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Document 62016TO0883(01)

Order of the President of the General Court of 21 July 2017.
Republic of Poland v European Commission.
Application for interim measures — Internal market in natural gas — Directive 2009/73/EC — Application by the Bundesnetzagentur for review of the exemption of the OPAL gas pipeline from EU operating requirements — Commission decision amending the exemption from EU requirements — Application for stay of execution — No urgency.
Case T-883/16 R.

Digital reports (Court Reports - general)

ECLI identifier: ECLI:EU:T:2017:542

ORDER OF THE PRESIDENT OF THE GENERAL COURT

21 July 2017 ( *1 )

(Application for interim measures — Internal market in natural gas — Directive 2009/73/EC — Application by the Bundesnetzagentur for review of the exemption of the OPAL pipeline from the EU requirements for its operation — Commission Decision amending the exemption from the EU requirements — Application for a stay of execution of a measure — Lack of any urgency)

In Case T‑883/16 R,

Republic of Poland, represented by B. Majczyna, M. Kawnik and K. Rudińska, acting as Agents,

applicant,

supported by

Republic of Lithuania, represented by D. Kriaučiūnas and R. Krasuckaitė, acting as Agents,

intervener,

v

European Commission, represented by O. Beynet and K. Herrmann, acting as Agents,

defendant,

supported by

Federal Republic of Germany, represented by T. Henze and R. Kanitz, acting as Agents,

intervener,

REQUEST on the basis of Articles 278 and 279 TFEU seeking a stay of execution of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute

1

By Decision C(2009) 4694 of 12 June 2009, the Commission of the European Communities requested the Bundesnetzagentur (BNetzA), the Federal Networks Agency, Germany, under Article 22 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), to amend its decision of 25 February 2009 excluding the transport capacities of the Ostseepipeline-Anbindungsleitung (‘OPAL’) pipeline project, which is the eastern on-shore section of the Nord Stream 1 pipeline, the entry point of which is near to the town of Lubmin, near Greifswald, in Germany, and the exit point in the town of Brandov, in the Czech Republic, from the application of the requirements on third party access laid down in Article 18 of that directive and the tariff regulations laid down in Article 25(2) to (4) thereof.

2

The Commission Decision of 12 June 2009 laid down the following conditions:

‘(a)

Without prejudice to the requirement in (b), an undertaking dominant on one or several large markets in natural gas upstream or downstream covering the Czech Republic shall not be authorised to reserve, in a single year, more than 50% of the transport capacities of the OPAL pipeline at the Czech border. Reservations from undertakings belonging to the same group, such as Gazprom and Wingas, shall be examined together. Reservations from dominant undertakings/groups of dominant undertakings having concluded significant long-term contracts for the supply of gas shall be examined on an aggregated basis …

(b)

The limit of 50% of the capacities may be exceeded if the undertaking concerned releases to the market a volume of 3 billion m3 of gas on the OPAL pipeline under an open, transparent and non-discriminatory procedure (“Gas Release Programme”). The undertaking managing the pipeline or the undertaking required to carry out the programme must ensure the availability of corresponding transport capacities and the free choice of the exit point (“Capacity Release Programme”). The form of the Gas Release and Capacity Release programmes is subject to the approval of the BNetzA.’

3

On 7 July 2009, the BNetzA amended its decision of 25 February 2009, adapting it to the abovementioned conditions laid down in the Commission decision of 12 June 2009. The exemption from the rules was granted by the BNetzA for a period of 22 years.

4

The OPAL pipeline was put into service on 13 July 2011 and has a capacity of some 36.5 billion m3. By virtue of the decisions of the Commission of 12 June 2009 and of the BNetzA of 25 February 2009, as amended by its decision of 7 July 2009, the capacities of the OPAL pipeline were totally exempted from application of the requirements on third party access and tariff regulation on the basis of Directive 2003/55.

