Language of document :

Action brought on 25 June 2019 — Polskie Górnictwo Naftowe i Gazownictwo v Commission

(Case T-399/19)

Language of the case: Polish

Parties

Applicant: Polskie Górnictwo Naftowe i Gazownictwo S.A. (Warsaw, Poland) (represented by: E. Buczkowska and M. Trepka, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the Commission decision of 17 April 2019 concerning proceedings under Article 102 of the Treaty on the Functioning of the European Union in Case AT.40497 — Polish gas prices, ending proceedings AT.40497 in accordance with Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty 1 and dismissing the complaint filed by the applicant on 9 March 2017 (‘PGNiG’s complaint’).

The applicant seeks the annulment of the part of the decision which relates to the grounds of PGNiG’s complaint concerning:

(i)    the limitation of the supply of gas to customers in several Member States of the European Union, including to the applicant, in the 2014/2015 winter season and

(ii)    rendering the conclusion, by the applicant, of a contract for the supplementary supply of gas dependent upon obtaining commitments unconnected with the contract concerning, inter alia, greater control over the Yamal Gas Pipeline.

As a procedural precaution, should the Court find a partial annulment of the decision not to be possible, the applicant claims that the Court should annul the decision in its entirety;

order the Commission to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging that the Commission adopted a decision which constituted an abuse of power, inasmuch as:

(i)    the Commission adopted a decision de facto finding that Article 102 TFEU does not apply to the anti-competitive practices of PJSC Gazprom and Gazprom Export LLC due to the existence of state coercion stemming from domestic law of the Russian Federation, and did so on an incorrect legal basis, that is to say on the basis of Article 7(2) of Regulation No 773/2004 read in conjunction with Article 102 TFEU instead of on the basis of Article 10 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81[EC] and 82 [EC] 2 read in conjunction with Article 102 TFEU, that is to say, in particular, in omitting to take into account the observations of the Member States of the European Union,

(ii)    the Commission initiated proceedings AT.40497 and conducted those proceedings with the aim of restricting the applicant’s right to be heard in the context of the proceedings conducted under Article 102 TFEU and Article 54 of the Agreement on the European Economic Area in Case AT.39816 — Upstream gas supplies in Central and Eastern Europe.

Second plea in law, alleging that the Commission adopted a decision which manifestly infringes Article 102 TFEU on account of an incorrect interpretation and the assessment that an undertaking may effectively rely on ‘state coercion’ stemming from the domestic law of a third State, which is not a Member of the European Union or the EEA, exonerating that undertaking from its liability in respect of an anti-competitive practice.

Third plea in law, alleging the adoption by the Commission of a decision which manifestly infringes the applicant’s right to be informed and to be heard provided for in Article 7(1) and Article 8(1) of Regulation No 773/2004, in Article 296 TFEU and in Article 47 of the Charter of Fundamental Rights inasmuch as it did not forward to the applicant the information concerning the fact that the Commission, as a basis for the rejection of PGNiG’s complaint concerning the issues in relation to the Yamal Gas Pipeline, also took into consideration the domestic law of the Russian Federation, and inasmuch as it failed to forward to the applicant all the essential documents in relation to that issue, which constitutes an infringement of essential procedural requirements.

Fourth plea in law, alleging the adoption by the Commission of a decision which manifestly infringes Article 7(1) of Regulation No 773/2004 and Article 296 TFEU, inasmuch as it failed to make a careful examination of all the factual and legal circumstances put forward in PGNiG’s complaint and inasmuch as it put forward reasoning which does not enable the General Court to effectively review the Commission’s implementation of its discretionary powers, which constitutes an infringement of essential procedural requirements.

Fifth plea in law, alleging the adoption by the Commission of a decision which manifestly infringes Article 7(2) of Regulation No 773/2004 read in conjunction with Article 102 TFEU inasmuch as the Commission committed manifest errors of assessment consisting

(i)    in holding that the decision of the President of the Energy Regulation Office of 19 May 2015 (bearing reference DRG-4720-2(28)/2014/2015/6154/KF) is an item of evidence permitting the inference that the ground of complaint relating to the conclusion of a contract for the operation of the Yamal Gas Pipeline may be regarded as uncorroborated,

(ii)    in making an incorrect assessment of the nature of the restrictions on the supply of gas by Gazprom during the 2014/2015 winter season.

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1 OJ 2004 L 123, p. 18.

2 OJ 2003 L 1, p. 1