OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 23 April 2026 (1)
Case C‑14/24 P
European Commission
v
Bulgarian Energy Holding EAD,
Bulgartransgaz EAD,
Bulgargaz EAD
( Appeal – Competition – Abuse
of
a dominant position – Internal market in natural gas – Decision finding an infringement of Article 102 TFEU – Refusal to grant access – Bronner case-law – Potential competitor – Single and continuous infringement – Rights of the defence )
I.      Introduction
1.        In Commission Decision C(2018) 8806 final of 17 December 2018 relating to proceedings under Article 102 of the Treaty on the Functioning of the European Union (AT.39849 – BEH Gas) (‘the contested decision’), the European Commission found that Bulgarian Energy Holding EAD (‘BEH’), together with its wholly owned subsidiaries Bulgartransgaz EAD and Bulgargaz EAD (together, ‘the BEH Group’), had committed a single and continuous infringement by refusing third parties access to the transmission network, the Romanian gas pipeline and the Chiren storage facility, thereby foreclosing the gas supply markets in Bulgaria between 30 July 2010 and 1 January 2015. Consequently, it imposed a fine of EUR 77 068 000 on them and held them jointly and severally liable for its payment.
2.        Following the annulment of that decision by the judgment of the General Court of 25 October 2023, Bulgarian Energy Holding and Others v Commission, (2) the Commission lodged the present appeal. The present appeal raises important questions, in particular with regard to the application of the test resulting from the
judgment of the Court of Justice of 26 November 1998, Bronner, (3) to determine whether a refusal to grant access to essential infrastructure constitutes an abuse under Article 102 TFEU, the assessment of the concept of potential competition in the light of the test defined by the case-law resulting from the judgment of 30 January 2020,
Generics (UK) and Others, (4) the interpretation of the concept of a single and continuous infringement, and the implementation of the rights of defence of undertakings subject to an investigation by the Commission under Article 102 TFEU.
II.    Background to the dispute
3.        The General Court set out the background to the dispute in paragraphs 2 to 55 of the judgment under appeal which, for the purposes of this appeal, can be briefly summarised as follows.
A.      Facts
4.        BEH is a company wholly owned by the Bulgarian State. The Bulgarian State’s rights in BEH are exercised by the Bulgarian Minister for Energy. BEH has several subsidiaries which operate in the energy sector in Bulgaria. In the gas sector, it holds 100% of the capital of its subsidiaries Bulgargaz and Bulgartransgaz.
5.        Bulgargaz is the public gas supplier in Bulgaria. During the infringement period, Bulgargaz purchased gas from Russia and was the sole or the main importer of Russian gas to Bulgaria. Bulgargaz was the main gas supplier as regards upstream wholesale trade and also as regards final customers, namely the companies directly connected to the transmission network.
6.        Bulgartransgaz is:
–        the licensed gas transmission system operator (‘TSO’) in Bulgaria; on that basis, it operates the Bulgarian gas transmission network (‘the transmission network’) and the Bulgarian transit pipeline;
–        the storage system operator of the only natural gas storage facility of that country, situated underground in Chiren (Bulgaria) (‘the Chiren storage facility’).
7.        During the infringement period, Bulgaria’s gas supply depended almost entirely on imports of Russian gas. The Russian gas was transported to Bulgaria through three pipelines, namely the Romanian Transit Pipelines 1, 2 and 3, managed by Transgaz SA, the gas transmission system operator in Romania. The Romanian Transit Pipeline 1 (‘the Romanian Pipeline 1’) crossed Romania from the entry point at Gas Metering Station Isaccea 1, situated on the Ukrainian-Romanian border, up to the Negru Vodă 1 entry point of the transmission network, situated on the Romanian-Bulgarian border. The transmission network, which in turn was connected to the Chiren storage facility, was a purely national network to which the majority of customers and local distribution networks in Bulgaria were connected. At least until April 2016, the Romanian Pipeline 1 was the only viable option for transporting gas to Bulgaria with the aim of supplying most parts of the country.
8.        The Romanian Pipeline 1 was built in 1974 in accordance with the intergovernmental agreement concluded between the People’s Republic of Bulgaria and the Socialist Republic of Romania on 29 November 1970 (‘the 1970 Intergovernmental Agreement’). On 18 February 2003, the Republic of Bulgaria and Romania concluded a new intergovernmental agreement (‘the 2003 Intergovernmental Agreement’). Under Article 3 of that agreement, the contracting parties committed to requiring their respective gas operators, namely Bulgargaz and Transgaz, to enter into a new contract for the use of the Romanian Pipeline 1. Thus, on 19 October 2005, Transgaz and Bulgargaz concluded a new agreement (‘the 2005 Agreement’), under which Bulgargaz was granted exclusive use of the Romanian Pipeline 1 until 31 December 2011. In return, Bulgargaz paid Transgaz a fixed annual fee, irrespective of the capacity actually used. In 2009, that agreement was extended until 31 December 2016.
B.      Procedure before the Commission and the General Court
9.        On 18 November 2010, Overgas Inc., which operates in the gas supply market in Bulgaria, submitted to the Commission an informal complaint against the BEH Group for infringement of Article 102 TFEU. The Commission organised, with Overgas, three meetings in 2011 and another meeting on 17 June
2013.
10.      On 4 July 2013, the Commission initiated proceedings against the BEH Group on the basis of Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18) and Article 11(6) of 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).
11.      On 17 December 2018, the Commission adopted the contested decision.
12.      In the contested decision, the Commission alleged that the BEH Group had abused its dominant position by preventing, restricting and delaying third-party access to the transmission network, the Chiren storage facility and the Romanian Pipeline 1, thus foreclosing the Bulgarian gas supply markets. The identified single and continuous infringement of Article 102 TFEU was characterised by a pattern of conduct, in relation to each infrastructure, that formed part of an anticompetitive strategy, determined by BEH and implemented by the BEH Group, intended to protect Bulgargaz’s dominant position on the Bulgarian gas supply markets by foreclosing them.
13.      The Commission concluded that the conduct formed part of a single and continuous infringement, which had started on the date of the first anticompetitive conduct, namely on 30 July 2010, and had ended when the last abusive practice had ended, namely on 1 January 2015.
14.      The Commission imposed a fine of EUR 77 068 000 on the BEH Group for their participation in the identified single and continuous infringement.
15.      By application lodged at the Registry of the General Court on 1 March 2019, the BEH Group brought an action under Article 263 TFEU against the contested decision. It sought, principally, the annulment of the contested decision and, in the alternative, the annulment of the fine imposed on them in that decision, or a reduction in the amount thereof. Before the General Court, the form of order sought by the BEH Group was supported by the Republic of Bulgaria.
The form of order sought by the Commission was supported by Overgas.
16.      By the judgment under appeal, the General Court annulled the contested decision in its entirety and ordered the Commission to pay the costs incurred by the BEH Group, in accordance with the form of order sought by them, while ordering the Republic of Bulgaria and Overgas to bear their own costs.
That judgment is, in essence, based on the assessment that the Commission had not established to the requisite legal standard that there was a refusal to grant access to the three infrastructures held by the BEH Group that was capable of falling within the scope of Article 102 TFEU.
17.      The General Court held, first, that the allegedly abusive conduct relating to the Romanian Pipeline 1 was the linchpin on which the Commission’s analysis and the statement of reasons for the contested decision were based. It further held that the Commission made a number of errors of law by finding that Bulgargaz’s conduct in relation to access to that pipeline constituted a refusal of access capable of falling within the scope of Article 102 TFEU. Secondly, it held that the Commission had not demonstrated that Bulgartransgaz’s conduct concerning access to the transmission network was capable, and not purely hypothetically, of restricting competition and
of having exclusionary effects on the Bulgarian gas supply markets. It did hold that the Commission had demonstrated that Bulgartransgaz’s conduct regarding access to the Chiren storage facility was capable of restricting competition on the Bulgarian gas supply markets between 5 June 2012 and 19 September 2014, but that it had not established that that was the case before 5 June 2012. In the light of those considerations, and in view of the fact that the Commission had found that the BEH Group had committed a single and continuous infringement of Article 102 TFEU by refusing to grant access to those three infrastructures, the General Court held that the sole ground relating to Bulgartransgaz’s conduct concerning the Chiren storage facility after June 2012 could not, without distorting the contested decision by substituting a new assessment of the facts for that of the Commission, constitute the essential, or even sufficient, statement of reasons capable by itself of justifying the operative part of that decision. In addition, the General Court considered that the BEH Group’s
rights of defence had been affected by several defects in the administrative procedure. Further aspects of that
judgment will be discussed in greater detail in the analysis of
the various grounds put forward in support of the present appeal.
III. Procedure before the Court of Justice and forms of order sought
18.      By application of 10 January 2024, the Commission lodged an appeal against the judgment under appeal.
19.      The Commission, supported by Overgas, claims that the Court of Justice should:
–        set aside the judgment under appeal;
–        refer the case back to the General Court;
–        order the BEH Group to pay the costs of the appeal.
20.      The BEH Group, supported by the Republic of Bulgaria, contends that the Court of Justice should:
–        dismiss the appeal;
–        order the Commission to pay the costs.
21.      The parties presented oral argument and answered the questions put to them
by the Court of Justice at the hearing which took place on 10 December 2025.
IV.    Assessment
22.      In support of its appeal, the Commission relies on 10
grounds. The first to the sixth grounds of appeal relate to the access to the Romanian Pipeline 1. The seventh and the eighth grounds of appeal relate
to the access to the transmission network and to the Chiren storage facility, respectively. The ninth ground of appeal relates to the concept of a single and continuous infringement. Lastly, the tenth ground concerns the rights of defence of the BEH Group and of the Commission in the context of data room procedure.
A.      Access to the Romanian Pipeline 1
23.      In the judgment under appeal, the General Court examined various arguments put forward by the BEH Group concerning access to the Romanian Pipeline 1. At the appeal stage, the Commission disputes the General Court’s assessment relating to the following
arguments, namely:
an absence of a refusal to supply to C Energy Group (first and second grounds of appeal); an alleged failure by Transgaz to forward to the BEH Group requests for access to the Romanian Pipeline 1 and the lack of probative value of Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1
(third ground of appeal);
the lack of evidence of a refusal or restriction on Overgas gaining access to the Romanian Pipeline 1 in 2013 (fourth and fifth grounds of appeal); the lack of probative value of the discussions relating to the renegotiation of the 2005 Agreement (sixth ground of appeal).
24.      For the purpose of the present Opinion, I shall begin with the analysis
of the third ground of appeal, followed by the first and second grounds of appeal, and then the remaining grounds in the order submitted by the Commission.
1.      The third ground of appeal
25.      The third ground of appeal relates to the application of the criteria arising from paragraph 41 of the judgment in Bronner (‘the Bronner test’) to assess the alleged abusive refusal to supply on the Romanian Pipeline 1 found in the contested decision. The General Court held that the Commission applied the Bronner test correctly in assessing
Bulgargaz’s conduct on the market for gas capacity services on the Romanian Pipeline 1.
(a)    Arguments of the parties
26.      This ground of appeal can be divided into two parts. First, the Commission argues that the General Court misinterpreted the contested decision by examining the legality of the Commission’s assessment of Bulgargaz’s conduct concerning access to the Romanian Pipeline 1 in the light of the Bronner test. In so doing, the General Court failed to consider that the Commission’s finding of an abuse as regards access to the Romanian Pipeline 1 was not based on a classic refusal to supply but rather on the more specific finding of abusive capacity hoarding (paragraph 279 of the judgment under appeal). Secondly, the Commission disputes the general observation that the Bronner test is relevant in a situation, such as that in the present case, where the undertaking involved is not the owner of the infrastructure at issue (paragraphs 268,
270, 279, 284, 285 and 289 to 296 of the judgment under appeal).
27.      The BEH Group submits that the third ground of appeal is inadmissible and disputes the Commission’s arguments.
(b)    Assessment
(1)    Preliminary observations regarding the Bronner test
28.      The problems associated with the applicability and application of the Bronner test  have been discussed in a number of recent judgments of the Court, (5) which have provided the opportunity to elucidate
its scope.
29.      First, the Bronner test presupposes the presence of two elements, namely: (i) an undertaking in a dominant position on a market, and (ii) the existence of an ‘essential’ infrastructure
which is owned by that undertaking and which it has developed for its own needs. (6) In paragraph 41 of the Bronner judgment, the Court set out the three criteria for a finding of abuse of
the dominant position:
(i) indispensability of the infrastructure; (ii) likely elimination of all competition on the part of the entity applying for access;
and (iii)
lack of objective justification for such a conduct. (7)
30.      Secondly, the Bronner test is intended to reconcile divergent interests, namely, on the one hand, respect for the dominant undertaking’s right to contract and its property rights and, on the other hand, the implementation of the requirements of undistorted competition. It follows from the foregoing that, as the Court has recently emphasised in its judgment in
Lukoil, it is, in particular, the need for undertakings in a dominant position to continue to have an incentive to invest which justifies applying the Bronner test  where an undertaking in a dominant position has developed infrastructure for the needs of its own business and, moreover, owns that infrastructure. Since those two criteria are cumulative, it is sufficient for one of them not to be fulfilled in order for the Bronner test  to be inapplicable. (8)
31.      It is precisely on the interpretation of those two criteria that this third ground of appeal is based. (9)
32.      The first criterion, relating to the development of the infrastructure for the needs of the business of the dominant undertaking concerned, by means of its own investments, follows logically from the essential objective pursued by the Bronner test, namely to preserve the incentive to invest in efficient facilities for such undertakings. (10)
33.      In its recent judgment in
Lukoil, the Court clarified that the assessment of this first criterion is founded on the actual ownership or exclusive control of the infrastructure, not on the identity of its creator or initial developer. In that regard, the Court stated that, provided that the exclusive rights to a facility were acquired by the dominant undertaking at a price and under conditions resulting from a competitive procedure, that facility is akin to a facility created or developed by that undertaking. (11)
34.      With regard to the second criterion, the Court has ruled that, as long as the dominant undertaking does not enjoy full decision-making power with regard to the access to that infrastructure, its situation cannot be regarded as analogous to that of the undertaking in the case that gave rise to the judgment in
Bronner. Therefore, where a dominant undertaking, which is not the owner of the infrastructure concerned, enjoys exclusive rights which confer on it a decision-making autonomy allowing it
fully to control access to that infrastructure, the latter infrastructure must be treated in the same way as infrastructure owned by that undertaking. (12)
35.      Furthermore, the Court has also stated that the imposition of a regulatory obligation on the dominant undertaking to grant access to the infrastructure in question has the consequence that the dominant undertaking cannot actually refuse to give access to that infrastructure, without prejudice, as appropriate, to its decision-making autonomy in relation to the conditions for such access. In
such situation, the criteria established in the judgment in
Bronner are not applicable. (13)
36.      It is in the light of those considerations that the third ground of appeal should, in my view, be assessed.
(2)    The first part of the third ground of appeal
37.      The Commission argues, in essence, that the General Court failed to take into account the explanations set out in the contested decision, according to which the alleged infringement was a specific sub-form of abuse of dominance, namely, capacity hoarding on the Romanian Pipeline 1, for which it is irrelevant to examine whether individual requests for access from third parties were made to the dominant undertaking concerned. To that extent, the General Court misconstrued the contested decision and did not assess its legality under the right standard by applying the Bronner test  in a non-nuanced and formalistic way.
38.      The BEH Group disputes the admissibility of those arguments, submitting that the operative part and reasons of the contested decision explicitly found that the case-law on refusal to supply was the relevant legal framework, on the basis of which the conduct regarding
the Romanian Pipeline 1 had to be assessed. In those circumstances, the appeal should not rewrite the contested decision by arguing that it was in fact applying a different legal standard.
39.      I observe that, by the first part of the third ground of appeal, the Commission
seeks only to demonstrate that the General Court incorrectly interpreted the contested decision and, more specifically, distorted the legal standard
on the basis of which the Commission assessed the conduct in question relating to the access to the Romanian Pipeline 1. In that regard, it should be noted that the Court has already held that such an interpretation constitutes an admissible question of law at the appeal stage. (14) This argument can, therefore, not be shielded from review by the Court and should
be allowed and examined.
40.      Turning to the substance, first, I note that, in paragraph 254 of the judgment under appeal, the General Court stated that it is apparent from recitals 532 and 549 to 564 of the contested decision that the Commission assessed the validity of Bulgargaz’s conduct on the market for capacity services on the Romanian Pipeline 1 in the light of the case-law resulting from paragraph 41 of the judgment in Bronner and also from paragraph 73 of the judgment in RTE v Commission. (15) The Commission does not contest this finding in the present appeal.
