62018TJ0616
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
2 February 2022 (
*1
)
(Competition – Abuse of a dominant position – Gas markets of Central and Eastern Europe – Decision to make binding the individual commitments proposed by an undertaking – Article 9 of Regulation (EC) No 1/2003 – Whether the commitments are adequate in the light of the competition concerns initially identified in the statement of objections – Commission decision not to require commitments in relation to some of the initial concerns – Principle of sound administration – Transparency – Obligation to state reasons – Energy-policy objectives of the European Union – Principle of energy solidarity – Misuse of powers)
In Case T‑616/18,
Polskie Górnictwo Naftowe i Gazownictwo S.A., established in Warsaw (Poland), represented by K. Karasiewicz, radca prawny, T. Kaźmierczak, K. Kicun and P. Moskwa, lawyers,
applicant,
supported by
Republic of Lithuania, represented by K. Dieninis and R. Dzikovič, acting as Agents,
by
Republic of Poland, represented by B. Majczyna and M. Nowacki, acting as Agents,
and by
Overgas Inc., established in Sofia (Bulgaria), represented by S. Gröss and S. Cappellari, lawyers,
interveners,
v
European Commission, represented by G. Meessen and J. Szczodrowski, acting as Agents,
defendant,
supported by
Gazprom PJSC, established in Moscow (Russia),
and
Gazprom export LLC, established in St. Petersburg (Russia),
represented by J. Karenfort, J. Hainz, B. Evtimov, N. Tuominen, J. Heithecker, lawyers, and D. O’Keeffe, Solicitor,
interveners,
APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2018) 3106 final 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 GENERAL COURT (Eighth Chamber, Extended Composition),
composed of M. van der Woude, President, J. Svenningsen (Rapporteur), R. Barents, C. Mac Eochaidh and T. Pynnä, Judges,
Registrar: R. Ūkelytė, Administrator,
Having regard to the written part of the procedure and further to the hearing on 18 and 19 May 2021,
gives the following
Judgment
I. Background to the dispute and developments following the bringing of the action
1
The applicant, Polskie Górnictwo Naftowe i Gazownictwo S.A., is the parent company of the PGNiG group, which is active in the oil and gas sector, primarily in Poland. That group’s activities include natural gas and crude oil exploration and production, as well as the import, sale and distribution of gas.
2
The applicant seeks the annulment of European Commission Decision C(2018) 3106 final 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 contested decision’), which made binding the commitments proposed by Gazprom PJSC and Gazprom export LLC (together, ‘Gazprom’).
3
The contested decision closed the administrative procedure conducted by the Commission, which examined, in the light of the prohibition of abuse of a dominant position laid down in Article 102 TFEU, the compatibility with EU law of some of Gazprom’s practices affecting the gas sector in certain Central and Eastern European countries (‘the CEE countries’), namely Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia (together, ‘the CEE countries concerned’).
A.
The administrative procedure which gave rise to the contested decision
4
Between 2011 and 2015, the Commission took several measures in order to investigate the functioning of the gas markets in Central and Eastern Europe. In particular, under Articles 18 and 20 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), the Commission sent requests for information to various market participants, which included Gazprom and some of its customers, including the applicant, and conducted inspections, inter alia at the premises of the applicant in 2011. The administrative procedure relating to that investigation and directly at issue in the present case was registered as ‘Case AT.39816 – Upstream gas supplies in Central and Eastern Europe’ (‘Case AT.39816’).
5
In the context of that case, on 31 August 2012, the Commission formally initiated proceedings with a view to adopting, under Article 11(6) of Regulation No 1/2003 and Article 2 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), a decision pursuant to Chapter III of Regulation No 1/2003.
6
On 22 April 2015, pursuant to Article 10 of Regulation No 773/2004, the Commission sent a statement of objections to Gazprom (‘the statement of objections’). In that statement of objections, the Commission had come to a preliminarily conclusion that Gazprom held a dominant position on national markets for the upstream wholesale supply of gas in the CEE countries concerned and that it was abusing that position by engaging in an anti-competitive strategy for the purpose of fragmenting and isolating those markets and thereby preventing the free flow of gas in the CEE countries concerned in breach of Article 102 TFEU.
7
The Commission had considered that Gazprom’s strategy involved three sets of anti-competitive practices affecting customers in the CEE countries concerned (‘the relevant customers’) and the contracts concluded by those customers with Gazprom (‘the contracts concerned’):
–
first, Gazprom had imposed territorial restrictions in its gas supply contracts with wholesalers and certain industrial customers in the CEE countries concerned (‘the objections concerning territorial restrictions’), restrictions which allegedly resulted from contractual clauses, prohibiting exports outside the territory of supply or requiring the gas supplied to be used in a given territory; Gazprom also allegedly used other measures preventing the cross-border flow of gas;
–
secondly, those territorial restrictions had allowed Gazprom to pursue an unfair pricing policy in five of the CEE countries concerned, namely Bulgaria, Estonia, Latvia, Lithuania and Poland (‘the five CEE countries concerned by the pricing practices’), by charging excessive prices in that they were significantly higher than the level of Gazprom’s costs or of certain prices regarded as price benchmarks (‘the objections concerning pricing practices’);
–
thirdly, Gazprom had made its supplies of gas in Bulgaria and Poland conditional on its obtaining certain commitments from wholesalers in relation to gas transport infrastructure; those commitments concerned, on the one hand, investments by the Bulgarian wholesaler in the South Stream pipeline project and, on the other hand, acceptance by the Polish wholesaler, namely the applicant, of Gazprom’s having increased control over the management of the Polish section of the Yamal pipeline, one of the main gas transit pipelines in Poland (‘the Yamal objections’).
8
On 29 September 2015, Gazprom responded to the statement of objections by challenging the Commission’s competition concerns and, pursuant to Article 12 of Regulation No 773/2004, was subsequently heard at an oral hearing held on 15 December 2015.
9
On 14 February 2017, while continuing to dispute the competition concerns contained in the statement of objections, Gazprom submitted formal proposed commitments (‘the initial commitments’) pursuant to Article 9 of Regulation No 1/2003. That proposal had been preceded by informal proposals for commitments.
10
On 16 March 2017, with a view to obtaining the observations of the interested parties on the initial commitments, the Commission published a communication in the Official Journal of the European Union pursuant to Article 27(4) of Regulation No 1/2003 (OJ 2017 C 81, p. 9), containing a summary of Case AT.39816 and the main content of the initial commitments. Pursuant to the same provision, interested parties were given a period of seven weeks from the date of publication of that communication to submit their observations (‘the market test’). The Commission received 44 sets of observations from interested parties, including from the applicant, the Polish Government, the President of the Urząd Regulacji Energetyki (Polish Energy Regulatory Office; ‘the Polish Energy Regulator’) and Gaz-System S.A., the operator of the Polish section of the Yamal pipeline.
11
On 15 March 2018, after receiving non-confidential versions of the interested parties’ observations on the initial commitments, Gazprom submitted revised proposed commitments (‘the final commitments’).
12
In accordance with Article 14 of Regulation No 1/2003, the Commission consulted the Advisory Committee on Restrictive Practices and Dominant Positions (‘the Advisory Committee’) and inter alia communicated to it a preliminary draft decision. On 2 May 2018, the Advisory Committee issued a favourable opinion on that preliminary draft decision. Moreover, pursuant to Article 16 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29), the Hearing Officer issued his final report on 2 May 2018.
13
On 24 May 2018, the Commission adopted the contested decision, to which the final commitments were annexed. By that decision, the Commission approved and made binding those commitments and closed the administrative proceedings, concluding that there were no longer grounds for action by the Commission in relation to the potentially abusive practices initially identified in the statement of objections.
B.
The contested decision
14
In the contested decision, the Commission first set out a preliminary assessment of Gazprom’s practices, before presenting the initial commitments, the results of the market test and the final commitments. Next, the Commission set out its assessment of the final commitments and its reasons for considering them satisfactory in view of its competition concerns.
1. The preliminary assessment of the practices in question
15
In section 4 of the contested decision, setting out the preliminary assessment, the Commission defined the relevant markets as the national markets for the upstream wholesale supply of gas. In that regard, it also found that Gazprom held a dominant position on the relevant markets in the CEE countries concerned.
16
The Commission considered that Gazprom may have abused its dominant position, in breach of Article 102 TFEU, by engaging in an anticompetitive strategy aimed at preventing the free flow of gas in the CEE countries concerned and thereby isolating the relevant markets in those countries. In particular, the Commission considered that that strategy involved three sets of anti-competitive practices corresponding, in essence, to the competition concerns identified in the statement of objections and set out in paragraph 7 above.
17
As regards the Yamal objections, although, in the context of the market test, some of the interested parties had called into question the absence of commitments addressing those objections, the Commission explained, in recital 138 of the contested decision, that, following further investigation, its preliminary competition concerns had not been confirmed. On the one hand, it stated that, in a decision of 19 May 2015 certifying Gaz-System as an independent system operator (‘the independent system operator’) of the Polish section of the Yamal pipeline (‘the certification decision’), the Polish Energy Regulator had concluded, inter alia, that Gaz-System exercised decisive control over investment decisions relating to that section of the pipeline and over implementation of those decisions. Therefore, neither System Gazociągów Tranzytowych EuRoPol Gaz S.A. (‘EuRoPol’), as the owner of the gas pipeline, nor Gazprom, as EuRoPol’s shareholder, was in a position to block those decisions. On the other hand, the Commission noted the intergovernmental character of relations between the parties active in the gas sector in Poland, in particular as regards the construction and operation of the Polish section of the Yamal pipeline, and concluded that that fact may have to a large extent determined the behaviour of the parties concerned.
2. The content of the final commitments
18
The final commitments, which are annexed to the contested decision, are intended to address the Commission’s competition concerns.
19
As regards, in the first place, the commitments to address the concerns relating to territorial restrictions (‘the commitments relating to territorial restrictions’), Gazprom first of all committed itself, in essence, to removing, from gas supply contracts concluded with its customers established in the CEE countries concerned, all provisions that directly or indirectly prohibited or impeded the free flow of gas in the region formed by the CEE countries concerned.
20
Next, in order to allow gas flows between, on the one hand, Bulgaria and the Baltic States and, on the other hand, the other CEE countries concerned, in spite of the infrastructural isolation of the former, Gazprom undertook to take measures in order to offer the relevant customers the possibility to request that all or parts of their contractual gas volumes delivered at certain delivery points in Hungary, Poland and Slovakia be delivered instead at another delivery point in Bulgaria or the Baltic States. Following the market test, Gazprom has, in the final commitments, inter alia strengthened its proposal concerning the change in delivery points.
21
Moreover, in order to enable the Bulgarian transmission system operator to control flows in Bulgaria, Gazprom has in particular committed itself to taking action to amend the relevant gas supply and transport contracts in order to enable the conclusion of interconnection agreements between Bulgaria and other Member States, in particular Greece, and the adjustment of the gas allocation method.
22
In the second place, as regards the commitments to address the pricing concerns (‘the commitments relating to pricing practices’), Gazprom undertook to introduce price review clauses or, where appropriate, to modify existing clauses in the contracts with its relevant customers in Bulgaria, Estonia, Latvia, Lithuania and Poland. Those new or amended price review clauses provide, inter alia, that if the parties do not agree on a new price within 120 days, either party may refer the dispute to an arbitral tribunal, which must base its decision on the pricing guidelines included in those clauses and be established in the European Union. In addition, the revised prices will apply retroactively from the date of notification of the price review request.
23
In the third place, as regards the commitments associated with the competition concerns relating to the supply of gas at a given price being made conditional on obtaining from the Bulgarian wholesaler an assurance concerning investments in the South Stream pipeline project, Gazprom undertook to allow the Bulgarian partners involved in that project to withdraw from it without seeking to hold them civilly liable and without recovering the gas price rebates it had granted in return for their participation in that project. Moreover, in the light of the announced abandonment of the Bulgarian section of that pipeline project, Gazprom also undertook not to claim any damages as specific compensation associated with that abandonment.
3. The assessment and implementation of the final commitments
24
In the contested decision, the Commission concluded, in essence, that the final commitments were effective and necessary, without being disproportionate, to address its competition concerns, and stated that it had taken into account, in that regard, developments in the gas markets since notification of the statement of objections. In particular, it noted, first, that Gazprom had already taken certain steps to bring its behaviour more in line with competition law; secondly, that the gas infrastructure situation had improved in some of the CEE countries concerned, namely the Czech Republic, Hungary, Poland and Slovakia, so as to make the cross-border flow of gas possible, even though the gas markets in the Baltic States and Bulgaria remained isolated from the other EU gas markets, and; thirdly, that, as a result of the fall in oil prices, some long-term gas prices resulting from formulae indexed to prices of oil products had also fallen.
25
Accordingly, the Commission decided to make the final commitments binding pursuant to Article 9 of Regulation No 1/2003. As regards their period of application, the contested decision provides that they are to be applicable for a period of eight years from the date of notification of that decision to Gazprom, with the exception of the commitments relating to the South Stream pipeline project, referred to in paragraph 23 above, which are binding for a period of 15 years from that date.
26
The operative part of the contested decision reads as follows:
‘Article 1
The Commitments as listed in the Annex shall be binding on [Gazprom], and any legal entity directly or indirectly controlled by it for a period of eight years, except for the Commitments listed in paragraph 21 of the Annex for which the period shall be fifteen years, from the date set out in the Commitments.
Article 2
It is hereby concluded that there are no longer grounds for action [by the Commission] in this Case …’
C.
The complaint
27
In parallel with the administrative proceedings initiated by the Commission and giving rise to the contested decision, the applicant had, on 9 March 2017 and pursuant to Article 5 of Regulation No 773/2004, lodged a complaint alleging abusive practices by Gazprom (‘the complaint’). Those practices, which overlapped to a great extent with the concerns already set out in the statement of objections, included, inter alia, claims relating to abuse by Gazprom in connection with the Polish section of the Yamal pipeline.
28
On 29 March 2017, the Commission acknowledged receipt of the complaint, which was subsequently registered as ‘Case AT.40497 – Polish gas prices’ (‘Case AT.40497’).
29
In a letter of 31 March 2017 to the applicant, the Commission noted that the practices set out in the complaint and those covered by the initial commitments appeared to overlap and invited the applicant to submit observations on those commitments in the context of the market test launched on 16 March 2017. After obtaining an extension of the time limit applicable, the applicant lodged its observations on 19 May 2017.
30
On 15 May 2017, Gazprom submitted its observations on the complaint to the Commission.
31
By a letter sent to the applicant on 23 January 2018 (‘the letter concerning the intended rejection of the complaint’), the Commission, in accordance with Article 7(1) of Regulation No 773/2004, stated that it intended to reject the complaint and requested that the applicant make its views known within four weeks of receipt of that letter. The Commission also sent a non-confidential version of the statement of objections and a non-confidential version of Gazprom’s observations on the complaint, referred to in paragraph 30 above.
32
On 2 March 2018, the applicant lodged observations in response to the letter concerning the intended rejection of the complaint. In addition to expressing its dissatisfaction with the conclusions contained in that letter, the applicant criticised the Commission’s conduct of the investigation and noted that the Commission had infringed the applicant’s rights as a complainant in Case AT.39816, in particular in so far as, despite numerous requests, the Commission had neither given the applicant access to the statement of objections for almost a year, nor allowed it to lodge observations on that statement.
33
On 5 September 2018, that is to say after the adoption of the contested decision, the applicant made a reasoned request to the Hearing Officer within the meaning of Article 7(2)(b) of Decision 2011/695, in which it requested access to all the documents on which the Commission based its provisional assessment set out in the letter concerning the intended rejection of the complaint, in particular access to a version of the statement of objections from which less information is omitted. On 17 September 2018, the Hearing Officer transferred to the Commission’s Directorate-General (DG) for Competition the requests for access made in that letter of 5 September 2018. By letter of 25 September 2018, the Commission rejected the requests for access to documents made by the applicant in its letters of 2 March and 5 September 2018.
34
On 24 January 2019, the applicant sent a letter to the Commissioner for Competition in which it called upon the Commission, under the second paragraph of Article 265 TFEU, to act either by adopting a decision rejecting the complaint or by continuing the procedure in Case AT.40497. On 8 February 2019, the Commission replied to that letter, recalling that the complaint had already given rise to several exchanges between them. The Commission also stated, with regard to Case AT.39816, that it had adopted the contested decision, which, inter alia, took into account the observations submitted by the applicant in the context of the market test, and, with regard to Case AT.40497, that it had sent the letter concerning the intended rejection of the complaint, to which the applicant had replied, and that it was finalising its analysis of the complaint.
35
On 17 April 2019, the Commission adopted Decision C(2019) 3003 final rejecting the complaint (Case AT.40497 – Polish gas prices).
36
On 25 June 2019, the applicant brought an action before the Court against that decision rejecting the complaint, registered as Case T‑399/19.
II. Procedure and forms of order sought by the parties
37
By application lodged at the Registry of the Court on 15 October 2018, the applicant brought the present action. The defence, the reply and the rejoinder were lodged, respectively, on 9 January, 27 February and 8 May 2019.
38
By separate document accompanying the application, the applicant requested the Court, pursuant to Article 152 of the Rules of Procedure of the General Court, to rule on the case under the expedited procedure. By decision of 30 November 2018, the Court rejected that request.
39
By document lodged at the Registry of the Court on 26 February 2019, Gazprom sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By documents lodged at the Registry of the Court on 25 February, 27 February and 28 February 2019, respectively, Overgas Inc., the Republic of Lithuania and the Republic of Poland sought leave to intervene in the present proceedings in support of the form of order sought by the applicant.
40
By decision of 5 April 2019, the President of the First Chamber of the General Court, after the main parties had been heard, granted the Republic of Poland leave to intervene. By orders of 17 May 2019, the President of the First Chamber of the General Court, after the main parties had been heard, granted the Republic of Lithuania, Gazprom and Overgas leave to intervene.
41
Statements in intervention were lodged on 30 August 2019 by the Republic of Lithuania, on 6 September 2019 by the Republic of Poland and Overgas and on 4 October 2019 by Gazprom. The applicant and the Commission lodged their observations on the statements in intervention on 15 November 2019, although the Commission did not lodge observations on Gazprom’s statement in intervention.
42
On 4 October 2019, following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was accordingly allocated.
43
By letters from the Registry of the Court of 17 December 2019, in the context of measures of organisation of procedure, the applicant was requested to produce several documents and the Commission was invited to reply in writing to a question concerning the confidentiality of certain information contained in the confidential version of the statement of objections.
44
By order of the same date, the Court ordered the Commission, under the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and Article 91(b) and 92(3) of the Rules of Procedure, and subject to the application of Article 103 of those Rules of Procedure, to produce a full copy of the confidential version of the statement of objections.
45
The parties duly complied, within the prescribed periods, with the measures of organisation of procedure adopted on 17 December 2019 and with the order to undertake a measure of inquiry delivered by the Court on the same day.
46
By letters from the Registry of the Court of 6 May 2020, the applicant and the Commission were requested to produce documents and to reply in writing to questions put by the Court by way of measures of organisation of procedure. They complied with those measures within the prescribed period.
47
By decision of 28 May 2020, the President of the Eighth Chamber, pursuant to Article 67(2) of the Rules of Procedure, read together with Article 19(2) thereof, decided, in view of the particular circumstances of the present case, to give the case priority treatment.
48
On 8 June 2020, on a proposal from the Eighth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the present case to the Eighth Chamber, Extended Composition. Since a member of that Chamber, in its Extended Composition, was unable to sit, the President of the Court was designated to complete the Chamber by decision of 15 June 2020.
49
Acting on a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure. In that regard, the applicant, the Commission and Overgas were requested to produce documents and to reply in writing to questions put by the Court by way of measures of organisation of procedure. In response to those measures, Overgas lodged its observations on 26 November 2020, while the applicant and the Commission lodged their respective observations and produced documents on 8 December 2020 (‘the responses of 8 December 2020’).
50
Moreover, as regards the full copy of the confidential version of the statement of objections produced by the Commission (see paragraphs 43 and 45 above), the Court decided, pursuant to Article 103(2) of the Rules of Procedure, to bring that document to the attention of the applicant’s representatives, subject to the giving of prior confidentiality undertakings, so that the applicant could present observations on it. Those representatives having provided signed confidentiality undertakings, the document was served on them and the applicant submitted its observations on 8 December 2020.
51
For reasons related to the COVID-19 health crisis and following requests from certain parties, the President of the Eighth Chamber (Extended Composition) decided to postpone the hearing, initially scheduled for 20 and 21 January 2021.
52
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 18 and 19 May 2021. On that occasion, the Court also stated that it acknowledged the comments on the report for the hearing made by the Commission on 27 April 2021.
53
On the second day of the hearing, and in the context of questions put by the Court on the admissibility of the action, the Commission revised its position on the admissibility of the action and argued that the applicant had not established its legal interest in bringing proceedings in the present case, with the result that the action is not admissible.
54
The applicant made requests for confidential treatment vis-à-vis the Republic of Lithuania, the Republic of Poland, Gazprom and Overgas, concerning certain information contained in various procedural documents. The latter parties did not object to those requests.
55
The applicant, supported by the Republic of Lithuania, the Republic of Poland and Overgas, claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
56
The Commission, supported by Gazprom, contends that the Court should:
–
declare the action inadmissible or, in the alternative, dismiss the action as unfounded;
–
order the applicant to pay the costs.
III. Law
57
In support of its action, the applicant puts forward six pleas in law, alleging, in essence:
–
first, infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission committed a manifest error of assessment in concluding that the Yamal objections had proved to be unfounded and in accepting commitments which did not in any way address those objections;
–
second, infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning pricing practices;
–
third, infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning territorial restrictions;
–
fourth, infringement of Article 194(1) TFEU, read together with Article 7 TFEU, in that the contested decision is contrary to the energy-policy objectives of the European Union and in that the Commission failed to take account of the negative impact of that decision on the European gas supply market;
–
fifth, infringement of Article 18(1) TFEU and breach of the principle of equal treatment, in that the Commission discriminated between Gazprom’s customers operating in the Western European Member States and those operating in the CEE countries concerned;
–
sixth, misuse of powers and infringement of essential procedural requirements, in that, by the contested decision, the Commission disregarded the objective of Article 9 of Regulation No 1/2003 and the limits of its powers in the management of the administrative procedure.
A.
The requests for measures of organisation of procedure
58
In its pleadings, the applicant requested that the Commission be ordered to produce, primarily, ‘the documents in Case AT.39816’, ‘the documents in Case AT.40497’ and, in so far as they do not already fall within those two categories, certain more specifically identified documents. The applicant claims, in the alternative, that the Commission should produce the latter documents and a non-confidential version of the statement of objections from which less information is omitted than in the version already in the applicant’s possession. The documents requested are relevant inasmuch as the Court can review the legality of the contested decision only by taking into account the context consisting of all the documents in the files in Cases AT.39816 and AT.40497.
59
The Commission takes the view that, with the exception of the statement of objections, none of the documents or information concerned is useful for the purposes of the proceedings and submits that the applicant does not sufficiently support its requests.
60
In that regard, it must be recalled that a complainant or a third party admitted to the procedure, for the purposes of Articles 5 and 11 of Regulation No 773/2004, does not have a right of access to the file such as that provided for in Article 15 thereof, which is enjoyed by the addressees of a statement of objections, for which that access is intended in particular to enable them to acquaint themselves with the evidence in the Commission’s file, so that they can express their views effectively, on the basis of that evidence, on the conclusions reached by the Commission in its statement of objections (see, in particular, judgment of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 261 and the case-law cited). By contrast, according to Article 6 of that regulation, a complainant is entitled to receive a copy of the non-confidential version of the statement of objections relating to a matter in respect of which the Commission has received a complaint.
61
However, those rules do not apply to judicial proceedings before the General Court, which are governed by Article 24 of the Statute of the Court of Justice of the European Union and by its Rules of Procedure. In that context, assessment of the appropriateness of adopting a measure of organisation of procedure or a measure of inquiry is a matter for the court, not the parties, and the latter may, if they see fit, challenge the choice made at first instance in the framework of an appeal (judgment of 12 May 2010, Commission v Meierhofer, T‑560/08 P, EU:T:2010:192, paragraph 61). Thus, the General Court may require the parties to produce all documents and supply all information which it considers desirable in accordance with Article 89 of the Rules of Procedure. To that end, the applicant may ask the General Court to order the production of documents which are in the defendant’s possession but, to enable the Court to determine whether it is conducive to proper conduct of the procedure to order such production, the applicant must identify the documents requested and provide at least minimum information indicating the utility of those documents for the purposes of the proceedings (see, to that effect, judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraphs 90 to 93).
62
In the present case, the applicant largely confines itself to requesting extensive sets of documents without identifying with a sufficient degree of precision the documents which it is seeking to have produced and without specifying the reasons why the documents requested might be of use for the purposes of the proceedings, other than in asserting that they constitute ‘the context’ which the Court should take into account in its assessment of the legality of the contested decision.
63
Accordingly, and having examined the requests made by the applicant in the light of the pleas in law and arguments put forward, the Court concludes that it is not necessary, under Article 89(3)(d) of the Rules of Procedure, to adopt the measures of organisation of procedure requested. That said, it must be observed, as noted in paragraphs 43, 46 and 49 above, the Court, for the purposes of dealing with the pleas raised in support of the action, has adopted various measures of organisation of procedure, which include, in particular, requests for the production of documents.
64
As regards the examination of the statement of objections, and more specifically of the confidential version of that document, that issue will be examined in the context of the consideration of the sixth plea below.
B.
The first plea in law, alleging infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission committed a manifest error of assessment in considering that the Yamal objections had proved to be unfounded and in accepting commitments which did not in any way address those objections
65
The first plea concerns the Commission’s handling of the Yamal objections. That plea is divided, in essence, into two parts.
1. The first part of the first plea, concerning the Commission’s errors as regards the abandonment of the Yamal objections and the absence of a commitment addressing those objections
66
The applicant, supported by the Republic of Poland, criticises the Commission for abandoning the initial objections concerning the Yamal pipeline and, as a corollary, the absence of a commitment relating to those objections. The applicant takes the view that, contrary to the Commission submissions in the present action, the Commission was required to justify that approach. Moreover, the two grounds nevertheless set out in recital 138 of the contested decision in that regard are vitiated by a manifest error of assessment.
67
The Commission takes the view that that argument must be dismissed as unfounded.
(a) The complaint that the Commission was under an obligation to justify the absence of a commitment to address the Yamal objections
68
The applicant submits that the Commission failed to comply with the requirements of Article 9 of Regulation No 1/2003 as regards its handling and, in particular, its abandonment of the Yamal objections.
