005 Agreement, by putting forward, as a compromise solution, the proposal for the guarantee of a minimum capacity;
–        Transgaz’s letter of 13 January 2014, in response to a letter from Bulgargaz of 14 December 2013, in which it stated that EU law and the orders published by the Romanian regulator in 2012 required that all capacity on the Romanian Pipeline 1 be offered to the market and allocated in a transparent manner, through an auction system; however, given the circumstances related to the security of gas supply in Bulgaria as well as the close cooperation between the Republic of Bulgaria and Romania, Transgaz accepted, inter alia, the solution to offer only Bulgargaz’s unused capacity to the market; it added that that compromise solution could only be applied once the proposal for the guarantee of a minimum capacity had been approved by the Commission, and that it would be appropriate to start discussing the amendment of the 2005 Agreement only at that time.
526    Lastly, it is apparent in particular from Transgaz’s letters to Bulgargaz of 13 January 2014 and 20 January 2016 that, during that two-year period, the Romanian party actually submitted to the Commission, for approval, the proposal for the guarantee of a minimum capacity negotiated with the Bulgarian party, with the result that the Commission itself was involved in the process of renegotiating the 2005 Agreement, on the initiative of the Romanian party.
527    By contrast, the applicants did not participate, either directly or indirectly, in the discussions with the Commission, and were not kept informed by the Romanian party, during the infringement period, of the content or outcome of those discussions. That is evidenced by the letter which Bulgargaz sent to Transgaz on 1 December 2015, stating that, on that date, namely 11 months after the end of the infringement period, Transgaz had still not informed Bulgargaz as to whether it had received a response from the Commission on the proposed amendment to the 2005 Agreement; Transgaz had committed to consult the Commission in October 2013. Transgaz replied on 20 January 2016, stating that the Commission had ultimately rejected the abovementioned proposal.
528    It follows that it is necessary to uphold the applicants’ second argument, in relation to the fact that the purpose of the renegotiation of the 2005 Agreement was, inter alia, to address the Commission’s concerns in the context of the infringement proceedings against Romania.
(iii) The central nature of the security of gas supply in Bulgaria and the role of Bulgargaz, as a public supplier, in the renegotiation of the 2005 Agreement
529    The applicants submit that, in the context of the renegotiation of the 2005 Agreement, Bulgargaz acted as a public supplier of last resort, entrusted with a service of general economic interest and, as such, was required to ensure gas supply throughout Bulgaria. According to the applicants, the proposal for Transgaz’s guarantee of a minimum capacity of [3-4] billion cubic metres (out of a total capacity of 7.4 billion cubic metres) per year on the Romanian Pipeline 1 met Bulgargaz’s public supply obligations.
530    In that regard, it is apparent from the draft memorandum of understanding that the renegotiation of the 2005 Agreement was to lead, first, to the removal of Bulgargaz’s exclusive right to use the Romanian Pipeline 1 and, second, to the amendment of the fixed annual fee paid to Transgaz under that agreement, in order to address the Commission’s concerns raised in the infringement proceedings against Romania.
531    At the meeting of 10 October 2012, Bulgargaz put forward the proposal for the guarantee of a minimum capacity of [3-4] billion cubic metres per year, while indicating to Transgaz that, in return, it was prepared to release the remaining available capacity (see recital 297(h) of the contested decision and paragraph 468 above).
532    It was then agreed, at the meeting of 9 December 2013 between Bulgargaz, Transgaz and the regulatory and governmental authorities of the Republic of Bulgaria and Romania, to decide on the approach to be taken to request the Commission to approve the proposal for the guarantee of a minimum capacity. The parties agreed on a series of actions to progress the negotiations. Thus:
–        Bulgargaz was to send a letter to Transgaz detailing its proposal and stating that it gave its consent for the capacity on the Romanian Pipeline 1 to be released, apart from the amount that it had requested to be reserved;
–        the Bulgarian regulator was to send a letter to Transgaz supporting the proposed amendment of the 2005 Agreement and was to state the reasons justifying the proposal for the guarantee of a minimum capacity;
–        the Bulgarian Ministry of Economy, Energy and Tourism was to send a letter to Transgaz setting out the reasons justifying the preservation of the 2005 Agreement until the end of 2016.
533    Following that meeting, by its letter of 14 December 2013 referred to in paragraph 525 above, Bulgargaz informed Transgaz that it agreed to return to it the unused capacity on the Romanian Pipeline 1 on condition that the ‘transit service price’, namely the fixed annual fee stipulated in the 2005 Agreement, be modified. Bulgargaz therefore proposed that they discuss the amendment of the exclusivity clause provided for in Article 17.1 of the 2005 Agreement, as well as the fixed annual fee. It also indicated that, if Transgaz accepted its proposal, it would be prepared to sign an amendment agreement.
534    On 13 January 2014, the Deputy Minister of Economy of the Republic of Bulgaria sent a letter to his Romanian counterpart, setting out the reasons why the 2005 Agreement was important for the country’s security of gas supply (‘the Bulgarian ministerial letter’), which stated the following:
‘Natural gas supplies to Bulgaria are secured primarily through imports from a single source (the Russian Federation) along a single route (through the territories of Ukraine, Moldova and Romania), on the basis of long-term contracts. Currently, alternative sources and routes are not available yet, interconnections with the gas transmission systems of the neighbouring countries lack to a large extent, while gas storage capacities and especially daily withdrawal rates are insufficient. Those factors determine the risks as regards security of supplies, which was demonstrated during the gas [crisis] of January 2009 when Bulgaria was the most affected EU [Member State]. The single external source and the long-term supply contracts impact the low degree of liberalisation of the gas market in the country and determine the important role of the public provider [Bulgargaz].
The calculations using the N-1 formula for the infrastructure standard, according to Article 6 of Regulation (EU) No 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply, show that in the event of disruption of the single largest gas infrastructure (from Russia through Ukraine, Moldova and Romania), the capacity of the remaining infrastructure (reverse flow from Greece and increased domestic gas production and withdrawal from Chiren Underground Gas Storage) will not be able to supply the required volume of gas to satisfy total gas demand on the territory of Bulgaria for a day of exceptionally high gas demand occurring with a statistical probability of once in 20 years …’
535    Thus, the Bulgarian ministerial letter shows that the proposal for the guarantee of a minimum capacity was justified by Bulgaria’s very high dependence on gas from Russia in order to ensure security of supply in its territory and, therefore, on access to the Romanian Pipeline 1, which was the only network capable of transporting that gas to Bulgaria.
536    The letter which the Bulgarian regulator sent to the Romanian regulator on 16 January 2014 emphasised that Bulgargaz was almost entirely dependent, upstream, on a single gas supplier, namely Gazprom and its subsidiaries Overgas and Wintershall Erdgas Handelshaus Zug (‘WIEE’), and that the 2005 Agreement was thus ‘exceptionally important’ for the security of supply in the Republic of Bulgaria.
537    On 13 January 2014, Transgaz replied to Bulgargaz’s letter of 14 December 2013 referred to in paragraph 525 above, pointing out that EU law and the orders published by the Romanian regulator in 2012 required that all the capacity on the Romanian Pipeline 1 be offered to the market and allocated in a transparent manner. However, given the circumstances associated with the security of gas supply in Bulgaria as well as the close cooperation between the Republic of Bulgaria and Romania, Transgaz accepted the solution to offer only Bulgargaz’s unused capacity to the market, subject to the Commission’s approval in that regard.
538    Transgaz thus stated that Bulgargaz’s proposal to be reserved part of the capacity of the Romanian Pipeline 1 indeed derogated from the applicable regulatory framework, which required the TSO to offer at auction the entire capacity of that pipeline on the market, but that, in the light of the close cooperation of the Republic of Bulgaria with Romania, it accepted the proposal because it considered that it was justified by the security of gas supply in Bulgaria.
539    It is apparent from the discussions referred to in paragraphs 531 to 538 above that the security of gas supply in Bulgaria, and the importance of the Romanian Pipeline 1 in that regard, were a central concern in the renegotiation of the 2005 Agreement, which explains the high degree of involvement of the Bulgarian authorities in those discussions.
540    The applicants’ third argument is therefore well founded.
(iv) Conclusion on the first complaint
541    The material in the file demonstrates the high degree of involvement of the Romanian and Bulgarian governmental and regulatory authorities in the discussions on the renegotiation of the 2005 Agreement. That material also establishes that the intervention of those authorities was justified by the importance of the issues at stake in that renegotiation, which were not limited only to Bulgargaz’s interests. On the contrary, the discussions in question affected, first, the resolution of the infringement proceedings against Romania and, second, the security of gas supply on the Bulgarian market.
542    It follows from the foregoing that the first complaint, based on the intergovernmental nature of the discussions on the renegotiation of the 2005 Agreement, is well founded.
(2)    The second complaint, arguing that the applicants’ conduct during the negotiations was constructive
543    The applicants submit that, during the discussions on the renegotiation of the 2005 Agreement, Bulgargaz acted constructively and agreed to amend the 2005 Agreement.
544    The Commission disputes that complaint.
545    In the contested decision, the Commission, in essence, criticised Bulgargaz for imposing three conditions on Transgaz before agreeing to return capacity on the Romanian Pipeline 1 to Transgaz, but did not, however, explicitly classify those conditions as unlawful or even unreasonable, namely:
–        requiring, on 6 February 2012, that three documents be provided during the renegotiation of the 2005 Agreement, namely, first, the draft methodology for the establishment of the new gas transmission tariff (‘the new transmission tariff’) and for capacity allocation on the Romanian Pipeline 1, second, the draft operational agreement and, third, the draft agreement for the allocation of that capacity (see recital 297(e) of the contested decision);
–        requiring Transgaz, on 10 October 2012, to guarantee Bulgargaz, until the end of 2016, a capacity on the Romanian Pipeline 1 of [3-4] billion cubic metres per year and [11-12] million cubic metres per day, that is, approximately half of the total capacity of that pipeline, before agreeing to return capacity to Transgaz (see recital 297(h) of the contested decision).
–        failing to notify Transgaz, following the meeting of 10 October 2012, that it was ready to release the unused capacity of the Romanian Pipeline 1 (see recital 297(h) of the contested decision) and, by its letter of 14 December 2013, making the release of unused capacity conditional on a reduction of the fixed annual fee provided for in the 2005 Agreement (see recital 297(k) of that decision).
546    The applicants consider that their conduct was justified on each of those points.
547    In that regard, in the first place, it should be noted that, according to the case-law, the fact that an undertaking is in a dominant position does not disqualify it from protecting its own commercial interests if they are attacked, and it must be conceded the right to take such reasonable steps as it deems appropriate to protect its commercial interests (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 149 and the case-law cited).
548    In the second place, it should be noted that the case-law also acknowledges that Articles 101 and 102 TFEU apply only to anticompetitive conduct engaged in by undertakings on their own initiative and, therefore, exempts undertakings from their liability for any conduct that is required of them, inter alia, by national legislation or by a legal framework created by that legislation, or by irresistible pressure imposed by the national authorities which itself eliminates any possibility of competitive activity on their part (see, to that effect, judgments of 11 November 1997, Commission and France v Ladbroke Racing, C‑359/95 P and C‑379/95 P, EU:C:1997:531, paragraph 33, and of 2 February 2022, Polskie Górnictwo Naftowe i Gazownictwo v Commission (Rejection of complaint), T‑399/19, EU:T:2022:44, paragraph 54).
549    In the present case, it should be noted that, during the infringement period, Bulgargaz operated on the Bulgarian gas supply markets under a public supply licence that imposed on it a number of obligations as the sole operator guaranteeing the security of gas supply in Bulgaria. It was responsible, inter alia, for ensuring that all users directly connected to the transmission network could be supplied with gas without interruption, failing which its licence could be revoked by the Bulgarian regulator (see paragraph 322 above).
550    The applicants submit that, during the infringement period, Bulgaria depended on a single source to guarantee its gas supplies, namely the gas from Russia supplied, during that period, by Gazprom and its subsidiary Overgas, and depended on a single transit route, namely the Romanian Pipeline 1.
551    That dependence was referred to in the Bulgarian ministerial letter which, as follows from paragraphs 534 and 535 above, highlighted two factors which threatened the country’s security of gas supply. In the first place, the country depended almost exclusively on the supply of gas from Russia, with the result that, in the absence of access to the Romanian Pipeline 1, Bulgaria was not in a position to satisfy the requirements of Article 6 of Regulation (EU) No 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC (OJ 2010 L 295, p. 1). In the second place, the Bulgarian ministerial letter stated that the gas from Russia was supplied on the basis of long-term supply contracts with Gazprom. Those two factors affected the low degree of liberalisation of the gas market in Bulgaria and determined the important role of the public supplier Bulgargaz.
552    In that regard, the context of the construction of the Romanian Pipeline 1 put into service in 1974 demonstrates Bulgaria’s almost total dependence, from that point, on gas from Russia and, therefore, on access to that infrastructure (paragraphs 495 to 502 above).
553    The applicants state that, before the preparation for the Republic of Bulgaria’s accession to the European Union, and in particular during the period between 1991 and 1997, Bulgargaz obtained its gas supplies from Russia under supply contracts concluded for short periods, namely for periods of three months to a year. They submit, however, that, from the time when the Republic of Bulgaria began to draw closer to the European Union, the gas supply contracts concluded by Bulgargaz with its supplier Gazprom, including with the latter’s subsidiaries, namely WIEE and Overgas (together, ‘the upstream supply contracts with Gazprom’), evolved significantly.
554    Recital 63(a) of the contested decision states that, during the infringement period, Bulgargaz’s gas supply was covered by several contracts. In that regard, it is apparent from the file that there were the following three contracts:
–        a contract concluded on 1 May 1997 with WIEE, applicable from 1 May 1997 to 31 December 2012 (‘the supply contract with WIEE’);
–        a contract concluded on 27 April 1998 with Topenergy, which was succeeded by Overgas from 1 August 2003 (‘the supply contract with Overgas’); that contract, which initially applied from 1 April 1998 to 31 December 2010, was extended in 2006 until 31 December 2012;
–        a contract concluded on 15 November 2012 with Gazprom, applicable from 1 January 2013 until 31 December 2022; the contested decision states that, during the infringement period, Gazprom held half of the capital in Overgas and, until November 2012, half of the capital in WIEE. From November 2012, WIEE’s entire business was transferred to Gazprom (see footnotes 42 and 49 to the contested decision).
555    First, the upstream supply contracts were concluded for long periods, namely 15 years and 8 months for the contract with WIEE, 14 years and 9 months for the contract with Overgas, and 10 years for the contract with Gazprom. The first two contracts even envisaged a negotiation of their extension for a further 18 years, until 2030.
556    Second, the supply contracts with WIEE and Overgas, both applicable until 31 December 2012, contained a ‘destination’ clause, under which Bulgargaz undertook to ensure that the gas in question would be delivered and used only in Bulgaria. As is apparent from paragraph 7(a) of the public version of the Commitment Proposal of 15 March 2018 (Case AT.39816 – Upstream gas supplies in Central and Eastern Europe), published on 24 May 2018, Gazprom undertook, inter alia, to amend its contract with Bulgargaz of 15 November 2012 in order to, in essence, desist from obstructing the transmission of gas from Bulgaria to other Member States. That means that the territorial restriction, under those commitments, was still in the supply contract between Gazprom and Bulgargaz, as it stood at the time of the negotiations to grant access to Overgas in 2013.
557    Third, the upstream supply contracts with Gazprom imposed on Bulgargaz an obligation to ‘take or pay’. Under that obligation, Bulgargaz undertook to accept and pay for a minimum annual quantity of gas delivered by its co-contracting party and, if it did not agree to receive all of that minimum annual quantity, it nevertheless had to pay the difference between that minimum annual quantity and the quantity actually accepted, at a rate which varied according to the supply contracts of 70% to 100% of the contract price. The minimum annual quantity exceeded 75% of the contracted quantity.
558    The applicants also argue that, at least until the end of 2012, Gazprom’s pricing policy, as reflected at the time in the supply contracts with WIEE and Overgas, required Bulgargaz to pay one of the highest gas prices in Europe. From 2013, Gazprom granted it a discount of approximately 20% of the price of gas, which was, however, subject, inter alia, to an obligation on the Republic of Bulgaria to participate in the construction of the South Stream pipeline.
559    The applicants rightly state that, in the Gazprom case, the Commission considered that the conditions imposed by Gazprom and its subsidiaries Overgas and WIEE for the supply of gas on the Bulgarian market were capable of being anticompetitive.
560    In that regard, following the submission of the commitments in the Gazprom case, the Commission, in Decision C(2018) 3106 of 24 May 2018 relating to a proceeding under Article 102 [TFEU] and Article 54 of the EEA Agreement (Case AT.39816 – Upstream Gas Supplies in Central and Eastern Europe) (‘the Gazprom decision’), took the preliminary view that Gazprom’s conduct in respect of the conditions for the supply of gas in Bulgaria over a period covering at least partially the infringement period stated in the contested decision, was liable to constitute an abuse of Gazprom’s dominant position and to contribute to the isolation of the Bulgarian gas market, which was entirely dependent on Gazprom for its supply (see recitals 100, 101, 111, 141, 162, 167, 171 to 173 and 180 of the Gazprom decision).
561    In particular, the Commission took the preliminary view that:
–        Gazprom held a dominant position on the market for the upstream wholesale supply of gas in Bulgaria owing, in particular, to the fact that, between 2004 and 2013, it held a market share estimated to be between 80% and 100%, and held long-term contracts which, together with the ‘take or pay’ obligation which those contracts imposed, deprived competing gas suppliers of any opportunity to enter the market during the term of performance of those contracts (see recitals 34 to 36 of the Gazprom decision);
–        in its supply contracts, including the supply contract concluded with Bulgargaz, Gazprom had imposed territorial restrictions preventing Bulgargaz from reselling gas outside Bulgaria; those territorial restrictions were coupled with ‘take or pay’ obligations, which often matched national demand; Gazprom’s global strategy of partitioning the gas markets of central and eastern Europe had led to an almost complete lack of cross-border sales of gas; that strategy had also allowed Gazprom to impose, in Bulgaria, gas supply prices that were significantly higher than the competitive prices applied in eastern Europe and also liable to constitute an abuse of a dominant position (see recitals 32, 37 to 40, 42, 43, 53, 54, 62, 63, 69, 73 to 79 and 160 of the Gazprom decision) (judgment of 2 February 2022, Polskie Górnictwo Naftowe i Gazownictwo v Commission (Rejection of complaint), T‑399/19, EU:T:2022:44, paragraph 5);
–        those practices had, inter alia, prevented Bulgaria from using alternative sources of supply and from developing alternative gas infrastructures necessary for a diversified supply in the country (see recitals 99, 100, 168 and 169 of the Gazprom decision).
562    The Commission thus took the preliminary view that Gazprom’s practices, as a dominant undertaking on the market for the upstream wholesale supply of gas in Bulgaria, as referred to in paragraphs 560 and 561 above and reflected in long-term supply contracts, had reinforced Bulgaria’s dependence on the gas supplied by that operator and, therefore, on the Romanian Pipeline 1, which was the only available infrastructure for transporting that gas into that Member State.
563    In addition, according to the Commission, Gazprom’s supposed market power was illustrated in particular by the imposition on Bulgargaz of territorial restrictions and excessive prices in the successive supply contracts concluded with WIEE, Overgas and Gazprom, which were liable to constitute an abuse of a dominant position.
564    The fact that such practices by an undertaking in a dominant position are liable to infringe Article 102 TFEU necessarily means that Bulgargaz did not have sufficient countervailing buyer power to oppose such conduct by its supplier.
565    Moreover, the historical context set out in paragraphs 495 to 502 above explains that, even during the infringement period, Bulgargaz depended almost entirely on Gazprom and its subsidiaries Overgas and WIEE in order to be able to supply the Bulgarian gas market and, therefore, depended on access to the Romanian Pipeline 1, which had been the only route for the transportation of that gas into Bulgaria for several decades.
566    It is important to note in that regard that, in the contested decision, the Commission itself acknowledged that:
–        during the infringement period, domestic production of gas in Bulgaria, the bulk of which was indeed sold to Bulgargaz, represented negligible quantities; that domestic production represented only 2% of Bulgarian consumption in 2010 and reached 11% of Bulgarian consumption in 2012, before falling to 6.5% in 2014 (see recitals 47, 62 and 66 of that decision); the Commission concluded that Bulgaria was dependent on gas imports in order to satisfy its domestic demand (see recital 263 of the contested decision);
–        at least until April 2016, that is, more than one year after the end of the infringement period, the Romanian Pipeline 1 was the only viable route to transport gas to Bulgaria and supply most of the country’s regions (see recitals 51, 59, 73 and 295 of and footnotes 406 and 629 to that decision).
567    The contested decision thus confirms Bulgaria’s dual dependence, for its gas supply, on gas supplied by Gazprom and its subsidiaries Overgas and WIEE during the infringement period and, therefore, on access to the Romanian Pipeline 1, which was highlighted by the Bulgarian ministerial letter to underline the importance of Bulgargaz as a public supplier (see paragraph 534 above) which the applicants rely on in the context of the examination of their conduct during the renegotiation of the 2005 Agreement and, in particular, in the context of their second complaint, concerning the three conditions imposed on Transgaz before agreeing to return to it the capacity on the Romanian Pipeline 1.
568    The applicants submit that, when Bulgargaz took part in the discussions on the renegotiation of the 2005 Agreement, it acted in its capacity as a public supplier of last resort, entrusted with a service of general economic interest and, as such, obliged to ensure a gas supply for the whole of Bulgaria. Thus, the views which it expressed during those negotiations, and the conditions which, in the contested decision, the Commission accused it of imposing on Transgaz, mainly concerned the security of gas supply in that country. Consequently, Bulgargaz cannot be held responsible for those discussions.
569    In that regard, it is apparent from the relevant provisions of the Bulgarian Law on Energy and from the terms of Bulgargaz’s licence that, during the infringement period:
–        Bulgartransgaz was entrusted with a service of general interest requiring it to supply gas, without interruption, to the Bulgarian markets, including the wholesale market, and to final customers directly connected to the transmission network, at regulated prices, and that it was not allowed to refuse to supply except on grounds expressly provided for by law (see Article 51(2)(1) and Article 178b of the Bulgarian Law on Energy, paragraph 1(66b) of the supplementary provisions of that law, paragraph 3.1 of Bulgargaz’s licence and paragraph 322 above);
–        it was the operator holding the only licence for the public supply of gas in Bulgaria and, as such, was obliged to guarantee the uninterrupted supply of gas in Bulgaria (see Article 43(3) of the Bulgarian Law on Energy and Article 2.2 of Bulgargaz’s licence);
–        on that basis, Bulgargaz was under an obligation, upstream, to enter into contracts, with gas producers and traders, for the volumes of gas that were necessary to cover the consumption by the users directly connected to the transmission network and the agreed volumes to enable Bulgargaz to meet its obligations as a public supplier (see Article 2.5.1 of its licence);
–        it also had a downstream obligation to ensure an uninterrupted supply of high-quality gas in Bulgaria (see Articles 3.1.1 and 3.3.3 of its licence); in order to do so, it was required to maintain relations with the other energy companies enabling it to fulfil that obligation (see Article 3.1.1(b) of its licence); in particular, it was specifically requested to collaborate and maintain continuous relations with the gas transmission companies in order to be able to guarantee such an uninterrupted and high-quality supply to the users directly connected to the transmission network (see Articles 3.1.2 and 3.1.3 of its licence);
–        it did not have the power to refuse to conclude a gas supply contract with the users directly connected to the transmission network (see Article 3.4.3 of its licence);
–        it had to submit to the Bulgarian regulator, for approval, a business plan covering a minimum period of five years, detailing the conditions and measures to be taken to ensure an uninterrupted, efficient and high-quality supply of the required quantities of gas (see Article 3.6.1 and the first indent of Article 3.6.2 of its licence); once approved, the business plan formed part of the terms and conditions of Bulgargaz’s licence and was therefore binding on Bulgargaz (see Articles 3.6.5, 3.6.7 and 3.13 of its licence), which is also confirmed by the decision of the Bulgarian regulator;
–        lastly, Bulgargaz had to conduct its licensed activities in accordance with regulated prices previously approved by the Bulgarian regulator (see Article 3.9.1 of its licence), which is also confirmed by the decision of the Bulgarian regulator.
570    It is also important to note that the requirements imposed by Bulgargaz’s licence were binding on it (see Article 40(1) and Article 45(8) of the Bulgarian Law on Energy). In that regard, the Bulgarian regulator was required to withdraw Bulgargaz’s licence if it did not meet the obligations imposed by that licence (see Article 59(1)(2) of the Bulgarian Law on Energy) or its obligation to guarantee customers the reliability of the uninterrupted and high-quality supply of gas (see Article 59(1)(1), Article 69 and Article 70(1) and (2)(1) of the Bulgarian Law on Energy).
571    It follows from the above that Bulgargaz’s conduct on the market was significantly constrained by a set of obligations imposed on it by the Bulgarian public authority as a result of Bulgargaz’s status as the sole public supplier in Bulgaria.
572    In that regard, it must be observed that the ‘State action’ defence makes it possible to exclude anticompetitive conduct from the scope of Articles 101 and 102 TFEU and, therefore, to exempt undertakings from their liability for such conduct where that conduct is required of them by national legislation, by a legal framework created by that legislation or by irresistible pressure imposed by the national authorities (see judgment of 2 February 2022, Polskie Górnictwo Naftowe i Gazownictwo v Commission (Rejection of complaint), T‑399/19, EU:T:2022:44, paragraph 54 and the case-law cited).
573    Furthermore, Regulation No 994/2010, which was in force at the material time and invoked in the Bulgarian ministerial letter (see paragraph 551 above), contained, inter alia, the following provisions:
–        Article 3(1), under which security of gas supply was a shared responsibility of natural gas undertakings, Member States, notably through their competent authorities, and the Commission, which required a high degree of cooperation between them;
–        Article 5(1)(d), according to which the competent authorities of the Member States had to take preventive measures to ensure security of their supply in order to ‘maintain gas supply to all customers as far as possible’;
–        Article 6(1), according to which Member States had to ensure that the necessary measures were taken so that, by 3 December 2014 at the latest, in the event of a disruption of the single largest gas infrastructure, the capacity of the remaining infrastructure, determined according to the N-1 formula, would be able, in essence, to satisfy total gas demand during a day of exceptionally high demand occurring with a statistical probability of once in 20 years;
–        point 1 of Annex I, according to which the gas infrastructure referred to in Article 6 included the gas transmission network, including interconnectors as well as production, LNG and storage facilities.
574    According to the Bulgarian ministerial letter, in the event of disruption to the Romanian Pipeline 1, Bulgaria was not in a position to meet the requirements of Article 6 of Regulation No 994/2010 because of the weakness of alternative sources of gas supply, in particular the domestic production of Bulgarian gas. Similarly, alternative routes to the Romanian Pipeline 1 were not available because the interconnectors with the gas transmission networks of neighbouring countries were largely missing, and the gas storage capacities and daily withdrawal rates were insufficient (see paragraph 551 above).
575    Thus, for the Bulgarian authorities, the Romanian Pipeline 1, the only gas infrastructure enabling Russian gas to be transported to Bulgaria, was essential in order to ensure the public supply of gas. According to those authorities, the capacity of the remaining infrastructure, which consisted, in essence, of reverse flow from Greece, the increase in domestic gas production and the removal of the Chiren storage facility, would not be able to provide the required volume of gas to meet Bulgaria’s total demand for gas over a day of exceptionally high demand for gas. That was not only a practical requirement, but also a statutory requirement imposed by Article 6 of Regulation No 994/2010.
576    Therefore, for the Bulgarian authorities, security of gas supply in Bulgaria largely depended on Bulgargaz’s ability to meet its public supply obligations on the Bulgarian gas supply markets through, inter alia, sufficient access to the Romanian Pipeline 1 in order to transport, on that pipeline, the volumes of gas in respect of which a contract had been entered into upstream with Gazprom.
577    That dependency is explained by the fact that, on the one hand, Bulgargaz and, therefore, Bulgargaz’s customers on the Bulgarian gas supply markets were dependent on Gazprom to obtain gas and, on the other hand, the Romanian Pipeline 1 was the only route for transporting that gas to those markets.
578    As it was subject to the constraints of the statutory public supply obligations referred to in paragraph 322 above, Bulgargaz’s conduct was also significantly limited by the conditions imposed on it by the supply contracts concluded upstream with Gazprom over a long period, which the Commission had concluded, as a preliminary point, were, in essence, anticompetitive (see paragraph 562 above).
579    Thus, first, under the upstream supply contracts with Gazprom, Bulgargaz had had to undertake to receive almost all the quantities of gas contracted each year from those suppliers, even if the needs of its customers fell. Furthermore, if Bulgargaz refused to receive part of those quantities, it still had to pay almost all of the contractual price, pursuant to the ‘take or pay’ clause. At the same time, pursuant to the ‘destination’ clause stipulated in the supply contracts with Overgas and WIEE, Bulgargaz was prohibited from reselling, outside Bulgaria, the surplus gas which had been delivered to it.
580    Second, it is apparent from the Gazprom decision that the contractual price imposed on Bulgargaz in those supply contracts was likely to be excessively high and, as such, abusive.
581    Because of its status as a public supplier, Bulgargaz had to resell the gas purchased from Gazprom and its subsidiaries on the Bulgarian gas supply markets at a regulated price.
582    Thus, during the infringement period, Bulgargaz’s conduct was constrained by law as a result of its status as a public supplier. That status required it to ensure security of supply on the Bulgarian gas supply markets. In addition, Bulgargaz was directly exposed upstream, in order to guarantee that supply, to a dependency on Gazprom, which operated in particular through its subsidiary Overgas. That operator was, at the time, suspected by the Commission of having engaged in anticompetitive practices on the upstream supply market on which Bulgargaz had no alternative for obtaining its gas, since there were no options other than Gazprom.
583    It follows from the foregoing that, during the infringement period, the renegotiation of the 2005 Agreement with a view to terminating Bulgargaz’s exclusivity on the Romanian Pipeline 1 was directly linked to the issue of security of gas supply in Bulgaria. That issue arose not only from Bulgargaz’s responsibility as a public supplier entrusted with the obligation to supply its customers on the Bulgarian gas supply markets, but also from the Bulgarian State’s responsibility under Regulation No 994/2010.
584    It must also be noted that Annex IV to Regulation No 994/2010 encouraged regional cooperation, inter alia between Bulgaria, Greece and Romania, in order to enhance their individual and collective security of gas supply. The final paragraph of Annex IV emphasised the importance of that inter-State cooperation as regards isolated systems forming ‘gas islands’ for the development of, in particular, interconnections.
585    That inter-State cooperation was all the more important because, in the light of the preliminary assessment of Gazprom’s practices relating to the Bulgarian gas market in the Gazprom decision, Bulgaria was a gas market that was isolated from neighbouring markets.
586    The isolation of the Bulgarian gas market, which the Commission itself had noted in the Gazprom decision, explains why, even after the infringement period, Bulgaria’s security of gas supply remained a central concern of Bulgargaz’s in the discussions on the 2005 Agreement. That is shown by Bulgargaz’s letter of 2 February 2016, by which it proposed to Transgaz that they discuss the early termination of the 2005 Agreement, while also emphasising, in that letter, the need to take account of its requirements to ensure the security of gas supply to its customers.
587    It is in that context that it is necessary to analyse the second complaint, relating to the three conditions which Bulgargaz imposed on Transgaz during the renegotiation of the 2005 Agreement before it would agree to return to Transgaz the capacity on the Romanian Pipeline 1.
(i)    The first condition: the request for several documents
588    The applicants claim that ‘the Bulgarian side’ requested that, prior to the amendment of the 2005 Agreement, Transgaz should draw up a methodology for the establishment of the new transport tariff and a methodology for capacity allocation on the Romanian Pipeline 1 (together, ‘the methodologies’), on the basis of which Bulgargaz would be able to purchase capacity outside that agreement once the latter was terminated or amended. They rely, in that regard, on a letter which the Bulgarian regulator sent to the Romanian regulator on 16 January 2014. They consider that request to be all the more legitimate since, in the context of the infringement proceedings against Romania, the Commission specifically criticised that Member State for the lack of rules on that subject.
589    In the contested decision, the Commission criticised Bulgargaz for having required, on 6 February 2012, the provision of the methodologies, the operational agreement and the draft Capacity Allocation Agreement in order to agree to an amendment of the 2005 Agreement (see recital 297(e)).
590    In that regard, the draft memorandum of understanding stipulated that:
–        before amending the 2005 Agreement, the Romanian regulator was required, first of all, to draw up drafts detailing the methodologies; those drafts were then to be forwarded to Bulgargaz before they were published and also had to be subject to public consultation before being approved by the Romanian regulator (see point 2 of the draft memorandum of understanding);
–        the operational agreement and the Capacity Allocation Agreement for the interconnection at the exit point of the Romanian Pipeline 1 at the Romanian-Bulgarian border, Negru Vodă 1, had to be drawn up in accordance with the methodologies and procedures approved by the Romanian regulator (see point 3 of the draft memorandum of understanding);
–        Transgaz and Bulgargaz had to make all efforts to amend the 2005 Agreement before 25 February 2012 and to ensure that the amended agreement was compatible with EU law (see point 4 of the draft memorandum of understanding).
591    It is thus apparent from the draft memorandum of understanding that:
–        the discussions that were to be opened between Transgaz and Bulgargaz concerned the modification, and not the termination, of the 2005 Agreement and, therefore, the purpose was not to remove any capacity reservation on the Romanian Pipeline 1 for Bulgargaz;
–        once the contractual exclusivity granted to Bulgargaz under the 2005 Agreement was terminated, the capacity allocation mechanism and the new transport tariff applicable to the capacity of the Romanian Pipeline 1 offered by Transgaz on the primary market would be among the subjects of the renegotiation of that agreement; the same would be true of the draft operational agreement and the draft Capacity Allocation Agreement.
592    In its letter of 6 February 2012 to Transgaz, Bulgargaz first expressed its support for amending the 2005 Agreement and for that amendment to form the basis for their future cooperation for the transmission of gas through Romania to Bulgarian customers. However, it considered that the date that was proposed in the draft memorandum of understanding as regards the signing of that amendment, namely 25 February 2012, was unrealistic.
593    Furthermore, referring to the meeting of 11 January 2012 and to the terms of the draft memorandum of understanding, Bulgargaz requested the draft methodologies, which had to be approved by the Romanian regulator, as well as the draft operational agreement and the draft agreement for the allocation of that capacity, which had to be prepared in accordance with the methodologies thus approved.
594    It is therefore apparent from the letter of 6 February 2012 that Bulgargaz was merely requesting to be able to analyse, before signing any amendment to the 2005 Agreement, the documents detailing the capacity allocation mechanism that would be introduced by the Romanian regulator following any amendment of that agreement and which would govern how the capacity of the Romanian Pipeline 1 not covered by that amended agreement would be allocated, as well as the elements on the basis of which the purchase price for that capacity would be set.