41.      Secondly, with regard to the Commission’s assertion that the contested decision applied a nuanced form of the criteria set out in the Bronner
test, it should be noted that the alleged abuse of a dominant position in relation to the Romanian Pipeline 1 is the subject of Section 6.2.4.6 of the contested decision.
42.      In the first paragraph of that section (recital 532), the Commission states, without any possible ambiguity in the wording used, that the practice of ‘capacity hoarding’ alleged against Bulgargaz will be analysed by applying the relevant case-law, referring expressly to paragraph 41 of the judgment in Bronner
which, as already stated in point 29 of the present Opinion, sets out three criteria which essentially make up the Bronner test.
43.      The Commission maintains, without really explaining how, that those criteria were nuanced in
recitals 550 to 552.
However, those recitals must necessarily be read and understood in the light of the preceding ones. Recital 549 of the contested decision very clearly specifies that recitals 550 to 558 aim to demonstrate,
‘in line with the applicable case-law’, (16) that conditions, corresponding to the three criteria set out in paragraph 41 of the judgment in Bronner,
to which the Commission expressly refers, are satisfied.
That reference is not disputed.
In that vein, Section 6.2.4.6 of the contested decision comprises three subsections, aimed at examining the BEH Group’s conduct regarding the access to the Romanian Pipeline 1, which correspond exactly to those three criteria.
44.      In addition, the operative part of the contested decision expressly follows the logic of the abovementioned reasons, since it is clear from Article 1 that the BEH Group ‘have committed a single and continuous infringement of Article 102 [TFEU] by refusing third-party access to … the Romanian … Pipeline 1 …’.
45.      Moreover, the Commission’s argument is somewhat contradictory since, in paragraph 36 of its reply, it states that ‘in any event, while demonstrating that also the criteria set out in the judgment in
Bronner were fulfilled (as far as not inappropriately tightened on the basis of [the judgment in] Generics
[(UK) and Others] …), the [contested decision] includes all elements that demonstrate that the general conditions for finding of an exclusionary abuse … are fulfilled’. Furthermore, during the hearing, the Commission maintained its position that the contested decision initially considered that the criteria set out in the judgment in
Bronner were met. In those circumstances, it cannot reasonably be maintained that the Bronner test  was not the legal standard applied by the Commission to assess the BEH Group’s conduct regarding the access to the Romanian Pipeline 1 in the contested decision.
46.      Lastly, it should be recalled that, in its judgment in
Intel v Commission,
the Court did, in essence, set aside the General Court’s judgment on the grounds that the General Court had wrongly failed to take into consideration the applicant’s arguments seeking to demonstrate that the test applied by the Commission was wrong. (17) Therefore, in so far as the BEH Group did contest the use of the
Bronner test in the contested decision before the General Court, that court cannot be criticised for having examined its relevance in the judgment under appeal.
47.      In view of the above, I consider that, regarding the wording and the context described in the contested decision, the General Court was correct in holding that the Commission had examined the conduct of the BEH Group regarding the access to the Romanian Pipeline 1 in the light of the criteria set out in paragraph 41 of the judgment in Bronner and that it was therefore appropriate to assess the legality of the contested decision taking that test into account. Consequently, this argument from the Commission should be rejected.
(3)    The second part of the third ground of appeal
48.      The second part of the third ground of appeal concerns the applicability of the Bronner test  to the present case. The Commission submits that the General Court erred in considering that the conduct of Bulgargaz concerning access to the Romanian Pipeline 1 had to be examined in the light of the criteria laid down in paragraph 41 of the judgment in
Bronner.
(i)    Admissibility
49.      The Commission’s argument raises several procedural issues.
It follows from the foregoing analysis that, in the contested decision, the Commission actually considered that the conduct of the BEH Group in relation to access to the Romanian Pipeline 1 had to be examined in the light of the Bronner test. Similarly, in the proceedings before the General Court which led to the judgment under appeal, the applicability of those criteria was clearly disputed by the applicants, while the Commission defended their relevance.
50.      In those circumstances, the question arises whether the Commission may be permitted to change its position at the appeal stage.
51.      First, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, the jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas and arguments debated before the General Court. A party may not, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court. (18)
52.      In that regard, it is certainly true, as noted in point 49 of the present Opinion, that the Commission did not put forward any plea in law or argument before the General Court in order to contest the applicability of the Bronner test in the contested decision. Yet there can be no doubt that
the matter of the applicability of the Bronner test was argued
before the General Court. Also, it is clear that the Commission is contesting the legal solution given in the judgment under appeal, by criticising the interpretation adopted by the General Court on a question raised before it at the first instance. Therefore, it cannot be considered that the Commission brought before the Court a wider case than that heard by the General Court, and the third ground of appeal is, in my view, admissible to that extent.
53.      Secondly, a more delicate matter may arise with regard to
the right
to a fair trial
enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), (19) that
lies at the heart of the principle of effective judicial protection. According to the Court’s case-law, the right to a fair trial includes respect for the rights of the defence, (20) which in themselves require compliance with various procedural guarantees such as procedural fairness, (21) the principle of equality of arms, (22) and
the principle of
audi alteram partem. (23) In particular, it follows from those requirements that
the EU Courts must offer each party a reasonable opportunity to present its case in conditions that do not place it in a clearly less advantageous position by comparison with its opponent. (24) In the present case,
it might be questioned whether the substantial change in the Commission’s position between the two stages of the legal proceedings regarding the applicability of the Bronner test did undermine the opportunities given to the BEH Group to exercise its rights of defence under satisfactory conditions.
54.      In that regard, it is true that, by definition, the BEH Group based its arguments during the administrative procedure and before the General Court on the premiss that the Commission considered that the Bronner test was the relevant legal test to apply for assessing the BEH Group’s conduct
concerning access to the Romanian Pipeline 1. Nevertheless, I note that
it did not prevent the BEH Group from addressing the substance of the applicability of the Bronner test
at each stage of the administrative and judicial procedure. Therefore, it is hard to maintain that the BEH Group could not address the relevant matters of fact and law which determined the outcome of the procedure. In any case, I also note that
the BEH Group does not put forward any argument capable of
establishing that it was placed in a clearly less advantageous position by comparison with that of the Commission. In such circumstances, I consider that the change in the Commission’s position between the two stages of legal proceedings did not infringe the BEH Group’s rights of defence.
55.      Thirdly and lastly, it might be argued that such a change in the Commission’s position infringes, in more abstract terms, principles that are described in different ways but all raise the question of the honest conduct of legal proceedings, such as the
principle of good faith or
the principle of nemo potest venire contra factum proprium, also known as venire contra factum proprium non valet.
56.      As regards the principle of good faith,(25) I note that the EU judicature has never enshrined such a principle in procedural terms in appeal proceedings.
In any case, a breach of good faith could hardly be established in the present case, as the Commission provides reasons for its position that
the Bronner test was, ultimately, not applicable to the situation examined in the contested decision because of the clarifications that emerged from the judgment in
Lietuvos geležinkeliai v Commission,
which is posterior to the contested decision and the written procedure before the General Court in the case at first instance.
57.      According the principle of
nemo potest venire contra factum proprium a party may not dispute what it has previously accepted, failing which the appeal or ground concerned is inadmissible. (26) However, this principle
should not be understood as completely preventing a party from altering its argumentation depending on the circumstances of each case. In this regard, as is apparent from point 56 of the present Opinion, the Commission justifies the alteration of its position concerning the applicability of the Bronner test
by relying on clarifications that have emerged from the Court’s recent case-law. In addition, I note that it is clear from points 51 to 55 of the present Opinion that such an alteration did not infringe
the Rules of Procedure of the Court of Justice or the BEH Group’s rights of defence.
I am therefore of the opinion that
the principle of nemo potest venire contra factum proprium
is not applicable in the present case.
58.      In view of the foregoing, I consider that the second part of the third ground of appeal is admissible.
(ii) Substance
59.      Turning to the merits of the ground of appeal, the Commission’s arguments are, in essence, based on two main foundations, namely, first, the fact that the Romanian Pipeline 1 was not financed by Bulgargaz’s own investments but by public funds and Bulgargaz was not the owner of the pipeline; and, secondly, the fact that, following the entry into force of Directive 2009/73/EC, (27) Bulgargaz no longer enjoyed the freedom of operation conferred on it by the contract it had concluded for the use of that gas pipeline.
As noted in points 25 to 36 of the present Opinion, the Court’s recent case-law provides clarifications as to how to address both of those matters.
60.      By its first argument, the Commission submits that the Bronner test is not applicable in a situation such as that in the present case, where the infrastructure involved has been financed not by means of investments specific to the dominant undertaking but by means of public funds and that undertaking is not the owner of that infrastructure.
61.      As stated previously in point 33 of the present Opinion, it is clear from the judgment in
Lukoil
that the decisive factor to be taken into account is the conditions in which the dominant undertaking acquired that infrastructure, in particular the price paid and whether such acquisitions resulted from a competitive procedure,
as well as the existence of exclusive rights allowing it fully to control its access. (28)
62.      In the present case, the Commission has not put forward any argument capable of establishing that the price paid by Bulgargaz in return for the use of the Romanian Pipeline 1 and the procedure that led it to enjoy an exclusive right over it did not result from a competitive procedure. Consequently, the Commission’s statement that the Bronner test was not applicable, on the sole ground that the Romanian Pipeline 1 had been financed by means of public funds, is not sufficient to establish that the General Court committed an error of law by applying the Bronner test, even though
Bulgargaz did not develop the Romanian Pipeline 1.
63.      Next, as emphasised in point 34 of the present Opinion, in order to determine if the Bronner test is applicable in such a situation, it has to be established whether the dominant undertaking fully controls the access to the infrastructure.
64.      In that regard, the Commission submits that the applicable regulatory regime in this case provided for the release and reallocation of consistently unused capacity and, in principle, for non-discriminatory third-party access, which would tend to indicate that Bulgargaz did not fully control the access to the Romanian Pipeline 1.
65.      In the judgment in
Lietuvos geležinkeliai
v Commission, the Court stated that the Bronner test is not applicable when the dominant undertaking is subject to an obligation to give access to its infrastructure. (29)
66.      In the present case, as acknowledged by the Commission, it has been established that the obligation set out in Article 16(3)(a) of Regulation (EC) No 715/2009 (30) has been addressed to the TSO, namely
Transgaz,
and not to Bulgargaz, who is the undertaking in control of the Romanian Pipeline 1. Furthermore, it is clearly stated in footnote 589 to
the contested decision that ‘no such regulatory obligation exists as concerns Bulgargaz’[s] capacity bookings on the Romanian … Pipeline 1’.
67.      In those circumstances, I consider that, contrary to the arguments put forward by the Commission, the fact that the Romanian Pipeline 1 was financed by public funds and not by Bulgargaz, and that a regulatory obligation to grant third-party access was imposed on the TSO, are not such as to establish that the General Court erred in law in holding that the BEH Group’s conduct in relation to access to the Romanian Pipeline 1 fell to be examined in the light of the Bronner test.
68.      In the light of those considerations, I consider that the third ground of appeal should be rejected.
2.      The first and second grounds of appeal
69.      The first and second grounds of appeal relate to the General Court’s assessment of an alleged refusal by Bulgargaz to return capacity as requested by Transgaz during a meeting held on 24 January 2011, and an alleged refusal to supply which took the form of a failure to reply to a letter sent by C Energy on 26 September 2013 (‘the letter of 26 September 2013’). In essence, the General Court found that, in order to prove that that kind of refusal constituted an abuse of a dominant position, the Commission had to demonstrate that those refusals are capable of producing exclusionary effects that are not purely hypothetical, including proof that the potential competitor has, at the very least, a sufficiently advanced project to enter the market in question within such a period of time as would impose competitive pressure on the operators already present. Those statements are based on the application of the judgments in Generics (UK) and Others (31) and in Lundbeck v Commission. (32)
(a)    Arguments of the parties
70.      The Commission submits, in essence, that the General Court erred in law, when, in examining whether the Bronner test
had been met, it relied on the Court’s case-law relating to the assessment under Article 101 TFEU of pay-for-delay
agreements in the pharmaceutical sector to require the Commission to prove that a potential competitor has a sufficiently tangible project and that it has taken sufficient preparatory steps to enter the relevant market within such a period of time as to impose competitive pressure on the dominant undertaking (paragraphs 281, 448 and 449 of the judgment under appeal). According to the Commission, such a standard is
not applicable to every type of market. Overgas supports the Commission’s arguments, taking the view that the General Court in fact added a criterion which is irreconcilable with the Court of Justice’s case-law. More specifically, regarding the letter of 26 September 2013, the Commission maintains that the General Court distorted evidence by ruling that that letter did not constitute a sufficiently precise and serious request for access to the Romanian Pipeline 1 (paragraphs 459 and 463 of the judgment under appeal).
71.      The BEH Group contends
that the General Court correctly applied the recent case-law of the Court of Justice by relying on the absence of preparatory steps taken by C Energy to determine whether it had a sufficiently specific plan to enter the Bulgarian gas supply markets. In that regard, first, the BEH Group refers, in particular, to the judgment
of 21 December 2023, European Superleague Company, (33) from which it follows, in paragraph 130, that the existence of an abuse of a dominant position must be established,
on the basis of specific, tangible points of analysis and evidence, that the conduct in question is capable of producing exclusionary effects. Secondly, the BEH
Group maintains that, by stating that C Energy’s plan in the letter of 26 September 2013 was only preliminary, the General Court did not exceed the limits of a reasonable assessment.
In addition, regarding the
meeting held on 24 January 2011, the BEH Group submits that the Commission only challenges elements of the judgment under appeal that were obiter dicta, which is ineffective.
(b)    Assessment
72.      The first and second grounds of appeal raise, in essence, the question of which elements should be taken into account in assessing, first, if the applicant requesting access to an essential facility may be considered a potential competitor and, secondly, the seriousness as well as the precision of such a request, which externalises its wish to enter the relevant market.
(1)    Concept of potential competitor
73.      In accordance with settled case-law, an undertaking is a potential competitor on a specific market when it has real and actual possibilities of joining that market and competing with one or more other undertakings already present. (34) That must be
substantiated by a body of consistent facts taking into account the structure of the market and the economic and legal context within which it operates. (35) At the current juncture, however,
that test has been applied mainly in cases concerning the application of Article 101 TFEU.
(i)    Potential competitor in the context of Article 102 TFEU
74.      Abuse of a dominant position under Article 102
TFEU is assessed first and foremost in terms of the capacity that an undertaking’s dominant position gives it to ‘prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers’. (36) Consequently, the abusive nature of such a practice must be assessed primarily in the light of its effects on competing undertakings. (37)
75.      In the context of Article 101
TFEU, it has long been established in the Court’s case-law that the alleged anticompetitive nature of a practice can also be assessed in the light of its effects on potential competitors. (38) In my view, this aspect is also
relevant in relation to Article 102 TFEU, as it is generally accepted that Articles 101 and 102 TFEU must be interpreted consistently. (39) Moreover, the Court has stated that conduct may be categorised as ‘abuse of a dominant position’ not only where it has the actual or potential effect of restricting competition on the merits by excluding equally efficient competing undertakings from the market(s) concerned, but also where it has been proven to have the actual or potential effect – or even the object – of impeding potentially competing undertakings at an earlier stage, through the placing of obstacles to entry or the use of other blocking measures or other means different from those which govern competition on the merits, from even entering that or those market(s). (40)
76.      It follows from the foregoing considerations that the abuse of a dominant position by an undertaking may result not only from an infringement of competition currently exercised by another undertaking, but also from an infringement of competition that an undertaking that is not yet present on the relevant market could potentially exercise. Thus, it should be borne in mind that the concept of abuse of a dominant position is intended to penalise the abusive conduct of a dominant undertaking which, by definition, acts on a market where the structure of competition is already weakened because of its presence. (41) In such a context, ensuring that the conditions for access to the relevant market are not insurmountable for potential competitors, at least due to a possible abuse of the dominant operator’s position on the relevant market, is crucial to maintaining the possibility of future actual competition on that market.