69
In the statement of objections, the Commission described Gazprom’s conduct in blocking the decisions of EuRoPol as being necessary to implement virtual or physical bi-directional flows on the Polish section of the Yamal pipeline and considered that that conduct constituted an anti-competitive practice established to the requisite legal standard. Therefore, having regard to the requirements laid down in Article 9 of Regulation No 1/2003, the Commission could not, according to the applicant, accept commitments which did not address the Yamal objections in any way. In fact, the Commission essentially amended the scope of the objections against Gazprom without following the procedure laid down for that purpose and without explaining the reasons for that amendment.
70
Moreover, the applicant contests the Commission’s position that the competition concerns set out in the ‘preliminary assessment’ of the contested decision (section 4) take precedence over those set out in the statement of objections. According to paragraph 123 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6; ‘the notice on best practices’), where a statement of objections has been notified to the undertaking concerned, it ‘fulfils the requirements of a preliminary assessment’. However, there is no indication, in the present case, that the Commission, after having notified the statement of objections, communicated a new preliminary assessment which did not include the Yamal objections. Accordingly, the Commission never formally amended the scope of its the statement of objections.
71
In that regard, the applicant submits that the Commission cannot disregard the stages of the administrative procedure preceding the adoption of the contested decision, including, in particular, the notification of the statement of objections. Such conduct prevents the review carried out by the EU Courts, which must verify the correctness, completeness and reliability of the facts giving rise to a Commission decision and cannot be prevented from using a statement of objections to interpret such a decision. The approach advocated by the Commission would be tantamount to granting it arbitrary power over the approval of commitments, since it would be able to ‘align’ the content of a preliminary assessment with the content of the commitments which an undertaking is willing to make.
72
For its part, the Commission recalls that its role, in the context of the application of Article 9 of Regulation No 1/2003, is to examine the commitments offered by the undertaking concerned in the light of the competition concerns which the Commission has notified to the undertaking by way of a ‘preliminary assessment’. The Commission draws a distinction between the concerns set out in the statement of objections and the concerns set out in the preliminary assessment of the contested decision, in that the latter no longer include the Yamal objections. Accordingly, once those objections had been abandoned, the Commission could, without committing any error, examine the commitments, even though they did not address those objections.
73
Moreover, quite apart from the fact that the applicant misinterprets the judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392) and attaches to the statement of objections a value going beyond the procedural and preparatory nature normally attributed to that type of document, the Commission points out that, unlike decisions adopted under Article 7 of Regulation No 1/2003, the contested decision in the present case, adopted under Article 9 thereof, does not reach any binding conclusion as to the existence of an infringement. Accordingly, it is necessary to reject the hypothesis of a judicial review examining the lawfulness of the contested decision, which contains an assessment which is preliminary in nature, in the light of the concerns set out in the statement of objections, which is provisional in nature.
74
As regards the allegedly arbitrary nature of its approach, the Commission notes that it was not required to give reasons for the abandonment of the Yamal objections, either in the light of the case-law on the right to be heard or in the light of the obligation to state reasons for a decision adopted under Article 9 of Regulation No 1/2003. However, since interested parties had questioned the Commission concerning the absence of a commitment relating to the Yamal pipeline, it included, in accordance with the principles of sound administration and transparency, the reasons why its preliminary concerns had not been confirmed.
75
It must be recalled that under Article 9(1) of Regulation No 1/2003, where the Commission intends to adopt a decision requiring that an infringement be brought to an end and the undertakings concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment, the Commission may by decision make those commitments binding on the undertakings.
76
In that regard, the mechanism introduced by Article 9 of Regulation No 1/2003 is intended to ensure that the competition rules are applied effectively, by providing a more rapid solution to the competition concerns identified by the Commission, instead of proceeding by making a formal finding of an infringement. That provision is based on considerations of procedural economy, and enables undertakings to participate fully in the procedure, by putting forward the solutions which appear to them to be the most appropriate and capable of addressing those concerns (see, to that effect, judgments of 29 June 2010, Commission v Alrosa, C‑441/07 P, ‘the judgment in Alrosa, EU:C:2010:377, paragraph 35, and of 15 September 2016, Morningstar v Commission, T‑76/14, ‘the judgment in Morningstar, EU:T:2016:481, paragraph 39).
77
Moreover, although Article 9 of Regulation No 1/2003 does not expressly refer to proportionality, unlike Article 7 thereof, which concerns decisions finding an infringement, the principle of proportionality, as a general principle of EU law, is nonetheless a criterion for the lawfulness of any act of the institutions of the European Union. However, the specific characteristics of the mechanisms provided for in Articles 7 and 9 of that regulation and the means of action available under each of those provisions are different, in particular in that the objective of the first mechanism is to put an end to an infringement, whereas the objective of the second is to address the Commission’s concerns following its preliminary assessment. Therefore, the obligation on the Commission to ensure that the principle of proportionality is observed has a different extent and content, depending on whether it is considered in relation to the former or the latter provision (see, to that effect, the judgment in Alrosa, paragraphs 36 to 38 and 46, and the judgment in Morningstar, paragraphs 43 and 44).
78
Accordingly, in a case involving the application of Article 9 of Regulation No 1/2003, the preliminary assessment referred to in that provision is made in respect of the undertakings concerned by the Commission’s investigation and must allow them to determine whether it is appropriate to propose appropriate commitments. As regards the Commission, it is not required to make a finding of an infringement, its task being confined to examining, and possibly accepting, the commitments offered, in the light of the competition concerns identified by it in its preliminary assessment and having regard to the aims pursued. In that context, application of the principle of proportionality is confined to verifying, first, that the commitments in question address those concerns and, secondly, that those undertakings have not offered less onerous commitments that also address those concerns adequately. When carrying out that assessment, the Commission must take into account the circumstances of the case, that is to say, in particular, the interests of third parties and the extent of the concerns identified (see, to that effect, the judgment in Alrosa, paragraphs 40 and 41; judgment of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 105, and the judgment in Morningstar, paragraph 45).
79
In the present case, it is important to note, first of all, that, notwithstanding what the Commission may have suggested, the statement of objections fulfils the requirements of a preliminary assessment within the meaning of Article 9 of Regulation No 1/2003, which clearly follows from the contested decision and corresponds, moreover, with the situation envisaged in paragraph 123 of the notice on best practices.
80
It follows that the Commission cannot maintain that the arguments set out under the heading ‘Preliminary Assessment’ (section 4) in the contested decision, a decision which was adopted at the end of the administrative procedure and closed that procedure, must be the point of reference for assessing the adequacy of commitments proposed prior to the adoption of that decision. Similarly, the Commission fails to identify any other document, produced between the notification of the statement of objections and the adoption of the contested decision, in which it provided Gazprom with a revised preliminary assessment, in particular in relation to the Yamal objections, before Gazprom made the informal commitment proposals in the course of 2015 and 2016 and, subsequently, the initial commitments in February 2017.
81
In the light of that finding concerning the statement of objections, it must be held that the requirements related to observance of the principle of proportionality cannot mean that all the competition concerns set out in a preliminary assessment, including where such an assessment takes the form of a statement of objections, must necessarily be addressed in the commitments offered by the undertakings concerned, as the applicant has acknowledged in situations other than in relation to the Yamal objections in the present case.
82
To interpret Article 9 of Regulation No 1/2003 and the principle of proportionality in any other way would be likely to perpetuate the Commission’s preliminary assessment, which is provisional in nature, and to render the commitments procedure null and void in certain circumstances. Similarly, it is clear from the case-law that the statement of objections is a procedural and preparatory document which delimits the scope of the administrative procedure initiated by the Commission, the latter being required to take into account the factors emerging from the administrative procedure, in order, in particular, to abandon such objections as have been shown to be unfounded (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 63 and the case-law cited, and of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 66 and the case-law cited).
83
The fact remains that, in the circumstances of the present case and, in particular, in the absence of a revised preliminary assessment, Article 9 of Regulation No 1/2003 required the Commission, contrary to what it maintains, to have reasons for the absence of a commitment to address the Yamal objections. Similarly, in so far as the Commission argues that its error cannot lead to the annulment, even in part, of the contested decision, the Court holds that that error actually concerns the operative part of that decision, since, even though those objections are not covered by Article 1, which makes the final commitments binding, they are covered by Article 2, which concludes that there are no longer grounds for action in Case AT.39816.
84
As to the remainder, that obligation to justify the absence of a commitment cannot extend so far as to require that the Commission demonstrate the impossibility of making a finding of infringement. Such an approach would not be compatible with the nature of a commitments procedure, since, in accordance with Article 9 of Regulation No 1/2003, read in the light of recital 13 thereof, a commitments decision does not establish whether there has been or still is an infringement and is without prejudice to the powers of the competition authorities and courts of the Member States to make such findings (see, to that effect, judgments of 23 November 2017, Gasorba and Others, C‑547/16, EU:C:2017:891, paragraphs 26 and 30, and of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 108).
85
In the present case, in any event, it must be noted that the Commission presented its reasons for not imposing a commitment to address the Yamal objections, reasons which take the form of the two grounds set out in recital 138 of the contested decision. The first ground relates to the certification decision and the second ground relates to the intergovernmental character of relations in the gas sector in Poland (as set out in paragraph 17 above).
(b) The complaints challenging the validity of the two grounds set out in recital 138 of the contested decision
86
In its first complaint, the applicant, supported by the Republic of Poland, submits that the Commission wrongly relied on the certification decision to conclude that the Yamal objections did not require a commitment from Gazprom.
87
In the first place, the applicant submits that the adoption of the certification decision by the Polish Energy Regulator does not constitute a circumstance justifying the change in the Commission’s assessment of the Yamal objections between the notification of the statement of objections on 22 April 2015 and the submission of the initial commitments on 14 February 2017, which did not address those objections. In actual fact, notwithstanding the Polish Energy Regulator’s adoption of that decision on 19 May 2015, the Commission faced an essentially unchanged set of circumstances between the time when it had formulated its concerns in the statement of objections and the time, a few weeks after notification of that statement of objections, when that decision was adopted or even up until the outcome of Case AT.39816.
88
In the second place, the Commission was well aware of the issues relating to Gazprom’s influence on the Polish section of the Yamal pipeline, specifically in light of its involvement in Gaz-System’s certification procedure. Accordingly, the Commission, in two opinions it sent to the Polish Energy Regulator, dated 9 September 2014 and 19 March 2015, concerning draft decisions similar to the certification decision, examined the conditions under which Gaz-System was managing that section and expressly recommended that the operation of the compression and metering stations located on that section be transferred to Gaz-System, in order to avoid a distortion of competition in favour of Gazprom.
89
In that context, the assessment which the Commission ultimately made in the contested decision is surprising in view of the fact that the transfer of the operation of the compression and metering stations was ultimately not carried out, despite the 24-month deadline which was set in the certification decision and which expired in May 2017. It is irrelevant that that transfer was only a ‘recommendation’, the important thing being that Gazprom was responsible for blocking the transfer and the Commission had been informed of this, in the context of the market test, by the Polish Government, by the President of the Polish Energy Regulator, by Gaz-System and by the applicant.
90
In the third place, the Commission also failed to take into account the threats to suspend gas supplies in the event of implementation of the transfer of operation, a matter notified to it by the applicant in the complaint. However, the reality of those threats was proven by the fact that Gazprom injected gas of a quality unsuitable for the Polish gas system into the Yamal pipeline shortly after the expiry of the 24-month period within which that transfer was to have taken place, and by a letter sent by the Russian Minister for Energy to his Polish counterpart on 30 August 2016, in which the Russian Minister for Energy threatened to suspend the supply of gas by Gazprom if the latter was required to carry out that transfer.
91
With regard to that letter, the Russian Minister for Energy stated that gas supplies to Poland were dependent on compliance by the Government of the Republic of Poland with its obligations under a series of intergovernmental agreements between the Republic of Poland and the Russian Federation relating, inter alia, to volumes of gas supplied to Poland and to the construction and management of the Yamal pipeline (‘the Poland-Russia agreements’), that is to say, specifically, obligations under which the operation of the compression and metering stations was to remain in the hands of EuRoPol. The applicant points out that the operation of those stations fell to Gaz-System in order to ensure the independence of that operation, in accordance with EU gas rules, and the Commission itself considered, in its opinion of 19 March 2015, that this was one of the central functions of the management powers of an independent system operator.
92
The Commission takes the view that that complaint must be dismissed as unfounded.
93
In that regard, it must be observed that the Commission enjoys a degree of discretion in the context of accepting commitments under Article 9 of Regulation No 1/2003, in so far as it is called upon to carry out an analysis that requires numerous economic factors to be taken into account, such as a forward-looking analysis in order to assess the adequacy of the commitments offered by the undertaking concerned, and that the Court must take this into account when carrying out its review. Accordingly, that review relates solely to whether the Commission’s assessment is manifestly incorrect and the EU Courts cannot substitute their own assessment for that of the Commission, by putting forward their own assessment of complex economic circumstances, without encroaching on the discretion enjoyed by the Commission instead of reviewing the lawfulness of the assessment at issue (see, to that effect, the judgment in Alrosa, paragraphs 42, 60 and 67, and the judgment in Morningstar, paragraph 41).
94
In the present case, it must be observed that the Yamal objections are examined primarily in sections 13 and 15.9 of the statement of objections. It is apparent therefrom that the Commission’s concerns were focused on alleged behaviour by Gazprom aimed at maintaining or strengthening its control over investments on the Polish section of the Yamal pipeline, in particular in that Gazprom sought to have significant decision-making powers within EuRoPol and to retain investment powers on that section for EuRoPol rather than for the independent system operator responsible for that section, namely Gaz-System. It was in that context that the Commission examined the management contract concluded in 2010 between EuRoPol and Gaz-System, EuRoPol’s new articles of association adopted in 2011 and [confidential]. (
1
)
95
In particular, as set out inter alia in section 15.9.2 of the statement of objections, the purpose of Gazprom’s allegedly abusive behaviour aimed at maintaining its control over investments on the Polish section of the Yamal pipeline was to prevent the development of infrastructure allowing for the diversification of gas sources and suppliers (that is to say competitors to Gazprom). In particular, Gazprom succeeded in delaying the introduction of virtual and physical reverse flows on that section and, in doing so, prevented such diversification. Accordingly, the Commission had provisionally concluded that, by obtaining investment powers, Gazprom had at least potentially committed an exploitative abuse in preventing access to that section by competitors, in breach of Article 102(d) TFEU.
96
Subsequently, however, the Commission agreed to make binding the final commitments, which do not include any measure to address the Yamal objections. In the contested decision, after noting in recital 137 that some interested parties had, in the context of the market test, expressed surprise at such an absence of measures, the Commission explained in recital 138 of that decision that its preliminary competition concerns had not been confirmed on the two grounds set out in that recital.
97
As regards the first ground, relating to the certification decision, the Commission noted in particular that, by the certification decision, the Polish Energy Regulator had, inter alia, concluded that Gaz-System had decisive control over the investment decisions relating to the Polish section of the Yamal pipeline and over their implementation. Therefore, neither EuRoPol, as the owner of the gas pipeline, nor Gazprom, as EuRoPol’s shareholder, was in a position to block those decisions.
98
In that regard, first, it must be observed that the certification decision, as the Commission rightly argues, includes, in the light of a detailed examination of the relevant circumstances, inter alia of the management contract of 25 October 2010 and EuRoPol’s articles of association, various findings as to Gaz-System’s control over investments on the Polish section of the Yamal pipeline. On the basis of those findings, the President of the Polish Energy Regulator ultimately granted a certificate of independence to Gaz-System, stating that that undertaking fulfilled the requirements of the role of independent system operator, particularly in terms of control over investments.
99
It is true that the applicant and the Republic of Poland point to various facts which might imply that Gaz-System could be discouraged from taking certain investment decisions concerning that section or could incur substantial costs in connection with administrative or legal proceedings brought in particular by EuRoPol. They thereby call into question the Commission’s assessment relating to the certification decision.
100
However, the applicant and the Republic of Poland do not dispute the validity as such of the certification decision adopted by the Polish Energy Regulator and have neither relied on any errors made by the Polish Energy Regulator in relation to particular findings in that decision nor indicated which findings they consider to be erroneous. In that context, and having regard to the role conferred on the national regulatory authorities of the Member States in the context of the EU rules relating to the gas sector, and in particular by 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; ‘the Gas Directive’), the Commission could reasonably take into account findings made by such an authority and, in the present case, rely on that decision, in which the Polish Energy Regulator concluded that Gaz-System had control over investments on the Polish section of the Yamal pipeline and certified that operator as being an independent system operator.
101
Second, the arguments put forward by the applicant and the Republic of Poland concerning the certification decision are focussed primarily on the existence and nature of the recommendation, contained in that decision, relating to the transfer of the operation of the compression and metering stations, and on the alleged non-compliance with that recommendation. However, neither that decision nor the arguments put forward by the applicant and the Republic of Poland show that Gaz-System’s control over investments on the Polish section of the Yamal pipeline is dependent on the implementation of that recommendation.
102
In that regard, it is important to note that the day-to-day operation of the compression and metering stations should not be confused with the control of gas flows on the Polish section of the Yamal pipeline. When asked whether Gaz-System had effective control over the gas flows on that section, the applicant confirmed that this was the case. Accordingly, non-implementation of the recommendation relating to that day-to-day operation cannot imply that Gazprom has, through EuRoPol, any stranglehold on those flows such as to raise doubts as to the relevance of Gaz-System’s control over investments relating to that section and, consequently, over the possibilities of diversifying sources of gas.
103
In those circumstances, the arguments concerning non-implementation of the recommendation on the transfer of operation and concerning the Gazprom’s allegedly obstructive conduct, by means of EuRoPol, in relation to implementation of that recommendation are not capable of calling into question the Commission’s assessment relating to Gaz-System’s control over investments.
104
Similarly, the applicant’s line of argument relating to the two opinions sent by the Commission to the Polish Energy Regulator in the context of the procedure for the certification of Gaz-System as an independent system operator cannot call into question the Commission’s assessment concerning the contested ground. Indeed, it should be noted that, in various recitals of the certification decision ultimately adopted, the Polish Energy Regulator responded to the observations made by the Commission in those opinions.
105
Moreover, while it is true that the Commission had commented in its two opinions on the need to transfer the day-to-day operation of the compression and metering stations and had considered that operation to be one of the ‘core tasks’ of a system operator, those comments did not concern planning and control over investments, but were rather guided by considerations relating to other requirements resulting from the Gas Directive, in particular linked to the risk that EuRoPol would gain access to confidential information concerning other operators. Such a risk did not correspond to the concerns expressed by the Commission in the Yamal objections.
106
Furthermore, it must be observed that the Commission department which drafted the two opinions was examining the Polish Energy Regulator’s draft decisions in the light of the EU rules relating to the gas sector, whereas DG Competition was analysing the relevant facts in the context of a procedure relating to the application of Article 102 TFEU. Therefore, although at least some of the reservations which might be expressed in those opinions could be of interest to DG Competition, those reservations cannot have a decisive influence on its analysis in terms of competition law and, in particular, its analysis as to whether the Yamal objections should be retained and whether a commitment should be made in that regard. In that regard, while it is true that the Commission itself, in paragraph 1016 of the statement of objections, pointed out an apparent contradiction between the content of the management contract of 25 October 2010 and the rules provided for in the Gas Directive, the President of the Polish Energy Regulator noted in the certification decision that the network development plan prepared by EuRoPol was mainly concerned with renovation issues and, in any event, that that did not limit Gaz-System’s powers in relation to investments, including the preparation of the ten-year development plan provided for in that directive.
107
Third, the applicant is incorrect in its claim that, although no relevant circumstance had changed, the Commission wrongly modified its assessment concerning the Yamal objections between April 2015, when it notified the statement of objections to Gazprom, and May 2018, when it adopted the contested decision. Indeed, the adoption of the certification decision was such a relevant circumstance. Moreover, that decision was adopted in a context in which significant investments had been made on the Polish section of the Yamal pipeline or were linked to that section, investments which were specifically intended to allow for the diversification of gas supply sources. For example, the President of the Polish Energy Regulator had noted in that decision that investments relating to the introduction of physical reverse flows on the Polish section of the Yamal pipeline had been made. In that regard, the Commission had already noted, on a preliminary basis, that Gazprom’s delaying tactics had been deployed between 2009 and 2013 and that Gaz-System had managed to carry out various investments in order to allow such reverse flows from 2014 onwards (see paragraphs 734 and 1033 of the statement of objections).
108
It follows that, in the light of the obligation set out in paragraph 83 above and the foregoing considerations relating to the findings set out in the certification decision and to the investments made in connection with the Polish section of the Yamal pipeline, the Commission could, without committing a manifest error of assessment, accept the final commitments on the ground forming the basis of that certification decision, even though those commitments do not include any measure to address the Yamal objections. Accordingly, the present complaint must be dismissed.
109
In those circumstances, and given that it is common ground that the two grounds put forward by the Commission in recital 138 of the contested decision are autonomous, it is unnecessary to examine the merits of the second complaint in the first part of the first plea, challenging the ground based on the Poland-Russia agreements and on application of what is known as the State action defence (‘the State action defence’). Even if that second complaint were well founded, it would not be capable of leading to the annulment of the contested decision in so far as that decision closes Case AT.39816, with the result that that complaint must be dismissed as ineffective.
110
Having regard to all the foregoing considerations, the first part of the first plea must be dismissed.
2. The second part of the first plea, concerning breach of the principles of sound administration, transparency and sincere cooperation
111
In support of the applicant’s arguments relating to the scope of judicial review concerning the abandonment of objections in the course of a commitments procedure, the Republic of Poland put forward a line of argument relating to breach of the principles of sound administration, transparency and sincere cooperation.
112
The Commission notes that that line of argument constitutes, in essence, a new plea, and also considers that the second part of this plea must be dismissed as unfounded.
113
In that regard, with respect to the admissibility of the arguments put forward by the Republic of Poland, it must be observed that they are likely to constitute a plea distinct from the first plea as presented in the application and based on an infringement of Article 9 of Regulation No 1/2003 and a breach of the principle of proportionality.
114
However, those arguments fall within the context of the complaint made by the applicant as regards the absence of a commitment to address the Yamal objections, with the result that they do not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. Accordingly, those arguments are admissible under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 142(1) of the Rules of Procedure of the General Court, as interpreted by the case-law (see, to that effect, judgments of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 114 and the case-law cited, and of 20 September 2019, Port Autonome du Centre et de l’Ouest and Others v Commission, T‑673/17, not published, EU:T:2019:643, paragraphs 44 and 45, and order of 15 November 2019, Front Polisario v Council, T‑279/19, not published, EU:T:2019:808, paragraph 41).
(a) Breach of the principles of sound administration and transparency
115
The Republic of Poland, without contesting the Commission’s right to withdraw certain objections initially set out in a statement of objections, submits that the Commission breached the principles of sound administration and transparency, contrary to Article 1 and Article 10(3) TEU and Article 41 of the Charter of Fundamental Rights of the European Union. Those principles entail, in particular, the obligation on the administration to give reasons for its decisions. However, the general findings set out in recitals 137 and 138 of the contested decision cannot be regarded as constituting sufficient grounds, and that insufficiency is all the more unjustifiable since the Commission has, for several years, expressed to the Polish authorities its concerns relating to the management of the Polish section of the Yamal pipeline.
116
Moreover, recital 138 of the contested decision is misleading in that it gives the impression that the certification decision, rather than an application to the present case of the State action defence, is the main ground for the abandonment of the Yamal objections. In that regard, the Poland-Russia agreements were referred to in general terms that did not make it possible to understand that the Commission was relying on that defence, which became apparent only in the context of the present action. Moreover, the Commission failed to explain what measures under Russian law were allegedly guiding Gazprom’s conduct and whether, in the light of the case-law and the effectiveness of competition law, it was possible to rely on that defence where State action is exercised by a third State.
117
The Commission contests that line of argument.
118
In that regard, it must be recalled that the guarantees afforded by the EU legal order in administrative proceedings include, in particular, the principle of sound administration, enshrined in Article 41 of the Charter of Fundamental Rights, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 27 September 2012, Applied Microengineering v Commission, T‑387/09, EU:T:2012:501, paragraph 76 and the case-law cited).
119
In the present case, although it is clear that the Republic of Poland disputes the Commission’s assessment relating to the withdrawal of the Yamal objections, that Member State does not indicate which relevant elements of the present case were not examined carefully and impartially by that institution, in particular, since it does not allege any particular infringement of the procedural rules laid down by Regulations Nos 1/2003 and 773/2004. Similarly, the Republic of Poland does not explain how the Commission breached the principle of transparency, as provided for in those regulations.
120
Moreover, in so far as the Republic of Poland and, in essence, the applicant are in fact disputing the adequacy of the statement of reasons set out recital 138 of the contested decision, such a complaint must also be dismissed.
121
It must be recalled that the obligation to state reasons must apply, as a general rule, to all EU acts that produce legal effects. The statement of reasons must disclose, clearly and unequivocally, the reasoning of the institution that is the author of the measure, in such a way as to enable, on the one hand, interested parties to ascertain the reasons for the measure in order to defend their rights, and, on the other hand, the EU Courts to exercise their power to review the legality of that decision (see judgment of 19 December 2019, Puppinck and Others v Commission, C‑418/18 P, EU:C:2019:1113, paragraph 94 and the case-law cited). The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other persons entitled to bring an action, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63 and the case-law cited).
122
In the present case, the Commission set out in recital 138 of the contested decision the two grounds for the absence of a commitment to address the Yamal objections. As regards the first ground, based on the certification decision, it appears in the light of the examination of the complaint relating to that ground (see paragraphs 86 to 110 above), that the applicant and the Republic of Poland, which were particularly well placed to be acquainted with the situation in the Polish gas sector and with the activities of the Polish Energy Regulator, were in a position to know the reasons relating to that ground, in order to defend their rights, and that the Court was able to exercise its power to review the legality of the contested decision, in particular as regards recital 138 thereof. Accordingly, the Commission has fulfilled its obligation to state reasons in that regard.
123
As regards the second ground, relating to the intergovernmental character of the relations between the parties in the gas sector in Poland, which is the main focus of the complaints of the applicant and the Republic of Poland, those parties take the view, in essence, that the Commission did not give adequate reasons for its position in that it relies, in essence, on possible application of the State action defence based on the impact on Gazprom’s conduct of the Poland-Russia agreements, Russian law and the behaviour of the Government of the Russian Federation.