595    The fact that an undertaking in a dominant position requests, in the early stages of a renegotiation of an existing contract, that it be provided with documents enabling it to understand precisely the consequences of that renegotiation is not an unreasonable request, since that undertaking cannot be deprived of the right to protect its own commercial interests if they are attacked, and it must be conceded the right to take such reasonable steps as it deems appropriate to protect its commercial interests (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 149 and the case-law cited).
596    In that regard, the applicants rightly state that, by committing themselves to the renegotiation of the 2005 Agreement, Bulgargaz and the Bulgarian governmental and regulatory authorities had no certainty as to its outcome. In fact, that agreement was ultimately not amended, but was terminated. Thus, the applicants explain that Bulgargaz needed to know the mechanism for purchasing capacity on the Romanian Pipeline 1 after the termination or amendment of the 2005 Agreement, a capacity which would not, or no longer, be covered by that agreement.
597    Indeed, in the event of termination of the 2005 Agreement, only the rules laid down in the methodologies were intended to govern the way in which Bulgargaz and the other potential users of the Romanian Pipeline 1 could obtain capacity on that pipeline. In addition, in the event – which is not applicable in the present case – that the 2005 Agreement was simply amended and that a reserved capacity was maintained for its benefit, it could not be ruled out that Bulgargaz might be obliged to request additional capacity on the primary market, under those methodologies, if the contractually reserved capacity had been insufficient to meet its public supply obligations imposed on it by its licence.
598    In those circumstances, it was legitimate for Bulgargaz to inquire into the conditions and tariff according to which the capacity offered on the primary market would be allocated by Transgaz, by requesting, on the one hand, the methodologies and, on the other, the draft operational agreement and the draft Capacity Allocation Agreement which had to be prepared on the basis of those methodologies and which were intended to govern the relationship between Transgaz and the users of the Romanian Pipeline 1.
599    The applicants’ request was, in the present case, all the more reasonable given that Bulgargaz was subject to a public supply obligation on the Bulgarian gas supply markets and, as such, bore a heavy responsibility for the security of gas supply on those markets, thereby reducing its margin of manoeuvre on the market.
600    The renegotiation of the 2005 Agreement concerned the calling into question of the extent of Bulgargaz’s access to the Romanian Pipeline 1, when that access directly influenced Bulgargaz’s ability to assume its public supply obligations and, therefore, the security of supply on the Bulgarian gas supply markets.
601    Bulgargaz was almost entirely dependent, upstream, on a single gas supplier, namely Gazprom and its subsidiaries Overgas and WIEE, as pointed out inter alia by the Bulgarian regulator in its letter of 16 January 2014 to the Romanian regulator. The Romanian Pipeline 1 was the only transit infrastructure capable of transporting that gas to Bulgaria.
602    Furthermore, the Commission itself suspected Gazprom of imposing abusive conditions of supply on Bulgargaz, which justified Gazprom’s commitments, from 2018, to amend those conditions (see the analysis of the first complaint of the eighth part above). As a result, the security of gas supply in Bulgaria was, during the infringement period, as the Commission found in the Gazprom decision, threatened by the isolation of the Bulgarian gas supply markets from the neighbouring gas markets and by Gazprom’s practices.
603    Therefore, in accordance with the case-law cited in paragraph 595 above, the Commission could not validly criticise the applicants for having requested information and documents that were essential for Bulgargaz to be able to participate in the renegotiation of the 2005 Agreement in full knowledge of the conditions applicable to the allocation and to the tariff of the capacity offered on the primary market, once the Romanian regulator had adopted the relevant rules in that regard, in compliance with EU law.
604    Moreover, the issue of the transport tariff, in particular, was likely to be sensitive for Bulgargaz. During the infringement period, it had to pay a high supply price to Gazprom (see paragraph 561 above) and, under Article 7 of the 2005 Agreement, a fixed fee of EUR [10-15] million per year for use of the Romanian Pipeline 1, which was a fee that did not depend on the volume of capacity used on that pipeline. It is apparent from the file that the amount of that fee was also sufficiently substantial for Transgaz to concede, in its letter to Bulgargaz of 28 October 2013, that it had no economic interest in bringing the 2005 Agreement to an end. However, as a result of its public supply obligations, Bulgargaz could resell that gas to its Bulgarian customers only at a regulated price (see recital 42 of the contested decision) which, according to the applicants, was set at one of the lowest levels in Europe, which the Commission does not dispute. In addition, the territorial restrictions imposed by Gazprom, which, according to the Commission, were liable to be abusive, also prevented Bulgargaz from selling gas on markets outside Bulgaria.
605    The draft memorandum of understanding also shows that the Romanian party was perfectly aware of the sensitive nature of the situation of the Bulgarian gas supply markets. That document states that, in the context of the infringement proceedings against Romania, that Member State had already attempted, before 26 January 2012, but unsuccessfully, to obtain, inter alia, an exemption from the Commission in order to maintain Bulgargaz’s exclusive use of the Romanian Pipeline 1.
606    Lastly, it is not apparent from the contested decision that the Commission required the termination of the 2005 Agreement. Nor do the documents in the file show that the Commission had such a requirement in the infringement proceedings against Romania. It should also be noted that those proceedings were closed by the Commission on 26 February 2015, when, on that date, the 2005 Agreement was still in force. Thus, by not insisting that the 2005 Agreement be terminated, the Commission acknowledged the sensitive nature of the situation of the Bulgarian gas supply markets. It also confirmed as much in the contested decision, first, by pointing out that, during the infringement period, the BEH Group operated in an isolated market, since, in order to guarantee its gas supply, Bulgaria depended almost exclusively on imports from Gazprom (see recital 698 of that decision) and, second, by setting the end of the infringement period as being before the termination of the 2005 Agreement.
607    The first argument, to the effect that the Commission could not criticise the applicants for having requested that the methodologies, the draft operational agreement and the draft Capacity Allocation Agreement be provided during the renegotiation of the 2005 Agreement, is, therefore, well founded.
(ii) The second condition: the proposal for the guarantee of a minimum capacity on the Romanian Pipeline 1, for Bulgargaz, of [3-4] billion cubic metres per year
608    The applicants consider that the proposal for the guarantee of a minimum capacity on the Romanian Pipeline 1 for Bulgargaz was justified in order to guarantee security of gas supply in Bulgaria and to enable it to meet its statutory obligations in that regard, as a public supplier entrusted with a service of general economic interest.
609    In the contested decision, the Commission criticised Bulgargaz for having requested Transgaz, on 10 October 2012, to guarantee Bulgargaz, until the end of 2016, a capacity of [3-4] billion cubic metres per year, which represented approximately [confidential] of the total capacity of that pipeline, before agreeing to return capacity to Transgaz (see recital 297(h) of the contested decision).
610    In that regard, first, it should be noted that the proposal for the guarantee of a minimum capacity for Bulgargaz would have led to the removal of its exclusivity on the Romanian Pipeline 1, which the Commission considered to be anticompetitive (see recital 542 of the contested decision), by releasing approximately half of the total capacity of that pipeline.
611    Second, it should be noted that Transgaz did not oppose the proposal for the guarantee of a minimum capacity and even undertook to submit that proposal to the Commission for approval, since such prior approval was necessary in order to derogate from the obligation, imposed by the applicable regulatory framework on Transgaz, to auction the entire capacity of the Romanian Pipeline 1.
612    Moreover, the file shows that Transgaz had an interest in agreeing to the proposal for the guarantee of a minimum capacity for Bulgargaz. In its letter of 28 October 2013, Transgaz stated that the arguments capable of justifying that proposal, which it was planning to submit to the Commission, could be put forward only by the Bulgarian party, in order to avoid the Commission perceiving Transgaz as being ‘biased’ because of the economic interest which it would derive from maintaining the 2005 Agreement as it stood.
613    Third, the guaranteed capacity requested by Bulgargaz, equivalent to [11-12] million cubic metres per day, corresponded to the capacity used by Bulgargaz during daily peaks. During the period 2007 to 2016, use of the Romanian Pipeline 1, during daily peaks, ranged from [10-20] to [10-20] million cubic metres (see footnote 372 to the contested decision).
614    In addition, the applicants submit, without being challenged by the Commission, that the requested guaranteed capacity corresponded to the forecasts of the needs of Bulgargaz’s customers for 2013 which, by law, it was required to satisfy as a public supplier.
615    As is apparent from the Bulgarian ministerial letter, it was the Bulgarian authorities that justified the legitimacy of the proposal for the guarantee of a minimum capacity in the light of, first, security of gas supply in Bulgaria, which was at risk at the time due to the isolation of the Bulgarian gas market and due to Gazprom’s practices, second, Bulgargaz’s public supply obligations to guarantee that security of supply and, third, Bulgargaz’s dependence on the Romanian Pipeline 1 in order to enable it to meet those obligations (see paragraph 534 above). That is confirmed by the letter which the Bulgarian regulator sent to the Romanian regulator on 16 January 2014.
616    Against this background, first, it was legitimate, in the context of the renegotiation of the 2005 Agreement which was to lead to a reduction in the extent of Bulgargaz’s access to the Romanian Pipeline 1, for Bulgargaz to seek to protect its commercial interests and to take such reasonable steps as it deemed appropriate to protect its commercial interests (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 149 and the case-law cited). Second, since it was bound by public supply obligations under Bulgarian law, Bulgargaz was also obliged to continue to assume its public supply obligations, which allowed it to obtain reserved capacity on that pipeline corresponding to the forecasts of the needs of the customers which it was required to supply. The ‘State action’ defence specifically makes it possible to exclude anticompetitive conduct from the scope of Articles 101 and 102 TFEU where that conduct is required by national legislation, by a legal framework created by that legislation or by irresistible pressure imposed by the national authorities (see, to that effect, judgment of 2 February 2022, Polskie Górnictwo Naftowe i Gazownictwo v Commission (Rejection of complaint), T‑399/19, EU:T:2022:44, paragraph 54 and the case-law cited).
617    In that regard, it is also important to point out that the discussions on the request for the guarantee of a minimum capacity in the context of the renegotiation of the 2005 Agreement did not prevent Bulgargaz from terminating, at the same time, its exclusive use of the Romanian Pipeline 1, in practice, by granting Overgas satisfactory access from 1 January 2013, when the 2005 Agreement granting Bulgargaz that exclusivity remained in force, with the result that, as follows from the analysis of the fifth part of this ‘sub-plea’, there was no refusal of access capable of falling within the scope of Article 102 TFEU in that regard.
618    The second argument is therefore well founded.
(iii) The third condition: the applicants’ request to amend the price fixed under the 2005 Agreement in order to reflect the lower level of Bulgargaz’s use of the capacity of the Romanian Pipeline 1
619    The applicants consider that it was legitimate for them to request that the fixed annual fee stipulated in the 2005 Agreement be amended in order to reflect the reduced capacity level that would be available to Bulgargaz on the Romanian Pipeline 1.
620    In the contested decision, the Commission criticised the applicants for Bulgargaz’s failure to notify Transgaz of its readiness to release the unused capacity on the Romanian Pipeline 1 following the meeting of 10 October 2012 (see recital 297(h)) and for the fact that, by its letter of 14 December 2013, Bulgargaz made the release of the unused capacity subject to a reduction of the fixed annual fee stipulated in the 2005 Agreement (see recital 297(k)).
621    In that regard, it is apparent from the minutes of the meeting between Bulgargaz and Transgaz of 10 October 2012 that, on that occasion, Bulgargaz undertook to notify Transgaz of its agreement to the trading of the capacity of the Romanian Pipeline 1 above the capacity of [3-4] billion cubic metres per year, which it was requesting to be reserved.
622    Bulgargaz expressly informed Transgaz of its agreement in that regard in its letter of 14 December 2013. However, the Commission rightly states that that agreement was subject to the amendment of the fixed annual fee stipulated in the 2005 Agreement.
623    In order to be able to accept Bulgargaz’s proposal to offer to the market only the capacity that Bulgargaz did not use, and not the total capacity of the Romanian Pipeline 1, Transgaz had to obtain prior authorisation from the Commission, which it did not request until after January 2014. In addition, the amount of the fixed annual fee stipulated in the 2005 Agreement had been agreed in return for exclusive use of the Romanian Pipeline 1.
624    It follows that if Bulgargaz had, immediately after the meeting of 10 October 2012, notified Transgaz that it agreed to release the unused capacity on the Romanian Pipeline 1, it would have consented to a substantive amendment of the 2005 Agreement without being satisfied that its proposal for the guarantee of a minimum capacity would be approved. Thus, it would have been obliged, in particular, to continue paying Transgaz the fixed annual fee that was the consideration for the exclusive access to the capacity of that pipeline, while having waived that exclusivity.
625    The fact that it requested, in return for giving up exclusive use of the Romanian Pipeline 1, an adjustment of the established fixed annual fee in order to reflect the loss of that exclusivity is not, in itself, open to criticism. Even as an undertaking in a dominant position, Bulgargaz retained the right to take reasonable steps to protect its own commercial interests, which, in the present case, were under attack, under the case-law cited in paragraph 547 above.
626    Furthermore, the Court of Justice has already held that the amount of remuneration for a service provided on the basis of exclusivity may include the payment of a premium on that basis (see, to that effect, judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 114), with the result that Bulgargaz cannot be criticised for having required that the withdrawal of its exclusivity entail, in return, a reduction of the fixed annual fee.
627    In that regard, account should also be taken of the fact that:
–        first, Bulgargaz was subject to the binding requirements of its licence as a public supplier requiring it to ensure that it always had sufficient volumes of gas available for the Bulgarian gas supply markets without interruption;
–        second, in order to do so, it was dependent on access to the Romanian Pipeline 1;
–        third, it paid, upstream, one of the highest prices to Gazprom, on which it also depended, in order to obtain its gas supplies;
–        fourth, downstream, the prices that Bulgargaz charged, as a public supplier, were regulated (see paragraph 604 above).
628    Thus, the price for use of the Romanian Pipeline 1 was of particular importance for Bulgargaz, especially when it is apparent from the file that, during the infringement period, it suffered a loss of EUR [60-80] million on its gas sales.
629    Moreover, the elements in the file that are subsequent to the end of the infringement period show that Transgaz’s economic interest in maintaining the fixed annual fee continued well beyond Bulgargaz’s agreement to give up the exclusive use of the pipeline which was the consideration for that fee. It is apparent from those elements that, from 1 December 2015, Bulgargaz proposed to Transgaz that Article 17.1 of the 2005 Agreement containing the exclusivity clause be amended, and also that the amount of the fixed annual fee stipulated in Article 7 of that agreement be amended, but Transgaz did not respond to that proposal. Subsequently, starting from a meeting of 29 March 2016, Bulgargaz proposed that the 2005 Agreement be terminated early or that Article 17.1 be deleted immediately. In a letter of 4 April 2016 to Transgaz, Bulgargaz reiterated its proposal that Article 17.1 of the 2005 Agreement be deleted, without requiring, in return, that the price be adjusted.
630    However, in a letter of 12 April 2016, Transgaz postponed the proposal to remove the exclusivity granted by the 2005 Agreement, explaining that it did not yet have the technical possibility of offering the capacity of the Romanian Pipeline 1 at auction. It suggested, however, that the 2005 Agreement be terminated on 30 September 2016, in the hope that it would be ready to start auctions on that date.
631    It can be inferred from those exchanges that Transgaz had an interest in Bulgargaz continuing to pay the fixed annual fee for such time as Transgaz could not offer the capacity of the Romanian Pipeline 1 to the market through an auction process. Transgaz therefore had no interest in reducing that fee in proportion to the capacity of [3-4] billion cubic metres per year which Bulgargaz was proposing to reserve on that pipeline, for such time as Transgaz could not offset the loss of the part of the fee by sales at a capacity auction.
632    Accordingly, the Commission cannot criticise Bulgargaz for having sought to ensure a reduction of the fee that it was paying under the exclusivity clause in the 2005 Agreement before notifying its agreement to release unused capacity on the Romanian Pipeline 1.
633    The Commission submits, however, that Transgaz had provided the methodology for the establishment of the transport tariff as early as 29 March 2012 and that, therefore, there was no reason why Bulgargaz should continue to refuse to release unused capacity on the Romanian Pipeline 1 at that stage.
634    It is apparent from the draft memorandum of understanding that the tariff for access to the capacity of the pipeline was essential information during the negotiation of the 2005 Agreement because it influenced the market for capacity services on the Romanian Pipeline 1 following the publication, by the Romanian regulator, of the regulatory framework for the allocation of that capacity at auction.
635    In that regard, the capacity allocation methodology provided, in Article 3, that the Romanian regulator had to approve the ‘tender opening tariff’ set by Transgaz. Under the capacity allocation methodology, it was on the basis of that opening tariff that applicants’ bids for access to the capacity of the Romanian Pipeline 1 had to be drawn up and submitted as part of the process of putting that capacity up for auction, on the basis of which Transgaz had to allocate that capacity to different applicants. According to Article 6(3) and Article 7(d) of the capacity allocation methodology, no offer lower than that opening tariff could be accepted.
636    However, there is nothing in the file to explain how the new transport tariff and, in particular, the different tariff levels and the number of those tariff levels, referred to in Article 7 of the capacity allocation methodology, would be set.
637    The new price that Bulgargaz wished to negotiate concerned a volume of capacity on the Romanian Pipeline 1 that would be reserved for it under the revised 2005 Agreement and which, logically, was to fall outside the abovementioned auction mechanism and therefore, potentially, outside the tariff approved by the Romanian regulator.
638    Moreover, in its letter of 14 December 2013, Bulgargaz insisted that the release of the unused capacity for the benefit of third parties, and the amendment of Article 17.1 of the 2005 Agreement to that effect, be accompanied by a ‘modification of the transit service price, in compliance with [the 2005 Agreement] in force’, and Transgaz agreed to forward that proposal to the Commission for prior approval.
639    It is thus clear from the context of the exchanges between Transgaz and Bulgargaz that the parties were necessarily referring to a renegotiation of the fixed annual fee established by the 2005 Agreement, which had no connection with the new transport tariff established by the Romanian regulator.
640    Nevertheless, that tariff was also an essential piece of information for Bulgargaz in order to lay down the conditions under which the released capacity of the Romanian Pipeline 1, following the amendment of the 2005 Agreement, would be offered on the primary market. Due to its public supply obligations, Bulgargaz could potentially have been forced to request access to that capacity in accordance with the detailed rules laid down by the Romanian regulator.
641    Although, in its response of 13 January 2014 to the letter of 14 December 2013, Transgaz stated that EU law and the orders published by the Romanian regulator in 2012 required that all the capacity on the Romanian Pipeline 1 be offered to the market and allocated in a transparent manner, through an auction system, it nevertheless agreed, in view of the circumstances associated with the security of gas supply in Bulgaria and in view of the close cooperation between the Republic of Bulgaria and Romania, to submit to the Commission, for approval, Bulgargaz’s proposal to be reserved a volume of capacity on the Romanian Pipeline 1.
642    Furthermore, it should be noted, in that context, that, despite the statement, in Transgaz’s letter of 13 January 2014, that all the capacity on the Romanian Pipeline 1 had to be offered to the market and allocated in a transparent manner, through a system of sale by auction, according to the order of the Romanian regulator published on 11 July 2012, only the ‘available’ capacity on that pipeline had to be auctioned, which is a contextual indication of the fact that even the Romanian regulator provided for the possibility of a derogation from EU law.
643    The third argument, based on the legitimacy of Bulgargaz’s request to amend the price stipulated in the 2005 Agreement in return for giving up the exclusivity, is therefore well founded.
(iv) Conclusion on the second complaint
644    It follows from the foregoing analysis that the conditions which Bulgargaz imposed during the renegotiation of the 2005 Agreement, before accepting the amendment of that agreement, did not constitute an infringement of Article 102 TFEU but, rather, reasonable measures aimed at protecting its commercial interests, which were threatened in two respects.
645    First, the renegotiation of the 2005 Agreement placed Bulgargaz at risk of no longer having sufficient capacity available on the Romanian Pipeline 1 to be able to continue to assume its public supply obligations under Bulgarian law and, therefore, the security of gas supply in Bulgaria. It was therefore legitimate and reasonable for it to attempt to negotiate the maintenance of a guarantee of a minimum capacity reflecting its needs as a public supplier, failing which it might lose its licence as a public supplier.
646    Second, the renegotiation of the 2005 Agreement was capable of disrupting the financial balance of that agreement and, therefore, Bulgargaz’s access to the Romanian Pipeline 1. Bulgargaz risked having to continue paying Transgaz a fixed annual fee no longer corresponding to the conditions of use of the Romanian Pipeline 1 for which that fee had initially been set, since Bulgargaz was being called upon to lose the exclusive use of that pipeline that had justified the substantial amount of that fee stipulated in the 2005 Agreement. In view of the excessive price that Bulgargaz had to pay upstream to Gazprom in order to obtain gas, and in view of the regulated prices at which it supplied its downstream customers, those upstream and downstream prices therefore not being under its control, the downward renegotiation of that fee had a direct influence on its ability to compete with new entrants such as Overgas, who were not subject to such tariff constraints, on the Bulgarian gas supply markets.
647    Moreover, it should be noted that the discussions on the renegotiation of the 2005 Agreement did not prevent Bulgargaz from granting satisfactory access to the Romanian Pipeline 1 once it received a request to that effect from Overgas, from 1 January 2013 (see fifth part above).
648    The Commission was therefore wrong to rely on the conditions which Bulgargaz imposed, during the renegotiation of the 2005 Agreement and before it would accept an amendment of that agreement, in order to attribute to Bulgargaz a refusal to supply.
649    The second complaint must therefore be upheld.
(3)    The third complaint, arguing that the applicants are not responsible for the length of the negotiations
650    The applicants submit, in essence, that the length of the renegotiation of the 2005 Agreement is not attributable to Bulgargaz. It is the Romanian party which is responsible for it, inter alia, because, during the renegotiation of that agreement, that party was responsible for submitting to the Commission the proposal for the guarantee of a reserved minimum capacity.
651    The Commission disputes this complaint.
652    In that regard, it should be noted that the length of the renegotiation of the 2005 Agreement constitutes evidence relied on by the Commission to demonstrate the existence of the anticompetitive strategy which it found to have been adopted by the applicants (see recital 397, recital 454(b) and recitals 467, 548, 563 and 575 of the contested decision). Moreover, those negotiations lasted one and a half years after the end of the infringement period, until June 2016, when the two parties to the 2005 Agreement agreed to terminate that agreement with effect from 30 September 2016, that is to say, one year and nine months after the end of the infringement period.
653    It follows from paragraphs 513 to 527 above and from recital 297 of the contested decision that, during the discussions on the renegotiation of the 2005 Agreement during the infringement period, there were three long periods during which the applicants did not have exchanges or meetings with Transgaz:
–        the first, of more than six months, between 29 March and 10 October 2012;
–        the second, of more than one year, between 11 October 2012 and 28 October 2013;
–        the third, of almost one year, between 13 January 2014 and 1 January 2015.
(i)    The first period
654    The first period, during which it is not apparent from the file that there were meetings or exchanges of correspondence between the applicants and Transgaz, ran from 29 March to 10 October 2012.
655    As briefly mentioned in recital 297(f) of the contested decision, by the letter sent to Bulgargaz on 29 March 2012, Transgaz:
–        forwarded the draft capacity allocation mechanism (which was agreed in the draft memorandum of understanding, as described in paragraph 518 above); it stated that that draft had been published on the Romanian regulator’s website and that it was open to a public consultation which ended on 30 March 2012, while inviting Bulgargaz to submit its comments on that draft directly to that regulator;
–        indicated that the operational agreement had already been sent to Bulgargaz, without specifying when;
–        stated that the capacity allocation agreement would be prepared only after the Romanian regulator and the Bulgarian regulator had approved their respective allocation mechanisms;
–        indicated that the methodology for the new transmission tariff was based on the study entitled ‘Gas Transmission Tariffs. An ERGEG Benchmarking Report (C06-CWG-31-05)’, without however indicating that that methodology had been communicated to Bulgargaz.
656    It is apparent from the file that, subsequently, there were several developments, precisely in the light of the steps already mentioned in the letter of 29 March 2012. Thus:
–        the decision of the President of the Romanian regulator No 1732/09.07.2012 on the tariff for the transit service provided by Transgaz through the Romanian Pipeline 1 was published on the Romanian regulator’s website on 9 July 2012;
–        the capacity allocation methodology was published on 11 July 2012 in the Monitorul Oficial al României, part I, No 472 of 11 July 2012;
–        both documents were sent to Bulgargaz and Bulgartransgaz.
657    It is true that the subsequent development, during the negotiations between the parties, took place only at a meeting on 10 October 2012. However, there is nothing in the file to support the conclusion that that lapse in time was attributable to the applicants’ conduct or that, during that period, Transgaz sought to advance discussions on the renegotiation of the 2005 Agreement.
(ii) The second period
658    The second period showing a lack of contact between the applicants and Transgaz ran between 11 October 2012 and 28 October 2013.
659    The minutes of the meeting of 10 October 2012 between Bulgargaz and Transgaz stated, as referred to in recital 297(h) of the contested decision, that Bulgargaz would notify Transgaz, if possible before 15 November 2012, that it was prepared to release capacity on the Romanian Pipeline 1 beyond the guaranteed minimum capacity.
660    It is then apparent from the minutes of the meeting between the Bulgarian and Romanian authorities of 30 October 2012 that Bulgargaz’s release of the remaining available capacity on the Romanian Pipeline 1 would be in return for the guarantee of a minimum capacity of [3-4] billion cubic metres of gas per year.
661    Bulgargaz’s abovementioned proposal of 10 October 2012 could not be accepted without the Commission’s prior authorisation and the material in the file shows that it was only one year later, at a meeting which took place at the beginning of October 2013, that Transgaz informed Bulgargaz that it wished to discuss that proposal with the Commission.
662    Nothing in the file makes it possible to understand the reason for the interruption of activity between 11 October 2012 and 28 October 2013 and, in particular, why Transgaz took more than one year to inform Bulgargaz that it was ready to discuss with the Commission the proposal for the guarantee of a minimum capacity, let alone to attribute to the applicants responsibility for such a delay in acting, especially since Transgaz had, on 28 October 2013, stated its economic interest in maintaining the 2005 Agreement as it stood (see paragraph 612 above).
663    Furthermore, by a letter of 14 December 2013, Bulgargaz notified Transgaz of its agreement to release the capacity on the Romanian Pipeline 1 beyond [3-4] billion cubic metres per year. In its response, by letter of 13 January 2014, Transgaz informed Bulgargaz that it ‘fully appreciate[d] [its] support to solve this matter in a timely manner’.
664    Thus, the material in the file also does not establish that the applicants were responsible for the second period of lack of contact with Transgaz.
(iii) The third period
665    The third period of interruption of the discussions on the renegotiation of the 2005 Agreement ran from 13 January 2014 to 1 January 2015, the date of the end of the infringement period.
666    Transgaz and the Romanian Government had undertaken, at the meeting which took place at the beginning of October 2013, referred to in paragraph 661 above, to discuss with the Commission the proposal for the guarantee of a minimum capacity submitted by Bulgargaz on 10 October 2012 and then the proposal giving effect to that proposition, sent by letter of 14 December 2013, which also referred to the renegotiation of the fixed annual fee.
667    Subsequently, by the letter of 13 January 2014 referred to in paragraph 537 above, Transgaz informed Bulgargaz that it deemed it appropriate to await the Commission’s response on the proposal for the guarantee of a minimum capacity before starting discussions on the amendment of the 2005 Agreement. It follows that it was at Transgaz’s request that the negotiations on that agreement were suspended from 13 January 2014, which supports the applicants’ argument that the length of the negotiations was due to the time taken by Romania to submit to the Commission, for prior approval, the proposal regarding the amendment of that agreement.
668    In a letter of 1 December 2015 to Transgaz, that is, almost one year after the end of the infringement period, Bulgargaz stated that, as of that date, Transgaz had still not informed it of any response from the Commission on the proposed amendment of the 2005 Agreement, which Transgaz had first undertaken to submit to the Commission for approval, almost two years earlier, in October 2013 (see paragraph 661 above).
669    Thus, the material in the file does not establish that the applicants were responsible for the third period of inactivity or, therefore, for the length of the discussions relating to the renegotiation of the 2005 Agreement during the infringement period.
670    That conclusion is, moreover, supported by the other exchanges that took place between the applicants and Transgaz after that period.
671    First of all, the applicants indicated, without being contradicted by the Commission, that, in a letter of 20 November 2015, BEH urged Bulgargaz to take all the necessary steps to conclude an agreement with Transgaz that took into account the Commission’s position in the infringement proceedings against Romania.
672    The applicants stated that Bulgargaz, in its response of 7 December 2015, had informed BEH that, to that end, it had already offered Transgaz, in 2013, first, to take over the unused capacity of the Romanian Pipeline 1 and, second, to amend the 2005 Agreement.
673    It is apparent from the file that, in its letter of 1 December 2015, Bulgargaz renewed its offer to Transgaz to remove the exclusivity clause, while stating that it was prepared to renegotiate the 2005 Agreement (see recital 297(n) of the contested decision). It closed its letter, first, by reiterating its proposal to discuss the conditions for amending Article 17.1 of the 2005 Agreement and to discuss the ‘optimisation of the transmission service price’ for gas under that agreement and, second, by repeating that it was prepared to sign an addendum to that agreement on that basis.
674    Furthermore, Bulgargaz’s letter of 1 December 2015 establishes that, over the two years following the last intergovernmental exchanges, in the form of the ministerial letter of 13 January 2014 from the Bulgarian side, the renegotiation of the 2005 Agreement remained exclusively in the hands of the Romanian party, which had undertaken to seek the Commission’s approval to amend the 2005 Agreement according to Bulgargaz’s proposal to give up its exclusivity over the capacity of the Romanian Pipeline 1 and to reserve only a proportion of that capacity corresponding to the stated needs of its customers, and, in return, to renegotiate the fixed annual fee as well.
675    Despite the Bulgarian steps from at least 1 December 2015 to speed up the end of the negotiations, the 2005 Agreement was terminated only one year and nine months after the end of the infringement period, namely on 30 September 2016, in accordance with the addendum which Bulgargaz and Transgaz had signed on 24 June 2016 (see recital 297(s) of the contested decision).
676    On 20 January 2016, Transgaz replied to Bulgargaz’s letter of 1 December 2015 to inform it that the Commission had ultimately rejected the abovementioned proposal. Transgaz therefore indicated its intention to allocate the capacity of the Romanian Pipeline 1 for the 2016/2017 gas year through an auction system, in accordance with Regulation No 984/2013, and, in order to do so, proposed that the 2005 Agreement be terminated with effect from 30 September 2016 so as thus to be able to organise the annual auctions as early as July 2016.
677    It was therefore more than one year after the end of the infringement period that the applicants were informed that the renegotiation of the 2005 Agreement was to continue on the basis of new proposals in relation to those discussed up until that point.
678    In response to Transgaz’s letter of 20 January 2016, referred to in paragraph 676 above, informing Bulgargaz of the Commission’s rejection of the proposal for the amendment of the 2005 Agreement, Bulgargaz, on 2 February 2016, proposed to Transgaz that a meeting be held in March 2016 to discuss the proposal for early termination of the 2005 Agreement and the need to take into account its requirements for ensuring security of gas supply to its customers. That correspondence therefore shows that, even after the end of the infringement period, and therefore after the date on which the Commission considered that Bulgargaz had granted, inter alia, satisfactory access to the Romanian Pipeline 1 for third parties, the applicants’ concern about security of supply on the Bulgarian gas supply markets remained at the heart of the negotiations on the 2005 Agreement and that Bulgargaz’s attitude on that subject had not changed.
679    Despite that fact, at the meeting held on 29 March 2016, Bulgargaz confirmed its proposal to terminate the 2005 Agreement early or, alternatively, to delete Article 17.1 of that agreement immediately. It also provided Transgaz with an addendum reflecting that second proposal. Transgaz rejected the second proposal, on the ground that it did not yet have the technical possibility of offering the unused capacity of the Romanian Pipeline 1 to the market.
680    Nevertheless, Bulgargaz reiterated, in a letter of 4 April 2016 to Transgaz, its proposal to delete Article 17.1 of the 2005 Agreement, without requiring a price adjustment in return, and again submitted the draft amendment referred to in paragraph 679 above, which had already been discussed at the meeting of 29 March 2016. Bulgargaz also proposed, if Transgaz were to refuse to sign that amendment, that that provision no longer be applied so as to allow Transgaz freely to provide the available capacity of the Romanian Pipeline 1 to third parties.
681    However, Transgaz postponed Bulgargaz’s proposal for a second time, by letter of 11 April 2016. After conceding that that proposal was ‘genero[u]s’ and ‘eliminat[ed] the contractual barrier for ensuring third-party access on the [Romanian Pipeline 1]’, Transgaz reiterated that it was not yet ready to offer the unused capacity of that pipeline to third parties, in the absence of the necessary measures to comply with the applicable regulatory framework. It therefore insisted on the proposal which it had already made on 20 January 2016, namely the early termination of the 2005 Agreement with effect from 30 September 2016, and, on this occasion, on that basis, provided a draft addendum to that agreement. Transgaz stated that Bulgargaz would have the possibility of reserving its capacity at an auction, emphasising that that solution would allow full compliance with the EU regulatory framework, from 1 October 2016.
682    Between May and June 2016, the parties to the 2005 Agreement finalised the draft addendum and signed it on 24 June 2016. In that addendum, they consented to that agreement ending on 30 September 2016, provided, in essence, that, on that date, Transgaz was in a position to implement a transparent mechanism for auctioning the capacity of the Romanian Pipeline 1 in accordance with the EU regulatory framework.
683    The elements referred to in paragraphs 676 to 682 above thus show the applicants’ eagerness to terminate the 2005 Agreement as soon as Transgaz informed them that the Commission had rejected their proposal to amend it, by having part of the capacity of the Romanian Pipeline 1 reserved to them and by ‘optimising’ the amount of the fixed annual fee.
684    Those elements also reveal, by contrast, Transgaz’s procrastination before agreeing to terminate Bulgargaz’s exclusivity, stipulated in the 2005 Agreement, as well as the fact that the negotiations between the Romanian and Bulgarian parties may have been extended by the discussions which the Romanian party was having, at the same time, with the Commission in the context of the infringement proceedings against Romania. Those elements also emphasise Transgaz’s lack of preparation to be able itself to allocate the capacity of the Romanian Pipeline 1 to third parties, in compliance with the applicable regulatory framework, even one and a half years after the end of the infringement period.
(iv) Conclusion on the third complaint
685    It follows that, as the applicants claim, there is nothing in the file to establish that the periods of inactivity and, therefore, the length of the renegotiation of the 2005 Agreement are attributable to Bulgargaz.
686    In any event, even if there were doubts as to the applicants’ responsibility for the duration of the renegotiation of the 2005 Agreement, they must be given the benefit of that doubt since the presumption of innocence is a general principle of EU law laid down in Article 48(1) of the Charter of Fundamental Rights, which applies to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments. Therefore, where the Court still has a doubt, the benefit of that doubt must be given to the undertaking accused of the infringement of those rules (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73; see, also, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited).