77.      In any event, I observe that it is, for example, clear from paragraph 85 of the judgment in
Lietuvos geležinkeliai v Commission, (42) which specifically concerned the assessment of the abusive nature of a practice by a dominant undertaking under Article 102 TFEU, that the conduct in question was examined in the light of the effects it had on the dominant undertaking’s potential competitor. (43)
(ii) Assessment of the status of a potential competitor
78.      As observed in point 73 of the present Opinion, an undertaking can be considered a potential competitor of those already present on a
market when it has real and actual possibilities of joining it. That statement must be understood as ruling out the possibility that a relationship of potential competition could arise solely from a purely hypothetical possibility of such entry.
79.      In order to apply that test, a set of objective factors to be considered
has been gradually established, including, in particular, the fact that the entry to the relevant market must correspond to a viable economic strategy for the undertaking concerned. (44) In other words, the alleged potential competitor must actually be able to offer its services in a concrete manner on the market in question, under credible economic conditions. In that respect, it is particularly relevant to examine whether there are insurmountable barriers to entry to the
market that would rule out any potential competition. (45) Implicitly, those considerations also raise the question of the timeframe within which the undertaking concerned will be able to exert competitive pressure on the other undertakings. This demonstration must not be based on a mere hypothesis, but must be supported by factual evidence or an analysis of the structures of the relevant market. (46)
80.      In addition to the abovementioned objective factors, it has long been accepted that taking into account subjective factors such as the concerned undertaking’s intentions may also be relevant. (47)
81.      In that regard, I note that the Court of Justice recently endorsed the General Court’s approach, which essentially stated that
while the intention of an undertaking to enter a market may be of relevance in order to determine whether it can be considered to be a potential competitor in that market, nevertheless
‘the essential factor on which such a description must be based is whether it has the ability to enter that market’, adding that the perception on the part of the operator present on the market of the potential competition exerted by a third-party undertaking can be regarded as a merely supplementary factor compared with the criteria relating to the ability and the intention to enter the market. (48)
82.      In the context of the present appeal, the parties express opposing views regarding the relevance of certain factors, both objective or subjective in nature, emerging from the Court’s case-law for the purposes of assessing the status of potential competitor, in the sense described in points
78 to 81 of the present Opinion, namely the judgments in
Generics (UK) and Others and in  EDP – Energias de Portugal and Others.
(iii) Recent case-law developments
83.      In its judgment in
Generics (UK) and Others, the Court clarified the conditions under which, on the market for medicines, a manufacturer of generic medicines must be regarded as a potential competitor of a manufacturer of originator medicines, who is the holder of pharmaceutical patents for the medicine concerned. The judgment was analysed extensively in the Opinion in EDP – Energias de Portugal and Others.
(49) For that reason, I will only briefly summarise the elements that are essential for
a proper assessment of the present appeal.
84.      It can be inferred from the judgment in
Generics (UK) and Others that,
as a starting point, general criteria, as summarised in points 78 to 81 of the present Opinion,
apply. (50) Subsequently, the Court endeavoured to nuance that methodology in the specific context of the market of medicine containing an active ingredient that is in the public domain. In that
context, it stated that it was necessary to determine, first, whether the undertaking concerned had taken sufficient preparatory steps to enable it to enter that market within such a period of time as would impose competitive pressure on the dominant undertaking. Within that framework, it was relevant to consider, in particular, the preparatory and legal steps undertaken by the alleged potential competitor. The objective was to establish whether that undertaking had a firm intention and an inherent ability to enter that market (paragraphs 43 and 44). Secondly, it was also necessary to determine whether the relevant market had insurmountable barriers to entry (paragraph 45). Thirdly, the Court noted various ‘additional factors’ that could be taken into account
(paragraphs 54 to 57).
85.      However, the question whether the various factors highlighted by the Court in that judgment may be transposed to a context other than that of the relevant market in that case remained open.
86.      The applicable methodology was clarified in the judgment EDP – Energias de Portugal and Others. First, the Court reiterated the general considerations that had been set out in paragraphs 36 to 39 of the judgment in
Generics (UK) and Others, as referred to in point 84 of the present
Opinion. Secondly and most importantly, the Court made clear that the standard of proof required in the judgment in
Generics (UK) and Others cannot be regarded as being of general application, as it is based on an analysis specific to the markets for medicines (paragraph 65). More specifically, it stated expressly that the preparatory steps referred to in the context of that market cannot be an autonomous requirement for the purpose of demonstrating whether potential competition exists and are relevant only in so far as they may be appropriate for demonstrating that the undertaking concerned has real and concrete possibilities of entering the market concerned (paragraph 75). It follows that the use of general criteria for determining the ability and preparedness of an undertaking to qualify as a potential competitor must always be adapted in the light of the specific market in question.
(2)    Request for access to an essential infrastructure
87.      The seriousness of the request for access to an essential infrastructure specifically reflects an undertaking’s intention to enter a given market. It is an important matter, as it determines the existence of the obligation incumbent on the dominant undertaking to provide an answer to such a request. The case-law has not yet systematised the factors to be taken into account in assessing this aspect.
Nevertheless, I consider that the seriousness of such a request can be established by examining, in particular, the context in which it was formulated,
its terms and wording, its precision, the number and intensity of the contacts between the various parties, (51) and the conduct, nature and characteristics of the requesting undertaking.
88.      Specifically, in the context where a dominant undertaking controls the access to an essential infrastructure, in view of the relevant factors set out in the previous point of the present Opinion, a request addressed by an undertaking fulfilling the conditions for
being considered as a potential competitor is in itself a serious enough indication of the obligation to respond, as long as the request is sufficiently precise and clear. In that regard, it should be borne in mind that any dominant undertaking has a special responsibility not to allow its conduct to impair genuine, undistorted competition on the internal market. (52)
89.      In the specific context of the present case, it should be remembered that the General Court assessed an alleged refusal by Bulgargaz to return capacity following requests allegedly made during a meeting held on 24 January 2011 and by means of the letter of 26 September 2013. It follows from the foregoing that that assessment had to be carried out taking into account, first, whether those requests had been made by undertakings that could be considered potential competitors, capable and willing to enter the Bulgarian gas supply markets, and, secondly, whether those requests could be considered a sufficiently serious expression of their intention to enter that market.
(3)    Application in the context of the appeal
90.      It is in the light of the considerations set out in point 89 of the
present Opinion that it is appropriate to assess whether the General Court was correct in holding that the Commission was wrong in classifying as a refusal to supply, first, the fact that Bulgargaz did not return capacity after its meeting with Transgaz on 24 January 2011 and, secondly, Bulgargaz’s failure to reply to the letter of 26 September 2013.
91.      First, the meeting held on 24 January 2011 is examined by
the General Court in paragraphs 273 to 288 of the judgment under appeal. It explains that, during that meeting, the Romanian gas supplier Romgaz informed BEH of its intention to set up a joint venture with two other third-party undertakings in order to build a terminal in Constanța (Romania), and that Transgaz raised the question of possibly providing part of the unused capacity on the Romanian Pipeline 1 (paragraph 277 of the judgment under appeal). The Commission specifically challenges paragraph 286 of the judgment under appeal, where the General Court held that even if the Transgaz’s question constituted a request for the return of capacity, nothing in the file established that the purpose of the
Constanța terminal was to enter the Bulgarian gas markets.
92.      The General Court
noted, in essence, that the exclusionary effects of an alleged abusive practice under Article 102
TFEU must not be purely hypothetical (paragraph 280 of the judgment under appeal). It added that, in order to prove that a refusal of access fulfils that condition, the Commission must therefore prove, first, that the potential competitor has, at the very least, a sufficiently advanced project to enter the market in question within such a period of time as would impose competitive pressure on the operators already present (53)(paragraph 281 of the judgment under appeal) and, secondly, that the request for access reflects that project sufficiently precisely for the dominant undertaking to be in a position to assess whether it is required to respond to it (paragraph 282 of the judgment under appeal). (54)
93.      It is apparent from the previous point of the present Opinion that the General Court’s
reasoning was based in part on judgments relating to the preparatory steps to be adopted in order to enable entry into the relevant medicine market. As stated in point 86 of the present Opinion, this reasoning is erroneous, as that case-law cannot be applied in the context of other markets, such as the gas market. At the same time, the Commission does not dispute the point that, according to the General Court, it did not establish in the contested decision that the purpose of the Constanța terminal was
to enter the Bulgarian gas markets. As is clear from the analysis of the third plea, the Commission decided to assess Bulgargaz’s conduct on the market for capacity services on the Romanian Pipeline 1 in the contested decision by applying the Bronner test. In view
of the first criterion
for that test, under which the refusal to grant third-party access to an essential infrastructure must be likely to eliminate competition on the affected market on the part of the undertaking requesting access, the identified error regarding the applicable test must necessarily be considered ineffective.
94.      Secondly, regarding the letter of 26 September 2013, the General Court analysed that element of the BEH Group’s
conduct in paragraphs 445 to 469 of the judgment under appeal.
95.      In that regard, relying on paragraphs 43 of
the judgment in
Generics (UK) and Others and paragraph 57 of the judgment in
Lundbeck v Commission, the General Court stated that, in the circumstances of the judgment under appeal, ‘the Commission had to demonstrate that C Energy Group had the firm determination and the very capacity to enter [the relevant] markets and that, inter alia, it had taken sufficient preparatory steps to enable it to enter those markets within such a period of time as would impose competitive pressure on Bulgargaz’ (paragraph 448 of the judgment under appeal). In that context, the General Court concluded that the letter of 26 September 2013 did not permit the inference that C Energy Group had the firm determination and the actual
capacity to supply gas in Bulgaria. On the contrary, according to the General Court, that letter demonstrated that ‘on that date, that undertaking had not taken sufficient preparatory steps to enable it to access the Bulgarian gas supply markets within such a period of time as would impose competitive pressure on Bulgargaz’ (paragraph 460 of the judgment under appeal). It was in the light of those considerations that it held, in paragraph 463 of the judgment under appeal, that Bulgargaz was not required to respond to that letter.
96.      In view of the above, it is clear that the General Court based its disputed conclusion primarily, if not solely, on the absence of sufficient preparatory steps to enable C Energy Group to enter the relevant markets, in the sense given to such ‘preparatory steps’ in the judgment in
Generics (UK) and Others and  Lundbeck v Commission.
97.      However, as stated in point 86 of the present
Opinion, the standard of proof required in the judgment in
Generics (UK) and Others cannot be regarded as being of general application.
98.      Furthermore, and taking into account the considerations summarised in points 74 to 82 of the present Opinion, I note that, regarding the relevant passages of the judgment under appeal, it is unclear whether the General Court carried out a separate analysis of, first, the criterion of ‘potential competitor’ and, secondly, the seriousness of the requests made during the meeting of 24 January 2011 and in the letter of 26 September 2013, in order to determine whether it was appropriate to respond to the requests made on those occasions.
99.      In any event and for the reasons just mentioned, I consider that the General Court was incorrect in requiring the Commission to prove that C Energy had adopted sufficient preparatory steps to enter the relevant markets.
In so doing, the General Court confused the criteria that should be applied when assessing the existence of ‘potential competition’, as set out in paragraphs 36 to 39 of the judgment in Generics (UK) and Others, with the type of evidence that must be provided in order to determine whether such criteria are met, and which may vary depending on the type of market in question.
100. Instead, the General Court should, first, have determined whether the undertaking concerned could be considered a potential competitor by assessing its
actual possibilities of joining the Bulgarian gas markets, relying on the objective and subjective evidence relevant in the specific context of those markets. Secondly, it should have assessed the seriousness of the request for access to the Romanian Pipeline 1 relying on the elements described in points 87 and 88 of the present Opinion. In view of the foregoing, I consider that the first and second grounds of appeal should be upheld in so far as the General Court applied the wrong legal test, in requiring the Commission to prove that a
third-party requesting access to the Romanian Pipeline 1
had fulfilled the criteria derived from the judgment in Generics (UK) and Others.
3.      The fourth and the fifth ground of appeal
101. The fourth ground of appeal relates to the General Court’s assessment of
the BEH Group’s complaint by which it submitted that the requests for access to the Romanian Pipeline 1 made by Overgas in 2010 and 2011 were addressed to Transgaz and, therefore, the way in which those requests were dealt with could not be attributed to it. The fifth ground of appeal relates to the assessment of the length of a contract for access to the Romanian Pipeline 1 concluded on 31 January 2013 between Bulgargaz and Overgas (‘the access agreement’).
(a)    Arguments of the parties
102. By the fourth ground of appeal, the Commission challenges paragraph 334 of the judgment under appeal. It considers that the General Court misinterpreted the contested decision by ruling that it imputed to Bulgargaz a rejection of Overgas’s request that was made to Transgaz for access to the Romanian Pipeline 1. By the fifth ground of appeal, it challenges the conclusion set out in paragraphs 419 and 443 of the judgment under appeal.
The General Court held, first, that the Commission did not prove that the initial three-month duration of the access agreement had the ability to produce exclusionary effects on the Bulgarian gas supply markets by making it more difficult for Overgas to enter those markets and, secondly, that the conditions for the extension of that contract placed Overgas in a position of uncertainty. More specifically, the Commission adds that the General Court could not require it to provide evidence contemporaneous with the negotiation capable of proving that Overgas had, at that time, considered that that period impeded its ability to conclude contracts with potential customers.
103. The BEH
Group
disputes the Commission’s arguments.
(b)    Assessment
(1)    Admissibility
104. By the first part of the fifth ground of appeal, the Commission alleges an error of law concerning the assessment of the initial three-month duration of the access agreement and its terms of renewal.
105. In that
regard, I note that it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as from Article 168(1)(d) of the Rules of Procedure of the Court of Justice, that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible. (55)
106. With respect to
the first part of the fifth ground of appeal,
the Commission merely reproduces certain extracts from the contested decision in an abstract manner, without explaining why it considers that the General Court erred in its assessment when examining them. I therefore consider that that part of the argument of the fifth ground of appeal does not comply with the requirements set out in point 105 of the present Opinion and should be dismissed.
(2)    Merits
107. By the fourth ground of appeal, the Commission submits, in essence, that the General Court held, incorrectly, that the contested decision attributed the responsibility for rejecting requests for access to the Romanian Pipeline 1
addressed to Transgaz by Overgas in 2010 and 2011 to the BEH Group. By the second part of the fifth ground of appeal, the Commission submits that the General Court incorrectly based its conclusion that the Commission had not demonstrated that the initial duration of the access agreement had the ability to produce exclusionary effects on the fact that the Commission did not provide documentary evidence contemporaneous with the negotiation of that agreement.
108. I consider that both arguments are based on an incorrect reading of the judgment under appeal.
109. First,
the complaint upheld by the General Court in paragraph 334 of the judgment under appeal concerned the manner in which Overgas’s requests for access to the Romanian Pipeline 1 in 2010 and 2011 were generally dealt with, and not whether their rejection could be attributed directly to Bulgargaz. Secondly, the General Court’s
finding
regarding
the initial length of the access agreement was not based solely on the lack of contemporaneous evidence, but also on a set of factual findings that the Commission does not dispute. Furthermore, given the undisputed statement that these
findings were closely linked to Overgas’s complaint about that length, it does not appear excessive for the General Court to require evidence, including – but not restricted to – evidence contemporaneous with the negotiation of that agreement and capable of establishing those findings.
110. In view of the foregoing, I consider that the fourth and fifth grounds of appeal should be dismissed.
4.      The sixth ground of appeal
111. The sixth ground of appeal relates to the renegotiation of the 2005 Agreement, setting out the conditions for using the Romanian Pipeline 1, through three sets of arguments relating to:
(i) the intergovernmental nature of that agreement; (ii) the probative value of Bulgargaz’s conduct in establishing a refusal of access to the Romanian Pipeline 1; and (iii) the length of the renegotiations.
(a)    Arguments of the parties
112. The Commission submits, first, that the judgment under appeal is vitiated by a lack of reasoning.
Secondly, the Commission submits that the General Court distorted the contested decision by stating that that decision incorrectly found that the intergovernmental discussions carried out as part of the renegotiation of the 2005 Agreement constituted a refusal to grant access to the Romanian Pipeline 1 and imputed those discussions to Bulgargaz (paragraphs 483 and 687 of the judgment under appeal). Thirdly, the Commission disputes the fact that the intergovernmental nature and the purpose of that renegotiation could call into question the BEH Group’s liability for not releasing unused capacity (paragraphs 511, 542, and 529 to 539 of the judgment under appeal). Fourthly, the Commission argues that the General Court erred in law in finding that Bulgargaz’s conduct during the renegotiation of the 2005 Agreement did not infringe Article 102 TFEU (paragraphs 547, 549, 572, 688 and 689 of the judgment under appeal). Fifthly, the Commission submits that the General Court erred in law in finding that the BEH Group was not responsible for the length of the renegotiation (paragraphs 650 to 687 of the judgment under appeal).
