Case C‑348/20 P
Nord Stream 2 AG
v
European Parliament and Council of the European Union
Judgment of the Court (Grand Chamber), 12 July 2022
(Appeal – Energy – Internal market in natural gas – Directive 2009/73/EC – Directive (EU) 2019/692 – Extension of the application of Directive 2009/73 to gas lines between Member States and third countries – Fourth paragraph of Article 263 TFEU – Action for annulment –Condition that an applicant must be directly concerned by the measure that forms the subject matter of its action – Lack of discretion as to the obligations imposed on the appellant –Condition that an applicant must be individually concerned by the measure that forms the subject matter of its action – Arrangements for the exemptions and derogations excluding the appellant as the sole operator from their benefit – Request that documents be removed from the case file – Rules on the production of evidence before the EU Courts – Documents internal to the European Union institutions)
1.        Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Direct concern – Criteria – Amending directive in principle subjecting the part of the gas transmission lines between a Member State and a third country to the rules applicable for the internal market in natural gas – Direct concern for an owner of gas pipelines that would be covered by the extension to the scope of application of the EU law rules – Conditions – Directive directly affecting the owner’s legal situation – No discretion for the Member States as to the implementation of the directive with respect to the owner
(Art. 263, fourth para., TFEU; European Parliament and Council Directives 2009/73, Arts 2(17), 9, 32, 36 and 49a, and 2019/692, Art. 1)
(see paragraphs 43, 44, 62-67, 70, 74- 77, 95, 97-112, 114, 164)
2.        Judicial proceedings – Procedural issue – Request for the removal of documents from the case file – Criteria for assessment – Documents internal to the European Union institutions – EU Court required to weigh up the interests of the parties having regard to their right to a fair hearing – Scope
(Art. 15(3), first subpara., TFEU; Charter of Fundamental Rights of the European Union, Arts 42 and 47; European Parliament and Council Regulation No 1049/2001, Art. 4(1))
(see paragraphs 128-134, 136-148)
3.        Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Amending directive in principle subjecting the part of the gas transmission lines between a Member State and a third country to the rules applicable for the internal market in natural gas – Action brought by an owner of gas pipelines that would be covered by the extension to the scope of application of the EU law rules – Directive permitting the grant of exemptions and derogations by the national regulatory authorities – Individual concern for the owner as the sole operator excluded by the directive from the benefit of those exemptions and derogations – Admissibility
(Art. 263, fourth para., TFEU; European Parliament and Council Directives 2009/73, Arts 2(17), 36 and 49a, and 2019/692, Art. 1)
(see paragraphs 156-163)
Résumé
The appellant, Nord Stream 2 AG, is a company incorporated under Swiss law whose sole shareholder is the Russian public joint stock company Gazprom. It is responsible for the planning, construction and operation of the offshore gas pipeline Nord Stream 2, which is intended to ensure the flow of gas between Vyborg (Russia) and Lubmin (Germany). The construction works began in January 2017.
On 17 April 2019 the European Parliament and the Council of the European Union adopted Directive 2019/692, (1) amending Directive 2009/73 concerning common rules for the internal market in natural gas. Directive 2019/692, which entered into force on 23 May 2019, is aimed at ensuring that the rules applicable to gas transmission lines connecting two or more Member States are also applicable, within the European Union, to gas transmission lines to and from third countries, such as the Nord Stream 2 gas pipeline. Thus, following the entry into force of that directive, the owners of gas pipelines between a Member State and a third country, such as the appellant, were henceforth, in principle, subject to the obligations laid down by Directive 2009/73 for the part of their transmission lines located on the territory of the Member States, in the present case the part of the Nord Stream 2 gas pipeline situated on the territory of the Federal Republic of Germany. This means that those operators have, inter alia, an obligation to unbundle transmission systems and transmission system operators from the structures of production and supply (2) and to introduce a system of non-discriminatory third-party access to gas transmission systems on the basis of published and approved tariffs. (3)
By the order of 20 May 2020, (4) the General Court dismissed as inadmissible the action brought by the appellant seeking the annulment of the directive at issue, on the ground that it was not directly concerned by that directive. It held inter alia that a directive could not, in itself, create obligations for an individual in the absence of the prior adoption of transposing measures. Accordingly, the General Court did not examine the admissibility of the action as regards the individual concern of the appellant. In that action, the General Court also ordered the removal from the file of certain internal documents produced by the appellant in the context of its action without the prior authorisation of the institutions concerned.
Hearing an appeal bought by the appellant, the Court of Justice, sitting as the Grand Chamber, sets aside the order of the General Court and declares the action to be admissible. On this occasion, the Court clarifies its case-law as regards the admissibility of direct actions brought by individuals against directives. It also clarifies the role of Regulation No 1049/2001 regarding public access to documents (5) for the purposes of the examination of requests for the withdrawal of internal documents from the court file.