5

The non-reserved 50% of that pipeline’s capacity has never been used since the company Gazprom did not implement the gas transfer programme referred to in the Commission decision of 12 June 2009. The entry capacity of the pipeline near to Greifswald is of interest only to third parties who are in a position to add gas at that point in the pipeline. In the current technical configuration, natural gas can be supplied at that entry point only by the Nord Stream 1 pipeline, used by the Gazprom group to transport gas from Russian gas fields, so that only 50% of the transport capacity of the OPAL pipeline appears, a priori, to be used.

6

On 13 May 2016, the BNetzA notified the Commission, on the basis of Article 36 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94), of its intention to amend certain provisions of the ‘exemption granted in 2009’ concerning the section of the OPAL pipeline managed by Opal Gastransport GmbH & Co. KG (‘OGT’).

7

On 28 October 2016, the Commission adopted, on the basis of Article 36(9) of Directive 2009/73/EC, Decision C(2016) 6950 final on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC (‘the contested decision’), which is addressed to the BNetzA.

8

In the contested decision, the Commission has maintained the exemption from the requirements on third party access granted to the OPAL pipeline for the section between the entry point near Greifswald and the exit point at Brandov for a maximum of 50% of the capacities, which it had already approved in its decision of 12 June 2009. However, the remaining 50% of the capacity on that section — unused until then because of the lack of implementation of the gas transfer programme by Gazprom — was liberalised, that is to say, made subject to the requirements on third party access. That liberalisation is to be carried out in the form of an allocation of the transport capacities which the pipeline manager is required to make in a transparent and non-discriminatory bidding procedure.

9

Since the non-discriminatory and transparent provision of the transport capacities thus liberalised could, de facto, also result in their use by Gazprom eksport, the Commission, in order to ensure that third parties may actually have access to the ‘liberalised’ capacities, raised the ceiling proposed by the BNetzA concerning the FZK interconnection capacities (feste frei zuordenbare Kapazitäten/fixed freely-attributable capacities) at the exit point of the pipeline. Thus, the OPAL pipeline manager will be required to make available to users other than the dominant company on the Czech natural gas market, in a bidding procedure, an FZK interconnection capacity of an initial volume of 3.2 million kWh. If, however, it appears, at the annual bidding procedure, that the demand for FZK capacities at the Brandov exit point is higher than 90% of the capacities offered, the BNetzA is required to increase the FZK capacities available by 1.6 million kWh at the following annual bidding procedure. The available FZK capacities may eventually reach a volume of 6.4 million kWh, namely 20% of the total capacity of the OPAL pipeline.

10

Furthermore, having regard to the upward trend of bids and in order to avoid any overbidding by the dominant entity on the Czech market, the Commission introduced an additional condition that such an entity may submit its bid in the bidding procedure for the FZK capacities only at the base price of the capacities, thus meaning that the price proposed cannot exceed the average base price of the regulated tariff on the transport network from the commercial area of Gaspool in Germany to the Czech Republic for comparable products in the same year.

11

On 28 November 2016, the BNetzA amended the exemption granted to the OPAL pipeline manager by its decision of 25 February 2009 in accordance with the contested decision.

Procedure and forms of order sought

12

By application lodged at the Registry of the General Court on 16 December 2016, the Republic of Poland brought an action for the annulment of the contested decision.

13

By a separate document, lodged at the Court Registry on the same date, the Republic of Poland brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:

stay the execution of the contested decision until delivery of the judgment closing the main proceedings;

order the Commission to require the BNetzA to suspend the implementation of the Commission position, set out in the contested decision, until delivery of the judgment closing the main proceedings;

order the Commission to require the BNetzA to take all possible legal measures in order to suspend, until delivery of the judgment closing the main proceedings, the execution of a decision, operation, public law contract or any other implementing measure amending, supplementing, repealing or affecting in any other way the decision of the BNetzA of 25 February 2009, in the version of 7 July 2009;

order the Commission to require OGT to refrain, until delivery of the judgment closing the main proceedings, from granting access to the transport capacities of the OPAL pipeline on conditions other than those fixed in the decision of the BNetzA of 25 February 2009, in the version of 7 July 2009;

consider the present application before 23 December 2016, by application of Article 157(2) of the Rules of Procedure of the General Court.