113. The BEH Group disputes the Commission’s arguments.
(b)    Assessment
(1)    Preliminary observations regarding the effectiveness of the sixth ground of appeal
114. It is, in essence, stated in paragraph 489 of the judgment under appeal that it was not apparent from the file that, during the discussions on the renegotiation of the 2005 Agreement, there were specific requests made by third parties to the BEH Group for access to the Romanian Pipeline 1, or that Transgaz had informed or forwarded such requests to the BEH Group. It is also noted that there was no evidence that Transgaz itself planned to enter the Bulgarian gas supply markets.
115. In that context, it should be borne in mind, first, that the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts or evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (56).
116. Secondly, in the contested decision, the Commission chose to examine Bulgargaz’s conduct relating to access to the Romanian Pipeline 1 by applying the criteria set out in paragraph 41 of the judgment in Bronner
in order to determine whether that conduct was compatible with Article 102 TFEU. (57) One of those criteria is that the refusal to grant access must be likely to eliminate all competition in the market in question on the part of the entity applying for access. (58) In the judgment under appeal, the General Court held that no specific request by a third party for access to the Romanian Pipeline 1 was made during the discussions on the renegotiation of the 2005 Agreement. Such a finding of fact must be considered established at the stage of the appeal. It follows that those discussions are not such as to establish an abuse within the meaning of Article 102 TFEU for the purposes of the contested decision. In other words, since it is apparent from the contested decision that Bulgargaz’s conduct was examined only in the light of the Bronner test, no abuse arising from the application of that test can be established in the absence of a specific request for access to the Romanian Pipeline 1 from an identified entity.
117. In the view of foregoing, I consider that the sixth ground of appeal is ineffective as, even if it were well founded, it could not have any actual implications for the assessment of the BEH Group’s conduct under the Bronner test.
Nevertheless, for the sake of completeness, I shall examine the substance of this ground of appeal.
(2)    Statement of reasons of the judgment under appeal
118. The Commission submits that the General Court did not explain how its reasoning regarding the eight parts of the first ‘sub-plea’ of the fourth plea in law in the judgment under appeal, specifically reviewing the discussions to renegotiate the 2005 Agreement, supported the finding that the Commission did not establish the BEH Group`s liability under Article 102 TFEU for not granting access to the Romanian Pipeline 1 to Transgaz.
119. As a preliminary point, it should be borne in mind that the statement of the reasons on which the judgment under appeal is based must clearly and unequivocally disclose the General Court’s thinking, so that the addressee can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. (59)
120. The present ground of appeal relates to the discussions on the renegotiation of the 2005 Agreement. In the relevant passages of the judgment under appeal, the General Court analysed various complaints put forward by the BEH Group. Those complaints were intended to challenge the recitals of the contested decision in which the Commission had found that Bulgargaz did not return the unused capacity of the Romanian Pipeline 1 when Transgaz requested it to do so, or had made the return of that capacity subject to conditions (paragraph 487 of the judgment under appeal). More specifically, in the context of that renegotiation, the Commission found that the conditions imposed by Bulgargaz on Transgaz, before agreeing to return the capacity on the Romanian Pipeline 1, had infringed Article 102 TFEU.
121. Therefore, in upholding the BEH Group’s arguments, the General Court accordingly reached the conclusion that the contested decision did not demonstrate that Bulgargaz’s conduct in relation to access to the Romanian Pipeline 1 constituted a refusal of access capable of falling within the scope of Article 102 TFEU. Accordingly, the General Court did not fail to state reasons on that ground and this argument should
be rejected.
(3)    Alleged distortion of the contested decision
122. The Commission appears to allege a distortion of the contested decision by arguing that, in upholding the eighth part of the first ‘sub-ground’ of the fourth ground of appeal (paragraph 687 of the judgment under appeal), the General Court considered that the discussions held in the context of the renegotiation of the 2005 Agreement in themselves constituted a refusal to grant access to the Romanian Pipeline 1.
123. The BEH Group’s argument,
summarised by the General Court in the second sentence of paragraph 483 of the judgment under appeal, and upheld in paragraph 687 thereof, sought to establish that the Commission erred in the contested decision by finding that the intergovernmental discussions relating to the renegotiation of the 2005 Agreement constituted a refusal to grant access to the Romanian Pipeline 1 and that Bulgargaz had not acted constructively during the negotiations relating to the 2005 Agreement. Consequently, it may seem that the General Court did uphold an argument to the effect that those intergovernmental discussions in themselves constituted a refusal to grant access to the Romanian Pipeline 1.
124. That passage of the judgment under appeal must be read and interpreted in context. In that regard, I note in particular that
the first sentence of paragraph 483 of that judgment states
clearly that the gist of the BEH Group’s
line of argument, in which they are supported by the Republic of Bulgaria, is to dispute the probative value of the discussions relating to the renegotiation of the 2005 Agreement.
This is confirmed by the analysis carried out
subsequently by the General Court, which basically consists in the examination of three separate complaints (60) aimed at establishing that there was nothing to suggest that an abusive refusal of access to the Romanian Pipeline 1
by the BEH Group could be inferred from those discussions.
125. In view of the foregoing, and despite the lack of clarity of paragraph 483 of the judgment under appeal, it follows that the General Court necessarily understood and analysed the eighth part of the first ‘sub-ground’ of the fourth ground of appeal as meaning that the BEH Group disputed the view, which was taken into account by the Commission in the contested decision, that its involvement in the renegotiation of the 2005 Agreement could constitute evidence of a refusal or undue delay in granting access to the Romanian Pipeline 1.
126. In that regard, I observe that, in the contested decision, the Commission undoubtedly considered that Bulgargaz’s conduct during the discussions held in the context of the renegotiation of the 2005 Agreement constituted an element to consider in characterising a refusal to grant access to the Romanian Pipeline 1 in the light of the Bronner test.
127. Consequently, the Commission’s plea alleging distortion of the contested decision should
be rejected.
(4)    Merits
128. The Commission submits three complaints aimed at demonstrating that the General Court erred in law in finding that the BEH Group’s anticompetitive conduct under Article 102 TFEU could not be established on the ground of the renegotiation of the 2005 Agreement. I shall conduct a separate examination of each of those three complaints:
(i) the alleged intergovernmental nature of the renegotiation of the 2005 Agreement;
(ii)
Bulgargaz’s conduct during the negotiation; and;
(iii) the length of the negotiation.
(i)    Alleged intergovernmental nature of the renegotiation of the 2005 Agreement
129. The Commission disputes the finding in paragraph 542 of the judgment under appeal, to the effect that the discussions on the renegotiation of the 2005 Agreement were initiated and took place at intergovernmental level and could not, therefore, be imputed to Bulgargaz. In that regard, the Commission puts forward three arguments in support of its position: the legal categorisation
of the 2005 Agreement, the purpose of the renegotiation, and the central nature of the security of gas supply in Bulgaria.
–       Categorisation of the 2005 Agreement as ‘intergovernmental’
130. In paragraphs 494 to 510 of the judgment under appeal, the General Court examined the 2005 Agreement. In paragraph 511, it found, in essence, that that
agreement was intergovernmental in nature. The Commission disputes that finding, arguing that the 2005 Agreement is a commercial agreement between private parties and, if it was mandated by the 2003 Intergovernmental Agreement, the latter did not set out any details of its content.
131. The question which arises concerns the legal nature of the 2005 Agreement and whether it can be considered to be an intergovernmental agreement. In that regard, it must be noted that intergovernmental agreements are usually defined as agreements between States, as opposed to an agreement concluded between or with individuals, associations, or public or private institutions governed by domestic law, or international organisations. (61)
132. In the present case, the reasoning which led the General Court to consider that the 2005 Agreement is intergovernmental in nature is based on, inter alia, the following considerations. First, the 2005 Agreement was concluded on the basis of the 2003 Intergovernmental Agreement, which was a key element of the cooperation between the Republic of Bulgaria and Romania in the gas sector (paragraph 502 of the judgment under appeal). Secondly, there were elements of intergovernmental cooperation in renegotiating the 2005 Agreement, as that renegotiation was initiated in the context of intergovernmental cooperation, provided for under the 2003 Intergovernmental Agreement (paragraphs 505 and 506 of the judgment under appeal). Thirdly, the renegotiation process regularly involved governmental authorities (paragraphs 506 to 510 of the judgment under appeal).
133. In view of the above, I note that the various factors considered by the General Court in establishing that the 2005 Agreement was intergovernmental in nature do not match the definition referred to in point 131 of the present
Opinion.
Furthermore, as is apparent from paragraph 14 of the judgment under appeal, the 2005 Agreement was, in
fact, a commercial contract concluded between two companies, namely Transgaz and Bulgargaz.
134. Consequently, the General Court erred in law in holding that the 2005 Agreement was intergovernmental in nature, and the Commission’s argument in that regard should
be upheld.
–       Purpose of the renegotiation and the role of Bulgargaz as a public supplier
135. In the judgment under appeal, the General Court found that the purpose of the renegotiation of the 2005 Agreement was, inter alia, to address the Commission’s concerns in the context of infringement proceedings against Romania (paragraph 528). It further noted that the security of Bulgaria’s gas supply and the importance of the Romanian Pipeline 1 had been a central concern in the renegotiation of that
agreement, which explained the high degree of involvement of the Bulgarian authorities in those discussions (paragraphs 529 to 539). The Commission maintains that those considerations cannot justify the BEH Group’s failure to comply with its obligations under Article 102 TFEU to release unused capacity on the Romanian Pipeline 1.
136. There is, however, nothing in the judgment under appeal to suggest that the General Court considered that the purpose of the renegotiation of the 2005 Agreement, namely, to address the Commission’s concerns in the context of infringement proceedings against Romania and to ensure the security of Bulgaria’s gas supply, could justify a failure by the BEH Group to comply with its obligations under Article 102 TFEU.
137. Instead, the complaints of the BEH Group regarding, first, the purpose of the renegotiation of the 2005 Agreement and, secondly, the role of Bulgargaz as a public supplier, were to dispute the probative value of the discussions relating to that renegotiation, so as to establish the alleged infringement of Article 102 TFEU. They sought principally
to demonstrate the high level of involvement and influence of the Bulgarian and Romanian authorities, and the
lesser influence of Bulgargaz.
138. Thus, it is only in that vein that the General Court upheld those complaints, with the result that the Commission’s arguments on this point should
be rejected.
139. It follows from the foregoing that, with regard to the three arguments put forward by the Commission to challenge the General Court’s assessment of the probative value of the discussions on the renegotiation of the 2005 Agreement, in view of the nature and objectives of that renegotiation, only the argument challenging the incorrect categorisation of that
agreement as ‘intergovernmental in nature’ should be upheld. However, in order for that argument to be effective, it is
still necessary to establish that Bulgargaz’s conduct during the renegotiation infringed Article 102 TFEU.
(ii) Bulgargaz’s conduct during the renegotiation
140. The General Court found that the Commission was wrong to rely on the conditions imposed by Bulgargaz before accepting the amendment of the 2005 Agreement, in order to attribute to Bulgargaz a refusal to supply (paragraphs 543 to 648 of the judgment under appeal). The judgment under appeal refers to the three conditions that had been imposed by Bulgargaz in that regard: (i) requiring that a number of documents relating to the conditions for the use of the Romanian Pipeline 1 be provided; (ii) requiring Transgaz to guarantee Bulgargaz, until the end of 2016, a certain amount of capacity on that
pipeline; and (iii) making the release of unused capacity conditional on a reduction of the fixed annual fee provided for in the 2005 Agreement (paragraph 545 of the judgment under appeal). The Commission argues that the General Court erred in law by misapplying the various exceptions – the protection of commercial interests, State action and security of supply – relied on to justify the imposition of those conditions by Bulgargaz.
–       Admissibility
141. The assessment of Bulgargaz’s conduct during the discussions on the renegotiation of the 2005 Agreement is essentially a matter of appraisal of the facts by the General Court which may not be reviewed by the Court of Justice. (62) However, in so far as the Commission alleges errors of law relating to the application of various legal criteria by the General Court, its arguments are admissible to that extent and they must therefore be examined. (63)
–       Assessment
–        The protection of commercial interests
142. In paragraphs 547 and 594 of the judgment under appeal, the General Court based itself on the judgment in
Generics (UK) and Others which states, in essence, that an undertaking in a dominant position is allowed to protect its own commercial interests if they are attacked, and can take reasonable steps as it deems appropriate to protect its commercial interests.
143. The Commission merely questions in abstract terms the reference to that exception, without explaining why it actually should be regarded as erroneous. Accordingly, its argument is based solely on the premiss that the judgment in
Generics (UK) and Others
cannot justify anticompetitive conduct. However, the judgment under appeal is not founded on such a finding. The General Court merely relies on the exception relating to the protection of commercial interests to explain why it considered that the requests made by Bulgargaz, referred to in point 140 of the present Opinion, were appropriate in the present case. Above all, the Commission refers to the situation of C Energy by way of illustration of its argument. However, it is undisputed that the situation of that undertaking was irrelevant in the context of the discussions between Bulgargaz and Transgaz relating to the renegotiation of the 2005 Agreement. (64)
144. In the light of the foregoing, the Commission’s arguments are not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, (65) and should therefore be dismissed.
–        State action
145. The General Court found that Bulgargaz’s conduct on the relevant markets had been significantly constrained by a set of obligations imposed by the Bulgarian public authorities as a result of Bulgargaz’s status as the sole public supplier in Bulgaria (paragraph 571 of the judgment under appeal), which was such as to exempt it from liability under the ‘State action’ defence. The Commission disputes those findings, claiming that the General Court failed to apply the strict limits governing that exception. More specifically, it submits, first, that the General Court did not establish that the regulatory framework required Bulgargaz not to release certain capacity on the Romanian Pipeline 1
and, secondly, that nor did Bulgargaz’s legal obligations to guarantee security of supply require
it
not to release that capacity.
146. I note that
the Commission does not put forward any specific argument demonstrating that the conditions attaching to the ‘State action’ defence were not actually satisfied in the present case. Consequently, its
line of argument on this point should be rejected.
–        Security of supply
147. The General Court held that, during the infringement period, Bulgargaz operated on the Bulgarian gas supply markets under a public supply licence that imposed on it a number of obligations as the sole operator guaranteeing the security of gas supply in Bulgaria (paragraph 549 of the judgment under appeal). The Commission submits that the General Court failed to establish that any refusal to release unused capacity on the Romanian Pipeline 1 could have affected gas supplies to Bulgaria.
148. I note that the Commission refers, in support of its very brief argument, to the instances of requests for access made by C Energy and Overgas.
However, it is common ground that those individual requests were not taken into account by the General Court in the context of its assessment of the renegotiation of the 2005 Agreement.
149. Consequently, that
argument should be rejected, as should the entire line of argument relating to Bulgargaz’s conduct during the renegotiation of the 2005 Agreement.
(iii) Length of the negotiation
150. As regards the third complaint, concerning the length of the negotiations, the General Court defined the scope of its analysis in paragraph 652 of the judgment under appeal, stating that ‘the length of the renegotiation of the 2005 Agreement constitutes evidence relied on by the Commission to demonstrate the existence of the anticompetitive strategy which it found to have been adopted by the applicants’. Nevertheless, it considered that the Commission had not demonstrated that the length of that renegotiation was attributable to Bulgargaz, a point disputed by the Commission.
151. In that regard, suffice it to note that the influence of Bulgargaz’s conduct on the length of the negotiations is purely a matter of assessment of the facts and therefore falls outside the jurisdiction of the Court of Justice in appeal proceedings. (66)
152. In the light of all of the foregoing, the sixth ground of appeal should be
dismissed in its entirety.
B.      Access to the transmission network and to the Chiren storage facility
1.      The seventh ground of appeal
153. The seventh ground of appeal relates to the right of access to the Bulgarian transmission network. In essence, the General Court found that Bulgartransgaz prevented, restricted and delayed third-party access to that transmission network from 29 September 2010 to 31 December 2012.
It nevertheless concluded that the Commission did not prove, first, that such conduct was capable of restricting competition on the Bulgarian gas supply markets and, secondly, that that conduct continued after 31 December 2012.
