Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 6 June 2024 (1)
Case C‑255/22 P
Orlen S.A., formerly Polski Koncern Naftowy Orlen S.A., formerly Polskie Górnictwo Naftowe i Gazownictwo S.A.
v
European Commission
(Appeal – Competition – Article 102 TFEU – Article 54 of the EEA Agreement – Abuse of a dominant position – Gas markets of Central and Eastern Europe – Article 9(1) of Regulation (EC) No 1/2003 – Commission decision to make binding the individual commitments proposed by an undertaking – Action for annulment – Adequacy of the commitments proposed in the light of the competition concerns identified in the statement of objections – Nature of the EU Courts’ power of review – Commission decision not to require commitments in relation to some of the initial concerns – Obligation to state reasons – Energy-policy objectives of the European Union – Article 194 TFEU – Principle of energy solidarity – Applicability)
I. Introduction
1. By the present appeal, Orlen S.A. (‘Orlen’ or ‘the appellant’), successor in title to Polskie Górnictwo Naftowe i Gazownictwo S.A., asks the Court of Justice to set aside the judgment of the General Court of the European Union of 2 February 2022, Polskie Górnictwo Naftowe i Gazownictwo v Commission (Commitments by Gazprom) (T‑616/18; ‘the judgment under appeal’, EU:T:2022:43), by which the General Court dismissed its action for annulment of Commission Decision C(2018) 3106 final of 24 May 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39816 – Upstream gas supplies in Central and Eastern Europe) (2) (‘the decision at issue’). That decision made binding the commitments proposed by Gazprom PJSC and Gazprom export LLC (together ‘Gazprom’) and closed the administrative procedure conducted by the Commission, which examined, in the light of the prohibition of abuse of a dominant position laid down in Article 102 TFEU, the compatibility with EU law of some of Gazprom’s practices affecting the gas sector in certain Central and Eastern European countries (‘the CEE countries’), namely Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia.
2. At the same time, a cross-appeal, also seeking to have set aside the judgment under appeal, was lodged by Overgas Inc, intervener at first instance in support of Orlen (‘the intervener’ and ‘the cross-appellant’).
3. The present case gives the Court an opportunity to develop its case-law on disputes arising from decisions to make binding the commitments proposed by undertakings pursuant to Article 9 of Regulation (EC) No 1/2003. (3) Although the present case raises the issue already known to the Court of the judicial review of competition decisions taken by the Commission and, in particular, pursuant to Article 9 of that regulation, in the light of the principle of proportionality, it also raises the more novel issues relating to (i) the compatibility of a decision adopted under Article 9 of that regulation with the principle of energy solidarity set out in Article 194 TFEU and (ii) procedural rules governing the content of statements of objections, in particular with regard to the possible lack of a statement of reasons relating to the abandonment of objection(s) in the course of the procedure leading to the adoption of a decision pursuant to Article 9 of that regulation.
4. In keeping with the Court’s request, this Opinion will be focused on the analysis of the third part of the first ground of appeal, and the second and third grounds of appeal, relating, in essence, to the two aforementioned issues. This Opinion will also clarify the interpretation of the concept of ‘manifest error of assessment’ which lies at the heart of the first part of the third ground of appeal, and of the second ground of the cross-appeal.
II. Legal context
5. Article 9(1) of Regulation No 1/2003, entitled ‘Commitments’, is worded as follows:
‘Where the Commission intends to adopt a decision requiring that an infringement be brought to an end and the undertakings concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment, the Commission may by decision make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission.’
III. Background to the dispute
6. The background to the dispute and the content of the decision at issue are set out in paragraphs 1 to 36 of the judgment under appeal. For the purposes of this Opinion, they can be summarised as follows.
A. The administrative procedure
7. Between 2011 and 2015, the Commission took several measures in order to investigate the functioning of the gas markets in Central and Eastern Europe. In particular, under Articles 18 and 20 of Regulation No 1/2003, the Commission sent requests for information to various market participants, which included Gazprom and some of its customers, including the appellant, and conducted inspections, inter alia at the premises of the appellant during 2011. (4)
8. In that context, on 31 August 2012, the Commission formally initiated proceedings with a view to adopting, under Article 11(6) of Regulation No 1/2003 and Article 2 of Regulation (EC) No 773/2004, (5) a decision pursuant to Chapter III of Regulation No 1/2003.
9. On 22 April 2015, pursuant to Article 10 of Regulation No 773/2004, the Commission sent a statement of objections to Gazprom (‘the statement of objections’), in which it had come to a preliminarily conclusion that Gazprom held a dominant position on national markets for the upstream wholesale supply of gas in the CEE countries concerned and that it was abusing that position by engaging in an anticompetitive strategy for the purpose of fragmenting and isolating those markets and thereby preventing the free flow of gas in the CEE countries concerned in breach of Article 102 TFEU.
10. According to the Commission, Gazprom’s strategy involved three sets of anticompetitive practices affecting customers in the CEE countries concerned and the contracts concluded by those customers with Gazprom.
11. First, Gazprom had imposed territorial restrictions in its gas supply contracts with wholesalers and certain industrial customers in the CEE countries concerned, restrictions which allegedly resulted from contractual clauses, prohibiting exports outside the territory of supply or requiring the gas supplied to be used in a given territory. Gazprom also allegedly used other measures preventing the cross-border flow of gas.
12. Second, those territorial restrictions had allowed Gazprom to pursue an unfair pricing policy in five of the CEE countries concerned, namely Bulgaria, Estonia, Latvia, Lithuania and Poland, by charging excessive prices in that they were significantly higher than the level of Gazprom’s costs or of certain prices regarded as price benchmarks.
