On 27 March 2017, Naftogaz filed a separate action to the General Court of the Court of Justice of the European Union against the European Commission requesting the Court to annul the Commission’s decision of 28 October 2016. The latter would allow Gazprom to have access to more capacity of the OPAL pipeline and increase gas transmission via Nord Stream.

The approval of the decision without prior consultations with Ukraine violates Article 274 of the Ukraine-EU Association Agreement and EU’s obligations under the Energy Charter Treaty and the Treaty establishing the Energy Community.

Naftogaz argues that the Commission lacked authority to approve revisions to the 2009 exemption issued by the German regulator. Furthermore, the decision contradicts Directive 2009/73/EC since it does not enhance competition, endangers the security of supply of Ukraine and other Eastern European countries as well as the effective functioning of the EU and Energy Community markets through strengthening the dominance of Gazprom and its affiliates.

Background: In December 2016, PGNiG Supply & Trading (PGNiG ST) and Poland initiated proceedings before the General Court against the European Commission’s decision of 28 October 2016. In late February 2017, Naftogaz submitted its leave to intervene in the case of PGNiG ST. The challenged decision has been suspended in the related proceedings.