Case C-848/19 P: Germany v Poland and its outcomes for EU energy sector: an extended case note on the European Court of Justice judgment in the OPAL case

Abstract

Abstract The European Court of Justice (ECJ) judgment in the so-called Ostsee-Pipeline-Anbindungsleitung (OPAL) case on 15 July 2021 dismissed Germany’s appeal on the previous European Union (EU) General Court’s decision, which focused on the need for considering national interests of EU Member States and the interests of the Union itself in the decisions by the EU institutions in energy sector to acknowledge the solidarity principle provided in the Treaty on the Functioning of the European Union. This decision found a significant interest among academicians and legal practitioners and raised numerous discussions, since it is still not clear what are the exact criteria on application of this principle, especially in relation to such ambiguous energy notions as ‘security of supply’. The presence of the geopolitical context and direct impact of the decision on the volumes of Russian gas transported via the Nord Stream pipeline also makes this case extremely complex and raises some additional questions regarding the impact on external gas supply to the EU. Moreover, the statement of the Advocate General on the applicability of the solidarity principle to all the other objectives of EU energy policy (not limiting to the scope of security of gas supply), which was also supported by the Court, brings many additional aspects to be considered with regards to the impact of the OPAL case on EU energy sector. Therefore, this case note article undertakes a critical analysis of the recent ECJ judgment and Advocate General’s opinion to identify some gaps that are still not clarified and to estimate the possible outcomes of the judgment on the future of EU energy sector development.