124
In that regard, as stated in paragraphs 108 and 109 above, the Court has concluded that the Commission had not committed a manifest error of assessment in accepting the final commitments on the ground based on the certification decision even though they did not include any measure addressing the Yamal objections and that, for that reason, and in view of the autonomous nature of each of the two grounds set out in recital 138 of the contested decision, it was not necessary to examine the merits of the applicant’s complaint relating to the second ground. It follows that the arguments of the applicant and the Republic of Poland concerning the inadequacy of the statement of reasons relating to that second ground are also ineffective.
125
Finally, in so far as the Republic of Poland is in reality seeking to challenge the Commission’s assessment concerning the abandonment of the Yamal objections, it is sufficient to note that such a complaint has already been dismissed in the context of the examination of the first part of the first plea.
126
Accordingly, the arguments based on breach of the principles of sound administration and transparency must be dismissed.
(b) Breach of the principle of sincere cooperation
127
According to the Republic of Poland and the applicant, the contested decision entails a breach of the principle of sincere cooperation laid down in Article 4(3) TEU. By concluding that the Yamal objections ‘ha[d] not been confirmed’, the Commission in fact found that there was no infringement of Article 102 TFEU in that regard and adopted a decision which went beyond what was permitted by Article 9 of Regulation No 1/2003. In doing so, it settled an issue which was not covered by the final commitments and which could have been assessed differently, where appropriate, by the national competition authorities or the national courts. In fact, the Commission prevented the latter from taking action in relation to the practices covered by those objections, even though those bodies fulfil an essential function in the application of EU competition rules.
128
That infringement is particularly unfortunate since the national competition authorities and the national courts could not act while Case AT.39816 was pending. Pursuant to Article 11(6) and Article 16(1) of Regulation No 1/2003, respectively, those authorities and courts had already been deprived of the power to act for a period of almost six years, namely from the initiation of formal proceedings on 31 August 2012 until the adoption of the contested decision on 24 May 2018. In the absence of a formal change by the Commission to the scope of the statement of objections, the Polish national competition authority and Polish courts could reasonably expect the Commission to act in relation to those objections, in particular in view of the positions expressed in that regard by Gaz-System, the President of the Polish Energy Regulator and the Polish Government in the context of the market test. As regards, in particular, the national courts, they had permitted delays, giving rise to a risk that some actions may now be time-barred.
129
The Commission contests that line of argument.
130
In that regard, in accordance with Article 16 of Regulation No 1/2003, it is true that the national competition authorities and the national courts cannot take decisions running counter to the contested decision. Moreover, they cannot overlook a decision adopted under Article 9 of Regulation No 1/2003, since such an act is, in any event, in the nature of a decision. and both the principle of sincere cooperation laid down in Article 4(3) TEU and the objective of applying EU competition law effectively and uniformly require those authorities and those courts to take into account the preliminary assessment carried out by the Commission and to regard it as an indication, if not prima facie evidence, of the existence of an infringement of Articles 101 and 102 TFEU (see, to that effect, judgment of 23 November 2017, Gasorba and Others, C‑547/16, EU:C:2017:891, paragraph 29).
131
In the present case, it is true that the Commission stated in recital 138 of the contested decision that its preliminary competition concerns, expressed in the form of the Yamal objections, ‘ha[d] not been confirmed’.
132
However, while the national competition authorities and the national courts must indeed take account of recital 138 of the contested decision, if necessary as an indication of the absence of an infringement of Articles 101 and 102 TFEU, it is not apparent from the wording of that recital or, more generally, from the content of the rest of the contested decision that the Commission expressly found, in respect of the Yamal objections, that there was no infringement of Article 102 TFEU. Accordingly, it is appropriate instead to understand the wording at issue as meaning that the Commission decided to withdraw those objections and to satisfy itself with the final commitments even if they did not address those objections.
133
In any event, the wording at issue contained in recital 138 of the contested decision cannot alter the nature of the contested decision and prevent the national competition authorities and the national courts from taking action. According to Article 9(1) of Regulation No 1/2003, read in the light of recital 13 thereof, the Commission may carry out a mere ‘preliminary assessment’ of the competition situation, without the commitment decision taken on the basis of that article subsequently establishing whether there has been an infringement. Accordingly, it cannot be precluded that a national court may conclude that the conduct which is the subject of a commitment decision infringes Article 101 or 102 TFEU and that, in so doing, it proposes, unlike the Commission, finding that an infringement of one of those articles has been committed. Similarly, recitals 13 and 22 of Regulation No 1/2003, read together, expressly state that commitment decisions are without prejudice to the powers of competition authorities and courts of the Member States to decide on the case, and do not affect the power of those courts and those authorities to apply Articles 101 and 102 TFEU (see, to that effect, judgment of 23 November 2017, Gasorba and Others, C‑547/16, EU:C:2017:891, paragraphs 26 and 27).
134
Therefore, the Commission did not breach the principle of sincere cooperation and that conclusion is not called into question by the other arguments put forward by the Republic of Poland and the applicant.
135
First, the fact that the national competition authorities have been unable to act for six years is solely the result of the implementation of Article 11(6) of Regulation No 1/2003, which provides that the initiation of formal proceedings relieves those authorities of their competence to apply Articles 101 and 102 TFEU. Their power is restored once the proceeding initiated by the Commission is concluded (see, to that effect, judgment of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraphs 80 and 83 to 87).
136
As regards the national courts, in the event of the initiation of formal proceedings, they are not indefinitely deprived of any possibility of taking action in cases concerning facts related or connected to the Yamal objections. Article 16(1) of Regulation No 1/2003 provides only that those courts must avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated and may, to that effect, assess whether it is necessary to stay their proceedings. The claim that certain national actions are now time-barred, on account of delays by Polish courts, is irrelevant since the relevant limitation periods and the judicial administration of such actions are, in the absence of applicable rules of EU law, a matter for the procedural autonomy of the Republic of Poland.
137
Moreover, there is no provision of Regulations Nos 1/2003 or 773/2004 requiring the Commission formally to inform the national competition authorities or, more generally, interested third parties when, in the course of proceedings, it abandons certain objections against the undertaking concerned. In any event, the applicant and the Republic of Poland do not refer to any specific national proceedings which were allegedly affected by the Commission’s conduct in the present case.
138
Second, the Republic of Poland’s argument that the Polish competition authority and courts could legitimately expect the Commission to take action in respect of the Yamal objections, in the absence of a formal change by the Commission to the scope of the statement of objections must be dismissed. The consequence provided for in Article 11(6) of Regulation No 1/2003, namely that the initiation of formal proceedings relieves the national competition authorities of their competence to apply Articles 101 and 102 TFEU to the facts forming the subject of that procedure, results in protecting the undertakings concerned from parallel proceedings brought by those authorities (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 18, and order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission, T‑410/18, EU:T:2019:166, paragraph 20), but cannot mean that the Commission was obliged to adopt a decision, whether under Article 7 or Article 9 of that regulation (see, to that effect, judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 86).
139
Finally, even if the Republic of Poland were to rely on the principle of the protection of legitimate expectations, it must be borne in mind that the right to rely on that principle applies to any individual in a situation in which an EU institution, by giving that person precise assurances, has led him to entertain well-founded expectations (see judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 132 and the case-law cited). However, the Republic of Poland has not mentioned any precise assurances given by the Commission. As to the remainder, the statement of objections cannot constitute such assurances, since that document was addressed to Gazprom and was only provisional in nature. Similarly, the organisation of the market test and the fact that certain interested parties submitted comments in the context of that test do not constitute such assurances, since those circumstances arise as part of the ordinary implementation of Article 27(4) of Regulation No 1/2003.
140
Therefore, the argument relating to a breach of the principle of sincere cooperation must be dismissed, together with the second part of the first plea.
141
Having regard to all the foregoing considerations, the first plea must be dismissed in its entirety as partly unfounded and partly ineffective.
C.
The second plea in law, alleging infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and a breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning pricing practices
142
The applicant, supported by the Republic of Poland and the Republic of Lithuania, submits that the Commission committed various manifest errors of assessment and errors of law – in breach both of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and a breach of the principle of proportionality – in that the Commission concluded that the commitments relating to pricing practices (paragraphs 18 and 19 of the final commitments) were adequate even though, according to the applicant, the Republic of Poland and the Republic of Lithuania, those commitments did not make it possible, rapidly and effectively, to maintain gas prices at, or restore them to, a level comparable to the competitive price benchmarks. That plea is, in essence, divided into four parts.
143
The Commission, supported by Gazprom, considers that the second plea must be dismissed as unfounded.
1. The first part of the second plea, concerning an error in the subject matter of the commitments relating to pricing practices in that they do not address the essence of the objections concerning those practices
144
The applicant takes the view that the Commission committed a manifest error of assessment in accepting commitments limited to amendments to the price review clauses included in Gazprom’s contracts with its customers in the five CEE countries concerned by the pricing practices, even though the competition concerns set out in the statement of objections related not to price reviews but to the unfair and excessive nature of the prices applied by Gazprom under those contracts (‘the contract prices’). Those commitments, limited to establishing a new price review process, did not address the source of the problem, namely the existence of price formulae indexed to certain oil product prices.
145
Thus, in the first place, the applicant states that, in the statement of objections, the Commission described the practices in question as contrary to the first part of Article 102(a) TFEU, concerning ‘unfair prices’, and not to its second part, concerning ‘other unfair trading conditions’. It was therefore the excessive prices which were targeted by the competition concerns, and not the process for reviewing those prices.
146
In that regard, the Commission itself found in the statement of objections that the existing price formulae, indexed to oil prices, were the main contributory factor to the excessive contract prices. It also found that indexing gas prices to oil product prices is an outdated practice, likely to generate prices which do not reflect the economic value of the gas. Similarly, it expressly envisaged corrective measures in the statement of objections, in particular a modification of those formulae, so that they would generate prices which were no higher than those of the Netherlands Title Transfer Facility (TTF) hub or which were linked to Gazprom’s costs. Accordingly, by refraining from imposing a modification of the price formulae in the final commitments, and thus allowing the recurrence of excessive prices, the Commission failed to address either the essence of its initial concerns regarding pricing practices or the causes of those excessive prices, with the result that the commitments relating to pricing practices were inadequate and the contested decision was contrary to the objectives of Article 102 TFEU.
147
Similarly, the Republic of Lithuania recalls that the unfair and excessive prices applicable in the five CEE countries concerned by the pricing practices resulted from the fact that gas tariffs in those countries differed from those applicable in Western Europe. In order to avoid that outcome, a price formula should by itself produce competitive prices, and therefore that formula should have been changed, rather than the price review process, which took at least six months and depended on Gazprom’s goodwill.
148
In the second place, the applicant takes the view that the only real ground put forward by the Commission in recital 165 of the contested decision to justify its option not to modify the price formulae is unfounded. The mere fact that the prices resulting from those formulae had fallen in 2015 and 2016 and had ‘converged to some extent’ with the prices at gas hubs did not allow the Commission to conclude that its action was no longer justified.
149
In particular, that ground was not supported in any way, in particular by economic analyses, and did not take into account the inherently evolving nature of oil prices, the fact that those prices are beyond the control of the EU institutions and, therefore, the possibility that the contract prices might become excessive again. The Commission disregarded the fact that oil prices, in around 2015 and 2016, were, for various reasons, at minimum levels, which diverged from average oil prices.
150
The Commission denies that it failed to address the essence of the competition concerns covered by the objections concerning pricing practices.
151
It must be recalled that the commitments relating to pricing practices are set out in paragraphs 18 and 19 of the final commitments. Paragraph 18 provides, in essence, that Gazprom should propose to amend the contracts concerned within 10 weeks of their entry into force, in order to include a new price review clause, or to amend the existing clauses, in order to achieve the same result, that is to say, in practice, a new process for revising the price formulae for determining contract prices for gas. Gazprom should propose this for all gas supply contracts with a term of at least three years, whether existing or new contracts. Paragraph 19 of the final commitments sets out five elements which must be included in that new process in order to achieve new price formulae, in the event that the process is triggered.
152
Therefore, it follows from paragraphs 18 and 19 of the final commitments that the Commission in fact chose to authorise a new price review process rather than to ensure an immediate modification of the price formulae.
153
In that regard, it is true that, in the statement of objections, the Commission did not focus on the price review processes, but examined the existing price formulae in the contracts concerned and, in particular, the indexation to oil product prices incorporated into those formulae, questioning the inflationary effects on contractual gas prices of that indexation, as is apparent in particular from section 11.4 of the statement of objections, entitled ‘[confidential]’. The Commission had noted that the reasons which had initially justified indexation of the price formulae to oil product prices, that is to say, in particular, the insufficient maturity of the gas markets, had largely disappeared (paragraph 545 of the statement of objections), a finding which also follows, in essence, from recital 76 of the contested decision. However, the fact remains that the competition concerns set out, on a preliminary basis, by the Commission in the statement of objections related primarily to the existence of potentially excessive contract prices and that the Commission had not [confidential] (see in particular paragraphs 949 and 981 of the statement of objections). That can be seen, in essence, in the summary of the preliminary assessment contained in the contested decision (recitals 62 and 63).
154
Whatever the Commission’s position was at the stage of its preliminary assessment as regards the indexation of the price formulae, in the first place, it is important to note that, at the stage of the administrative procedure during which the commitments offered by Gazprom were being examined, the contract prices, linked to the reduction in oil product prices, had fallen, so that those prices converged with the prices applicable at Western European gas hubs. That finding, put forward by the Commission and by Gazprom in the context of the present action, follows from the contested decision (see recital 76 and footnote 49, as well as recitals 162 and 164) and is not, in fact, challenged by the applicant, which instead emphasises the risk of a future increase in oil prices and a corresponding increase in contract prices to potentially excessive levels.
155
Accordingly, in the light of the level of prices at the time of the adoption of the final commitments, there was no question of potentially excessive prices requiring a modification of the price formulae with immediate effect.
156
In that regard, it should be added that the relevant customers could quickly submit a price review request in order to obtain a modification of the price formulae. Under the last subparagraph of paragraph 19(ii) of the final commitments, those customers can submit their first price review request at any time once the new price review process has been incorporated into a given contract, it being understood that Gazprom had to propose such incorporation within 10 weeks from the date of notification of the contested decision.
157
In the second place, it is important to point out that, as set out in recital 176 of the contested decision, the decision to opt for a new price review process allowed the Commission not to have to formulate itself, in coordination with Gazprom, new price formulae for each of the contracts concerned, which would not have been easy given the complexity of such an exercise. Indeed, [confidential] (as is apparent from paragraphs 223 and 1065 of the statement of objections). It follows that it was not manifestly unreasonable for the Commission, in particular in view of the need to consider the economic balance and the particular characteristics of each contract concerned, not to have pursued such a price formulae arrangement in the context of drawing up the commitments.
158
As to the remainder, it is necessary to reject the argument that the commitments relating to pricing practices will allow a recurrence of the practices initially called into question, that is to say the potentially excessive pricing practices, and are therefore contrary to Article 9 of Regulation No 1/2003, read together with Article 7 thereof. Since the choice of a new price review process must make it possible to counter the effects of a possible future increase in oil prices by ensuring, as stated in recital 179 of the contested decision, that prices in the five CEE countries concerned by the pricing practices will never diverge ‘for more than a very short time interval’ from competitive Western European price benchmarks, that choice is specifically intended to avoid such a recurrence.
159
In the light of the foregoing, and without prejudice to the examination of the following parts of the second plea, by which the applicant contests, in essence, the adequacy of the new price review process as such, it must be concluded that the Commission could, without committing a manifest error of assessment, accept an undertaking providing for the establishment of that new process rather than providing for an immediate modification of the price formulae.
160
The first part of the second plea must therefore be dismissed as unfounded.
2. The second part of the second plea, concerning the ineffectiveness of the new price review process
161
In the second part of this plea, the applicant calls into question the effectiveness of the new price review process provided for in the commitments relating to pricing practices. This part of the plea consists, in essence, of four complaints.
162
The Commission disputes the errors alleged by the applicant.
(a) The ineffectiveness of the commitments in view of Gazprom’s obstructive practices (first complaint)
163
The applicant submits that the Commission erred as to the reasons why Gazprom had managed to maintain excessive contract prices, which led it to accept a new and ineffective price review process.
164
The Commission wrongly concluded that the excessive contract prices in the past were the result of the absence, in the contracts concerned, of effective price review clauses referring to appropriate price benchmarks, such as prices at gas hubs. Such a conclusion is contrary to the evidence available to the Commission and its findings in the statement of objections. In particular, a proper examination of the price review clause included in the applicant’s contract with Gazprom would have enabled the Commission to find that that clause already allowed the level of certain price benchmarks to be relied on both as a circumstance justifying the triggering of a price review and as a criterion for determining a new price.
165
However, notwithstanding the fact that the existing price review clauses already referred to competitive price benchmarks and the making of certain revisions, Gazprom’s customers nevertheless faced continued divergences between the revised prices and competitive gas prices and were required to pay non-competitive prices.
166
In fact, as the Commission also found in the statement of objections, the real obstacle to price reviews came from the obstructive behaviour of Gazprom, which had refused in the past to revise its prices and to apply revised prices. As long as the existing price formula favoured Gazprom, that undertaking would allow itself to prolong the price review procedures, as its customers, which were obliged to pay excessive prices, would eventually be willing to accept even marginal price reductions.
167
In particular, the applicant points out, first of all, that a price review requires Gazprom’s cooperation at various stages, assuming, at the very least, that Gazprom is prepared to engage in good faith in price negotiations and to recognise the revised prices resulting from the review process, if necessary, by enforcing a possible arbitral award. However, Gazprom is alleged to have specifically used the weaknesses inherent in the price review process provided for by the existing clauses and to have blackmailed its customers for many years, in particular by threatening to reduce or interrupt gas supplies if they insisted on a revised price. Moreover, Gazprom is also in a position to undermine the effectiveness of arbitration proceedings, by refusing to enforce arbitral awards or by extending the duration of such proceedings. Those practices are illustrated by the situations in which, respectively, Naftogaz, established in Ukraine, and the applicant found themselves. In actual fact, during the period examined by the Commission, only Western European customers actually benefited from revised prices, whereas the claimed price reviews with customers in the five CEE countries concerned by the pricing practices took place only in certain ‘scenarios’ which remained essentially under Gazprom’s control.
168
In that regard, the Commission cannot claim that the acceptance by Gazprom’s customers of revised prices, in the circumstances of those scenarios, and in particular in the context of a ‘forced agreement’, stemmed from independent choices on their part. On the contrary, those choices were made in a context of pressure from that undertaking and are merely components or effects of Gazprom’s abuse of that position.
169
Nor can the Commission claim that Gazprom’s past practices in relation to price review requests, in particular those of which it is aware, are not relevant to the assessment of the adequacy of the new price review process, solely because that new process is set out in binding commitments. Such an approach allows relevant factual circumstances to be disregarded and, therefore, is contrary to the nature of the Commission’s role under Article 102 TFEU and to the requirements relating to the taking of evidence, as confirmed by the Court of Justice in the judgments of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87), and of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392). In fact, evidence of the difficulties encountered by Gazprom’s customers in the past and, accordingly, of the ineffectiveness of the commitments relating to pricing practices should be considered so manifest as to be indisputable, with the result that the Commission’s preliminary findings cannot be changed in that regard.
170
Similarly, the Commission failed to explain, in concrete terms, how Gazprom’s obstructive behaviour would be avoided in the future as a result of the commitments relating to pricing practices or how that behaviour could constitute a breach of those commitments. In fact, as was found in the statement of objections, neither price negotiations nor arbitration proceedings would guarantee an end to excessive prices, since Gazprom’s practices would continue as long as structurally unfair price formulae existed.
171
In that regard, the effectiveness of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, would be quite limited in the face of the practices used by Gazprom, since the latter would refuse to enforce arbitral awards, would obstruct the enforcement procedures and would conceal its assets by transferring them beyond the reach of the courts to which the beneficiaries of those awards could turn.
172
Finally, in line with the arguments put forward by the applicant, the Republic of Poland and the Republic of Lithuania point out that Gazprom remains an indispensable supplier in the region and that, notwithstanding the completion of planned infrastructure investments and, in particular, the construction of an interconnection between Poland and Lithuania, its bargaining power is unlikely to weaken. Under those circumstances, the Commission should have required more far-reaching commitments from Gazprom to ensure effective price reviews, since, as those commitments now stand, Gazprom, through the obstructive behaviour referred to, is not formally breaching the commitments relating to pricing practices.
173
The Commission, supported by Gazprom, contests the applicant’s line of argument as to the ineffectiveness of the new price review process, with the result that the present complaint should be dismissed.
174
In that regard, the Court observes that, by its line of argument, the applicant claims that the Commission made a manifest error of assessment comprising two components, which explain the ineffective nature of the new price review process. On the one hand, the Commission erroneously identified the cause of the ineffective price reviews in the past as being the impossibility of relying on competitive price benchmarks and, on the other hand, it failed to identify and to remedy the real cause of those ineffective reviews, namely Gazprom’s obstructive behaviour.
175
As regards the first component of the applicant’s line of argument, relating to the absence of competitive price benchmarks in the existing price review clauses, it is clear, contrary to the applicant’s claims, from the specimen contracts set out in the statement of objections (in particular in paragraphs 226 to 232 thereof, as the Commission points out) that, at least a certain number of the contracts concerned cannot be regarded as including references in the price-setting or price review clauses to competitive and clearly defined price benchmarks, as understood by the Commission in the contested decision. Those examples refer to clauses which differ significantly in their wording from that of the pricing guidelines in paragraph 19(iii) of the final commitments, in particular in that those guidelines refer to ‘the price level in the competitive Continental Western European gas markets’ and relate to the average weighted import prices in Germany, France and Italy and the price level at the relevant generally accepted liquid gas hubs in Continental Europe.
176
With regard, in particular, to the clause included in the contract between Gazprom and the applicant, a copy of which was produced by the applicant with the responses of 8 December 2020, the Court finds that [confidential].
177
Therefore, in assessing the adequacy of the commitments relating to pricing practices and, in particular, the appropriateness of proceeding by way of a new price review process, the Commission could, without committing a manifest error of assessment, rely on the preliminary finding, set out inter alia in recital 63 of the contested decision (and in similar terms in recitals 78, 79 and 177 of that decision), that the absence from the price review clauses of a clearly defined, competitive and publicly available price benchmark (such as the prices at competitive gas hubs) was one of the main factors which could have led to unfair prices in the five CEE countries concerned by the pricing practices.
178
As regards the second component of the applicant’s line of argument, relating to Gazprom’s obstructive behaviour, it must be observed first of all that the commitments relating to pricing practices aim at establishing a new price review process which strengthens the position of Gazprom’s customers in the CEE countries concerned by comparison with their existing situation as set out in the statement of objections (in particular paragraphs 226 to 232 thereof). As is apparent from paragraph 151 above, paragraph 19 of the final commitments lays down five elements which must be included in that process.
179
In particular, in addition to the imposition of pricing guidelines (see paragraph 19(iii) of the final commitments, section entitled ‘Adjustment part of the price review clause’) including references to competitive price benchmarks (see paragraph 175 above), that new process provides, inter alia, as follows:
–
specific criteria for those customers to request a price review, including a criterion based on a divergence between the level of contract prices and the development of prices on the European gas markets as reflected inter alia in the development of average weighted import prices in Germany, France and Italy and/or the development of the prices at the relevant generally accepted liquid gas hubs in Continental Europe (see paragraph 19(i) of the final commitments, section entitled ‘The trigger part of the price review clause’);
–
the possibility of requesting a price review every two years and, in addition to that possibility, the right to request a review once every five years (which represents the ‘joker’ referred to in recitals 125 and 156 of the contested decision) (see paragraph 19(ii) of the final commitments, section entitled ‘The frequency and timing of the price review’);
–
the possibility of submitting their price dispute to arbitration in the absence of an agreement between the parties within 120 days of the submission of the price review request (see paragraph 19(iv) of the final commitments, section entitled ‘Arbitration part of the price review clause’).
180
Above all, quite apart from those structural elements of the new price review process, the applicant cannot disregard an important difference from price review requests made by one of the relevant customers of Gazprom in the past. Should a customer make a price review request under the new process, that request would be made in the context of the implementation of commitments made binding under the procedure established by Article 9 of Regulation No 1/2003.
181
Accordingly, Gazprom’s conduct in implementing the final commitments will be monitored, primarily, by the trustee responsible for monitoring those commitments, in accordance with section 5.2 of the commitments. It will thus be open to the relevant customers of Gazprom, including the applicant, to inform the monitoring trustee and the Commission of conduct which, in the opinion of those customers, is not consistent with the final commitments. If the Commission, on the basis of information transmitted by the monitoring trustee or by those customers, finds that the conduct was contrary to the wording and the objective of those commitments, it can impose a fine on Gazprom pursuant to Article 23(2)(c) of Regulation No 1/2003.
182
Such conduct would also allow the Commission to reopen the administrative procedure, under Article 9(2)(b) of Regulation No 1/2003. In the same vein, it must be noted that, on the basis of information provided by the trustee responsible for monitoring those commitments or by the relevant customers, the Commission can, in accordance with Article 9(2)(a) and (c) of that regulation, reopen the proceedings if it finds that there has been a material change in any of the facts on which the decision was based or that the decision was based on incomplete, incorrect or misleading information provided by the parties. However, in view of the thorough investigation already carried out and the notification of the statement of objections, such a reopening of the proceedings and the conduct and timing of those proceedings are not comparable to the opening of a new investigation ab initio against that undertaking.
183
In those circumstances, without prejudice to any findings and conclusions which may be made by the trustee responsible for monitoring the final commitments or by the Commission, and even assuming that Gazprom’s conduct in a given set of circumstances may be difficult to assess and qualify, it would be risky for Gazprom to engage in obstructive behaviour in future price review proceedings. In particular, as argued inter alia by the Commission, any conduct whereby Gazprom either seeks to link the outcome of price negotiations to the obtaining of advantages in its favour which are clearly unrelated to prices or significantly obstructs arbitration proceedings is likely to lead to the consequences referred to in the two preceding paragraphs.
184
Moreover, in the light of the foregoing considerations, the preliminary findings set out in paragraphs 976 to 979 of the statement of objections, which concern the inadequacies of the existing price review clauses and the situation prevailing prior to the adoption of the contested decision, do not justify calling into question the adequacy of the commitments relating to pricing practices. Similarly, the mere fact, which is subsequent to the adoption of the contested decision and the veracity of which is disputed by the Commission, that no price review request has been notified since the entry into force of those commitments is not sufficient to call into question their adequacy.