14

In its observations on the application for interim measures, lodged at the Registry of the General Court on 23 December 2016, the Commission contends essentially that the President of the General Court should:

dismiss that application;

order the Republic of Poland to pay the costs.

15

By order of 23 December 2016, Republic of Poland v Commission (T‑883/16 R), the President of the General Court, by virtue of Article 157(2) of the Rules of Procedure, granted the stay of execution sought until delivery of the order closing the present interim proceedings. In addition, he put a series of questions to the parties, who replied to them on 13 January 2017 in the case of Poland and on 16 January in the case of the Commission. On that occasion, Poland also made an application for measures of organisation of the procedure, on which the Commission lodged its observations on 20 January 2017, seeking the rejection of that application.

16

On 2 February 2017, the President of the General Court granted the application for leave to intervene made by the Federal Republic of Germany, lodged on 19 January 2017, to which neither the Commission nor Poland expressed any objection in their observations lodged on 30 and 31 January 2017 respectively. The statement in intervention of the Federal Republic of Germany in support of the form of order sought by the Commission was registered by the Registry of the General Court on 9 February 2017. On 3 March 2017, the main parties lodged their observations on that statement.

17

On 1 March 2017, the Republic of Poland lodged a supplementary statement and two letters dated 30 August and 9 December 2016 respectively, sent by the Minister for Energy of the Russian Federation to the Minister for Energy of the Republic of Poland.

18

On 5 May 2017, the Republic of Lithuania was granted leave to intervene in support of the form of order sought by the Republic of Poland in the main proceedings. Its statement in intervention in the present case was lodged on 22 May 2017. On 9 June 2017, the Republic of Poland and the Commission lodged their observations on that statement.

19

By letter of 22 June 2017, the parties were invited to a hearing on 5 July 2017 to set out their arguments concerning the conditions relating to the urgency and the balancing of the interests. On that occasion, the Commission and the interveners were requested to submit their observations on the supplementary statement lodged by the Republic of Poland on 1 March 2017, to which supplementary evidence in support of its claim was annexed.

20

By letter of 23 June 2017, the Republic of Lithuania informed the Court that it would not attend the hearing.

21

At the hearing on 5 July 2017, the Commission and the Federal Republic of Germany submitted their arguments and answered questions posed by the President of the General Court.

Law

General considerations

22

It is apparent from Articles 278 and 279 TFEU, read in conjunction with Article 256(1) TFEU, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order a stay of execution of an act contested before the General Court or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

23

Furthermore, the first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must ‘state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for’.

24

Thus, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent insofar as, in order to avoid causing serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P(R), EU:C:2016:142, paragraph 21 and the case-law cited).

25

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

26

In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

Urgency

27

In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P(R), EU:C:2016:21, paragraph 27 and the case-law cited).

28

In the present case, the Republic of Poland fears that it will suffer serious and irreparable harm if the application for interim measures is rejected, since the execution of the contested decision, having the effect of increasing the transport capacities via the OPAL pipeline, will necessarily lead to a reduction in the transports of gas via the Yamal-Europe and Fraternité pipelines and, accordingly, will jeopardise the security of the gas supply in Poland.

29

As a preliminary point, it must be noted that it is not disputed that the effects of the contested decision will lead to increased usage of the capacities of the OPAL pipeline.

30

As regards the relationship between the extension of the gas transport capacity via the OPAL pipeline, the reduction in the gas transports via the Yamal-Europe and Fraternité pipelines and the threat to the security of the gas supply in Poland, the Republic of Poland is of the opinion, in essence, that it is the result of the combination of two series of concomitant events.

