EN Official Journal of the European Union C 46/6

Action brought on 3 December 2010 — European Commission v Republic of Poland

(Case C-569/10)

2011/C 46/10

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Herrmann, Agent)

Defendant: Republic of Poland

Form of order sought

— declare that, by not adopting the measures necessary to ensure that access to activities relating to the prospection, exploration and production of hydrocarbons should be free of all discrimination as between interested undertakings and that the authorisations to carry out those activities should be allocated in accordance with a procedure under which all interested undertakings are able to submit applications and in accordance with criteria which are published in the Official Journal of the European Union prior to the beginning of the period in which applications must be submitted, the Republic of Poland has failed to comply with its obligations under Articles 2(2), 3(1) and 5(1) and (2) of Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons; (1)

— order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

The Commission raises three heads of complaint alleging failure on the part of the Republic of Poland to comply with the provisions of Directive 94/22/EC.

First, in the view of the Commission, the Polish legislation on ‘Geological Work and Mining’ (Prawo geologiczne i górnicze) and the implementing regulations giving effect to that legislation set out requirements with which any interested undertaking must comply at the time when it applies for an authorisation for the prospection, exploration and production of hydrocarbons and which place a number of undertakings already operating within Polish territory in a more favourable position than other undertakings, thereby infringing the principle of equal access to those activities.

Second, the Polish legislation does not subject the whole of the procedure governing the granting of authorisation for the prospection, exploration and production of hydrocarbons to the adjudication procedure required pursuant to Article 3(2) of Directive 94/22/EC. Polish law makes the prospection, exploration and production of hydrocarbons subject to the acquisition of a mining permit and a concession. The acquisition of a mining permit alone is, as a rule, preceded by a prior adjudication procedure, subject, however, to the reservation of a two-year right of priority for an undertaking which has identified and documented a deposit of hydrocarbons and has prepared geological documentation with the precision required for the purpose of obtaining a concession to extract such hydrocarbons.

Third, in the view of the Commission, the adjudication of applications submitted for the purpose of acquiring an authorisation for the prospection, exploration and production of hydrocarbons is not conducted exclusively on the basis of the criteria set out in Article 5(1) of Directive 94/22/EC. Furthermore, not all of the criteria governing the appraisal of an application are generally accessible, that is to say, published in the Official Journal of the European Union.

(1) OJ 1994 L 164, p. 3.