Poland Files Opal Complaint against EC, German Regulator

The Germany-based subsidiary of Polish state gas monopoly PGNiG, PGNiG Supply & Trading GmbH, filed a complaint December 4 at the European Court of Justice against a decision by the European Commission (EC) exempting the 35bn m³/yr Opal gas pipeline from the obligation to apply the third-party access principle.

Polish parent PGNiG Supply & Trading has also submitted a motion for relief to suspend the effects of the decision issued by the EC.

If the challenge fails, from January 1, Russian export monopoly Gazprom will be able to use more of the capacity of the 55bn m³/yr Nord Stream, which has been operating below nameplate owing to regulatory restrictions at Opal, giving it greater control over gas flows into southern Germany and the Czech Republic.

This is the first of a range of legal measures PGNiG intends to take in this matter against the European Commission and the German network regulator Bundesnetzagentur, it said December 5, accusing them of "destroying the development of the competitive gas market." It accused the EC of violating the Treaty of the European Union and the third gas directive.

PGNiG CEO Piotr Wozniak said that "expanding the privileges enjoyed by Gazprom" could lead to the Russian company acquiring a monopoly in the supply of gas to central and eastern Europe, which would pose "a serious threat to the security of gas deliveries to Poland and the entire region."

The EC has yet to publicly disclose the content of the decision, perhaps owing to confidentiality concerns. The Bundesnetzagentur has also failed to respond to the application made by PGNiG for access to the decision as a matter of public record. Wozniak said at a streamed press briefing that the process ran counter to the idea of transparency. The normal way of operating he said would have been to draft a decision, consult and then publish it.

So far only Gazprom has had the opportunity to read the EC’s decision, which is of fundamental significance in the deterioration of conditions for competition on the gas market and, most importantly, impacts the security of gas supplies to central and eastern Europe, PGNiG said.

Nord Stream emerging at Greifswald

(Credit: Nord Stream AG)

On November 28, Bundesnetzagentur signed a contract with Gazprom, Gazprom Export and Opal Gastransport exempting the owners of the Opal gas pipeline from the obligation to apply in full EU regulations on third-party access. This contract enters into force on December 31, 2016.

On November 28 and December 1 respectively PGNiG and Naftogaz Ukrainy demanded the contract be suspended but so far with no result.

Lawyers for PGNiG and PGNiG Supply & Trading advised them that Bundesnetzagentur had broken German law by depriving them of the constitutional right to defend their interests. 

William Powell