31

Firstly, the Republic of Poland asserts that the execution of the contested decision will allow Gazprom to reserve 90% of the transport capacities of the OPAL pipeline. The contested decision organises a bidding procedure for 50% of the total transport capacity of the OPAL pipeline. However, in the view of the Republic of Poland, the conditions for the regulatory exemption laid down in the contested decision will mean that Gazprom will be able to take at least 80% of the partially regulated transport capacities of the OPAL pipeline which are subject to the bidding procedure. Since the other 50% of the transport capacities of the OPAL pipeline is outside EU law and the rules on third party access, and is granted in its entirety to Gazprom, that company will, in reality, have guaranteed access to at least 90% of the total transport capacities of the OPAL pipeline.

32

Secondly, the Republic of Poland claims that making it possible for Gazprom to increase its use of the available gas transport capacities of the OPAL pipeline will allow it to alter its commercial strategy, leading to a substantial reduction or a complete suspension of the supply of gas by that undertaking on the German market via the Yamal-Europe pipeline and to a significant effect on the conditions of the supply of gas on the Polish market via the Yamal-Europe and Fraternité pipelines. First of all, that reduction or elimination of Gazprom’s use will have the consequence, in particular, firstly, that it will be necessary to apportion the operating costs of the Yamal-Europe pipeline on the basis of a smaller volume of gas, leading to a significant increase in the transport costs, which would make it impossible for the operators involved to access that infrastructure at the largest border connection point coming from the west (Mallnow interconnection point); secondly, that the participants on the market will have fewer opportunities to benefit from the virtual inversion services on the Yamal-Europe pipeline, thus restricting access to the Polish gas market by alternative suppliers to Gazprom wishing to sell gas bought in Germany; and, thirdly, an increase in the gas supply costs at other connection points between Poland and the EU because of the increase in demand for other cross-border capacities. Next, because of the suspension of the gas supply from the west, Gazprom would be able to take advantage of its dominant position on the Polish market and would be free to set the prices for the supply of gas to Poland, which would mean a price increase for the end consumers. Finally, according to the Republic of Poland, access to the additional capacities of the OPAL pipeline will enable Gazprom to continue with its redirection of the transit of gas from Ukrainian territory to the Nord Stream 1 pipeline, thus making it impossible to maintain the supply on Polish territory via the spur line from the Fraternité pipeline to the Drozdowicze point at the Polish-Ukrainian border, which will jeopardise Poland’s energy security, since it will be impossible to guarantee a continuous supply to customers in the south-east of Poland, who are supplied directly from Ukraine.

33

Without it being necessary to assess, on the one hand, the possibly hypothetical nature of each of those two series of events, in respect of which the Republic of Poland produces a certain amount of information and documents to show a sufficient degree of certainty, nonetheless disputed by the Commission and the Federal Republic of Germany and, on the other, the reality of the causal link between those series of events and the contested decision, it is sufficient to note that the harm alleged in the present case lacks immediacy.

34

As has been recalled in paragraph 27 above, it is settled case-law that the urgency of an application for interim measures must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief before judgment is delivered on the principal action for annulment and that it is for that party to adduce sound evidence that it cannot wait for the outcome of the main proceedings if it is not to suffer personally harm of that kind.

35

In the present case, it is apparent from information in the file, not contested by the Republic of Poland, that a transit contract concluded with Gazprom for the transport of natural gas (up to 32.3 billion m3 of gas) via the Polish section of the Yamal-Europe pipeline to supply the western European markets, including Poland, and a contract concluded in 1996 between PGNiG S.A. and Gazprom for deliveries of natural gas (up to 10.2 billion m3 of gas) apply until 2020 and the end of 2022 respectively.

36

That information, lacking from the original application of the Republic of Poland and three catered for the first time by the Commission in its observations of 23 December 2016, are decisive to the assessment of the condition of urgency by the judge hearing applications for interim measures. It follows from those contracts that the use of the transport capacity of the Polish section of the Yamal-Europe pipeline is, prima facie, guaranteed until at least the end of 2019 and that Gazprom’s deliveries to the Polish market are guaranteed until 2022. In that regard, it must be borne in mind that the failure to perform those contractual obligations would give rise to specific legal remedies which it would be for the Republic of Poland to implement if necessary. In that context, it is, moreover, possible for the Republic of Poland to apply to the judge hearing applications for interim measures in accordance with Article 160 of the Rules of Procedure. Consequently, and prima facie, even if the harm alleged by the Republic of Poland were shown sufficiently to be certain, it could not occur until those contracts had expired, at the earliest, if, in addition, those contracts were not renewed. In its observations of 3 March 2017 on the statement of the Federal Republic of Germany, the Republic of Poland is of the view that the judgment on the substance in the present case will probably be delivered within two years, namely during 2019.