687    Thus, the third complaint and, therefore, the eighth part must be upheld.
(i)    Conclusions on the first ‘sub-plea’
688    It follows from all the considerations set out above that the only parts of the first ‘sub-plea’ that must be rejected are the first, alleging an error of law in that Article 102 TFEU was applied to a bilaterally agreed contractual clause, the second, alleging an error of law in that an abusive refusal to supply was imputed to Bulgargaz, who was merely a user of the Romanian Pipeline 1, and the fourth, alleging an inadequate statement of reasons in the contested decision concerning the inclusion, in the infringement, of a restriction on Overgas gaining access to the Romanian Pipeline 1.
689    By contrast, in so far as it follows from the analysis of the other parts that the Commission has not adduced firm, precise and consistent evidence, within the meaning of the case-law referred to in paragraph 227 above, to establish to the requisite legal standard that the conduct alleged against Bulgargaz concerning access to the Romanian Pipeline 1 constituted a refusal of access capable of falling within the scope of Article 102 TFEU, those parts and, therefore, the first ‘sub-plea’ must be upheld.
3.      The second ‘sub-plea’, alleging an incorrect finding that access to the transmission network was refused
690    The applicants complain that the Commission erred in finding, in the contested decision, that Bulgartransgaz had adopted three types of abusive conduct concerning access to the transmission network, namely, first, by acting in a non-transparent manner and by failing to respond to requests for access to that network, second, by overburdening applicants for access to that network with requests for information and, third, by deliberately misinterpreting the information which it received.
691    The applicants raise, in essence, five parts, alleging:
–        as regards the first part, that there was a misinterpretation of the regulatory framework governing access to the transmission network;
–        as regards the second and third parts, respectively, that there was no refusal to grant Overgas and Toplofikacia Razgrad access to that network;
–        as regards the fourth part, that there was no request by RWE for access to that network;
–        as regards the fifth part, that there was no elimination of competition on the Bulgarian gas supply markets.
(a)    The first part, alleging a misinterpretation of the regulatory framework governing access to the transmission network
692    The applicants submit that the Commission misinterpreted the regulatory framework governing access to the transmission network during the infringement period.
693    In particular, according to the applicants, the contested decision is based on the incorrect premiss that Bulgartransgaz was not authorised to request the documents which it deemed necessary for the purposes of granting access to the transmission network, in particular proof of prior access to the Romanian Pipeline 1.
694    In that regard, recitals 79 to 95 and 452 and recital 454(a) of the contested decision state that, first, the applicable regulatory framework during the infringement period, stemming from both EU and Bulgarian law, required Bulgartransgaz, as the TSO of the transmission network, to grant third-party access to that network and, second, Bulgartransgaz imposed unreasonable requests on third parties seeking access and justified its refusal to grant them access on the basis of incorrect requirements.
(1)    The regulatory framework under EU law
695    First, the instruments of EU law governing the matter included Directive 2009/73, under which:
–        Article 32 gave third parties a right of objective, transparent and non-discriminatory access to gas transmission networks (see recitals 80 and 457 of the contested decision).
–        Article 17(2)(c) required the TSOs to ensure that the granting and management of access to those networks was not subject to discrimination between the users of those infrastructures.
696    Second, Regulation No 1775/2005 and then, from 3 March 2011, Regulation No 715/2009 which replaced it imposed non-discriminatory rules on access to national gas transmission networks. Thus:
–        Article 4(1)(a) of Regulation No 1775/2005 and then Article 14(1) of Regulation No 715/2009 required the TSO to offer services to all users of the gas transmission network on a non-discriminatory basis and to ensure that equivalent contractual terms were applied to the different users of that network (see recitals 81 and 457 of the contested decision);
–        under Article 6 of Regulation No 1775/2005 and then Article 18 of Regulation No 715/2009, the TSOs had to publish detailed information on the services which they provided and the conditions for access applied in order to facilitate third-party access (see recital 81 of the contested decision).
(2)    The regulatory framework under Bulgarian law
697    The legislation governing the gas market in Bulgaria is the Bulgarian Law on Energy.
698    Article 170(1)(6) and Article 172(1) of the Bulgarian Law on Energy required the TSO to:
–        grant third parties non-discriminatory access to its gas transmission network in accordance with the rules laid down by the Bulgarian regulator;
–        provide third parties with the information necessary to gain access to that network (see recital 82 of the contested decision).
699    Thus, first, the Bulgarian regulator adopted, over the years, a series of rules laying down the procedure to be followed by the TSO when dealing with requests for access to the transmission network (see recital 83 of the contested decision), namely:
–        the rules on the granting of access to the gas transmission and/or distribution networks by its decision No Л-2 (Decision P-2), of 14 May 2007 (DV No 45 of 8 June 2007, p. 51; ‘the 2007 Access Rules’); those rules were adopted, inter alia, on the basis of Article 172(1) of the Bulgarian Law on Energy;
–        the rules on the granting of access to the gas transmission and/or distribution networks and on access to natural gas storage facilities, adopted by means of decision No Л-1 (Decision P-1) of the Bulgarian regulator of 14 March 2013 (DV No 36 of 16 April 2013, p. 23; ‘the 2013 Access Rules’), which replaced the 2007 Access Rules with effect from 14 March 2013; the 2013 Access Rules were adopted on the basis, inter alia, of Regulation No 715/2009, Directive 2009/73 and Article 172(1) of the Bulgarian Law on Energy;
–        the 2013 Access Rules were, in turn, amended, with effect from 4 August 2015, by a decision of 4 August 2015 (DV No 59 of 4 August 2015, p. 102; ‘the 2015 Access Rules’).
700    Second, the Bulgarian regulator adopted rules on trade in natural gas, by means of Decision No Л-3 of 14 May 2007 (DV No 45 of 8 June 2007, p. 53; ‘the 2007 Market Rules’), based, inter alia, on Article 173(1) of the Bulgarian Law on Energy.
701    According to the Commission, the 2007 Market Rules were applicable once the TSO had issued a favourable opinion on a third party’s request for access to the transmission network and set out the procedure for the conclusion of a transmission contract between that third party and the TSO (see recital 93 of the contested decision).
702    The applicants complain that the Commission found that, under the applicable regulatory framework, Bulgartransgaz was not authorised to request documents which it deemed necessary for the purposes of granting access to the transmission network, and that Bulgartransgaz had thus exceeded its regulatory powers.
703    The applicants put forward five complaints, all of which are disputed by the Commission.
(3)    The first complaint, alleging that the applicable regulatory framework was incomplete
704    The applicants submit that, during the infringement period, the regulatory framework under EU law was incomplete in two regards.
705    In the first place, the applicants claim that neither Regulation No 715/2009 nor Directive 2009/73 defined the concept of ‘access’. In addition, that regulation and that directive did not lay down specific rules on the information that had to be provided by applicants for access to the gas infrastructure and the procedure to be followed by TSOs for dealing with requests for access or providing access to their networks.
706    In that regard, the contested decision states, in recitals 79 to 83, that, while the relevant EU legislation established a right of third-party access to the gas transmission networks and the principles on which such access was to be based, the procedure for access to those networks was established by the national legislation.
707    The Court notes that Article 172(1) of the Bulgarian Law on Energy required the TSO, first, to provide non-discriminatory access to its transmission network to persons who satisfied the conditions laid down by the rules to be adopted by the Bulgarian regulator and, second, to provide the users of that network with the information necessary for efficient access to it.
708    The 2007 and 2013 Access Rules, adopted by the Bulgarian regulator on the basis of Article 172(1) of the Bulgarian Law on Energy:
–        defined the concept of ‘access’ as covering the ‘right granted against consideration to use the transmission and/or distribution networks for transmission of natural gas on the conditions [laid down in these Access Rules]’ (see paragraph 1 of the additional provisions of the 2007 Access Rules, reproduced, in essence, in the equivalent provision of the 2013 Access Rules);
–        indicated the categories of persons with a right of access to the transmission network (see Article 1(2) and Articles 2 to 4 of the 2007 Access Rules and Article 1(1)(3) of the 2013 Access Rules);
–        detailed the conditions under which the TSO was to grant access to that network, as well as the procedure to be followed in that regard (see Articles 1 and 5 to 14 of the 2007 Access Rules, Article 1(2) and (3) and Articles 2 to 21 of the 2013 Access Rules).
709    It is not disputed that the provisions in the 2007 and 2013 Access Rules, established by the Bulgarian regulator, constituted, within the EU regulatory framework set out in paragraphs 695 and 696 above, the legal regime which governed access to the transmission network during the infringement period and which, in particular, defined Bulgartransgaz’s obligations in that regard, as the TSO of that network.
710    It follows that the first argument, alleging, first, the absence of a definition of the concept of ‘access’ and, second, the absence of specific rules in Regulation No 715/2009 and Directive 2009/73, concerning the information to be provided by applicants for access to a gas infrastructure and the procedure for dealing with those applications, is ineffective, since the legislation in that regard was established at national level.
711    In the second place, the applicants rely on the fact that, during the infringement period, the European Network of Transmission System Operators for Gas (‘ENTSOG’) had not adopted an EU-wide network code covering the rules for third-party access to gas transmission networks, in accordance with Article 8(1) of Regulation No 715/2009.
712    In that regard, it is true that, under Article 8(1) of Regulation No 715/2009, ENTSOG must, at the request of the Commission, elaborate network codes in the areas covered by Article 8(6) of that regulation, which include third-party access (see Article 8(6)(c) of Regulation No 715/2009).
713    In addition, Article 8(2) of Regulation No 715/2009 also provides for the possibility, on an optional basis, for ENTSOG to elaborate network codes, still in the areas covered by Article 8(6) of that regulation, in the absence of an invitation to that effect from the Commission.
714    Since the elaboration of network codes was not mandatory, the fact that ENTSOG had not established a network code during the infringement period, first, did not render the regulatory framework under EU law incomplete, as the applicants claim (see paragraph 704 above) and, second, did not prevent Bulgargaz from meeting its regulatory obligations on third-party access. Consequently, the applicants’ argument is not capable of calling into question the analysis set out in the contested decision.
715    The second argument is, therefore, also ineffective.
716    It follows from the above that the first complaint must be rejected as ineffective.
(4)    The second complaint, alleging a contradiction between the 2007 Access Rules and the 2007 Market Rules
717    The applicants submit that the 2007 Access Rules and the 2007 Market Rules were contradictory.
718    Under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(1)(d) of the Rules of Procedure of the General Court, each application is required to contain, inter alia, a summary of the pleas in law on which the application is based. According to settled case-law, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (judgments of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94, and of 24 May 2012, MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraph 68).
719    In the present case, the applicants merely rely on alleged contradictions between the 2007 Access Rules and the 2007 Market Rules, without explaining what those contradictions consist of.
720    Consequently, since it is not for the General Court to examine, independently, the contradictions relied on by the applicants, the second complaint must be rejected as inadmissible.
(5)    The third complaint, alleging that the 2007 Access Rules were incomplete and, therefore, difficult to apply
721    The applicants submit that there were numerous shortcomings in the 2007 Access Rules which made it difficult to apply them. They put forward two arguments.
722    In the first place, the applicants submit that Article 5 of the 2007 Access Rules required the TSO to publish the general terms and conditions for transport contracts (‘the harmonised contract’), after approval by the Bulgarian regulator. Although Bulgartransgaz provided that regulator with a draft harmonised contract on 8 April 2010, the Bulgarian regulator failed to approve it. The applicants submit that, despite those obstacles, Bulgartransgaz complied with its rules as a TSO.
723    In that regard, the Commission observed, in the contested decision, that the applicable regulatory framework, including the 2007 Access Rules, required TSOs such as Bulgartransgaz to publish detailed information on the services provided and the conditions that were applicable in order to facilitate effective third-party access to their networks, including, inter alia, the harmonised contract (see recitals 81 and 82 and recital 85(a) of the contested decision).
724    It is apparent from the letter from the Bulgarian regulator sent to Overgas on 18 October 2010, and from its response of 3 August 2012 to the Commission’s request for information of 3 July 2012, that the draft harmonised contract which Bulgartransgaz had provided to that regulator on 8 April 2010 had not been approved by the regulator because it was not the final version of that document. The Bulgarian regulator explained, in that regard, that, by submitting the draft harmonised contract, Bulgartransgaz had indicated that that draft was being discussed with its customers and that Bulgartransgaz would submit to the regulator the final version of the harmonised contract for approval after its board of directors had approved it. The Bulgarian regulator also stated that, on the date when the regulator prepared its response, Bulgartransgaz had still not submitted to it the final version of the harmonised contract for approval. Lastly, it stated that only the final harmonised contract would ‘regulate all relations between [the TSO] and potential customers’.
725    The Commission stated, in the contested decision, without being challenged by the applicants, that it was not until 3 October 2012 that Bulgartransgaz’s board of directors approved the final version of the harmonised contract (see recital 85 of and footnote 121 to the contested decision). It follows that, before that date, Bulgartransgaz had not complied with Article 5 of the 2007 Access Rules.
726    In addition, it follows from paragraph 724 above that responsibility for that breach of the 2007 Access Rules lay exclusively with Bulgartransgaz, and was not due to the alleged shortcomings in those rules, as the applicants claim.
727    It follows from the foregoing that the first argument must be rejected.
728    In the second place, the applicants claim that, despite the incomplete nature of the 2007 Access Rules, Bulgartransgaz complied with the provisions of Article 7 of the 2007 Access Rules by publishing, from July 2010, a form by which third parties could request access to the transmission network.
729    In that regard, it should be noted that, under Article 7(1) of the 2007 Access Rules, the TSO was required to provide interested third parties with a form by which they could submit to it a request for access to the transmission network.
730    Although the applicants claim that they published the form on their website in July 2010, they have not adduced any evidence in support of that argument. The only information provided dates back only to 29 September 2010, that is to say, the date on which that form was used by Overgas.
731    In any event, it is true that the Commission stated in the contested decision that the 2007 Access Rules required TSOs to provide third parties with a template application form for access to the transmission network (see recital 85(b) of the contested decision). However, that decision does not rely on any failure by Bulgartransgaz to comply with that regulatory obligation in order to support the conclusion that the applicants adopted abusive conduct in relation to third-party access to the transmission network (see recitals 471 to 481 of the contested decision).
732    The second argument is therefore ineffective.
733    The third complaint must therefore be rejected.
(6)    The fourth complaint, alleging that the Bulgarian national regulatory framework did not provide for two stages for the processing of requests for access
734    In the reply, the applicants argue that the Bulgarian national regulatory framework did not provide for a two-stage procedure for access to the transmission network, as stated in the contested decision. They consider that the 2007 Market Rules concern not the stage subsequent to that governed by the 2007 Access Rules, but a procedure for the conclusion of the gas transmission contract that is separate from that provided for by the 2007 Access Rules and which can be used as an alternative to the latter.
735    The Commission considers that this complaint is inadmissible on the ground that it was not raised either in the application or during the administrative procedure.
736    According to settled case-law, it is for the Court to assess whether, in the circumstances of the case, the proper administration of justice justifies the dismissal of the action on the merits without first ruling on the ground of inadmissibility raised by the Commission (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52; of 24 March 2022, Hermann Albers v Commission, C‑656/20 P, not published, EU:C:2022:222, paragraph 24; and of 12 May 2021, Alba Aguilera and Others v EEAS, T‑119/17 RENV, EU:T:2021:254, paragraph 39).
737    The Court considers that, having regard to the circumstances of the case and for reasons of procedural economy, it is necessary to examine the merits of the present complaint without first ruling on its admissibility, which has been challenged by the Commission, since this complaint must, in any event, be rejected on the merits.
738    In that regard, it should be noted that, in the contested decision, the Commission found, in essence, that:
–        as a first step, governed by the 2007 Access Rules, the TSO had to assess the application for access to the transmission network, including by requesting any necessary documentation if it deemed the application to be incomplete; that first step ended with a written opinion to be given by the TSO on the conditions for access to the transmission network, or with a reasoned rejection (see recital 85(b) and (c) of the contested decision);
–        once the TSO had issued a favourable opinion on the application for access, a second step in the procedure, governed by the 2007 Market Rules, took place, at the end of which the TSO had to offer a transmission contract to the applicant seeking access, or issue a reasoned rejection (see recital 93 of the contested decision).
739    The Commission based its analysis on the provisions of the 2007 Access Rules and the 2007 Market Rules, as well as on the Bulgarian regulator’s interpretation of those two sets of rules (see recital 85(b) and (c) and recital 93 of, and footnotes 122, 123 and 134 to 139 to, the contested decision).
740    In that regard, it must be borne in mind that a question relating to the interpretation of the national law of a Member State is a question of fact in respect of which the Court is required, in principle, to carry out a comprehensive review (see judgment of 8 September 2016, Generics (UK) v Commission, T‑469/13, not published, EU:T:2016:454, paragraph 218 and the case-law cited).
741    Accordingly, the question of to what extent a rule of national law applies to the case in point is subject to the rules on the taking of evidence and on the burden of proof (see, to that effect, judgments of 20 September 2010, France v European Commission, T‑154/10,  EU:T:2012:452, paragraph 65, and of 26 November 2015, Abertis Telecom and Retevisión I v Commission, T‑541/13, not published, EU:T:2015:898, paragraph 102 and the case-law cited).
742    In the present case, it is apparent from the 2007 Access Rules that:
–        the application for access to the transmission network had to be submitted in writing, by way of a form to be provided by the TSO (see Article 7(1) of the 2007 Access Rules);
–        the TSO had to examine the application and its annexes and, if the TSO considered that it was incomplete and that additional documents and information had to be submitted, the TSO had to request the applicant to supplement the application, which the applicant was required to do within 14 days (see Article 8 of the 2007 Access Rules), as is apparent from recital 85(b) of the contested decision, and as the parties confirmed at the hearing;
–        the TSO had one month, upon receipt of the complete application, to send the applicant a written opinion on the conditions for access or to reject the application in a reasoned manner (see Article 9(3) of the 2007 Access Rules); that one-month period was, where applicable, extended by an additional period, corresponding to the time taken by the applicant to complete its initial application (see last sentence of Article 8 of the 2007 Access Rules); the written opinion had to cover the site specified in the application for access and it was obligatory for it to specify the permitted capacity, the annual load profile and the natural gas metering points at the entry and exit of the transmission network (see Article 10 of the 2007 Access Rules).
743    The 2007 Access Rules also stated that, in the event of access being granted to the transmission network, the gas transmission had to be carried out in accordance with written contracts concluded between the beneficiary of that access and the TSO (see Article 14 of the 2007 Access Rules).
744    The 2007 Access Rules, the aim of which is, pursuant to Article 1 thereof, to define, inter alia, the conditions and procedure for access to the transmission network, are supplemented by the 2007 Market Rules, which were adopted on the same day and which, pursuant to Article 1(2) thereof, establish the rules governing the procedure and methodology applicable to the relevant transactions.
745    In that regard:
–        the extraction companies, natural gas traders and eligible consumers had to conclude gas supply contracts between themselves at freely negotiated prices (see Article 14 of the 2007 Market Rules);
–        the contracting parties then had to notify, in writing, the TSO of their contracts (see Article 15(1) of the 2007 Market Rules); that notification had to be made using a form drawn up by the TSO and contain, inter alia, the quantities of gas to be delivered in accordance with the timetable agreed between the contracting parties (see Article 15(2) of the 2007 Market Rules);
–        the TSO then either had to agree to implement the deliveries thus notified and to conclude, for that purpose, a transmission contract, or to reject them, giving written reasons for the rejection within two days of receiving the notification (see Article 15(4) of the 2007 Market Rules).
746    In that regard, it should be noted that the Bulgarian regulatory framework was interpreted by the Bulgarian regulator in its statement of findings of 14 June 2010 relating to the complaint lodged by company B against Bulgartransgaz on 20 April 2010 concerning Bulgartransgaz’s refusal to grant it access to the transmission network (‘the statement of findings of 14 June 2010’), reproduced in its response of 3 August 2012 to the Commission’s request for information of 3 July 2012. The Bulgarian regulator found that the processing of requests for access to the transmission network followed two separate stages:
–        the first, governed by the provisions of the 2007 Access Rules referred to in paragraph 742 above, was the procedure leading to the grant or refusal of access;
–        the second, governed by Section II of the 2007 Market Rules, referred to in paragraph 743 above, was initiated when access had been granted; that second stage made it possible to conclude a transmission contract between the TSO and the applicant for access.
747    It is true that, in the reply, the applicants criticised the Commission for having relied, in order to conclude that the procedure for access to the transmission network was divided into two stages, on the interpretation adopted by the Bulgarian regulator, which in turn was based on an allegedly incorrect reading of the 2007 Access Rules in conjunction with the 2007 Market Rules. However, they have failed to put forward specific arguments contradicting the Bulgarian regulator’s interpretation. Moreover, in its response to the statement of objections, Bulgartransgaz argued that, although the Bulgarian regulator had concluded that Bulgartransgaz had requested certain information too early in the process for granting access to company B, that premature request was due to Bulgartransgaz’s different interpretation of the 2007 Market Rules, but it subsequently followed the interpretation adopted in the Bulgarian regulator’s decision. Ultimately, that applicant claimed that evidence of supply to the network entry point was ‘a criterion for conclusion of a transport contract ([that it to say,] after access has been approved)’.
748    Furthermore, the information in the file confirms that Bulgartransgaz did actually comply with the abovementioned interpretation of the Bulgarian regulator, in particular when it dealt with Overgas’ application for access to the transmission network for 2013. In its letter to Overgas of 12 December 2012, Bulgartransgaz highlighted the two stages of the procedure for dealing with that application. It first stated, in essence, that Overgas’ application for access met the conditions laid down by the 2007 Access Rules and sent, as an attachment, its favourable opinion on the conditions for access to that network, in accordance with those rules. It then stated that it agreed to conclude, as a second step, a transmission contract covering the requested volumes of gas, but that Overgas first had to provide proof that it had entered into a contract, upstream, for a supply and capacity corresponding to the volumes of gas that it wished to have transported in the transmission network, as well as the delivery schedule for those volumes for 2013 at the entry point of that network, thus referring to the second stage of the access procedure.
749    The complaint must therefore be rejected.
(7)    The fifth complaint, arguing that the Bulgarian national regulatory framework allowed for a request for proof of access to the Romanian Pipeline 1
750    The applicants dispute the Commission’s interpretation of Article 2(2) of the 2007 Access Rules, which was that Bulgartransgaz was not authorised to require that applicants for access to the transmission network provide proof of access to the Romanian Pipeline 1, before dealing with their applications for access to that network. They consider, on the contrary, that that provision could be interpreted as allowing Bulgartransgaz to require proof of access to that pipeline, since that access was necessary, in practice, in order to have gas in Bulgaria.
751    In that regard, the Commission’s findings on the transmission network concern Bulgartransgaz’s processing of requests for access to that network submitted by Overgas, RWE and Toplofikacia Razgrad before 14 March 2013, that is, before the entry into force of the 2013 Access Rules (see paragraph 699 above). The complaint must therefore be examined in the light of the 2007 Access Rules and the 2007 Market Rules.
752    It should be noted, in the first place, that, under Article 9(2) of the 2007 Access Rules, during the first stage of the procedure for access to the transmission network, the TSO’s examination of the application for access covered the existence of the conditions for access that were specified, in essence, in Articles 2 to 4 of those rules, the absence of technical obstacles to granting access and the periods within which access could be implemented.
753    Article 2(1) of the 2007 Access Rules provided that the right of access to the transmission network was granted to the public supplier, suppliers of last resort, natural gas traders, gas producers and eligible customers in the country connected to that network. Under Article 2(2) of those rules, the TSO had to grant access, on equal terms, to the eligible customers who met the access conditions specified in those rules, provided that they had previously concluded one or more contracts for the supply of gas from the public supplier, gas traders or producers, in or outside the country.
754    The applicants submit that Article 2(2) of the 2007 Access Rules allowed Bulgartransgaz to require applicants for access to prove that they had previously obtained gas supplies, on the one hand, and access to the Romanian Pipeline 1, on the other, in order to ensure that those applicants could actually transport gas to Bulgaria and inject it into the transmission network.
755    First, as the applicants acknowledge in the reply, none of the provisions of the 2007 Access Rules governing the first stage of the procedure for access to the transmission network expressly required the applicant for access to provide, at that stage, proof that they had previously concluded a contract for access to the Romanian Pipeline 1.
756    Moreover, the applicants also conceded, in the reply, that it was because of ‘well founded concerns’ that such a requirement was not laid down in the 2007 Access Rules, and that that requirement would not have complied with the regulatory framework in force at the time.
757    Second, the interpretation of the 2007 Access Rules advocated by the applicants does not correspond to the Bulgarian regulator’s interpretation in its statement of findings of 14 June 2010, as regards the first stage of the access procedure.
758    In its statement of findings of 14 June 2010, the Bulgarian regulator found that company B met the conditions for access to the transmission network, after having found, first, that that operator had a connection to the transmission network and, second, that it had previously entered into a contract for procured quantities of gas, that is to say, the two conditions imposed by Article 2(1) and (2) of the 2007 Access Rules respectively. The Bulgarian regulator therefore found that Bulgartransgaz had not complied with its regulatory obligations because it had not, inter alia, issued a written opinion on the conditions for access to that network within a one-month period required by Article 9(3) of those rules.
759    It should be noted that no reference is made, in the Bulgarian regulator’s analysis, to the question of whether or not company B had access to the Romanian Pipeline 1.
760    In those circumstances, the applicants have not proved that Article 2(2) of the 2007 Access Rules had to be interpreted as allowing Bulgartransgaz, from the first stage of the procedure for access to the transmission network, to make such access subject to the provision of proof of access to the Romanian Pipeline 1.
761    That conclusion cannot be called into question by the other arguments put forward by the applicants.
762    First of all, the applicants argue that the 2013 Access Rules required the applicant for access to provide proof of access to a neighbouring network connected to the transmission network. They submit that, under Article 4(4) of those rules, the application for access had to include information on the gas transmission capacity purchased or reserved from the TSO of a neighbouring transmission network connected to the transmission network, under a contract concluded with that TSO for a period and capacity corresponding to those reserved at the entry point of that network.
763    For the reasons set out in paragraph 751 above, the 2013 Access Rules were not applicable in the present case. The provisions of Article 4(4) of those rules could not therefore justify Bulgartransgaz’s requirement, from the first stage of the access procedure, that applicants for access to the transmission network provide proof of having first obtained access to the Romanian Pipeline 1.
764    In any event, the Commission states, in the contested decision, without being challenged by the applicants, that, following its objections submitted to the Bulgarian regulator, in its Opinion of 22 April 2015 on the 2013 Access Rules, those rules were amended in 2015 and the provision in Article 4(4) of those rules was deleted (see recital 133 of the contested decision and paragraph 5(3) of the 2015 Access Rules).
765    The applicants concede, moreover, that the 2015 Access Rules deferred the requirement to produce proof of reserved capacity on an adjacent network until the stage, according to them, of the conclusion of the transport contract, namely the second stage of the procedure laid down by the Bulgarian legislation.
766    It is apparent from paragraph 11(14) of the 2015 Access Rules that applicants for access had to provide proof of access to the neighbouring transmission network, namely the Romanian Pipeline 1, at the latest on the date of performance of the transmission contract, that is, after the grant of access to the transmission network. That amendment confirms that it was not essential to provide that proof during the first stage of the procedure for access to the transmission network and that such a condition could not be inferred from the access rules as worded in 2007.
767    Furthermore, the applicants submit that Article 9 of the 2007 Access Rules allowed the TSO to request additional information and documents if it deemed them necessary in order to examine an application for access.
768    In that regard, Article 9(1) of the 2007 Access Rules provided that, upon receipt of the application for access together with all the necessary documents, the TSO had to examine the possibility of granting access to the applicant.
769    It is true that, under Article 8 of the 2007 Access Rules, if it considered that the application and the annexes were incomplete, the TSO had to invite the applicant to supplement its application.
770    As follows from paragraphs 744 to 746 above, and as Bulgartransgaz had already acknowledged during the administrative procedure, proof of access to the Romanian Pipeline 1 came solely under the second stage relating to the conclusion of a transmission contract, namely the stage following the grant of access to the transmission network at the end of the first stage.
771    Therefore, Article 9(1) of the 2007 Access Rules, even read in conjunction with Article 8, could not be interpreted, as the applicants claim, as allowing Bulgartransgaz to block the requested access to the transmission network if proof of access to the Romanian Pipeline 1 was not provided when the application was submitted.
772    In the second place, as regards the second stage of the access procedure, namely the stage relating to the conclusion of the transmission contract giving access to the transmission network, the applicants have not referred to any provision of the 2007 Market Rules that required applicants for access wishing to conclude such a contract to provide proof of access to a neighbouring transmission network.
773    As the Commission rightly stated in recital 93 of the contested decision, Articles 14 and 15 of the 2007 Market Rules, which were applicable to the second stage of the procedure, namely the time of conclusion of the contract, required only notification of the gas supply contracts concluded between:
–        either the applicants for access and their eligible customers (if the applicants for access were gas producers or traders);
–        or the applicants for access and the producers or traders which supplied them with gas (if the applicants for access were eligible customers).
774    However, Articles 14 and 15 of the 2007 Market Rules did not require the provision of proof of access to the Romanian Pipeline 1, even during the second stage of the access procedure. For the reasons set out in paragraphs 764 to 773 above, that proof could be required only at the time of implementation of the access contract.
775    It follows from the foregoing that the applicants have not proved that, before 14 March 2013, that is to say, during the period to which the Commission’s complaints against Bulgartransgaz related in respect of the processing of the applications for access to the transmission network made by Overgas, RWE and Toplofikacia Razgrad, access to the Romanian Pipeline 1 was one of the conditions required by the applicable national legislation in order to obtain access to that network.
776    It is true that the applicants claim that, without access to that pipeline, the volumes of gas covered by contract outside Bulgaria could not be delivered at the entry point of the transmission network.
777    However, it must be stated that, as the Commission has observed, an applicant for access could still obtain access to the Romanian Pipeline 1 after the conclusion of the first stage of the procedure for access to the transmission network, or even after the conclusion of the transmission contract with Bulgartransgaz, constituting the second stage of that procedure, and before the implementation of that contract.
778    The applicants nevertheless submit that, if Bulgartransgaz had to conclude a transmission contract without requiring proof of access to the Romanian Pipeline 1, it would still be required to perform that contract at the exit points of the transmission network, even if the applicant for access had not had any volume of gas delivered at the entry point of that network.
779    It is sufficient to note, in that regard, that the applicants’ argument is based on a purely speculative scenario, namely the possibility that, after the conclusion of the transmission contract, the applicant for access did not have any volume of gas delivered at the network entry point. Reasoning based on a mere hypothesis cannot in any event justify Bulgartransgaz’s imposition of a condition relating to proof of access to the Romanian Pipeline 1, which did not appear in the applicable legislation, especially where, as the applicants acknowledge, the absence of such a requirement was justified on account of ‘well founded concerns’.
780    For all the foregoing reasons, the complaint must be rejected.
781    The first part must therefore be rejected.
(b)    The second part, arguing that Overgas was not refused access to the transmission network
782    The applicants dispute the Commission’s findings, in the contested decision, that Overgas was refused access to the transmission network. They put forward four complaints. The first three concern Bulgartransgaz’s handling of Overgas’ request for access to that network for 2011. The fourth concerns the handling of Overgas’ request for access to that network for 2013.
783    The Commission, supported by Overgas, disputes the applicants’ arguments.
784    As a preliminary point, it should be noted that the Court may take account of the legislation applicable to the gas sector in order to consider the merits of the Commission’s application of Article 102 TFEU to Bulgartransgaz’s practices. Since that legislation defines the legal framework applicable to the sector in question and, in doing so, contributes to the determination of the competitive conditions under which Bulgargaz carried on its business in the relevant markets, that legislation is a relevant factor in the application of Article 102 TFEU to the conduct of that undertaking and, in particular, for the assessment of the abusive nature of such conduct (see, to that effect, judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraphs 223 and 224).
785    In the contested decision, the Commission criticised Bulgartransgaz for adopting delaying tactics vis-à-vis Overgas, which impeded the latter’s access to the transmission network, those tactics consisting of:
–        not acting transparently and failing to respond to the requests for access to that network in accordance with the required written procedures or statutory deadlines;
–        making unreasonable demands in order to grant access to that network, in particular concerning the information to be provided or the conditions to be fulfilled by the applicant for access so that its application could be processed;
–        deliberately misinterpreting the requests for access or providing incorrect information regarding the conditions for access (see recitals 472 and 473 of the contested decision).
(1)    The first three complaints, relating to the processing of Overgas’ request for access to the transmission network for 2011
786    The applicants raise three complaints concerning the processing of Overgas’ request for access to the transmission network for 2011, alleging, in essence, first, that Overgas’ communications prior to 29 September 2010 were classified incorrectly, second, that Overgas’ requests for access were dealt with appropriately and, third, that Overgas had no interest in gaining access to the transmission network before 2013.
787    In that regard, the Commission found, in the contested decision, that the discussions between Overgas and Bulgartransgaz concerning access to the transmission network took place according to the following sequence:
–        by letter of 30 July 2010 (‘the letter of 30 July 2010’), Overgas requested the transmission of 1 billion cubic metres of gas from the Negru Vodă 1 entry point of the transmission network to a number of exit points which it did not identify (see recital 101(a) of the contested decision); the Commission concluded that that was the first request for access to the transmission network that had not been granted by Bulgartransgaz and made that finding in the part of the contested decision dealing with the determination of the duration of the infringement, which therefore began on 30 July 2010 (see recital 646 of the contested decision);
–        following the letter of 30 July 2010, a meeting took place between Overgas and Bulgartransgaz on 12 August 2010;
–        on 24 August 2010, Overgas sent a letter to Bulgartransgaz (‘the letter of 24 August 2010’), in which it provided, as agreed at the meeting of 12 August 2010, its preliminary nominations for gas transmission for 2011 and requested a draft transmission contract (see recital 101(b) of the contested decision);
–        on 26 August 2010, a second meeting took place between Overgas and Bulgartransgaz, during which the latter refused to provide the contractual terms and conditions for transmission because they had not yet been approved by the Bulgarian regulator (see recital 101(c) of the contested decision); at that meeting, Bulgartransgaz informed Overgas that it would not would be until October 2010 that it would make a decision on Overgas’ request for access;
–        by letter of 31 August 2010, Overgas informed Bulgartransgaz that it considered that the proposed period for processing its request was too long and asked for a response within the statutory period of one month from the date of receipt of its nominations for gas transmission, which had taken place on 24 August 2010;
–        by letter of 24 September 2010 (‘the letter of 24 September 2010’), Bulgartransgaz informed Overgas that its request for access set out in the letter of 24 August 2010 was incomplete and that additional information was required (see recital 101(d) of the contested decision);
–        in response to the letter of 24 September 2010, Overgas, on 29 September 2010, sent Bulgartransgaz a detailed request for access, together with the requested information (‘the letter of 29 September 2010’) (see recital 101(e) of the contested decision); that letter was accompanied by 43 completed application forms specifying the quantity of gas to be transported between the Negru Vodă 1 entry point of the transmission network and, for each, a different point of exit from that network;
–        the letter of 29 September 2010 was supplemented, on 4 October 2010, by another letter, by which Overgas confirmed the Negru Vodă 1 entry point and attached a schedule concerning the volume of gas that Overgas was intending to deliver at that entry point for it to be transported through the transmission network (see recital 101(f) of the contested decision); it also confirmed that the quality characteristics of the gas to be delivered were in conformity with the technical specifications published on Bulgartransgaz’s website and requested that Overgas be provided with a transmission contract by 10 October 2010 at the latest.