185
As to the remainder, it is necessary to reject the arguments put forward by the Republic of Lithuania, alleging, on the one hand, that the Commission did not take into account the comments submitted by its Ministry of Energy and, on the other hand, that the trustee responsible for monitoring the final commitments is remunerated by Gazprom. The first argument is unsubstantiated. As regards the second argument, in view of the measures provided for in paragraphs 23 to 44 of the final commitments, the fact that the monitoring trustee is remunerated by Gazprom is not sufficient to call into question its independence. In particular, the selection of the monitoring trustee is subject to a rigorous procedure and, if necessary, the Commission itself could carry out that selection. Moreover, those paragraphs clearly specify the monitoring trustee’s mission and state that the Commission may give instructions to it.
186
The first complaint in the second part of the second plea must therefore be dismissed.
(b) The failure of the commitments to address the competition concerns in good time (second complaint)
187
The applicant argues that a commitment decision must address the competition concerns identified by the Commission in a timely manner. However, the expected duration of the procedures initiated under the new price review process renders that process ineffective. Although, in the statement of objections, the Commission itself set out that problem concerning price review clauses, it did not explain how the new price review process would correct excessive prices in good time.
188
In particular, the fact that it is possible to request a price review more frequently does not eliminate the risk of excessive prices or their effects during the many years of the review process. The 60-day reduction in the negotiation period before starting arbitration, from 180 to 120 days, has no effect on the length of the arbitration proceedings themselves, since Gazprom’s leeway to slow down a review arises at the arbitration stage, during which it can extend the duration of the proceedings. In that regard, the applicant notes that arbitration between Gazprom and its customers lasts approximately 25 months. The length of that period is prolonged by the duration of the legal proceedings necessary for enforcing arbitral awards, in particular in view of Gazprom’s practice of refusing to enforce them. Nothing in the commitments relating to pricing practices requires Gazprom to seek an early resolution of a pricing dispute, either by engaging in price negotiations or by promptly enforcing an arbitral award.
189
Furthermore, the applicant disputes that a retroactive application of the revised prices, as provided for in paragraph 19(v) of the final commitments, would compensate for the risks associated with the duration of the review process, when, in reality, retroactive application would not address the difficulties faced by Gazprom’s customers, namely prolonged loss-making operations, loss of liquidity, inability to finance future developments or even insolvency.
190
The Commission, supported by Gazprom, takes the view that the present complaint must be dismissed.
191
It must be recalled that application of the principle of proportionality by the Commission in the context of Article 9 of Regulation No 1/2003 is limited to verifying that the commitments in question address the concerns it expressed to the relevant undertakings and that they have not offered less onerous commitments that also address those concerns adequately (see the judgment in Alrosa, paragraph 41). While those considerations may require that such commitments address competition concerns ‘in a timely manner’, as the applicant argues, the assessment of whether this is necessary depends on the specific case.
192
In that regard, it must be recalled that, at the stage of the administrative procedure in which the commitments offered by Gazprom were considered, following the reduction in oil product prices, the contract prices had fallen and thus were converging with those applicable at Western European gas hubs. Accordingly, at that stage, there was no question of potentially excessive prices requiring an immediate solution.
193
It must also be recalled that, according to paragraph 18 of the final commitments, within a relatively brief period of ten weeks after their entry into force, Gazprom had to propose amendments to the contracts concerned in order to introduce a new price review clause or amendments to existing clauses so as to establish the new review process. Moreover, the last subparagraph of paragraph 19(i) of the final commitments provides that the first price review request can be made at any time after that new process is established (see paragraph 156 above).
194
Furthermore, under the new price review process, it is certainly true that the relevant customers of Gazprom will remain subject to the existing price formulae pending the revised prices resulting from the arbitration proceedings, which could take several months or even years. The applicant and Gazprom cite examples of such proceedings having average durations of 25 months and 17.6 months, respectively.
195
However, as already stated in paragraphs 178 to 182 above, on the one hand, the commitments relating to pricing practices seek to establish a new price review process which strengthens the position of Gazprom’s customers in the CEE countries concerned by comparison with their existing situation. On the other hand, in adopting behaviour contrary to the wording and purpose of the final commitments, Gazprom would run the risk of possible application of Article 9(2) and Article 23(2)(c) of Regulation No 1/2003.
196
In those circumstances, the applicant is wrong to argue that there is nothing in the commitments relating to pricing practices which requires Gazprom to change its behaviour, in particular in the context of arbitration or the enforcement of arbitral awards, as compared with past price reviews. Similarly, without prejudice to the examination of the complaints and the parts of the pleas in law which follow, it must be held that the situation resulting from the new price review process must be distinguished from the circumstances set out, by way of illustration, in paragraphs 977 and 978 of the statement of objections, on which the applicant relies, in which arbitration proceedings were particularly lengthy or did not necessarily result in competitive prices.
197
Moreover, with regard to the alleged financial difficulties faced by the relevant customers of Gazprom pending the revised prices, notwithstanding the retroactive application of those prices, it should be noted that the applicant has not provided any specific past examples, supported by data, illustrating such alleged difficulties, including in relation to itself.
198
At most, the economic study submitted by the applicant in Annex U.6 to its observations on Gazprom’s statement in intervention indicates that a gas purchaser such as the applicant faces various financial disadvantages, in particular a loss due to the additional cost of gas and a possible loss of customers migrating to less expensive competitors (paragraphs 19 to 21 of that study). However, without it being necessary to rule on the admissibility of that part of the study, it should be noted that those disadvantages are likewise not supported by either numerical data or specific past examples and that, in any event, they do not involve sufficiently serious financial harm, such as bankruptcy or exit from the market concerned, to be capable of calling into question the appropriateness of the new price review process, in particular in so far as it entails possible reliance on arbitration.
199
The likelihood of such harm is further mitigated by the fact that it is apparent, in essence, from recital 32 of the contested decision that, in general, many of the relevant customers are the main wholesaler in each of the CEE countries concerned and were not historically exposed to an inflow of large volumes of gas from other CEE countries concerned.
200
In the light of the foregoing, and contrary to the applicant’s submissions, the Commission was able to state, in recital 133 of the contested decision, that the final commitments could immediately address the competition concerns and provided a forward-looking framework to ensure that Gazprom would not repeat the same abusive behaviour on the market in future.
201
As to the remainder, in so far as the applicant maintains, in the context of the present complaint, that the Commission should have acted by imposing a direct modification of the price formulae included in the contracts concerned, it is sufficient to point out that such a complaint was dismissed in the context of the first part of the present plea.
202
In those circumstances, the Court holds that the Commission did not commit the manifest error of assessment alleged by the applicant, in that the commitments relating to pricing practices failed to address in good time the objections concerning those practices.
203
The second complaint in the second part of the second plea must therefore be dismissed.
(c) The failure to take into account the costs of arbitration proceedings (third complaint)
204
According to the applicant, the Commission failed to take into account the significant costs of arbitration proceedings, even though that difficulty had been identified in the statement of objections. It is true that Gazprom’s customers could request price reviews, but they would face a twofold financial burden during the review process, since they would be obliged to suffer the effects of the excessive prices themselves and the substantial amounts needed to cover the costs of arbitration proceedings.
205
Moreover, in so far as Gazprom’s customers might seek to challenge the compatibility of an arbitral award with Article 102 TFEU, that would entail additional costs for them resulting from the production of economic evidence or the appointment of experts.
206
The Commission takes the view that the present complaint must be dismissed.
207
In that regard, it is true that, in the statement of objections, the Commission had noted the costly nature of arbitration proceedings initiated in the context of price reviews and had stated that, in view also of the uncertain outcomes of those proceedings and their time-consuming nature, [confidential] (see, in particular, paragraphs 236 and 977 of the statement of objections).
208
However, the fact remains that it is not clear from those preliminary findings that the Commission considered that Gazprom’s customers were not in a position to meet the costs associated with arbitration proceedings. Above all, as set out in essence in paragraphs 178 to 182 above, the relevant customers of Gazprom are in a stronger position following the adoption of the final commitments than they were prior to their adoption, taking into account the elements laid down in paragraph 19 of the final commitments and the risks for Gazprom associated with the possible application of Article 9(2) and Article 23(2)(c) of Regulation No 1/2003.
209
In those circumstances, the Commission could legitimately consider that, in the context of the new price review process, those customers would be likely to reach different conclusions, having regard to the preliminary findings recalled in paragraph 207 above, in their analysis of whether it is appropriate to initiate arbitration and, in particular, that they would be much more inclined to incur the costs associated with such arbitration.
210
In the light of the foregoing, it must be held that the Commission did not commit a manifest error of assessment by failing to take sufficient account of the costs of the arbitration proceedings initiated in the context of the new price review process.
211
The third complaint in the second part of the second plea must therefore be dismissed.
(d) The inappropriateness of the limitation of the duration of the contracts (fourth complaint)
212
According to the Republic of Lithuania, by limiting the inclusion of the new price review clause solely to contracts with a duration of at least three years, which is never the case for contracts concluded in Lithuania, the Commission allowed Gazprom to circumvent the commitments relating to pricing practices, since Gazprom could, by concluding shorter-term contracts, continue to include price formulae resulting in unfair prices.
213
The risk associated with that possibility open to Gazprom is supported by the fact that the Commission itself, in Commission Decision C(2016) 4764 final of 26 July 2016 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39317 – E.ON Gas), found that gas wholesalers, Gazprom’s customers, increasingly preferred short-term contracts.
214
Moreover, the Commission found in the contested decision that the long-term nature of the contracts concerned helped to maintain Gazprom’s dominant position on the markets of the five CEE countries concerned by the pricing practices. It is therefore incomprehensible that, by restricting the new price review process to long-term contracts, it is now encouraging the relevant customers to conclude such contracts.
215
The Commission takes the view that the present complaint must be dismissed.
216
In that regard, it must be observed that it is clear, both from the statement of objections (see, in particular, paragraphs 206, 217, 396, 458, 498 and, more generally, section 15.8.2) and from the contested decision (see, in particular, recitals 70, 72, 75, 162 and 176), that the competition concerns expressed by the Commission with regard to pricing practices concerned only long-term contracts, that is to say contracts with a duration of at least three years.
217
According to the Commission, that situation is explained, inter alia, by the fact that contracts with a duration of less than three years require a more frequent renegotiation of prices, which eliminates the risk that those prices will deviate from the competitive price benchmarks in the long-term, contrary to the preliminary findings made in the statement of objections with regard to long-term contracts concluded by Gazprom with its customers in the five CEE countries concerned by the pricing practices.
218
In those circumstances, and in view, in particular, of the fact that the objections concerning pricing practices were concerned with long-term contracts, the Commission cannot be criticised for accepting, with a view to addressing those objections, commitments relating to pricing practices applicable to contracts of at least three years’ duration.
219
Furthermore, with regard to the claim that the limitation of those commitments to long-term contracts allows Gazprom to circumvent those commitments by concluding contracts with a duration of less than three years, it must be observed that, when asked about the respective interests, on the one hand, of Gazprom’s customers and, on the other hand, of Gazprom in concluding short-term or long-term contracts, both the applicant and the Commission, in the responses of 8 December 2020, stated, in essence, that the relevant considerations were diverse and that both Gazprom and those customers could have an interest in concluding one or the other type of contract, and accordingly that choice would require a case-by-case examination.
220
Furthermore, the applicant noted, again in the responses of 8 December 2020, that, as regards the Baltic countries, since those markets did not offer Gazprom the guarantee of significant volumes, it would be much less important for it to conclude long-term contracts with customers operating in those markets, so that Gazprom could easily decide to abandon long-term contracts in favour of short-term contracts (generally of one year’s duration). This suggests that Gazprom’s choice to enter into a short-term contract would not necessarily be guided by a desire to circumvent the commitments relating to pricing practices.
221
In the light of the foregoing, the fourth complaint in the second part of the second plea must be dismissed and, consequently, that part must be dismissed as unfounded in its entirety.
3. The third part of the second plea, concerning errors in the formulation of the pricing guidelines
222
Following on from the second part of the present plea, which seeks to challenge the effectiveness of the new price review process, the applicant submits that the Commission committed manifest errors of assessment in relation to the content of the pricing guidelines provided for in paragraph 19(iii) of the final commitments, under the section entitled ‘Adjustment part of the price review clause’. This part of the plea consists, in essence, of five complaints.
223
The Commission disputes those alleged errors.
(a) The absence of a hierarchy between the criteria used in the pricing guidelines and the vague nature of those guidelines (first complaint)
224
According to the applicant, the pricing guidelines establish three criteria for the revision of the price formulae: (i) the average weighted import prices in Germany, France and Italy, (ii) the prices at the relevant generally accepted liquid gas hubs in Continental Europe and, (iii) the characteristics of the gas supplied under a given contract. However, those three criteria differ from the comparators used by the Commission in the statement of objections to assess the possibly excessive nature of the contract prices.
225
The applicant argues that it was necessary to establish a hierarchy between the three criteria laid down in the pricing guidelines and that the criterion of prices at generally accepted gas hubs should have been the main criterion. That absence of a hierarchy cannot be justified on the basis that it makes it possible to mitigate the risks associated with significant price changes resulting from one of the criteria, since arbitral tribunals would then be free to establish a hierarchy according to rules potentially favourable to Gazprom.
226
Moreover, the applicant and the Republic of Poland submit that the pricing guidelines are formulated in overly general terms, so that revised prices may vary depending on the arbitrators, the interpretation of the contractual clauses by those arbitrators, the experts called upon or the assessment of the specific circumstances of each price dispute. This ultimately allows Gazprom to protect itself, in practice, against price reductions and does not help to restore free and undistorted competition in European gas markets.
227
The Commission, supported by Gazprom, takes the view that the pricing guidelines are adequate and therefore that the present complaint should be dismissed.
228
It should be recalled that, under paragraph 19(iii) of the final commitments, the relevant clause in the contracts concerned must include the following pricing guidelines:
‘when reviewing the Contract Price provisions the Parties will take into account the price level in the competitive Continental Western European gas markets, inter alia, the average weighted import border prices in Germany, France and Italy and the price level at the relevant generally accepted liquid hubs in Continental Europe (including, inter alia, TTF, NCG, etc.) having due regard to all characteristics of the natural gas supplied under the Contract (such as but not limited to quantity, quality, continuity and flexibility).’
229
However, it is clear from a combined reading of the pricing guidelines and the body of the contested decision (in particular recitals 103 and 155 thereof) that those pricing guidelines provide for two criteria, rather than the three criteria identified by the applicant. Thus, as the Commission argued, inter alia, at the hearing, in determining new price formulae, it is necessary, in the first place, to take into account the price level in the competitive Continental Western European gas markets and, in the second place, to do so while taking due account of the specific characteristics of the contract concerned by the price review.
230
With regard to that first criterion, it is also clear from the pricing guidelines that the price level in the competitive Continental Western European gas markets must be understood by reference, inter alia, to two types of data, namely, first, the average weighted import prices in Germany, France and Italy (‘the average import prices’) and, secondly, the price level at the relevant generally accepted liquid gas hubs in Continental Europe (‘the hub prices’).
231
It is in the light of those considerations that the arguments put forward by the applicant must be examined.
232
With regard to the absence of a hierarchy relied on by the applicant, it is important to point out that, whatever data are used, the main criterion which must be referred to by the parties to a contract concerned and by any arbitral tribunals seised is the criterion of the ‘price level in the competitive Continental Western European gas markets’.
233
Since some of the gas purchased in Continental Western Europe is purchased through, in some circumstances long-term, gas supply contracts concluded in the context of transactions separate from those taking place at gas hubs, the gas prices resulting from those contracts contribute to the formation of the price level in ‘the competitive Continental Western European gas markets’, which is not contested by the applicant. Moreover, it must be observed that the Commission used the prices applicable to Gazprom’s long-term contracts with German customers as part of its preliminary assessment, in the statement of objections, of the potentially excessive nature of the prices applicable to Gazprom’s contracts with its customers in the CEE countries concerned (see section 10.2.1 of the statement of objections). The applicant did not criticise that approach by the Commission in the statement of objections.
234
For example, in the pricing guidelines, the data on average import prices are used to identify prices applicable to gas supply contracts distinct from the prices at gas hubs. On that basis, those data may reasonably reflect the price level ‘in the competitive Continental Western European gas markets’.
235
Moreover, it is important to note that the commitments relating to pricing practices are intended to guarantee to relevant customers not prices comparable to the lowest prices available on the competitive markets of Continental Western Europe, but rather prices comparable to the general level of prices on those markets, a level which is the result of both hub prices and average import prices. In those circumstances, the applicant cannot validly claim that the Commission committed a manifest error of assessment by failing to establish a hierarchy between those two types of data provided for in the pricing guidelines.
236
With regard to the line of argument that the wording of the pricing guidelines is vague and overly general, first of all, it must be observed that the fact that the application of the pricing guidelines may give rise to revised prices which vary from one contract concerned to another, depending in particular on the arbitrators, cannot justify the conclusion that the pricing guidelines are inadequate, since differences in applicable prices from one contract concerned to another are not in themselves capable of justifying the conclusion that those guidelines are manifestly inadequate, because the characteristics of the contracts concerned may vary. The commitments relating to pricing practices do not aim at obtaining revised prices which are very close or identical from one contract concerned to another.
237
Next, it must be recalled that, in so far as the first criterion expressly refers to ‘the price level in the competitive Continental Western European gas markets’, it refers to price benchmarks which are much more clearly competitive than the price benchmarks identified in the existing price setting or price review clauses in the contracts concerned, including the clause in the applicant’s contract, which refers to ‘[confidential]’. From that standpoint, far from being vague, the pricing guidelines are an improvement on the existing clauses.
238
Moreover, the Court notes that, in proposing to the Commission that it should close the administrative procedure by means of Article 9 of Regulation No 1/2003, namely by the adoption of a decision making commitments binding, and in having not broken off negotiations with the Commission, Gazprom accepted that the final commitments should be made binding by Article 1 of the contested decision. That choice of approach allowed Gazprom to avoid any finding of an infringement of competition law and a possible fine penalising that infringement by the Commission (see, to that effect, the judgment in Alrosa, paragraphs 35 and 48), which is confirmed by the conclusion in Article 2 of the contested decision that there is no longer any need for the Commission to act. However, that implies that Gazprom is obliged to comply with those commitments, or otherwise risk the consequences of a finding of non-compliance with that decision as referred to in paragraphs 181 and 182 above, including the imposition of a fine. Gazprom is also subject to continuous monitoring to verify compliance with those commitments for the duration of their validity, as illustrated by section 5 of the commitments, which provides, inter alia, for the appointment of a trustee responsible for monitoring their implementation.
239
In that context, Gazprom is bound not only by the content of those final commitments, but also by the contested decision itself, since it must also be borne in mind that the operative part of a measure must be read in the light of its reasoning (see, to that effect, order of 10 July 2001, Irish Sugar v Commission, C‑497/99 P, EU:C:2001:393, paragraph 15; and judgments of 22 October 2013, Commission v Germany, C‑95/12, EU:C:2013:676, paragraph 40; and of 13 December 2013, Hungary v Commission, T‑240/10, EU:T:2013:645, paragraph 90). Therefore, in the context of the implementation of the final commitments, including the implementation and interpretation of the pricing guidelines, Gazprom must apply and interpret those commitments in accordance with the grounds of the contested decision, including with regard to the positions which it adopts in the context of price negotiations and arbitration initiated pursuant to the arbitration clause provided for in Article 19(iv) of those commitments.
240
However, it is clear from the grounds of the contested decision that the price level at gas hubs is particularly relevant, in the Commission’s view, for the purpose of determining revised prices (see, in particular, recitals 103, 164 and 178). Therefore, in the context of any given arbitration proceedings, Gazprom must adopt a position consistent with those grounds and cannot, in principle, argue that the arbitrators should disregard the price level at those hubs.
241
Finally, the applicant and the Republic of Poland did not submit alternative formulations of those guidelines which, in their view, would have ensured the adequacy of the pricing commitments. Nor have they put forward, in their respective pleadings, any specific arguments in support of their criticism that the pricing guidelines were vague and overly general. The only more specific elements in support of that line of argument are to be found in the economic study submitted by the applicant as an annex to its observations on Gazprom’s statement in intervention.
242
However, those elements, set out in the applicant’s economic study, are to a large extent inadmissible.
243
Indeed, except in so far as those elements are intended to address the evidence put forward by Gazprom in the economic study which it lodged as an annex to its statement in intervention, the evidence included in the applicant’s economic study was submitted out of time pursuant to Article 85(2) and (3) of the Rules of Procedure (see, to that effect, judgment of 13 December 2018, Monolith Frost v EUIPO – Dovgan (PLOMBIR), T‑830/16, EU:T:2018:941, paragraph 21 and the case-law cited; see also, to that effect and by analogy, judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 72). In particular, the elements set out in sections 3.2 and 3.5 are not provided in response to evidence in rebuttal submitted by the Commission or Gazprom, and there is no indication that those sections of the applicant’s economic study could not have been previously commissioned from the consultant concerned in order to be proposed, at the very least, as an offer of evidence in the application.
244
Similarly, the elements set out in the applicant’s economic study constitute a line of argument which should have been formulated in the application or in the applicant’s observations on Gazprom’s statement in intervention. It is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function. Similar requirements are called for where a submission is made in support of a plea in law. Accordingly, a submission does not satisfy the above requirements if its essential elements are set out only in the annexes to the application (see judgment of 13 July 2011, Polimeri Europa v Commission, T‑59/07, EU:T:2011:361, paragraphs 161 and 162 and the case-law cited).
245
Nevertheless, the Court will examine the relevant elements set out in paragraphs 25, 27, 32 and 33 of the applicant’s economic study.
246
First, as regards the argument that a price review could take into account only average import prices, to the exclusion of hub prices (paragraph 25 of the economic study), the express inclusion in the pricing guidelines of the two categories of data referred to above, preceded by the words ‘inter alia’, should be regarded as highlighting the importance of those two types of data, which must be taken into account by arbitral tribunals entrusted with the application of the guidelines, even though they are not themselves bound by the contested decision.
247
Moreover, Gazprom is bound both by the final commitments and by the contested decision which makes them binding. However, it is clear from the grounds of that decision that data relating to hub prices are particularly relevant for the purpose of determining revised prices (see, in particular, recitals 103, 164 and 178). Therefore, in the context of any given arbitration proceedings, Gazprom must adopt a position consistent with those grounds and cannot, in principle, argue that the arbitrators should disregard those hub prices.
248
Second, according to the applicant’s economic study (paragraph 27), the criterion related to the characteristics of a particular contract concerned (such as quantity, quality, continuity and flexibility) allows Gazprom to disregard the level of hub prices. Since such a reading is contrary to the terms of the pricing guidelines and is not supported, it must be dismissed.
249
Third, according to the applicant’s study, the pricing guidelines are inappropriate because they make no provision with regard to the continued indexation of contract prices to oil product prices (paragraphs 32 and 33 of that study). It is sufficient to point out in that regard that those guidelines did not have to refer expressly to such indexation, since, by ensuring prices approximating competitive Western European prices, those guidelines must therefore allow the correction of any inflationary effects of that indexation.
250
Moreover, in so far as the applicant takes the view that the pricing guidelines are ineffective in that they refer vaguely to ‘the price level’ in the competitive Continental Western European gas markets, rather than providing for indexation to those prices, it is sufficient to note that the applicant gives no explanation as to how such indexation would be achieved in practice, and it is possible that a revision by way of negotiation or arbitration would achieve such a result. Furthermore, as explained in paragraph 239 above, the pricing guidelines must be applied in the light of the grounds of the contested decision, which provide in particular that the final commitments ‘aim to ensure that the gas price under the oil-indexed contracts in [the CEE countries concerned] remain in line with the competitive price benchmarks’ (recital 164) and that those commitments ‘thus aim to ensure that prices in the five [CEE countries concerned by the pricing practices] will, when revised, be set in line with competitive Western European price benchmarks’ (recital 179).
251
In view of the foregoing considerations, it has not been established that the Commission committed the manifest errors of assessment alleged by the applicant. As to the remainder, even if the applicant is claiming that the pricing guidelines were intended to allow the relevant customers to obtain the lowest possible prices, such as the hub prices, it is sufficient to note that the fact that other commitments could also have been accepted, or might even have been more favourable to competition, cannot, as such, justify annulment of the contested decision (see, to that effect, the judgment in Morningstar, paragraph 59).
252
Therefore, without prejudice to the examination of the other complaints, the first complaint in the third part of the second plea must be dismissed.
(b) The inappropriateness of the criterion relating to the price level at gas hubs (second complaint)
253
The applicant points out that the UK hub, the National Balancing Point (NBP), was not included as a benchmark hub expressly identified in the pricing guidelines (unlike the Title Transfer Facility (TTF) and NetConnect Germany (NCG) hubs), although the maturity of the NBP and the fact that the United Kingdom is supplied with gas from Continental Europe would have justified its inclusion. Contrary to what the Commission initially claimed, it would not be possible nevertheless to refer to that hub, since the wording of the pricing guidelines refers to gas hubs in ‘Continental’ Europe. That error confirms the difficulties of interpretation otherwise alleged.
254
The Commission takes the view that the present complaint must be dismissed.
255
In that regard, it must be observed that the two occurrences of the word ‘Continental’ in the pricing guidelines exclude the use of pricing data from the NBP hub.
256
However, that exclusion cannot in itself suffice to establish a manifest error of assessment by the Commission in relation to the formulation of the pricing guidelines, since those guidelines allow the use of other ‘generally accepted’ hubs and expressly refer to the TTF and NCG hubs, the appropriateness and liquidity of which is not disputed by the applicant. Moreover, the applicant’s economic study expressly states that the TTF hub is mature and is one of the most liquid hubs in Europe.
257
The second complaint in the third part of the second plea must therefore be dismissed.
(c) The inappropriateness of average import prices in Germany, France and Italy (third complaint)
258
According to the applicant, the data on average import prices in Germany, France and Italy are inappropriate and were not used in the statement of objections. In the first place, the pricing guidelines do not indicate the source to be used to identify the relevant prices and the publicly available data do not reflect the actual prices at a given period of time in the absence of a rigorous retroactive correction of those data in the event of a subsequent revision of prices in the context of negotiation or arbitration.
259
In the second place, the average import prices are inappropriate in that the gas markets in France and Italy, which are not the most liquid or the most liberalised, prove to be, as a rule, higher than those in Germany. Moreover, the prices applicable in those two countries are little used as price benchmarks by Gazprom’s customers in the five CEE countries concerned by the pricing practices.
260
In the third place, during the eight years of application of the final commitments, gas markets are likely to develop, so that the average import prices of one of those three countries could lose their ‘status’ as price benchmarks without the pricing guidelines envisaging that possibility. Moreover, the Commission did not take into account the proposal made by the applicant, during the market test, to determine the price benchmarks according to an objective method.
261
In the fourth place, average import prices are generally higher than hub prices, with the result that they exert upward pressure on the prices resulting from the pricing guidelines.