(a)    Arguments of the parties
154. The Commission, submits, first, that the General Court erred in finding that while the Commission may have proven that, between 29 September 2010 and 31 December 2012, Bulgartransgaz failed to comply with its regulatory obligations by preventing, restricting and delaying third-party access to the transmission network, it had not established that such conduct was capable
of actually, as opposed to merely hypothetically,
restricting competition because the undertakings concerned did not have access to the Romanian Pipeline 1 at that time (paragraphs 951 to
954 of the judgment under appeal). In that regard, supported by Overgas, the Commission claims that the finding of an abuse downstream does not necessarily entail that the refusal to provide access to upstream capacity is also illegal and attributable to the same entity. The Commission submits, secondly, that the General Court was incorrect in holding that the finding in the contested decision to the effect that Bulgartransgaz did not grant Overgas satisfactory access to the transmission network for 2013 was based solely on the fact that that access was subject to the allegedly restricted access to the Romanian Pipeline 1
granted to Overgas in the same period. Consequently, as the General Court held that such access to the Romanian Pipeline 1 was not restricted, its
conclusion that access to the transmission network was not restricted either was also incorrect
(paragraphs 874 to 878 and 880 of the judgment under appeal). Additionally, the Commission maintains that, should the General Court’s finding about the access granted to Overgas to the Romanian Pipeline 1 in 2013 be set aside
for the reasons set out in the first ground of appeal, its reasoning about the transmission network for the same period should logically be set aside
as well.
155. The BEH Group contends, first, that the Commission’s arguments regarding access to the transmission network between 29 September 2010 and 31 December 2012 are unfounded, in so far as the refusal to grant access to the Romanian Pipeline 1 was caused not by the BEH Group but by Transgaz. In those circumstances, both undertakings concerned, namely Overgas and Toplofikacia Razgrad, (67) could not, in any event, have access the Bulgarian gas markets for reasons beyond Bulgartransgaz’s control even if
there had been regular access to the transmission network. The BEH Group accordingly submits that Bulgartransgaz’s conduct regarding access to the transmission network was, in the final analysis, not capable of having actual, as opposed to purely hypothetical,
exclusionary effects on those markets. Secondly, the BEH Group submits that the Commission’s arguments relating to access to the transmission network from 2013 are inadmissible and ineffective, as the Commission makes cross-references to the first ground of appeal relating to the access to the Romanian Pipeline 1, without putting forward any argument that is relevant in the context of access to the transmission network.
(b)    Assessment
(1)    Access to the transmission network between 29 September 2010 and 31 December 2012
156. The General Court found that the Commission had established that Bulgartransgaz prevented, restricted and delayed access to the transmission network for
Overgas and Toplofikacia Razgrad between 29 September 2010 and 31 December 2012 (paragraphs 949 and 950 of the judgment under appeal). However, the General Court held that even if Bulgartransgaz had granted those two undertakings satisfactory access to that transmission network, they could not have entered the Bulgarian gas supply markets, as they did not have prior access to the Romanian Pipeline 1 for reasons that are not imputable to the BEH Group. In those circumstances, the General Court held that Bulgartransgaz’s conduct with regard to access to the transmission network was not capable of having actual, as opposed to purely hypothetical,
exclusionary effects on those markets (paragraphs 949 and 950 of the judgment under appeal). The Commission disputes that conclusion, arguing that the General Court did not apply the appropriate legal test. In its view, the question should have been whether the relevant conduct was objectively capable of restricting competition and not whether it could be proven that such effects
had actually occurred.
157. It should be noted,
as a preliminary point, that the General Court has placed its analysis in the context of Court of Justice’s case-law, which essentially provides that, in order for conduct falling within the scope of an exclusionary practice to be characterised as abusive, that conduct must have been capable of restricting competition and, in particular, of producing the alleged exclusionary effects. Such an assessment must take into account all the relevant facts. (68) The General Court further observed that those exclusionary effects must not be purely hypothetical. Consequently, the Commission cannot rely on the effects that that practice might produce or might have produced if certain specific circumstances – which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise – had arisen or did arise. (69)
158. In the present case, as regards the organisation of the Bulgarian gas markets, it is common ground that the transmission network is situated downstream of the Romanian Pipeline 1, as Bulgaria’s gas supply depended almost entirely on imports of Russian gas (paragraph 6 of the judgment under appeal) and that the Romanian Pipeline 1 was the only viable option for transporting gas from Russia (paragraph 10 of the judgment under appeal).
159. Consequently, the question arises whether, in order to establish that Bulgartransgaz’s conduct in relation to access to the transmission network could be characterised as abusive, in so far as it was capable of producing actual, as opposed to purely hypothetical,
exclusionary effects, the Commission also had to establish that the undertakings requesting such access had obtained prior access to the Romanian Pipeline 1 or that they could not obtain such access for reasons attributable to the BEH Group.
160. On that matter, I observe the following elements.
161. First, as observed in point 156 of the present Opinion, the General Court found that access to the transmission network granted by Bulgartransgaz to Overgas and Toplofikacia Razgrad was not satisfactory between 29 September 2010 and 31 December 2012. That statement is not disputed at the stage of the appeal.
162. Secondly, the General Court held that Bulgargaz controlled third-party access to the Romanian Pipeline 1, since a third
party wishing to have access to that pipeline during the infringement period needed Bulgargaz to agree to Transgaz offering capacity in accordance with the terms of Article 17.1 of the 2005 Agreement, or to sublet part of its unused capacity (paragraph 149 of the judgment under appeal). Thirdly, the General Court also recalled, in essence, that the Commission had referred in the contested decision to the interdependence between the three infrastructures at issue, namely the Romanian Pipeline 1, the transmission network and the Chiren storage facility (paragraph 1116 of the judgment under appeal). During the period in question, access to the Romanian Pipeline 1 was necessary in order to bring gas to the transmission network, and access to the transmission network was necessary as well in order to bring gas to the Chiren storage facility. More specifically, regarding the interaction between the Romanian Pipeline 1 and the transmission network, the General Court observed that the access to the transmission network followed a two-stage
procedure.
In essence, as a first step, Bulgartransgaz had to assess the application and prepare a written opinion on the conditions for access or a reasoned rejection. In the event of a favourable opinion, as a second step, it had to offer a transmission contract to the applicant seeking access, or issue a reasoned
rejection. It is at the stage of that second step that proof that the applicant seeking access had entered into a contract, upstream, for a supply of gas might be required
(paragraphs 738, 742, 746 and 749 of the judgment under appeal). Therefore, according to the Commission, Bulgartransgaz and Bulgargaz were able to influence and jointly contribute to the prevention, restriction and delay of third-party access to those infrastructures (paragraph 1117 of the judgment under appeal).
163. Fourthly, the General Court found that there was nothing in the file to demonstrate that, during the infringement period, Transgaz informed Bulgargaz that there were individual requests by third parties for access to the capacity of the Romanian Pipeline 1. It is also common ground that Overgas had transmitted such requests directly to Transgaz (paragraphs 291 and 292 of the judgment under appeal).
164. It follows from the foregoing that, first, there is no evidence of direct individual requests from Overgas and Toplofikacia Razgrad for access to the Romanian Pipeline 1
having been forwarded to Bulgargaz. Secondly, Bulgartransgaz prevented, restricted and delayed access for Overgas and Toplofikacia Razgrad to the transmission network during the relevant period. It is also common ground that
Bulgargaz was closely linked to Bulgartransgaz as a member of the BEH Group, and that the demonstration of access to the Romanian Pipeline 1 was only a follow-up procedure, after the initial
procedure granting access to the transmission networks was completed.
165. In such circumstances, the case-law cited in point 157 of the present Opinion
does not support a finding that Bulgartransgaz’s conduct in relation to access to the transmission network can constitute an infringement of Article 102 TFEU only once it has been established that the impossibility for Overgas and Toplofikacia Razgrad to gain access to the Romanian Pipeline 1 was attributable to Bulgargaz.
166. It is true in that regard that, in order for a practice to be characterised as abusive, its exclusionary effects must not be purely hypothetical. However, in the present case, the fact that Transgaz did not forward
Overgas’s requests for access to the Romanian Pipeline 1 cannot be regarded as ‘certain specific circumstances which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise’,
as stated in paragraph 70 of the judgment in
Servizio Elettrico Nazionale and Others,
since
Transgaz’s conduct in that respect cannot be regarded as
a market condition. Consequently, the manner in which
Transgaz handled such requests cannot be regarded as a circumstance that was prevailing on the Bulgarian gas markets at the time the requests for access to the transmission network were made.
167. In that regard, it must also be borne in mind that an applicant for access to a transmission network could still obtain access to the Romanian Pipeline 1 after the conclusion of the first step or even after the second step of the procedure for access to the transmission network and before the implementation of the transmission contract (paragraph 777 of the judgment under appeal). That is to say, in the present case, access to the Romanian Pipeline 1 could be obtained long after Bulgartransgaz’s conduct which the General Court found to be preventing, restricting and delaying Overgas’s and Toplofikacia Razgrad’s access to the transmission network between 29 September 2010 and 31 December 2012.
Furthermore, Bulgargaz and Bulgartransgaz, as dominant undertakings, had a special responsibility not to allow their conduct to impair genuine, undistorted competition in the internal market. (70) In such a context, the conclusion that, following the Commission’s assessment
conducted in the light of the Bronner test,
Bulgargaz’s conduct did not infringe Article 102 TFEU
in relation to
Overgas’s access to the Romanian Pipeline 1 before 2013, cannot be interpreted as meaning that Bulgartransgaz’s conduct did not constitute such an infringement
in relation to access to the transmission network.
Suffice it to note that such a joint assessment of the conduct of those two undertakings
is at odds with the General Court’s finding that, under the
rules on the granting of access to the gas transmission and/or distribution networks, adopted by means of decision No Л-2 (Decision P-2) of the Bulgarian regulator of 14 May 2007 (DV No 45 of 8 June 2007, p. 51), Bulgartransgaz was not authorised to block the requested access to the transmission network on the sole ground that proof of access to the Romanian Pipeline 1 was not provided when the application was submitted (paragraph 771 of the judgment under appeal).
In that regard, proof of access to the Romanian Pipeline 1 came, in principle, solely under the second stage of the procedure (paragraph 770 of the judgment under appeal). Thus, by restricting access to the transmission network during the first stage of that procedure, Bulgartransgaz’s conduct had the specific effect
of excluding
Overgas and Toplofikacia Razgrad from being able to proceed to the second stage of the procedure in question.
168. As a result, the General Court erred in law in finding that Bulgartransgaz’s conduct in relation to access to the transmission network between 29 September 2010 and 31 December 2012 was not capable of having actual, as opposed to purely hypothetical,
exclusionary effects on the Bulgarian gas markets, and the Commission’s arguments should
accordingly be upheld on this ground.
(2)    Access to the transmission network after 1 January 2013
169. The General Court held that it was apparent from the contested decision that the Commission based its finding that the access to the transmission network granted to Overgas for 2013 was restrictive solely of
the manner in which Overgas had obtained access to the Romanian Pipeline 1 for that same year, which it also found to be restrictive. However, as the General Court stated that the Commission had not established that Bulgargaz had not granted Overgas satisfactory access to the Romanian Pipeline 1 for 2013, it reached the same conclusion in relation to the transmission network (paragraphs 874 to 878 and 880 of the judgment under appeal). The Commission disputes the General Court’s findings on the ground that,
in so far as the General Court was incorrect in stating that Overgas’s access to the Romanian Pipeline 1 was satisfactory, the resulting conclusion that its access to the transmission network was satisfactory is necessarily flawed.
170. It must be noted that the Commission’s line
of argument is particularly confused, as it
alleges an error of law regarding the assessment of Bulgargaz’s conduct in relation to access to the transmission network as from 1 January 2013.
171. In the judgment under appeal, the General Court held that, in the contested decision, the finding that Bulgartransgaz did not grant Overgas satisfactory access to the transmission network for 2013 is based solely on the fact that that access was subject to the access granted to Overgas to the Romanian Pipeline 1 in 2013. However, according to the Commission, such access to the Romanian Pipeline 1 in 2013 was, in itself, abusive,
with the result that the same conclusion should apply to the access granted to the transmission network. However, as justification for that claim, the Commission relies on alleged errors of law as set out in the first ground of appeal.
172. In that regard, it must be observed that the first ground of appeal did not relate to
Overgas’s terms of access to the Romanian Pipeline 1 in 2013. Consequently, the Commission cannot rely on the arguments put forward
under
the first ground of appeal in support of its arguments relating to
Overgas’s access to the transmission network from 1 January 2013.
173. At the stage of the rejoinder, the Commission nevertheless adds that the General Court applied the test set out in the judgment in
Generics (UK) and Others, the application of which was contested in the first ground of appeal, in paragraphs 418 and 419 of the judgment under appeal concerning the assessment of the three-month duration set out in the agreement for Overgas’s access to the Romanian Pipeline 1 for 2013. In that regard, I note that the judgment in
Generics (UK) and Others
is referred to only in general terms, citing paragraph 154 of that judgment, which does not concern the litigious criterion debated in the context of the first ground of appeal, concerning the assessment of the concept of potential competition.
174. In the light of the foregoing, the complaint concerning Overgas’s access to the transmission network from 1 January 2013 should be dismissed.
175. It follows from the foregoing that the seventh ground of appeal should be upheld in part, in so far as the General Court found that Bulgartransgaz’s conduct regarding access to the transmission network between 29 September 2010 and 31 December 2012, was not capable of having actual, as opposed to purely hypothetical,
exclusionary effects on the Bulgarian gas markets.
2.      The eighth ground of appeal
176. The eighth ground of appeal relates to access to the Chiren storage facility. The General Court stated, in essence, that the Commission had established that Bulgartransgaz prevented, restricted and delayed third-party access to the Chiren storage facility between 30 July 2010 and 19 September 2014 (paragraph 1089 of the judgment under appeal). It further held that the Commission had established that such conduct was capable of restricting competition on the Bulgarian gas supply markets between 5 June 2012 and 19 September 2014, as both companies requesting access to the Chiren storage station had also access to the transmission network and/or to the Romanian Pipeline 1 (paragraph 1104 of the judgment under appeal). It also held, however, that the Commission had not established that that conduct was capable of restricting competition and, in particular, of preventing company F, and Overgas, from entering the Bulgarian gas supply markets between 30 July 2010 and 5 June 2012, as those undertakings had no prior access to the Romanian Pipeline 1 at that time (paragraph 1099 of the judgment under appeal).
(a)    Arguments of the parties
177. The Commission submits that the General Court made errors of legal assessment in paragraphs 1092 to 1103 of the judgment under appeal, in finding that Bulgartransgaz’s conduct in relation to the access to the Chiren storage facility was not capable of restricting competition for the period between 30 July 2010 and 5 June 2012. In essence, that argument is based on a similar logic to the one used in the seventh ground of appeal, to the effect that, in so far as third-parties requested access to the Romanian Pipeline 1 and to the Chiren storage facility, the absence of proven abusive conduct by the BEH Group on the Romanian Pipeline 1 upstream does not make the anticompetitive effects of Bulgartransgaz’s conduct regarding access to the Chiren storage facility downstream merely hypothetical. The Commission further submits that, for the reasons set out in the first ground of appeal, the General Court erred in law in stating in paragraph 1094 of the judgment under appeal that the Commission had failed to establish that Bulgargaz’s conduct in relation to access to the Romanian Pipeline 1 constituted a refusal of access capable of falling within the scope of Article 102 TFEU. Lastly, the Commission argues that the General Court erred in paragraph 1103 of the judgment under appeal in finding that the ability to produce anticompetitive effects had to be by
itself problematic, as the case-law only requires the intrinsic ability of the conduct to produce effects.
178. The BEH Group refers to its arguments put forward in response to the first and seventh grounds of appeal by way of response to the Commission’s line of argument founded on the same reasons as those two grounds of appeal. Additionally, as regards paragraph 1103 of the judgment under appeal, the BEH Group contends that the appeal does not identify any paragraph where the challenged reasoning was relied on in order to overturn an element of the contested decision, which makes it ineffective and inadmissible.
(b)    Assessment
179. The General Court found that the Commission established that Bulgartransgaz prevented, restricted and delayed company F and Overgas’s access to the Chiren storage facility from between 30 July 2010 and 5 June 2012. However, applying the same reasoning as for assessing exclusionary effects on the Bulgarian gas markets of the comparable conduct regarding the transmission network, it held that the Commission did not establish that Bulgartransgaz’s conduct regarding access to the Chiren storage facility was capable of restricting competition on those markets, as company F and Overgas did not have prior access to the Romanian Pipeline 1 and, consequently, could not enter those markets during that period. The Commission disputes that conclusion, by essentially putting forward the same arguments as under the seventh ground of appeal.
