Impact of CJEU ruling on OPAL pipeline: Could it jeopardise Czech nuclear build-out?

In mid-September, the General Court of the Court of Justice of the European Union (CJEU) ruled on Poland’s challenge to the European Commission’s decision permitting an expansion of the OPAL pipeline’s capacity. The European court held that the principle of solidarity had not been sufficiently applied – meaning that EU states must also take into account the interests of other states, and consequently of the Union as a whole, when deciding on energy projects on their territory.

Poland’s challenge concerned the Commission’s approval of Germany’s original decision to permit an expansion of the OPAL pipeline’s capacity. It is part of the Nord Stream 1 pipeline and delivers gas directly to western EU countries. It bypasses both Poland and Ukraine, and Poland was precisely opposed to the decision to use the pipeline at full capacity.

CJEU: States must also consider others when making decisions

One of the arguments put forward by the Republic of Poland was the failure to apply the principle of solidarity, which stems from Article 194(1) of the Treaty on the Functioning of the European Union (TFEU). It provides that

“In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:

(a) ensure the functioning of the energy market;

(b) ensure security of energy supply in the Union;

(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and

(d) promote the interconnection of energy networks.”

The case T-883/16 Republic of Poland v. European Commission now elaborates further on what the principle of solidarity in this article actually means and how Germany erred by applying it insufficiently. Application of the principle will now require Member States, in all their decisions concerning the energy market (including, for example, the construction of new capacity) that could have a cross-border impact, to take into account not only their own interests but also the interests of other Member States and of the European Union as a whole.

The impact of the ruling cannot yet be clearly predicted

Experts consider the ruling on the OPAL pipeline to be groundbreaking, and the precedent could therefore have a significant impact on the development of European energy law over the next decade. Member States will no longer be able to develop energy infrastructure while ignoring the fundamental interests of other Member States. The OPAL case will also provide a legal basis for the European Commission or Member States to bring actions against those Member States that breach the principle.

Could the decision potentially restrict construction of a new unit at the Dukovany Nuclear Power Plant? As our website reported in recent days, completion of the first Czech nuclear power plant is expected to begin in 2029, although Austria has already voiced its opposition to the plans. If legal practice were to develop towards a broader interpretation of Article 194 TFEU and the OPAL precedent, the interests of other Member States, including Austria, which has long opposed Czech nuclear power, would also have to be taken into account when deciding on the completion. Thanks to the September ruling, the Czech Republic’s southern neighbour could also have a stronger position when lodging any potential complaint with EU bodies.