Case T‑849/16 R

PGNiG Supply & Trading GmbH

v

European Commission

(Application for interim measures — Internal market in natural gas — Directive 2009/73/EC — Application by the Bundesnetzagentur for review of the exemption of the OPAL pipeline from the EU requirements for its operation — Commission decision amending the exemption from the EU requirements — Application for a stay of execution of a measure — Lack of any urgency)

Summary — Order of the President of the General Court, 21 July 2017

Judicial proceedings — Intervention — Communication of pleadings to interveners — Derogation — Confidential treatment — Application for confidentiality — No need to adjudicate on the application for leave to intervene — Reclassification of the request for confidentiality as a request for confidential treatment as regards the public — No legitimate ground on which to grant the application for confidential treatment — Rejection

Judicial proceedings — Intervention — Application for interim measures — Admissibility criteria — Interest in the result of the interim proceedings — Account taken of the intervener’s interest invoked in the context of weighing up all the interests at stake — Dismissal of the application for interim measures on the sole basis of the lack of urgency — No need to adjudicate on the application for leave to intervene

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Burden of proof — Harm unable to occur until, at the earliest, several contracts had expired — Duration of those contracts exceeding the average duration of proceedings before the General Court — Possibility of priority handling of the case or the application of the expedited procedure — Possibility of submitting a new application if there are new facts — No urgency

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Burden of proof — Commission decision amending the exemption from the EU requirements for the operation of a pipeline — Lack of irreversibility of the situations arising from the legal regime made possible by that decision — No urgency

Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Order of examination and method of verification — Discretion of the court hearing the application for interim relief — Balancing of all the interests involved

See the text of the decision. (see paras 24-27)

The purpose of proceedings for interim relief is to ensure the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Community judicature. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage.

As regards an application for a stay of execution of a Commission decision on review of the exemption from the EU requirements for the operation of a pipeline, the party which requests the interim measures displays an incorrect understanding of the functioning of the specific legal order instituted by the Treaties when it claims a serious and irreparable alteration to its position on the market because of the possibility of making long-term reservations of the transport capacities of gas by the pipeline liberalised under the contested decision, which has the effect of freezing the situation. If the contested decision were annulled, the conditions for use of the pipeline at issue, as authorised under that decision, would no longer apply. No private-law measure based on those conditions could be implemented, the consequences described by the applicant could potentially come about solely during the period preceding the delivery of the judgment of the General Court closing the main proceedings. That hypothetical situation does not per se constitute the harm alleged by the applicant since that depends on the long-term continuation of that situation. (see paras 29, 30, 37, 38, 42)

The urgency of an application for interim measures must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief before judgment is delivered on the principal action for annulment. It is for that party to adduce sound evidence that it cannot wait for the outcome of the main proceedings if it is not to suffer personally harm of that kind.

The applicant has failed to adduce such sound evidence where the harm alleged could not occur until several contracts had expired, at the earliest, and their duration exceeds the average duration of proceedings before the General Court and which could be renewed. In that regard, it would be for the applicant, if necessary, to implement specific legal remedies in the event of failure of perform those contracts. In the event of breach of the contractual obligations, it is, moreover, possible to envisage the applicant having recourse to Article 160 of the Rules of Procedure, thus guaranteeing it effective judicial protection in its litigation before the General Court. Moreover, if those contracts came to an end before the General Court had delivered its judgment, it cannot be ruled out that the General Court would consider that there were exceptional circumstances so that it would decide of its own motion to rule in the case in an expedited procedure, by virtue of Article 151(2) of the Rules of Procedure. Failing that, it remains possible, if the circumstances so require, to decide to give the case priority over others, in accordance with Article 67(2) of those Rules. (see paras 45, 47-49)

See the text of the decision. (see para. 53)

See the text of the decision. (see paras 55, 56)