(i)    The first complaint, alleging that Overgas’ communications prior to 29 September 2010 were incorrectly classified as requests for access to the transmission network
788    The applicants submit that the Commission incorrectly classified, in recital 101 of the contested decision, the instances of contact between Overgas and Bulgartransgaz prior to 29 September 2010 as requests for access to the transmission network, whereas they were only instances of preliminary contact. They consider that the letter of 30 July 2010 could not constitute a request for access to the transmission network.
789    The applicants consider, in particular, that the letter of 30 July 2010 was not formulated as a request for access to the transmission network, since essential elements were missing. They submit that, in order to be complete, such a request had to include the total volume of gas to be transported, the entry points, the exit points, the quantities to be delivered to each of those exit points, the delivery schedule and the quality characteristics of the gas.
790    The Court notes that, as the applicants state, in the letter of 30 July 2010, Overgas had merely stated that it would have 1 billion cubic metres of gas in 2011 under a delivery contract which had already been signed and that it wished that volume of gas to be delivered to its customers connected to the transmission network. It then asked Bulgartransgaz, as the TSO, to inform it of the conditions under which it could use the gas transmission services. Overgas concluded its letter by expressing its intention to negotiate the transmission of the abovementioned volume for the period 1 January to 31 December 2011, from the Negru Vodă 1 entry point of the transmission network to the ‘exit points of the gas transmission grid’, which were not further identified. To that end, it requested Bulgartransgaz to provide it with the transmission contract.
791    It must therefore be held that the letter of 30 July 2010 was worded in a rather vague manner and contained only a minimum amount of information, with the result that it cannot constitute a request for access in compliance with Article 7 of the 2007 Access Rules.
792    Furthermore, it is indeed true that, on 30 July 2010, Bulgartransgaz had still not complied with its regulatory obligations which required it, as the TSO, to publish an application form for access to the transmission network containing the information to be submitted in support of a request for access to that network (see paragraph 730 above).
793    However, a third party wishing to submit a request for access to the transmission network would have had to take into account the 2007 Access Rules, from which it is apparent that certain information necessarily had to be provided to the TSO to allow it to draft the written opinion on the requested access (see paragraph 742 above). That opinion concerned the parameters referred to in Article 10 of those rules, such as the authorised capacity, the annual consumption profile and the gas metering points at entry and exit from the transmission network, with the result that the applicant for access to the transmission network could not have been unaware of the need to submit such information in its request.
794    Moreover, the contested decision overlooks two important elements already in the investigation file.
795    In the first place, the correspondence between Overgas and Bulgartransgaz from September 2010 did not describe the letter of 30 July 2010 as an ‘application for access’. That description was reserved:
–        initially, for the letter of 24 August 2010, which Overgas appears to regard, in its letter of 29 September 2010, as an application for access, but which Bulgartransgaz, for its part, in its letter of 24 September 2010, described as an incomplete application;
–        then, subsequently, for the letter of 29 September 2010, that description being used again by Overgas in the letter sent to Bulgartransgaz on 11 November 2010 (‘the letter of 11 November 2010’).
796    In the second place, the report drawn up by the applicants’ external representatives at the time of their access to the data room (‘the data room confidential report’), lodged following the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), included a summary of the detailed minutes of a meeting which the Commission had had with Overgas on 15 December 2011 (‘the summary of the meeting of 15 December 2011’). This shows that, on that occasion, the Commission had found that Overgas’ first application for access made to Bulgartransgaz, concerning the Negru Vodă 1 entry point and 42 exit points, was dated 29 September 2010.
797    In that context, the Commission could not validly conclude, in particular in recitals 100, 117 and 646 of the contested decision, that the letter of 30 July 2010 constituted an application by Overgas for access to the transmission network.
798    The applicants’ first complaint must therefore be upheld in part, in so far as it concerns the Commission’s finding that Overgas’ letter to Bulgartransgaz of 30 July 2010 constituted an application for access to the transmission network.
(ii) The second complaint, arguing that Overgas’ requests for access for 2011 were handled appropriately
799    The applicants consider that Bulgartransgaz dealt with Overgas’ requests for access to the transmission network for 2011 in an appropriate manner.
800    In the contested decision, first, the Commission found that Bulgartransgaz had not dealt with Overgas’ request for access to the transmission network for 2011 within the period laid down by the 2007 Access Rules because the handling of that request had taken two years (see recital 474).
801    The applicants argue in response, in that regard, that Bulgartransgaz diligently dealt with Overgas’ requests for access by setting up an internal working group in order to examine those requests (‘the working group’), which did examine them and promptly indicated that certain clarifications were necessary.
802    Second, the Commission found that Bulgartransgaz had deliberately misinterpreted Overgas’ letters containing that request, by aggregating the capacity requested on that network, in order to justify its decision of 19 June 2012 refusing access (see recitals 475 and 476 of the contested decision).
803    The applicants submit, however, that the duplication of Overgas’ applications, resulting from the letter of 11 November 2010 being sent in addition to the letter of 29 September 2010, complicated the handling of those applications.
804    The applicants’ two arguments must be examined separately.
–       The first argument, relating to the diligent and prompt handling of Overgas’ access requests for 2011
805    It should be noted that, as follows from paragraph 742 above, under Article 8 of the 2007 Access Rules, Bulgartransgaz was required to examine any application for access to the transmission network and, in the case of an incomplete application, to invite the applicant to supplement its application within 14 days.
806    Next, under Article 9(3) of the 2007 Access Rules, as TSO, Bulgartransgaz was required to decide on any application for access to the transmission network within one month of the date of submission of the application. That period was extended, in the case of an incomplete application, by an additional period, corresponding to the time taken by the applicant to supplement its initial application. The parties agreed at the hearing that the one-month period granted to the TSO to decide on the application did not start to run until the application was complete.
807    By contrast, no deadline was imposed on the TSO to request, from the date of receipt of an initial application which it considered to be incomplete, that that application be supplemented, which the parties also expressly agreed at the hearing.
808    In the first place, it follows from the analysis of the preceding complaint that, contrary to what the Commission claims, the letter of 30 July 2010 did not constitute a request by Overgas for access to the network. Consequently, the assessment of the dilatory nature of Bulgartransgaz’s conduct, in the contested decision, from that date, is based on an incorrect premiss which is contradicted by the evidence in the file.
809    In the second place, as regards the successive applications, it should be noted that:
–        as follows from paragraph 796 above, in the summary of the meeting of 15 December 2011, the Commission considered that the first application for access to the network had been submitted by Overgas by letter of 29 September 2010;
–        moreover, in its letters of 29 September and 11 November 2010, Overgas referred to its letter of 29 September 2010 as the ‘application for access to the gas transmission system’ in accordance with the 2007 Access Rules.
810    It follows from those elements that the period laid down in Article 9(3) of the 2007 Access Rules for the sending of Bulgartransgaz’s written opinion in response to Overgas’ application for access did not begin to run until the date of receipt of the letter of 29 September 2010.
811    In that regard, it is irrelevant that, in its letter of 29 September 2010, Overgas stated that the letter of 24 August 2010 constituted an application for access to the network, since:
–        as Bulgartransgaz had rightly stated in its letter of 24 September 2010, although the ‘nomination [of Overgas] for the transmission of natural gas [namely, the letter of 24 August 2010] was considered as an application for access to the gas transmission network in accordance with the [2007] Access Rules’, it was incomplete, with the result that Overgas still had to provide additional information before the application could be processed;
–        in response to Bulgartransgaz’s request of 24 September 2010, Overgas had supplemented its initial request of 24 August 2010 by letter of 29 September 2010, by providing Bulgartransgaz with the requested information and the relevant annexes, then again by letter of 4 October 2010, by providing, inter alia, a schedule relating to the volume of gas which Overgas was planning to have transported in the transmission network (see recital 101(f) of the contested decision).
812    In the light of those factors, it must be held that the letter of 24 August 2010 did not constitute a full application within the meaning of the 2007 Access Rules, and was only supplemented on 29 September and 4 October 2010.
813    As is apparent from recital 85(c) of the contested decision, and as the parties agree, the one-month period for sending the written notice to the applicant under the last sentence of Article 8 of the 2007 Access Rules did not begin to run until the point at which the application was complete, namely 4 October 2010.
814    It follows that it is only from 4 October 2010 that the allegedly dilatory nature of Bulgartransgaz’s conduct in the processing of Overgas’ application for access for 2011 must be assessed, and that assessment must be carried out in the light of the successive events described below.
815    On 18 October 2010, Bulgartransgaz convened the working group in order to examine Overgas’ application for access to the network made on 29 September 2010.
816    By the letter of 11 November 2010, Overgas:
–        complained that, ‘for three months’, it had been attempting to conclude a transmission contract on Bulgartransgaz’s transmission network but that it did not, however, have the draft contract proposal;
–        stated that, by letter of 29 September 2010, it had also sent requests for access to the transmission network and complained that, although the one-month period for a response had already expired, it had still not received a response;
–        stated that it had concluded a contract with Gazprom for the supply of gas which it was seeking to have transported through the transmission network, this time from the Negru Vodă 2 and 3 entry points to 42 exit points that had already been identified in the letter of 29 September 2010 (see recital 101(g) of the contested decision).
817    In a report which is undated but concerns the letters of 29 September and 11 November 2010, the working group, examining Overgas’ applications in accordance with Article 9(1) and (2) of the 2007 Access Rules, stated that Overgas met the conditions to be granted access to the transmission network, while proposing a meeting between Bulgartransgaz and Overgas to have technical clarifications concerning ‘the establishment of a communication environment between the two companies for the exchange of technological parameters at the entry and exit points, as well as to coordinate the pressure set at the entry points of the gas transmission system’.
818    As is apparent from recital 103 of the contested decision, on 1 December 2010, a meeting was held between Bulgartransgaz and Overgas. It is apparent from the minutes of that meeting that, on that occasion:
–        Bulgartransgaz informed Overgas that it was processing all of its applications for access to the transmission network, and informed Overgas of the need to obtain certain technical clarifications, as had been proposed by the working group (see paragraph 817 above);
–        Overgas complained that its applications for access to the transmission network had not been processed and that that was hindering the implementation of the gas supply contracts which it had concluded with end users; it requested Bulgartransgaz to provide it with a transport contract before the end of the year and explicitly stated that, if a contract were not signed, it would forward the case to the Bulgarian regulator, the Bulgarian national competition authority and the Commission.
819    On 22 December 2010, the Executive Director of Bulgartransgaz (‘Bulgartransgaz’s Executive Director’) sent Bulgartransgaz’s board of directors a memorandum dated 17 December 2010 proposing that he be delegated the task of submitting, for prior approval by BEH, the necessary information for the conclusion of the transmission contract with Overgas.
820    On 20 January 2011, Overgas lodged a formal complaint with the Bulgarian regulator. A copy of that complaint was sent to the Bulgarian Minister for Energy (see recital 105 of the contested decision).
821    On 17 May 2012, Overgas requested the Bulgarian regulator to provide an update on the examination of its complaint (see recital 225 of the contested decision).
822    On 19 June 2012, Bulgartransgaz sent Overgas a letter stating that its applications for access to the transmission network had not been approved (‘the letter of 19 June 2012’). It stated that it had examined the applications of 29 September and 11 November 2010 and that it had found that:
–        those applications had not been accompanied by gas supply contracts previously concluded with the end customers at the exit points;
–        the total quantities referred to in both applications exceeded the quantities consumed at those exit points;
–        it was not possible to transport gas to customers connected to the transmission network and the Chiren storage facility from the Negru Vodă 2 and 3 entry points because the latter were part of the Bulgarian transit pipeline used for the transmission of gas to the former Yugoslav Republic of Macedonia, Greece and Türkiye;
–        at the meeting of 1 December 2010, it had asked Overgas to clarify the issue of the entry point for which access had been requested as well as the volume that Overgas wished to supply through the transmission network.
823    It must therefore be held that it was only by way of the letter of 19 June 2012 that Bulgartransgaz finally replied to Overgas’ application of 29 September 2010 for access to the transmission network, as supplemented on 4 October 2010 (see paragraphs 811 to 813 above). Bulgartransgaz therefore failed to comply with the one-month period laid down in the last sentence of Article 8 of the 2007 Access Rules, which expired on 4 November 2010.
824    It follows that the applicants’ argument that Overgas’ access requests were handled diligently and promptly must be rejected.
–       The second argument, based on the duplication of the capacity requested by Overgas in its letters of 29 September and 11 November 2010
825    In recitals 475 and 476 of the contested decision, the Commission found that Bulgartransgaz had deliberately misinterpreted Overgas’ letters containing the request for access to the transmission network for 2011, by aggregating the capacity requested on that network, in order to justify its decision of 19 June 2012 refusing access.
826    Although it is true that, as follows from the analysis of the first argument, a priori, Bulgartransgaz infringed the last sentence of Article 8 of the 2007 Access Rules by failing to respond to the application for access of 29 September 2010, as supplemented on 4 October 2010 within the stipulated one-month period, the assessment of the dilatory tactics alleged against Bulgartransgaz, referred to in paragraph 825 above, must take into account the applicants’ argument that, by the letter of 11 November 2010, Overgas submitted a second application for access to the network, and that, therefore, Bulgartransgaz could not have made a decision on Overgas’ access requests for 2011 because they exceeded the capacity of the transmission network.
827    In recital 101(g) of the contested decision, the Commission expressly stated that, in its letter of 11 November 2010, Overgas was requesting access, in respect of the same quantities of gas as those covered by the previous application of 29 September 2010, to the 43 exit points by means, this time, of the Bulgarian transit pipeline with the Negru Vodă 2 and 3 entry points.
828    As follows from paragraph 822 above, Bulgartransgaz’s letter of 19 June 2012 refusing to grant Overgas access to the transmission network stated, inter alia, that the total quantities referred to in the applications for access of 29 September and 11 November 2010 exceeded the capacity of that network, while claiming that it was not possible to transport gas to customers connected to the transmission network and the Chiren storage facility from the Negru Vodă 2 and 3 entry points because the latter were part of the Bulgarian transit pipeline used for the transmission of gas to the former Yugoslav Republic of Macedonia, Greece and Türkiye.
829    In that regard, it should be noted that Overgas’ letter of 11 November 2010 was worded as follows:
‘More than three months Overgas … has been trying to conclude a contract for natural gas transport through [Bulgartransgaz’s] … gas transmission network. To date, we do not even have a proposal for a draft of such a contract … With letter [of 29 September 2010], we have sent you an application for access to the … transmission system … Although your statutory one-month response period has expired, we have not yet received that response. As a result of the agreements reached with our supplier Gazprom … for supply of natural gas quantities for 2011, please find enclosed more applications for access to the gas transmission network of Bulgartransgaz … with an entry point … Negru Vodă 2,3. We are looking forward to your response for the terms and conditions for access to the … transmission network regarding the applications enclosed herein as well as those submitted with our letter of 29 September 2010.’
830    It is apparent from the wording of the letter of 11 November 2010 that it was not unambiguous, in particular in so far as:
–        it referred to the application for access contained in the letter of 29 September 2010, while submitting ‘more applications’;
–        it enclosed applications for access covering exactly the same quantities of gas as the letter of 29 September 2010 and the same exit points.
831    Thus, it cannot be ruled out, on reading the letter of 11 November 2010, that, a priori, Overgas was submitting an independent application for access to the transmission network, to which it was expressly referring, particularly since that new application did not clarify its relationship with the previous application in the letter of 29 September 2010.
832    However, in recital 101(g) of the contested decision, the Commission stated that the letter of 11 November 2010 concerned a request for access to the Bulgarian transit pipeline and not to the transmission network. Moreover, at the hearing, the parties confirmed that the letter of 11 November 2010 was an application for access that was separate from, and additional to, the application of 29 September 2010, concerning an entirely different network.
833    However, it must be noted that Overgas’ letter of 11 November 2010 made no reference to the Bulgarian transit pipeline, but referred only to the transmission network.
834    It follows from those considerations that, due to the juxtaposition of the two letters of 29 September and 11 November 2010, it was objectively more difficult to understand exactly which were Overgas’ requests for access to the transmission network for 2011.
835    It is true that, as follows from the analysis of the first argument, when the letter of 11 November 2010 arose, Bulgartransgaz had already infringed the last sentence of Article 8 of the 2007 Access Rules by failing to respond to the application for access of 29 September 2010, as supplemented on 4 October 2010, within the required period of one month.
836    However, it is apparent from the summary of the meeting between the Commission and Overgas of 15 December 2011, which appears in the data room report, that the application of 29 September 2010 and that of 11 November 2010 were separate.
837    It is also apparent from the summary referred to in paragraph 836 above that, during the same meeting, the Commission pointed out to Overgas that the transmission network and the Bulgarian transit pipeline were two separate networks, without a connection between them. Overgas replied that such a connection existed through the Chiren storage facility. That is also apparent from Overgas’ follow-up observations of 19 July 2012 concerning that meeting, in which Overgas stated that a connection between the transmission network and the transit pipeline could be established with insignificant costs and within a very short period of time.
838    However, in the same follow-up observations of 19 July 2012, Overgas clearly stated that the two routes referred to in its requests for access, namely the transmission network and the Bulgarian transit pipeline, were alternative routes for the transmission of the same volumes of gas, with a strong preference on its part for access through the transmission network.
839    Thus, an overall and contextual reading of all the information in the file validates the finding, in recital 101(g) of the contested decision, that, by the letter of 11 November 2010, Overgas was seeking to ascertain whether the same quantities of gas, indicated in its application of 29 September 2010, could be transported, by an alternative route, to the same exit points as already set out in the original application, through the Bulgarian transit pipeline, with the Negru Vodă 2 and 3 entry points.
840    As regards, next, the conclusion which the Commission drew from recital 101(g), in recitals 475 and 476 of the contested decision, concerning Bulgartransgaz’s deliberate misinterpretation of the letters referred to in paragraph 839 above as constituting two cumulative requests, it must be noted that both the report of the working group and the memorandum of Bulgartransgaz’s Executive Director of 17 December 2010 stated that, by its letter of 11 November 2010, Overgas had ‘confirmed to Bulgartransgaz EAD the quantities of natural gas [to be transported] and the transmission schedule, [and had] also indicat[ed] another entry point [namely] Negru Vodă 2, 3’.
841    In addition, the working group had recommended, in its report preceding the meeting of 1 December 2010, that, pursuant to Article 9(3) of the 2007 Access Rules, Bulgartransgaz should send Overgas ‘written statements of opinion on the condition of access to the transmission network’ and conclude ‘gas transmission contracts that meet the technical parameters … set in th[ose] statements of opinion’.
842    Similarly, in his memorandum of 17 December 2010, Bulgartransgaz’s Executive Director had reiterated that position, expressly acknowledging that ‘Overgas [met] the conditions for … access to the … transmission network’.
843    It follows that both the working group and Bulgartransgaz’s Executive Director had indeed understood that the letters of 29 September and 11 November 2010 presented alternative requests by Overgas regarding the transmission of gas through either the transmission network or the Bulgarian transit pipeline, despite the fact that the letter of 11 November 2010 did not expressly mention the Bulgarian transit pipeline, but only the related entry points, namely Negru Vodă 2 and 3.
844    It follows that the applicants cannot claim that the time taken by Bulgartransgaz to reply to Overgas’ requests for access for 2011 was justified by the duplication of the requested quantities, which was clearly not something that Bulgartransgaz would have had to consider at the end of 2010, when the processing of applications for access to the transmission network should have been completed.
845    The second argument, based on the duplication of the capacity requested by Overgas in its letters of 29 September and 11 November 2010, must therefore be rejected.
(iii) The third complaint, arguing that Overgas had no interest in gaining access to the transmission network before 2013
846    The applicants submit that Overgas’ conduct demonstrates that it had no interest in obtaining access to the transmission network before 2013. They put forward two arguments.
847    In the first place, that lack of interest is apparent from the fact that Overgas did not request access to the transmission network for 2012 and that it was not until May 2012 that it made enquiries about the status of the complaint that it had made to the Bulgarian regulator. According to the applicants, Overgas’ main objective was to bring an action against them.
848    In that regard, it must be noted that, according to the case-law, the Commission, as an administrative authority acting in the general interest, must carefully examine all the facts and points of law brought to its attention by the complainants in order to establish whether there has been an infringement (see, to that effect, judgment of 11 October 1983, Schmidt v Commission, 210/81, EU:C:1983:277, paragraph 19). Where the complainant shows a valid legitimate interest, the Commission cannot be required to investigate the possible existence of other reasons in respect of the complainant (judgment of 7 June 2006, Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission, T‑213/01 and T‑214/01, EU:T:2006:151, paragraph 118).
849    It follows that the possible existence of reasons other than those establishing the complainant’s legitimate interest is irrelevant for the purposes of the Commission’s decision, acting in the general interest, whether or not to pursue an alleged infringement.
850    In the present case, the file shows that Overgas sent requests for access to the transmission network in 2010 and contacted the Commission, the Bulgarian regulator and the Bulgarian Minister for Energy in 2011 to complain about Bulgartransgaz’s conduct.
851    Furthermore, as follows from the examination of the first argument of the second complaint (see paragraphs 805 to 824 above), by its letter of 29 September 2010, as supplemented by the letter of 4 October 2010, Overgas had submitted a full application for access to the transmission network for 2011 and Bulgartransgaz failed to take a decision on that application within the period laid down by Article 9(3) and the last sentence of Article 8 of the 2007 Access Rules.
852    Those factors establish, beyond other possible reasons, which are irrelevant, that Overgas did have an interest in obtaining the requested access to the transmission system for 2011.
853    Lastly, the applicants also cannot rely on the absence of an application by Overgas for access to the transmission network for 2012, since it was not until 19 June 2012 that Bulgartransgaz took a decision on Overgas’ first application for access to that network, which was submitted in 2010 and related to 2011.
854    The first argument must therefore be rejected.
855    In the second place, the applicants submit that, until 2013, Overgas did not have gas at the entry of the transmission network, due to not having access to the Romanian Pipeline 1, and that Bulgartransgaz had no knowledge either of Overgas’ approaches to Transgaz to obtain such access or of Transgaz’s refusal to grant it that access.
856    In that regard, for the reasons set out in paragraphs 755 to 758 above, the 2007 Access Rules did not allow Bulgartransgaz to make access to the transmission network subject to access to the Romanian Pipeline 1.
857    In any event, it is not apparent from the file that Bulgartransgaz ever requested Overgas, in the context of the examination of its requests for access submitted for 2011, to provide proof of access to the Romanian Pipeline 1.
858    In those circumstances, the applicants cannot rely on the fact that Overgas had not obtained access to the Romanian Pipeline 1 in 2011 in order to argue that it did not have a genuine interest in obtaining access to the transmission network before 2013.
859    The argument must therefore be rejected and, thus, the third complaint must be rejected in its entirety.
(2)    The fourth complaint, arguing that the access to the transmission network granted to Overgas for 2013 was not restrictive
860    The applicants dispute the finding, made by the Commission in the contested decision, that the access to the transmission network granted to Overgas for 2013 was restrictive.
861    In the contested decision, the Commission found that, although Overgas had been granted access to the transmission network for 2013, the conditions for that access were restrictive and non-transparent. In that regard, it found that Bulgartransgaz had initially granted Overgas access for a short period, initially of three months, under uncertain conditions, and that Bulgartransgaz had then decided, in an arbitrary and non-transparent manner, not to extend the contract concluded with Overgas before, ultimately, extending that contract (see recitals 475 and 479 of the contested decision).
862    The applicants submit, by contrast, that Overgas obtained uninterrupted and satisfactory access to the transmission network from January 2013 and that the conditions to which that access was subject, namely first providing proof of access to the Romanian Pipeline 1 and proof of gas supply contracts concluded with customers, were justified.
863    In that regard, it should be noted that, in the letter of 19 June 2012, Bulgartransgaz rejected Overgas’ applications for access of 29 September and 11 November 2010, stating, inter alia, that Overgas had not provided contracts that had previously been concluded with final customers at the transmission network exit points to which the applications related (see paragraph 822 above).
864    By letter of 23 November 2012, Overgas submitted an application for access to the transmission network for the 2013 gas year. It expressly stated in that letter that, even though it was not required to provide the contracts concluded with final customers under the 2007 Access Rules, it attached them to its application in order to comply with the requirements set out by Bulgartransgaz in its letter of 19 June 2012 (see recital 108(a) of the contested decision).
865    On 12 December 2012, Bulgartransgaz informed Overgas that it would be granted the requested access only after providing evidence that it could deliver the requested volumes of gas at the Negru Vodă 1 entry point, by producing the contract concluded for the upstream transmission of those volumes through the Romanian Pipeline 1 and the schedule relating to that contract, which had to reflect the volumes and delivery deadlines covered by the application for access to the transmission network (see recital 108(b) of the contested decision).
866    By letter of 22 January 2013, Overgas informed Bulgartransgaz that it had concluded an agreement with Bulgargaz for access to the Romanian Pipeline 1. It also attached to that letter its supply contract concluded with Gazprom for the first quarter of 2013 and the schedule for the delivery of gas at Negru Vodă 1 for 2013 (see recital 108(c) of the contested decision).
867    By letter of 29 January 2013, Bulgartransgaz sent the draft transmission contract to Overgas, for signature, reminding it of the need to provide Bulgartransgaz with an agreement concluded upstream for the transmission of gas on the Romanian Pipeline 1 as well as the corresponding schedule for the delivery of gas at the Negru Vodă 1 point.
868    On 31 January 2013, Overgas provided a copy of the access agreement for 2013 which had been concluded that same day, with Bulgargaz, for the transit of gas through the Romanian Pipeline 1 (see recital 108(c) of the contested decision).
869    On the same day, Bulgartransgaz and Overgas, in turn, signed a contract for the transmission of gas through the transmission network from the Negru Vodă 1 entry point to 37 exit points (‘the 2013 transmission contract’) (see recital 110 of the contested decision). That contract stipulated that it applied retroactively from 1 January 2013 (see Article 4.1 of that contract) and that it ended on 31 December 2013 (see Article 3.1(a) of that contract), subject to early termination in the cases provided for in Article 3.1(b) to (h) thereof. Article 3.1(h) of that contract granted Bulgartransgaz, inter alia, the right to terminate it unilaterally if Overgas did not provide, at the end of each quarter, proof that it had obtained the right to use the Romanian Pipeline 1 for the following quarter.
870    By letter of 26 March 2013, Overgas informed Bulgartransgaz that, pursuant to Article 3.1(h) of the 2013 transmission contract, it confirmed that it had concluded, first, a gas supply contract with Gazprom at the entry point of the Romanian Pipeline 1, and attached, in that regard, a letter from Gazprom of 1 March 2013 attesting to that. Second, Overgas also stated that it had concluded the 2013 pipeline access agreement, which guaranteed it the possibility of having its gas transported on that pipeline, and, in support, attached a letter from Bulgargaz dated 22 March 2013.
871    It follows from the information set out in paragraphs 865 to 870 above that Bulgartransgaz made the conclusion of the 2013 transmission contract subject to the provision of proof that Overgas had access to the Romanian Pipeline 1 and, under Article 3(1)(h) of that contract, Bulgartransgaz granted Overgas only conditional access to the transmission network.
872    As follows from paragraphs 755, 758 to 760 and 771 to 779 above, the 2007 Access Rules did not allow Bulgartransgaz to make the conclusion of the 2013 transmission contract subject to the provision of proof of access to the Romanian Pipeline 1.
873    However, although the fact that Bulgartransgaz did not comply with the applicable regulatory framework when it granted access to the transmission network may be a relevant factor for the determination of the abusive nature of its conduct on the market (see, to that effect, judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraphs 223 and 224), it is also necessary, for that conduct to be abusive, that it was capable of producing at least potentially anticompetitive effects on the relevant markets (see, to that effect, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraphs 50 and 51).
874    In the present case, it is apparent from recital 475 of the contested decision that the Commission bases its finding, namely that the access to the transmission network granted to Overgas for 2013 was restrictive, on the considerations set out in recital 312 of the contested decision, relating to the manner in which Overgas had obtained access to the Romanian Pipeline 1 for that same year, 2013.
875    In recital 312 of the contested decision, the Commission states that, according to Overgas, the access to the Romanian Pipeline 1 was unsatisfactory for two reasons. First, Bulgargaz had granted that access only after concluding gas supply contracts with its own customers and that access only allowed Overgas to conclude similar supply contracts with its own subsidiaries (see recital 312(a)). Second, the 2013 pipeline access agreement was concluded for a short duration, without any guarantee that it would be extended beyond 31 March 2013, and the conditions for the extension of that contract were unclear, which prevented Overgas from entering into commitments in the medium or long term, upstream, with its gas supplier and, downstream, with its customers in Bulgaria (see recital 312(b) of that decision).
876    Similarly, the finding made in recitals 479 and 480 of the contested decision, referring to the restrictive and non-transparent nature of the access to the transmission network granted to Overgas for 2013, is based on the relevant considerations set out in recitals 108 to 111, in Section 5.2.4.2 of that decision.
877    The Commission’s analysis in recitals 108 to 111 of the contested decision repeatedly links the finding of Overgas’ insufficient access to the transmission network for 2013 to the fact that Bulgartransgaz made both the granting of that access and its renewal each quarter conditional on access being obtained to the Romanian Pipeline 1.
878    It is therefore apparent from the contested decision that the conclusion that Bulgartransgaz did not grant Overgas satisfactory access to the transmission network for 2013 is based solely on the fact that that access was subject to the access granted to Overgas to the Romanian Pipeline 1 in 2013; according to the Commission, the latter access was itself of a short duration and subject to uncertain conditions.
879    However, it follows from the analysis set out in paragraphs 863 to 878 above that the Commission has not established to the requisite legal standard that Bulgargaz had not granted Overgas satisfactory access to the Romanian Pipeline 1 for 2013. In particular, the Commission has not adduced sufficient evidence of the circumstances put forward in recital 312(a) and (b) of the contested decision, referred to in paragraph 875 above. In particular, it has not established that the initial three-month duration of the agreement for access to the Romanian Pipeline 1 for 2013 had had at least a potentially anticompetitive effect on the Bulgarian gas supply markets, and the contemporaneous evidence demonstrates, on the contrary, that that agreement, from which Overgas benefited, enabled competition to be dynamic by allowing several customers of the Bulgarian gas supply markets to change supplier and join that new entrant.
880    It follows that the Commission’s conclusion that Bulgartransgaz did not grant Overgas satisfactory access to the transmission network for 2013, which is based exclusively on the unproven granting of allegedly restricted access to the Romanian Pipeline 1 in that same period, has not been established to the requisite legal standard either.
881    The Commission has therefore failed to demonstrate that the conditions under which Bulgartransgaz had granted Overgas access to the transmission network for 2013 could have had anticompetitive effects on the Bulgarian gas supply markets.
882    The complaint is therefore well founded.
883    Accordingly, the second part must be upheld in part.
(c)    The third part, arguing that Toplofikacia Razgrad was not refused access to the transmission network
884    The applicants submit that Bulgartransgaz did not refuse Toplofikacia Razgrad access to the transmission network.
885    The Commission disputes the applicants’ arguments.
886    In the contested decision, the Commission found that, as a result of the difficulties encountered by Overgas in obtaining access to the transmission network, its subsidiary and customer Toplofikacia Razgrad requested access to that network from 11 July 2012 (see recitals 107, 151 and 473). The Commission accused Bulgartransgaz of having, de facto, refused that request after making the granting of the requested access subject to conditions which were unnecessary and which Toplofikacia Razgrad could not satisfy (see recitals 107, 151, 156, 473, 475 and 477 of that decision).
887    Thus, on 11 July 2012, Toplofikacia Razgrad made an application to transport [300-350] million cubic metres of gas from the Negru Vodă 1 entry point to the Razgrad 2 exit point in 2012 and 2013. The application was accompanied by a preliminary gas supply contract between Toplofikacia Razgrad and Overgas, dated 9 July 2012, for the period 1 November 2012 to 31 January 2013, under which Overgas undertook to supply Toplofikacia Razgrad with gas at the Razgrad 2 delivery point. That preliminary contract made the conclusion of a final contract between the two parties conditional on Overgas obtaining access to the transmission network (see recitals 107, 151 and 152 of the contested decision).
888    By letter of 18 July 2012, Bulgartransgaz requested Toplofikacia Razgrad to establish that it was able to supply, during the relevant period, at the Negru Vodă 1 entry point, the volumes of gas indicated in its application. Furthermore, Bulgartransgaz indicated that the delivery point specified in the preliminary contract between Toplofikacia Razgrad and Overgas, namely Razgrad 2, was an exit point of the transmission network and that, therefore, it was for Overgas to submit an application for access to that network (see recital 153 of the contested decision).
889    Following that comment by Bulgartransgaz, on 23 October 2012 Toplofikacia Razgrad submitted an addendum to its preliminary contract with Overgas stipulating that, from then onwards, the gas delivery point was Negru Vodă 1, and no longer Razgrad 2. However, the clause which made the conclusion of a final contract between the two parties conditional upon Overgas obtaining access to the transmission network remained unchanged (see recital 154 of the contested decision).
890    On 20 November 2012, Bulgartransgaz gave a favourable opinion on Toplofikacia Razgrad’s application for access (‘the opinion of 20 November 2012’). However, in that opinion, Bulgartransgaz stated that the conclusion of a transmission contract with Toplofikacia Razgrad was subject to the latter providing a timetable for the deliveries of gas to be transported through the transmission network and subject to proof that the contracted volumes of gas could be delivered at the Negru Vodă 1 entry point. In that regard, Bulgartransgaz stated that Toplofikacia Razgrad could provide either proof that it was able itself to transport the gas through the Romanian Pipeline 1, or proof that its supplier, Overgas, could do so (see recital 155 of the contested decision).
891    In addition, in the opinion of 20 November 2012, Bulgartransgaz stated that the preliminary contract concluded between Toplofikacia Razgrad and Overgas provided that the conclusion of their final gas supply contract was subject to Overgas obtaining access to the transmission network. It inferred from this that ‘the conclusion of a final contract for natural gas supply and the ensuring of the natural gas quantities for transmission [was] not contingent on [Toplofikacia Razgrad] obtaining access to the … transmission network, but on [Overgas] obtaining access to [that] network’ (see, also, recital 155(b) of the contested decision).
