Appeal brought on 28 July 2020 by Nord Stream 2 AG against the order of the General Court (Eighth Chamber) delivered on 20 May 2020 in Case T-526/19, Nord Stream 2 v Parliament and Council

(Case C-348/20 P)

(2020/C 313/21)

Language of the case: English

Parties

Appellant: Nord Stream 2 AG (represented by: L. Van den Hende, advocaat, M. Schonberg, Solicitor, J. Penz-Evren, J. Maly, Rechtsanwälte)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought

The applicant claims that the Court should:

— set aside the Order of the General Court (Eight Chamber) of 20 May 2020 in Case T-526/19 Nord Stream 2 v Parliament and Council, in particular points 1, 3, 4 and 6 of the operative part;

— to the extent that the Court considers the state of the proceedings so permit, to reject the plea of inadmissibility, declare the action admissible and refer the case back to the General Court to rule on the substance or, in the alternative, to declare the contested measure to be of direct concern to the appellant and refer the case back to the General Court to rule on individual concern or join it to the substance; and

— order the Council and Parliament to pay the appellant’s costs, including the costs before the General Court.

Pleas in law and main arguments

By the first ground of appeal, which is divided into two parts, the appellant claims that the General Court made errors in law in applying the requirement of direct concern and in finding that the appellant lacked standing in relation to its action for annulment of Directive (EU) 2019/692 (1) of the European Parliament and of the Council of 17 April 2019 (the ‘amending Directive’):

The General Court erred in considering that a directive, including the amending Directive, cannot of itself, before the adoption of transposition measures or the expiry of the transposition deadline, directly affect the legal situation of an operator, which would effectively rule out any action for annulment under the fourth paragraph of Article 263 TFEU.

The General Court erred in assessing the issue of Member State’s discretion in entirely general terms and without examining what the impact of any discretion would be specifically on the appellant’s legal situation and in light of the subject-matter of its action.

By the second ground of appeal, the appellant claims that the General Court made errors in law in its assessment of the Council’s requests to remove certain documents from the case file and in granting its requests. In particular, the General Court erred in undertaking its assessment entirely under the framework of Regulation 1049/2001 (2) on public access to documents while failing to consider whether the documents in question were manifestly relevant for the determination of the dispute. The General Court also erred in applying the restrictive framework established by the Court of Justice in the specific and acute circumstances of the Hungary v Commission and Slovenia v Croatia cases (3), to other situations of a fundamentally different nature. Finally, the General Court erred in law by attaching significant weight to the existence of the separate arbitration brought by the appellant under the Energy Charter Treaty, which is not relevant to its assessment on any basis, even under Regulation 1049/2001.

(1) Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas (OJ 2019, L 117, p. 1).

(2) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001, L 145, p. 43).

(3) Order of 14 May 2019, Hungary v Parliament, C-650/18, not published, EU:C:2019:438; judgment of 31 January 2020, Slovenia v Croatia, C-457/18, EU:C:2020:65.