37

Accordingly, it must be observed that the Republic of Poland has failed to adduce sound evidence that it cannot wait for the outcome of the main proceedings if it is not to suffer personally serious and irreparable harm.

38

In that regard, it is appropriate, however, to note that the Republic of Poland has annexed to its supplementary statement of 1 March 2017 two letters, dated 30 August and 9 December 2016 respectively, sent by the Minister for Energy of the Russian Federation to the Minister for Energy of the Republic of Poland. The first letter concerns the decision of the Urząd Regulacji Energetyki (Energy Regulation Office, Poland) of 19 May 2015 concerning the grant to Gaz-System of a certificate of independence as regards the exercise of the function of manager of the Polish section of the Yamal-Europe pipeline, in respect of which the Russian Minister claims that it infringes the agreement of 25 October 2010 on the obligations of the operator responsible for the Polish section of that pipeline, itself based on the Russian-Polish agreement of 25 August 1993 on the construction of pipelines for the transit of Russian gas over Polish territory. The second letter seeks to inform the Polish Minister of difficulties encountered in Ukraine by Gazprom, on which a fine had been imposed by the Ukrainian authorities. The Russian Minister thus informs his opposite number that those difficulties were, if they were not resolved, such as to provoke a reduction in the delivery of gas by Gazprom. Thus, the Republic of Poland argues, in substance, that those documents show the reality of the risk of a restriction or suspension of the delivery of gas over the Yamal-Europe pipeline on Polish territory, a restriction now made possible by the new operating conditions of the OPAL pipeline following from the decision contested in the main proceedings.

39

First of all, it must be noted that, despite the crucial importance which the Republic of Poland appears to attach to that additional evidence, it was absent from its application for interim measures lodged on 16 December 2016. Next, without it being necessary to rule at this stage on the existence of a link between the content of those documents and the contested decision, it suffices to note that the alleged threats are, prima facie, dependent on the implementation of the decision of the Energy Regulation Office of 19 May 2015 which was to have taken place no later than the month of May 2017. At the hearing, the Republic of Poland informed the President of the General Court that that decision still had not been implemented. Accordingly, if such repressive actions were to materialise after that implementation, in all probability they would constitute new facts enabling the Republic of Poland to apply to the Judge hearing applications for interim measures, in accordance with Article 160 of the Rules of Procedure, who could then order a new stay of execution without hearing the other party, by virtue of Article 157(2) of the Rules of Procedure, in order temporarily to re-establish the rules applicable before the implementation of the system provided for in the contested decision until a decision on the merits of the new application in the light of the new facts.

40

Consequently, it must be concluded that, since the immediacy of the alleged harm has not been demonstrated, the Republic of Poland has failed to satisfy the condition that it cannot await the delivery of the decision of the General Court in the proceedings in the main action without the harm alleged materialising.

41

That would be different only if something were now to occur which would instantly make the alleged harmful situation irreversible. The Republic of Poland appears to be of the view that the facts of the present case lead to such a finding because it is possible for Gazprom, in the next annual bidding procedures for that part of the 50% of the transport capacities liberated by the contested decision, to make long-term reservations having the effect of fixing the situation, so that the scope of the legal effects of the contested decision will greatly exceed the duration of its legal existence.

42

Firstly, the Republic of Poland points out that transport capacities open to bids in accordance with the new conditions for use of the OPAL pipeline will be able to be reserved for a period of 15 years. It states that it may be expected that Gazprom will reserve the greater part of the transport capacities for that period, thus fixing the situation, as described in paragraph 32, for the coming 15 years.