262
The Commission takes the view that the use of average import prices is appropriate and therefore that the present complaint should be dismissed.
263
In that regard, it must first of all be observed, in line with what has already been stated in paragraphs 233 to 235 above, that there does not appear to be any reason of principle to justify excluding the data relating to import prices. The specific arguments put forward by the applicant do not invalidate that consideration.
264
In the first place, as regards the practical and technical obstacles identified by the applicant, it must be observed that those obstacles are not such that persons involved in the resolution of price disputes, including the staff of the relevant customers, the arbitrators or the experts used by the arbitral tribunals, would not be in a position to react to the obstacles or take them into account in drawing up price formulae. For example, those persons could use pricing information made available by public authorities (national authorities or Eurostat (the Statistical Office of the European Union)), as well as that produced by private undertakings, and could define such formulae so as to cover any inadequacies in that information, in particular the fact that it does not reflect any price reviews occurring after the relevant data have been collected by those authorities or private undertakings. Similarly, it is reasonable to expect that those persons should be able to take account of the differences generally found between average import prices and hub prices, in particular as regards the inclusion of ‘entry costs’.
265
In the second place, even if the gas markets in France and Italy are less liquid and less liberalised than that in Germany, that is not a sufficient basis for holding that the Commission committed a manifest error of assessment by including those two countries. The fact remains that the gas markets in each of those three countries are competitive, notwithstanding Gazprom’s large market shares. As regards the argument that other markets are more liquid, such as those of Belgium or the Netherlands, it is sufficient to note that the pricing guidelines do not prevent the parties and the arbitrators from taking those other markets into account.
266
In the third place, as the Commission points out, the applicant does not put forward any justification for fearing a change in circumstances such that the gas markets of Germany, France or Italy would no longer be competitive and that the average import prices relating to one or other of those countries could no longer serve as price benchmarks. In any event, where there is a material change in the facts on which the contested decision was based, the Commission may, pursuant to Article 9(2) of Regulation No 1/2003, reopen the proceedings.
267
In the fourth place, as is apparent from the considerations set out in paragraphs 233 to 235 and 263 above, even if average import prices are higher than hub prices and thus exert ‘upward pressure’ on the price level resulting from the pricing guidelines, the applicant has not established that those average prices are inadequate in principle.
268
The third complaint in the third part of the second plea must therefore be dismissed.
(d) The characteristics of the gas supplied under a given contract (fourth complaint)
269
The applicant submits that, in allowing the second criterion of the pricing guidelines, which makes it necessary to ‘[have] due regard to all the characteristics of the natural gas supplied under [a given contract]’, the Commission failed to take into account Gazprom’s adverse use of such characteristics in the past. Gazprom presented its long-term contracts as a ‘premium’ product compared to gas purchased at hubs, which justified higher prices. Moreover, each of the characteristics expressly identified in the pricing guidelines (that is to say quantity, quality, continuity and flexibility) made it possible to justify price increases, whereas no characteristics justifying price reductions were included.
270
The Commission takes the view that the present complaint must be dismissed.
271
In that regard, as has already been stated in paragraph 229 above, the pricing guidelines provide that two criteria apply, so that it is necessary, when revising prices, in the first place, to take into account the price level in the competitive Continental Western European gas markets and, in the second place, to do so taking due account of the specific characteristics of the contract concerned.
272
Accordingly, it is apparent from the pricing guidelines that they require, by the first criterion, that account be taken of elements external to the particular contract concerned, namely data reflecting the price level in the competitive Continental Western European gas markets. However, such data may result from various contracts which are potentially different from the contract concerned, for example if they are linked to trading at hubs. In those circumstances, the Commission cannot be criticised for accepting that the pricing guidelines should also include the second criterion, which allows the internal characteristics of that contract to be taken into account.
273
Moreover, it must be held, contrary to the applicant’s assertions, that the inclusion of the second criterion and the characteristics expressly identified in the pricing guidelines will not necessarily result in upward pressure on the revised prices. If, in a given case, an arbitral tribunal hearing the dispute chose to apply the first criterion, primarily by using data relating to the supply of gas in Continental Western Europe by means of long-term contracts, that is to say contracts with characteristics potentially similar to the contracts concerned, there would be nothing to prevent that arbitral tribunal from taking that choice into account by moderating the implementation of the second criterion.
274
The fourth complaint in the third part of the second plea must therefore be dismissed.
(e) The elements not referred to in the pricing guidelines (fifth complaint)
275
The applicant and the Republic of Lithuania argue, in essence, that the pricing guidelines should have included additional elements. In the first place, those guidelines should have included elements relating to delivery costs, which vary appreciably depending on the delivery point and, by way of example, are significantly lower for Gazprom with respect to gas supplies in Lithuania, on account of its geographical proximity to Russia, than in relation to supplies in Western Europe.
276
In the second place, the applicant notes that, as is apparent from its economic study, the pricing guidelines do not attach any importance to the take-or-pay obligations included in some of the contracts at issue, even though those obligations are of significant value to Gazprom. Only factors permitting price increases were included in those guidelines.
277
The Commission takes the view that the present complaint must be dismissed.
278
In that regard, it is clear from the wording of the pricing guidelines set out in paragraph 19(iii) of the final commitments that, with regard to taking into account the characteristics of a particular contract concerned, the examples of characteristics expressly identified in those guidelines are not exhaustive.
279
Therefore, the Commission did not commit a manifest error of assessment in accepting pricing guidelines which do not expressly refer to characteristics relating to delivery costs and to the take-or-pay obligations.
280
As to the remainder, in so far as the applicant argues, more generally, that the Commission, in its assessment of the adequacy of the final commitments, did not take sufficient account of the imposition by Gazprom of take-or-pay obligation clauses in the contracts concerned, it is sufficient to note that although, in the statement of objections, the Commission examined the presence of those clauses in the contracts concerned, it failed to set out any competition concerns relating specifically to those clauses and, moreover, it did not envisage any remedy in that regard. It follows that the Commission did not have to ensure that the final commitments addressed those concerns.
281
In the light of the foregoing, the fifth complaint in the third part of the second plea must be dismissed and, consequently, that part must be dismissed as unfounded in its entirety.
4. The fourth part of the second plea, concerning errors of law and manifest errors of assessment as to the relationship between EU law and arbitration
282
The applicant submits that it is apparent from the reasons given in recital 178 of the contested decision that the Commission committed errors of law and, in essence, manifest errors of assessment relating, first, to the application of substantive EU law in arbitration provided for by paragraph 19(iv) of the final commitments and, second, to the possibility for the Commission to intervene as amicus curiae in such proceedings.
283
The Commission takes the view that it has not erred in that regard.
(a) The application of substantive EU law in arbitration (first complaint)
284
According to the applicant, in the first place, by relying on an erroneous interpretation of the judgment of 1 June 1999, Eco Swiss (C‑126/97, ‘the judgment in Eco Swiss, EU:C:1999:269, paragraph 36), the Commission wrongly considered that arbitral tribunals were necessarily required, by virtue of their being established in the European Union, to resolve price disputes between Gazprom and its relevant customers in the light of substantive EU law.
285
By the judgment in Eco Swiss, the Court of Justice was addressing only the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) and, indirectly, the other courts of the Member States, but not arbitral tribunals, which do not constitute courts within the meaning of Article 267 TFEU. That judgment requires only that the courts of the Member States apply EU law in the limited context of the ex post review of compliance by those tribunals with ‘public policy’, without requiring those tribunals to apply substantive EU law.
286
In actual fact, the arbitral tribunals concerned are required to apply only paragraph 19 of the final commitments, but not Article 102 TFEU or the contested decision as such. Accordingly, there is no indication that a Gazprom customer could easily invoke the content of that decision in arbitration, since that possibility could be confirmed only in the context of a reference for a preliminary ruling by the national court reviewing the enforcement of an arbitral award, which would be ineffective from a temporal perspective.
287
In the second place, the effectiveness of arbitration is greatly reduced by the absence of a reference to the contested decision or to Article 102 TFEU in the final commitments. Arbitral tribunals would not necessarily examine whether revised prices are compatible with the objectives of that decision or of that provision of the TFEU and would even risk exceeding their mandate and having their awards annulled by undertaking such an examination.
288
The Commission takes the view that the present complaint must be dismissed.
289
It must be recalled that recital 178 of the contested decision states, with reference to the judgment in Eco Swiss (paragraphs 35 and 36), that the final commitments ‘require the arbitration proceedings to take place within the European Union’ and that ‘this obliges the arbitral tribunals to respect and apply EU competition law as a matter of public policy irrespective of the private interest of the parties to the arbitration’.
290
In that regard, it follows from Article 3(3) TEU and Protocol No 27 on the internal market and competition annexed to the Treaty of Lisbon (OJ 2010 C 83, p. 309) that Articles 101 and 102 TFEU constitute fundamental provisions which are essential for the accomplishment of the tasks entrusted to the European Union and, in particular, for the functioning of the internal market, in so far as the function of those articles is to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers (see, to that effect, the judgment in Eco Swiss, paragraph 36, and judgment of 17 February 2011, TeliaSonera, C‑52/09, EU:C:2011:83, paragraphs 20 to 22). Consequently, Articles 101 and 102 TFEU are a matter of public policy, including within the meaning of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, which must be automatically applied by national courts, the latter having to grant an application for annulment of an arbitration award if they consider that the award in question is contrary to those articles (see, to that effect, the judgment in Eco Swiss, paragraphs 36 to 41, and judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 31 and the case-law cited).
291
It follows that the arbitral tribunals concerned, even if they are established in the territory of the European Union, are not necessarily bound by EU competition law as a whole, or indeed by other substantive EU law. It is also true, as the applicant submits, that the review of arbitral awards by the courts of the Member States is limited in scope (see judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 54 and the case-law cited). However, the fact remains that, if one of those tribunals were to adopt an arbitral award contrary to Article 102 TFEU, the national courts of the Member States would have to set aside that award, if requested to do so. This is likely to lead to those tribunals ensuring that the arbitral award adopted complies with that provision of the FEU Treaty.
292
Moreover, it must be held that, even though the present case is concerned not with Article 102 TFEU directly, but with compliance with a commitments decision adopted under Article 9 of Regulation No 1/2003, in the light of the considerations set out in paragraph 290 above, and since that regulation was adopted pursuant to Article 103 TFEU and relates to the implementation of Articles 101 and 102 TFEU, national courts may grant an application for annulment of an arbitral award if they consider that that award is contrary to such a decision.
293
That reading of the implications, referred to in recital 178 of the contested decision, of the requirement that arbitral tribunals be established in the European Union cannot be called into question by the applicant’s argument based on alleged practical difficulties which national courts might encounter in verifying the compliance of arbitral awards with Article 102 TFEU, or with a decision adopted under Article 9 of Regulation No 1/2003, in so far as the handling of such disputes falls within the substantive jurisdiction of those courts.
294
Moreover, as already pointed out above, Gazprom must implement the final commitments in accordance with the grounds of the contested decision, or otherwise risk a finding of non-compliance with that decision. Therefore, Gazprom is bound, as a party to the arbitration proceedings, to ensure, when it determines the mandate of the arbitrators and draws up memoranda for them, that they revise the price formulae in a manner consistent with that decision.
295
Having regard to the foregoing considerations, the Court holds that, despite the somewhat awkward formulation of the terms at issue in recital 178 of the contested decision, the Commission committed neither an error of law in including those terms nor a manifest error of assessment in considering that the obligation to organise arbitration within the territory of the European Union was likely to strengthen the effectiveness of the commitments relating to pricing practices. The first complaint in the fourth part of the second plea must therefore be dismissed.
(b) The possibility for the Commission to intervene as amicus curiae (second complaint)
296
According to the applicant, the Commission erred in law by stating, in recital 178 of the contested decision, that it could intervene as amicus curiae in arbitration proceedings. However, as EU law now stands, there is no legal basis for cooperation of that kind between the Commission and arbitral tribunals. Accordingly, such intervention would have to be authorised by the parties to the arbitration, which is not guaranteed in the present case, as Gazprom has in no way committed itself in that respect and many customers might be reluctant to involve the Commission in view of the sensitive or confidential information exchanged and what was regarded as a posture ‘favourable’ to Gazprom adopted by the Commission in Case AT.39816.
297
The applicant adds that the Commission acknowledged that its participation as amicus curiae is not always guaranteed and emphasised instead the possibility of intervening, under Article 15(3) of Regulation No 1/2003, in judicial proceedings to review arbitral awards.
298
The Commission takes the view that the present complaint must be dismissed.
299
In that regard, it must be observed, as the applicant submits, that the final commitments make no provision for the right of the Commission to intervene as amicus curiae in arbitration initiated under the arbitration clause provided for in paragraph 19(iv) of those undertakings and that such a right is not otherwise guaranteed by EU law.
300
However, precisely because the arbitration clause provided for in paragraph 19(iv) of the final commitments does not cover the question of the Commission’s intervention as amicus curiae, the fact that the Commission referred, in the contested decision, to such a possibility without that possibility being guaranteed by those commitments is not capable of calling into question the legality of that decision. Consequently, the applicant’s complaint alleging an error of law is ineffective.
301
Having regard to all the foregoing considerations, the second complaint in the fourth part must be dismissed and, therefore, the second plea must be dismissed as unfounded in its entirety.
D.
The third plea in law, alleging infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and a breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning territorial restrictions
302
The applicant, supported by the Republic of Poland, the Republic of Lithuania and Overgas, submits that the Commission committed various manifest errors of assessment, in breach of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and a breach of the principle of proportionality, in that it concluded that the commitments relating to territorial restrictions (paragraphs 5 to 17 of the final commitments) were adequate. That plea is divided, in essence, into three parts.
303
The Commission, supported by Gazprom, considers that the third plea must be dismissed as unfounded. As regards Overgas’ statement in intervention, the Commission asserts that most of the arguments contained therein are inadmissible in so far as they are unrelated to the subject matter of the dispute as defined by the main parties.
1. The first part of the third plea, concerning the inadequacy of the commitments relating to territorial restrictions taken as a whole
304
The applicant takes the view that the commitments relating to territorial restrictions, taken as a whole, are inadequate. Although its forward-looking analysis should be particularly plausible, the Commission failed to take into account various factors which should have had a decisive impact on the content of those commitments.
305
While the Commission expressly considered in the statement of objections that Gazprom had adopted a market segmentation ‘strategy’, the Commission nevertheless accepted selective commitments which failed to provide an overall response to that strategy. In particular, the commitments relating to territorial restrictions consist, essentially, in eliminating certain contractual mechanisms, whereas Gazprom also used various non-contractual methods to prevent gas re-exports. That focus on contractual mechanisms is particularly ineffective as most of those mechanisms were eliminated long ago. Gazprom made extensive use of non-contractual methods, as the Commission was aware.
306
That was illustrated by the fact that in 2003 and 2005 the Commission had terminated competition investigations by means of informal settlements involving the elimination of express territorial clauses in contracts concluded by Gazprom with E.ON Ruhrgas AG and ENI SpA, which did not prevent Gazprom from continuing to hinder gas re-export by a variety of methods. Similarly, in addition to the case of the 2009/2010 crisis, in which the applicant was exposed to a serious gas shortage due to disruptions in gas supplies via Ukraine, the Commission had been informed of practices whereby Gazprom, during the 2014/2015 winter season, reduced gas supplies in order to stop re-exports of gas to Ukraine, which had consequences in some of the CEE countries concerned. Those examples cannot be regarded as mere contractual breaches and the Commission’s excessively theoretical approach disregards the fact that those disruptions and reductions are one facet of Gazprom’s strategy.
307
Quite apart from those non-contractual methods, the applicant points to the fact that gas swaps between the CEE countries concerned had been difficult because of deficiencies in the gas transport infrastructure, resulting in large part from the territorial restrictions imposed by Gazprom, which, in particular, had stifled cross-border demand for gas. The infrastructure improvements achieved since then cannot justify the inadequacy of those commitments, which should have included active measures on the part of Gazprom.
308
The Commission challenges the line of argument put forward by the applicant and the Republic of Poland, which is based on erroneous premises, with the result that the present part of the plea should be dismissed.
309
In that regard, it is certainly apparent from the Commission’s preliminary assessment (see, in particular, the heading of section 8 and paragraph 246 of the statement of objections) that Gazprom pursued a general ‘strategy’ of gas market segmentation. However, it is also clear from that assessment that that strategy comprised various specific anti-competitive practices (see, in particular, paragraph 248 of the statement of objections and recitals 54 to 60 of the contested decision). It was therefore open to the Commission to seek to address that strategy in a gradual manner, through measures specifically addressing each of those practices, thereby countering that strategy.
310
In that context, in order to examine whether the commitments relating to territorial restrictions comprehensively address the various practices covered by the objections relating to those restrictions, it is important to note that it is clear both from the statement of objections and from the contested decision that those objections covered two categories of practices:
–
first, express territorial restrictions provided for in contractual clauses, such as destination clauses, resale or export bans (see, in particular, paragraphs 247 and 897 and sections 8.2 and 15.7.2.2 of the statement of objections and recital 42 of the contested decision);
–
second, contractual and non-contractual methods having an effect equivalent to express territorial restrictions (see, in particular, paragraphs 248, 322 and 898 and sections 8.3 and 15.7.2.3 of the statement of objections and recital 43 of the contested decision), methods which took four main forms, namely, (i) the combination of an ‘expansion’ clause with an obligation to provide information to Gazprom; (ii) refusals to change a contractual gas delivery point; (iii) refusals to change the metering station provided for in a contract and, (iv) in the case of Bulgaria, specific contractual stipulations, in particular relating to metering stations, which gave Gazprom de facto control over gas exports from that country.
311
However, the commitments relating to territorial restrictions (paragraphs 5 to 17 of the final commitments), which are intended to address those objections, encompass the following:
–
measures prohibiting contractual clauses whereby Gazprom might directly or indirectly prevent or restrict the resale or re-export of gas by its relevant customers (‘the commitments relating to resale and re-export restrictions’); as is apparent, on the one hand, from recitals 54 to 57 and sections 5.1.1, 7.1.1 and 8.2.1.1 of the contested decision and, on the other hand, from paragraphs 5 and 6 of the final commitments, these measures are intended to address the express territorial restrictions referred to in the first indent of the preceding paragraph and the first type of methods described in the second indent of that paragraph, namely the combination of an ‘expansion’ clause with an obligation to provide information to Gazprom;
–
measures allowing for changes of gas delivery points (‘the commitments relating to delivery points’); as is apparent, in particular, from paragraphs 373 to 375 of the statement of objections, recitals 59 and 60 and sections 5.1.3, 7.1.3 and 8.2.1.3 of the contested decision and paragraphs 5 to 17 of the final commitments (in section 1.2 entitled, ‘Changes of Delivery Points’), these measures are intended to address the second and third types of methods described in the second indent of the preceding paragraph, namely Gazprom’s refusals to change delivery points or metering stations;
–
measures related to the management of the Bulgarian gas system (‘the commitments relating to the Bulgarian gas system’); as is apparent, on the one hand, from recital 58 and sections 5.1.2, 7.1.2 and 8.2.1.2 of the contested decision and, on the other hand, from paragraphs 7 and 8 of the final commitments (in section 1.1, entitled ‘1.1 Changes to the Bulgarian Gas System’), these measures are intended to address the fourth type of methods described in the second indent of the preceding paragraph, namely methods which gave Gazprom de facto control over gas exports from Bulgaria.
312
Thus, it follows from the findings made in paragraph 311 above that paragraphs 5 to 17 of the final commitments cover all the practices falling within the two categories included in the objections concerning territorial restrictions and recalled in paragraph 310 above. Accordingly, in comparing those objections and those commitments, the Court finds no shortcomings in the scope of the commitments.
313
The conclusion reached in the preceding paragraph is not called into question by the other arguments put forward by the applicant.
314
First of all, in so far as the applicant highlights that insufficient account is taken of the non-contractual methods used by Gazprom to segment the markets of the CEE countries concerned, it is clear from the foregoing considerations that, as regards the four forms of contractual and non-contractual methods actually identified in the objections concerning territorial restrictions, the Commission has obtained commitments intended to address them.
315
In particular, with regard to the contractual and non-contractual methods illustrated by Gazprom’s practice of using a combination of an ‘expansion’ clause and an obligation to provide information to Gazprom (referred to in the first type of methods described in the second indent of paragraph 310 above and set out in recital 57 of the contested decision), it must be observed that the Commission was targeting the use by that undertaking of various contractual stipulations which, without imposing express territorial restrictions, made it possible to reduce its customers’ economic incentive to resell or re-export the gas supplied by it and, therefore, to prevent cross-border sales.
316
However, it must be noted that paragraphs 5 and 6 of the final commitments aim to neutralise clauses described as ‘Clauses Restricting Resale’ and ‘Territorial Restriction Clauses’ and that, in view of the definitions of those terms given in paragraph 4 of those commitments, those types of clauses cover a very broad range of stipulations. This is confirmed by the content of the ‘indicative list’ in Annex 1 to those commitments, prohibiting, inter alia, expansion clauses, monitoring mechanisms and obligations to provide information in the contracts concerned.
317
Next, first, in so far as the applicant suggests that the commitments relating to the Bulgarian gas system should have been extended to all the CEE countries concerned, it does not explain how they are relevant to the situation in the other CEE countries concerned. Second, the argument relating to the informal transactions concluded in 2003 and 2005 must be dismissed, since those transactions concerned practices that were not relevant to the CEE countries concerned and, more importantly, since the commitments relating to territorial restrictions specifically cover practices which go beyond express territorial restrictions. Third, the conduct alleged against Gazprom and relating to the 2009/2010 crisis, namely refusals to change a delivery point or a metering station, are covered by the commitments relating to delivery points (which are discussed below in the context of the second part of the plea). Fourth, the practices related to the 2014/2015 winter season are not covered by the objections concerning territorial restrictions, and therefore the Commission did not have to address them. Moreover, the applicant itself admits that those practices mainly concerned Ukraine, without explaining how their alleged impact on the CEE countries concerned would be likely to be repeated despite the adoption of the final commitments. Fifth, in so far as the applicant seeks to rely on the facts set out in subsection 8.2.2.2 of the statement of objections, it is sufficient to note, as is clear from the elements in that subsection and, more generally, in section 8.2, that that subsection relates to Gazprom’s monitoring of compliance with the former express territorial restriction clauses, and not to non-contractual methods allegedly not covered by the commitments.
318
Finally, the applicant’s arguments relating to shortcomings with respect to gas transport infrastructure must be dismissed, since the difficulties which it mentions are not reflected in the competition concerns identified by the Commission, including with regard to the future impact of the completion of the Nord Stream 2 pipeline. Moreover, it is not clear from the objections set out in the statement of objections that the final commitments should have included positive obligations, in terms of infrastructure, in order adequately to address those objections, all the more so since the applicant does not specifically identify which anti-competitive practices would justify such obligations.
319
In the light of the foregoing considerations, it must be concluded that the Commission has not committed a manifest error of assessment as regards the adequacy of the commitments relating to territorial restrictions taken as a whole. The first part of the third plea must therefore be dismissed as unfounded.
2. The second part of the third plea, concerning the inadequacy of the commitments relating to delivery points
320
The applicant, the Republic of Poland, the Republic of Lithuania and Overgas put forward, in essence, six complaints concerning the inadequacy of the commitments relating to delivery points (paragraphs 9 to 17 of the final commitments).
321
The Commission, supported by Gazprom, contests those complaints and contends that Overgas’ statement in intervention is partially inadmissible.
(a) The insufficiency of the relevant delivery points (first complaint)
322
The applicant and the Republic of Lithuania take the view that the commitments relating to delivery points should have covered more points than those provided for in paragraph 15 of the final commitments, since the infrastructure improvements relied on by the Commission to justify the sufficiency of the selected delivery points do not ensure the free flow of gas in the CEE countries concerned.
323
With particular regard to the flow of gas between Poland and its neighbours, the applicant points out, first, that, given its control over the German and Polish sections of the Yamal pipeline, Gazprom is able to influence reverse flows from Germany to Poland. Moreover, as the cross-border infrastructure in the Czech Republic, Hungary, Poland and Slovakia currently stands, there has been no real improvement in swaps between Poland and Hungary. Furthermore, the construction of the Nord Stream 2 pipeline is expected to increase Gazprom’s ability to engage in anti-competitive conduct on the Polish market. Those findings reveal the insufficiency, as far as Poland is concerned, of delivery points limited to the Baltic States, which is not consistent with the particular attention given to Poland in the statement of objections.
324
Moreover, the Republic of Lithuania considers that, due to the insufficient number of relevant delivery points, the commitments relating to delivery points do not prevent segmentation of the Lithuanian, Latvian and Estonian gas markets.
325
The Commission contests the line of argument put forward by the applicant and the Republic of Lithuania, with the result that the present complaint should be dismissed.
326
The Court observes that the commitments relating to delivery points have a different purpose from those relating to resale and re-export restrictions and that their respective relevance depends on the existence or sufficiency of the cross-border gas transport infrastructure, namely a gas pipeline linking two CEE countries concerned or, where appropriate, equipment for the processing of liquefied natural gas.
327
On the one hand, where such infrastructure between relevant CEE countries exists, the direct transportation of gas between two of those countries is technically possible, but the resale or re-export of Russian gas from one of those countries to the other by a relevant Gazprom customer could otherwise be hindered by contractual or non-contractual measures preventing or limiting that resale or re-export. Gazprom has, according to the Commission’s preliminary assessment, put in place such measures in the past and the commitments relating to resale and re-export restrictions are intended to address this.
328
On the other hand, where such infrastructure between the CEE countries concerned does not exist or is insufficient, the commitments relating to resale and re-export restrictions are ineffective, as is clear in essence from the last part of recital 171 of the contested decision, since the direct transport of gas between two of those countries is technically impossible or insufficient. In that situation, which forms the subject matter of the present part of the plea, the resale or re-export of Russian gas can then take place through a change in the delivery point or metering station in order to redirect the gas purchased by the relevant Gazprom customer from its original delivery point to the new delivery point at which that customer wishes to resell the gas.
329
However, such a change requires the agreement or cooperation of Gazprom, that is to say active intervention by Gazprom (as is apparent, in particular, from paragraphs 362, 363 and 373 to 375 of the statement of objections and from recitals 59, 60 and 171 of that decision). According to the Commission’s preliminary assessment, Gazprom has refused such intervention in the past, by rejecting changes in the delivery point or the gas metering station.
