Action brought on 1 March 2017 — Polskie Górnictwo Naftowe i Gazownictwo v Commission

(Case T-130/17)

Language of the case: Polish

Parties

Applicant: Polskie Górnictwo Naftowe i Gazownictwo S.A. (Warsaw, Poland) (represented by: M. Jeżewski, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul Decision C(2016)6950 of the European Commission of 28 October 2016 amending the conditions for exemption from the obligation 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 16 pleas in law.

First plea in law, alleging infringement of fundamental rights and an incorrect assessment of the application initiating proceedings concerning the amendment of the current exemption of the OPAL gas pipeline from the obligation to apply certain requirements of EU law, granted in 2009 pursuant to a decision by the German Federal Grid Agency.

Second plea in law, alleging that the Commission is not competent to adopt a decision amending the exemption of the OPAL gas pipeline from the obligation to apply certain requirements of EU law.

Third plea in law, alleging misinterpretation of the conditions of eligibility for exemption of a gas infrastructure laid down in Article 36(1) of Directive 2009/73/EC, read in conjunction with Article 2(17) of that directive.

Fourth plea in law, alleging misinterpretation of the conditions of eligibility for exemption of a gas infrastructure laid down in Article 36(1)(b) of Directive 2009/73/EC, read in conjunction with Article 2(33) of that directive.

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

The investment concerning the construction of the OPAL gas pipeline was finally realised and completed on 13 July 2011, with the result that it is no longer possible to speak of the continued existence of any such risks.

Fifth plea in law, alleging misinterpretation of the conditions of eligibility for exemption of a gas infrastructure laid down in Article 36(1)(a) and (e) of Directive 2009/73/EC and, as a result, an incorrect finding that the amendment of the regulatory exemption for the OPAL gas pipeline does not have a negative impact on competition in the gas market.

Sixth plea in law, alleging misinterpretation of the conditions of eligibility for exemption of a gas infrastructure laid down in Article 36(1)(a) of Directive 2009/73/EC and, as a result, an incorrect finding that the amendment of the regulatory exemption for the OPAL gas pipeline enhances security of gas supply within the internal market.

Seventh plea in law, alleging that the need to comply with the content of Article 102 TFEU was not taken into consideration by the German Federal Grid Agency when it adopted the exemption decision pursuant to Article 36 of Directive 2009/73/EC.

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

Ninth plea in law, alleging infringement of the principle of proportionality.

Tenth plea in law, alleging a failure to provide a statement of reasons for an act within the meaning of Article 296 TFEU and Article 263 TFEU.

Eleventh plea in law, alleging that users of natural gas in the Republic of Poland are exposed to the risk of a lack of gas supply, which constitutes infringement of the Treaty objective of activity intended to ensure energy security and the principle of energy solidarity, as well as infringement of Article 7 of the Treaty [on the Functioning of the European Union] through the adoption of a decision which is contrary to other European Union policies.

Twelfth plea in law, alleging privileged treatment of infrastructures covered by the exemption, the status of which is incompatible with EU law.

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

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

Sixteenth plea in law, based on Article 277 TFEU, alleging that Article 2(33) of Directive 2009/73/EC, read in conjunction with Article 36(1) of that directive, is rendered inapplicable as a result of the arbitrary introduction of a discriminatory division between infrastructure that may be subject to the regulatory exemption and other infrastructure not qualifying for that exemption.

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