13. Third, Gazprom had made its supplies of gas in Bulgaria and Poland conditional on its obtaining certain commitments from wholesalers in relation to gas transport infrastructure. Those commitments would have concerned, on the one hand, investments by the Bulgarian wholesaler in the South Stream pipeline project and, on the other hand, acceptance by the Polish wholesaler, namely the appellant, of Gazprom’s increased control over the management of the Polish section of the Yamal pipeline, one of the main gas transit pipelines in Poland (‘the Yamal objections’).
14. On 29 September 2015, Gazprom responded to the statement of objections by challenging the Commission’s competition concerns and, pursuant to Article 12 of Regulation No 773/2004, was subsequently heard at a hearing held on 15 December 2015. On 14 February 2017, while continuing to dispute the competition concerns contained in the statement of objections, Gazprom submitted formal proposed commitments (‘the initial commitments’) pursuant to Article 9 of Regulation No 1/2003. That proposal had been preceded by informal proposals for commitments.
15. On 16 March 2017, with a view to obtaining the observations of the interested parties on the initial commitments, the Commission published a communication pursuant to Article 27(4) of Regulation No 1/2003, containing a summary of Case AT.39816 and the main content of the initial commitments.
16. On 15 March 2018, after receiving non-confidential versions of the interested parties’ observations on the initial commitments, Gazprom submitted revised proposed commitments (‘the final commitments’).
17. On 24 May 2018, the Commission adopted the decision at issue, to which the final commitments were annexed. By that decision, the Commission approved and made binding those commitments and closed the administrative procedure, concluding that there were no longer grounds for action by the Commission in relation to the potentially abusive practices initially identified in the statement of objections.
B. The decision at issue
18. In the decision at issue, the Commission first presented a preliminary assessment of Gazprom’s practices, before presenting the initial commitments, the results of the market test and the final commitments. Next, the Commission set out its assessment of the final commitments and its reasons for considering them satisfactory in view of its competition concerns.
1. The preliminary assessment of the practices in question
19. In the first place, with regard to the preliminary assessment of the practices in question, the Commission defined, in Section 4 of the decision at issue, the national markets for the upstream wholesale supply of gas as relevant markets. In that regard, it also found that Gazprom held a dominant position on the relevant markets in the CEE countries concerned.
20. The Commission considered that Gazprom may have abused its dominant position, in breach of Article 102 TFEU, by engaging in an anticompetitive strategy aimed at preventing the free flow of gas in the CEE countries concerned and thereby isolating the relevant markets in those countries. In particular, the Commission considered that that strategy involved three sets of anticompetitive practices corresponding, in essence, to the competition concerns identified in the statement of objections. (6)
21. As regards the Yamal objections, although, in the context of the market test, some of the interested parties had observed the absence of commitments addressing those objections, the Commission explained, in recital 138 of the decision at issue, that, following further investigation, its preliminary competition concerns had not been confirmed. On the one hand, the Commission conveyed that the Polish Energy Regulatory Office had concluded that the independent system operator of the Polish section of the Yamal pipeline exercised decisive control over investment decisions relating to that section of the pipeline and over their implementation, and that Gazprom was not in a position to block decisions concerning that pipeline. On the other hand, the Commission noted the intergovernmental character of relations between the parties active in the gas sector in Poland, in particular as regards the construction and operation of the Polish section of the Yamal pipeline, and concluded that the fact may have, to a large extent, determined the behaviour of the parties concerned.
2. The content of the final commitments
22. In the second place, so far as concerns the content of the final commitments, which are annexed to the decision at issue and are intended to address the Commission’s competition concerns, they can be summarised as follows.
23. First, as regards the commitments to address the concerns relating to territorial restrictions, Gazprom first of all committed itself, in essence, to removing, from gas supply contracts concluded with its customers established in the CEE countries concerned, all provisions that directly or indirectly prohibited or impeded the free flow of gas between the CEE countries concerned. Furthermore, in order to allow gas flows between, on the one hand, Bulgaria and the Baltic States and, on the other hand, the other CEE countries concerned, in spite of the infrastructural isolation of the former, Gazprom undertook to take measures in order to offer the relevant customers the possibility to request that all or parts of their contractual gas volumes delivered at certain delivery points in Hungary, Poland and Slovakia be delivered instead at another delivery point in Bulgaria or the Baltic States. Following the market test, Gazprom has, in the final commitments, inter alia strengthened its proposal concerning the change in delivery points.
24. Second, as regards the commitments to address the pricing concerns, Gazprom undertook to introduce new clauses or, where appropriate, to modify existing clauses in the contracts with its relevant customers in Bulgaria, Estonia, Latvia, Lithuania and Poland.
25. Third, as regards the commitments associated with the competition concerns relating to the supply of gas at a given price being made conditional on the Bulgarian wholesaler obtaining an assurance concerning investments in the South Stream pipeline project, Gazprom undertook to allow the Bulgarian partners involved in that project to withdraw from it without seeking to hold them civilly liable and without recovering the gas price rebates it had granted in return for their participation in that project.
3. The assessment and implementation of the final commitments
26. In the third and last place, with regard to the assessment and implementation of the final commitments indicated in the decision at issue, the Commission concluded, in essence, that the final commitments were effective and necessary, without being disproportionate, to address its competition concerns, and stated that it had taken into account, in that regard, developments in the gas markets since notification of the statement of objections. Accordingly, the Commission decided to make the final commitments binding pursuant to Article 9 of Regulation No 1/2003.