330
However, the commitments relating to delivery points aim precisely at ensuring, in certain circumstances, active intervention by Gazprom in requiring that undertaking to accept a change in the delivery point requested by a customer wishing to resell the gas intended for its country to another CEE country concerned, it being understood that that change in the delivery point includes, where necessary, a change in the metering station. In particular, those commitments provide for four combinations of delivery point changes, which are intended to allow for the resale of gas, on a bi-directional basis, namely (i) between Poland and the Baltic States; (ii) between Slovakia and the Baltic States; (iii) between Hungary and Bulgaria; and (iv) between Slovakia and Bulgaria (see recitals 170 to 172 of the contested decision and paragraph 15(i) to (iv) of the final commitments).
331
In that context, the applicant takes the view that the possibility of reselling gas only to or of being resold gas only from the Baltic States, to the exclusion of other countries, is insufficient. It must be observed in that regard that, in fact, the refusals to change the delivery point or the metering station, identified by the Commission in the statement of objections, were particularly relevant to Poland, in that the requests for changes at issue were intended to alleviate the acute need for gas in that country as a result of the crisis there in 2009/2010 (as is apparent, in particular, from paragraphs 342 to 386, 648 and 878 to 893 of the statement of objections and from recitals 59 and 60 of the contested decision).
332
However, it must be observed that Poland has benefited from the improvement in cross-border gas transport infrastructure noted in recital 170 of the contested decision, since Poland can import substantial volumes of gas from Germany, far in excess of the shortfall of 2.5 billion cubic metres of gas which Poland faced during the 2009/2010 crisis.
333
As is apparent from paragraphs 734 and 1033 of the statement of objections, the necessary operations had been carried out to allow, as of 2014, reverse physical flows from Germany on the Yamal pipeline. Similarly, it is apparent from a press release of 8 January 2015 issued by Gaz-System that, taking into account various technical improvements, it was possible, as from the beginning of 2015, to import from Germany almost 5.5 billion cubic metres of gas per year, in firm capacities, through virtual reverse flows on that gas pipeline (see footnote 76 of the statement of objections). The same press release also states that, from that date, it was possible to transport, from the west and south of Poland, more than 90% of Poland’s gas import needs, taking into account other technical means, including the possibility of importing via that gas pipeline 2.7 billion cubic metres of gas per year, in the context of interruptible capacities.
334
Moreover, the Court notes that the commitments relating to delivery points are intended to address shortcomings with respect to infrastructure which, as such, are not the responsibility of Gazprom, notwithstanding any particular responsibility of Gazprom as a dominant undertaking. Furthermore, changes to a delivery point are not necessarily possible or easy, as they entail technical constraints for Gazprom, which are referred to in recitals 59 and 173 of the contested decision.
335
In addition, it is true that it cannot be ruled out that the Commission could, if appropriate, have found, in a decision adopted under Article 7 of Regulation No 1/2003, that Gazprom’s refusals to change the delivery point or the metering station as set out in the statement of objections constituted an infringement of Article 102 TFEU. However, that possible finding does not imply that Gazprom should necessarily have guaranteed more changes in delivery points, even if such a measure could have been more favourable to competition (see, to that effect, the judgment in Morningstar, paragraph 59).
336
It follows that, notwithstanding the fact that the commitments relating to delivery points were prompted by Gazprom’s practice of refusing changes to the delivery point or to a metering station and might have made it possible to avoid the situation in which Poland found itself in the context of the 2009/2010 crisis, this does not mean that those commitments were intended to enable the relevant customers in that country to resell or to be resold gas from a number of countries. Given the isolation of the Baltic States and Bulgaria referred to in recital 171 of the contested decision, the Commission could focus on the possibilities for those CEE countries concerned.
337
In those circumstances, the Commission could, without committing a manifest error of assessment, accept that, so far as concerns that country, the commitments relating to delivery points are limited to the combination of modifications provided for in paragraph 15(i) of the final commitments, that is to say the possibility of reselling gas only to or of being resold gas only from the Baltic States.
338
That conclusion is not called into question by the applicant’s claims concerning the issue of Gazprom’s control over the Polish section of the Yamal pipeline. In so far as those claims correspond to those put forward in the first part of the first plea, it is sufficient to point out that that part of that plea was rejected as unfounded. Moreover, the Commission had, in its opinion of 9 September 2014, found that Gaz-System controlled the flow of gas on that section, which was also confirmed by the applicant in the responses of 8 December 2020.
339
Finally, as regards the argument put forward by the Republic of Lithuania that the insufficiency of the relevant delivery points does not prevent segmentation of the Baltic gas markets, it is sufficient to note that the Republic of Lithuania has not substantiated its argument and, in particular, has not indicated which additional delivery points would have made it possible to address the alleged segmentation.
340
Therefore, the first complaint in the second part of the third plea must be dismissed.
(b) The inadequacy of the service fees (second complaint)
341
The applicant, supported by the Republic of Poland, the Republic of Lithuania and Overgas, submits that the Commission committed a manifest error of assessment in accepting the fees set out in paragraph 15 of the final commitments (‘the service fees’), in that they are excessive and therefore make it impossible, under normal market conditions, to make any profitable change to the delivery point.
342
In the first place, the excessive nature of those service fees arises from the fact that they are set at a fixed level, unrelated to the costs actually incurred by Gazprom. Those costs are influenced by several factors, varying, in particular, according to whether the transport capacity is already reserved or whether the gas is transported on gas networks belonging to the Gazprom group. The Commission should have instead provided for a transparent method of calculating those fees, as the interested parties noted during the market test. In fact, there is no indication that the Commission carried out an economic analysis or gathered the necessary data. In that regard, the Republic of Lithuania and Overgas point out that the transport costs incurred by Gazprom are minimal and in any case lower than the level of those fees.
343
In the second place, contrary to the Commission’s submissions, the applicant takes the view that it has sufficiently substantiated that the level of the service fees is excessive in nature, since it presented economic evidence in that connection in the context of the market test. Moreover, according to Overgas, the change in the amount of those fees, which were reduced significantly, by around 30%, between the initial and final commitments, also confirms their excessive level and the need for transparency.
344
In the third place, Overgas argues that the payment of any fee reduces the effectiveness of the commitments, so that those commitments essentially consisted in the replacement of one obstacle, namely Gazprom’s outright refusals to change the delivery points, with another obstacle, namely the payment of those fees. The fact that a change in a delivery point is normally subject to a fee cannot justify the payment of service fees in the present case and Gazprom should have offered changes free of charge, given its particular responsibility as a dominant undertaking.
345
In the fourth place, the contradictory objectives of the commitments relating to delivery points confirm the excessive level of service fees. On the one hand, recital 172 of the contested decision states that the objective of the commitments is to ‘further integrate Central and Eastern European gas markets and to overcome the infrastructure isolation of the gas markets in the Baltic States and in Bulgaria’. That objective would suggest that those fees should be set at a level which allows for regular trade between wholesalers, in order to diversify the wholesale supply of the Bulgarian and Baltic gas markets on a long-term basis. On the other hand, it is clear from recital 174 of that decision that changes in delivery points would be attractive only if prices were to ‘significantly diverge’ between the CEE countries concerned.
346
For their part, the Commission and Gazprom take the view that the service fees are adequate and therefore that the present complaint should be dismissed. In support of its line of argument, Gazprom refers to various elements in its economic study, which were contested in the applicant’s economic study.
347
In that regard, it is clear from the file that, in order to determine the service fees, the Commission and Gazprom initially envisaged an approach based on an estimate of the costs of transporting gas between pairs of delivery points, as illustrated in [confidential], an approach which proved to be complex and resulted in very high service fees.
348
It was because of those very high service fees that the Commission and Gazprom subsequently opted for an alternative approach, namely to set those fees in such a way that they allow for price arbitrage and constitute only a minor part of the price of the gas delivered to a new point. This resulted in the service fees provided for in paragraph 15 of the final commitments, which were set at EUR 0.76 and EUR 1.52/MWh (megawatt-hour) depending on the combination of delivery points concerned; those fees had been reduced as compared to the fees provided for in the initial commitments (see recital 151 of the contested decision).
349
However, it must be observed that, in particular with regard to the service fees of EUR 0.76/MWh for a change in the delivery point between Poland and one of the Baltic States, that is to say the only service fees which could affect the applicant, those fees correspond, according to the Commission, and without this being contested by the applicant, to approximately [confidential] of the gas price paid by the latter in 2017 and 2018, that is to say a period during which that price had converged with those applicable in Western Europe. That finding is also clear from the price trends shown in Graph No 1 in the defence (reproduced below), since that graph reflects [confidential].
350
At that level of service fees, assuming prices which are aligned between Poland and the Baltic States, and which correspond to the gas price paid by the applicant in 2017 and 2018, a change in the delivery point would be profitable as soon as prices in Poland and the Baltic States diverged by more than [confidential] from those prices in 2017 and 2018, without prejudice to any additional costs and a margin for the relevant reseller customer.
[confidential]
351
Moreover, it is also apparent from Graph No 1 that, between 2009 and 2017, gas prices in the CEE countries concerned [confidential]. A similar finding can be found in the ‘counterfactual assessment’ in Gazprom’s economic study.
352
Accordingly, changes to the delivery point could be profitable in certain circumstances similar to those set out in that graph, without prejudice to any additional costs and a margin for the relevant reseller customer. In that regard, the applicant referred only to potential entry costs, but did not quantify those or any other possible costs.
353
Moreover, it must be observed, as has already been stated in paragraph 334 above, that the commitments relating to delivery points are intended to address shortcomings with respect to infrastructure which are not, as such, the responsibility of Gazprom. That finding implies that, in the light of the Commission’s concerns regarding Gazprom’s past refusals to change a delivery point, although the Commission could require a mechanism such as that provided for in the commitments relating to delivery points, it did not have to ensure that those commitments would allow for price arbitrage operations comparable to those which may take place where cross-border infrastructure exists.
354
In the light of the foregoing, the Court considers that the Commission could, without committing a manifest error of assessment, accept the service fees provided for in paragraph 15 of the final commitments in the light of the objective of the commitments relating to delivery points, set out in recital 174 of the contested decision, according to which they must be able to respond to situations in which prices ‘significantly diverge’ between the gas markets of the CEE countries concerned.
355
That conclusion is not called into question by the other arguments put forward by the applicant and by the Republic of Lithuania, the Republic of Poland and Overgas, intervening in support of the applicant.
356
First, in so far as the applicant argues that a comparison with a period prior to the adoption of the contested decision, and in particular with the period from to 2009 to 2014, is not appropriate since gas prices were excessive, on the one hand, it should be noted that the adequacy of the service fees must be assessed in the light of the price differential between the CEE countries concerned rather than the level of those prices. On the other hand, it is apparent from the abovementioned Graph No 1 that, even during a period of convergence with Western European prices (as represented by the ‘TTF – month ahead’ curve), namely in particular [confidential], allowing for price arbitrage. In any event, the commitments relating to delivery points cannot be expected to allow price arbitrage in circumstances in which the prices in the CEE countries are competitive and do not diverge.
357
In so far as Overgas argued at the hearing that the service fees would become inadequate in the event of a fall in gas prices, such as the 40% fall allegedly recorded in Bulgaria in the course of the judicial proceedings, it should be pointed out that the commitments relating to delivery points make it possible to benefit from a situation such as a price fall in one of the CEE countries concerned, which is not replicated in another CEE country concerned, precisely because such a divergence could allow for price arbitrage.
358
Second, as regards the argument that it was agreed to promote service fees based on the actual costs incurred by Gazprom in making changes to delivery points, the Court notes that the Commission does not appear to have considered such a seemingly reasonable method or to have sought to determine, at least approximately, the level of those actual costs, taking into account factors such as transmission or balancing costs.
359
However, given its wide margin of discretion in the context of a commitments procedure, the Commission was free to accept fixed service fees, in the light of the advantages in terms of transparency and predictability, allowing price arbitrage. Moreover, even if the actual costs of changing a delivery point were lower than the fixed service fees, that fact is not capable of calling into question their appropriateness, provided that changes in the delivery point were possible and profitable in the event of significant price differences between the CEE countries concerned.
360
Third, in so far as the applicant and Overgas point out the risks associated with a situation in which the actual costs are higher than those fees, with the result that Gazprom would charge those costs rather than the fixed service fees, it must be observed that Gazprom is required to submit documentary evidence of those costs and that any disagreement between Gazprom and the customer concerned can be brought before the trustee responsible for monitoring the final commitments (see paragraphs 15, 16 and 32(vi) of the final commitments).
361
Fourth, as regards the argument that a change in the delivery point should be offered free of charge by Gazprom, it suffices to point out that the Commission has never called into question, including at the stage of formulating its concerns in the statement of objections, Gazprom’s right to charge its customers for the cost of such a change (see, in particular, paragraph 883 of the statement of objections).
362
Fifth, as regards the alleged contradictory reasoning between recitals 172 and 173 of the contested decision, it may be that the statement in recital 172 of that decision that the commitments relating to delivery points ‘will be an effective means to further integrate Central and Eastern European gas markets’ is exaggerated. Nevertheless, that statement is not such as to call into question the legality of the contested decision, since it does not constitute the essential basis for the operative part of that decision (see, to that effect, order of 28 January 2004, Netherlands v Commission, C‑164/02, EU:C:2004:54, paragraph 21).
363
The second complaint of the second part of the third plea must therefore be dismissed.
(c) The inappropriate limitation on the duration of contracts (third complaint)
364
According to the applicant and the Republic of Lithuania, the Commission committed a manifest error of assessment in accepting that the commitments relating to delivery points apply only to contracts of at least 18 months’ duration, since that renders those commitments ineffective for Lithuanian customers of Gazprom, which do not usually enter into contracts of a duration greater than one year. Moreover, the constraints associated with those commitments do not give Gazprom an incentive to revise the duration of the commitments upwards.
365
The Commission takes the view that the present complaint must be dismissed.
366
The Court observes that the commitments relating to delivery points impose a delivery period of at least 12 months at a new delivery point and provide for a lead-time of at least four months for executing a request for a change in the delivery point (see paragraph 10, second indent, and paragraph 11 of the final commitments). It follows from recital 173 of the contested decision that the Commission considered those requirements to be proportionate in the light of the technical constraints associated with a change in a delivery point.
367
The applicant and the Republic of Lithuania have not called into question the fact that those periods of 12 months and 4 months, that is to say 16 months in total, are proportionate given those technical constraints. In the light of that period of 16 months, the Commission could, without committing a manifest error of assessment, restrict the changes in delivery points to contracts with a duration of at least 18 months.
368
Moreover, it should be noted that if wholesalers which were Gazprom’s customers as of 23 April 2015 were to enter into contracts having a duration of at least 18 months in the future, they could rely on the commitments relating to delivery points, notwithstanding the fact that the duration of their current contracts is usually only one year (see paragraph 4, under the heading ‘Eligible Customer’, and paragraph 9 of the final commitments). In so far as the Republic of Lithuania claims that those commitments do not provide Gazprom with an incentive to conclude contracts having a duration of at least 18 months, it is sufficient to note that, in the absence of competition concerns regarding short-term contracts, the Commission did not have to require Gazprom to offer contracts having a duration of at least 18 months.
369
As to the remainder, the applicant’s argument that the 4-month lead-time allows Gazprom to offer better conditions to a wholesaler purchasing gas from another CEE country concerned must be dismissed, since such a situation stems from the price arbitrage and competition enabled precisely by the possibility of changing a delivery point.
370
The third complaint in the second part of the third plea must therefore be dismissed.
(d) The inappropriate requirement as to the minimum volume of gas (fourth complaint)
371
The applicant and the Republic of Lithuania argue that the minimum volume of gas required to request a change in the delivery point, set at 50 million cubic metres, is too high in view of the volumes which could be the subject of a change in delivery point. Such a change is available only to large wholesalers and requires that they can expect to be able to acquire substantial market shares in the market served by the new delivery point, which makes those commitments entirely illusory. For example, that minimum volume represents at least 10% of the annual requirements of the largest Baltic wholesalers and, according to the applicant’s economic study, corresponds, in terms of gas consumption, to 17% of the Estonian market, 12% of the Latvian market and 3% of the Lithuanian market.
372
Moreover, the relevant customers wishing to resell their gas do not, in practice, have significant surplus volumes, so that a change in the delivery point would in fact require an additional order to Gazprom to reach the threshold of 50 million cubic metres of gas, even though any resale associated with that change would be uncertain, since, for example, Gazprom could reject the change in the event of a lack of transport capacity.
373
The Commission takes the view that the present complaint must be dismissed.
374
In that regard, it must be recalled, as stated in recital 173 of the contested decision, that the Commission considered that those requirements were proportionate in the light of the technical constraints associated with a change in a delivery point and in view of the size of the gas markets in question. While the applicant and the Republic of Lithuania contest, in essence, the proportionality of the minimum volume of 50 million cubic metres provided for in paragraph 20 of the final commitments in the light of the size of the gas markets in the Baltic States, they have not called into question the considerations relating to those constraints.
375
Next, it is important to point out that, since the three Baltic States have significant interconnection capacities, as the Commission has argued without being challenged in that regard and as is clear from paragraph 138 of the statement of objections, their total gas consumption must be taken into account. The minimum volume of 50 million cubic metres represented in 2018 only 1.25% of that total consumption, so that the Commission could consider, as it did in recital 173 of the contested decision, that that volume was proportionate in view of the size of those markets as a whole.
376
As to the remainder, the applicant’s argument as to insufficient surplus volumes to benefit from a change in the delivery point cannot justify a finding that the minimum volume is inadequate, since the choices made by those customers as to the use of the volumes initially purchased from Gazprom or as to the purchase of additional volumes are their responsibility. In any event, it should be noted that customers established in the Baltic States could potentially source gas from other wholesalers in those countries, given the interconnections between those countries noted in the preceding paragraph and the existence of a liquid natural gas terminal in Lithuania (as discussed in paragraph 135 of the statement of objections).
377
In the light of the foregoing, and also taking into account the considerations set out in paragraphs 334 and 335 above, it must be concluded that the commitments relating to delivery points are not vitiated by a manifest error of assessment as regards the requirement relating to a minimum volume of gas required to request a change in the delivery point. The fourth complaint in the second part of the third plea must therefore be dismissed.
(e) Insufficient consideration of market conditions in Bulgaria (fifth complaint)
378
Overgas takes the view that the commitments relating to delivery points are inadequate in view of the competition concerns regarding the isolation of the Bulgarian market and the Commission’s objective of changing the structure of that market on a long-term basis. Those commitments improve neither the security nor the diversification of gas supplies in Bulgaria, since, in reality, they permit only the replacement of the supply of Russian gas by Bulgarian importers with the supply of Russian gas by Slovak or Hungarian exporters.
379
According to Overgas, Gazprom should have committed, first, to allowing not only changes in the delivery point of Russian gas, but also swaps between Russian gas and liquid natural gas; second, to establishing gas hubs at the borders between Russia, Ukraine and Belarus and; third, to refraining from hindering the implementation of measures to diversify gas supply. The Commission wrongly refused to consider such measures, taking the view that they fell outside the scope of its investigation in Case AT.39816.
380
In any event, the commitments relating to delivery points do not make it possible to address the concerns identified in the investigation, as defined by the Commission, since relevant customers wishing to supply gas in Bulgaria have neither the ability nor the incentive to transport the gas sold beyond the delivery points at Negru Vodă (Romania). The transport contract between Bulgartransgaz and Gazprom reserves 99.5% of the transport capacity in Bulgaria for Gazprom, which prevents wholesalers from other CEE countries concerned from transporting their gas between a given point in Negru Vodă and potential customers in Bulgaria. Moreover, the gas supply contract between Gazprom and Bulgargaz provides for a take-or-pay obligation for considerable volumes of gas, representing a substantial part of the needs in Bulgaria and thus a significant barrier to entry for those wholesalers. Finally, Bulgarian customers generally have long-term supply contracts with their current supplier, in this case Bulgargaz, so that they do not constitute an available customer base for those wholesalers.
381
The Commission takes the view, primarily, that the present complaint is inadmissible, as already mentioned in paragraphs 303 and 321 above, and, in the alternative, that it is unfounded.
382
In its responses of 26 November 2020, Overgas denied that the present complaint is inadmissible and argued, in essence, that the case-law allows interveners to put forward a wide range of arguments and that all its arguments were directly related to the subject matter of the dispute. The Commission’s interpretation of that subject matter would render the statements in intervention ineffective, since interveners would have to confine themselves to repeating the arguments of the main parties.
383
In that regard, it must be observed that, notwithstanding the fact that the applicant has focused on the impact on Poland of the commitments relating to delivery points, Overgas calls into question the adequacy of those commitments in the present complaint, with the result that that complaint does not go beyond the subject matter of the dispute and must be regarded as admissible.
384
As regards the merits of that complaint, the Court notes that, in so far as Overgas would have liked to see commitments ensuring a diversification of the sources of gas supply in order to address Bulgaria’s dependence on Russian gas, such commitments exceed, as the Commission has pointed out, the scope of the commitments relating to delivery points as defined by the competition concerns set out in the statement of objections. Those concerns related not to a diversification of gas sources but, in particular, to Gazprom’s strategy seeking to prevent its Russian gas supplied by one of its customer from competing with its Russian gas supplied by other Gazprom customers (see, in particular, paragraph 250 of the statement of objections and recital 160 of the contested decision, which refers to a ‘Russian-on-Russian gas competition’).
385
Moreover, with regard to the booking by Gazprom of 99.5% of Bulgartransgaz’s network capacities, it must be observed that the Commission stated, without being challenged in that regard by Overgas, that that booking concerned the Negru Vodă entry points and was covered by the obligation, laid down in the penultimate subparagraph of paragraph 15 of the final commitments, for Gazprom to use its existing capacity bookings.
386
Moreover, with regard to the take-or-pay obligations allegedly imposed on Bulgargaz, it is sufficient to note that, although the Commission examined the existence of such obligations in the statement of objections, it did not identify any competition concerns in that regard, as is apparent from recital 134 of the contested decision. Furthermore, those take-or-pay obligations do not prevent the relevant customers of Gazprom in Slovakia or Hungary from reselling gas volumes to wholesalers other than Bulgargaz.
387
Finally, the argument relating to the long-term contracts with Bulgarian downstream customers must be dismissed, since those contracts do not fall within the scope of the competition concerns set out in the statement of objections. Moreover, Overgas does not explain how any shortcomings in those markets are attributable to Gazprom, nor what commitments Gazprom could have made to remedy the effects of contracts to which it is not a party.
388
In the light of the foregoing, it must be held that the Commission did not commit the manifest error of assessment alleged by Overgas, that is to say failing to take sufficient account of market conditions in Bulgaria. The fifth complaint in the second part of the third plea must therefore be dismissed.
(f) Failure to take into account the likely and foreseeable development of Gazprom’s transit policy (sixth complaint)
389
According to Overgas, the commitments relating to delivery points do not take due account of the likely and foreseeable development of Gazprom’s transit policy, particularly in view of the construction of the Nord Stream 2 and TurkStream pipelines, although that development has direct implications on the effectiveness of those commitments. Moreover, the uncertainties regarding the commissioning of those gas pipelines cannot justify that failing, in the light of Gazprom’s well-known intentions and the instability of the gas sector.
390
With regard to Bulgaria in particular, the Commission should have considered, when drawing up the commitments, the possibility that Gazprom could decide, in due course, not to extend its transit contract with the Ukrainian undertaking Naftogaz and instead to deliver its gas to a new delivery point on the Turkish-Bulgarian border. However, the Republic of Türkiye is not a member of the energy community, and therefore delivery points on the territory of that State fall outside the scope of EU law.
391
The Commission takes the view that the present complaint is inadmissible and, in the alternative, unfounded.
392
In that regard, on the grounds set out in paragraph 383 above, and in so far as the present complaint by Overgas concerns the commitments relating to delivery points, it must be regarded as admissible.
393
As regards the merits of that complaint, in so far as the applicant claims that a change in Gazprom’s ‘transit policy’ could render the combinations provided for in paragraph 15 of the final commitments obsolete, it must be observed, as the Commission rightly does, that the commitments relating to delivery points provide for the possibility of replacing one of the relevant delivery points with another if Gazprom stops using the initial delivery point (fourth subparagraph of paragraph 10 of the final commitments).
394
Moreover, the fact that a new delivery point is located outside the territory of the European Union or of the members of the energy Community does not call into question the effectiveness of the commitments, since their effectiveness does not depend on whether the system operator of the third country in question complies with EU law, but derives from their binding nature for Gazprom.
395
Furthermore, on the assumption that Overgas is seeking by this complaint to argue that the Commission should have provided for commitments specifically relating to the construction and operation of the Nord Stream 2 and TurkStream pipelines, it suffices to recall that the statement of objections does not include competition concerns relating to those gas pipelines.
396
Finally, to the extent that the operation of those gas pipelines implies a significant change in Gazprom’s behaviour on the gas markets of the CEE countries concerned, it must be observed that that circumstance could constitute a material change in one of the facts on which the contested decision was based, and thus allow the Commission, pursuant to Article 9(2)(a) of Regulation No 1/2003, to reopen the administrative procedure. However, that circumstance does not constitute an element from which it may be concluded that the Commission committed a manifest error of assessment with regard to the commitments relating to delivery points.
397
Therefore, the sixth complaint in the second part of the third plea must be dismissed.
398
In so far as Overgas stated at the hearing that the commitments relating to delivery points were inadequate in the light of an overall assessment of the shortcomings and omissions set out in the six complaints examined above, it must be observed that each of those complaints has been dismissed and that, even taken together, they do not provide a basis for concluding that the acceptance of those commitments is vitiated by a manifest error of assessment, notwithstanding the fact that the relevant customers of Gazprom can avail themselves of changes in a delivery point only in certain specific circumstances.
399
In the light of the foregoing, the second part of the third plea must be dismissed as unfounded in its entirety.
3. The third part of the third plea, concerning the inadequacy of the commitments relating to the Bulgarian gas system
400
According to Overgas, the commitments relating to the Bulgarian gas system, as set out in paragraphs 7 and 8 of the final commitments, are an inadequate response to the competition concerns in that regard. In the first place, the Commission organised those concerns into two categories of restrictions alleged against Gazprom, namely restrictions impeding gas exports from Bulgaria and restrictions impeding gas imports into Bulgaria. However, as is apparent from recitals 167 to 169 of the contested decision, the commitments relating to the Bulgarian gas system address only the restrictions impeding gas imports into Bulgaria.
401
In the second place, the commitments relating to the Bulgarian gas system are inadequate in that they undermine the fundamental principles of the EU rules relating to the gas sector. The gas supply contract concluded between Gazprom and Bulgargaz contains clauses contrary to the principle, provided for by the Gas Directive, of the separation of the activities of the transmission system operator from gas production or supply activities. However, those commitments do not require the removal of those clauses.
