Solidarity in the European Union’s energy policy is not merely a wishful thought but a justiciable principle of EU primary law. This is according Advocate General (AG) Campos Sánchez-Bordona, who on 18 March 2021 delivered his Opinion in Case C-848/19 P Germany v Poland. In his submission, the AG thus advises the Court of Justice to uphold the General Court’s ruling in Case T-883/16 Poland v Commission. Should the CJEU follow the AG’s opinion, this case has the potential to have far-reaching consequences for Union policy on gas imports and the infrastructure that facilitates them, but also for EU energy and climate law and policy more broadly. In this blog post, I explore some of the aspects of the AG’s Opinion that will make the Court’s judgment one to look out for.
1. The General Court Case and the Appeal
Before analysing the AG’s opinion, it is first necessary to give a brief overview of the proceedings before the General Court. Case T-883/16 concerned a dispute about capacity allocation in the OPAL natural gas pipeline. This pipeline connects to the offshore Nord Stream pipeline near Greifswald in North-East Germany and is a principal avenue for the distribution of Russian gas throughout central Europe. In 2016, the European Commission approved a decision by the German network operator that would have allowed Gazprom, a Russian supplier that is majority-owned by the Russian government, to expand its use of the OPAL pipeline’s capacity potentially far beyond the 50% it had been allowed to use so far under third-party access rules. Fearing that such an increase could endanger its security of supply, Poland brought a case before the General Court.