Germans are Delaying the OPAL Case to Benefit Gazprom

OPAL NEL Nord StreamDespite speculation in Russian media, Poles did not ask to participate in the agreement that gives Gazprom more access to the Nord Stream pipeline in Germany. PGNiG wants the decision process to be transparent. The German regulator replies with a sophisticated slap in the face.

In accordance with what BiznesAlert.pl reported, the RIA Novosti information that PGNiG and Ukrainian Naftogaz applied for access to the OPAL pipeline (Nord Stream’s branch in Germany), turned out to be false. Both companies asked the German regulator Bundesnetzagentur to make the administrative process transparent and requested document access.

On the basis of a settlement between the European Commission and Gazprom from 28 October, as of 1 January 2017, the Russian company will increase its OPAL access use from 50 to 90%. This will allow it to transfer up to 20 bcm of gas a year more than today across the Baltic Sea. This is a threat to Ukraine’s position as a transit state and forces the CEE to cement Gazprom’s rank as the main supplier in the region. Despite the significance of this decision, a formal document has not been released yet.

Poland is racing against time, because if it fails to question the judgment before 1 January, it will enter into force. This would be a blatant breach of transparency when it comes to German and EU law, which is why PGNiG’s German subsidiary Supply and Trading GmbH (PST) filed a lawsuit against the settlement to the Court of Justice of the European Union. Still, Poles want access to the official document, which will allow them to question it in an administrative case in Germany and, if not block, at least delay the entering into force of the new regulations.

Therefore, PGNiG requested the Bundesnetzagentur (BnetzA) for information. BiznesAlert.pl obtained the response, which does not have any formal infringements, but is in fact a deliberate slap in the face.

PGNiG requested the information on 25 November, on the basis of the German act on information access and received the reply on 6 December. PST specifically asked for EC’s full decision on increasing Gazprom’s OPAL access to be revealed. The Commission has not yet published it, even though it will enter into force very soon, which means PGNiG has to dispute it in a haphazard way.

The agency’s reply was surprising. First of all, it claimed that the PST application was unclear because the office couldn’t decide if it requested information about the CE’s decision or ‚any further details’, i.e. BnetzA documents. The German office questioned the point of releasing the information because it claimed that since PGNiG was commenting on and disputing Brussels’ decision, the company had to know its content. In this way German clerks mocked Poles who are fighting for information that may decide about their fate, but for an unknown reason remains secret.

The Germans also said that since the Commission would soon release the decision, PST can wait until that time. The problem is, the law says that in such a situation Poles should receive time to question the regulations that will enter into force in a mere three weeks.

BnetzA continued the flogging of Poles by stressing authoritatively that the participation of a ‚third party’ in the proceedings will be justifiable provided that its interests will be threatened and this can happen if the party does not have access to the necessary information. Thus, the office simply admits that „a long duration of the proceedings should be taken into account”. This way, Germans are already saying that if there is basis to release the EC’s decision to PST, the procedure may take long, even after New Year’s when the OPAL settlement will enter into force.

There is justified concern that the German BnetzA is deliberately protecting the interests of German companies and Gazprom, that are engaged in trading Russian gas via OPAL. Lawyers should check if BnetzA is blocking information access on purpose in order to make it impossible for Poles to question EC’s decision that is hurting their interests.

The resistance in Germany (to be specific in Bonn where BnetzA has its seat) should make the European Commission publish the OPAL decision as quickly as possible, allowing Poles (and also Ukrainians) to dispute it in accordance with the law. Warsaw and Brussels should cooperate to protect the legal foundations of the European Union and work against arrangements that benefit the gas monopolist in CEE.

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