892    The Commission concluded that Bulgartransgaz had, ultimately, refused Toplofikacia Razgrad’s application by imposing two conditions, namely:
–        that Toplofikacia Razgrad provide proof that it had secured a gas supply to the Negru Vodă 1 entry point;
–        that Overgas obtain access to the transmission network (see recitals 156 and 475 of the contested decision).
893    According to the Commission, the first of those conditions could not be satisfied before 2013 and, as regards the second, Overgas’ application for access to the transmission network had, at the time of Toplofikacia Razgrad’s application for access to that network, just been refused (see recitals 475 and 477 of the contested decision).
894    The applicants put forward, in essence, three complaints against those findings.
(1)    The first complaint, arguing that the condition for access to the Romanian Pipeline 1 was justified
895    The applicants submit that the Commission erred in law in criticising Bulgartransgaz for having required Toplofikacia Razgrad to provide it with proof that it was able to deliver the volumes of gas to the entry point of the transmission network, Negru Vodă 1. They submit, on that point, that:
–        Bulgartransgaz’s requirement set out in its letter of 18 July 2012 was justified because the preliminary contract concluded between Toplofikacia Razgrad and Overgas, as had initially been notified to Bulgartransgaz, referred to Razgrad 2 as the point of delivery of the gas by Overgas to Toplofikacia Razgrad;
–        Bulgartransgaz could, under the applicable rules, request such proof at the stage of concluding the transmission contract.
896    In that regard, for the reasons set out above, in particular in paragraphs 755, 758 to 760, 771 and 777 to 779, the 2007 Access Rules did not allow Bulgartransgaz to make third-party access to the transmission network subject to the provision of proof of access to the Romanian Pipeline 1, either at the first stage of the access procedure or at the time of the conclusion of the transmission contract.
897    It is true that the application for access submitted by Toplofikacia Razgrad by its letter of 11 July 2012, referred to in paragraph 887 above, required clarification in so far as the preliminary contract between Toplofikacia Razgrad and Overgas accompanying that letter incorrectly identified Razgrad 2 as being the point of delivery of the gas. However, that letter clearly indicated that Toplofikacia Razgrad wished to transport the gas from the Negru Vodă 1 entry point to the Razgrad 2 exit point. Therefore, the only information that Bulgartransgaz was entitled to request was verification of the transmission network entry point in the supply contract and, above all, the identification of the operator, Overgas or Toplofikacia Razgrad, who would carry out the delivery of the gas that was to be transmitted through that network.
898    However, the regulatory framework did not in any way require Toplofikacia Razgrad or Overgas to prove that at least one of them was able to deliver to the Negru Vodă 1 entry point the volumes of gas to which the application for access related.
899    The Commission therefore did not err in law in finding, in recital 156(b) and in recital 477 of the contested decision, that Bulgartransgaz had made Toplofikacia Razgrad’s access to the transmission network conditional on the provision of information that was not necessary, or even justified, regarding access to the Romanian Pipeline 1.
900    The first complaint must therefore be rejected.
(2)    The second complaint, arguing that Bulgartransgaz did not make Toplofikacia Razgrad’s access to the transmission network subject to Overgas’ access to the same network
901    The applicants submit that the Commission erred in finding, in recital 156 of the contested decision, that Bulgartransgaz had made Toplofikacia Razgrad’s access to the transmission network conditional on Overgas first obtaining access to that network. They argue that it was clear that Bulgartransgaz was seeking clarification as to the intended user of the transmission network because the preliminary contract between Toplofikacia Razgrad and Overgas stipulated that the delivery through the transmission network would be carried out by Overgas.
902    In that regard, the Commission found, in recital 156 of the contested decision, that, since it was unable to meet the conditions imposed by Bulgartransgaz in the opinion of 20 November 2012, in particular the condition concerning Overgas’ access to the transmission network, Toplofikacia Razgrad ultimately never obtained access to the transmission network. According to the Commission, that condition was irrelevant.
903    The Court finds that the wording of the opinion of 20 November 2012 (see paragraph 891 above) shows that, despite the amendment, in the addendum to the preliminary contract concluded between Toplofikacia Razgrad and Overgas, of the gas delivery point, Bulgartransgaz stated that the conclusion of the final supply contract between those two parties remained subject to Overgas obtaining access to the transmission network.
904    It is true that Overgas’ access to the transmission network, prior to the conclusion of the final supply contract between Toplofikacia Razgrad and Overgas, did not in any way concern Bulgartransgaz, who was a third party to that contract.
905    However, the finding that the conclusion of the supply contract was subject to Overgas obtaining access to the transmission network was in no way expressed, in the opinion of 20 November 2012, as being a condition for granting Toplofikacia Razgrad access to the transmission network.
906    The Commission was therefore wrong to find that Bulgartransgaz had in fact made Toplofikacia Razgrad’s access to the transmission network conditional on Overgas obtaining access to that network.
907    Consequently, the second complaint must be upheld.
(3)    The third complaint, arguing that Toplofikacia Razgrad was not refused access to the transmission network
908    The applicants dispute the finding in recital 475 of the contested decision, whereby the Commission alleged that Bulgartransgaz had in fact refused Toplofikacia Razgrad access to the transmission network because the two conditions to which the grant of such access was subject, referred to in paragraph 892 above, were impossible to satisfy. The applicants submit, in essence, that it follows from their first two complaints that the finding that there was a refusal of access is factually incorrect. They argue that Bulgartransgaz had approved Toplofikacia Razgrad’s application for access and that, if Toplofikacia Razgrad had been able to deliver gas to the entry point of the transmission network, a contract in that regard would have been concluded.
909    In that regard, it is sufficient to note that, as follows from the analysis of the first complaint (see paragraphs 896 to 899 above), Bulgartransgaz could not make access to the transmission network subject to access to the Romanian Pipeline 1, with the result that that condition could, ultimately, amount to a refusal of access.
910    The third complaint must therefore be rejected.
911    It follows from the foregoing considerations that the only complaint in the third part which must be upheld is the second complaint, which relates solely to the issue of an alleged condition to which Toplofikacia Razgrad’s access to the transmission network was made subject. Since that is not sufficient to conclude that Bulgartransgaz did not refuse Toplofikacia Razgrad access to the transmission network, it follows that the second complaint cannot, on its own, lead to the third part being upheld, and, consequently, the third part must be rejected.
(d)    The fourth part, arguing that RWE did not make an application for access to the transmission network
912    The applicants submit that Bulgartransgaz’s conduct did not hinder RWE’s access to the transmission network, since RWE had not made a genuine application for access to that network.
913    The Commission disputes the applicants’ arguments.
914    In the contested decision, the Commission concluded that Bulgartransgaz’s conduct had made it difficult for RWE to access the transmission network (see recital 473). The Commission found, first, that Bulgartransgaz had taken six months to respond to RWE’s initial request for access to that network and, second, that Bulgartransgaz had not provided RWE with the information on the available capacity on that network to enable it to submit a proper request (see recital 474).
915    The Commission also stated that Bulgartransgaz’s failure to allow RWE access to the transmission network differed significantly from the treatment of Bulgargaz, who had been granted access to that network without even signing a contract with Bulgartransgaz (see recitals 143 and 474 of the contested decision).
916    The applicants dispute the contested decision on that point, raising two complaints.
(1)    The first complaint, arguing that RWE did not submit an application to which Bulgartransgaz was required to respond
917    The applicants submit that the form which RWE submitted for requesting access to the transmission network, dated 2 February 2011 (‘the form of 2 February 2011’), was an almost blank document, which contained only RWE’s address and information on that company, and that Bulgartransgaz was not required to respond to it within the regulatory period.
918    In that regard, as described in paragraph 742 above, under Articles 7 to 9 of the 2007 Access Rules, which were applicable when the form of 2 February 2011 was submitted, any application for access to the transmission network had to be submitted in writing, by way of a form to be provided by the TSO. If the latter considered that the application was incomplete, it had to invite the applicant to supplement its application within 14 days. Next, the TSO had one month from receipt of a complete application to send the applicant a written opinion on the conditions for access or to reject the application in a reasoned manner.
919    It is apparent from the file that, in the present case, the form of 2 February 2011 entitled ‘Application for providing access to Bulgartransgaz EAD gas transmission network’ was submitted according to the template published by Bulgartransgaz on its website. However, in that form, RWE did indeed merely mention its name, contact details, the names of its representatives, the name of the contact person and the fact that it was a trader in natural gas. However, the headings relating to the volume and quality of the gas to be transported, the period concerned and the information on the entry and exit points of the transmission network were not completed.
920    It must be stated that the form of 2 February 2011, in the version submitted, did not constitute a sufficiently complete application for access to the transmission network for Bulgartransgaz to be able to respond to it as it stood. Despite those shortcomings, the contested decision described the form of 2 February 2011 as a ‘formal application for access to the Bulgarian transmission network’.
921    Furthermore, it is apparent from recitals 137 and 138 of the contested decision, which are not disputed by the applicants, that Bulgartransgaz did not react following receipt of the form of 2 February 2011 and that RWE subsequently sent, on 28 April and 30 June 2011, two letters repeating its request for access to the transmission network and threatening to refer the matter to the Bulgarian regulator.
922    By letter of 13 July 2011 (‘the letter of 13 July 2011’), Bulgartransgaz stated that it was replying to the form of 2 February 2011, that it had reviewed it in accordance with the 2007 Access Rules and that RWE needed to provide Bulgartransgaz with the following information in order for that application to be processed:
–        the entry and exit points of the transmission network that were covered by that application;
–        minimum and maximum hourly usage at those entry and exit points;
–        the period, volumes of gas, delivery schedule and technical characteristics of the gas covered by that application;
–        a copy of the gas supply contracts, whether preliminary or already concluded.
923    Bulgartransgaz concluded the letter of 13 July 2011 by proposing a meeting with RWE. It is apparent from recital 140 of the contested decision that two meetings took place during which Bulgartransgaz explained to RWE that it could not process its application without the additional information.
924    The Court notes that the information requested in the letter of 13 July 2011 is only the information that RWE should have provided in the form of 2 February 2011. It was therefore only from the date on which RWE provided that information that it could be considered that the one-month period, at the end of which the TSO was required to adopt a decision under the last paragraph of Article 8 of the 2007 Access Rules, began to run. However, as stated in recital 142 of the contested decision, according to Bulgartransgaz, RWE never provided the requested information, and there is nothing in the file to refute such an assertion.
925    For the sake of completeness, it should also be noted that it is true that Bulgartransgaz did not respond to the form of 2 February 2011 until RWE had sent it two letters, on 28 April and 30 June 2011, repeating its request for access to the transmission network and threatening to refer the matter to the Bulgarian regulator. However, Bulgartransgaz cannot be criticised for having acted in breach of the 2007 Access Rules, since the prescribed period did not begin to run until the application was complete. At the hearing, the parties confirmed that no deadline was imposed on the TSO to inform an applicant for access that its application was incomplete and that the 14-day period laid down in Article 8 of those rules concerned the applicant for access, as regards the completion of its application.
926    It follows that the first complaint is well founded and must therefore be upheld.
(2)    The second complaint, arguing that there was no difference in treatment between Bulgargaz and RWE
927    In the first place, the applicants submit that any allegation of discrimination, by Bulgartransgaz, between Bulgargaz and RWE is irrelevant unless it constitutes an infringement of Article 102 TFEU.
928    That argument must be rejected.
929    Although an abuse of a dominant position may take the form of an unjustified difference in treatment (see, to that effect, judgments of 17 July 1997, GT-Link, C‑242/95, EU:C:1997:376, paragraph 41; of 24 October 2002, Aéroports de Paris v Commission, C‑82/01 P, EU:C:2002:617, paragraph 114; and of 7 October 1999, Irish Sugar v Commission, T‑228/97, EU:T:1999:246, paragraph 140), in the contested decision, the Commission did not find that there was an abuse of that kind. In particular, it did not classify Bulgartransgaz’s conduct as discriminatory when compared with its conduct towards Bulgargaz, but referred, in recitals 143 and 474, to the difference in treatment between Bulgargaz and RWE in order to highlight the readiness with which Bulgartransgaz, in the Commission’s view, reacted to Bulgargaz’s requests for access to the network, when compared with the treatment of RWE’s requests. The Commission stated, in particular, that Bulgartransgaz granted access to Bulgargaz, even in the absence of a contract signed in that regard.
930    Therefore, that consideration cannot be rejected, a priori, as being irrelevant.
931    In the second place, the applicants argue that there was no difference in the way in which Bulgartransgaz treated Bulgargaz and RWE as found in recitals 143 and 474 of the contested decision. They submit that those two operators were in different situations on the ground that, unlike Bulgargaz, RWE had requested general access to the transmission network, since it had not specified the entry and exit points of that network which it wished to use. The applicants state that Bulgartransgaz did not grant Bulgargaz general access to the transmission network.
932    As follows from the analysis of the first complaint (see paragraphs 928, 929, 931 and 934 above), the Commission was wrong to classify the treatment of RWE’s request for access as a refusal of access.
933    It follows that, in so far as, in the contested decision, the Commission referred to Bulgartransgaz’s difference in treatment between Bulgargaz and RWE, respectively, only in order to support its analysis as regards Bulgartransgaz’s alleged infringements vis-à-vis RWE, the upholding of the first complaint also means, consequently, that the second complaint must be upheld. Bulgartransgaz cannot be criticised for having treated RWE in a discriminatory manner, when RWE was not refused access, since it did not supplement its application for access notwithstanding Bulgartransgaz’s request to that effect.
934    Accordingly, the second complaint and, thus, the fourth part must be upheld.
(e)    The fifth part, arguing that there was no elimination of competition on the Bulgarian gas supply markets
935    The applicants submit that the Commission has not established to the requisite legal standard that Bulgartransgaz’s alleged practices regarding access to the transmission network had led to the elimination of competition on the Bulgarian gas supply markets. First, satisfactory access to that network was granted to company B and company C between 2010 and 2012 and to Overgas from 2013. Second, the obstacle to Overgas gaining access to that network before 2013 was that Transgaz had refused it access to the Romanian Pipeline 1, which was a circumstance unconnected to the applicants’ conduct.
936    The Commission, supported by Overgas, disputes the applicants’ arguments.
937    In that regard, first, it must be noted that, if conduct falling within the scope of an exclusionary practice is to be characterised as abusive, that presupposes that that conduct was capable of restricting competition and, in particular, of producing the alleged exclusionary effects, and that assessment must be undertaken having regard to all the relevant facts surrounding that conduct (see judgments of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 154 and the case-law cited, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraphs 50, 64 and 72 and the case-law cited).
938    The Commission must, in that regard, demonstrate, in the first place, that the practice at issue was capable, when implemented, of producing such exclusionary effects, in that it was capable of making it more difficult for competitors to enter or remain on the market in question and, by so doing, that that practice was capable of having an impact on the market structure, and, in the second place, that that practice relied on the use of means other than those which come within the scope of competition on the merits (judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 61).
939    However, those exclusionary effects must not be purely hypothetical. Consequently, the Commission cannot rely on the effects that that practice might produce or might have produced if certain specific circumstances – which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise – had arisen or did arise (see, to that effect, judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 70 and the case-law cited).
940    Second, in areas giving rise to complex economic assessments, such as the assessment of the abuse of a dominant position and its effects on competition, the EU judicature must, in the review of legality laid down in Article 263 TFEU, amongst other things, not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 54 and the case-law cited).
941    It follows from the examination of the ‘sub-plea’ alleging an incorrect finding that access to the transmission network was refused that:
–        Bulgartransgaz could not require proof of access to the Romanian Pipeline 1 as a precondition for the processing of applications for access, inter alia, from Overgas and Toplofikacia Razgrad (see first part and first complaint of the third part);
–        Bulgartransgaz did not process Overgas’ application for access to the transmission network for 2011 within the period laid down by the 2007 Access Rules and, on 19 June 2012, it justified its refusal by deliberately misinterpreting Overgas’ letters of 29 September and 11 November 2010 (see second complaint of the second part).
942    However, in the first place, it follows from that examination that the Commission has not established to the requisite legal standard that Overgas’ letter of 30 July 2010 constituted an application for access under the 2007 Access Rules. Thus, the analysis of Bulgartransgaz’s abusive conduct on the transmission network should be only from the letter of 29 September 2010 (see first complaint of the second part).
943    In the second place, the Commission has also not established to the requisite legal standard that Bulgartransgaz’s modus operandi, consisting of preventing, restricting and delaying third-party access to the transmission network, continued during the period after 1 January 2013 (see fourth complaint of the second part).
944    In order to conclude that Bulgartransgaz had not granted Overgas genuine access to the transmission network in 2013, the Commission only relied on its incorrect findings that Bulgargaz had abusively refused or restricted Overgas’ access to the Romanian Pipeline 1 in 2013 (see paragraphs 875 to 879 above). Consequently, the conclusion that insufficient access was granted to the transmission network in 2013 is also necessarily incorrect.
945    Moreover, the Court notes that the contested decision does not refer to any application for access to the transmission network for 2014 that was rejected. Although, in recitals 112 to 116, that decision contains a description of the reasons why Overgas considered that its access to the transmission network in 2014 and 2015 remained insufficient, the Commission states in those recitals that Overgas had enjoyed uninterrupted access to that network during that period and that Overgas’ criticisms at the time concerned, principally, the procedure used by Bulgartransgaz to process applications for access.
946    However, in recital 479 of the contested decision, the Commission concluded that, despite Overgas’ criticisms regarding the nature of the information required by Bulgartransgaz for processing applications for access, Bulgartransgaz had granted Overgas uninterrupted access to the transmission network for the years 2014 to 2016, in accordance with a procedure which correctly applied the 2013 Access Rules in force at the time.
947    Nevertheless, the Commission considered that Bulgartransgaz’s allegedly anticompetitive conduct on the transmission network had continued, in essence, until the point at which Bulgargaz put an end to its allegedly abusive conduct on the Romanian Pipeline 1, namely until 1 January 2015 (see recitals 479 and 480 of the contested decision).
948    Since the Commission has not established that Bulgargaz had engaged in abusive conduct with regard to access to the Romanian Pipeline 1 during that period, it has also not proved that Bulgartransgaz’s conduct was abusive in relation to access to the transmission network for 2014.
949    It follows that the Commission has established to the requisite legal standard that Bulgartransgaz had adopted a modus operandi consisting of preventing, restricting and delaying third-party access to the transmission network only between 29 September 2010 and 31 December 2012.
950    In particular, the Commission has demonstrated that, during that period, Bulgartransgaz hindered the access of Overgas and Toplofikacia Razgrad to that infrastructure.
951    However, it follows from the examination of the first ‘sub-plea’ that, until 1 January 2013, Overgas and Toplofikacia Razgrad did not have access to the Romanian Pipeline 1 for reasons which are not attributable to proven abusive conduct on the part of the applicants (see paragraphs 291 to 293, 325 to 333 and 686 above).
952    Consequently, even if Bulgartransgaz had granted Overgas and Toplofikacia Razgrad access to the transmission network before 1 January 2013, those two operators could not have entered the Bulgarian gas supply markets. The gas supply to those two operators came exclusively from Russia. Access to the Romanian Pipeline 1, which they did not have for reasons not attributable to the applicants, was essential for the transportation of their gas from Russia to Bulgaria and thus to allow entry to the Bulgarian gas market.
953    It follows that, although the Commission has proved that, between 29 September 2010 and 31 December 2012, Bulgartransgaz failed to comply with its regulatory obligations and hindered the access of Overgas and Toplofikacia Razgrad to the transmission network, it has not, however, established that that conduct was capable, and not merely hypothetically, of restricting competition and, in particular, of having exclusionary effects on the Bulgarian gas supply markets, within the meaning of the case-law cited in paragraphs 937 to 939 above, or, therefore, that that conduct constituted an abuse of a dominant position within the meaning of Article 102 TFEU.
954    In the light of the foregoing considerations, it must be concluded that the Commission has not demonstrated that Bulgartransgaz’s conduct concerning access to the transmission network was capable, and not purely hypothetically, of restricting competition and, in particular, of having exclusionary effects on the Bulgarian gas supply markets or, therefore, that that conduct constituted an abuse of a dominant position within the meaning of Article 102 TFEU.
955    The fifth part must therefore be upheld.
(f)    Conclusion on the second ‘sub-plea’
956    First, it follows from the foregoing that the Commission has not proved that Bulgartransgaz’s conduct between 29 September 2010 and 31 December 2012, by hindering third-party access to the transmission network, was capable of restricting competition on the Bulgarian gas supply markets and, therefore, that it fell within the scope of Article 102 TFEU. Second, it has not established that that conduct continued after 31 December 2012.
957    Consequently, the second ‘sub-plea’ must be upheld.
4.      The third ‘sub-plea’, alleging an incorrect finding that access to the Chiren storage facility was refused
958    The applicants dispute the finding in the contested decision that Bulgartransgaz refused access to the Chiren storage facility. The ‘sub-plea’ is divided into four parts:
–        in the first part, the applicants complain that the Commission has failed to establish that the Chiren storage facility was an essential facility;
–        in the second part, they dispute the anticompetitive nature of Bulgartransgaz’s conduct during the period prior to the adoption of the 2012 Storage Access Rules;
–        in the third and fourth parts, they claim that the 2012 Storage Access Rules and the 2014 Storage Access Rules are not anticompetitive.
(a)    The first part, alleging that the Commission has failed to establish that the Chiren storage facility was an essential facility
959    The applicants complain that the Commission has failed to establish, in the contested decision, that the Chiren storage facility was an essential facility, for the purposes of the establishment of an infringement of Article 102 TFEU. They argue that:
–        neither the applicable regulatory framework under EU law nor the fact that that facility was the only gas storage facility in Bulgaria demonstrates that it was essential;
–        the Commission has not established either that access to the Chiren storage facility was indispensable in order to compete on the Bulgarian gas supply markets, or that the lack of access to that facility eliminated competition on those markets.
960    The Commission, supported by Overgas, disputes the applicants’ arguments.
961    In that regard, it should be noted that the Court of Justice has already held that although, within the meaning of the judgment in Bronner, the dominant undertaking may be forced to grant a competitor access to its infrastructure, only where such access is indispensable to the business of such a competitor, a regulatory obligation to grant access can be relevant for the assessment of abusive conduct, for the purposes of Article 102 TFEU, on the part of a dominant undertaking that is subject to sectoral rules (see, to that effect, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraphs 49 and 57). Since that legislation defines the legal framework applicable to the sector in question and, in so doing, contributes to the determination of the competitive conditions under which the undertaking in a dominant position carries on its business in the relevant markets, it is a relevant factor in the application of Article 102 TFEU to the conduct of that undertaking and, inter alia, for the purposes of the assessment the abusive nature of such conduct (see, to that effect, judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraphs 223 and 224).
962    In particular, where an undertaking in a dominant position is subject to such a regulatory obligation, the Commission is not required to demonstrate, in order to find that there has been an abusive refusal of access to that infrastructure, that it is ‘indispensable’ within the meaning of paragraph 41 of the judgment in Bronner (see, to that effect, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 60).
963    The applicants submit that the case-law cited in paragraph 962 above is not applicable in the present case because, first, there is no general obligation to grant access to the Chiren storage facility and, second, that facility can be replicated.
964    As the Commission found in recitals 164 to 166 of the contested decision, the regulatory framework for access to gas storage facilities is established at European and national level.
965    The legislation at European level includes:
–        Regulation No 715/2009, which establishes, inter alia, standards for third-party access services, capacity allocation, congestion management and transparency in gas storage facilities;
–        Directive 2009/73, which provides, in essence, in Article 33(1) thereof, as did Article 19(1) of Directive 2003/55, which it replaced, that, where access to a storage facility is technically and/or economically necessary to ensure efficient access to the gas network for the purposes of supplying customers, Member States may opt for one of the two access regimes, namely either negotiated or regulated access, provided that the implementation is based on objective, transparent and non-discriminatory criteria.
966    At national level, the Bulgarian Law on Energy established a regulated access regime for gas storage facilities.
967    In particular, since 1 July 2007, Article 172b(1) of the Bulgarian Law on Energy provides that gas storage facility operators are required to grant access to those facilities to all users under equivalent conditions. In addition, under Article 30(1)(14) of that law, gas storage is subject to tariffs regulated by the Bulgarian regulator.
968    Accordingly, the regulatory framework applicable to the Chiren storage facility established that access to that facility was necessary in order to be able to compete effectively on the Bulgarian gas supply markets and imposed an obligation on Bulgartransgaz to grant third-party access to that facility on equal terms.
969    Therefore, in accordance with the case-law cited in paragraph 961 above, in order to establish that a refusal to grant access to the Chiren storage facility constituted an infringement of Article 102 TFEU, the Commission was not required to demonstrate that that facility was indispensable, under the last condition set out in paragraph 41 of the judgment in Bronner.
970    It follows that the first complaint, arguing that there was no general obligation to grant access to the Chiren storage facility, must be rejected as unfounded.
971    Furthermore, as regards the complaint regarding whether the Chiren storage facility could be replicated, Bulgartransgaz’s obligation to grant access to that facility under the applicable regulatory framework, referred to in paragraphs 965 to 968 above, exempted the Commission from having to demonstrate that that facility was indispensable and, consequently, from having to demonstrate that it could not be replicated (see, to that effect, judgment of 13 December 2018, Slovak Telekom v Commission, T‑851/14, EU:T:2018:929, paragraph 121).
972    In any event, it should be noted that the Commission found, in recital 628 of the contested decision, that there were technical and economic obstacles which made it excessively difficult to replicate the Chiren storage facility. In that regard, it stated that, although there was a depleted gas field in Galata (Bulgaria) which could have been converted into a storage facility, the approvals necessary for that purpose had not been granted. Lastly, the Commission stated that Bulgarian legislation imposed certain licensing requirements for the operation of a storage facility, which in practice proved very difficult to obtain.
973    The applicants have not adduced any evidence to dispute those considerations and thus to support their argument that it is possible to replicate the Chiren storage facility.
974    The complaint must therefore be rejected as ineffective and, moreover, unfounded.
975    The first part must therefore be rejected.
(b)    The second part, arguing that Bulgartransgaz’s conduct during the period prior to the adoption of the 2012 Storage Access Rules was not anticompetitive
976    The applicants dispute the finding in the contested decision that Bulgartransgaz’s conduct during the period prior to the adoption of the 2012 Storage Access Rules was anticompetitive. They put forward three complaints.
977    The Commission, supported by Overgas, disputes the applicants’ arguments.
(1)    The first complaint, arguing that Bulgartransgaz acted transparently
978    The applicants dispute the Commission’s finding, in recital 499 of the contested decision, that Bulgartransgaz acted in a non-transparent manner. They put forward four arguments.
(i)    The first argument, regarding an independent finding of anticompetitive discrimination in favour of Bulgargaz
979    The applicants submit that the findings in recital 499 of the contested decision, regarding Bulgartransgaz’s lack of transparency, are in fact an independent finding of anticompetitive discrimination in favour of Bulgargaz. They argue that such a finding is flawed because it does not appear in the statement of objections, which found that Bulgartransgaz’s conduct amounted only to a refusal to supply.
980    In that regard, in recital 450 of the contested decision, the Commission found that the BEH Group had abused its dominant position by preventing, restricting and delaying access to the transport and storage infrastructures which it controlled and that its conduct was capable of foreclosing its actual or potential competitors.
981    As regards, more specifically, the Chiren storage facility, the Commission formulated, in essence, the same criticism in paragraph 305 of the statement of objections, finding that Bulgartransgaz’s conduct prevented or attempted to prevent third parties from accessing that facility and that those third parties were thus deprived of access to a source that could allow them to compete on equal terms with Bulgargaz on the Bulgarian gas supply markets.
982    In addition, in recital 499 of the contested decision, the Commission found that:
–        Bulgartransgaz had acted in a non-transparent manner by failing, until mid-2012, to publish information on the available capacity at the Chiren storage facility;
–        as a result of that conduct, third parties were supposed to submit their requests for access without having information on the capacity allocation mechanism, the available storage capacity or the timeframe allowing them to be treated in accordance with the ‘first come, first served’ principle;
–        for example, in 2011, company F was refused access to the Chiren storage facility, because Bulgartransgaz had granted the available capacity to Bulgargaz without first informing potentially interested operators of the availability of that capacity;
–        it was apparent from Bulgartransgaz’s letters to Bulgargaz, as well as from Table No 1 (recital 182) and footnote 267 to the contested decision, that Bulgargaz was the only operator that was properly informed about the available storage capacity;
–        that non-transparent and discriminatory approach allowed Bulgartransgaz to reject requests from third parties.
983    It follows that the main purpose of recital 499 of the contested decision is to demonstrate how the failure to publish the information regarding the available capacity at the Chiren storage facility, combined with the allocation of that capacity based on the ‘first come, first served’ principle, made it practically impossible for third parties to gain access to that facility, and thereby favoured Bulgargaz.
984    Thus, the contested decision does contain not, as such, an independent finding of anticompetitive discrimination in favour of Bulgargaz as regards access to the Chiren storage facility, but only a comment which remains marginal to the criticism of Bulgartransgaz in terms of the non-transparent processing of third-party requests for access. Moreover, that complaint had been set out in paragraph 312 of the statement of objections.
985    Therefore, the argument that the Commission found, in recital 499 of the contested decision, that there had been independent abuse in the form of anticompetitive discrimination which, moreover, did not appear in the statement of objections, must be rejected.
(ii) The second argument, regarding the fact that the rejection of company F’s request for access was based on the ‘first come, first served’ principle
986    The applicants submit that the Commission could not rely, in recital 499 of the contested decision, on the rejection of the application for storage capacity submitted by company F on 1 September 2011, because the reason for that refusal was that Bulgargaz had submitted its application beforehand, namely on 25 August 2011. They argue that, if company F had made enquiries with Bulgartransgaz regarding the available storage capacity, as Bulgargaz had done previously, Bulgartransgaz would have given company F priority.
987    In that regard, it must first of all be noted that, under Article 15(1)(b) and Article 19(1) and (2) of Regulation No 715/2009, applicable from 3 March 2011, Bulgartransgaz was, as the SSO, required to make public the information that was necessary for the users of the Chiren storage facility to gain effective access to that facility, inter alia the available storage capacity, as well as detailed information on the services offered and the conditions applied in connection with such access.
988    In particular, Regulation No 715/2009 required Bulgartransgaz to:
–        make public information on contracted and available storage facility capacity on a numerical basis on a regular and rolling basis and ‘in a user-friendly standardised manner’ (see Article 19(2) of Regulation No 715/2009);
–        always disclose the information required by that regulation in a meaningful, quantifiably clear and easily accessible way and on a non-discriminatory basis (see Article 19(3) of Regulation No 715/2009);
–        make public the amount of gas in the Chiren storage facility, inflows and outflows, and that facility’s available capacity and update that information at least daily (see Article 19(4) of Regulation No 715/2009).
989    Furthermore, as follows from paragraph 967 above, under Article 172b(1) of the Bulgarian Law on Energy, Bulgartransgaz was required, as SSO, to grant access to gas storage facilities to all users under equal conditions. Moreover, that obligation appears, as a prohibition of discrimination, in Article 13(1)(b) and Article 33(1) of Directive 2009/73.
990    The Commission found, in recitals 167, 168 and 499 of the contested decision, that, at the time when company F submitted its request, on 1 September 2011, Bulgartransgaz was still not complying with its obligation, under Articles 15 and 19 of Regulation No 715/2009, to make public the available capacity at the Chiren storage facility, which the applicants do not dispute.
991    In addition, in the same period, Bulgartransgaz was allocating the capacity of the Chiren storage facility in accordance with the ‘first come, first served’ principle (see recital 168 of the contested decision).
992    As the Commission rightly stated, in the absence of information being made public on the storage capacity, third parties were supposed to submit their requests for access to that facility without having any information about the capacity allocation mechanism, the available storage capacity or the timeframe allowing them to be treated according to the ‘first come, first served’ principle (see recital 499 of the contested decision).
993    The Commission also found, without being challenged by the applicants, that:
–        Bulgargaz injected gas into the Chiren storage facility from at least the 2007/2008 gas year and, up to and including the 2011/2012 gas year, it was the only gas operator to do so (see Table No 1 (recital 182) of the contested decision);
–        when Bulgargaz submitted its request on 25 August 2011, it already had a storage capacity of [300-350] million cubic metres at that facility and that request concerned whether it was possible to obtain additional storage capacity; on the same day, Bulgartransgaz responded favourably to Bulgargaz’s request by informing it of the possibility of storing an additional 20 to 25 million cubic metres of gas in September 2011 and, potentially, additional volumes in October 2011;
–        on 29 August 2011, Bulgargaz accepted the injection of additional volumes of gas in September 2011 and rejected the proposal for October 2011 (see recitals 222 and 247 of the contested decision);
–        on 1 September 2011, company F submitted a request to Bulgartransgaz for the injection of [5-30] million cubic metres of gas into the Chiren storage facility in September 2011 and for the withdrawal of those volumes at the end of 2011 (see recital 248 of the contested decision);
–        on 15 September 2011, Bulgartransgaz informed company F that there was no available capacity for the requested period because the remaining capacity in September 2011 had just been allocated to Bulgargaz, and potentially interested operators had not been informed beforehand that that capacity was available; Bulgartransgaz also informed company F that it was in the process of examining the possibilities of injecting gas in October and that it would announce any available capacity on its website (see recital 249 of the contested decision);
–        it was not until the beginning of July 2012 that Bulgartransgaz began to publish on its website the data on the available capacity at the Chiren storage facility (see recitals 169 and 256 of the contested decision).
994    It follows from the foregoing that Bulgargaz’s request of 25 August 2011 was made in the context of an ongoing commercial relationship between it and its sister company Bulgartransgaz (see recitals 182, 222, 247 and 256 of the contested decision). Moreover, since the 2007/2008 gas year, Bulgargaz had been the only user of the Chiren storage facility and, since no information on storage capacity was made public, was the only operator to be properly informed of the available capacity in that facility (see recitals 182 and 499 of the contested decision).
995    Thus, Bulgartransgaz could not rely either on its failure to comply with the obligation to make public the available capacity at the Chiren storage facility under Articles 15 and 19 of Regulation No 715/2009 or on the fact that Bulgargaz had requested information on the available storage capacity before company F did so, in order to refuse the latter’s request for access. That is all the more so since Bulgartransgaz had to refrain from any discrimination between users of the Chiren storage facility under Article 172b(1) of the Bulgarian Law on Energy.
996    In those circumstances, the applicants also cannot criticise company F for not having made enquiries as early as Bulgargaz regarding the available capacity at the Chiren storage facility.
997    Therefore, the argument that the Commission could not rely on Bulgartransgaz’s treatment of company F to support its conclusion in recital 499 of the contested decision must be rejected.
(iii) The third argument, regarding the information available at the time of company C’s request for access
998    The applicants submit that the Commission was wrong to conclude, in recital 241 of the contested decision, that company C had no, or almost no, information on the available capacity at the Chiren storage facility when it submitted its request for access to that facility on 5 June 2012. They maintain that the information published by Bulgartransgaz on 30 March 2012 on the allocation procedure for the 2012/2013 gas year included information on the available storage capacity.