C. The complaint relating to the Yamal objections
27. In parallel with the administrative procedure initiated by the Commission and which gave rise to the decision at issue, the appellant, on 9 March 2017 and pursuant to Article 5 of Regulation No 773/2004, lodged a complaint alleging abusive practices by Gazprom. (7) Those practices, which overlapped to a great extent with the competition concerns already set out in the statement of objections, included, inter alia, claims relating to abuse committed by Gazprom in connection with the Polish section of the Yamal pipeline.
28. On the basis that the decision at issue responded to the appellant’s concerns and that it took into account the observations submitted by the appellant in the context of the market test in Case AT.40497, the Commission adopted, on 17 April 2019, Decision C(2019) 3003 final rejecting the complaint (Case AT.40497 – Polish gas prices).
29. On 25 June 2019, the appellant brought an action before the General Court against that decision rejecting its complaint, registered as Case T‑399/19.
IV. Proceedings before the General Court and the judgment under appeal
30. By application lodged at the Registry of the General Court on 15 October 2018, the appellant brought an action for the annulment of the decision at issue. In support of its action, the appellant relied on six pleas in law, alleging, in essence, in the first three, infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission committed a manifest error of assessment by accepting insufficient and inadequate final commitments and, in the fourth, infringement of Article 194(1) TFEU, read in conjunction with Article 7 TFEU, in that the decision at issue is contrary to the energy-policy objectives of the European Union and in that the Commission failed to take account of the negative impact of that decision on the European gas supply market. The fifth plea related to the discrimination by the Commission between Gazprom’s customers operating in the Western European Member States and those operating in the CEE countries concerned. The sixth plea related to the Commission’s disregard for the objective referred to in Article 9 of Regulation No 1/2003 and the limits of its powers in the management of the administrative procedure.
31. On 2 February 2022, the General Court delivered the judgment under appeal dismissing all of those pleas and, therefore, the action for annulment in its entirety.
V. Proceedings before the Court of Justice and forms of order sought
32. On 8 April 2022, the appellant brought an appeal against the judgment under appeal. It claims that the Court should set aside the judgment under appeal and annul the decision at issue; in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and order the Commission to pay the costs incurred in the appeal and in the proceedings before the General Court.
33. In support of its appeal, the appellant raises four grounds of appeal, alleging, in essence: (i) infringement of Article 9 of Regulation No 1/2003; (ii) infringement of the principle of energy solidarity as set out in Article 194 TFEU, read in conjunction with Article 9 of Regulation No 1/2003; (iii) infringement of Article 9(1) of that regulation, in that the General Court erroneously interpreted the concept of ‘manifest error of assessment’ during its examination of the Commission’s assessment of complex economic and technical questions in respect of the adequacy of the commitments; and (iv) infringement of Article 9(2) of that regulation which led the court to consider, wrongly, that the Commission had not committed a manifest error of assessment in relation to the adequacy of the commitments.
34. The Commission, supported by Gazprom, contends that appeal should be dismissed and the appellant be ordered to pay the costs. As for Overgas and the Republic of Poland, they contend that the Court should allow the appeal.
35. On 3 August 2022, Overgas brought a cross-appeal requesting that the judgment under appeal be set aside and that the Commission be ordered to pay the costs. The Commission, supported by Gazprom, contends that the Court should dismiss the cross-appeal and order Overgas to pay the costs incurred in the cross-appeal. As for the appellant, it contends that the Court should allow the cross-appeal on the first ground and set aside the judgment under appeal.
VI. Analysis
36. The present case above all raises the issue of the judicial review of competition decisions adopted by the Commission and, in particular, decisions taken pursuant to Article 9 of Regulation No 1/2003. More specifically, the examination of the grounds of appeal and the grounds of the cross-appeal will require the Court to rule on three main issues:
– the first concerning the relationship between the principle of energy solidarity set out in Article 194 TFEU and a decision adopted pursuant to Article 9 of Regulation No 1/2003, in order to address the concerns relating to the infringement of Article 102 TFEU (B);
– the second relating to the procedural treatment of a statement of objections in the context of the proceedings provided for in Article 9 of that regulation which, in principle, do not require a statement of objections (C);
– the third relating to the intensity of review by the EU Courts of decisions adopted by the Commission pursuant to Article 9 of that regulation (8) and, accordingly, how to interpret the concept of ‘manifest error of assessment’ (D).
37. Before proceeding to the analysis of the first two issues which will be considered in this targeted Opinion, (9) I consider it useful to point out, in brief, the legal provisions relating to decisions adopted pursuant to Article 9 of Regulation No 1/2003 and to set out the following preliminary observations (A).