402
In the third place, Overgas takes the view that the commitments relating to the Bulgarian gas system do not comply with the requirements provided for in paragraph 128 of the notice on best practices or those laid down in the case-law, according to which commitments must be directly applicable and, where they cannot be implemented without the agreement of a third party, the undertaking concerned must provide evidence of that third party’s agreement. In particular, contrary to those requirements, those commitments expressly provide for obtaining the agreement of third parties, in the present case Bulgargaz and Bulgartransgaz (see paragraph 7(a) and (b) of the final commitments), and are dependent on the fulfilment of various conditions by Bulgartransgaz (see paragraph 7(i) to (iii) of the final commitments). Moreover, the Commission did not ask Gazprom to produce evidence of the willingness of those two undertakings to cooperate in the implementation of those commitments.
403
In the fourth place, the commitments relating to the Bulgarian gas system are also inadequate in that they are ambiguous. Indeed, the wording of the relevant paragraphs of those commitments does not clearly establish Gazprom’s obligations and leaves too much room for interpretation, which also makes it difficult for the monitoring trustee appointed for that purpose to monitor the implementation of the final commitments.
404
As for the Commission, it considers, primarily, that that part of the plea is inadmissible, as already stated in paragraphs 303 and 321 above. In the alternative, it contests the merits of Overgas’ line of argument.
405
According to the case-law already referred to in paragraph 114 above, the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the General Court pursuant to the first paragraph of Article 53 of that Statute, and Article 142(1) of the Rules of Procedure of the General Court, must be interpreted as meaning that a party who is granted leave to intervene in a case submitted to the EU Courts may not alter the subject matter of the dispute as defined by the forms of order sought by the main parties and the pleas in law raised by those parties. It follows that, although such a party may put forward arguments different from those of the main party which it supports, arguments submitted are not admissible unless they fall within the framework provided by those forms of order and those pleas in law.
406
In the present case, in the first place, it must be observed that the action brought by the applicant focuses on the competitive situation in Poland and the impact on the gas markets in that country of the commitments having a cross-cutting scope. The arguments put forward by the applicant in its written pleadings, and in particular in the context of the third plea, seek to contest the adequacy of the commitments relating to territorial restrictions in so far as they concern Poland. Moreover, the applicant has not relied on any arguments relating specifically to the inadequacy of the commitments relating to the Bulgarian gas system.
407
In the second place, unlike the other commitments relating to territorial restrictions which are contested by the applicant, namely the commitments relating to resale and re-export restrictions (paragraphs 5 and 6 of the final commitments) and those relating to delivery points (section 1.2 and paragraphs 9 to 17 of the final commitments), the commitments relating to the Bulgarian gas system primarily concern the gas markets of Bulgaria and cannot be applied in several CEE countries concerned. In that regard, the commitments relating to the Bulgarian gas system, set out under the heading ‘Changes to the Bulgarian Gas System’, are presented separately and as being independent from the other commitments relating to territorial restrictions. Similarly, in the contested decision, those commitments relating to the Bulgarian gas system, examined in section 7.1.2 of that decision, under the heading ‘The Commitment dealing with the Bulgarian gas system’, are treated separately from the other two categories of commitments relating to territorial restrictions, which are examined in sections 7.1.1 and 7.1.3 of that decision, under the headings ‘The Commitment to remove territorial restrictions and measures of an effect equivalent to such restrictions’ and ‘The Commitment dealing with the changes of gas delivery points’.
408
In that regard, Overgas has not explained how, if at all, the Commitments relating to the Bulgarian gas system are related to the other final commitments having a geographic scope covering several CEE countries concerned. It is not apparent from the line of argument presented by Overgas, in particular in its responses of 26 November 2020, that the possible inadequacy of the Commitments relating to the Bulgarian gas system necessarily have consequences for the adequacy of the other final commitments, in particular those relating to territorial restrictions.
409
That finding is not called into question by the applicant’s assertion that the arguments put forward by Overgas relate to errors made by the Commission which also concern gas markets in CEE countries other than Bulgaria. In essence, the applicant merely reiterates some of Overgas’ arguments, pointing out that they are similar to those put forward by the applicant itself concerning the commitments relating to pricing practices, without however explaining how those arguments make it possible to demonstrate the inadequacy of the final commitments, leaving aside the commitments relating to the Bulgarian gas system.
410
Accordingly, contrary to Overgas’ submissions, it must be held that, in view of the substance of the arguments put forward by the applicant and the geographical scope of the commitments relating to the Bulgarian gas system, the subject matter of the dispute is not determined, in the present case, by the scope of the contested decision as a whole and by the entirety of the competition concerns which the final commitments were intended to address.
411
It follows from the foregoing that Overgas’ line of argument challenging the adequacy of the commitments relating to the Bulgarian gas system goes beyond the subject matter of the dispute and, consequently, that the third part of the third plea must be dismissed as inadmissible.
412
Having regard to all the foregoing considerations, the third plea must be dismissed in its entirety as partly unfounded and partly inadmissible.
E.
The fourth plea in law, alleging infringement of Article 194(1) TFEU, read together with Article 7 TFEU, in that the contested decision is contrary to the energy-policy objectives of the European Union in view of the negative impact of that decision on the European gas supply market
413
The applicant, supported by the Republic of Poland, the Republic of Lithuania and Overgas, points out that the energy-policy objectives of the European Union, which are set out in Article 194(1) TFEU and in various documents published by the EU institutions, include in particular, as regards the gas sector, the diversification of gas transport routes and sources and a guarantee of the free flow of gas between Member States at a fair and competitive price. Moreover, Article 194(1) TFEU establishes a principle of energy solidarity.
414
Accordingly, the Commission was required to take account of the energy-policy objectives of the European Union when adopting the contested decision, since it took measures defining the structure of EU gas markets and the conditions prevailing on them for a period of at least eight years, measures which should, under Article 7 TFEU, have been subject to a ‘full assessment’ to verify their compatibility with those objectives. Similarly, the contested decision should be subject to a judicial review involving, in addition to the requirements already laid down by the EU Courts concerning decisions adopted under Article 9 of Regulation No 1/2003, an examination of its compatibility with Article 194 TFEU.
415
Moreover, the views expressed by the Court in its judgment of 10 September 2019, Poland v Commission (T‑883/16, EU:T:2019:567, paragraphs 70 to 73) confirm the position adopted by the applicant. In particular, it is apparent that the principle of solidarity, rather than being limited to extraordinary situations, also entails a general obligation, on the part of the European Union and the Member States, in the exercise of their respective competences, to take into account the interests of the other stakeholders. Moreover, that principle is distinct from any specific requirements placed on the Commission when adopting decisions based on provisions of secondary legislation. Accordingly, in adopting the contested decision, the Commission should have not only verified the adequacy of the commitments, but also weighed the interests of the European Union against those of the Member States affected by Gazprom’s practices.
416
The contested decision is contrary to the objectives of the energy policy and to the principle of energy solidarity and fails to provide any statement of reasons on those matters, which is particularly alarming since the Commission endorsed the application of the final commitments for a period of eight years without providing for any mechanism allowing them to be adjusted quickly in response to changes in the gas markets. Moreover, the approach advocated by the Commission amounts to allowing its quasi-regulatory activity in the present case to avoid evaluation in the light of other objectives, even though those objectives are defined in the FEU Treaty, and enables it to cancel out the attainment of the objectives laid down in Article 194 TFEU. In particular, the applicant indicates that:
–
first, the Commission did not take sufficient account of the dependence of the CEE countries concerned on gas imports and of the problematic influence of Gazprom on the gas infrastructure supplying and encircling that region, although that situation is incompatible with the ‘Third Energy Package’, which requires a separation of system operation activities from gas production or supply activities;
–
second, the Commission disregarded various practices of Gazprom of which it was aware and, accordingly, refused to take into account the interests of certain Member States, with the result that nothing was done in relation to gas supply reductions preventing re-exports to Ukraine in the winter of 2014/2015 and as regards the actions to block the establishment of reverse flows at the borders between Poland and Ukraine, and between Slovakia and Ukraine;
–
third, the Commission accepted service fees which are totally unrelated to the real costs incurred by Gazprom for a change in a delivery point;
–
fourth the contested decision is not consistent with the energy-policy objectives of the European Union in that the final commitments reinforce the difference in treatment between the markets in the CEE countries concerned and the markets in Western Europe.
417
For its part, the Commission takes the view that the fourth plea must be dismissed as unfounded.
418
According to Article 7 TFEU, the European Union is to ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers. Those objectives include the ones set out in Article 194(1) TFEU, in particular the objectives of ensuring security of energy supply in the European Union and promoting the interconnection of energy networks.
419
In the field of competition, the EU Courts have already held that objectives pursued by other provisions of the Treaty could be taken into account in determining the existence of a restriction of competition within the meaning of Article 101(1) TFEU (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 139 and the case-law cited) or in assessing the conditions for exemption under Article 101(3) TFEU (see, to that effect, judgments of 25 October 1977, Metro SB-Großmärkte v Commission, 26/76, EU:C:1977:167, paragraph 43; of 15 July 1994, Matra Hachette v Commission, T‑17/93, EU:T:1994:89, paragraph 139; and of 11 July 1996, Métropole télévision and Others v Commission, T‑528/93, T‑542/93, T‑543/93 and T‑546/93, EU:T:1996:99, paragraph 118).
420
It follows that, as regards a procedure under Article 9 of Regulation No 1/2003, the Commission could, in its preliminary assessment, take account of objectives pursued by other provisions of the Treaty, in particular in order to find, on a preliminary basis, that there has been no infringement of the competition rules (see, to that effect, judgment of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraphs 46 to 54). However, with regard to the examination of commitments, the Commission is confined to verifying, first, that those commitments address the concerns it expressed to the undertaking concerned and, secondly, that that undertaking has not offered less onerous commitments that also address those concerns adequately (see, to that effect, the judgment in Alrosa, paragraphs 40 and 41, and the judgment in Morningstar, paragraph 45), even if the procedure may not lead to a result which is contrary to the specific provisions of the Treaties (see, to that effect and by analogy, judgments of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraph 78 and the case-law cited, and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 50 and the case-law cited).
421
In the present case, it is apparent from the elements set out in paragraph 416 above that, in actual fact, the applicant is complaining, in essence, that the Commission refused to investigate certain worrying behaviour of Gazprom in the gas sector and that it accepted insufficient or inadequate commitments in the light of the practices of that undertaking described in the statement of objections.
422
However, in so far as the applicant challenges the final commitments on the ground that they do not adequately address those practices, that criticism has already been dismissed, in essence, in the context of the examination of the first to third pleas in the present action. As to the remainder, in the context of its own-initiative investigation in Case AT.39816, the Commission was not obliged, in order to take account of the energy-policy objectives of the European Union, to investigate more of Gazprom’s practices or to require from Gazprom more binding commitments. Possible consideration of those objectives in the application of the EU competition rules cannot justify imposing such positive obligations on the Commission.
423
Moreover, in so far as the applicant submits that the final commitments are, as such, contrary to the objectives of the energy policy or to the principle of energy solidarity, it fails to demonstrate this. Contrary to the applicant’s submissions, the contested decision and those commitments do not solidify the situation on the markets in question and in no way prevent the EU institutions or the Member States from acting in other ways to address the problems identified by it. In particular, the EU institutions or the national regulatory authorities in the gas sector may take action in order to amend the rules in that sector or, where appropriate, in order to ensure compliance with those rules, possibly in the manner desired by the applicant.
424
In that regard, it may be noted that the European Parliament and the Council of the European Union adopted on 17 April 2019 Directive (EU) 2019/692, amending Directive 2009/73 (OJ 2019 L 117, p. 1), which seeks, inter alia, according to recital 3 thereof, to address obstacles to the completion of the internal market in natural gas which result from the non-application, prior to its adoption, of EU market rules to gas transmission lines to and from third countries.
425
Moreover, the national competition authorities may investigate allegedly anti-competitive practices by Gazprom, including, as recalled in paragraph 133 above, the practices covered by the Commission’s competition concerns in the present case.
426
Finally, contrary to the applicant’s arguments, the Commission could, if necessary, avail itself of the possibility, provided for in Article 9(2)(a) of Regulation No 1/2003, of reopening the proceedings where there had been a material change in any of the facts on which the decision was based, inter alia in the event of changes in the gas markets.
427
As to the remainder, in so far as the applicant maintains that the Commission was required to give reasons for the contested decision on the issue of its compliance with Article 194(1) TFEU, that complaint must be dismissed. In the light of the case-law on the giving of reasons for measures, referred to in paragraph 121 above, the Commission cannot be expected systematically to set out the reasons why the contested decision complies with all the specific provisions of the Treaties which, although they do not constitute the legal basis for the legal measure at issue, could potentially have a link to the factual and legal context of that measure, in particular where, as in the present case, the applicant has not, in the course of the administrative procedure leading to the contested decision, put forward any observations relating to the incompatibility of the initial commitments with such a provision.
428
In the light of the foregoing, the fourth plea must be dismissed as unfounded.
F.
The fifth plea in law, alleging infringement of Article 18(1) TFEU and a breach of the principle of equal treatment, in that the Commission discriminated between Gazprom’s customers operating in the Western European Member States and those operating in the CEE countries concerned
429
The applicant, supported by the Republic of Poland, claims that the contested decision results in a breach of the principle of equal treatment. That decision, which indirectly affects the degree of implementation of the freedom to provide services and the free movement of goods and capital, discriminates, on the basis of their nationality, between customers which have concluded a long-term gas supply contract with Gazprom, in that customers established in the CEE countries concerned are treated differently from those established in Western Europe.
430
Gazprom’s customers in the CEE countries concerned are in a comparable situation to Gazprom’s customers in Western Europe, since, in addition to the fact that both groups of customers are supplied by Gazprom, they are all established in Member States and the EU rules provide for no distinction between those two regions. Moreover, that assessment is further substantiated by the wording of the pricing guidelines, which refers to the price level in Continental Western Europe. Finally, the Commission itself confirmed in the statement of objections that all those customers were in similar situations.
431
However, although there is no objective reason to treat all those customers differently, the final commitments reinforce the differentiation between those customers, by maintaining less competitive market conditions in the CEE markets concerned as compared with Western European markets. In particular, Gazprom’s customers in the CEE countries concerned are not protected against the recurrence of excessive prices, unlike Western European customers which, although also subject to price formulae indexed to oil product prices, avoid that risk due to competition between gas suppliers in those Western European markets.
432
For its part, the Commission takes the view that the fifth plea must be dismissed as unfounded.
433
It should be recalled that, according to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (judgments of 26 July 2017, AGC Glass Europe and Others v Commission, C‑517/15 P, not published, EU:C:2017:598, paragraph 84 and the case-law cited, and of 12 July 2018, Prysmian and PrysmianCavi e Sistemi v Commission, T‑475/14, EU:T:2018:448, paragraph 144 and the case-law cited).
434
In the present case, notwithstanding the considerations put forward by the applicant and the Republic of Poland, and even assuming that it is possible to classify Gazprom’s customers established in various Member States into two groups, it must be observed that the situations of the customers established in the CEE countries concerned and the situations of those established in Western Europe were not comparable.
435
The Commission’s investigation in Case AT.39816 and, in particular, the preliminary findings in the statement of objections, which are not contested by the applicant and the Republic of Poland, show that the situation on the European gas markets differed significantly between Western Europe and the CEE countries concerned. In particular, while undertakings established in Western European countries could obtain gas supplies from undertakings other than Gazprom and the gas networks in those countries were interconnected, the CEE countries concerned were to a large extent dependent on gas supplied by Gazprom and the gas supply pipelines were designed to run from east to west (see, in particular, paragraphs 121, 136 and 489 to 491 of the statement of objections).
436
That conclusion is not called into question by the finding in paragraph 488 of the statement of objections that ‘the gas markets of the EU [with the exception of Cyprus and Malta] and the CEE countries can be regarded as being sufficiently comparable’, on account of geographical proximity and similarities in the regulatory environment. While the Commission had noted a certain degree of comparability between the CEE countries and the rest of the European Union, this was in the context of comparing gas prices in Europe with those in the US, and the Commission had also noted that the competitive situation in national markets in the European Union differed significantly.
437
Moreover, as regards the pricing guidelines provided for in paragraph 19(iii) of the final commitments (examined in particular in the context of the third part of the third plea above), their reference to competitive prices applied in Western Europe invalidates, rather than confirms, the finding that Gazprom’s customers in that region were in a situation comparable to that of customers in the CEE countries concerned. If all those customers operating in the European Union had been in a comparable situation, it would not have been necessary to provide for such a commitment, specifically aimed at maintaining or ensuring an approximation between the prices applicable to customers in the CEE countries concerned and those applicable to customers operating in Western Europe.
438
As to the remainder, in so far as the applicant argues that the final commitments reinforce a distinction between customers operating in the CEE countries concerned and those operating in Western Europe, it must be observed that, in adopting the final commitments, the objective that the Commission had to pursue was not to provide the former customers with the same market conditions as those in which the latter customers operate, but to ensure that those commitments address the competition concerns identified.
439
It follows that, since Gazprom’s customers operating in Western Europe and its customers operating in the CEE countries concerned were in different situations during the period covered by the procedure in Case AT.39816, the Commission did not, contrary to the applicant’s assertions, unlawfully treat those two groups of customers differently in adopting the contested decision.
440
In the light of the foregoing, the fifth plea must be dismissed as unfounded.
G.
The sixth plea in law, alleging misuse of powers and infringement of essential procedural requirements, in that, by the contested decision, the Commission disregarded the objective of Article 9 of Regulation No 1/2003 and the limits of its powers in the management of the administrative procedure
441
The applicant, supported by the Republic of Poland, argues that the contested decision was based on a misuse of powers and is vitiated by infringements of various procedural rights and even of essential procedural requirements in the handling of the complaint. The misuse of powers is demonstrated by a series of facts which characterised the conduct of the procedure in Case AT.39816, by irregularities in the handling of the Yamal objections and by those infringements.
442
The Commission takes the view that the sixth plea must be dismissed as unfounded.
443
It is necessary to examine, in turn, the facts relied on, the alleged irregularities and the alleged infringements of procedural rights, before assessing the existence of a possible misuse of powers.
1. The facts characterising the conduct of the procedure in Case AT.39816
444
The applicant, supported by the Republic of Poland, submits that three facts indicate the existence of a misuse of powers. First, there is the Commission’s changing position between 2013 and 2017 as regards the possibility of relying on commitments, which, in the context of the present case, raises doubts as to Gazprom’s ‘genuine willingness’, within the meaning of paragraph 121 of the notice on best practices, to propose commitments.
445
Second, the applicant points to the unusual framing of the contested decision by press releases and public statements, which exaggerate the beneficial effects of that decision and therefore seek to divert attention away from the irregularities which were allegedly committed.
446
Third, the completion of certain stages of the procedure as ‘mere formalities’ further demonstrates the alleged misuse of powers. On the one hand, the comments received at the end of the market test were disregarded to the extent that they exceeded the scope of Gazprom’s initial commitments and only minor changes were made to the final commitments. On the other hand, the (belated) sending of the letter concerning the intended rejection of the complaint and the agreement on Gazprom’s commitments, which occurred only nine working days after receipt of the applicant’s observations in response to that letter, demonstrate that the Commission had previously decided on its position and was no longer pursuing competition policy objectives.
447
For its part, the Commission disputes the accuracy of those allegations.
448
In that regard, the Court notes that the first two facts relied on by the applicant are not, in themselves, unusual or remarkable. First, the Commission is entitled to change its position in the course of the procedure as regards the possibility of relying on commitments, which the applicant itself accepts, so that that fact is not in itself capable of giving rise to doubts as to the validity of the assessment of Gazprom’s genuine willingness to propose commitments.
449
Second, the publication of press releases in competition proceedings is expressly provided for, as follows from paragraphs 20, 76, 91, 129 and 147 of the notice on best practices, and statements by the Competition Commissioner following a competition procedure cannot be considered inappropriate, in particular in a case with important consequences, since it concerned eight Member States and a major energy sector. Moreover, it is not alleged that the contents of the press releases and of the statements relating to the contested decision are not consistent with that decision.
450
Furthermore, as regards the completion of certain stages of the procedure in Case AT.39816 allegedly as ‘mere formalities’, on the one hand, it must be noted that it is apparent from the contested decision that the comments received in the context of the market test were taken into consideration. This is not called into question by the fact that the Commission expressly states in that decision that it rejected certain comments on the ground that they exceeded the scope of the initial commitments.
451
On the other hand, as regards the assertion that the final commitments were accepted without taking into account the applicant’s response to the letter concerning the intended rejection of the complaint, in view of the period of only nine working days which elapsed between the Commission’s receipt of that response and its acceptance of those commitments, it is sufficient to note that that assertion is based on the receipt of the final commitments on 15 March 2018 being incorrectly equated with their subsequent acceptance. It cannot be inferred from this that the Commission immediately accepted those commitments and, in any event, at that advanced stage of the procedure, it cannot be excluded that the Commission could have been in a position to examine that response and to take a position on it and on those commitments within such a period.
2. The irregularities committed in relation to the handling of the Yamal objections
452
The misuse of powers alleged by the applicant and the Republic of Poland is also demonstrated by the various irregularities which characterise the handling of the Yamal objections and, in particular, the assessment of the adequacy of Gazprom’s commitments. Moreover, in several respects, the Commission attempts to justify those irregularities ex post facto.
453
First, the Commission accepted the final commitments even though, in breach of Article 9 of Regulation No 1/2003, they did not cover all the concerns set out in the statement of objections, so that the Commission essentially allowed Gazprom not to submit commitments in relation to the Yamal objections. In that regard, the Commission assessed the adequacy of the commitments in a manifestly incorrect manner, since it omitted relevant circumstances, as illustrated by the assessment of the certification decision, which is contrary to the content of that decision and contradicts the position expressed by the President of the Polish Energy Regulator during the market test.
454
Second, the applicant alleges an infringement of the rights of third parties by the arbitrary de facto modification of the competition concerns, without an adaptation of the statement of objections, combined with the excessive length of the procedure, while the possibilities of bringing an action before the national competition authorities and the national courts were paralysed by the fact that the Commission had apparently examined the Yamal objections.
455
Third, since the rejection of the complaint was based on an understanding of the State action defence which, in so far as it allowed the application of that defence in the case of action by a third State, has implications for the effectiveness of EU law, the Commission should have based both the contested decision in the present case and the decision rejecting the complaint in Case AT.40497 on Article 10 of Regulation No 1/2003.
456
Fourth, the Republic of Poland states that the reasons for abandoning the competition concerns relating to the Yamal pipeline are insufficient, or even misleading, in that the abandonment of those concerns was justified by the applicability of the State action defence, although only a brief and insufficient reference to that defence is made in the contested decision. In fact, that decision justifies their abandonment primarily on the basis of certain findings contained in the certification decision.
457
Fifth, the Republic of Poland submits that the Commission misled the Member States by failing to submit the question of the State action defence to the Advisory Committee, in breach of the principle of sincere cooperation and, according to the applicant, Article 14 of Regulation No 1/2003. In that regard, the applicant alleges infringement of Article 27(4) of that regulation, in that the interested parties were also misled as to the real reasons which led the Commission to abandon the Yamal objections.
458
For its part, the Commission disputes those irregularities. It argues that the line of argument on which the fifth irregularity is based is inadmissible since, in so far as it is put forward by the Republic of Poland, it is irrelevant to the sixth plea and alters the subject matter of the dispute and, in so far as it is repeated and developed by the applicant, it constitutes a new plea.
459
In that regard, the Court considers that, by the first irregularity relied on, the applicant reproduces, in essence, the complaints examined in the first part of the first plea. Since that part of that plea has been dismissed (see paragraphs 86 to 110 above), that irregularity must be regarded as not having been established.
460
As regards the second irregularity relied on, relating to the infringement of the rights of third parties by the de facto modification of the competition concerns, combined with the excessive length of the procedure, that irregularity corresponds, in essence, to the complaint alleging breach of the principle of sincere cooperation, which was rejected in the second part of the first plea, and, therefore, that irregularity must be dismissed as unfounded. Moreover, in so far as the second irregularity is based on the allegedly excessive duration of the procedure in Case AT.39816, it is sufficient to note that the applicant, on the one hand, has not shown that that procedure exceeded a reasonable period and, on the other hand, has not adduced any evidence that that allegedly excessive duration had an effect on the solution adopted in the contested decision (see, to that effect, judgment of 8 May 2014, Bolloré v Commission, C‑414/12 P, not published, EU:C:2014:301, paragraph 84 and the case-law cited).
461
As regards the third irregularity relied on, it must be recalled that, under Article 10 of Regulation No 1/2003, where the EU public interest relating to the application of Articles 101 and 102 TFEU so requires, the Commission, acting of its own motion, may by decision find that Article 101 TFEU is not applicable to an agreement, a decision by an association of undertakings or a concerted practice, either because the conditions laid down in Article 101(1) TFEU are not fulfilled, or because the conditions laid down in Article 101(3) TFEU are satisfied. The Commission may likewise make such a finding with reference to Article 102 TFEU. Moreover, it follows from recital 14 of that regulation that Article 10 of Regulation No 1/2003 is intended to apply in exceptional cases, with a view to clarifying the law and ensuring its consistent application throughout the European Union.
462
It follows that the Commission was under no obligation to adopt a decision under Article 10 of Regulation No 1/2003, even if its application of the State action defence, that is to say in a situation involving a third State, was innovative or uncommon and resulted in the non-application of Article 102 TFEU. Accordingly, nor can it be criticised for not having adopted the contested decision under that article.
463
As regards the fourth irregularity relied on, relating to an inadequate statement of reasons for the contested decision, it must be recalled that, in examining the second part of the first plea, the Court considered that the reasoning, set out in recital 138 of the contested decision, concerning the ground relating to the certification decision was sufficient and that, given the autonomous nature of each of the two grounds set out in that recital, the arguments relating to the inadequacy of the reasoning for the second ground, relating to the Poland-Russia agreements and based on an application of the State action defence, were ineffective (see paragraphs 123 and 124 above). It also follows from the autonomous nature of the two grounds that it is also necessary to reject the applicant’s argument that, contrary to what is apparent from that recital, the main ground for the abandonment of the Yamal objections was the ground relating to those agreements and to that defence, and not the ground relating to the certification decision.
464
Finally, as regards the fifth irregularity, it comprises, in essence, two separate arguments, alleging that, by failing expressly to state that it was relying on the application of the State action defence, the Commission misled, on the one hand, the Member States, in breach of the principle of sincere cooperation and Article 14 of Regulation No 1/2003, and, on the other hand, the interested parties, in breach of Article 27(4) of that regulation.
