(CN) — EU regulators are within their rights to limit Russia's control of gas flows into Europe, a top European court magistrate held Thursday in another blow to the natural gas pipeline that will run along the German border.
The advisory opinion from a European Court of Justice advocate general lends focuses on a pipeline called OPAL that feeds gas into Europe from the Nord Stream gas line, controversial in its own right, which brings Russian gas to Germany under the Baltic Sea.
Germany could see twice as much gas from Russia once a second branch of the Nord Stream that is nearly complete becomes operational. This expansion project has run into opposition, however, from European nations fearful about what it means for other pipelines running across Ukraine and Belarus. Critics say bypassing these pipelines will add to the Kremlin's already dangerous political clout in Eastern Europe and pose a major threat to Ukraine's stability. Last year, the United States imposed sanctions on the new Nord Stream 2 pipeline, angering Germany.
The OPAL is one such pipeline that connects Nord Stream with the gas grid in Central Europe.
Thursday's opinion from Advocate General Manuel Campos Sánchez-Bordona is significant because of the uncertainty over how much gas Gazprom pumps through Nord Stream.
Though Germany, with the European Commission's support, had allowed Gazprom to use almost all the capacity of the OPAL pipeline, a lower EU tribunal called the General Court rejected that decision in 2019.
That ruling emphasized the legally binding EU “principle of energy solidarity,” which says EU regulators owe consideration to the interests and concerns of other nations that might be hurt by an energy project. In this case, Poland and Lithuania challenged Gazprom's control of the OPAL line, arguing that it would increase the state-owned Russian gas company's power at their expense.
Germany has appealed that finding, but Advocate General Campos Sánchez-Bordona recommended that the challenge fail as the General Court interpreted energy solidarity correctly.
In 2009, Germany's Federal Network Agency exempted the OPAL pipeline from EU rules that require gas lines to be made available to companies other than those that own or operate a pipeline. This gave Gazprom full use of the pipeline.
The European Commission then ruled, however, that Gazprom could use only 50% of the pipeline unless it released gas to third parties. That never happened and only 50% of OPAL's capacity was used by Gazprom.
In 2016, the Federal Network Agency issued a new exemption allowing Gazprom to use all of the pipeline's capacity. The European Commission agreed with this change and allowed Gazprom to use almost all of OPAL's capacity.
After that, Gazprom reduced the amount of gas it delivered to the EU through the Yamal and Brotherhood pipelines running through Belarus and Ukraine.
Campos Sánchez-Bordona said that led to “Gazprom's position to be strengthened on the gas markets of the countries of Central and Eastern Europe.”
Poland and Lithuania, two EU nations that are deeply concerned by Russia, challenged the exemption given to Gazprom and the General Court ruled in their favor in 2019.
The magistrate summarized Germany's argument as saying that that the principle of energy solidarity is “no more than a ‘purely political notion’ and not a legal criterion.” In Germany's view, he said, the principle is “abstract and indeterminate nature” and cannot be “relied on before the courts.”
Germany also argues that “energy solidarity triggers an obligation of mutual assistance only in crisis situations,” and therefore “cannot be construed as requiring ‘unconditional loyalty’ to the interests of all the member states,” according to the opinion. Germany says such a legal reading would block energy policy decision-making.
“I do not agree with the Federal Republic of Germany’s argument,” Campos Sánchez-Bordona wrote.
Instead, he said, the principle of energy solidarity, as stipulated under EU treaties, “cannot be restricted to such extraordinary situations.” He also wrote that the principle “entails a general obligation” on the part of the EU and its members “to take into account the interests of the other stakeholders.”
“The principle of solidarity” is a primary concept in EU law and increasingly drawn on “to inform political and economic decisions by the European Union itself," the opinion advises.
In this case, though, how the principle will fare is uncertain. Campos Sánchez-Bordona noted that the Court of Justice has often referred to the principle in previous rulings, but it has not yet set out “a general definition of its features.”
Thus, he said, the court hasn't yet answered the question whether “solidarity has the status of a legal principle” or whether it has “purely symbolic value with no prescriptive force.” He noted that legal scholars are divided on the matter. He sided with those who see it as a legal principle.
In past rulings, he pointed out that the Court of Justice has invoked the solidarity principle “in some areas such as the policies of immigration, asylum and border control,” and found that EU member states should be required to share the burden of immigration.
Along these lines he said the solidarity principle should apply to energy matters, and that there is no “convincing reason” that solidarity should be triggered only by such moments as a terrorist attack or disaster.
“First, a terrorist attack or a natural or man-made disaster will not necessarily lead to an energy crisis affecting the vital interests of a Member State,” he wrote.
“Secondly, energy solidarity between the Member States may be essential in situations other than the attacks or disasters” referred to in an EU treaty where constitutional basis of how the union works is laid out, he added. “This would be the case not least in a serious economic situation.”
“Energy solidarity goes beyond mere security of supply,” he wrote. “It is better for energy solidarity to work in such a way as to prevent crises than to be reflected only in the mechanisms for responding to them.”
He also rejected Germany's contention that the General Court's interpretation leads to a state of “unconditional loyalty” and blocks EU energy policies by requiring so many EU nations' interests to be taken into account.
Courthouse News reporter Cain Burdeau is based in the European Union.
Follow @cainburdeau
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