Findings of the Court
First of all, the Court recalls that, under the second limb of the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act which is of direct and individual concern to that person. For an individual to be directly concerned by the act being challenged, two criteria must cumulatively be met. First, the measure challenged must directly affect the person’s legal situation and, second, it must leave no discretion to the addressees responsible for its implementation.
As regards the first condition requiring that an individual’s legal situation is directly affected, the Court observes that the capacity of an act to produce such effects cannot be assessed having regard to its form alone and that it is necessary to examine the substance of that act. It follows that any act can, in principle, produce direct effects for the legal situation of an individual, irrespective of whether that act entails implementing measures, including, as regards a directive, transposing measures. Transposing measures do not call into question the direct nature of the link between a directive and those effects provided that the directive leaves no discretion to the Member States as to the imposition of those effects on that individual.
In the present case, by extending the scope of application of Directive 2009/73 to gas pipelines between Member States and third countries, the directive at issue had the consequence of subjecting the appellant, as the owner of such a gas pipeline, to the obligations flowing from it. In that regard, the necessity for the Member State concerned, in this case the Federal Republic of Germany, to adopt transposing measures for the implementation of those obligations was of no significance since that Member State did not have any discretion capable of preventing the imposition of those obligations on the appellant.
Consequently, the Court of Justice holds that the General Court erred in law in finding that the directive at issue did not directly affect the legal situation of the appellant.
As regards the second condition relating to the discretion left to the addressees of a measure with a view to its implementation, the Court states that whether there is such discretion must also be examined having regard to the substance of that act and must, in addition, necessarily be assessed having regard to the specific legal effects referred to in the action and which could in fact affect the legal situation of the person concerned.
In the present case, while the Member States who are the addressees of the directive at issue have a certain margin of manoeuvre as to the realisation of the obligations that it imposes, the Member State concerned has no discretion with regard to the imposition of those obligations on the appellant. In particular, it does not have the possibility of granting the appellant one of the exemptions or derogations laid down in Directive 2009/73. (6) Notwithstanding the Member States’ discretion to grant the exemptions and derogations provided for in Directive 2009/73 to gas undertakings that meet the necessary conditions, none of those exemptions or derogations is capable of being applied to the appellant’s situation, which does not meet those conditions. There is therefore a direct link between the entry into force of the directive at issue and the imposition on the appellant of the obligations that it lays down.
Therefore, the Court of Justice finds that the General Court erred in law in finding that the directive at issue left discretion to the Member States, without taking into account the appellant’s situation and the fact that the entry into force of the directive at issue had the direct consequence of subjecting the latter to obligations which it could not avoid.
Having regard to those considerations, the Court concludes that the appellant is directly concerned by the directive at issue.
Next, the Court considers the Council’s request for the removal of certain internal documents which were improperly produced by the appellant during the proceedings. That request concerned, more specifically, a recommendation by the European Commission addressed to the Council for the opening of negotiations between the European Union and a third State with a view to concluding an international agreement, an opinion of the Council’s legal service on that recommendation and the observations of the Federal Republic of Germany made in the context of the legislative procedure for the adoption of the directive at issue.
The Court notes, at the outset, that the admissibility of those items of evidence, which were improperly produced, such as documents internal to the European Union institutions the production of which had not been authorised, depends on the balance between the interests of the parties, in particular with regard to the objective of ensuring their right to a fair hearing. In that regard, while Regulation No 1049/2001 has a certain indicative value in the weighing up of those interests, it does not govern the matter exhaustively.
Thus, as regards the opinion of the Council’s legal service, the Court of Justice finds, as did the General Court, that the balance weighs in favour of the protection of the Council’s interests, whose right to a fair hearing and whose interest in receiving frank, objective and comprehensive advice would be harmed by the retention of that opinion in the court file, without the sole interest of the appellant in substantiating its argument with the support of that opinion being sufficient, in the present case, to justify that retention, all the more so given that the merits of that argument did not depend in any way on the production of that opinion. As regards the Commission recommendation and the observations of the Federal Republic of Germany, however, the Court of Justice finds that the General Court in fact exclusively applied the provisions of Regulation No 1049/2001, without weighing up the interests at stake and without examining, in that context, whether the retention of those documents in the file could specifically and actually harm the interest relied on to justify their removal, namely the public interest as regards international relations. (7)
Having upheld the appeal, the Court, making use of its power to determine the case, rules finally on the appellant’s individual concern by the directive at issue. In that regard it finds that the appellant is individually concerned by the conditions of exemption and derogation which are laid down by the directive, since it is the sole operator which is, or which could be, in such a situation as to be excluded from their benefit.
Having regard to the foregoing, the Court of Justice declares that the appellant’s action for annulment is admissible and refers the case back to the General Court for a decision on the merits.
1      Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas (OJ 2019 L 117, p. 1, ‘the directive at issue’).
2      Article 9 of Directive 2009/73.
3      Article 32 of Directive 2009/73.
4      Order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210).
5      Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). It is appropriate to note that that regulation is not applicable in the present case.
6      Articles 36 and 49a of Directive 2009/73.
7      Article 4(1) of Regulation No 1049/2001.