A. Preliminary observations
38. It should be borne in mind, in the first place, that the mechanism introduced by Article 9 of Regulation No 1/2003 is based on considerations of procedural economy and is intended to ensure that the competition rules are applied effectively, by providing a more rapid solution to the competition concerns identified by the Commission, instead of proceeding by making a formal finding of an infringement. (10) Accordingly, contrary to decisions taken under Article 7 of that regulation (aiming to put an end to the infringement that has been found to exist), in proceedings under Article 9 of that regulation, the Commission is not required to make a finding of an infringement, its task being confined to examining, and possibly accepting, the commitments offered by the undertakings concerned in the light of the competition concerns identified by it in its preliminary assessment and having regard to the aims pursued. (11)
39. It must be noted, in the second place, that the Commission has a wide margin of discretion to accept commitments under Article 9 of Regulation No 1/2003, in so far as it is called upon to carry out a forward-looking analysis that requires numerous economic factors to be taken into account in order to assess the adequacy of the commitments offered by the undertaking concerned. (12) Consequently, the appropriate test to be applied in relation to the Commission’s concerns, as expressed in its preliminary assessment, is to determine whether the commitments are sufficient to address adequately those concerns, without the Commission being required itself to seek out less onerous or more moderate solutions than the commitments offered to it. (13)
40. It should be stated, in the third place, that, with regard to the nature and scope of judicial review in the field in question, it is apparent from the Court’s settled case-law that the fact that the Commission shall have discretion with regard to economic matters for the purposes of applying competition rules, and in particular Article 9 of Regulation No 1/2003, justifies the review by the EU courts of a Commission decision with regard to commitments being limited in the absence of a manifest error of assessment. (14) It follows that, in the exercise of their review of such complex economic situations, the EU Courts cannot substitute their own economic assessment for that of the Commission by putting forward their own assessment of complex economic circumstances. (15)
41. However, as the Court has repeatedly held in the context of areas giving rise to complex economic assessments, such as competition law, the discretion enjoyed by the Commission does not mean that the EU Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. (16) According to the principles established by the case-law of the Court, the EU Courts must, in particular, not only establish whether the evidence relied on is factually accurate, reliable and consistent, but also review whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. (17)
42. It follows that judicial review of decisions taken by the Commission under Article 9 of Regulation No 1/2003 is therefore based on the EU Courts verifying that the commitments are sufficient to address adequately the competition concerns identified by the Commission, by taking account of the circumstances of the case, that is to say, the seriousness of the competition concerns, their extent and the interests of third parties. (18)
43. It should be noted, in the fourth and last place, that the Court’s case-law in that field is relatively limited (19) and principally concerns analysis of whether the commitments in question are adequate and sufficient, in particular in the light of the principle of proportionality, (20) and the consideration and protection of third party interests in the Commission’s acceptance of those commitments.(21)
B. The relationship between the principle of energy solidarity set out in Article 194 TFEU and a decision adopted pursuant to Article 9 of Regulation No 1/2003 (third part of the first ground of appeal and second ground of appeal)
44. Both by the third part of the first ground of appeal and by the second ground of appeal, which should be examined together, the appellant complains that the General Court erred in law in the review of the Commission’s assessment of the adequacy of the commitments by failing to take into account the objectives pursued by Article 194 TFEU, including, in particular, the principle of energy solidarity.
45. Furthermore, according to the appellant, the General Court, like the Commission, misinterpreted Article 194 TFEU in a way that is contrary to the interpretation of the Court of Justice in the judgment of 15 July 2021, Germany v Poland (C‑848/19 P, EU:C:2021:598) (‘the judgment in Germany v Poland’), and which renders that provision ineffective with regard to the Commission’s actions aimed at enforcing both the objectives of competition law in general terms and those relating to the proper functioning of the Union’s energy market.
46. In that context, it is necessary to examine whether, by proceeding in the manner in which it did, the General Court erred in law as alleged by the appellant. Before expressing a view on the General Court’s analysis, I consider it useful to make some preliminary observations relating to Article 194 TFEU and with regard to the relationship between that provision and the competition analysis that the Commission is required to carry out pursuant to Article 9 of Regulation No 1/2003.
1. The principle of energy solidarity and its interaction with competition law
47. It should be borne in mind, as a preliminary point, that, in accordance with Article 7 TFEU, the European Union is to ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.
48. It must be noted, first, with regard to Article 194 TFEU, that that provision sets out, in paragraph 1 thereof, the main EU energy policy objectives, including energy solidarity. (22) In that regard, it is apparent from the judgment in Germany v Poland that the principle of solidarity underpins and covers all the objectives set out in Article 194(1)(a) to (d) TFEU that the EU energy policy aims to achieve by serving as the thread that binds them together and gives them coherence (23) and that acts adopted by the EU institutions, including by the Commission under that policy, must be interpreted, and their legality assessed, in the light of the principle of energy solidarity. (24)
49. In that judgment, the Court also stated, in paragraph 69, that ‘the EU institutions and the Member States must take into account the principle of energy solidarity … in the context of the establishment and functioning of the internal market and, in particular, the internal market in natural gas, by ensuring security of energy supply in the European Union, which means not only dealing with emergencies when they arise, but also adopting measures to prevent crisis situations. To that end, it is necessary to assess whether there are risks for the energy interests of the Member States and the European Union, and in particular to security of energy supply’.
50. It is apparent, second, from the Court’s settled case-law that objectives pursued by other TFEU provisions must, when circumstances require it, be taken into account in the context of Articles 101 and 102 TFEU. The competitive assessment thus requires taking into account the context and examining the effects when assessing a restriction of competition in the light of the actual conditions in which the market functions, having regard to all relevant factors in that connection. (25)
51. As regards, third, the procedure to follow under Article 9 of Regulation No 1/2003, it cannot be ruled out that the Commission is required, in its preliminary assessment and when the circumstances of the case so require, to take account of objectives pursued by other TFEU provisions, in particular in order to find, on a preliminary basis, that there has been no infringement of the competition rules. (26)
52. In the present case, the Court is asked to confirm whether this is also the case with regard not to a finding of problematic conduct from a competition law point of view but in relation to the Commission’s examination of commitments and the way in which considerations unrelated to competition law, such as in the present case, the principles and objectives pursued by Article 194 TFEU must be taken into account in the context of the Commission’s analysis leading to the acceptance of commitments under Article 9 of Regulation No 1/2003.