999    In that regard, it should be noted, as the Commission observed in recital 245 of the contested decision, that the information regarding capacity at the Chiren storage facility published on 30 March 2012 concerned only the available storage capacity, to be allocated in the context of the first capacity allocation procedure which was to take place within the following three weeks and for which the deadline for the submission of applications was 17 April 2012, that is to say, more than one and a half months before company C submitted its application (see recital 186 of the contested decision).
1000 The applicants have not provided any evidence to show that, following the closure of that first allocation procedure and, therefore, at the time when company C submitted its request, Bulgartransgaz had published information on the outcome of that procedure or on the storage capacity that was still available.
1001 In those circumstances, the argument that the Commission was wrong to conclude that company C did not have information on the available capacity at the Chiren storage facility when it submitted its request for access to that facility, on 5 June 2012, must be rejected.
(iv) The fourth argument, concerning the general allegation that Bulgargaz was informed in advance, by Bulgartransgaz, regarding the available capacity at the Chiren storage facility
1002 The applicants dispute the allegation in recital 499 of the contested decision that Bulgartransgaz had informed Bulgargaz in advance about the available capacity at the Chiren storage facility, arguing first of all that Table No 1 in recital 182 of the contested decision shows that Bulgargaz had made enquires with Bulgartransgaz before receiving the information on the available capacity. Next, the applicants submit that that table incorrectly states that, for the 2008/2009 storage period, Bulgargaz had been informed of the available capacity at the Chiren storage facility before submitting its request, on 13 March 2008, because, according to them, the information sent to Bulgargaz in that regard on 17 October 2007 was in response to a letter that Bulgargaz had sent to Bulgartransgaz on 4 October 2007. Lastly, the applicants submit that, in any event, the Commission was not entitled to rely on that latter circumstance because it was outside the infringement period.
1003 In that regard, it should be noted that, as the applicants state, Table No 1 in recital 182 of the contested decision shows that, during the infringement period, namely for the 2009/2010 and 2011/2012 storage periods, Bulgargaz received information on the available capacity at the Chiren storage facility only after having requested it. The only circumstance in support of the Commission’s allegation concerning information provided even before an application was made goes back to the 2008/2009 storage period, which is outside the infringement period.
1004 It is true that, as the Commission submits, evidence that does not date from the infringement period is not devoid of any probative value and may be taken into account either in order to corroborate the interpretation of other evidence or if it forms part of a body of evidence as to abusive conduct during the infringement period (see, to that effect, judgments of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraphs 427 and 428, and of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 188).
1005 However, in the present case, the Commission has not adduced any evidence or indicia capable of demonstrating that, during the infringement period, Bulgargaz received information on the available capacity at the Chiren storage facility before even requesting that information. Moreover, the only information in the contested decision in support of that allegation, namely Table No 1 in recital 182, demonstrates the opposite (see paragraph 1003 above).
1006 It follows that the fourth argument is well founded and that, therefore, the first complaint must be upheld, in part, in that regard, and rejected as to the remainder.
(2)    The second complaint, alleging that the Commission disregarded the fact that the ‘first come, first served’ principle applied within a given timeframe
1007 The applicants submit that the conclusion in recital 497 of the contested decision that Bulgartransgaz accepted Bulgargaz’s access request for the 2011/2012 storage period, yet ignored Overgas’ earlier request, is based on a misunderstanding of the ‘first come, first served’ principle. They submit that requests for storage capacity were examined, in accordance with that principle, based on a specific timetable for each gas year and that no applicant was entitled to request storage capacity well in advance, as Overgas had done.
1008 In that regard, it is apparent from the file that:
–        on 29 April 2010, Overgas informed Bulgartransgaz of its intention to store gas at the Chiren storage facility and requested, to that end, information on the available storage capacity (see recital 214 of the contested decision);
–        on 30 July 2010, Overgas requested Bulgartransgaz to grant it access to that facility, stating that it intended to store 500 million cubic metres of gas there in the 2011/2012 gas storage year (see recital 214 of the contested decision);
–        on 18 February 2011, Bulgargaz submitted to Bulgartransgaz its schedule for the injection of gas at the Chiren storage facility for the 2011/2012 storage period (see recitals 222 and 497 of the contested decision).
1009 Bulgargaz’s request of 18 February 2011 was accepted, under the ‘first come, first served’ principle, even though it had been submitted almost seven months after Overgas’ request (see recitals 222 and 497 of the contested decision).
1010 In that regard, the applicants emphasise that the storage requests submitted well in advance of the gas year for which storage capacity was requested were not examined under the ‘first come, first served’ principle.
1011 In recitals 182 and 507 of the contested decision, the Commission provided only one example of a request which it claims was made by Bulgargaz well in advance, namely that of 20 October 2009, which sought to obtain access, not for the 2009/2010 storage period that was ongoing at the time, but for the subsequent 2010/2011 storage period, which started almost six months later, in April 2010.
1012 However, it is apparent from Table No 1 in recital 182 of the contested decision that:
–        Bulgargaz’s letter sent on 20 October 2009 requesting access to the Chiren storage facility for the 2010/2011 storage period was followed, on 9 March 2010, by another request for the same storage period;
–        Bulgartransgaz’s only response is dated 16 April 2010, that is to say, after the request of 9 March 2010, which was made within the strict timeframe of the access requests for the 2010/2011 storage period that was ongoing at the time.
1013 In those circumstances, the Commission could not, in recitals 182 and 507 of the contested decision, solely on the basis of Bulgargaz’s letter of 20 October 2009 requesting access to the Chiren storage facility for the 2010/2011 storage period, dispute Bulgartransgaz’s claim that the ‘first come, first served’ principle applied within a strict timeframe relating to the storage period that was ongoing at the time.
1014 It is true that, in its pleadings, the Commission maintained that it was Bulgartransgaz’s ‘practice and own initiative’ to inform its sister company regarding the available storage capacity well before the beginning of the gas year. In that regard, the Commission based a general argument on Table No 1 in recital 182 of the contested decision, from which it is apparent, inter alia, that, as regards the 2011/2012 storage period, starting in April, Bulgargaz’s first request was submitted on 18 February 2011 and Bulgartransgaz replied to it on 15 April 2011. The Court finds that that was a request made approximately six weeks before the beginning of the gas year in question, and therefore not ‘well in advance’, with the result that the Commission’s general argument is not supported by that circumstance either.
1015 Consequently, it must be concluded that the Commission has not demonstrated to the requisite legal standard that the fact that Bulgartransgaz accepted Bulgargaz’s request of 18 February 2011 for access to the Chiren storage facility for the 2011/2012 storage period despite Overgas’ request of 30 July 2010 was not justified by the application, within a strict timeframe, of the ‘first come, first served’ principle, as the applicants claim.
1016 Moreover, the applicants submit, without being challenged on that point by the Commission, that the ‘first come, first served’ principle had to apply within a strict timeframe in order to prevent an accumulation of capacity at the Chiren storage facility, which would have run counter to the purpose of that facility, which was to cover fluctuations in demand.
1017 It follows from the foregoing that the second complaint must be upheld.
(3)    The third complaint, alleging distortion of the evidence relating to Overgas’ requests for access for the 2011/2012 storage period
1018 The applicants submit that the Commission distorted the evidence relating to Overgas’ requests for access for the 2011/2012 storage period by concluding, in recital 498 of the contested decision, that Bulgartransgaz had overburdened Overgas with unreasonable requests for information and that it had deliberately misinterpreted the information provided by Overgas.
1019 In recitals 226 and 498 of the contested decision, the Commission found that Bulgartransgaz’s conduct was based on the fact that it had deliberately misinterpreted the storage requests submitted by Overgas in September and November 2010 by aggregating those requests. That led Bulgartransgaz to reject them on the ground that they exceeded the technical capacity of the Chiren storage facility (see footnotes 172 and 614 to the contested decision).
1020 The applicants maintain that the storage requests submitted by Overgas on 4 October and 11 November 2010 were not alternatives, but were separate requests to which Bulgartransgaz had to respond and that, in view of the capacity constraints of the Chiren storage facility, Bulgartransgaz could not accept all the capacity requested by Overgas and, therefore, had to request clarification from it.
1021 In that regard, it is apparent from the file that, following its request of 30 July 2010 for access to the Chiren storage facility for the 2011/2012 storage period (see paragraph 1008 above), Overgas repeated its request to Bulgartransgaz on four occasions, namely on 24 August, 29 September, 4 October and 11 November 2010 (see recitals 214 to 218 of the contested decision). Thus:
–        by letter of 24 August 2010, Overgas made a request to Bulgartransgaz, on the one hand, to inject 160 million cubic metres of gas into the Chiren storage facility in September and October 2010 and then 480 million cubic metres of gas in the second and third quarters of 2011, that is, a total of 640 million cubic metres of gas between September 2010 and September 2011 and, on the other hand, to withdraw 300 million cubic metres of gas between January 2011 and March 2012 (see recital 215 of the contested decision);
–        on 24 September 2010, Bulgartransgaz replied to Overgas, stating that, as regards the storage requests for September and October 2010, Overgas had not submitted any information or schedule for the transmission of the gas volumes to be injected into the Chiren storage facility (see recital 216 of the contested decision);
–        on 29 September 2010, Overgas submitted a detailed request to Bulgartransgaz for the transmission of 480 million cubic metres of gas to the Chiren storage facility for the second and third quarters of 2011, detailing the relevant monthly volumes for each of those two quarters;
–        Overgas repeated that request, on 4 October and 11 November 2010, for the same volume of 480 million cubic metres of gas and the same period, again detailing the relevant quarterly and monthly volumes (see recitals 217 and 218 of the contested decision).
1022 In its letter of 19 June 2012, that is, more than 19 months after Overgas’ last letter of 11 November 2010, Bulgartransgaz made a decision on Overgas’ request for access to the Chiren storage facility and concluded that the requested access could not be granted because the requested storage capacity, namely 960 million cubic metres of gas, far exceeded the technical capacity of that facility. That conclusion was based on the fact that Bulgartransgaz had aggregated the storage capacity that had been requested in the two letters sent by Overgas on 29 September and 11 November 2010.
1023 It is apparent from the file that, in the two letters of 29 September and 11 November 2010, Overgas had still indicated that it wished to store 480 million cubic metres of gas at the Chiren storage facility during the second and third quarters of 2011 and had attached, on each occasion, a detailed injection schedule in that regard (see recitals 215 to 218 of the contested decision).
1024 Moreover, it is not apparent either from the report by Bulgartransgaz’s working group or from the memorandum of Bulgartransgaz’s Executive Director that Bulgartransgaz raised internally the issue of Overgas’ supposed double request for access to the Chiren storage facility or that it interpreted the requests submitted by Overgas on 29 September and 11 November 2010 as having to be aggregated. Those two documents show that Bulgartransgaz’s working group and Executive Director only assessed Overgas’ request for access to the transmission network made on those dates and recommended that it be granted. They did not, however, make a decision on Overgas’ storage request (see recital 219 of the contested decision). The working group and Bulgartransgaz’s Executive Director nevertheless stated that Overgas’ storage request, as set out in the letter of 29 September 2010, concerned a volume of 480 million cubic metres of gas for the second and third quarters of 2011 and that the request in the letter of 11 November 2010 was a confirmation of the request of 29 September 2010.
1025 In any event, even if there could have been doubts as to the volumes of gas to which Overgas’ storage request related, the applicants have failed to explain why it took Bulgartransgaz more than 19 months to inform Overgas of its position in that regard, which could, at least, have led Overgas to clarify the quantity of gas for which it was requesting storage.
1026 In those circumstances, the Commission was entitled to find that, by aggregating the access requests submitted by Overgas in 2010, Bulgartransgaz had deliberately misinterpreted those requests.
1027 For the sake of completeness, the Court notes that Overgas’ letter of 24 August 2010 concerned two different storage periods, namely the 2010/2011 period and the 2011/2012 period. The applicant’s reaction, which is dated 24 September 2010, focused on the storage requests for the 2010/2011 period. Bulgartransgaz’s next communication to Overgas took place only on 19 June 2012, and contained the rejection of the access request for the 2011/2012 storage period. Therefore, the contested decision does not demonstrate that Bulgartransgaz overburdened Overgas with unnecessary requests for information regarding its requests for access to the Chiren storage facility for the 2011/2012 storage period.
1028 However, that does not invalidate the finding in recital 498 of the contested decision as regards Bulgartransgaz’s abusive conduct in relation to Overgas’ request for access to the Chiren storage facility for the 2011/2012 storage period, since, as follows from paragraphs 1023 to 1026 above, Bulgartransgaz acted abusively, inter alia, by deliberately aggregating the requests of 29 September and 11 November 2010.
1029 The complaint must therefore be rejected.
1030 In the light of the foregoing considerations, although the second part, which argues that Bulgartransgaz’s conduct during the period prior to the adoption of the 2012 Storage Access Rules was not anticompetitive, must be upheld in part as regards the first and second complaints, it can, ultimately, only be rejected.
(c)    The third part, arguing that the 2012 Storage Access Rules were not anticompetitive
1031 The applicants dispute the conclusion in recitals 492 and 515 of the contested decision that the 2012 Storage Access Rules constituted an implicit refusal to supply. They raise four complaints.
1032 The Commission, supported by Overgas, disputes the applicants’ arguments.
(1)    The first complaint, alleging a lack of proof that Bulgartransgaz designed the 2012 Storage Access Rules to favour Bulgargaz
1033 The applicants submit that the Commission has failed to establish that, as it claims in recital 493 of the contested decision, the 2012 Storage Access Rules were designed by Bulgartransgaz to favour Bulgargaz by giving it priority access to the Chiren storage facility.
1034 In that regard, it is apparent from the contested decision that the 2012 Storage Access Rules laid down a procedure for the allocation of storage capacity in two stages, and that has not been disputed by the applicants.
1035 In the first stage, priority was given to the gas supplier which had the highest ‘base sale quantity’. That supplier was granted the full capacity requested (see recital 170(a) of the contested decision).
1036 The base sale quantity of each supplier requesting access to the Chiren storage facility was equal to the smaller of the following two quantities, namely:
–        first, the volume of gas sold during the ongoing gas storage year to public suppliers, in other words, during the storage year preceding the year covered by the access requests (see Article 5.1 of the 2012 Storage Access Rules and recital 170(a) of the contested decision);
–        second, the volume of gas contracted for sale to public suppliers for the following gas storage year, namely the year covered by the access requests (see recital 170(a) of the contested decision).
1037 In the second stage, the remaining available capacity was allocated to the other applicants in proportion to their base sale quantity (see Article 5.2 of the 2012 Storage Access Rules and recital 170(b) of the contested decision).
1038 The Commission considered that the taking into account, during the first stage of the procedure for the allocation of storage capacity, of the lower of the two compared quantities of gas sale meant that, in practice, smaller suppliers and new entrants would always have a very low base sale quantity, given their limited sales during the ongoing year. That would be the case even if they had contracted higher sales for the following year. By contrast, the already established operator, in this case Bulgargaz, would always have a higher base sale quantity, given the higher contracted sales during the ongoing year, and would, therefore, as a matter of fact, have priority for capacity allocation (see recital 171 of the contested decision).
1039 The applicants dispute that finding, relying on two arguments.
1040 In the first place, the applicants rely on the fact that the Chiren storage facility was the only storage facility in Bulgaria and that it had limited capacity. Thus, in order to ensure that suppliers bound by public supply obligations could meet their obligations in the event of a seasonal increase in demand, the 2012 Storage Access Rules gave priority to the applicant with the highest volume of contracted sales to public suppliers, which Bulgargaz was during the relevant period.
1041 The Commission argues in response that, according to its Interpretative note on Directive 2009/73 concerning third-party access to storage facilities, dated 22 January 2010, ‘in determining the storage needs for fulfilling [public service obligations], there must be no discrimination against newcomers, i.e. new market entrants taking [public service obligations] must be given the same right and their storage needs for [public service obligations] must be taken into account in the same manner as for the incumbent companies’ (see last paragraph of that note).
1042 In that regard, it should be noted that the system of judicial review of Commission decisions relating to infringements which it finds pursuant to Article 102 TFEU consists in a review of the legality in accordance with Article 263 TFEU (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42).
1043 The Court notes that, in the contested decision, the Commission did not rely on the conformity of the 2012 Storage Access Rules with its Interpretative note on Directive 2009/73 concerning third-party access to storage facilities, of 22 January 2010. The contested decision, in recitals 511 to 515, merely establishes that the 2012 Storage Access Rules were equivalent to a refusal to supply. Therefore, the Commission’s argument alleging that those access rules did not comply with the interpretative note is irrelevant.
1044  That being so, the Court notes that Bulgartransgaz was entitled, under Article 172b(2) of the Bulgarian Law on Energy, to refuse access to the Chiren storage facility because of a lack of capacity to fulfil the public supply obligations imposed on Bulgartransgaz, which is consistent with Article 35 of Directive 2009/73, read in conjunction with Article 2(1) and (13) of that directive. However, no provision of EU law allowed it to give priority to its sister company Bulgargaz, even if it was bound, as follows from paragraph 322 above, by public supply obligations.
1045 Moreover, even if, as the applicants claim, the aim of the system established by the 2012 Storage Access Rules was to ensure the fulfilment of public supply obligations, the applicants have failed to explain how the market shares of a gas supplier for the ongoing storage year are relevant for ensuring a priority in the capacity allocation procedure that complies with the public supply obligations for the following year, the latter being the year concerned by that procedure. As the contested decision rightly states in recital 171, the already-established operator would always have a higher base sale quantity in view of the higher contracted sales in the ongoing year, and would, therefore, as a matter of fact, have priority for capacity allocation, without that being justified on the basis of a public supply obligation during the year concerned by the ongoing allocation procedure.
1046 In the second place, the applicants submit that the fact that the 2012 Storage Access Rules placed new entrants with low existing sales at a disadvantage is irrelevant. They argue that, even though, during the relevant period, Bulgargaz always had higher sales, on the one hand, access to the Chiren storage facility was not a prerequisite for competing with Bulgargaz on the Bulgarian gas supply markets and, on the other hand, a new entrant could have attracted significant volumes of future sales over a period of two years and thus remove Bulgargaz from its position as a priority applicant.
1047 In that regard, it should be noted that, in recitals 339 and 491 of the contested decision, the Commission found, without being challenged by the applicants on that point, that access to storage facilities was essential in order to manage fluctuations in demand and thus to allow active participation in the gas supply markets. As the Commission then found in recital 530 of that decision, if a competitor of Bulgargaz had contracted a larger volume of gas sales for a given year, it would have needed a larger storage capacity from that year in order to cover seasonal fluctuations in demand from its larger customer base. Therefore, in practice, no competitor could have negotiated a larger volume of gas than Bulgargaz if it did not have the possibility of using the Chiren storage facility.
1048 It follows from the foregoing that the first complaint must be rejected.
(2)    The second complaint, arguing that there was a sufficient period of time for the preparation of access requests during the first procedure for the allocation of storage capacity
1049 By their second complaint, the applicants submit that the Commission was wrong to conclude that the period of 19 days set by Bulgartransgaz for the submission of requests for access to the Chiren storage facility for the 2012/2013 storage period was insufficient (see recital 188 of the contested decision). They argue, first, that that period did not prevent Bulgargaz from making such a request in good time and, second, that, in 2012, Overgas did not make any request for access to the Chiren storage facility or to the transmission network, which demonstrates that it had no interest in obtaining access to those infrastructures.
1050 In that regard, in the first place, the Commission found, in the contested decision, without being contradicted by the applicants, that:
–        the procedure for the allocation of storage capacity for the 2012/2013 storage period, covering a capacity of 300 million cubic metres at the Chiren storage facility, was launched only two days after the adoption of the 2012 Storage Access Rules, namely on 30 March 2012, and operators wishing to participate in that procedure had until 17 April 2012, that is, only 19 days after the adoption of those rules, to submit their application for capacity (see recitals 169, 186 and 188 of and footnote 274 to the contested decision);
–        in that limited 19-day period, operators wishing to participate in that procedure had to prepare a supply plan including access to the Romanian Pipeline 1 for the requested volumes of gas (see recital 188 of the contested decision, relying, in that regard, on Overgas’ response of 3 October 2013 to the Commission’s request for information of 18 September 2012);
–        Bulgargaz was the only operator to submit such an application within that period; under the 2012 Storage Access Rules, it was allocated all of the available capacity at the Chiren storage facility that was the subject of the allocation procedure for the 2012/2013 storage period and concluded a gas storage contract with Bulgartransgaz covering that capacity (see recital 187 of the contested decision).
1051 It follows that, before the launch of the procedure for the allocation of storage capacity for the 2012/2013 storage period, potentially interested third parties had almost no time, since they had only two days, to familiarise themselves with the new procedure and the new methodology for the allocation of capacity at the Chiren storage facility which were introduced by those rules.
1052 In addition, since the 2012 Storage Access Rules introduced a right of priority for allocation based on supply contracts concluded with public suppliers, a new entrant first had to conclude such contracts with its customers and a contract with Bulgartransgaz for the use of the transmission network, connected to the Chiren storage facility, and with Bulgargaz for access to the Romanian Pipeline 1.
1053 In those circumstances, the applicants cannot claim that the period of 19 days was sufficient to enable those third parties to prepare a supply plan and to submit an application for access to the Chiren storage facility.
1054 The fact that Bulgargaz managed to submit its application in the context of the allocation procedure for the 2012/2013 storage period does not call into question that conclusion. Unlike other potential applicants, Bulgargaz had a well-established commercial relationship with Bulgartransgaz, inter alia for access to the Chiren storage facility, an infrastructure which it had been using for several years. Furthermore, it already had access to the Romanian Pipeline 1, to the transmission network and to an extended customer base on the Bulgarian gas supply markets, and thus fulfilled the conditions enabling it to receive priority treatment under the procedure referred to in paragraphs 1035 to 1037 above, which was not the case for the operators entering those markets.
1055 In the second place, in so far as Bulgartransgaz waited until 19 June 2012 to make a decision on Overgas’ applications for access to the Chiren storage facility for the 2011/2012 storage period (see paragraphs 1022 and 1026 above), the applicants cannot rely on the absence of an application by Overgas for access to that infrastructure in 2012 in order to argue that Overgas had no interest in obtaining access to that infrastructure.
1056 In addition, Overgas’ multiple steps, from 2010, to obtain such access and the fact that it participated in the capacity allocation procedures for the 2013/2014 storage period and then for the 2014/2015 storage period confirm that it did have such an interest.
1057 In the light of the foregoing, the second complaint must be rejected.
(3)    The third complaint, alleging inconsistency in the Commission’s conclusions regarding the 2015/2016 storage period
1058 The applicants submit that the Commission’s position regarding the 2012/2013 storage period is inconsistent with its finding that there was no abusive conduct in relation to the 2015/2016 storage period, since, for those two periods, Bulgargaz was the sole applicant for access to the Chiren storage facility.
1059 In that regard, it should be noted that it is not apparent from recitals 518 and 519 of the contested decision that the reason why the Commission ruled out any abusive conduct on the part of Bulgartransgaz for the 2015/2016 storage period was that Bulgargaz was the only operator to have submitted an application for capacity at the Chiren storage facility for that period.
1060 The Commission found that Bulgartransgaz’s abusive conduct in respect of the Chiren storage facility had ended on 19 September 2014 because, from that date, it had, in essence, put an end to the delaying tactics set out on recital 492 of the contested decision (see recitals 518 and 519 of the contested decision) for the following reasons.
1061 First, the Commission stated that Bulgartransgaz had responded promptly to a request for access to the Chiren storage facility submitted by a company on 19 September 2014 and that it had issued a favourable opinion on that request. The access was thus granted four days later, on 23 September 2014 (see recitals 208 and 518 of the contested decision).
1062 Second, the Commission observed that, following the storage capacity allocation procedure in April 2014, Bulgartransgaz publicly advertised that there was spare storage capacity available (see recitals 207 and 518 of the contested decision).
1063 Third, the Commission stated that, in the context of the storage capacity allocation procedure in April 2015, Bulgargaz had requested only one third of the available capacity at the Chiren storage facility and that, following that procedure, Bulgartransgaz had immediately published the remaining available capacity (see recitals 209 and 519 of the contested decision).
1064 Fourth, the Commission found that, when company B requested access to the Chiren storage facility in December 2015, Bulgartransgaz had immediately accepted its request (see recitals 209, 213 and 519 of the contested decision).
1065 However, for the 2012/2013 storage period, the Commission was entitled to find that Bulgartransgaz had not given third parties sufficient time to prepare their applications (see paragraph 1053 above). It also found, without being challenged by the applicants on that point, that, during that period, Bulgartransgaz had not published the withdrawal capacity that remained available at the Chiren storage facility, which had prevented potential applicants from taking the necessary steps to use that capacity (see recital 189 of the contested decision).
1066 It follows that the Commission was entitled to conclude that, from 19 September 2014, Bulgartransgaz’s conduct in respect of the allocation of the capacity at the Chiren storage facility radically differed from its conduct as regards the 2012/2013 storage period.
1067 The third complaint must therefore be rejected.
(4)    The fourth complaint, regarding the storage access granted to Overgas for the 2013/2014 storage period
1068 The applicants submit that Bulgartransgaz processed Overgas’ storage request for the 2013/2014 storage period in accordance with the 2012 Storage Access Rules, that access to the Chiren storage facility was thus granted to Overgas and that the latter’s refusal to conclude a storage contract with Bulgartransgaz has nothing to do with the way in which Overgas’ request was dealt with.
1069 In that regard, it should be noted that, for the 2013/2014 storage period:
–        Bulgartransgaz initiated a procedure for the allocation of 300 million cubic metres of capacity available at the Chiren storage facility; it announced the capacity available for injection, namely 355 million cubic metres, and for withdrawal, namely 400 million cubic metres, exceeding the available storage capacity (see recital 190 and Table No 2 (recital 194) of the contested decision);
–        Bulgargaz requested firm and interruptible capacity for the injection of [310-385] million cubic metres of gas and the withdrawal of [290-365] million cubic metres of gas, and Overgas requested only firm capacity for injection and withdrawal of [150-200] million cubic metres of gas (see recital 191, Table No 2 (recital 194) and recital 195 of the contested decision);
–        as a result of the application of the 2012 Storage Access Rules, Bulgargaz was allocated a storage capacity of [200-275] million cubic metres of gas and, on 30 April 2013, Bulgargaz and Bulgartransgaz concluded a storage contract for that volume with an injection and withdrawal plan similar to that requested; in particular, Bulgargaz was authorised to withdraw gas between December 2013 and March 2014; by contrast, Overgas was allocated only the surplus, namely the capacity that Bulgargaz had not requested, namely [25-50] million cubic metres of gas, and that was conditional on Overgas withdrawing that volume from the Chiren storage facility in October and November 2013, and subsequently in October and November 2014; Overgas ultimately decided not to conclude a storage contract with Bulgartransgaz for the 2013/2014 storage period (see recitals 192 to 194, 196 to 198, 228 and 517 of the contested decision).
1070 The Commission was thus entitled to find, in recital 517 of the contested decision, that the storage capacity offered to Overgas was virtually useless because it would not have enabled it to balance its purchases and sales of gas. As is apparent from the file, Overgas would have had to withdraw all the gas stored at the Chiren storage facility during October and November, that is, before the beginning of the coldest period during which the peak consumption of gas in Bulgaria occurs, which is from 15 December to 15 February. Thus, if Overgas had accepted that offer, it would have had to incur additional storage costs for no consideration because the obligation to withdraw the volumes of gas before the peak consumption season would have prevented it from properly balancing its purchases and sales of gas (see recitals 199 and 228 of the contested decision).
1071 It is true that, as is apparent from recitals 38 and 161 and from Table No 2 in recital 194 of the contested decision, gas is injected into the Chiren storage facility during the ‘summer’ months (namely April to September) and withdrawn during the ‘winter’ months (namely October to March). However, the conditions which Bulgartransgaz granted to Bulgargaz were, in that regard, much more advantageous, since, unlike Overgas, Bulgargaz was authorised to withdraw gas from that facility between December 2013 and March 2014 (see Table No 2 (recital 194) of the contested decision), that is, for the most part, during the season of peak consumption.
1072 Consequently, the fourth complaint must be rejected and, therefore, the third part must be rejected.
(d)    The fourth part, arguing that the 2014 Storage Access Rules are not anticompetitive
1073 The applicants dispute the finding in recital 492 of the contested decision that the 2014 Storage Access Rules are anticompetitive. They put forward two complaints.
1074 The Commission, supported by Overgas, disputes the applicants’ arguments.
(1)    The first complaint, arguing that there was no abusive rejection of Overgas’ request for storage access for the 2014/2015 storage period
1075 The applicants submit that the Commission failed to carry out an objective assessment of the evidence relating to Bulgartransgaz’s handling of Overgas’ request made in the context of the storage capacity allocation procedure in April 2014 because the Commission concluded that there was an abusive refusal on the basis that Overgas was dissatisfied with the storage capacity that it had been offered.
1076 In that regard, it must be noted that, in recitals 201 to 206 and 229 of the contested decision, the Commission stated, without being challenged by the applicants, that:
–        in April 2014, Bulgartransgaz launched a procedure for the allocation of capacity at the Chiren storage facility for the 2014/2015 storage period (‘the 2014 allocation procedure’), governed by the 2014 Storage Access Rules;
–        the available injection capacity was 300 million cubic metres of gas and the available withdrawal capacity was 415 million cubic metres of gas;
–        Overgas requested the injection and the withdrawal of [80-130] million cubic metres of gas, whereas Bulgargaz requested all the available capacity for injection and withdrawal;
–        in application of the 2014 Storage Access Rules, Bulgargaz was allocated [85-95]% of the injection capacity that it had requested, whereas Overgas received an offer for only [20-30]% of the injection capacity that it had requested;
–        Overgas decided not to conclude a storage contract with Bulgartransgaz.
1077 The Commission has thus shown that the implementation of the 2014 Storage Access Rules continued to favour Bulgargaz to the detriment of third parties, for whom the allocation of the capacity at the Chiren storage facility under those rules was commercially unattractive (see recitals 206, 518 and 529 of the contested decision). Consequently, the fact that Overgas decided not to conclude a storage contract at the end of the 2014 allocation procedure, after Bulgartransgaz had offered it barely more than a quarter of the requested injection capacity, whereas its competitor Bulgargaz saw its request almost fully satisfied, constitutes evidence on which the Commission could rely in order to establish that there was a refusal to supply in respect of the Chiren storage facility (see recitals 201 to 206 and 229 of the contested decision).
1078 Furthermore, the Commission noted that Bulgargaz had ultimately not concluded a storage contract with Bulgartransgaz on the basis of the 2014 allocation procedure. The storage contracts which the two sister companies concluded in July and September 2014 covered only [5-30] million cubic metres and [70-95] million cubic metres of gas, respectively (see recital 207 of the contested decision), that is, a very small fraction of the volume initially requested by Bulgargaz and of the volume granted to it by Bulgartransgaz during that procedure. Thus, at the end of the 2014 allocation procedure, the Chiren storage facility retained a significant volume of available capacity.
1079 In the light of those considerations, the Commission could legitimately conclude that Bulgartransgaz’s modus operandi during the 2014 allocation procedure was aimed at preventing, restricting and delaying third-party access to the Chiren storage facility.
1080 The first complaint must therefore be rejected.
(2)    The second complaint, arguing that the 2014 Storage Access Rules were still in force at the end of the infringement period found in respect of the Chiren storage facility
1081 The applicants submit that the conclusion in recital 492 of the contested decision regarding the anticompetitive nature of the 2014 Storage Access Rules is invalidated by the finding, in recital 649, that the abusive conduct relating to the Chiren storage facility ended when access to that facility was granted to a third party on 19 September 2014, when the 2014 Storage Access Rules were still in force.
1082 However, it is apparent from recital 492 of the contested decision that the Commission did not base its findings regarding the Chiren storage facility on the existence of the 2014 Storage Access Rules as such. It found, in particular, that it was the way in which Bulgartransgaz had applied its 2014 Storage Access Rules when dealing with requests from third parties for access to that facility that constituted delaying tactics and, thus, a refusal to supply, which ended when Bulgartransgaz moved away from that practical application of the storage access rules on 19 September 2014 (see recital 492 of the contested decision and paragraph 1066 above).
1083 Thus, in recital 518 of the contested decision, the Commission found that the 2014 Storage Access Rules, adopted in April 2014, had not materially improved third-party access to the Chiren storage facility as regards the 2012 Storage Access Rules, because the storage capacity allocation system was still based on the ‘base sale quantity’ rule, which generally continued to favour the undertaking with the highest ongoing sales, namely Bulgargaz. In that regard, the Commission validly held that Bulgartransgaz’s modus operandi consisting of preventing, restricting and delaying third-party access to the Chiren storage facility had continued with the implementation of the 2014 Storage Access Rules, during the 2014 allocation procedure, the outcome of that procedure having once again favoured Bulgargaz to the detriment of third parties (see recitals 204, 206, 518 and 529 of the contested decision and paragraphs 1076, 1077 and 1079 above).
1084 The Commission found, however, that, in September 2014, Bulgartransgaz’s conduct had changed because it had ceased its delaying tactics by accepting, in the space of only four days, a request for access to that infrastructure from a third party and by, then onwards, properly announcing the available capacity at the Chiren storage facility (see recitals 207, 208 and 211 of the contested decision).
1085 The Commission thus concluded, in recital 649 of the contested decision, that the anticompetitive conduct relating to the Chiren storage facility had ended on 19 September 2014, when, in essence, Bulgartransgaz had processed for the first time a request for access to that facility in a non-dilatory manner (see recitals 208 and 211 of the contested decision).
1086 It follows that the 2014 Storage Access Rules constituted a tool used by Bulgartransgaz to perpetuate its delaying tactics vis-à-vis third parties until 19 September 2014. The fact that, on that date, Bulgartransgaz granted a third party satisfactory access to the Chiren storage facility, when those rules were still in force, merely shows that the anticompetitive application of those rules, which is the conduct of which Bulgartransgaz is accused in the contested decision, ended on that date.
1087 The argument that the abusive nature of the 2014 Storage Access Rules is invalidated by the finding that the abusive conduct relating to the Chiren storage facility ceased on 19 September 2014 must therefore be rejected as ineffective.
1088 Accordingly, the fourth part must be rejected.
(e)    Conclusion on the third ‘sub-plea’
1089 It follows from the examination of this ‘sub-plea’ that the Commission has established to the requisite legal standard that Bulgartransgaz had adopted an modus operandi consisting of preventing, restricting and delaying third-party access to the Chiren storage facility between 30 July 2010 and 19 September 2014. In particular, it has demonstrated that Bulgartransgaz’s conduct hindered the access of Overgas, company F and company C to that facility.
1090 The Commission considered that Bulgartransgaz’s conduct was capable of restricting competition on the Bulgarian gas supply markets because, in the absence of access to the Chiren storage facility, Bulgargaz’s competitors were not able to manage seasonal fluctuations in gas supply and demand and, therefore, were prevented from developing offers on equal terms on those markets (see recital 623 of the contested decision).