43

Secondly, it states that the reservations, in the form of private law agreements, will then be the source of rights and obligations for natural and legal persons, subject to protection, irrespective of the outcome of the main proceedings. In its view, even annulment of the contested decision will not entail the annulment of the gas transport or supply contracts via the OPAL pipeline. It also points out that those transport contracts have the parallel consequence of conclusion of commercial gas trading contracts, thus creating an additional obstacle to the termination of the transport contracts.

44

Nevertheless, it must be pointed out that that analysis rests on an incorrect understanding of the specific legal system created by the Treaties (see, to that effect, judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66). If the contested decision were annulled, the conditions for use of the OPAL pipeline, as authorised by that decision, would no longer apply. Consequently, no private law measure based on those conditions could be implemented. Both the Commission and the Federal Republic of Germany have, correctly, pointed to that aspect both in their written submissions and at the hearing of 5 July 2017.

45

In that regard, in addition to legal obstacles, the existence of which, as has been pointed out in paragraph 44 above, cannot be accepted, the Republic of Poland alleges the existence of practical difficulties in the implementation of the effects of such an annulment. However, that objection must also be rejected. In fact, as the Commission points out in its answers of 16 January 2017 to the questions posed on 23 December 2016 by the President of the General Court, if the General Court annuls the contested decision, the reservation of annual capacity products for the period following the delivery of the judgment of the General Court must be invalidated, since it concerns distinct annual products, which cannot be reserved for a period of up to 15 years unless they are accumulated with others, and since they are therefore products independent of each other. Furthermore, it is apparent from the general contract terms applicable to the transport of gas via the OPAL pipeline, provided by the Commission, that the transport contract concluded between the network users and OGT as regards the purchase of capacity products in a bidding procedure may, on serious grounds, be rescinded immediately, the annulment of the contested decision by the General Court undoubtedly being one of those grounds. The Commission adds, rightly, that such an annulment would constitute a fortuitous circumstance having legal consequences for the contract, in that it would justify an adaptation of the terms of that contract. What is more, those general terms authorise OGT to amend the terms of the contract in future if the need to take account of a change in the legal situation so requires, for example where the judgment has been delivered by an international court. Moreover, it does not appear to be ruled out, a priori, in the light of the dispute pending before the General Court, for a safeguard clause to be inserted into all the contracts signed concerning the future bidding procedures (for example, the downstream contracts concluded by the operators involved in the transport, distribution and delivery of gas supplied by Gazprom, but also the commercial gas trading contracts), in order to pre-empt the consequences of any new suspension of the contested decision or its annulment. In any event, in so far as the proceedings before the General Court were brought against the contested decision, there is indubitably a commercial risk of which the actors on the market cannot be unaware.

46

In the light of the foregoing, it follows that all the consequences connected to the combination of the two series of events described in paragraphs 31 and 32 above, even had it been shown that they were certain, far from covering a period of 15 years, would in fact be limited to the period preceding the date of delivery of the judgment of the General Court closing the main proceedings. In that regard, firstly, it is appropriate to note that, although the Republic of Poland did not find it appropriate to make an application for expedited procedure in respect of its main action, it is not excluded that the General Court may decide of its own motion to rule in that case in accordance with such a procedure, by virtue of Article 151(2) of the Rules of Procedure. Failing that, it is always possible, if the circumstances so require, to decide to rule in that case as a priority, in accordance with Article 67(2) of those Rules. Secondly, in its observations on the statement of the Federal Republic of Germany, the Republic of Poland points out that the harm to it results above all from the possible changes in the gas transit routes to the European Union. As it has been pointed out in paragraphs 35 and 36 above, not only legal documents which are currently in force form an obstacle to the materialisation of that theory until at least 2020, but, in addition, the existence of specific legal remedies, including the possibility of applying to the judge hearing applications for interim measures on the basis of new facts, guarantees the Republic of Poland effective legal protection in the event of infringement of those instruments. Accordingly, only the hypothesis described in paragraph 31 above, envisaged by the Republic of Poland, could potentially materialise during the period preceding the delivery of the judgment of the General Court closing the main proceedings. That hypothesis, consisting of the use of 90% of the transport capacities of the OPAL pipeline by Gazprom, cannot of itself cause the harm alleged by the Republic of Poland, namely the threat to the security of the gas supply in Poland. Consequently, although the effects of that hypothesis would be irreversible, the requirement that the existence, justifying the adoption of the interim measures sought, of a serious and irreparable harm to the Republic of Poland be demonstrated, has not been satisfied.