2. Consideration of Article 194 TFEU in the context of a decision adopted pursuant to Article 9 of Regulation No 1/2003
53. It should be noted, in the first place, that, so far as concerns the judicial review of commitments, the General Court employed a classic scheme of analysis in accordance with the Court’s case-law, as described in points 40 to 42 of this Opinion, by recalling in paragraph 420 of the judgment under appeal that the role of the Commission (and, a fortiori, that of the EU Courts in examining a manifest error of assessment) is to ensure that the commitments are sufficient and can respond adequately to the stated competition concerns, by taking account of the circumstances of the case, that is to say the seriousness of the concerns, their extent and the interests of third parties. (27)
54. In the second place, although, in paragraph 420 of the judgment under appeal, the General Court does not expressly refer to the principle of energy security when analysing commitments made by Gazprom, it expressly noted that commitments made following a procedure based on Article 9(1) of Regulation No 1/2003 ‘may not lead to a result which is contrary to the specific provisions of the Treaties’. (28) It follows that the General Court therefore found, first, that the Commission’s discretion was limited by the obligation to act in compliance with TFEU provisions and the general principles of EU law, and recognised, second, the competence of the Commission to verify whether the commitments themselves infringed other provisions of the Treaty, including Article 194(1) TFEU.
55. In the third place, it must be stated that, in paragraph 422 of the judgment under appeal, the General Court considered that, in this case, in so far as the Commission had considered that the commitments made by Gazprom were sufficient and adequate in the light of competition concerns, it ‘was not obliged, in order to take account of the energy-policy objectives of the European Union, to investigate more of Gazprom’s practices or to require from Gazprom more binding commitments’. The General Court thus concluded that, in the context of the present case, ‘possible consideration of those objectives in the application of the EU competition rules cannot justify imposing such positive obligations on the Commission’.
56. I share that view.
57. The fact that the Commission’s discretion is limited by its obligation to act in compliance with the provisions of the Treaties results, in essence, in an obligation on the Commission when it acts in the context of a procedure under Article 9(1) of Regulation No 1/2003 to verify that the commitments it intends to accept and that it considers to be capable of responding adequately to the competition concerns raised by the Commission are not liable to infringe other TFEU provisions including, in the present case, Article 194 TFEU.
58. It follows that the Commission cannot accept commitments that could result in an infringement of Article 194 TFEU and thus undermine the objectives pursued by the principle of energy solidarity or the security of energy supply in the European Union, notwithstanding the fact that that commitment may respond to the competition concerns raised by the Commission on the market concerned. (29) However, that does not mean that the Commission, acting as competition regulator in the context of the procedure provided for in Regulation No 1/2003, has the power to impose independent obligations going beyond those intended to remedy the competition issues identified in its investigation (and which are motivated by policies other than competition law policies) by requiring more binding commitments in that regard.
59. It is therefore without erring in law that, in paragraph 422 of the judgment under appeal, the General Court refused to treat the application of the principle of energy solidarity by the Commission as analogous to the imposition of positive obligations on the latter going beyond the scope of the complaints directed against Gazprom, or to the imposition of more binding obligations.
60. It should be noted, in that regard, that, by acknowledging in its appeal and at the hearing, that the principle of energy solidarity should not be treated as analogous to the imposition of positive obligations going beyond the powers of the Commission in the field of competition policy, the appellant does not seem to contest the position adopted by the General Court in paragraph 422 of the judgment under appeal. Although the appellant draws attention to the fact that both the Commission and the General Court failed to take into account the principle of energy security set out in Article 194(1) TFEU, it does not indicate clearly how the decision at issue or the judgment under appeal would disregard the specific objectives of the EU’s energy policy, or how the commitments infringe that provision or are, as such, contrary to the principle of energy security. The appellant merely notes the importance of that principle and observes that the Commission and the General Court were required to take it into account in their assessment of the commitments made by Gazprom without being able to determine the analytical framework and the exact interpretation that the Commission should have adopted and how it could have reached a different conclusion to that drawn by the Commission or the General Court.
61. It is also without erring in law that the General Court found, in paragraphs 423 and 424 of the judgment under appeal that the decision at issue and those commitments in no way prevent the EU institutions or the Member States from acting in other ways to address the problems identified by the appellant. (30) Moreover, there is nothing to prevent EU institutions or the national regulatory authorities, which have concurrent energy policy competences with those of the Commission, and which are therefore, by definition, best placed to take action in order to amend the rules in that sector or, where appropriate, to ensure compliance with specific energy rules in the energy sector. (31)
62. In the fourth and last place, in so far as the appellant maintains that the General Court had not penalised the Commission for having failed to give sufficient reasons for the decision at issue on the issue of its compliance with Article 194(1) TFEU, that complaint must also be dismissed. Thus, contrary to what the appellant submits, the fact that the Commission did not expressly refer to Article 194 TFEU and to the objectives pursued by that provision cannot be interpreted as a refusal or a failure to take the energy sector into consideration. As was rightly noted by the General Court in paragraph 427 of the judgment under appeal, the Commission cannot be expected systematically to set out the reasons why the decision at issue complies with all the specific provisions of the Treaties which, although they do not constitute the legal basis for the measure at issue, could possibly have a link to the factual and legal context of that measure.
63. In the light of the foregoing, I propose that the third part of the first ground of appeal and the second ground of appeal should be dismissed as unfounded.
C. The procedural treatment of a statement of objections in the context of the proceedings provided for in Article 9 of Regulation No 1/2003
64. The second issue, which, at the request of the Court, must be considered in this targeted Opinion, concerns the procedural treatment of a statement of objections in the context of the proceedings provided for in Article 9 of Regulation No 1/2003 in the light of the General Court’s findings in that regard which it is appropriate to consider briefly.