465
Without it being necessary to examine the admissibility of those two arguments, in any event it must be held that they must be dismissed as unfounded. As regards the argument that the Commission misled the Member States, the alleged breaches of the principle of sincere cooperation and of Article 14 of Regulation No 1/2003 must be examined together, since, with respect to relationships formed in the context of proceedings conducted by the Commission pursuant to Articles 101 and 102 TFEU, the rules for the operation of the duty of sincere cooperation have been stated in, inter alia, Articles 11 to 16 of that regulation, in Chapter IV headed ‘Cooperation’ (see, to that effect, judgment of 29 March 2012, Spain v Commission, T‑398/07, EU:T:2012:173, paragraph 47).
466
In that regard, although the consultation of the Advisory Committee provided for in Article 14 of Regulation No 1/2003 constitutes an essential procedural requirement, there can, in the present case, be no question of conduct which prevented that committee from delivering its opinion in full knowledge of the facts or, therefore, of an infringement affecting the legality of the contested decision. While it is true that the concept of the State action defence is not expressly mentioned in that decision, the fact remains that the wording of the last sentence of recital 138 of the preliminary draft decision sent to the Advisory Committee, a preliminary draft decision which was identical to the contested decision, made it possible to understand the essence of the ground relating to the Poland-Russia agreements, namely that the Commission had doubts as to whether the Yamal objections could be attributed to Gazprom. Moreover, if necessary, the representatives of the Member States could, in the course of the consultation with the Advisory Committee, have expressed reservations on the grounds for abandoning those objections and questioned the Commission, in particular, on the meaning to be given to, or the lack of substance of, the ground put forward in that last sentence. Therefore, the Advisory Committee was not misled in a material respect by inaccuracies or omissions (see, to that effect, judgments of 10 July 1991, RTE v Commission, T‑69/89, EU:T:1991:39, paragraphs 21 to 23; of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 742; and of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraphs 148 and 149 and the case-law cited).
467
In any event, since, as is clear from the examination of the first plea, the abandonment of the Yamal objections is also based on the ground relating to the certification decision, which is in itself capable of justifying their abandonment and is sufficiently reasoned, the alleged infringement cannot succeed, because the alleged inadequacy of the reasoning concerning the ground relating to the Poland-Russia agreements had no impact on the outcome of the consultation.
468
As regards the argument that the Commission misled the interested parties in the context of the market test, that alleged irregularity does not, in the present case, constitute an infringement of essential procedural requirements, since, in particular, that market test is not expressly provided for by the Treaties and is aimed at interested third parties and not at the undertaking concerned by the competition procedure.
469
As to the remainder, it should be recalled that, according to Article 27(4) of Regulation No 1/2003, the Commission is required only to publish a concise summary of the case and the main content of the commitments or of the proposed course of action. In the present case, the Commission has complied with that obligation by publishing in the Official Journal the notice, referred to in paragraph 10 above, launching the market test. Moreover, it is apparent from the documentation published on the Commission’s website in connection with that market test, and specifically from the information sheet concerning Poland referred to by the applicant, that the Commission had given notice of the abandonment of the Yamal objections, which could already be inferred from the fact that the notice published in the Official Journal was silent on that subject. The Commission had also stated therein that the reason for abandoning those objections was that the competition procedure was not likely to change the situation on account of the impact of the Poland-Russia agreements.
470
It follows from the foregoing that none of the irregularities relied on by the applicant and the Republic of Poland is well founded.
3. Infringement of various procedural rights, or of essential procedural requirements, in the handling of the complaint
471
The applicant, supported by the Republic of Poland, submits that, in its handling of the complaint, the Commission infringed certain procedural rights that the applicant derived from its status as complainant. Observance by the Commission of some of those rights constitutes an essential procedural requirement. In that regard, the applicant and the Republic of Poland allege, in essence, four infringements.
472
The Commission disputes having committed those infringements. Moreover, the Commission submits that the applicant may raise any complaint concerning observance of its procedural rights in the context of the action against the decision to reject the complaint in Case T‑399/19.
(a) The allegation that a separate procedure was improperly opened for the examination of the complaint (first infringement)
473
The applicant complains that a separate procedure (Case AT.40497) was improperly opened to examine the complaint, with the aim of preventing it from participating in Case AT.39816 as a complainant, thereby ‘transferring’ its rights to a parallel procedure. That approach is inconsistent with the content of the complaint, in so far as it referred to Case AT.39816, with the substance of the conduct concerned, in particular in view of the significant overlap between most of the allegations in the complaint and the Commission’s concerns, and with the Commission’s administrative practice.
474
Initially, the Commission’s letters of 29 and 31 March 2017 gave rise to a legitimate expectation that the applicant would participate in Case AT.39816, on account of the indication that the Commission was retaining the complaint for examination and because of the invitation to participate in the market test, as provided for in paragraph 129 of the notice on best practices in relation to complainants. Moreover, notwithstanding the statement in paragraph 183 of the contested decision that ‘the Commission has also carefully analysed all the arguments presented … in [the] complaint … as well as in [the] observation on the letter [concerning the intended rejection of] the complaint’, the Commission did not actually intend to examine the complaint and take it into consideration in Case AT.39816.
475
The Commission takes the view that the alleged infringement is unfounded.
476
In that regard, the Court recalls that, according to established case-law, the Commission, entrusted by Article 105(1) TFEU with the task of ensuring the application of Articles 101 and 102 TFEU, is responsible for defining and implementing the competition policy of the European Union and for that purpose has a discretion as to how it deals with complaints. In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it (see judgment of 16 May 2017, Agria Polska and Others v Commission, T‑480/15, EU:T:2017:339, paragraph 34 and the case-law cited). Similarly, the Commission must be given discretion as to the manner in which it intends to organise the handling of a complaint, provided that it complies with the relevant provisions of Regulation No 773/2004 and, in particular, with the rights granted to complainants in that capacity.
477
In the present case, it is common ground that the complaint contains allegations which correspond in large part to the competition concerns which formed the subject matter of the Commission’s ongoing investigation in Case AT.39816 and were set out in the statement of objections. In those circumstances, it cannot be excluded that it would have been desirable to deal with those allegations in the same procedure, without prejudice to the possibility of considering separately the other allegations which did not correspond to those concerns.
478
However, that fact is not sufficient to call into question the legitimate reasons put forward by the Commission, based on procedural economy and its desire not to delay the investigation of a case which was at an advanced stage by broadening its subject matter, with the result that it must be considered that opening a separate procedure to handle the complaint in the present case was not improper in itself.
479
The argument concerning the allegedly improper opening of that procedure must therefore be dismissed.
(b) Infringement of Article 5(1) and Article 6(1) of Regulation No 773/2004 (second and third infringements)
480
In the first place, the applicant complains that the Commission never gave its views on the applicant’s legitimate interest in participating in Case AT.39816. Specifically, in the contested decision, the Commission did not adopt a position, in breach of Article 7(1) of Regulation No 1/2003, read in conjunction with Article 5(1) of Regulation No 773/2004, on whether the applicant had a legitimate interest in intervening as a complainant in that procedure, even though the letter concerning the intended dismissal of the complaint, sent a few months earlier, stated that the Commission had not yet taken a decision on that question. That interest was not in doubt, in particular since the applicant had been a victim of Gazprom’s practices and the applicant’s premises had been inspected by the Commission’s services.
481
In the second place, the applicant alleges infringement of Article 6(1) of Regulation No 773/2004, which gave it, as a complainant, the right to receive and comment on the statement of objections, which it had requested on several occasions during the administrative procedure. The Commission refused to allow the applicant to exercise that right, on the ground that the complaint was lodged out of time, whereas, according to the case-law, a complainant has that right up until the consultation of the Advisory Committee. However, the question of the infringement of the applicant’s rights under Article 6(1) of Regulation No 773/2004 does concern the contested decision in Case AT.39816, since the applicant was thus deprived of the possibility of presenting observations on Gazprom’s proposed commitments, having previously been informed of the evidence gathered in the course of the investigation, which unduly restricted its ability to challenge the adequacy of those commitments.
482
Therefore, the Commission is wrong to claim that it complied with Article 6(1) of Regulation No 773/2004 by relying on the communication of the statement of objections as an annex to the letter concerning the intended rejection of the complaint, since the communication of that letter does not constitute the proper implementation of that provision for various reasons. First, the non-confidential version communicated on that occasion was insufficiently complete; second, the communication of the statement of objections and the examination of the observations in response should have preceded the sending of the letter concerning the intended rejection of the complaint; third, that communication, having taken place after eleven months and in the context of Case AT.40497, on the occasion of the sending of the letter concerning the intended rejection of the complaint, entailed a refusal to examine the complaint in the context of Case AT.39816 and prevented the applicant from submitting further observations in the context of the market test; fourth, the observations in response to the letter concerning the intended rejection of the complaint were intended to comment on the reasons for the intended rejection of the complaint, and not on the statement of objections; and fifth, the Commission stated in its pleadings lodged in Case T‑399/19 that the statement of objections had not been used as a basis for the provisional assessment in the letter concerning the intended rejection of the complaint, which implied that the applicant’s observations in response to that letter, in so far as they related to the statement of objections, were considered by the Commission to be irrelevant even in the context of Case AT.40497.
483
The Commission takes the view that the alleged infringements are unfounded.
484
According to Article 5(1) of Regulation No 773/2004, natural and legal persons are to show a legitimate interest in order to be entitled to lodge a complaint for the purposes of Article 7 of Regulation (EC) No 1/2003. According to Article 6(1) of that regulation, where the Commission issues a statement of objections relating to a matter in respect of which it has received a complaint, it is to provide the complainant with a copy of the non-confidential version of the statement of objections and set a time limit within which the complainant may make known its views in writing.
485
In the present case, it must be found that the applicant fulfilled the conditions for enjoyment of the rights referred to in Article 6(1) of Regulation No 773/2004. On the one hand, the Commission accepts that the applicant, which was affected by Gazprom’s alleged practices, had a legitimate interest in lodging the complaint and takes the view that it implicitly gave its views on that interest since the decision in Case AT.40497 rejects the complaint on substantive grounds. On the other hand, it must be considered that the procedure in Case AT.39816 concerns ‘a matter in respect of which’ the Commission has received a complaint, since, as noted in paragraph 477 above, it is common ground that some of the allegations made in that complaint correspond in large part to the objections set out in the statement of objections.
486
Moreover, while it is true that the applicant lodged the complaint at an advanced stage of the procedure in Case AT.39816, even though, having been involved in that procedure on various occasions (see paragraph 4 above), it had, at that stage, been aware of its existence for several years, that fact does not call into question that party’s enjoyment of the rights referred to in Article 6(1) of Regulation No 773/2004. Indeed, the right to receive a non-confidential version of a statement of objections can be exercised as long as the proceedings are pending, that is to say, until the Advisory Committee on Restrictive Practices and Dominant Positions has delivered its opinion on the preliminary draft decision communicated by the Commission, since that provision does not prescribe a specific time limit for a complainant with a legitimate interest to exercise the rights provided for in that provision (see, to that effect, judgment of 7 June 2006, Österreichische Postsparkasse v Commission, T‑213/01 and T‑214/01, EU:T:2006:151, paragraphs 148 and 149 and the case-law cited).
487
Accordingly, although the Commission could, without committing an error, open separate proceedings to deal with the complaint, as set out in paragraphs 477 and 478 above, the fact remains that that approach cannot deprive the applicant of the enjoyment of its rights under Article 6(1) of Regulation No 773/2004, in the context of Case AT.39816.
488
However, it must be noted that the Commission, in conducting the procedures in Cases AT.39816 and AT.40497 in parallel, displayed some ambiguity with regard to the applicant’s participation and also with regard to its right to receive a copy of the statement of objections and to submit observations relating to that document in Case AT.39816.
489
After the complaint was lodged on 9 March 2017, the Commission informed the applicant that that complaint had been accepted and invited it, by letter of 29 March 2017, to take part in the market test launched on 16 March 2017 in Case AT.39816 and then, on 31 March 2017, informed it that the complaint had been registered in a separate procedure, namely in Case AT.40497. Subsequently, having been contacted on various occasions by the applicant, which sought to obtain a non-confidential version of the statement of objections, the Commission responded by letters of 28 April and 24 August 2017 and either indicated that its assessment in that regard was pending and that it would contact the applicant again in due course, or simply took formal notice that that request had been repeated, but consistently stated that the complaint had been lodged at an ‘advanced stage’ of Case AT.39816.
490
Subsequently, by means of the letter concerning the intended rejection of the complaint, dated 23 January 2018, sent in the context of Case AT.40497, the Commission communicated a non-confidential version of the statement of objections, but at the same time stated that it ‘[was] leaving open the question whether the late submission of the complaint … had an effect on the existence of the applicant’s legitimate interests or on its rights to participate in the procedure in Case AT.39816’. Finally, it was only after the adoption of the contested decision, on 24 May 2018, that the Commission, by its letter of 25 September 2018, responded to the objections that the non-confidential version of the statement of objections was insufficiently complete, which the applicant had raised in its response to the letter concerning the intended rejection of the complaint.
491
In those circumstances, the applicant had doubts as to whether its observations made in the response to the letter concerning the intended rejection of the complaint would be taken into account under Article 6(1) of Regulation No 773/2004 in the context of Case AT.39816. It must be observed, in particular, that the Commission, in essence, declined to express its views on the applicant’s status as a complainant in Case AT.39816, that the communication of the statement of objections expressly took place in the context of a letter concerning Case AT.40497, and not Case AT.39816, and that the statement of objections was communicated as one of the documents on which the Commission based its provisional assessment that the complaint must be dismissed, under Articles 7(1) and 8(1) of Regulation No 773/2004, and not with a view to obtaining the applicant’s written observations on the statement of objections, under Article 6(1) of that regulation.
492
However, those circumstances stopped short of affecting the effective exercise of the applicant’s rights under Article 6(1) of Regulation No 773/2004.
493
It must be observed that, although communication of the statement of objections was formally made under Article 7(1) and Article 8(1) of Regulation No 773/2004, the applicant was in fact able to have access to a non-confidential version of that statement of objections and was able, in the context of its response to the letter concerning the intended dismissal of the complaint, to submit written observations relating, inter alia, to the content of that version of the statement of objections, and to do so prior to the adoption of the contested decision in the present case. Moreover, it must be observed that, while disputing that the observations submitted in that response could be considered to constitute written observations within the meaning of Article 6(1) of Regulation No 773/2004, the applicant nonetheless stated in paragraph 3 of that response that they included a thorough reassessment of the observations previously lodged in the context of the market test and the complaint, with a view to enabling the Commission to close the competition investigation against Gazprom with a decision which would improve the competitive situation in the markets of the CEE countries concerned.
494
Moreover, the Commission was able to acquaint itself with those observations in the course of the procedure in Case AT.39816 and took them into account in the context of that case, as is apparent from the preamble to and paragraphs 17 and 183 of the contested decision.
495
The latter finding is not called into question by the applicant’s arguments that the Commission did not genuinely take into account the observations included in the response to the letter concerning the intended dismissal of the complaint, given that the Commission had accepted Gazprom’s commitments only nine working days after receipt of that response and that the Final Report of the Hearing Officer in Case AT.39816 included no mention of the complaint. On the one hand, as noted in paragraph 451 above, the argument relating to the period of nine working days is based on the date of receipt of the final commitments being incorrectly equated with the later date of their acceptance by the Commission. On the other hand, the absence of any mention of the complaint in that report cannot suffice to support the assumption that the Commission had not examined that response with due diligence, in particular as that report is validly focused on observance of Gazprom’s procedural rights.
496
It is also necessary to reject the applicant’s claim that it should have received a non-confidential version of the statement of objections before the expiry of the time limit for lodging its observations, separate from its response to the letter concerning the intended rejection of the complaint, in the context of the market test. It is not apparent from Article 27(4) of Regulation No 1/2003 or Article 6(1) of Regulation No 773/2004 that the applicant was entitled to receive a copy of the non-confidential version of the statement of objections in sufficient time to allow it to take that document into account in the observations which it could submit in the context of that market test. Moreover, it is necessary to take account of the fact that the applicant lodged the complaint only a few days before that market test was launched and of the period of time required to prepare a non-confidential version of the statement of objections.
497
Finally, in so far as the applicant alleged that the non-confidential version of the statement of objections was insufficiently complete, it should be recalled, as noted in paragraph 50 above, that the Court communicated the confidential version of the statement of objections to the applicant’s representatives after they had signed confidentiality undertakings. Those representatives subsequently lodged their observations on the confidential version of the statement of objections, in which they identified certain relevant points in that version and stated how, in their view, those points could have been used to support, develop or confirm the claims made by the applicant in both the administrative procedure and the present judicial proceedings before the Court.
498
However, it is apparent from the observations on the confidential version of the statement of objections that, although the applicant could have been better informed concerning the precise conduct alleged against Gazprom, it had in its possession the essential part of the relevant information and, in particular, was already aware of the content of the anti-competitive practices in question. Accordingly, in that regard also, the effective exercise of the applicant’s rights under Article 6(1) of Regulation No 773/2004 must be considered not to have been affected.
499
In the light of the foregoing, the argument concerning an infringement of Article 6(1) of Regulation No 773/2004 must be dismissed.
(c) Infringement of other procedural rights attached to the status of complainant (fourth infringement)
500
The applicant alleges infringement of Article 7(1) and Article 8(1) of Regulation No 773/2004, arising from the communication, in the letter concerning the intended rejection of the complaint, of insufficient information concerning the application in the present case of the State action defence and concerning the documents on which the Commission based its decision to reject the complaint. Moreover, the applicant never received a copy of Gazprom’s response to the statement of objections, even though, contrary to what the Commission suggested during the procedure, that response had an impact on the decision to reject the complaint. The failure to comply with those provisions, which concerned both procedures (AT.39816 and AT.40497), constitutes an infringement of an essential procedural requirement, which must necessarily lead to the annulment of the decision adopted in each of those cases, since rectification of the irregularity in one case would have no influence on the irregularity committed in the other case.
501
The Commission takes the view that the alleged infringement is unfounded.
502
In that regard, Articles 7 and 8 of Regulation No 773/2004 concern the rules governing the rejection of a complaint. However, the complaint was rejected by the decision adopted at the end of the procedure in Case AT.40497, and not the procedure in Case AT.39816. Accordingly, the question of observance of the rights provided for in those provisions is intrinsically linked to Case AT.40497 and any infringement of those rights is not such as to call into question the legality of the contested decision.
503
Therefore, the arguments relating to an infringement of Articles 7 and 8 of Regulation No 773/2004 are ineffective in the context of the present action and must be dismissed.
4. The existence of a misuse of powers
504
According to the applicant, the facts which it has identified, the irregularities committed in the handling of the Yamal objections and the infringement of its procedural rights as complainant demonstrate the existence of a misuse of powers, in that the Commission adopted the contested decision under Article 9 of Regulation No 1/2003 for a purpose other than that provided for by that article.
505
The Commission contends that the evidence put forward by the applicant and the Republic of Poland does not establish a misuse of powers and, in fact, is largely irrelevant to the subject matter of a plea alleging a misuse of powers.
506
In that regard, it should be recalled that according to the case-law, a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgments of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 99, and of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 31).
507
In the present case, in the first place, it must be observed that the applicant has not clearly set out the purpose of the misuse of powers it alleges. Similarly, by referring to the facts, irregularities and infringements of procedural rights examined in the foregoing considerations, and by asserting that those circumstances reflect an ‘unwillingness to enforce the interests of the European Union’, the applicant and the Republic of Poland have gathered scattered elements without identifying what real, and allegedly hidden, purpose was pursued by the Commission or what procedure was evaded by it.
508
However, in so far as the applicant takes the view that, rather than closing Case AT.39816 by making the final commitments binding, the Commission should have continued its investigation and adopted a decision under Article 7 of Regulation No 1/2003, it must be observed that the applicant has not put forward an argument to that effect elsewhere and that, in addition, the Commission has a wide discretion to make a proposed commitment binding or to reject it (see, to that effect, the judgment in Alrosa, paragraph 94), since recital 13 of that regulation states that commitment decisions are not appropriate in cases where the Commission intends to impose a fine.
509
In the second place, and in any event, it is clear from the considerations relating to the sixth plea above, first, that none of the facts relied on in relation to the conduct of the procedure in Case AT.39816 is of such an unusual or specific nature as to lead to its being regarded as potential evidence of a misuse of powers (see paragraphs 444 to 451 above); secondly, that the alleged irregularities in the handling of the Yamal objections are not proven (see paragraphs 444 and 452 to 470 above) and; thirdly, that the initiation of the procedure in Case AT.40497 is not irregular in itself, while the alleged infringements of procedural rights committed in that procedure either proved to be unfounded or do not relate to the contested decision (see paragraphs 473 to 503 above).
510
Accordingly, it follows from the findings made in the preceding paragraph that, even if the purpose of the alleged misuse of powers can be determined, the evidence put forward by the applicant and the Republic of Poland, even taken as a whole, cannot suffice to establish the existence of such a misuse of powers. Moreover, as has already been held, in essence, in paragraphs 58 to 64 above, that evidence is also insufficient to justify examining the allegedly relevant ‘context’, consisting of all the documents in the files in Cases AT.39816 and AT.40497, and, therefore, the Court likewise considers it unnecessary to adopt the measures of organisation of procedure requested by the applicant.
511
In the light of all the foregoing considerations, the sixth plea must be dismissed as unfounded. Accordingly, the action must be dismissed on the merits, without it being necessary to rule on its admissibility, in the light in particular, as stated in paragraph 53 above, of the plea of inadmissibility raised by the Commission at the hearing (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
Costs
512
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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission and Gazprom, in accordance with the form of order sought by the latter.
513
Moreover, pursuant to Article 138(1) and (3) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs, as is any intervener other than a Member State or an EU institution if the Court so decides. In the present case, the Republic of Lithuania, the Republic of Poland and Overgas are to bear their own costs.
On those grounds,
THE COURT (Eighth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders Polskie Górnictwo Naftowe i Gazownictwo S.A. to bear its own costs and to pay those incurred by the European Commission, Gazprom PJSC and Gazprom export LLC;
3.
Orders the Republic of Lithuania, the Republic of Poland and Overgas Inc. to bear their own respective costs.
Van der Woude
Svenningsen
Barents
Mac Eochaidh
Pynnä
Delivered in open court in Luxembourg on 2 February 2022.
[Signatures]
Table of contents
I. Background to the dispute and developments following the bringing of the action
A. The administrative procedure which gave rise to the contested decision
B. The contested decision
1. The preliminary assessment of the practices in question
2. The content of the final commitments
3. The assessment and implementation of the final commitments
C. The complaint
II. Procedure and forms of order sought by the parties
III. Law
A. The requests for measures of organisation of procedure
B. The first plea in law, alleging infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission committed a manifest error of assessment in considering that the Yamal objections had proved to be unfounded and in accepting commitments which did not in any way address those objections
1. The first part of the first plea, concerning the Commission’s errors as regards the abandonment of the Yamal objections and the absence of a commitment addressing those objections
(a) The complaint that the Commission was under an obligation to justify the absence of a commitment to address the Yamal objections
(b) The complaints challenging the validity of the two grounds set out in recital 138 of the contested decision
2. The second part of the first plea, concerning breach of the principles of sound administration, transparency and sincere cooperation
(a) Breach of the principles of sound administration and transparency
(b) Breach of the principle of sincere cooperation
C. The second plea in law, alleging infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and a breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning pricing practices
1. The first part of the second plea, concerning an error in the subject matter of the commitments relating to pricing practices in that they do not address the essence of the objections concerning those practices
2. The second part of the second plea, concerning the ineffectiveness of the new price review process
(a) The ineffectiveness of the commitments in view of Gazprom’s obstructive practices (first complaint)
(b) The failure of the commitments to address the competition concerns in good time (second complaint)
(c) The failure to take into account the costs of arbitration proceedings (third complaint)
(d) The inappropriateness of the limitation of the duration of the contracts (fourth complaint)
3. The third part of the second plea, concerning errors in the formulation of the pricing guidelines
(a) The absence of a hierarchy between the criteria used in the pricing guidelines and the vague nature of those guidelines (first complaint)
(b) The inappropriateness of the criterion relating to the price level at gas hubs (second complaint)
(c) The inappropriateness of average import prices in Germany, France and Italy (third complaint)
(d) The characteristics of the gas supplied under a given contract (fourth complaint)
(e) The elements not referred to in the pricing guidelines (fifth complaint)
4. The fourth part of the second plea, concerning errors of law and manifest errors of assessment as to the relationship between EU law and arbitration
(a) The application of substantive EU law in arbitration (first complaint)
(b) The possibility for the Commission to intervene as amicus curiae (second complaint)
D. The third plea in law, alleging infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and a breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning territorial restrictions
1. The first part of the third plea, concerning the inadequacy of the commitments relating to territorial restrictions taken as a whole
2. The second part of the third plea, concerning the inadequacy of the commitments relating to delivery points
(a) The insufficiency of the relevant delivery points (first complaint)
(b) The inadequacy of the service fees (second complaint)
(c) The inappropriate limitation on the duration of contracts (third complaint)
(d) The inappropriate requirement as to the minimum volume of gas (fourth complaint)
(e) Insufficient consideration of market conditions in Bulgaria (fifth complaint)
(f) Failure to take into account the likely and foreseeable development of Gazprom’s transit policy (sixth complaint)
3. The third part of the third plea, concerning the inadequacy of the commitments relating to the Bulgarian gas system
E. The fourth plea in law, alleging infringement of Article 194(1) TFEU, read together with Article 7 TFEU, in that the contested decision is contrary to the energy-policy objectives of the European Union in view of the negative impact of that decision on the European gas supply market
F. The fifth plea in law, alleging infringement of Article 18(1) TFEU and a breach of the principle of equal treatment, in that the Commission discriminated between Gazprom’s customers operating in the Western European Member States and those operating in the CEE countries concerned
G. The sixth plea in law, alleging misuse of powers and infringement of essential procedural requirements, in that, by the contested decision, the Commission disregarded the objective of Article 9 of Regulation No 1/2003 and the limits of its powers in the management of the administrative procedure
1. The facts characterising the conduct of the procedure in Case AT.39816
2. The irregularities committed in relation to the handling of the Yamal objections
3. Infringement of various procedural rights, or of essential procedural requirements, in the handling of the complaint
(a) The allegation that a separate procedure was improperly opened for the examination of the complaint (first infringement)
(b) Infringement of Article 5(1) and Article 6(1) of Regulation No 773/2004 (second and third infringements)
(c) Infringement of other procedural rights attached to the status of complainant (fourth infringement)
4. The existence of a misuse of powers
Costs
(
*1
)	Language of the case: Polish.
(
1
)	Confidential data omitted.