EN Official Journal of the European Union C 161/33

Appeal brought on 14 February 2018 by PGNiG Supply & Trading GmbH against the order of the General Court (First Chamber) made on 14 December 2017 in Case T-849/16, PGNiG Supply & Trading GmbH v European Commission

(Case C-117/18 P)

(2018/C 161/37)

Language of the case: Polish

Parties

Appellant: PGNiG Supply & Trading GmbH (represented by: M. Jeżewski, adwokat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the contested order of the General Court of the European Union of 14 December 2017 in Case T-849/16 dismissing PGNiG Supply & Trading’s action as inadmissible;

— rule on the admissibility of PGNiG Supply & Trading’s action in Case T-849/16 concerning an application under Article 263 TFEU for annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL gas pipeline from the requirements on third-party access and tariff regulation granted under Directive 2003/55/EC, and declare that action admissible.

Grounds of appeal and main arguments

The General Court infringed the fourth paragraph of Article 263 TFEU by incorrectly assuming that the European Commission’s 2016 decision does not concern the appellant either directly or individually and does not constitute a regulatory act, an assumption resulting from the misinterpretation by the General Court of the nature and effects of the new regulatory exemption of 2016, including through its infringement of Article 36(1)(a) to (e) of the Gas Directive (Directive 2009/73/EC) by failing to apply the exemption criteria for ‘new gas infrastructure’, and failing to carry out an assessment as to whether those criteria had been fulfilled in a manner that would make it sufficiently possible for a decision to be reached regarding the nature and status of the exemption introduced by the European Commission’s decision and the new regulatory exemption of 2016 by failing to apply paragraph 1 of Article 36 of the Gas Directive to the European Commission’s decision to alter the scope of the regulatory exemption of 2009. In this ground of appeal, the appellant submits that the General Court did not assess whether the regulatory exemption was new, which led it to carry out an incorrect assessment as to the effect of the European Commission’s decision on the appellant.

The General Court misinterpreted Article 263 TFEU by finding that the appellant is not directly concerned by the European Commission’s decision. In the present ground of appeal, the appellant submits that the assessment by which the General Court found that the appellant is not directly concerned by the European Commission’s decision is incorrect. The approach taken by the General Court is not in line with the existing case-law indicating that decisions of the European Commission are of direct concern in relation to persons who are not national regulatory authorities or addressees of those decisions.

The General Court misinterpreted Article 263 TFEU by finding that the appellant is not individually concerned by the European Commission’s decision. In this ground of appeal, the appellant submits that its position on the market allows for objective individualisation within the meaning of the case-law concerning the admissibility of actions.

The General Court misinterpreted the final limb of the fourth paragraph of Article 263 TFEU by finding that the European Commission’s decision is not a regulatory act. In the present ground of appeal, the appellant submits that that decision is a regulatory act.