1. The approach adopted by the General Court
65. It should be borne in mind, as a preliminary point, that, in the present case, the Commission had initially initiated proceedings under Articles 101 and 102 TFEU, on account of the alleged infringement of Article 102 TFEU by Gazprom on the gas markets of Central and Eastern Europe, which required the issue of a statement of objections. (32) In the present case, the notification of that statement of objections resulted in Gazprom proposing commitments to the Commission pursuant to Article 9 of Regulation No 1/2003. It should also be noted that the final commitments approved by the decision at issue made no reference to the Yamal objections which, although initially appearing in the statement of objections, were abandoned in the course of the proceedings by the Commission on the ground that its competition concerns had not been confirmed. (33)
66. In the action before the General Court, the appellant, supported by the Republic of Poland, criticised the Commission for abandoning the Yamal objections and, as a corollary, the absence of a commitment addressing those objections. (34) Moreover, those parties take the view that, contrary to the approach adopted by the Commission, it was required to justify the absence of a commitment relating to the Yamal objections.
67. Although the General Court dismissed the appellant’s action concerning the validity of the abandonment of initial objections relating to the Yamal pipeline and the absence of a commitment to address those objections by taking the view that the Commission had not committed a manifest error of assessment in that regard, it stated, in paragraph 83 of the judgment under appeal, that ‘in the circumstances of the present case and, in particular, in the absence of a revised preliminary assessment, Article 9 of Regulation No 1/2003 required the Commission, contrary to what it maintains, to have reasons for the absence of a commitment to address the Yamal objections’. (35) However, it found, in paragraph 85 of the judgment under appeal, that the Commission had fulfilled its obligation to state reasons by setting out, in paragraph 138 of the decision at issue, its reasons for not imposing a commitment to address the Yamal objections.
68. For its part, the Commission, whilst disputing the General Court’s interpretation in that regard, nevertheless maintains that the error committed by the General Court should not result in the setting aside, even on a partial basis, of the judgment under appeal, in so far as that would affect only the grounds of the judgment, the operative part of which is based on other legal considerations. Accordingly, if applicable, it would only be necessary to substitute the grounds to an extent appropriate.
2. General rules on the procedural treatment of a statement of objections in the context of Regulation No 1/2003
69. It should be borne in mind, in the first place, that the statement of objections constitutes a formal step in the Commission’s investigations of alleged infringements of EU antitrust rules which precede the adoption of a decision finding an infringement of such rules. In the context of the administrative procedure as laid down by Regulation No 1/2003, the statement of objections is a procedural and preparatory document which delimits the scope of the administrative procedure initiated by the Commission by which it informs in writing the undertaking in question of the objections raised against it. (36)
70. As a preliminary step in the procedure, the issue of a statement of objections does not in any way prejudge the outcome of an investigation by the Commission. It is therefore inherent in the nature of the statement of objections that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission on the basis of the observations submitted to it by the parties and other findings of fact. It follows that the Commission is not bound by the assessments of facts or of law set out in the statement of objections and that it is therefore entirely open to the Commission to abandon certain objections which, therefore, can no longer, by definition, be subject to challenge before the courts. (37)
71. Moreover, it must be pointed out that it is apparent from the Court’s settled case-law, since the judgment in IBM v Commission, (38) that a statement of objections cannot be considered, on the basis of its nature and the legal effects it produces, as being a decision within the meaning of Article 263 TFEU which may be challenged in an application for a declaration that it is void. (39) It is clear from that case-law that an act or a decision may be the subject of an action for a declaration that it is void only if it is a measure definitively laying down the position of the institution on the conclusion of the procedure in question, and not a provisional measure intended to pave the way for the final decision, final measures being the only ones capable of producing mandatory legal effects capable of affecting the interests of the undertakings concerned by that investigation. (40)
72. As regards, in the second place, the rights of the parties involved in the administrative procedure conducted by the Commission in application of Article 102 TFEU, it must be noted that, while the Commission is required to respect the rights of third parties, that procedure mainly concerns the undertaking under investigation, with the latter being the sole recipient of the statement of objections (and, subsequently, the final decision). The statement of objections thus constitutes a fundamental procedural guarantee intended to inform that party of the complaints directed against it so that it may exercise its right of defence. (41)
73. Accordingly, if the issue of a supplementary statement of objections were necessary when the Commission intends to rely on new objections, which were not included in the initial statement of objections, in order to ensure that the rights of defence of the undertaking concerned may be exercised effectively by giving it the opportunity to respond formally to the additional evidence, (42) no such obligation exists in the reverse situation when the Commission intends to abandon one or several objections. (43) In any event, it is not necessary for the Commission to give reasons in its final decision for the abandonment of objections included in the initial statement of objections. (44)
3. The procedural treatment of a statement of objections in the context of the proceedings provided for in Article 9 of Regulation No 1/2003
74. With regard to the commitments procedure, Article 9(1) of Regulation No 1/2003 provides that the commitments offered by the parties must meet the concerns set out in the preliminary assessment carried out by the Commission.
75. In this instance, the General Court noted, in paragraph 79 of the judgment under appeal, that, in the present case, the statement of objections fulfils the requirements of a preliminary assessment (45) and considered, in paragraph 83 of that judgment, that, in the absence of a revised preliminary assessment confirming the abandonment of the Yamal objections, Article 9(1) of Regulation No 1/2003 required the Commission to have reasons for the absence of a commitment addressing those objections. (46)
76. Although Article 9 of Regulation No 1/2003 establishes a link between the commitments and the preliminary assessment carried out by the Commission, in so far as they are supposed to respond to the concerns raised in that assessment, the fact remains that the approach adopted by the General Court is difficult to reconcile with the text of Regulation No 1/2003 (47) and with the Court’s case-law on the right to be heard set out in point 73 above.
