Action brought on 4 December 2016 — PGNiG Supply & Trading v Commission

(Case T-849/16)

Language of the case: Polish

Parties

Applicant: PGNiG Supply & Trading GmbH (Munich, Germany) (represented by: M. Jeżewski, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul the decision of the European Commission of 28 October 2016 concerning amendments to the conditions of the exemption from the requirement to apply certain requirements of EU law to the OPAL gas pipeline;

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on 14 pleas in law.

First plea in law, alleging infringement of fundamental rights and incorrect assessment of the act initiating the procedure concerning the amendment of the previous exemption of the OPAL gas pipeline from the requirement to apply certain requirements of EU law, granted in 2009 by a decision of the German energy regulator, the Bundesnetzagentur.

Second plea in law, alleging lack of competence to take a decision amending the exemption of the OPAL gas pipeline from the requirement to apply certain requirements of EU law.

Third plea in law, alleging incorrect interpretation of the condition of eligibility for exemption of the gas infrastructure in Article 36(1) in conjunction with Article 2(17) of Directive 2009/73/EC.

In accordance with Article 36(1) of Directive 2009/73/EC, an exemption may be granted only in the case of interconnectors, LNG facilities and storage facilities. However, an ‘interconnector’ is a transmission line which crosses or spans a border between Member States for the sole purpose of connecting the national transmission systems of those Member States.

The OPAL gas pipeline is not an ‘interconnector’ because it connects with the Gazelle pipeline that runs through Czech territory and is therefore a gas transit pipeline, transporting gas collected from OPAL back to Germany.

Fourth plea in law, alleging incorrect interpretation of the condition of eligibility for exemption of the gas infrastructure in Article 36(1)(b) in conjunction with Article 2(33) of Directive 2009/73/EC.

The condition for the grant of a regulatory exemption for major new gas infrastructure is that the level of risk attached to the investment in that infrastructure is such that the investment would not take place unless the regulatory exemption is granted.

The investment in the construction of the OPAL gas pipeline was finally realised and completed on 13 July 2011, therefore, it cannot be said that any further such risk exists.

Fifth plea in law, alleging incorrect interpretation of the condition of eligibility for exemption of the gas infrastructure in Article 36(1)(a) and (e) of Directive 2009/73/EC and, as a consequence, finding that the amendment of the regulatory exemption of the OPAL gas pipeline does not adversely affect competition on the gas market.

Sixth plea in law, alleging incorrect interpretation of the condition of eligibility for exemption of the gas infrastructure in Article 36(1)(a) of Directive 2009/73/EC and, as a consequence, finding that the amendment of the regulatory exemption of the OPAL gas pipeline enhances the security of the supply of gas in the internal market.

Seventh plea in law, alleging failure on the part of the Bundesnetzagentur to have regard to the provisions of Article 102 TFEU in relation to deciding on the exemption under Article 36 of Directive 2009/73/EC.

Eighth plea in law, alleging breach of the principles of legal certainty and protection of legitimate expectations.

Ninth plea in law alleging breach of the principle of proportionality.

Tenth plea in law, alleging favourable treatment of the infrastructure that is the subject of the exemption, the status of which is incompatible with EU law.

Eleventh and twelfth pleas in law, alleging infringement of, respectively, Article 274 and Article 254 of the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part.

Thirteenth plea in law, alleging infringement of Article 7 TFEU by the adoption of a decision which is contrary to other policies of the European Union.

Fourteenth plea in law, under Article 277 TFEU, alleging invalidity of Article 2(33) in conjunction with Article 36(1) of Directive 2009/73/EC, by the arbitrary introduction of a discriminatory distinction between infrastructure covered by the regulatory exemption and remaining infrastructure that is not eligible for such exemption.

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