180. In view of the foregoing, it must be noted that both the General Court’s reasoning in the judgment under appeal and the Commission’s arguments in the appeal are based on exactly the same grounds as those put forward under the seventh ground of appeal.
181. Therefore, for the reasons set out in points 156 to 168 of the
present Opinion, the eighth ground of appeal should
be upheld, and it is not necessary to examine the other arguments put forward by the Commission.
C.      The single and continuous infringement (the ninth ground of appeal)
182. The ninth ground of appeal relates to the General Court’s application
of the judgment in
Frucona, (71) and seeks to establish that the sole ground relating to Bulgartransgaz’s conduct in relation to the Chiren storage facility after June 2012 could not, without distorting the contested decision by substituting a new assessment of the facts for that of the Commission, constitute the essential, or even sufficient, statement of reasons capable by itself of justifying the operative part of that decision.
1.      Arguments of the parties
183. The Commission claims, first, that the General Court erred in law as it should have applied the test set out in the judgment in
Commission v VerhuizingenCoppens (72) instead of the test set out in the judgment in
Frucona. In that regard, the Commission submits that the test set out in paragraph 46 of the judgment in
Commission v VerhuizingenCoppens
enables it to annul a decision in part when the single and continuous infringement in question can be divided into the separate forms of the conduct comprising that infringement. According to that case-law, the undertaking concerned must have been put in a position, during the administrative procedure, to understand that it was alleged to have engaged in separate forms of conduct comprising that infringement, hence to defend itself, and
the decision must be sufficiently clear in that regard. Accordingly, the Commission argues, secondly, that the General Court was wrong in holding that the sole ground relating to Bulgartransgaz’s conduct in relation to the Chiren storage facility after June 2012 could not constitute the essential, or even sufficient, statement of reasons capable by itself of justifying the operative part of the contested decision. In that regard, the Commission states that both the statement of objections and the contested decision are sufficiently detailed on the point that Bulgartransgaz’s refusal of access to the Chiren storage facility after June 2012 was proven to amount to both a single and continuous infringement and a separate infringement. Consequently, the conditions for a partial annulment were satisfied in the present case.
184. The BEH Group disputes the Commission’s argument.
2.      Assessment
(a)    Preliminary observation regarding the concept of single and continuous infringement
185. The concept of single and continuous infringement appeared in the Court’s case-law in the late 1990s, for the purpose of applying Article 85 EC. (73) It has subsequently also been applied in the context of abuse of dominant position. (74) The main characteristics of single and continuous infringements are therefore already relatively well defined (75) and can be briefly summarised as follows.
186. The essence of a single and continuous infringement is the existence of a common objective pursued by several undertakings, referred to
in the existing jurisprudence as an ‘overall plan’. Accordingly, if the various instances of conduct of those undertakings form part of such an ‘overall plan’ because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those instances of conduct on the basis of participation in the infringement considered as a whole. (76)
187. In cases of instances of conduct which, as part of an overall plan, served to give rise to an alleged infringement of Article 102 TFEU, the investigating authority may opt to characterise each of those instances of conduct as being only part of a single and continuous infringement without necessarily categorising it as a separate infringement of that provision, (77) or to treat
each of those instances of conduct as autonomous infringements and then group all of them together as a single and continuous infringement. (78)
188. Consequently, which approach is taken in the decision to adopt an act establishing a single and continuous infringement of Article 102 TFEU is crucial since, for the undertaking concerned, it does not follow from the mere fact that it was sanctioned for participating in that single and continuous infringement that each instance of conduct forming part of that infringement was, in itself, necessarily unlawful under that provision. In fact, two different instances of conduct might be lawful if assessed separately, but considered abusive under Article 102 TFEU on the ground that, together, they form part of an overall plan departing from competition on the merits and having anticompetitive effects. Similarly, it does not necessarily follow from the fact that a single and continuous infringement has not been established that one (or
several) of the instances of conduct constituting that alleged infringement could not by themselves constitute an infringement of
Article 102 TFEU.
189. When the judicial review of a decision establishing a single and continuous infringement ultimately leads to the conclusion that that finding was erroneous, two potential situations may be envisaged. On the one hand, the decision might be annulled in its entirety if the various instances of conduct of the alleged infringement were not assessed as separate infringements of Article 102 TFEU. On the other hand, it might be annulled in part if one or more of those instances of conduct were assessed as separate infringements of Article 102 TFEU. In that regard, it should be borne in mind that partial annulment of an EU law measure is possible only if the elements annulment of which is sought can be severed from the remainder of the measure. That requirement is not satisfied where the partial annulment of a measure would cause the substance of that measure to be altered. (79)
190. The legal test that should be applied in order to determine whether and to what extent elements of a Commission decision establishing a single and continuous infringement can be severed from each other has been ruled on by the Court in the context of Article 101 TFEU.
The relevant reasoning can be transposed to Article 102 TFEU, since the test relies on elements that are common to the investigation of any alleged anticompetitive conduct.
191. First, the undertaking in question must have been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement. Secondly, the decision must be sufficiently clear in that regard. (80) Where the Commission intends to allege against an addressee of a statement of objections not only a single and continuous infringement, but also each of the forms of conduct comprising that infringement taken individually as separate infringements, observance of the rights of defence of that addressee requires the Commission to set out, in that statement, the necessary elements to enable it to understand that the Commission alleges both that single and continuous infringement and each of those separate infringements. (81)
192. It is in the light of all those considerations that the arguments raised by the Commission in the context of the ninth ground of appeal must be examined.
(b)    First part of the ninth ground of appeal
193. The Commission submits that the General Court failed to apply the proper legal test in order to determine whether the contested decision could be annulled only in part instead of in its entirety.
194. In the judgment under appeal, the General Court noted that, in reviewing the legality of acts under Article 263 TFEU, the EU judicature cannot substitute its own reasoning for that of the author of the act in question. That statement is based on the application of the judgment in Frucona (82) (paragraph 1109 of the judgment under appeal). It then observed that the statement of reasons for the contested decision was based on two fundamental pillars (paragraph 1111 of the judgment under appeal), namely, the anticompetitive strategy aimed at protecting Bulgargaz’s dominant position on the Bulgarian gas supply markets (paragraphs 1112 to 1117 of the judgment under appeal), and the concept of a ‘single and continuous infringement’ (paragraphs 1118 to 1134 of the judgment under appeal).
195. The General Court held, first, that neither in the grounds of the contested decision, nor even less in the operative part of that decision, did the Commission impute to the BEH Group a number of separate infringements. Secondly, it held that the single and continuous infringement imputed to the BEH Group was based on a key element, namely an anticompetitive strategy based on the interdependence of the conduct relating to each part of the gas infrastructures in question and had the sole objective of foreclosing the Bulgarian gas supply markets. Thirdly, it held that the allegedly abusive conduct relating to the Romanian Pipeline 1 was the linchpin on which the Commission’s analysis and the statement of reasons for the contested decision were based (paragraphs 1127 and 1128 of the judgment under appeal). In those circumstances, the General Court held that, in the light of all the forms of conduct alleged against the BEH Group and the emphasis placed by the contested decision on their interdependence, complementarity and mutual reinforcement, it could not be inferred from the operative part thereof that it was based on a number of grounds concerning separate forms of abusive conduct each of which would, in itself, be sufficient to justify the operative part (paragraph 1131). In those circumstances, the General Court found that the sole ground relating to Bulgartransgaz’s conduct concerning the Chiren storage facility after June 2012 could not, without distorting the contested decision by substituting a new assessment of the facts for that of the Commission, constitute the essential, or even sufficient, statement of reasons capable by itself of justifying the operative part of that decision (paragraph 1133).
196. In view of the foregoing, it does not clearly appear from the grounds of the judgment under appeal that the General Court considered the possibility of overturning the contested decision in part.
197. However, as I have noted in points 190 and 191 of the
present Opinion, if a partial annulment of a Commission decision imposing a sanction for a single and continuous infringement of Article 102 TFEU is to be envisaged, it is still necessary to establish that each of the individual forms of conduct of which that single and continuous infringement was comprised, in themselves and viewed in isolation, could also be characterised as a separate infringement of that provision. In order to do so, the Commission must identify and legally characterise as such each of those forms of conduct separately.
198. In that regard, it is apparent from point 195 of the present Opinion that the General Court held that neither in the grounds of the contested decision, nor especially in the operative part of that decision, did the Commission impute to the BEH Group a number of separate infringements. In those circumstances, the conclusion must necessarily be that, in finding that the alleged single and continuous infringement did not comprise a number of separate infringements, the General Court considered that the various parts of the contested decision could not be severed from each other and nor could the decision be annulled in part.
199. It was only after so finding that the General Court considered whether the operative part of the contested decision could stand on the sole ground relating to Bulgartransgaz’s conduct concerning the Chiren storage facility after June 2012.
200. In view of the foregoing, it cannot be argued that the General Court did not apply the proper legal test in order to determine whether the contested decision could be annulled only in part instead of in its entirety, and this argument should
accordingly be rejected.
(c)    Second part of the ninth ground of appeal
201. The Commission maintains that the General Court erred in stating that it was not clear from the statement of objections and from the contested decision that the BEH Group’s conduct regarding the refusal of access to the Chiren storage facility after June 2012 constituted a separate infringement of Article 102 TFEU, corresponding to one of the forms of conduct of which the alleged single and continuous infringement was comprised.
202. As I have noted in point 191 of the present Opinion, it is possible to establish that a Commission decision on an alleged infringement of Article 102 TFEU consists of both a ‘single and continuous infringement’ and separate infringements only if that can be clearly inferred from the statement of reasons and from that decision. In other words, if such a statement cannot be inferred from both, it is not possible to annul the decision in part. More specifically, the Court has held that, where the Commission intends to criticise an undertaking for having participated not only in a ‘single and continuous infringement’ but also in several separate infringements comprising a number of forms of infringing conduct, it must clearly specify and give reasons for the legal characterisation as a separate infringement that it gives to each of those forms of conduct. (83)
203. In the judgment under appeal, the General Court held in paragraph 55, and reiterated in paragraph 1130, that Article 1 of the operative part of the contested decision is written as follows: ‘Bulgarian Energy Holding EAD and its subsidiaries Bulgargaz EAD and Bulgartransgaz EAD have committed a single and continuous infringement of Article 102 [TFEU] by refusing third-party access to the … transmission network, the Romanian … Pipeline 1 and [the] UGS Chiren [storage facility] resulting in foreclosure of the gas supply markets in Bulgaria’.
204. It is clear from the wording of the operative part of the contested decision that the Commission characterised the three relevant forms of conduct, relating to the transmission network, the Romanian Pipeline 1 and the Chiren storage station, only as forms of conduct forming part of a ‘single and continuous infringement’ of Article 102 TFEU, without also characterising each of them also as separate infringements of Article 102 TFEU.
205. As regards the statement of reasons of the contested decision, the Commission submits, in an abstract manner and without explaining clearly how, that the contested decision establishes that each form of conduct prevented access to the transmission network, to the Romanian Pipeline 1 and to the Chiren storage station respectively, and that each of those forms of conduct satisfies the conditions for being characterised as an infringement of Article 102 TFEU. However, the Commission fails to specify which specific recitals of that decision support the finding that the refusal of access to the Chiren storage station after June 2012 constituted a separate infringement of Article 102 TFEU.
206. More specifically, the Commission claims that Section 6.2.4.5 of the contested decision assesses as a separate form of conduct a clear pattern in Bulgartransgaz’s conduct of preventing, restricting and delaying access to the Chiren storage facility. However, it must be remembered in that respect that the concepts of ‘conduct’ and ‘infringement’
should
not be confused. (84) In that regard, it is clear from the Commission’s argument that it acknowledged that the contested decision examined various instances of conduct in order to establish a single and continuous infringement. However, those statements do not show that that decision had established that the alleged single and continuous infringement comprised several forms of conduct which in themselves constituted infringements.
207. In view of the foregoing, this argument should
be rejected, as a result of which the ninth ground of appeal should be rejected in its entirety.
D.      The rights of the defence (the tenth ground of appeal)
208. The tenth ground of appeal relates to the General Court’s assessment of an alleged violation of the BEH Group’s rights of defence and the principle of good administration. The General Court identified defects in the administrative procedure, during which the Commission organised a total of eight meetings with Overgas and
drew up non-confidential brief notes as well as confidential detailed minutes after each of them. Overgas submitted written observations (‘the follow-up observations’) regarding six of those meetings. The BEH Group first had access only to the brief notes and to a non-confidential version of the follow-up observations of some of those meetings. The BEH Group obtained access to the detailed minutes later in the context of a data room procedure, through
external representatives who drew up a report which was sent to the applicants in non-confidential form. The General Court held that, by granting the BEH Group excessively restricted access to the file in the context of the data room procedure and by refusing access to less redacted versions of the follow-up observations, the Commission made a procedural error capable of infringing the BEH Group’s rights of defence.
1.      Arguments of the parties
209. The Commission submits, first, that the General Court applied an
incorrect legal criterion to examine the effects of the alleged procedural irregularities on the applicant’s rights of defence. In that regard, the General Court ought to have ascertained whether the direct access to the file by the BEH Group, in addition to the access already obtained through its external representatives during the data room procedure, would have enabled it to better ensure its defence. Secondly, the Commission alleges that the General Court held, incorrectly, that the data room process was per se capable of affecting the BEH Group’s rights of defence, due to the access being exercised indirectly through external legal advisers. Thirdly, the Commission argues that the General Court distorted evidence relating to the detailed minutes and follow-up observations
by arguing that those documents had significance which ought not to be disregarded in order to help the BEH Group to better ensure its defence. Fourthly, the Commission claims that the General Court failed to observe the principle of the adversarial nature of proceedings. Thus, while the General Court ordered the Commission to produce a number of documents and then granted leave for the BEH Group to submit their comments, it never gave the Commission the opportunity to express its views in writing.
210. The BEH Group
disputes the Commission’s arguments.
2.      Assessment
(a)    Use of a data room procedure
(1)    Preliminary remarks about the data room procedure
211. The central question raised in the tenth ground of appeal concerns the reconciliation, in competition cases, between the principle of respect for the rights of the defence, which has long been established with regard to administrative procedures, (85) particularly when it takes the form of the right of access to the file, and the need to protect legitimate interests of the undertakings concerned regarding business secrets or other confidential information. In the present case, this fairly classic issue arises in the specific form of the Commission’s use of the procedure known as the ‘data room procedure’.
212. As the Court has consistently held, both the right to be heard (Article 41(2)(a) of the Charter) and the right of access to the file (Article 41(2)(b) of the Charter) are the corollary of respect for the rights of the defence in administrative procedures, which constitutes a fundamental right
which is an integral part of the EU legal order. (86) In the specific context of competition law, the right of access to the file means that the Commission must provide the undertaking under investigation with the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information. (87)
213. The right of access to the file does not constitute an unfettered prerogative and it may be restricted, in particular as it must be balanced
with the general principle of the right of undertakings to the protection of their business secrets. (88) Those considerations are, in particular, directly implemented in competition law through Article 27(2) of Regulation No 1/2003 and Article 15(2) and Article 16 of Regulation No 773/2004, which lay down detailed rules for the use of documents in the file relating to a proceeding under Article 101 or Article 102 TFEU.
214. The foregoing requirements are particularly sensitive regarding investigations conducted by the Commission under Articles 101 and 102 TFEU, as that specific context requires evidence to be gathered from undertakings whose interests and economic or commercial strategies may necessarily diverge or even require secrecy to be
maintained. In order to maintain the effectiveness of its work and ensure that it has the most complete, relevant and useful information possible, it has therefore been necessary to provide the Commission with various tools enabling it to collect and use such information while complying with the principles summarised in points 212 and 213 of the present Opinion.
215. In the present case, the Commission chose to combine the use of redacted versions of various documents, and
to grant access to the confidential version of those documents, using a data room procedure. That procedure aims to grant an undertaking under investigation access, in a restricted manner, to information obtained by the Commission during proceedings under Articles 101 and 102 TFEU while protecting business secrets and other confidential information. In order to meet that objective, access to the data room is confined to a limited range of persons, namely external advisors. It is also subject to restrictive access conditions: for example, the time allowed is limited, no external communication is permitted and the external advisors can only carry limited equipment.