47

Thus, it is clear from the analysis above that the Republic of Poland has not proved that it cannot await the outcome of the proceedings in the main action without personally suffering serious and irreparable harm due to the execution of the contested decision.

48

It follows that the condition of urgency has not been met, so that this application for interim relief must be dismissed without its being necessary to examine whether there is a prima facie case or to weigh up the interests at stake.

The application for measures of organisation of procedure

49

By its application for measures of organisation of procedure made on 13 January 2017, the Republic of Poland requests, in essence, that the General Court order the Commission to provide information concerning:

the effects of the application of the contested decision, giving particular attention to the number and type of bidding procedures relating to the transport capacities on the OPAL pipeline which have been organised during the period of application of the contested decision, and the results of those budding procedures and the level of increase (in volume and percentage) of the flows of gas passing through the OPAL pipeline as compared to the preceding period;

the arrangements for the implementation of the order of 23 December 2016, Poland v Commission (T‑883/16 R) ordering a stay of execution of the contested decision, explaining why bidding procedures for the transport capacities of the OPAL pipeline were organised after the date of delivery of that order and stating the level of increase (in volume and percentage) of the flows of gas passing through the OPAL pipeline which occurred after the date of delivery of the order.

50

In that regard, firstly, it suffices to note that, although there are legitimate questions which may arise as regards the facts of the use of the transport capacities on the OPAL pipeline which followed delivery of the order of 23 December 2016, Poland v Commission (T‑883/16 R), it is apparent from the files that, on the one hand, the current use of that pipeline is governed by the conditions applicable before adoption of the contested decision and, on the other, the bidding procedures arranged for 6 March 2017, in respect of which the Republic of Poland regarded clarification of those circumstances as particularly important, did not take place.

51

Secondly, although, at the hearing on 5 July 2017, the Federal Republic of Germany did indeed confirm that some contracts, connected with bidding procedures organised before delivery of the order of 23 December 2016, Poland v Commission (T‑883/16 R), had been executed in breach of the effects of the suspension ordered by the judge hearing applications for interim measures in that order, it did, however, point to the confusion with which it had been faced in that situation. Following the adoption of that order, proceedings before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany) were brought and led to the adoption of a decision dated 30 December 2016 suspending the agreement concluded between OGT and the BNetzA on 28 November 2016. The Federal Republic of Germany thus took the view, wrongly as it recognised at the hearing, that only the organisation of future bidding procedures was affected by the order of 23 December 2016, Poland v Commission (T‑883/16 R), excluding any effect on the performance of the contracts connected with past bidding procedures. In the light of the exchanges which then took place in the context of the present proceedings, the Federal Republic of Germany is of the opinion that such an incorrect interpretation would not be made again if a new suspension were ordered by the judge hearing applications for interim measures or if the contested decision were annulled by the General Court. In that regard, it stated that the German legislation gave it injunctive powers against the BNetzA which would be sufficient to ensure that full effect is given to the decisions of the General Court and its judge hearing applications for interim measures.

52

Consequently, it does not appear necessary to obtain the information covered by that application, which must therefore be rejected.

53

By virtue of Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

 

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

 

1.

The application for interim measures is rejected.

 

2.

The order of 23 December 2016, Poland v Commission (T‑883/16 R) is revoked.

 

3.

The costs are reserved.

 

Luxembourg, 21 July 2017.

E. Coulon

Registrar

M. Jaeger

President


( *1 ) Language of the case: Polish.

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