1091 The factual situations concerning the barriers encountered by Overgas, company F and company C as regards access to the Chiren storage facility are twofold.
(1)    Company F’s request for access of 1 September 2011 and Overgas’ requests for access before 1 January 2013
1092 Bulgartransgaz’s conduct in relation to its handling of company F’s request for access, submitted on 1 September 2011, and its conduct in respect of Overgas’ requests for access before 1 January 2013, should be considered together.
1093 In that regard, it should be noted that, during the infringement period, the ability to gain access to the Chiren storage facility depended on the ability to gain access upstream to the Romanian Pipeline 1. The latter was the only route transporting gas to the transmission network which, in turn, was the only infrastructure connected to that storage facility (see recitals 578 and 611 of the contested decision).
1094 The examination of the first ‘sub-plea’ led to the conclusion that the Commission had failed to establish to the requisite legal standard that Bulgargaz’s conduct in relation to access to the Romanian Pipeline 1 constituted a refusal of access capable of falling within the scope of Article 102 TFEU (see paragraph 689 above).
1095 The Commission has not established that the volumes of gas that company F wished to store at the Chiren storage facility came from the negligible production of domestic gas in Bulgaria.
1096 It is common ground between the parties that, during the infringement period, the supply of gas in Bulgaria depended almost entirely on gas from Russia, since Bulgarian domestic production of gas was negligible and, moreover, was purchased mainly by Bulgargaz (see recitals 47, 62, 66, 68 and 423 and recital 629(a) of the contested decision). Although it is stated, in the contested decision, that company C purchased part of that domestic production (see footnotes 58 and 88), it has not been demonstrated in that decision that the volumes of gas which company F wished to store at the Chiren storage facility came from that domestic production.
1097 Similarly, Overgas did not have access to the Romanian Pipeline 1 prior to 1 January 2013 for reasons that are not attributable to proven abusive conduct on the part of the applicants (see paragraphs 951 and 952 above).
1098 In those circumstances, the Commission has not established to the requisite legal standard that Bulgartransgaz’s conduct as regards the Chiren storage facility was capable of restricting competition and, in particular, of preventing company F, in 2011, and Overgas, before 1 January 2013, from entering the Bulgarian gas supply markets during the infringement period, as required by the case-law cited in paragraph 239 above (judgments of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 154, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraphs 50, 61, 64 and 72).
1099 Therefore, the Commission could not rely on the manner in which Bulgartransgaz handled, on the one hand, company F’s request for access to the Chiren storage facility and, on the other hand, Overgas’ requests for access for the 2011/2012 storage period to support the conclusion that the lack of access to that infrastructure prevented those two competitors of Bulgargaz from developing their offers on the Bulgarian gas supply markets on equal terms. The grant of full access to the Chiren storage facility would not, at the time, have enabled those two operators to transport gas on those markets, because they did not have prior access to the Romanian Pipeline 1.
1100 Accordingly, the Commission has not established that Bulgartransgaz’s handling of the request for access submitted by company F and the requests submitted by Overgas for the 2011/2012 storage period was capable of restricting competition and, in particular, of producing exclusionary effects on the Bulgarian gas supply markets, within the meaning of the case-law cited in paragraph 239 above.
(2)    Company C’s request for access of 5 June 2012 and Overgas’ requests for access from 1 January 2013
1101 It should be noted that:
–        it is apparent from the file that company C obtained access to the transmission network on 1 January 2012 and that it did not need access to the Romanian Pipeline 1 to be able to transport its gas to Bulgaria, including to the Chiren storage facility, since its gas came from Bulgarian domestic production (see footnotes 58 and 88 to the contested decision);
–        as follows from paragraphs 490 and 943 above, Overgas obtained access to the Romanian Pipeline 1 and to the transmission network from 1 January 2013.
1102 Therefore, it is necessary to ascertain whether Bulgartransgaz’s conduct relating to company C’s request for access to the Chiren storage facility and Overgas’ requests from 1 January 2013 was capable of restricting competition and producing exclusionary effects, within the meaning of the case-law cited in paragraph 239 above.
1103 In that regard, it must be stated that the obstacles created by Bulgartransgaz with regard to the requests for access by company C in June 2012 and by Overgas between 1 January 2013 and mid-2014, when the capacity allocation procedure for the 2014/2015 storage period was carried out, were, by themselves, capable of affecting competition on the Bulgarian gas supply markets. The lack of access to the Chiren storage facility deprived those two companies of an essential tool for managing seasonal fluctuations in demand and thus prevented them from developing their offers on those markets on equal terms with Bulgargaz.
1104 It follows from the foregoing that, although Bulgartransgaz’s conduct concerning the management of access to the Chiren storage facility was not capable of restricting competition on the Bulgarian gas supply markets before June 2012, which is when company C’s request was made, it may have been capable of doing so between 5 June 2012 and 19 September 2014, the latter being the date on which Bulgartransgaz ceased its delaying tactics in relation to the handling of requests for access to that facility.
1105 Accordingly, the third ‘sub-plea’ must be upheld in part.
5.      Conclusion on the fourth plea
1106 It follows from the foregoing that the Commission has not established to the requisite legal standard that there was a refusal to grant access to the three infrastructures held by the BEH Group that was capable of falling within the scope of Article 102 TFEU as regards:
–        first, Bulgargaz’s conduct in relation to access to the Romanian Pipeline 1 between 31 January 2011 and 1 January 2015 (see the third and the fifth to eighth parts of the first ‘sub-plea’, and the conclusions drawn in paragraph 689 above);
–        second, Bulgartransgaz’s conduct in relation to access to the transmission network between 30 July 2010 and 1 January 2015 (see the fifth part of the second ‘sub-plea’ and the conclusions drawn in paragraph 954 above);
–        third, Bulgartransgaz’s conduct in relation to access to the Chiren storage facility before 5 June 2012 (see paragraphs 1092 to 1100 above).
1107 By contrast, the information in the file demonstrates that Bulgartransgaz’s conduct regarding access to the Chiren storage facility was capable of restricting competition on the Bulgarian gas supply markets between 5 June 2012 and 19 September 2014 (see paragraphs 1101 to 1104 above).
1108 That being so, it should be noted that the system of judicial review of Commission decisions regarding infringements which it finds under Article 102 TFEU consists in a review of the legality in accordance with Article 263 TFEU (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42).
1109 In reviewing the legality of acts under Article 263 TFEU, the EU judicature cannot substitute its own reasoning for that of the author of the act in question (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited). As Advocate General Kokott observed in her Opinion in Frucona Košice v Commission (C‑73/11 P, EU:C:2012:535, point 92), the prohibition of a substitution, by the EU judicature, of the reasoning of the author of the contested act reflects the cassatory nature of the action for annulment, which is based on the principle of institutional balance which characterises the structure and functioning of the European Union. Observance of that institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions.
1110 Thus, although the Commission has the power to adopt decisions applying Article 102 TFEU, the EU judicature has jurisdiction under Article 263 TFEU, inter alia, to review the legality of the reasoning of those decisions, without being able, in principle, to substitute its own reasoning for that of the Commission or to supplement the Commission’s reasoning.
1111 In that regard, it should be noted that the statement of reasons for the contested decision is based on two fundamental pillars, namely, first, the anticompetitive strategy implemented by the applicants aimed at protecting Bulgargaz’s dominant position on the Bulgarian gas supply markets and, second, the concept of a ‘single and continuous infringement’.
1.      The anticompetitive strategy
1112 The contested decision found that the applicants’ conduct in relation to the Romanian Pipeline 1, the transmission network and the Chiren storage facility, which consisted of preventing, restricting and delaying access to each of those infrastructures, formed part of an anticompetitive strategy aimed at protecting Bulgargaz’s dominant position on the Bulgarian gas supply markets by foreclosing third-party access to those markets (see recital 389, recital 454(b) and recitals 467, 569, 572 and 643). According to the Commission, that strategy was designed by BEH and implemented by its subsidiaries Bulgargaz and Bulgartransgaz (see recital 570 of that decision).
1113 In that regard, in recital 567 of the contested decision, the Commission explained that, given the fragmented nature of the practices at issue, in order to prove that overall strategy, it relied on a body of evidence demonstrating:
–        the consistency of the infringement over time;
–        the comparable nature and complementarity of the practices in question;
–        the common standard of the applicants’ conduct relating to each infrastructure, consisting of the ability to foreclose the competitors from the Bulgarian gas supply markets.
1114 Thus, the Commission observed, first, that those practices, consisting of capacity hoarding on the Romanian Pipeline 1 and preventing, restricting and delaying access to the transmission network and to the Chiren storage facility ‘complemented and mutually reinforced each other’ (see recital 577 of the contested decision).
1115 Second, the Commission emphasised that ‘the practices were explicitly interlinked, by making access to the … transmission network (controlled by Bulgartransgaz) conditional upon third-party access to the Romanian Transit Pipeline (controlled by Bulgargaz and subject to authorisation by BEH)’ (see recital 577 of the contested decision). In that regard, it must be noted that the Commission concluded that Bulgartransgaz’s requirement that proof be provided as to reserved capacity on the Romanian Pipeline 1 operated by Bulgargaz, which belonged to the same group of undertakings, had ‘made … access [to the transmission network] de facto impossible until 2013’ (see recitals 475 and 480 of the contested decision).
1116 Third, the Commission stated that the transmission network was the only infrastructure capable of transporting gas to the Chiren storage facility and that, therefore, access to that network was required in order to obtain access to the storage. It also found that the ability to access that facility during the infringement period was ‘indirectly linked to the ability to access the Romanian Transit Pipeline 1[, which] … was the only route bringing gas to the … Tran[s]mission Network during [that] period’ (see recital 578 of the contested decision).
1117 The Commission therefore concluded that Bulgartransgaz and Bulgargaz had been ‘able to influence and jointly contribute to the prevention, restriction and delay of third-party access to the infrastructure owned or controlled by the BEH group’ (see recital 579 of the contested decision). It also stated, first, that Bulgargaz and Bulgartransgaz coordinated their behaviour in relation to third-party access requests, while dealing with each other as entities within an integrated undertaking, and, second, that BEH was directly involved in all the practices at issue (see recital 579 of that decision).
2.      A single and continuous infringement
1118 The Commission concluded that the applicants had committed a single and continuous infringement of Article 102 TFEU between 30 July 2010 and 1 January 2015 by refusing third-party access to the Romanian Pipeline 1, the transmission network and the Chiren storage facility, which had resulted in foreclosure of the Bulgarian gas supply markets (see Articles 1 and 2 and recitals 1, 2 and 450 of the contested decision).
1119 According to the case-law, the concept of a ‘single and continuous infringement’ relates to a series of actions which form part of an overall plan because their identical object distorts competition within the internal market. For the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they complement each other inasmuch as each of them is intended to deal with one or more consequences of the normal pattern of competition and, by interacting, contribute to the realisation of the objectives intended within the framework of that overall plan. In that regard, it will be necessary to take into account any circumstance capable of establishing or casting doubt on that complementary link, such as the period of application, the content (including the methods used) and, correlatively, the objective of the various actions in question (judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 89; of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 892; and of 8 September 2016, Arrow Group and Arrow Generics v Commission, T‑467/13, not published, EU:T:2016:450, paragraph 384).
1120 In the present case, in order to demonstrate that all of the applicants’ practices constituted a single and continuous infringement, in recitals 608, 609 and 614 of the contested decision, the Commission relied, in essence, on the fact that they formed part of a ‘comprehensive and long-term plan to foreclose [Bulgarian] gas supply markets … to the benefit of Bulgargaz’.
1121 In that regard, first, the Commission again stated that Bulgargaz itself had the ability to foreclose its competitors and to restrict the possibility of viable competition on the Bulgarian gas supply markets by hoarding capacity on the Romanian Pipeline 1 (see recitals 611 and 624 of the contested decision).
1122 Second, the Commission stated that ‘the BEH group’s three practices’ linked, respectively, to the three infrastructures which it controlled ‘complemented and mutually reinforced each other and were implemented with the single aim of foreclosing the [Bulgarian] gas supply markets’ (see recital 612 of the contested decision). It found, in that regard, that access to the transmission network and, therefore, to the Chiren storage facility was conditional upon first obtaining access to the Romanian Pipeline 1, which was, during the infringement period, the only available infrastructure for the transportation of gas through that network and, therefore, to that storage facility (see recitals 51, 578 and 611 of the contested decision).
1123 Therefore, as is apparent from recitals 578 and 611 of the contested decision and as the Commission states, moreover, in its defence, ‘without access to the Transit Pipeline 1, (potential) competitors had no access to the transmission network, and consequently also [no access] to the [Chiren] storage facility’.
1124 Third, the Commission reiterated that Bulgargaz and Bulgartransgaz coordinated with each other regarding the examination of access requests by third parties and dealt with each other as entities within an integrated undertaking (see recitals 579 and 612 of the contested decision).
1125 Fourth, the Commission found, once again, that the practices complained of were also ‘explicitly interlinked’ in so far as ‘access to the … transmission network (controlled by Bulgartransgaz) [was] conditional upon third-party access to the Romanian Transit Pipeline 1 (controlled by Bulgargaz) and subject to authorisation by BEH’ (see recital 612 of the contested decision). It emphasised that, even after January 2012, BEH had retained control over Bulgartransgaz, since access to the transmission network, and thereby, indirectly, access to the Chiren storage facility, was conditional upon first obtaining, from Bulgargaz, access to the Romanian Pipeline 1, which itself was subject to BEH’s prior approval (see recital 611 of the contested decision).
1126 According to the Commission, the link between those practices enabled:
–        first, the three applicants to influence each others’ behaviour with the result that, together, they contributed to preventing, restricting and delaying third-party access to the infrastructures owned or controlled by the BEH Group;
–        second, the BEH Group to coordinate its behaviour in a consistent manner by applying similar methods (see recital 612 of the contested decision).
1127 It follows from all the considerations set out in paragraphs 1112 to 1126 above that:
–        neither in the grounds of the contested decision, nor even less in the operative part of that decision, did the Commission impute to the applicants a number of separate infringements, each of which was allegedly linked, respectively, to one of the infrastructures in question;
–        the anticompetitive strategy of which the applicants are accused is a key constituent element of the single and continuous infringement imputed to them by the contested decision; they are accused of having contributed to the implementation of that strategy, which was based on the interdependence of the conduct relating to each of the three gas infrastructures in question and had the sole objective of foreclosing the Bulgarian gas supply markets in order to protect Bulgargaz’s dominant position on those markets;
–        the Commission stated, on several occasions, in the contested decision, that Bulgargaz’s actions concerning the Romanian Pipeline 1 were essential, and sufficient on their own, to foreclose the access of its potential competitors to those markets.
1128 It follows that the allegedly abusive conduct relating to the Romanian Pipeline 1 is the linchpin on which the Commission’s analysis and the statement of reasons for the contested decision are based as regards the constituent elements of the single and continuous infringement identified.
1129 In that context, the fact that Bulgartransgaz hindered company C’s access to the Chiren storage facility in June 2012 and Overgas’ access between 1 January 2013 and mid-2014 (see paragraphs 1101 to 1104 above) and that that conduct had, by itself, the ability to produce anticompetitive effects on the Bulgarian gas supply markets cannot, by itself, justify the finding, in the contested decision, that there was a single and continuous infringement of Article 102 TFEU imputable to the applicants.
1130 It should be noted that Articles 1 and 2 of the contested decision find that the applicants committed ‘a single and continuous infringement of Article 102 [TFEU] [in that they refused] third-party access to the … transmission network, the Romanian … Pipeline 1 and [the] Chiren [storage facility] resulting in foreclosure of the gas supply markets in Bulgaria’ from ‘30 July 2010 … until 1 January 2015’.
1131 Therefore, in the light of all the forms of conduct alleged against the applicants in the contested decision and the emphasis placed by that decision on their interdependence, complementarity and mutual reinforcement, it cannot be inferred from the operative part of the contested decision that the operative part is based on a number of grounds concerning separate forms of abusive conduct each of which would, in itself, be sufficient to justify the operative part.
1132 According to the settled case-law cited in paragraphs 234 and 1109 above, in the context of a review of legality under Article 263 TFEU, the EU judicature cannot substitute its own reasoning for that of the author of the act at issue. In the present case, the finding, in the operative part of the contested decision, that there was a single and continuous infringement imputable to the applicants, indicating the nature and scope of that infringement of EU competition rules and which is inseparable from the statement of reasons for that decision, encompasses all of the applicants’ forms of conduct relating to the three gas infrastructures in question. As noted in paragraphs 1113 and 1131 above, the characterisation of the single and continuous infringement is based on the complementarity and interdependence of the number of forms of conduct.
1133 In those circumstances, the sole ground relating to Bulgartransgaz’s conduct concerning the Chiren storage facility after June 2012 cannot, without distorting the contested decision by substituting a new assessment of the facts for that of the Commission contrary to the case-law cited in paragraph 1109 above, constitute the essential, or even sufficient, statement of reasons capable by itself of justifying the operative part of that decision.
1134 It follows from the foregoing that the Commission has not established to the requisite legal standard the infringement in the form of an abuse of a dominant position imputed to the applicants by the contested decision.
1135 The fourth plea must therefore be upheld, and there is no need to examine the other ‘sub-pleas’ raised by the applicants.
D.      The first plea, alleging substantive procedural defects affecting the exercise of the applicants’ rights of defence and breach of the principle of good administration
1136 By their first plea, the applicants, supported by the Republic of Bulgaria, submit that the Commission infringed the principle of good administration and their rights of defence in several respects. The plea is divided into five parts:
–        the first alleges that the Commission infringed its obligation properly to record and include in the investigation file the minutes of the meetings with Overgas;
–        the second alleges that the Commission failed subsequently to disclose the minutes of the meetings with Overgas, and certain written observations made by Overgas;
–        the third alleges that the Commission deprived the applicants of access to the statement of objections in the Gazprom case and to underlying documents relating to the Bulgarian gas market;
–        the fourth alleges that certain confidential information belonging to the applicants was disclosed to Overgas;
–        the fifth alleges that the Commission failed to fulfil its obligations as a result of the failure to send a request for information to Transgaz, the owner and the TSO of the Romanian Pipeline 1.
1137 The Commission disputes all of those arguments.
1138 It should be noted at the outset that, in the context of this plea, the applicants have not sufficiently substantiated the failure to fulfil obligations alleged in the fifth part.
1139 In that regard, as stated in paragraph 718 above, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(1)(d) of the Rules of Procedure, the brief statement of the pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action, if necessary without any other supporting information, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see, to that effect, judgment of 18 May 2022, Wieland-Werke v Commission, T‑251/19, not published, EU:T:2022:296, paragraph 59).
1140 In so far as the applicants have not explained how the absence of a request to Transgaz for information infringed their rights of defence, the minimum formal requirements laid down in Article 21 of the Statute of the Court of Justice of the European Union and in Article 76 of the Rules of Procedure are not satisfied, with the result that that line of argument, and, consequently, the fifth part, must be rejected.
1141 The Court considers that it is appropriate to deal with the first and second parts together, those parts being linked by alleged failures to record and place in the file certain documents concerning Overgas, and a failure to grant access to those documents.
1.      The first and second parts, alleging infringement of the obligations to record and place on the file the documents relating to the Commission’s meetings with Overgas, and alleging insufficient access to those documents
1142 During the administrative procedure, the Commission organised a total of eight meetings with Overgas:
–        the first five took place before the statement of objections was communicated to the applicants, more specifically on 13 October 2010, on 13 January, 17 March and 15 December 2011 and on 17 June 2013 (‘the meetings of 2010 to 2013’);
–        the remaining three meetings took place after the adoption of the statement of objections, more specifically on 13 October 2015 and on 17 March and 20 October 2016 (‘the meetings of 2015 and 2016’ and, together with the meetings of 2010 to 2013, ‘the meetings with Overgas’).
1143 The Commission states that, after each of those eight meetings with Overgas, it drew up non-confidential brief notes as well as confidential detailed minutes. At the hearing, the Commission admitted that it could not indicate precisely the date on which the latter documents were drawn up, but that, because of their degree of detail, it assumed that those documents had been drafted just after each meeting.
1144 In addition, following each of those meetings with the Commission, with the exception of those of 13 October 2015 and 17 March 2016, Overgas submitted written observations (‘the follow-up observations’), in which it developed the arguments raised during those meetings.
1145 It is also apparent from the file that the applicants first of all had access, inter alia, to the brief notes of the meetings of 2010 to 2013 and to a non-confidential version of the follow-up observations in the context of the access to the file following the statement of objections. On 5 January 2018, following the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), which clarified the Commission’s obligations to keep records and to keep the file in proceedings initiated to penalise infringements of competition rules, they put forward a new request for, inter alia, access to the detailed minutes and notes of any other meeting between the Commission and Overgas.
1146 On 23 March 2018, the Commission replied, admitting that it had had three meetings with Overgas after the statement of objections, namely the meetings of 2015 and 2016; it sent the brief notes of those meetings to the applicants at that point. However, it refused access to the detailed minutes on the ground that, on the one hand, they contained confidential information and, on the other hand, no evidence could be found in those detailed minutes that was not already present in the other non-confidential documents to which the applicants had had access, given that they had also had access to the follow-up observations.
1147 The applicants therefore sent their access request to the Hearing Officer who, in his response of 14 May 2018, stated that he considered that the refusal to disclose the detailed minutes was justified on grounds of confidentiality and that those documents did not contain any additional exculpatory evidence. However, in order to balance the effective exercise of the applicants’ rights of defence with Overgas’ legitimate confidentiality concerns, the Hearing Officer proposed limited access to the detailed minutes of the meetings with Overgas, through the applicants’ external representatives, in the context of a data room procedure.
1148 In addition, by letter of 18 June 2018 (‘the letter of 18 June 2018’), the applicants requested the Commission to give them access to a less redacted version of the follow-up observations, which the Commission refused.
1149 On 28 June 2018, the applicants’ external representatives obtained access to the detailed minutes of the meetings with Overgas, in the context of a data room procedure. In line with the instructions given by the Commission, the applicants’ external representatives were able to take into the data room hard copies of the statement of objections, the Letter of Facts, the brief notes of the meetings with Overgas and the non-confidential versions of the follow-up observations.
1150 On that occasion, the applicants’ external representatives drafted the confidential data room report in which they expressed their views on the information which they regarded as exculpatory evidence in the detailed minutes. A non-confidential version of that report (‘the non-confidential data room report’) was drawn up under the supervision of the Commission and communicated to the applicants. The representatives were able to use the information made available to them in the data room for the purposes of defending the applicants, however the representatives could not disclose any confidential information (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 20 to 22).
1151 In the context of the first two parts of their first plea, the applicants put forward, in essence, two sets of arguments:
–        the first targets the procedure for the recording and placing of the brief notes and detailed minutes on the file;
–        the second concerns the access granted to the detailed minutes and follow-up observations.
1152 For the purposes of the analysis, it must first be ascertained whether the Commission did in fact commit the procedural errors alleged by the applicants; if so, it will then be necessary to examine the consequences of such errors on their rights of defence, and in particular to ascertain whether, in the light of the factual and legal circumstances specific to the present case, the applicants have adequately demonstrated that they would have been better able to ensure their defence had there been no procedural error on the part of the Commission (judgments of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 31; of 13 December 2018, Deutsche Telekom v Commission, T‑827/14, EU:T:2018:930, paragraph 129; and of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358, paragraphs 160 and 202).
2.      The existence of procedural defects
1153 As a preliminary point, it should be noted that access to the file, provided for in Article 27(2) of Regulation No 1/2003 and in Article 15(1) and (2) of Regulation No 773/2004, is one of the procedural safeguards enabling the principle of equality of arms to be applied and the rights of defence of the parties concerned by the procedure conducted by the Commission to be protected. They are entitled to have access to the investigation file, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information.
1154 The right of access to the file means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (see judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 54 and the case-law cited).
1155 The scope of the right of access to the file as an integral part of the rights of the defence has been the subject of recent case-law which has further clarified the contours of the Commission’s obligations, in particular as regards its recording obligations (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632; of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358; and of 14 September 2022, Google and Alphabet v Commission (Google Android), T‑604/18, under appeal, EU:T:2022:541).
1156 In that regard, it must be noted that Article 19(1) of Regulation No 1/2003 provides that, in order to carry out the duties assigned to it, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation. That provision therefore constitutes the legal basis empowering the Commission to conduct an interview in the context of an investigation and is intended to apply to any interview conducted for the purpose of collecting information relating to the subject matter of an investigation (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 84 and 86).
1157 When it conducts such an interview, the Commission is, under Article 3 of Regulation No 773/2004, required to record, in a form of its choosing, the statements made by the persons interviewed (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 90 and 91).
1158 Thus, whilst it is, admittedly, permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation, it cannot be for the Commission alone to determine the evidence of use in the defence of the undertaking concerned (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 126, and of 16 June 2011, FMC Foret v Commission, T‑191/06, EU:T:2011:277, paragraph 306).
1159 From that point of view, interviews conducted for the purposes of collecting information on the subject matter of the investigation, which therefore fall within the scope of Article 19 of Regulation No 1/2003, must be recorded and cannot be omitted from the file (see, to that effect, judgment of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358, paragraph 199).
1160 Furthermore, the Commission’s obligation, under Article 3 of Regulation No 773/2004, to record, in a form of its choosing, the statements made by the persons interviewed during an administrative investigation, cannot be given concrete expression in the drafting of a brief summary of the subjects addressed during the interview. The Commission must be in a position to provide an indication of the content of the discussions that took place, in particular as regards the nature of the information provided during the interview on the subjects raised (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 92).
1161 It is in the light of those principles that it is necessary to examine the applicants’ arguments alleging that the Commission failed to fulfil its obligations to record, to place in the file and to grant access to that file.
(a)    The first complaint, alleging a failure properly to record and include in the file the statements made during the meetings with Overgas
1162 The applicants, supported by the Republic of Bulgaria, claim that the way in which the Commission recorded or failed to record its meetings with Overgas, and the way in which it included in the file the statements made during those meetings, is contrary to the recording obligations under Article 19 of Regulation No 1/2003, read in conjunction with Article 3 of Regulation No 773/2004. In that way, the Commission also infringed the principles of good administration and transparency as well as the applicants’ rights of defence. As a consequence, the Court cannot exercise its power of review.
1163 It is necessary, in that regard, to distinguish between, on the one hand, the arguments relating to the meetings with Overgas from 2010 to 2013 and, on the other, those relating to the meetings of 2015 and 2016.
1164 The Court considers that it is appropriate to begin by analysing the arguments concerning the meetings of 2015 and 2016.
(1)    The meetings of 2015 and 2016
1165 The applicants submit that:
–        no records of the meetings of 2015 and 2016 were added to the file during the investigation;
–        the Commission acknowledged the existence of those meetings and of the detailed minutes relating to those meetings only in response to a request by the applicants of 5 January 2018, following which access to brief notes was granted on 23 March 2018.
1166 The Commission states that, as soon as the applicants asked whether it had had any other meetings with Overgas after the statement of objections, the Commission informed them of the meetings of 2015 and 2016, and sent them the brief notes relating to those meetings.
1167 In that regard, the Commission submits that, under paragraph 27 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 and 102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7), a party will be granted access to documents received after notification of the objections at later stages of the administrative procedure, only where such documents may constitute new evidence, whether of an incriminating or of an exculpatory nature, pertaining to the allegations concerning that party in the statement of objections.
1168 According to the Commission, the documents relating to the meetings of 2015 and 2016 constituted neither the basis of the objections addressed to the applicants, nor new evidence as regards the allegations already made and, therefore, it was under no obligation to include the brief notes or the detailed minutes of the meetings of 2015 and 2016 in the file and to give access to them. Moreover, it was for the Commission alone to assess the potentially exculpatory nature of those documents.
1169 However, it is apparent from the brief notes and the detailed minutes that the meetings of 2015 and 2016 were aimed at gathering information relating to the subject matter of the investigation which led to the adoption of the contested decision.
1170 From that perspective, in the light of the case-law cited in paragraphs 1157 and 1159 above, interviews aimed at gathering information on the subject matter of the investigation and therefore falling within the scope of Article 19 of Regulation No 1/2003, such as the interviews in question, must be recorded and cannot be omitted from the investigation file.
1171 It is true that the possibility of drawing a distinction between documents relevant to the investigation and those which are not and, consequently, the possibility of excluding the latter from the investigation file remains essential in order to prevent the Commission from being exposed to an excessive procedural burden. Nevertheless, it is not for the Commission to exclude material from the file by exercising its supposed discretion as to the potentially incriminatory or exculpatory nature of those documents, since the absence of any written record of an interview would prevent the Court from verifying whether the Commission complied with the provisions of Regulation No 1/2003 and, more generally, whether the rights of the undertakings and natural persons involved in an investigation have been fully respected.
1172 Furthermore, the recording obligation laid down in Article 3 of Regulation No 773/2004 would be deprived of any practical effect if the Commission were allowed to exclude, on its own initiative, the recording of certain meetings, particularly since, in the circumstances of the present case, the interviews took place with Overgas, who played a not-insignificant role in the Commission’s decision to open and continue the investigation and who alleged that the applicants had engaged in anticompetitive practices in respect of Overgas.
1173 It follows that the Commission’s arguments based on the absence of an obligation to record and place on the file the minutes of the meetings of 2015 and 2016 which took place with Overgas after the statement of objections was issued cannot succeed.
1174 Lastly, in so far as the applicants submit that the Commission failed to inform them of the meetings of 2015 and 2016, it must be noted that, during the administrative procedure which led to the adoption of the contested decision, the Commission did not actually refer to the interviews which it had had with Overgas after the statement of objections.
1175 As follows from paragraphs 1157 and 1159 above, the Commission cannot fail to include in the investigation file a record of interviews such as the meetings of 2015 and 2016 and, consequently, cannot fail to inform the parties of those meetings.
1176 It follows that the applicants’ arguments relating to the Commission’s failure to fulfil its obligations regarding the meetings of 2015 and 2016 are well founded, in so far as the Commission should have recorded the statements made during those meetings, should have placed in the file the documents relating to those meetings, and should have updated the index of the file to enable the applicants to be informed of the interviews in question, subject to the protection of the confidentiality of certain information legitimately claimed by Overgas.
1177 The Commission therefore made a procedural error by failing properly to record the statements made during the meetings of 2015 and 2016 and to place them on the file, and by failing to inform the applicants of those meetings.
(2)    The meetings of 2010 to 2013
1178 The applicants:
–        criticise the Commission for not properly recording the meetings of 2010 to 2013, since it included only the brief notes in the file, which contained only vague and general summaries; furthermore, the brief notes were placed in the file only several years after those meetings were held, in 2014, which may have weakened their accuracy;
–        complain that it was not until 2018 that they discovered that there were detailed minutes in relation to the short notes, which were not in the file; they claim that the Commission could not explain why those minutes had been kept outside the file.
1179 Those failures are also reflected in the index of the investigation file, provided after the adoption of the statement of objections, which did not list in sufficient detail the documents gathered during the investigation and failed to indicate, in particular, the detailed minutes of the meetings with Overgas.
1180 The Commission argues in response that there is no requirement that evidence be placed on the file and included in the index relating to the time when the meetings took place and when the relevant notes were drawn up. It claims that, in any event, the contested decision is not based either on the brief notes or on the detailed minutes of the meetings in question.
1181 The Commission also maintains that, as a result of the access given to the brief notes of the meetings of 2010 to 2013 after the statement of objections, the applicants were indeed in a position to exercise their rights of defence, which they did by submitting their responses to that statement as well as subsequent observations in which they relied, as mitigating circumstances, on certain elements referred to at those meetings. It also submits that the follow-up observations submitted by Overgas, which developed the points raised during those meetings, were placed on the file and disclosed to the applicants.
1182 In that regard, it must be stated that the brief notes of the meetings with Overgas to which the applicants had access take up, for each meeting, less than half a page. Each half-page contains an indication of the date of the meeting, the participants and the topics discussed during the meeting, described in no more than five to eight lines.
1183 The content of the brief notes is thus manifestly insufficient to reflect the content of the discussions that actually took place between the Commission and Overgas and, in particular, the nature of the information provided by Overgas on the topics addressed.
1184 There is nothing in the wording of Article 19(1) of Regulation No 1/2003, or in the objective it pursues, to suggest that the legislature intended to introduce a distinction between, on the one hand, ‘brief notes’, finalised for the purposes of access to the file, and ‘detailed minutes’, intended to remain confidential. Such an interpretation would be tantamount to depriving the right of access to the file of all practical effect, as referred to in paragraph 1153 above, as well as the principle of equality of arms.
1185 In that regard, the fact, referred to by the Commission, that the contested decision is not based either on the brief notes or on the detailed minutes, is irrelevant. The right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68).
1186 It follows that, as regards the brief notes of the meetings of 2010 to 2013, the Commission did not comply with its obligations under Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004 and in the light of the case-law cited in paragraphs 1157 and 1159 above. That failure to fulfil obligations was demonstrated, first, by the introduction of an unjustified distinction between two types of document, namely the detailed minutes, intended for internal use, and the brief notes, intended for the file and thus to be accessed by the applicants, and, second, by the manifest inadequacy of those notes in terms of setting out the content of the discussions between the Commission and Overgas, in particular the nature of the information provided by the latter on the topics addressed, as required by the case-law cited in paragraph 1160 above.
1187 However, the Court considers that the lapse of time between the meetings of 2010 to 2013 and the inclusion in the file, which was not until 2014, of the brief notes relating to those meetings does not support the conclusion, by itself and in the absence of other evidence or, at least, clear indicia, that the Commission failed to fulfil its obligations as regards access to the file.
1188 In the first place, despite the late inclusion, in the file, of the brief notes of the meetings with Overgas, the applicants had the opportunity to take those notes into account and to exercise their rights of defence, not only by submitting their response to the statement of objections, but also and above all, as follows from paragraph 1147 above, by submitting arguments to the Hearing Officer regarding their request for access to the detailed minutes, which gave rise to the grant of access in the context of a data room.
1189 In the second place, as regards the argument concerning the alleged lack of accuracy of the brief notes of the meetings of 2010 to 2013, based on the fact that they were included late in the file, even if the Commission had prepared those notes in 2014, the reliability of their content would have been liable to be affected only if the detailed minutes of those same meetings, which would necessarily have been the basis for the drafting of those brief notes, had also been drawn up in 2014. In such circumstances, the fact that a significant period of time elapsed between, on the one hand, the meetings and, on the other, the preparation of the detailed minutes relating to those meetings could give rise to doubts as to the accuracy of those minutes and, consequently, the brief notes drawn from them.
1190 In the present case, the applicants have not adduced any evidence or indicia to support the conclusion that the detailed minutes were prepared years after the holding of, inter alia, the meetings of 2010 to 2013. On the contrary, as the Commission submitted at the hearing, the level of detail in those minutes constitutes evidence that they were drawn up on a date close to that of the meetings to which they relate.