(2)    Application to the present case
216. The first issue raised by the Commission concerns paragraph 1215 of the judgment under appeal. It is based on the view
that the General Court considered that the use of the data room procedure through external representatives in itself infringed the BEH Group’s rights of defence.
217. I consider that the General Court’s reasoning on that point is ambiguous, inasmuch as it is difficult to understand if the fact that the BEH Group was able to exercise its rights of defence only through external representatives during the data room procedure is the reason why the General Court found that that procedure, as it took place in the present case, was capable of affecting those rights. In those circumstances, and in so far as paragraph 1215 of the judgment under appeal could be so construed, it is important to clarify the following issues.
218. As noted in point 214 of the
present Opinion, it is undeniable that access to the file through a data room procedure is, by its very nature, not access provided in a conventional manner following the procedure provided for in Article 27(2) of Regulation N 1/2003 and in Article 15(1) and (2) of Regulation No 773/2004. That is precisely why the Commission itself, in paragraph 97 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), states that the use of a data room procedure may ‘restrict a party’s right to have full access to the investigation file’. (89)
219. That said, it should also be noted that, despite the restricted form of disclosure it permits, the data room procedure still makes it possible to grant indirect access to confidential documents and, consequently, potentially to facilitate a party’s ability to flag up the existence of exculpatory evidence. In other words, this tool can, exceptionally,
assist in balancing the legitimate exercise of a party’s right of access to the file with the necessary protection of business secrets.
220. In view of the above, I consider that, even though indirect access to documents through a data room procedure is a clear limitation on the exercise of the right of access to the file, it does not necessarily deny the undertaking concerned its rights of defence. Hence, such a procedure can be appropriate when the following criteria are satisfied. First, the Commission must establish the actual need to protect business secrets or other confidential information. (90) Secondly and in the same vein, it should also be established why the use of the data room is, in the relevant case, more appropriate than, for example, the preparation of non-confidential documents capable of adequately meeting the requirements of the rights of the defence. Lastly, the Commission should also pay particular attention to ensuring that the documents transmitted to the undertaking concerned at the end of the data room procedure enable it to exercise effectively its rights of defence, in particular by being aware of any exculpatory evidence contained in the Commission’s file.
221. Nevertheless, in the present case, I consider that paragraph 1215 of the judgment under appeal should not be so construed as meaning that the General Court had found that
the use of the data room procedure,
in itself, infringed the BEH Group’s rights of defence.
222. In paragraph 1213 of the judgment under appeal,
the General Court states that, at the time of the data room procedure, the information in the detailed minutes of those meetings was historical in nature. On appeal, the Commission does not put forward any specific argument challenging that statement. In that regard, it must be noted that the procedural irregularity noted in paragraph 1238 of the judgment under appeal relates only to meetings held on 13 October 2010 (paragraph 1228), 13 January 2011 (paragraph 1231), 15 December 2011 (paragraph 1233) and 17 June 2013 (paragraph 1235), namely those which the General Court considered no longer needed to be confidential during the data room procedure.
223. Consequently, the General Court correctly held that the Commission made a procedural error consisting in granting access to non-confidential documentation only through the data room procedure which should inherently be reserved for documents whose confidentiality and thus
need of protection is duly established. Furthermore, even if paragraph 1215 of the judgment under appeal were to be construed as outlined in point 217 of the present Opinion, such an error would in any case be ineffective since, in the present case, the data room procedure has been applied to non-confidential documents.
(b)    Examination of the alleged exculpatory elements
224. The second issue raised by the Commission concerns paragraph 1225 of the judgment under appeal, which states that it is necessary to examine whether the documents disclosed after the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, (91) would have enabled the BEH Group to substantiate
or consolidate certain arguments in their defence. The Commission submits that this statement unduly simplified the applicable legal requirements,
and that the General Court distorted the evidence in finding that the previously undisclosed elements of the relevant documents had significance which ought not to be disregarded.
225. Regarding, first, the matter of the legal test to be applied, I note that the question whether the General Court has applied the correct legal criterion as the basis for its assessment of the facts and the evidence is a question of law, which is amenable to review by the Court of Justice. However, as regards the alleged distortion of evidence, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (92)
(1)    Legal test
226. The Court’s case-law
distinguishes between the non-disclosure of inculpatory evidence and exculpatory evidence. In that regard, the threshold to reach in order to demonstrate a breach of the rights of the defence due to the non-disclosure of inculpatory evidence is higher than for exculpatory evidence. (93)
227. In essence, regarding exculpatory evidence, it is for the undertaking concerned to establish that the non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision, by showing that it would have been able to use that exculpatory document for its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in its decision. (94)
228. The General Court summarised the method it intended to apply for the purpose of the analysis in paragraph 1152 of the judgment under appeal, stating that it would ascertain whether, in the light of the factual and legal circumstances specific to the case, the BEH Group had adequately demonstrated that it would have been better able to ensure its defence had there been no procedural error by the Commission.
229. Then, after establishing the existence of procedural defects, it applied that method by assessing the effects of those defects on the BEH Group’s rights of defence. In that regard, it assessed
the arguments submitted by the BEH Group in its observations lodged on 27 April 2022, following the Commission’s production of the non-confidential version of the relevant documents, in order to demonstrate that access to certain pieces of information in the file, which were not disclosed during the administrative procedure, would have enabled it to ensure better its defence.
230. In those circumstances, I consider that the Commission may not criticise the legal test used by the General Court.
(2)    Alleged distortion of evidence
231. The General Court reviewed the detailed minutes of the meetings of 13 October 2010, 13 January 2011, 15 December 2011 and 17 June 2013, as well as the follow-up observations of 18 November 2010 and 10 June 2011, in paragraphs 1227 to 1245 of the judgment under appeal. As noted in point 225 of the present Opinion, in the context of an appeal, the alleged distortion must be obvious from the documents in the Court’s file.
(i)    The detailed minutes of the meetings
232. As regards the detailed minutes of the meeting of 13 October 2010, the General Court stated, in essence, that it could accept the BEH Group’s argument that the difficulties encountered by Overgas in entering the Bulgarian gas supply markets were not attributable to them but rather to the Bulgarian authorities, due to the incorrect and incomplete transposition of relevant EU directives. The Commission argues that those same detailed minutes also showed that Overgas considered that the BEH Group’s conduct was a reason for those difficulties.
233. I consider the Commission’s argument on that point to be well
founded. Even if the elements referred to in the preceding point of the present Opinion could have been capable of supporting an argument to the effect that the Bulgarian authorities bore some responsibility in Overgas’s difficulties in entering the Bulgarian gas supply markets, the fact remains that Overgas has also argued that the BEH Group bore a share of that responsibility as well, whilst the General Court stated, in paragraph 1230 of the judgment under appeal, that those elements could have been capable of confirming and substantiating the BEH Group’s argument that the difficulties encountered by Overgas in entering the Bulgarian gas supply markets were not attributable to them. That statement by the General Court is therefore manifestly incorrect.
234. As regards the detailed minutes of the meeting of 13 January 2011, the General Court stated, in essence, that they showed that Overgas considered at the time that Transgaz controlled access to the Romanian Pipeline 1, and that that element could have supported the BEH Group’s argument that it was not the entity responsible for granting and managing access to that infrastructure. The Commission submits that that evidence merely shows that Overgas approached Transgaz to request access to that
pipeline, but not that Overgas confirmed that Transgaz did
in fact control that infrastructure.
235. I observe that the General Court’s finding, in paragraph 1232 of the judgement under appeal, is based on the fact that recital 296 of the contested decision did not expressly refer to Overgas’s statement about the entity having control over the Romanian Pipeline 1, whereas such a statement could have been used as exculpatory evidence by the BEH Group. I nevertheless observe that, in fact, it is not clear from the detailed minutes of the meeting of 13 January 2011 that Overgas expressly confirmed that it was Transgaz that controlled the Romanian Pipeline 1. In those circumstances, the General Court manifestly distorted the evidence on that point.
236. Lastly, as regards the detailed minutes of the meeting of 17 June 2013, the General Court found, in essence, that Overgas had confirmed to the Commission that it had had access to the Romanian Pipeline 1 and to the transmission network since 1 January 2013. For both infrastructures, the duration of the relevant agreements had been extended until 31 December 2013. Furthermore, Overgas did not express any dissatisfaction about the access granted to those infrastructures, which could have supported the BEH Group’s argument that there was no abuse regarding those infrastructures. The Commission submits that the mere fact that Overgas did not take a position on a topic that was not discussed cannot create an inference that a document may be useful for the BEH Group’s defence.
237. Nevertheless, I consider that the General Court did not manifestly distort the detailed minutes of that meeting, as it is accurate that Overgas did not express any dissatisfaction about the access granted to the relevant infrastructures.
(ii) The follow-up observations
238. As regards the follow-up observations
of 18 November 2010, the General Court stated that the BEH Group submitted that Overgas acknowledged that the demand for the supply of nine industrial customers in 2011 was considerably lower than the volume in respect of which it had sought access to the transmission network. That statement may have supported its claim that Overgas significantly inflated the quantities in respect of which it requested access to the transmission network in 2011, and that lack of clarity forced it to request clarification during a meeting on 1 December 2010. The Commission argues that such a conclusion contradicts the General Court’s own findings that the clarification as to the entry point for which access had been requested and the volume that Overgas wished to supply through the transmission network was probably necessary since the letters of 29 September and 11 November 2010 were not clear on that point.
239. In my view, the General Court did not manifestly distort those follow-up observations. Its statement on that point is based on the finding that the lack of clarity regarding the volume for which access to the transmission network was requested was, at least in part, a reason why some clarifications were requested during the meeting held on 1 December 2010.
240. As regards the follow-up observations
of 10 June
2011, the General Court stated that the BEH Group submitted that Overgas based its complaint on the misleading premiss that its entry into the Bulgarian gas supply markets would have obliged suppliers to establish their prices on market economy principles. The BEH Group further claimed that Overgas was the intermediary of the only upstream source of gas supply in Bulgaria, namely Gazprom, from which it followed that Overgas’s entry on the Bulgarian markets would not have increased competition, as Bulgargaz would no longer have been able to purchase gas on reasonable terms. The General Court found that such information could have allowed the BEH Group to support its argument that the conditions relating to healthy competition on the downstream market were not satisfied, mainly because of Overgas.
241. However, the General Court does not explain at all how the statement that Overgas based its complaint on the premiss that its entry into the Bulgarian gas supply markets would have obliged suppliers to establish their prices on market economy principles could support the conclusion set out in paragraph 1243 of the judgment under appeal, to the effect that the conditions relating to healthy competition on the downstream market were not satisfied, mainly because of Overgas. In those circumstances, that finding is vitiated by a failure to state reasons, which makes it impossible to assess the alleged distortion of the follow-up observations
of 10 June 2011.
242. Consequently, it follows from the foregoing that the General Court’s conclusions
should
be set aside in relation to the detailed minutes of the meeting of 13 October 2010 and of 13 January 2011, as well as for the follow-up observations of 10 June 2011. At the same time, I nevertheless note that the General Court’s conclusions
should be upheld with regard to the detailed minutes of the meeting of 17 June 2013 and the follow-up observations
of
18 November 2010. It should also be noted that the General Court’s conclusions concerning the detailed minutes of the meeting of 15 December 2011 are not challenged by the Commission, which implicitly acknowledges that they had a direct impact on the assessment of the date on which the alleged abuse began.
243. In those circumstances, the conclusion set out in paragraph 1246 of the judgement under appeal should
necessarily be upheld, in so far as it essentially shows that the BEH Group’s rights of defence were infringed both with regard to the detailed minutes and the follow-up observations. Although not all of the findings on which that conclusion was based are well founded, the fact remains that, for the reasons set out in point 242 of the present Opinion, the finding that an infringement can nevertheless be upheld for both categories of documents is sufficient in order to uphold it.
(c)    The principle of the adversarial nature of proceedings
244. The Commission submits that the General Court did not allow it to comment on the BEH Group’s submissions regarding the detailed minutes and follow-up observations.
245. It follows from the Court’s case-law that the principle that the parties should be heard applies to proceedings before the EU Courts. (95) It confers inter alia on each party to proceedings, irrespective of its legal status, the right to be apprised of the documents produced and observations made to the Court by the other party and to discuss them. (96) Furthermore,
the principle of equality of arms implies that each party must be afforded a reasonable opportunity to present its case, including its evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent. (97)
246. In that regard, the Court of Justice has inter alia inferred from those requirements that, although the General Court may freely decide to put a question to a party within the framework defined by its Rules of Procedure, it must give the other parties an opportunity to comment on the answer given to such a question, at least where that question contains elements which are decisive for the outcome of the case in question. (98) It follows that the rights of the defence would be infringed if a judicial decision were to be based on facts and documents of which the parties themselves, or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to formulate an opinion.
247. In the present case, it is common ground that the Commission was only given an opportunity to comment on the BEH Group’s comments on the various documents submitted by the Commission on April 2022, following the order in Bulgarian Energy Holding and Others v Commission, during the hearing that was held on 29 September 2022. However, unlike the situation relating to the order in
Commission v Amazon Services Europe, (99)relied on by the Commission in its appeal, the Commission was not entirely denied an opportunity to comment on the arguments put forward by the BEH Group in its submissions, as it is apparent from the file that that issue was indeed addressed during the hearing.
248. More specifically, the question that arises is whether, in circumstances such as those in the present case, it is sufficient for a party to be given the opportunity to comment on written submissions made by the other party only orally during the hearing.
249. In that regard, the Court has held previously, for example, that the fact that one party submits written observations to the General Court in the form of a letter, and that the other party has only three days in which to acquaint itself with the contents thereof and proffer comments prior to the hearing did not infringe that party’s rights of defence. Moreover, the Court insisted on the fact that the three-day period to examine that letter had been sufficient, since that party did not ask the General Court for an opportunity to comment on that letter. (100)
250. It appears to me from all of the foregoing that the criteria to be taken into account in a case such as the present one are, therefore, mainly whether the document or documents in question were communicated early enough for the other party to the proceedings to examine them, whether that party was thus able to prepare its defence and, lastly, whether it was in a position effectively to present its arguments in that regard.
251. In the present case, it may be noted, first, that the observations in question were added to the file several months before the hearing and that that time must therefore necessarily be considered sufficient for the Commission to have been able to examine them and prepare its defence. Moreover, the Commission has not submitted any argument establishing that that was not the case. Secondly, it is also clear that the Commission presented arguments in relation to those observations during the hearing. The Commission alleges only that the limited timeframe of the hearing did not allow it to address all the elements in question, without indicating what kind of elements it could have added in that regard. Thirdly, and just like in the judgment in
Guardian Industries and Guardian Europe v Commission referred to in point 249 of the present Opinion, it does not appear from the file that the Commission requested the General Court for permission to submit observations on the point. In those circumstances, and even though it would certainly have been preferable to invite the Commission to submit written observations following the comments submitted by the BEH Group after disclosure of the information, I consider that the Commission’s rights of defence cannot be regarded as having been infringed.
252. In view of the foregoing, I consider that the tenth ground of appeal should be dismissed in its entirety.
V.      Conclusion
253. In the light of the analysis set out in the present Opinion, I suggest that the Court of Justice should allow the appeal in part by upholding the first, second, seventh and eighth grounds of appeal, alleging errors of law regarding Bulgargaz’s conduct in relation to access to the Romanian Pipeline 1, Bulgartransgaz’s conduct concerning access to the transmission network, and Bulgartransgaz’s conduct regarding access to the Chiren storage facility, and consequently:
–        Set aside the judgment of the General Court of 25 October 2023, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2023:669);
–        Dismiss the remainder of the appeal;
–        Refer the case back to the General Court for a fresh examination of the arguments underlying the first, second, seventh and eighth grounds of appeal;
–        Reserve the costs.
1      Original language: English.
2      T‑136/19, ‘the judgment under appeal’,
EU:T:2023:669.
3      C‑7/97, ‘the judgment in Bronner’, EU:C:1998:569.
4      Judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, ‘the judgment in Generics (UK) and Others’, EU:C:2020:52). See also judgment of 25 March 2021, Lundbeck v Commission (C‑591/16 P,
‘the judgment in Lundbeck v Commission’, EU:C:2021:243).