77. To impose on the Commission an obligation to address to the recipient of the commitment decision, between the notification of the statement of objections and the adoption of the final decision, an additional document demonstrates, as the Commission maintains, excessive formalism, if that document confined itself to stating that the Commission had abandoned an objection. Apart from the fact that such an initiative is not necessary to guarantee the procedural rights of the undertaking concerned, it is of no interest for that undertaking. (48) A different interpretation of Article 9 of Regulation No 1/2003 would also call into question the classification of the statement of objections as a preparatory document which is provisional in nature and would be likely to render the commitments procedure null and void in certain circumstances as the General Court itself recognises in paragraphs 81 and 82 of the judgment under appeal. (49)
78. Furthermore, it is apparent from the Court’s case-law on the right to be heard, recalled in points 72 and 73 of this Opinion, that additional reasoning why the Commission ultimately abandoned, in the final decision, some of the earlier objections previously set out in the statement of objections is not necessary. The Commission’s obligation to state reasons, with regard to decisions adopted under Article 9 of Regulation No 1/2003, requires only that the Commission set out, clearly and unequivocally, the factual elements and legal considerations which led it to conclude that the commitments were sufficient to address the competition concerns raised at the end of the administrative procedure concluded by means of the adoption of its final decision, without the Commission being required to explain any possible differences in relation to the provisional assessments contained in the statement of objections. (50)
79. It should also be noted that the absence both of a revised preliminary assessment and the Commission’s reasons for abandoning the Yamal objections, and the absence of any commitments relating thereto are not, moreover, such as to affect the procedural rights of third parties. (51)
80. It must be emphasised, in that regard, that, in the context of the administrative procedure that resulted in the decision at issue, only Gazprom can be classified as an ‘undertaking concerned’ within the meaning of Regulation No 1/2003, the others – including the appellant – enjoying only the less extensive procedural rights of an ‘interested third party’.(52) As recalled by the General Court, in paragraph 78 of the judgment under appeal, in so far as the sole recipient of the preliminary assessment referred to in Article 9 of Regulation No 1/2003 (whether it takes the form of a statement of objections or another document) is the undertaking which is the subject of the Commission’s investigation, that assessment serves as a basis for the undertaking to formulate appropriate commitments addressing the competition concerns expressed by the Commission, or to better define preciously discussed commitments. (53) Furthermore, as the General Court rightly noted in paragraph 137 of the judgment under appeal, there are no provisions of Regulation No 1/2003 or Regulation No 773/2004 requiring the Commission formally to inform interested third parties when, in the course of proceedings, it abandons certain objections against the undertaking concerned.
81. It must also be noted that, with regard to the administrative procedure which led to the adoption of the decision at issue, the Commission sent a non-confidential version of the statement of objections to the appellant which, moreover, presented oral argument as an interested party in the course of the market test procedure provided for in Article 27(4) of Regulation No 1/2003. The market test being a pre-condition for the Commission to adopt a decision making the commitments binding. (54) The appellant also challenged the decision at issue on the basis of Article 263 TFEU, including with regard to the abandonment of the Yamal objections and the absence of a commitment to address those objections. (55)
82. The fact that the statement of objections fulfilled the requirements of a preliminary assessment within the meaning of Article 9 of Regulation No 1/2003 cannot call the foregoing findings into question. No provision of that regulation or, moreover, the Court’s interpretation thereof justifies treating a statement of objections differently depending on whether it forms the basis of a decision adopted under Article 7 or 9 of that regulation. (56)
83. Notwithstanding those considerations, nothing precludes the Commission, if it considers it necessary in view of the particular circumstances of a case, from setting out the reasons why it decided to abandon an objection and to justify the absence of a commitment addressing that objection as the Commission did in paragraphs 184 and 185 of the decision at issue. Although there is no such obligation under either Regulation No 1/2003 or Regulation No 773/2004, or the Court’s case-law in this area, the fact remains that the principle of sound administration, as noted by the Commission at the hearing, could justify such an approach in view of the specific circumstances of each case. (57)
84. In view of the above considerations, it should be noted that the approach advocated by the General Court, in paragraph 83 of the judgment under appeal, according to which the Commission is required to amend the scope of the statement of objections which fulfils the requirements of a preliminary assessment before the adoption of a final decision (including in the event of the abandonment of an objection) or, where appropriate, to state reasons for the abandonment of objections not included in that decision, is misconceived.
85. It should be borne in mind, in that regard, that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and, where certain conditions are fulfilled, a substitution of grounds should be made. (58) It should be noted, in this regard, that according to the Court’s settled case-law, a request for the substitution of grounds is admissible when it constitutes a defence to one of the appellant’s grounds of appeal. (59) However, in this case, in the context of the third ground of the appeal, the appellant argues that the abandonment of the Yamal objections contributed to the existence of a manifest error of assessment by the Commission which has not been sanctioned by the General Court, so that there is a sufficient link between that ground of appeal and the request for the substitution of grounds by the Commission which must be accepted in the present case.
86. It should be noted, lastly, that the judicial review to determine whether the Commission was right to recognise the commitments corresponding to the concerns it had raised must take into account the concerns that the Commission still had at the time of the adoption of the decision terminating the procedure and not the concerns which it abandoned after hearing the undertaking concerned and taking note of its position in that regard. (60) It follows that, contrary to what the appellant maintains, the competition concerns as identified in the statement of objections cannot be considered as a benchmark for assessing the lawfulness of a Commission decision (including a decision adopted pursuant to Article 9 of Regulation No 1/2003). As explained in points 69 to 73 of this Opinion, another interpretation – namely considering the Commission to be bound by its preliminary concerns, as identified in the statement of objections – would be contrary to the right of the addressee to be heard, and in particular the very purpose of Article 9 of Regulation No 1/2003.