1191 In the light of the considerations set out in paragraphs 1182 to 1186 above, the applicants’ arguments concerning the Commission’s failure to fulfil its obligations in relation to the meetings of 2010 to 2013 are well founded, in so far as the brief notes were manifestly insufficient to provide an account of the content of the discussions between the Commission and Overgas, within the meaning of the case-law cited in paragraph 1160 above.
1192 The Commission therefore made a procedural error by failing properly to record the statements made during the meetings of 2010 to 2013 and to include them in the file.
1193 As regards the Commission’s argument that any possible failure to fulfil obligations arising from the excessively vague and general nature of the brief notes was remedied, first, by the access to non-confidential versions of the follow-up observations and, second, by the access to the detailed minutes in the context of the data room procedure, the applicants submit, in essence, that, due to heavy redactions, the access to those documents was of no use for their defence. Thus, that argument and the second complaint overlap, and it is therefore appropriate to analyse them together.
(b)    The second complaint, regarding the access to the detailed minutes and to the follow-up observations
1194 The applicants criticise the Commission, first, for having given them restricted access to the detailed minutes and, second, for having refused them access to some of the follow-up observations, on the pretext that the information contained in those documents was confidential.
1195 Thus, in the first place, the applicants take issue with the fact that the right of access to the detailed minutes of the meetings with Overgas was replaced, following numerous requests for access, by restricted access, through their external representatives, in the context of a data room procedure. The report drawn up by those representatives, which was sent to the applicants in non-confidential form, was, because of the heavy redactions, devoid of value for their defence.
1196 By contrast, the Commission insists that the access which the applicants’ external representatives were granted to the detailed minutes of the meetings with Overgas in the context of the data room procedure enabled the applicants to express their views on the information contained in those minutes and thus to exercise their rights of defence, while respecting Overgas’ legitimate concerns regarding confidentiality.
1197 In the second place, the applicants submit that the confidential follow-up observations could potentially have contained exculpatory evidence, so that access to a less redacted version of those documents would have enabled them better to exercise their rights of defence.
1198 The Commission argues in response that, precisely because of the access to the follow-up observations, the applicants were able to exercise their rights of defence by submitting their response to the statement of objections.
1199 The Commission also states that, between access to the file and the submission of their response to the statement of objections, the applicants never complained that they were unable to exercise their rights of defence effectively because of the redaction of the confidential parts of the follow-up observations. Furthermore, any subsequent request for access would have been late and unjustified, given that the applicants had already exercised their right to be heard regarding those documents.
1200 In addition, the Commission submits that most of the follow-up observations were not redacted and that it did not use the redacted information in its analysis that led to the adoption of the contested decision.
1201 It follows from paragraphs 1194 to 1200 above that, in essence, the arguments put forward by the parties in the context of this complaint raise two issues, which it is appropriate to analyse in the following order:
–        the first issue concerns the absence of an immediate challenge to the redactions in the follow-up observations to which the applicants had access;
–        the second issue concerns the allegedly excessive redactions, on the one hand, in the detailed minutes which were accessed in the data room and, on the other hand, in the follow-up observations.
(1)    The obligation to challenge the redactions in the follow-up observations immediately
1202 As regards the letter of 18 June 2018, by which the applicants requested access to a less redacted version of the follow-up observations, the Commission submits that the disclosure of the non-confidential versions of those observations to the applicants had already taken place on 2 and 8 April 2015 and that, up until their response to the Letter of Facts was submitted on 9 December 2016, the applicants had never indicated that they could not exercise their rights of defence effectively because of the redactions in those observations.
1203 It is apparent from the letter of 18 June 2018 that the request for access to less redacted versions of the follow-up observations was linked to the fact that, when setting up the data room, the Commission had authorised the applicants’ external representatives to take into that data room, among other documents, the redacted versions of the follow-up observations. In putting forward their request, the applicants stated, for each of the follow-up observations, what role the redacted information could have played in the preparation of their defence, also in the light of the new information which might have emerged from the access in the data room.
1204 The applicants’ request for access to less redacted follow-up observations was therefore indirectly triggered, in essence, by the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632). It was on the basis of that new case-law, reinforcing their rights of defence, that the applicants requested the Commission, on 5 January 2018, to grant them access to full and detailed notes of any calls and meetings with Overgas. That approach, as follows from paragraph 1203 above, gave rise to the data room procedure, for which the applicants received the detailed rules setting how that data room was to operate. Those rules provided, inter alia, that the redacted versions of the follow-up observations formed part of the limited number of documents that the applicants’ external representatives could bring into the data room.
1205 In that regard, it cannot be ruled out that a more complete version of the follow-up observations could have enabled the applicants to have a better understanding of the documents to which they had access in the data room through their external representatives and, consequently, could have enabled them to exercise their rights of defence more effectively. In those circumstances, they cannot be criticised for having requested, only at that stage, more detailed access to those follow-up observations.
1206 It follows that the absence of an immediate challenge to the redactions in the follow-up observations disclosed to the applicants after the statement of objections cannot be relied on against them in order to prevent them from claiming that their rights of defence were infringed.
(2)    The access to the documents made available in the data room and to the excessively redacted versions of the follow-up observations
1207 When granting or refusing access to part of the file during investigation procedures, the Commission is, in particular, required to balance undertakings’ right to the protection of business secrets against safeguarding the rights of the defence (see judgments of 29 June 1995, ICI v Commission, T‑36/91, EU:T:1995:118, paragraph 98, and of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 631).
1208 In that regard, it should be noted that, in accordance with the order of 26 May 2021, Bulgarian Energy Holding and Others v Commission (T‑136/19, not published) and in accordance with Article 91(b) of the Rules of Procedure, and in view of the guarantees provided for in Article 103(1) of those rules, the Commission lodged in the file:
–        the detailed minutes of the meetings with Overgas and the latter’s confidentiality claims relating to those minutes;
–        the confidential versions of the follow-up observations;
–        the confidential data room report.
1209 Subsequently, in the context of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), and in accordance with Article 103(1) and (2) of the Rules of Procedure, the Court examined the documents referred to in paragraph 1208 above on the basis of the matters of law and of fact relied on by the Commission as to the confidential nature of those documents vis-à-vis the applicants and their relevance for the purpose of ruling on the dispute, in the light, where necessary, of weighing that confidentiality against the requirements of the right to effective judicial protection, in particular the adversarial principle (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 5 to 10).
1210 In particular, the Court noted that the applicants’ external representatives had been authorised by the Commission to communicate only the non-confidential version of their data room report to their clients (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 20 to 22).
1211 It is apparent from the analysis carried out in paragraphs 26 and 27 of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that several pieces of information which had been redacted in the non-confidential data room report were not, or, in any event, were no longer, confidential. The Court therefore included the confidential data room report in the file, with the exception of two short pieces of information which were of no relevance for the purpose of ruling on the dispute.
1212 In that regard, it is apparent from the analysis of the non-confidential version of the data room report to which the applicants had access that that version did not contain, in essence, any additional information in the light of the brief notes to which they had previously had access during the administrative procedure.
1213 Even if, at the time of the data room procedure, certain information in the confidential version of the data room report, especially as regards the information resulting from the detailed minutes of the meetings of 2015 and 2016, was able to remain confidential, the information in the detailed minutes of the meetings of 2010 to 2013 was, by then, historical in nature.
1214 It follows that the Commission was not entitled to redact any relevant information in the data room report to the point that the non-confidential version of that report was practically equivalent to the brief notes.
1215 Such a situation could, in practice, compromise the purpose of the data room procedure, namely to protect confidential information while giving access to the evidence that a party needs in order to substantiate its position. That is all the more so since, as the applicants have argued, the data room procedure, as it took place in the present case, was capable of affecting the rights of defence of the applicants, which were able to exercise those rights only indirectly, through their external representatives.
1216 It follows from the considerations set out in paragraphs 1207 to 1215 above that, by granting the applicants excessively restricted access to the file in the context of the data room procedure, the Commission made a procedural error capable of giving rise to an infringement of the applicants’ rights of defence.
1217 Next, as regards the follow-up observations, in the first place, it must be noted that, for the meetings of 2015 and 2016, Overgas submitted such observations only in relation to the meeting of 20 October 2016. The Court notes that, as stated in paragraphs 51 to 57 of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that document is irrelevant for the purpose of ruling on the dispute.
1218 In the second place, as follows from paragraph 49 of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), the allegedly non-confidential version of the follow-up observations on the meeting of 17 June 2013 did not contain any redaction.
1219 In the third place, following the verification of the nature of the information in the follow-up observations on the first four meetings of 2010 to 2013, the Court granted the applicants access to less redacted versions of those follow-up observations (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 34 to 48).
1220 In that regard, the Court notes that the information in the follow-up observations on the meetings of 2010 to 2013 had already lost its confidential nature by the time the applicants, by the letter of 18 June 2018, requested access.
1221 Consequently, by refusing access to less redacted versions of the follow-up observations, in particular those of the meetings of 13 October 2010 and of 13 January, 17 March and 15 December 2011, the Commission also made a procedural error capable of giving rise to an infringement of the applicants’ rights of defence.
(c)    Conclusion on the procedural defects
1222 It follows from the considerations set out in paragraphs 1177, 1192 and 1211 to 1221 above that the Commission made a procedural error by refusing the applicants a level of access to the file that would have been sufficient to ensure the exercise of their rights of defence.
1223 Thus, within the meaning of the case-law referred to in paragraph 1152 above, it is necessary, at this stage, to determine whether, in view of the factual and legal circumstances specific to the present case, the applicants have adequately demonstrated that they would have been better able to ensure their defence had there been no procedural error on the part of the Commission. If that is not demonstrated, no infringement of their rights of defence can be established (judgment of 14 September 2022, Google and Alphabet v Commission (Google Android), T‑604/18, under appeal, EU:T:2022:541, paragraph 934).
3.      The effects of the identified errors in terms of the guarantee of the applicants’ rights of defence
1224 In their observations lodged on 27 April 2022 (‘the observations of 27 April 2022’), following the Commission’s production of the non-confidential documents pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), the applicants provided clarifications in order to demonstrate specifically that access to certain pieces of information in the file, which were not disclosed during the administrative procedure, would have enabled them better to ensure their defence.
1225 It is in the light of those arguments that it is necessary to analyse, inter alia, the evidence which was disclosed to the applicants following the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), and which, on account of its origin, its detail and the circumstances in which Overgas provided it to the Commission, would have enabled the applicants to substantiate significantly or consolidate certain arguments in their defence.
1226 In that regard, it must be noted at the outset that the infringement of the right of access to the file is not remedied by the mere fact that access was made possible, as in the present case, during the judicial proceedings. As the examination undertaken by the General Court is limited to review of the pleas in law put forward, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. Moreover, belated disclosure of documents in the file does not return the undertaking which has brought the action against the Commission decision to the situation in which it would have been if it had been able to rely on those documents in presenting its written and oral observations to that institution before the adoption of the contested decision (judgments of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 51, and of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358, paragraph 200).
(a)    The undisclosed elements of the detailed minutes
1227 In their observations of 27 April 2022, the applicants state that there are a number of pieces of information which emerged from the summaries of the detailed minutes in the confidential data room report to which they had access pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), which could have enabled them better to ensure their defence. The Court considers that it is sufficient, for the purposes of the examination required under the case-law cited in paragraphs 1152 and 1223 above, to focus the analysis on the following elements.
1228 In the first place, the applicants submit that it is apparent from the summary of the meeting of 13 October 2010 that Overgas considered that the Bulgarian Government was preventing it from supplying gas to customers in Bulgaria. In particular, it is apparent from that summary that Overgas considered the Bulgarian gas supply markets to be very difficult to operate due to the incorrect and incomplete transposition of the EU directives and the constant interference by the government in favour of Bulgargaz and Bulgartransgaz.
1229 The Court notes that it is apparent, however, from the follow-up observations of 18 November 2010, to which the applicants had access during the administrative procedure, that Overgas considered that the applicants were committing infringements of Article 102 TFEU with the support of the Bulgarian regulator and the Bulgarian Government.
1230 Thus, the Court finds that the applicants’ clarifications as to the usefulness of the statements set out in paragraph 1228 above for the exercise of their rights of defence are well founded. Those are elements which could have been capable of confirming and substantiating the applicants’ argument that the difficulties encountered by Overgas in entering the Bulgarian gas supply markets were not attributable to them, in particular in view of the fact that the Commission had, in response to Overgas’ allegations, raised the possibility that those difficulties might be due to errors or failures by the Republic of Bulgaria in the transposition of European legislation.
1231 In the second place, the applicants state, in their observations of 27 April 2022, that it is apparent from the summary of the meeting of 13 January 2011 that Overgas considered that Transgaz, and not the applicants, controlled access to the Romanian Pipeline 1.
1232 The contested decision states, in recital 296, that Overgas had contacted Transgaz to request access to the Romanian Pipeline 1 but did not, however, expressly make a statement as to the entity having control over that pipeline. The Court considers, as do the applicants, that the statement in question could have been used as exculpatory evidence to support the applicants’ position, as set out in recital 282 of the contested decision, that Transgaz, as the TSO, was the entity responsible for granting and managing third-party access to the Romanian Pipeline 1.
1233 In the third place, the applicants claim that the summary of the meeting of 15 December 2011 shows that the Commission and Overgas agreed that the first request for access to the transmission network was submitted on 29 September 2010, which confirms their position that all the contact prior to that date did not constitute requests for access and that, consequently, the abuse could not have started on 30 July 2010.
1234 In the context of the second ‘sub-plea’ of their fourth plea, the applicants submit that the letter of 30 July 2010 could not constitute a request for access to the transmission network and that the Commission incorrectly classified, in recital 101 of the contested decision, the contact between Overgas and Bulgartransgaz prior to 29 September 2010 as requests for access to that network. As follows from paragraphs 790 to 797 above, the summary of the meeting of 15 December 2011 clearly shows that the Commission itself found, during that meeting, that Overgas’ first request to Bulgartransgaz for access was dated 29 September 2011. That factor, which is not consistent with the considerations set out by the Commission in the contested decision, clearly has a bearing on the assessment of the starting date of the alleged abuse, the assessment of the applicants’ conduct, the duration of the infringement and, therefore, the level of the fine. The applicants are therefore right to maintain that disclosure of that material could have enabled them better to ensure their defence.
1235 In the fourth place, it is apparent from the summary of the meeting of 17 June 2013 that Overgas had, inter alia, confirmed to the Commission that it had had access to the Romanian Pipeline 1 and to the transmission network since 1 January 2013 and that, for both of those infrastructures, the duration of the relevant agreements had been extended until 31 December 2013. According to the applicants, that statement would have enabled them to strengthen their argument that no abuse had taken place after Overgas gained access to the Romanian Pipeline 1 and to the transmission network on 1 January 2013.
1236 In that regard, it should be noted that, as early as the stage of the application initiating proceedings, the applicants claimed, as they had done during the administrative procedure, that Overgas had never requested that the 2013 pipeline access agreement be valid for a particular period and that Overgas had never challenged the three-month duration of that agreement. The applicants also argued that the access to the transmission network granted to Overgas for 2013 was not restrictive.
1237 In those circumstances, the fact that, as is apparent from the summary of its meeting with the Commission of 17 June 2013, that is, a few months after the signing of the 2013 pipeline access agreement, Overgas did not express its dissatisfaction with the access granted to the Romanian Pipeline 1 and to the transmission network could have been used by the applicants to substantiate their argument that there was no abuse regarding those infrastructures, at least from 2013.
1238 It thus follows from the considerations set out in paragraphs 1228 to 1237 above that the applicants have established to the requisite legal standard that, had the Commission not committed the procedural irregularity with regard to access to the information in the detailed minutes, they would have had access to information that could have enabled them better to ensure their defence (judgment of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 52). Moreover, as follows from paragraphs 1233 and 1234 above, read in conjunction with paragraphs 790 to 797 above, some of the information referred to by the applicants in their observations of 27 April 2022 could even have called into question the content of the contested decision.
(b)    The undisclosed elements of the follow-up observations
1239 In their observations of 27 April 2022, the applicants focus their criticisms, regarding the overly restricted access granted in respect of the follow-up observations during the administrative procedure, on two documents.
1240 In the first place, the applicants submit that it is apparent from the follow-up observations of 18 November 2010 in their less redacted version, to which the applicants had access pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that Overgas had acknowledged that the demand resulting from the claimed agreements for the supply of nine industrial customers in 2011 amounted to more than 260 million cubic metres. The applicants emphasise that those quantities were considerably lower than the volume in respect of which, as is apparent from recital 101(e) of the contested decision, Overgas had sought access to the transmission network, which amounted to more than 1 billion cubic metres.
1241 The Court finds that the applicants would have been better able to ensure their rights of defence by using the information referred to in paragraph 1240 above to support their argument that Overgas had significantly inflated the quantities in respect of which it was requesting access to the transmission network in 2011 and that, therefore, the applicants had been forced to request clarification at the meeting held with Overgas on 1 December 2010.
1242 In the second place, the applicants claim that it is apparent from the follow-up observations of 10 June 2011, in a less confidential version to which they had access pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that Overgas based its complaint on the misleading premiss that its entry into the Bulgarian gas supply markets would have increased alternatives sources of gas supply, which would have obliged suppliers to establish their prices on market economy principles.
1243 In their observations of 27 April 2022, the applicants submit that, in 2011, Bulgaria had only one upstream source of supply of gas, namely Gazprom, to which Overgas had direct access, whereas Bulgargaz had only indirect access to that supply, through Overgas. They state that, at that time, Overgas was Gazprom’s intermediary in Bulgaria and was under investigation for abuse of a dominant position, inter alia because it was charging Bulgargaz excessive prices. Thus, not only would Overgas’ entry into the Bulgarian market not have increased competition downstream, but Bulgargaz would not, in any event, have been able to purchase gas on reasonable terms.
1244 In that regard, the Court finds that the applicants are right to claim that knowledge of the information referred to in paragraph 1242 above would have enabled them better to ensure their defence, in particular by arguing before the Commission that the conditions relating to healthy competition on the downstream market were not satisfied, mainly because of Overgas (and Gazprom), which could have supported their defence based on an objective justification or, at least, their arguments in favour of a reduction of the fine.
1245 It follows from the considerations set out in paragraphs 1239 to 1244 above that the applicants have established to the requisite legal standard that, had it not been for the errors made by the Commission with regard to the information in Overgas’ follow-up observations, they would have had access to information which could have enabled them better to ensure their defence during the administrative procedure, within the meaning of the case-law cited in paragraph 1238 above.
(c)    Conclusion on the first and second parts
1246 It follows from the analysis of the defects in the administrative procedure set out in paragraphs 1153 to 1223 above and from their consequences for the applicants’ rights of defence, examined in paragraphs 1224 to 1245 above, that the first and second parts of the first plea must be upheld.
4.      The third part, alleging a failure to disclose the statement of objections in the Gazprom case
1247 The applicants submit that, by refusing to grant them access to a less redacted version of the statement of objections in the Gazprom case and to the related documents concerning the gas market in Bulgaria, the Commission denied them access to potentially exculpatory evidence. They add that the access to the redacted version that they had through a third party did not provide them with a sufficient overview of Gazprom’s conduct in Bulgaria, and that such access cannot replace the access to the file which the Commission was required to grant them.
1248 The Commission submits that the applicants had access, even if through a third party, to a non-confidential version of the statement of objections in the Gazprom case, which enabled them to submit a detailed supplement to their statements of reasons.
1249 It should be noted that, under Article 15(1) of Regulation No 773/2004, only the parties to whom a statement of objections is addressed have a right of access to the file. Therefore, the applicants cannot claim that they have a right of access to the file in the Gazprom case, held by the Commission, on the same basis as Gazprom, as the undertaking under investigation, could do (judgments of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraphs 27 and 28, and of 15 July 1994, Matra Hachette v Commission, T‑17/93, EU:T:1994:89, paragraph 34).
1250 In such a case, in order to justify their request for access to a statement of objections addressed to a third-party undertaking, it would have been necessary, at least, for the applicants to adduce prima facie evidence of its usefulness (see, to that effect, judgment of 27 September 2012, Vermeer Infrastructuur v Commission, T‑353/06, not published, EU:T:2012:484, paragraph 208).
1251 A fortiori, in a case such as the present one, where the applicants admit that they have had access to a redacted version of the document at issue through a third party, they must indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case (see, to that effect, judgments of 16 June 2011, Bavaria v Commission, T‑235/07, EU:T:2011:283, paragraph 251, and of 16 June 2011, Heineken Nederland and Heineken v Commission, T‑240/07, EU:T:2011:284, paragraph 257), which the applicants have failed to do.
1252 It must be noted that the applicants, in their arguments, have not adduced any evidence as to the elements of the statement of objections in the Gazprom case which they could have relied on in order better to ensure their defence.
1253 Consequently, the third part of the first plea must be rejected.
5.      The fourth part, alleging disclosure of some of the applicants’ confidential information to Overgas
1254 The applicants submit that the Commission infringed Article 27(2) of Regulation No 1/2003 and the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 and 102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7) by disclosing to Overgas confidential information regarding the discussions which they had had with the Commission concerning their possible commitments.
1255 In order to substantiate this part, the applicants rely on Overgas’ response of 5 April 2016 to a request for information from the Commission of 15 March 2016. In particular, they state that it is apparent from that response that, at the meeting of 13 October 2015, the Commission mentioned to Overgas the possibility of separating Bulgargaz and Bulgartransgaz structurally, by subjecting those two entities to the control of different ministries.
1256 As the Commission contends, the applicants have not specified why the information disclosed is confidential and how the alleged infringement of such confidentiality led to an infringement of their rights of defence for the purposes of the case-law cited in paragraphs 1152 and 1223 above.
1257 It follows that the fourth part of the first plea must be rejected.
6.      Conclusion on the first plea in law
1258 In the light of the foregoing, the first plea must be upheld in so far as the applicants have demonstrated, in the context of the first and second parts, that the defects in the administrative procedure set out in paragraphs 1153 to 1223 above affected their rights of defence. The first plea must be rejected as to the remainder.
E.      Conclusion on the claim for annulment of the contested decision
1259 Since both the fourth plea, alleging an incorrect finding of abuse of a dominant position, and the first plea, alleging infringement of the rights of the defence, have been upheld, the contested decision must be annulled in its entirety, without it being necessary to rule on the other pleas in law relied on.
1260 It follows, consequently, that there is no need to grant the applicants’ applications for measures of organisation of procedure or measures of enquiry aimed at obtaining first, the statement of objections in the Gazprom case and the documents to which it relates in so far as they concern the Bulgarian gas market and, second, the documents underlying the Transgaz case since, as matters now stand, those applications are of no interest in the resolution of the dispute (see, to that effect, judgments of 25 June 2002, British American Tobacco (Investments) v Commission, T‑311/00, EU:T:2002:167, paragraph 50, and of 9 March 2022, Zardini v Commission, T‑511/20, not published, EU:T:2022:122, paragraph 58).
IV.    Costs
1261 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. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.
1262 The Republic of Bulgaria and Overgas shall bear their own costs pursuant to Article 138 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.      Annuls Commission Decision C(2018) 8806 final of 17 December 2018 relating to proceedings under Article 102 TFEU (Case AT.39849 – BEH Gas);
2.      Orders the European Commission to bear its own costs and to pay those incurred by Bulgarian Energy Holding EAD, Bulgartransgaz EAD and Bulgargaz EAD;
3.      Orders the Republic of Bulgaria and Overgas Inc. to bear their own costs.
Gervasoni
Madise
Nihoul
Frendo
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 25 October 2023.
V. Di Bucci
S. Papasavvas
Registrar
President
Table of contents
I. Background to the dispute
A. Factual background
1. Gas supply in Bulgaria
2. Gas supply in Bulgaria
3. The Bulgarian Law on Energy
4. The Chiren storage facility
B. Administrative procedure
C. Contested decision
1. The relevant markets and the applicants’ dominant position on those markets
2. The applicants’ conduct constituting abuse of a dominant position
3. The anticompetitive effects of the applicants’ conduct
4. The duration of the infringement
5. The fine and the remedies
6. Operative part
II. Forms of order sought
III. Law
A. The second plea in law, alleging a failure to state reasons and errors of law and of fact concerning the definition of the market for capacity services on the Romanian Pipeline 1
1. The first part, alleging an inadequate statement of reasons for the definition of the market for capacity services on the Romanian Pipeline 1
2. The second part, alleging a failure to analyse the market for capacity services on the Romanian Pipeline 1
3. The third part, alleging errors of law and errors in the assessment of the facts in the definition of the market for capacity services on the Romanian Pipeline 1
(a) The errors of law and of fact based, respectively, on the argument that the Commission failed to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1 and did not identify Transgaz as being a supplier of that capacity
(b) The error of fact regarding the identification of Bulgargaz as being a supplier on the Romanian Pipeline 1
B. The third plea in law, alleging an incorrect finding that the applicants held a dominant position on the relevant markets
1. The first part, alleging an incorrect finding that Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1
(a) The first complaint, alleging that the Commission erred in finding that Bulgargaz controlled third-party access to the Romanian Pipeline 1
(b) The second complaint, alleging that the Commission did not identify Transgaz as being a supplier of capacity services on the Romanian Pipeline 1
(c) The third complaint, alleging that the Commission failed to assess whether Bulgargaz held a dominant position in the context of the discussions with Transgaz relating to the renegotiation of the 2005 Agreement
(d) The fourth complaint, alleging that the Commission misinterpreted its decision-making practice
2. The second part, alleging an incorrect finding that BEH held a dominant position on the relevant markets
(a) The existence of an ‘indirect’ dominant position
(b) The independence of Bulgargaz and Bulgartransgaz from BEH
C. The fourth plea in law, alleging an incorrect finding of abuse of a dominant position by the applicants
1. Applicable principles and case-law
(a) The principles applicable to the assessment of evidence
(b) The scope of the Court’s review
(c) The concept of ‘abuse of a dominant position’
2. The first ‘sub-plea’, alleging an incorrect finding that access to the Romanian Pipeline 1 was refused
(a) The first part, alleging an error of law in the application of Article 102 TFEU to a contractual clause that had been agreed bilaterally ………………………………………………………………...
(b) The second part, alleging an error of law in the application of the ‘essential facilities’ doctrine in that an abusive refusal to supply was imputed to Bulgargaz, even though the latter was merely a user of the Romanian Pipeline 1
(c) The third part, alleging that Transgaz did not forward, to the applicants, requests for access to the Romanian Pipeline 1
(1) The first complaint, concerning Transgaz’s request of 24 January 2011..
(2) The second complaint, alleging a failure to forward to the applicants requests for access that had been made by third parties and addressed to Transgaz
(d) The fourth part, alleging an inadequate statement of reasons in the contested decision concerning the inclusion, in the infringement, of a restriction on Overgas gaining access to the Romanian Pipeline 1 in 2013 …
(e) The fifth part, alleging a lack of evidence of a refusal or restriction on Overgas gaining access to the Romanian Pipeline 1 in 2013
(1) The first complaint, arguing that the Commission cannot impute to Bulgargaz a rejection of Overgas’ requests that were made to Transgaz for access to the Romanian Pipeline 1
(2) The second complaint, alleging that Bulgargaz provided Overgas with access to the Romanian Pipeline 1 without delay from the time of its first request
(3) The third complaint, arguing that Bulgargaz did not delay signing the 2013 pipeline access agreement until it had concluded downstream contracts with its own customers
(4) The fourth complaint, alleging that the Commission incorrectly concluded that the initial three-month duration of the 2013 pipeline access agreement with Overgas was insufficient
(5) The fifth complaint, alleging that the conditions for extending the 2013 pipeline access agreement were not uncertain
(f) The sixth part, alleging that that there was no refusal to supply C Energy Group
(g) The seventh part, alleging the lack of probative value of the reservation of the entire capacity on the Romanian Pipeline 1
(h) The eighth part, alleging that the discussions relating to the renegotiation of the 2005 Agreement have no probative value
(1) The first complaint, regarding the intergovernmental nature of the renegotiation of the 2005 Agreement
(i) The fact that the 2005 Agreement stemmed from the 2003 Intergovernmental Agreement
(ii) The fact that the purpose of the renegotiation of the 2005 Agreement was to resolve the concerns raised in the infringement proceedings against Romania
(iii) The central nature of the security of gas supply in Bulgaria and the role of Bulgargaz, as a public supplier, in the renegotiation of the 2005 Agreement
(iv) Conclusion on the first complaint
(2) The second complaint, arguing that the applicants’ conduct during the negotiations was constructive
(i) The first condition: the request for several documents
(ii) The second condition: the proposal for the guarantee of a minimum capacity on the Romanian Pipeline 1, for Bulgargaz, of [3-4] billion cubic metres per year
(iii) The third condition: the applicants’ request to amend the price fixed under the 2005 Agreement in order to reflect the lower level of Bulgargaz’s use of the capacity of the Romanian Pipeline 1
(iv) Conclusion on the second complaint
(3) The third complaint, arguing that the applicants are not responsible for the length of the negotiations
(i) The first period
(ii) The second period
(iii) The third period
(iv) Conclusion on the third complaint
(i) Conclusions on the first ‘sub-plea’
3. The second ‘sub-plea’, alleging an incorrect finding that access to the transmission network was refused
(a) The first part, alleging a misinterpretation of the regulatory framework governing access to the transmission network
(1) The regulatory framework under EU law
(2) The regulatory framework under Bulgarian law
(3) The first complaint, alleging that the applicable regulatory framework was incomplete
(4) The second complaint, alleging a contradiction between the 2007 Access Rules and the 2007 Market Rules
(5) The third complaint, alleging that the 2007 Access Rules were incomplete and, therefore, difficult to apply
(6) The fourth complaint, alleging that the Bulgarian national regulatory framework did not provide for two stages for the processing of requests for access
(7) The fifth complaint, arguing that the Bulgarian national regulatory framework allowed for a request for proof of access to the Romanian Pipeline 1
(b) The second part, arguing that Overgas was not refused access to the transmission network
(1) The first three complaints, relating to the processing of Overgas’ request for access to the transmission network for 2011
(i) The first complaint, alleging that Overgas’ communications prior to 29 September 2010 were incorrectly classified as requests for access to the transmission network
(ii) The second complaint, arguing that Overgas’ requests for access for 2011 were handled appropriately
– The first argument, relating to the diligent and prompt handling of Overgas’ access requests for 2011
– The second argument, based on the duplication of the capacity requested by Overgas in its letters of 29 September and 11 November 2010
(iii) The third complaint, arguing that Overgas had no interest in gaining access to the transmission network before 2013
(2) The fourth complaint, arguing that the access to the transmission network granted to Overgas for 2013 was not restrictive
(c) The third part, arguing that Toplofikacia Razgrad was not refused access to the transmission network
(1) The first complaint, arguing that the condition for access to the Romanian Pipeline 1 was justified
(2) The second complaint, arguing that Bulgartransgaz did not make Toplofikacia Razgrad’s access to the transmission network subject to Overgas’ access to the same network
(3) The third complaint, arguing that Toplofikacia Razgrad was not refused access to the transmission network
(d) The fourth part, arguing that RWE did not make an application for access to the transmission network
(1) The first complaint, arguing that RWE did not submit an application to which Bulgartransgaz was required to respond
(2) The second complaint, arguing that there was no difference in treatment between Bulgargaz and RWE
(e) The fifth part, arguing that there was no elimination of competition on the Bulgarian gas supply markets
(f) Conclusion on the second ‘sub-plea’
4. The third ‘sub-plea’, alleging an incorrect finding that access to the Chiren storage facility was refused
(a) The first part, alleging that the Commission has failed to establish that the Chiren storage facility was an essential facility
(b) The second part, arguing that Bulgartransgaz’s conduct during the period prior to the adoption of the 2012 Storage Access Rules was not anticompetitive
(1) The first complaint, arguing that Bulgartransgaz acted transparently
(i) The first argument, regarding an independent finding of anticompetitive discrimination in favour of Bulgargaz
(ii) The second argument, regarding the fact that the rejection of company F’s request for access was based on the ‘first come, first served’ principle
(iii) The third argument, regarding the information available at the time of company C’s request for access
(iv) The fourth argument, concerning the general allegation that Bulgargaz was informed in advance, by Bulgartransgaz, regarding the available capacity at the Chiren storage facility
(2) The second complaint, alleging that the Commission disregarded the fact that the ‘first come, first served’ principle applied within a given timeframe
(3) The third complaint, alleging distortion of the evidence relating to Overgas’ requests for access for the 2011/2012 storage period
(c) The third part, arguing that the 2012 Storage Access Rules were not anticompetitive
(1) The first complaint, alleging a lack of proof that Bulgartransgaz designed the 2012 Storage Access Rules to favour Bulgargaz
(2) The second complaint, arguing that there was a sufficient period of time for the preparation of access requests during the first procedure for the allocation of storage capacity
(3) The third complaint, alleging inconsistency in the Commission’s conclusions regarding the 2015/2016 storage period
(4) The fourth complaint, regarding the storage access granted to Overgas for the 2013/2014 storage period
(d) The fourth part, arguing that the 2014 Storage Access Rules are not anticompetitive
(1) The first complaint, arguing that there was no abusive rejection of Overgas’ request for storage access for the 2014/2015 storage period
(2) The second complaint, arguing that the 2014 Storage Access Rules were still in force at the end of the infringement period found in respect of the Chiren storage facility
(e) Conclusion on the third ‘sub-plea’
(1) Company F’s request for access of 1 September 2011 and Overgas’ requests for access before 1 January 2013
(2) Company C’s request for access of 5 June 2012 and Overgas’ requests for access from 1 January 2013
5. Conclusion on the fourth plea
1. The anticompetitive strategy
2. A single and continuous infringement
D. The first plea, alleging substantive procedural defects affecting the exercise of the applicants’ rights of defence and breach of the principle of good administration
1. The first and second parts, alleging infringement of the obligations to record and place on the file the documents relating to the Commission’s meetings with Overgas, and alleging insufficient access to those documents …
2. The existence of procedural defects
(a) The first complaint, alleging a failure properly to record and include in the file the statements made during the meetings with Overgas
(1) The meetings of 2015 and 2016
(2) The meetings of 2010 to 2013
(b) The second complaint, regarding the access to the detailed minutes and to the follow-up observations
(1) The obligation to challenge the redactions in the follow-up observations immediately
(2) The access to the documents made available in the data room and to the excessively redacted versions of the follow-up observations
(c) Conclusion on the procedural defects
3. The effects of the identified errors in terms of the guarantee of the applicants’ rights of defence
(a) The undisclosed elements of the detailed minutes
(b) The undisclosed elements of the follow-up observations
(c) Conclusion on the first and second parts
4. The third part, alleging a failure to disclose the statement of objections in the Gazprom case
5. The fourth part, alleging disclosure of some of the applicants’ confidential information to Overgas
6. Conclusion on the first plea in law
E. Conclusion on the claim for annulment of the contested decision
IV. Costs
* Language of the case: English.
1 The present judgment is the subject of publication in extract form.
2      Confidential data omitted.