5      See, in particular, judgments of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, ‘the judgment in Deutsche Telekom v Commission’, EU:C:2021:238);
of 25 March 2021,
Slovak Telekom v Commission (C‑165/19 P, ‘the judgment in Slovak Telekom v Commission’, EU:C:2021:239); of 12 January 2023, Lietuvos geležinkeliai v Commission(C‑42/21 P,
‘the judgment in Lietuvos geležinkeliai v Commission’, EU:C:2023:12);
of 10 September 2024, Google and Alphabet v Commission (Google Shopping) (C‑48/22 P,
‘the judgment in Google and Alphabet v Commission (Google Shopping)’, EU:C:2024:726); and of 18 December 2025, Lukoil Bulgaria and Lukoil Neftohim Burgas, (C‑245/24,
‘the judgment in Lukoil’, EU:C:2025:987).
6      See, to that effect, the judgment in
Slovak Telekom v Commission, paragraph 46 and the case-law cited.
7      The judgment in Lukoil,
paragraph 44.
8      The judgment in Lukoil,
paragraphs 46 to 49 and the case-law cited.
9      More specifically, it is founded, in particular, on paragraph 87 of the judgment in
Lietuvos geležinkeliai v Commission, which states that the Bronner test does not apply in a situation where the infrastructure in question was financed by means not of investments specific to the dominant undertaking, but by means of public funds and that undertaking is not the owner of that infrastructure.
10      See, to that effect, the judgment in Deutsche Telekom v Commission (paragraph 47), and judgment of 25 February 2025, Alphabet and Others (C‑233/23, ‘the judgment in Alphabet and Others’, EU:C:2025:110, paragraph 43).
11      The judgment in
Lukoil, paragraphs 55 and 56.
12      The judgment in Lukoil, paragraphs 54 to
56.
13      The judgment in
Lietuvos geležinkeliai v Commission, paragraphs 88 and 89.
14      See, by analogy, judgment of 10 March 2022, Commission v Freistaat Bayern and Others (C‑167/19 P
and
C‑171/19 P, EU:C:2022:176), as well as Opinion of Advocate General Pitruzzella in Commission v Ireland and Apple Sales International (C‑465/20 P, EU:C:2023:840,
point 21).
15      Judgment of 10 July 1991, RTE v Commission (T‑69/89, EU:T:1991:39).
16      Here as well, the Commission quotes paragraph 41 of the judgment in Bronner.
17      Judgment of 6 September 2017, Intel v Commission (C‑413/14 P, ‘the judgment in Intel v Commission’, EU:C:2017:632, paragraphs 146 and 147 and the case-law cited).
18      Judgment of 18 December 2025, WS and Others v Frontex (Joint return operation) (C‑679/23 P, EU:C:2025:976, paragraph 83 and the case-law cited).
19      Judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, ‘the judgment in Commission v Landesbank Baden-Württemberg and SRB’, EU:C:2021:601, paragraph 56 and the case-law cited).
20      Judgment of 29 January 2026,
Multan (C‑431/24, EU:C:2026:53, paragraph 44 and the case-law cited).
21      Opinions of Advocate General Sharpston in Commission v RQ (C‑831/18 P, EU:C:2019:1143, point 146), and of Advocate General Trstenjak in VB Pénzügyi Lízing (C‑137/08, EU:C:2010:401, points 78 and 79).
22      Judgment of 17 November 2022, Harman International Industries (C‑175/21, EU:C:2022:895, paragraph 62 and the case-law cited).
23      Judgment in Commission v Landesbank Baden-Württemberg and SRB (paragraph 57 and the case-law cited).
24      See, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 61 and the case-law cited).
25      On this point, see, for example, Opinion of Advocate General Mazák in  Greece v Commission (C‑203/07 P, EU:C:2008:270, points 77 to 83).
26      See, in that regard, judgment of 6 November 2014, Italy v Commission (C‑385/13 P, EU:C:2014:2350, paragraph 67 and the
case-law cited).
27      Directive 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).
28      The judgment in
Lukoil, paragraph 56.
29      See point 35 of the present Opinion
and the
judgment in
Lietuvos geležinkeliai v Commission (paragraphs 88 and 89).
30      Regulation of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36). That regulation was applicable during the infringement period. It was repealed by Regulation (EU) 2024/1789 of the European Parliament and of the Council of 13 June 2024 on the internal markets for renewable gas, natural gas and hydrogen, amending Regulations (EU) No 1227/2011, (EU) 2017/1938, (EU) 2019/942 and (EU) 2022/869 and Decision (EU) 2017/684 and repealing Regulation (EC) No 715/2009 (OJ L, 2024/1789), which has applied since 5 February 2025.
31      The judgment in Generics (UK) and Others, paragraphs 43 and 46.
32      The judgment in Lundbeck v Commission, paragraph 57.
33      Judgment of 21 December 2023, European Superleague Company (C‑333/21, ‘the judgment in European Superleague Company’, EU:C:2023:1011).
34      Judgment of 26 October 2023, EDP – Energias de Portugal and Others (C‑331/21, ‘the judgment in EDP – Energias de Portugal and Others’, EU:C:2023:812, paragraph 60 and the case-law cited).
35      The judgment in EDP – Energias de Portugal and Others, paragraph 63 and the case-law cited.
36      Judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, ‘the judgment in Hoffmann-La Roche v Commission’, EU:C:1979:36, paragraph 38).
37      The Court has recently reiterated, on several occasions, the main principles governing the control of such abusive practices under Article 102 TFEU (see, inter alia, the judgment in
European Superleague Company and the judgment in
Alphabet and Others). More specifically, the Court emphasised that such conduct covers any practice which, on a market where the degree of competition is already weakened precisely because of the presence of one or more undertakings in a dominant position, through recourse to means different from those governing normal competition between undertakings, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (the judgment in
Alphabet and Others, paragraphs 37 and 38 and the case-law cited).
38      Opinion of Advocate General Rantos in EDP – Energias de Portugal and Others (C‑331/21, EU:C:2023:153, points 47 and 48) (‘Opinion of Advocate General Rantos in EDP – Energias de Portugal and Others’).
39      See, to that effect, judgment in
European Superleague Company, paragraph 186 and the case-law cited.
40      Judgment in
European Superleague Company, paragraph 131, 186 and the case-law cited.
41      See inter alia, judgments of 19 January 2023, Unilever Italia Mkt. Operations, (C‑680/20, ‘the judgment in Unilever Italia Mkt. Operations’, EU:C:2023:33, paragraph 36 and the case-law cited), and of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraphs 70 and 72 and the case-law cited).
42      See also, to that effect, judgment of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172, paragraph 42).
43      In paragraph 48 of its judgment in
Hoffmann-La Roche v Commission, the Court held that the absence of potential competition was a relevant factor in establishing the existence of a dominant position.
44      See, to that effect, judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission (T‑360/09, ‘the judgment in E.ON Ruhrgas and E.ON v Commission’, EU:T:2012:332, paragraph 86 and the case-law cited).
45      Judgment of 28 June 2016, Telefónica v Commission (T‑216/13, EU:T:2016:369, paragraph 221 and the case-law cited).
46      See, to that effect, judgment in
EDP – Energias de Portugal and Others, paragraph 63 and the case-law cited.
47      On this point, Advocate General Rantos has referred to a number of the General Court’s judgments, including judgment of 14 April 2011,  Visa Europe and Visa International Service v Commission (T‑461/07, EU:T:2011:181, paragraph 168), and the
judgment in
E.ON Ruhrgas and E.ON v Commission (paragraph 87)
(see Opinion of Advocate General Rantos in EDP – Energias de Portugal and Others, point 63). The Court has expressly endorsed that
Opinion on this point
(see the judgment in
EDP – Energias de Portugal and Others, paragraph 70).
48      See, to that effect, judgment of 27 June 2024, Mylan Laboratories and Mylan v Commission (C‑197/19 P, EU:C:2024:550, paragraph 67).
49      Opinion of Advocate General Rantos in EDP – Energias de Portugal and Others.
50      The judgment in Generics (UK) and Others, paragraphs 36 to 39.
51      I note that the General Court has held previously, in a different context,
that ‘merely sending a standard letter to some of the targeted parties, without any follow-up for several months, cannot reasonably be considered a serious effort to begin commercial negotiations in order to obtain the rights in question. Consequently, the targeted parties’ failure to reply cannot amount to a refusal to grant a licence which amounts to an abuse’
(judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, EU:T:2017:2, paragraph 143).
52      The judgment in
Unilever Italia Mkt. Operations, paragraph 28.
53      That statement is drawn from paragraphs 43 and 46 of the judgment in
Generics (UK) and Others, and paragraph 57 of the judgment in
Lundbeck v Commission.
54      The argument by which the BEH Group alleges that the Commission ineffectively disputes paragraph 286 of the judgment under appeal on the ground that it does not apply any of those judgments, cannot be upheld. Contrary to that statement, paragraph 286 does rely on paragraphs 279 and 280 of the judgment under appeal. According to the General Court, the statement set out in paragraph 280, from which it follows that the exclusionary effects of an alleged abuse of dominant position must not be purely hypothetical, must be proven by the Commission’s adducing evidence of the matters set out in paragraphs 281 and 282. In that regard, paragraph 281 expressly refers to the judgments in
Generics (UK) and Others and in Lundbeck v Commission, and it must accordingly be found that paragraph 286 is in part based on both of those judgments.
55      Judgment of 25 January 2022, Commission v European Food and Others (C‑638/19 P, EU:C:2022:50, paragraph 75 and the case-law cited).
56      Judgment in
Google and Alphabet v Commission (Google Shopping),
paragraph 61 and the case-law cited.
57      See points 37 to
47 of the
present Opinion.
58      See point 29 of the present Opinion.
59      Judgment of 26 May 2016, Rose Vision v Commission (C‑224/15 P, EU:C:2016:358, paragraph 24 and the case-law cited).
60      Those three separate complaints concerned the alleged intergovernmental nature of the renegotiation of the 2005 Agreement, Bulgargaz’s conduct during that negotiation, and the length thereof.
61      This definition appears in Salmon, J., Dictionnaire de droit international public, Bruylant, Brussels, 2001; see also, in that regard, Crawford, J., Brownlie’s Principles of Public International Law, 9th edition, Oxford University Press, 2019, p. 355.
62      The judgment in
Google and Alphabet v Commission (Google Shopping),
paragraph 61 and the case-law cited.
63      Judgment of 15 January 2026, Uno v Commission (C‑126/24 P, ‘the judgment in Uno v Commission’, EU:C:2026:8, paragraph 51 and the case-law cited).
64      The situation of C Energy is examined in the analysis of the first three grounds of appeal.
65      See, to that effect,
judgment of 14 November 2024, LE v Commission (C‑781/22 P, EU:C:2024:960, paragraph 60 and the case-law cited).
66      Judgment in
Google and Alphabet v Commission (Google Shopping),
paragraph 61 and the case-law cited.
67      Toplofikacia Razgrad is a subsidiary and customer of Overgas.
68      See the judgment in
Generics (UK) and Others, paragraph 154 and the case-law cited, and judgment of 12 May 2022, Servizio Elettrico Nazionale and Others
(C‑377/20, ‘the judgment in Servizio Elettrico Nazionale and Others’, EU:C:2022:379, paragraphs 50, 64 and 72 and the case-law cited).
69      See, to that effect, the judgment in
Servizio Elettrico Nazionale and Others,
paragraph 70 and the case-law cited.
70      The judgment in
Lietuvos geležinkeliai v Commission, paragraph 46 and the case-law cited.
71      Judgment of 24 January 2013, Frucona Košice v Commission (C‑73/11 P, ‘the judgment in Frucona’, EU:C:2013:32).
72      Judgment of 6 December 2012,
Commission v Verhuizingen Coppens (C‑441/11 P, ‘the judgment in Commission v Verhuizingen Coppens’, EU:C:2012:778, paragraph 46).
73      See, for example, judgments of 20 March 2002, Lögstör Rör v Commission (T‑16/99, EU:T:2002:72, paragraphs 102 to 112), and of 8 July 1999, Montecatini v Commission (C‑235/92 P, EU:C:1999:362, paragraph 195).
74      As recently observed by Advocate General Kokott in her Opinion in Google and Alphabet v Commission (C‑738/22 P, EU:C:2025:463, point 206 and the case-law cited).
75      See, in that regard, Opinion of Advocate General Pitruzzella in Sony Corporation and Sony Electronics v Commission, Sony Optiarc and Sony Optiarc America v Commission, Quanta Storage v Commission and Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission (C‑697/19 P
to
C‑700/19 P, EU:C:2021:452, points 55 to 80); see also Romić, M.,
‘Particularities of Proving a Single and Continuous Infringement of EU Competition Rules’,
Yearbook of Antitrust and Regulatory Studies, Vol. 13, Issue 22, 2020, p. 169.
76      See, to that effect, judgment of 27 June 2024, Servier and Others v Commission (C‑201/19 P, EU:C:2024:552, paragraph 240 and the case-law cited).
77      See, by analogy and in the context of Article 101 TFEU, judgment of 1 February 2024, Scania and Others v Commission (C‑251/22 P, EU:C:2024:103, paragraphs 133 to 135 and the case-law cited).
78      Judgment of 14 September 2022,
Google and Alphabet v Commission (Google Android) (T‑604/18, EU:T:2022:541).
79      The judgment in
Commission v Verhuizingen Coppens,
paragraph 38 and the case-law cited.
80      The judgment in Commission v Verhuizingen Coppens,
paragraph 46.
81      Judgment of 16 June 2022, Sony Corporation and Sony Electronics v Commission (C‑697/19 P, ‘the judgment in Sony Corporation and Sony Electronics v Commission’, EU:C:2022:478, paragraph 73).
82      The judgment in Frucona, paragraph 89.
83      See, to that effect, judgment of 16 June 2022, Sony Optiarc and Sony Optiarc America v Commission (C‑698/19 P, EU:C:2022:480, paragraph 81).
84      The judgment in
Sony Corporation and Sony Electronics v Commission, paragraph 78.
85      The judgment in
Hoffmann-La Roche v Commission (paragraphs 9 and 11).
86      See, to that effect, judgments of 20 December 2017,
Prequ’ Italia (C‑276/16, EU:C:2017:1010, paragraph 45 and the case-law cited), and of 30 November 2023,
Sistem ecologica v Commission (C‑787/22 P, EU:C:2023:940, paragraph 150 and the case-law cited).
87      See, to that effect, judgment of 25 October 2011, Solvay v Commission (C‑110/10 P, EU:C:2011:687, paragraph 49 and the case-law cited).
88      See, to that effect, judgment of 19 May 1994, SEP v Commission (C‑36/92 P, EU:C:1994:205, paragraphs 36 and 37).
89      In recital 9 of the document of the Directorate-General for Competition entitled
‘Best Practices on the disclosure of information in data rooms in proceedings under Articles 101 and 102 TFEU and under the EU Merger Regulation’, the Commission stresses both the exceptional nature of the data room procedure and the advantages it offers when stating that ‘data rooms are an exceptional tool which can – depending on the circumstances of the individual case – safeguard the rights of defence while respecting the legitimate interests of confidentiality of the undertakings or persons from which the Commission has obtained the information’.
90      See, by analogy, judgment of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission (T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, EU:T:1999:80, paragraph 1017).
91      Order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, ‘the order in Bulgarian Energy Holding and Others v Commission’, EU:T:2022:149).
92      The judgment in
Uno v Commission, paragraph 51 and the case-law cited.
93      See, in that regard, judgment of 7 January 2004, Aalborg Portland and Others v Commission(C‑204/00 P,
C‑205/00 P,
C‑211/00 P,
C‑213/00 P,
C‑217/00 P
and
C‑219/00 P, EU:C:2004:6, paragraphs 73 and
130).
94      The judgment in
Intel v Commission, paragraphs 96 and 97 and the case-law cited.
95      Order of the Vice-President of the Court of 27 March 2024, Commission v Amazon Services Europe(C‑639/23 P(R), ‘the order in Commission v Amazon Services Europe’, EU:C:2024:277, paragraph 40 and the case-law cited).
96      The order in Commission v Amazon Services Europe, paragraph 42 and the case-law cited.
97      Judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, ‘the judgment in Guardian Industries and Guardian Europe v Commission’, EU:C:2014:2363, paragraph 31 and the case-law cited).
98      The order in Commission v Amazon Services Europe, paragraph 43 and the case-law cited.
99      See, to that effect, the order in Commission v Amazon Services Europe, paragraph 42.
100      The judgment in
Guardian Industries and Guardian Europe v Commission, paragraphs 32 to 35.