87. It is therefore necessary to reject a significant part of the argument developed by the appellant in support of the first and second parts of the first ground of appeal and the third ground of appeal based on the incorrect premiss that the adequacy of the commitments proposed by Gazprom should be assessed in the light of the competition concerns identified by the Commission in the statement of objections.
D. The review by the General Court of the existence of a manifest error of assessment (first part of the third ground of appeal)
88. By the first part of the third ground of appeal, the appellant submits that the absence of an overall analysis by the General Court of the adequacy of the commitments leads to a misinterpretation of the concept of ‘manifest error of assessment’. It takes the view that the General Court failed to carry out an overall assessment, first, of all the circumstances of the case, and in particular the various commitments and objections raised, independently of the individual analysis of each of them and, second, of the cumulative effect of all the irregularities (non-manifest errors) identified by the General Court in its review of the adequacy of the commitments.
89. It should be borne in mind, in the first place, that it is for the appellant seeking the annulment of a decision adopted by the Commission under Article 9 of Regulation No 1/2003 to establish that the Commission committed a manifest error of assessment. (61) However, while the appellant merely states in the abstract that an overall analysis would lead to a different result from that reached by the General Court, the fact remains that it provides no such evidence and, above all, does not establish the existence of a manifest error of assessment committed by the General Court. (62)
90. It should be noted, in the second place, that, contrary to what the appellant maintains, it is not apparent from either the decision at issue or the judgment under appeal that the Commission or the General Court dispensed with an overall analysis of the commitments proposed by Gazprom.
91. It must be observed, first of all, with regard to the Commission, that the overall approach that it adopted in the assessment of the commitments is set out, in paragraphs 160 to 164 of the decision at issue. It should next be clarified, in that regard, that the Commission’s decision to detail the proportionality of each commitment in relation to the concerns that it had identified, cannot call into question its overall approach. Having regard to the various anticompetitive practices identified by the Commission and the complex and technical nature of the markets concerned, the Commission cannot be criticised for having sought to address Gazprom’s anticompetitive strategy in a gradual manner, through measures specifically addressing each of those practices, thereby countering that strategy. (63) That does not mean that, by acting in that way, the Commission has dispensed with an overall analysis.
92. The same applies with regard to the General Court, in so far as it is apparent from paragraphs 195 to 202 and 310 to 319 of the judgment under appeal respectively that the General Court carried out an overall assessment of both the pricing commitments and of those concerning territorial restrictions. As for, more specifically, the commitments relating to delivery points (which are part of the commitments concerning territorial restrictions), it must be stated that, having rejected, in paragraphs 322 to 397 of the judgment under appeal, the complaints put forward by the appellant, Overgas, the Republic of Lithuania and the Republic of Poland with regard to their effectiveness and proportionality, the General Court held, in paragraph 398 of the judgment under appeal, that, even taken together, they cannot lead to a finding of a manifest error.
93. Contrary to the criticisms made by the appellant that the General Court erred in finding that the outcome of an overall assessment cannot be different from that of the analysis of each of the objections taken individually, the approach adopted by the General Court is untainted by any error of law.
94. To the extent that, following an individual and detailed assessment of each of the complaints put forward by the parties, the General Court found no error of law in the Commission’s assessment and upheld the adequacy of the commitments in relation to the competition concerns identified by it, an overall assessment of those commitments cannot lead to an outcome different from that of the individual analysis or, still less, a finding of a manifest error. It follows that a manifest error of assessment could exist, from a conceptual point of view, only if the General Court had found at least one of the commitments accepted by the Commission to be inadequate so as to call into question, moreover, other commitments if they had been found to be linked. However, that is not so in the present case.
95. It is necessary, in the third place, to reject the appellant’s argument that, in disregarding the cumulative effect of all the errors identified by the General Court in its assessment of the commitments, it erred in law when interpreting the concept of ‘manifest error of assessment’.
96. It should be noted, in that regard, that, in the context of its assessment of the adequacy of the commitments relating to delivery points, the General Court identified certain irregularities vitiating the examination of those commitments by the Commission, without however considering that such circumstances could have an impact on the effectiveness of those commitments. It must be stated that the criticisms concerning the Commission’s assessment set out, in particular, in paragraphs 295, 358 and 362 of the decision at issue, relate more to the methodological approach adopted by the Commission in the context of its analysis than to the insufficiency of commitments.
97. It should also be borne in mind that a manifest error of assessment implies, as the name indicates, the existence, not of some irregularity or omission on the part of the Commission, but of an error capable of reaching a certain degree of seriousness such as to call into question the validity of the Commission’s analysis and, therefore, the lawfulness of the decision adopted. It follows that the review to determine whether there has been a manifest error of assessment does not therefore seek to ensure that the Commission’s analysis is untainted by any irregularity; the Commission has a certain margin for error, provided that the error in question is not manifest.(64)
98. In any event, in so far as the General Court found that those irregularities did not call into question the adequacy of the commitments or the lawfulness of the decision at issue, it cannot be criticised for not having found the existence of a manifest error of assessment. Therefore, contrary to what Orlen and Overgas maintain, there is no evidence to establish that cumulative minor errors, taken together, resulted in a manifest error of assessment.
99. In the light of the foregoing, I am of the view that the General Court was right to find that there was no manifest error in that regard.
VII. Conclusion
100. Having regard to the foregoing considerations, I propose that the Court should reject the third part of the first ground of appeal, the second ground of appeal and the first part of the third ground of appeal as unfounded.