JUDGMENT OF THE COURT (Eighth Chamber)
5 November 2026 (*)
( Appeal – Energy – Internal market in natural gas – Directive (EU) 2019/692 – Admissibility – Second paragraph of Article 61 of the Statute of the Court of Justice of the European Union – Judgment of 12 July 2022, Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2022:548) – Errors of law – Distortion of the facts and evidence – Measures of inquiry and of organisation of the procedure – Misuse of powers )
In Case C‑118/25 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 February 2025,
Nord Stream 2 AG, established in Steinhausen (Switzerland), represented by T. Winter, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
European Parliament, represented by O. Denkov, J. Etienne and A. Tamás, acting as Agents,
Council of the European Union, represented by K. Pavlaki, O. Segnana and L. Vétillard, acting as Agents,
defendants at first instance,
Republic of Estonia,
Republic of Latvia,
Republic of Lithuania, represented by K. Dieninis and V. Kazlauskaitė-Švenčionienė, acting as Agents,
Republic of Poland, represented by B. Majczyna, acting as Agent,
European Commission, represented by O. Beynet and B. De Meester, acting as Agents,
interveners at first instance,
THE COURT (Eighth Chamber),
composed of N. Fenger, President of the Chamber, C. Lycourgos (Rapporteur), President of the Third Chamber, and O. Spineanu-Matei, Judge,
Advocate General: L. Medina,
Registrar: V. Di Bucci,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its appeal, Nord Stream 2 AG asks the Court of Justice to set aside the judgment of the General Court of the European Union of 27 November 2024, Nord Stream 2 v Parliament and Council (T‑526/19 RENV, ‘the judgment under appeal’, EU:T:2024:864) by which the General Court dismissed its action for annulment of Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019 amending Directive 2009/73/EC concerning common rules for the internal market in natural gas (OJ 2019 L 117, p. 1; ‘the directive at issue’).
Legal context
Directive 2009/73/EC
2 Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94) forms part of a wider regulatory scheme called the ‘Third Energy Package’. That directive seeks to introduce common rules concerning the transmission, distribution, supply and storage of natural gas in order to facilitate access to the market and encourage fair and non-discriminatory competition.
3 Directive 2009/73 lays down a number of obligations for the achievement of that objective. In that regard, in particular, Article 9 of that directive lays down the obligation to unbundle transmission systems and transmission system operators. Article 32 of that directive establishes a system of third-party access to the transmission and distribution systems and to liquefied natural gas (LNG) facilities based on published tariffs, which must be applied objectively and without discrimination between system users (together, ‘the obligations laid down by Directive 2009/73’).
4 Article 36 of Directive 2009/73, provides, in essence, that major new gas infrastructures, namely interconnectors, LNG facilities and storage facilities, may, upon request, be exempted, for a defined period of time, from some of the obligations laid down by Directive 2009/73 in accordance with the conditions set out in paragraph 1 of that Article 36.
5 In that regard, point 33 of Article 2 of that directive defines the concept of ‘new infrastructure’ as an infrastructure not completed by 4 August 2003.
The directive at issue
6 On 8 November 2017, the European Commission presented a proposal for a directive of the European Parliament and of the Council amending Directive 2009/73/EC concerning common rules for the internal market in natural gas (COM(2017) 660 final), which led to the adoption of the directive at issue (‘the proposal for a directive’).
7 The directive at issue, which entered into force on 23 May 2019, seeks, according to recital 3 thereof, to address obstacles to the completion of the internal market in natural gas which result from the non-application of EU market rules to gas transmission lines to and from third countries.
8 Point 17 of Article 2 of Directive 2009/73, as replaced by point 1 of Article 1 of the directive at issue, provides that the concept of an ‘interconnector’ covers not only any transmission line which crosses or spans a border between Member States for the purpose of connecting the national transmission system of those Member States, but also, now, any transmission line between a Member State and a third country up to the territory of the Member States or the territorial sea of that Member State (‘pipelines between a Member State and a third country’).
9 However, as regards pipelines between a Member State and a third country completed before 23 May 2019, Article 49a(1) of Directive 2009/73, as inserted by point 9 of Article 1 of the directive at issue, provides that the Member State where the first connection point of such a pipeline with that Member State’s network is located may decide to derogate from the obligations laid down by Directive 2009/73 for the sections of that pipeline located in its territory and territorial sea. That derogation is granted for objective reasons, such as to enable the recovery of the investment made or for reasons of security of supply, provided that the derogation is not detrimental to competition or the effective functioning of the internal market in natural gas, or to security of supply in the European Union.
10 Article 49a also provides, first, that, derogations of that kind are to be limited in time up to 20 years based on objective justification, renewable if justified, and may be subject to conditions which contribute to the achievement of the conditions referred to in paragraph 9 of the present judgment and, second, that such derogations are not to apply to pipelines between a Member State and a third country which has the obligation of transposing Directive 2009/73 as amended into its legal order under an agreement concluded with the European Union.
11 Furthermore, point 5(a) of Article 1 of the directive at issue amended Article 36 of Directive 2009/73 by providing, in point (e) of paragraph 1 of that Article 36, that the exemption granted under that Article 36 must not be detrimental to security of supply of natural gas in the European Union.
12 Regarding the transposition of the amendments made by the directive at issue to Directive 2009/73, Article 2 of the directive at issue provides that Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 24 February 2020, without prejudice to any derogation pursuant to Article 49a of Directive 2009/73, as inserted by the directive at issue.
Background to the dispute, the procedure before the General Court and the Court of Justice and the judgment under appeal
13 The appellant is a company incorporated under Swiss law whose sole shareholder is the Russian public joint stock company (PJSC) Gazprom. It is responsible for the planning, construction and operation of the Nord Stream 2 pipeline.
14 Like the Nord Stream 1 pipeline, which consists of a system of two lines, construction of which was completed in 2012 and the capacity of which is 55 billion cubic metres per year, the Nord Stream 2 pipeline, which also consists of two gas transmission lines crossing the Baltic Sea, is intended to ensure the flow of gas between Ust-Luga (Russia) and Lubmin (Germany), bringing the overall transport capacity of the Nord Stream 1 and Nord Stream 2 pipelines to 110 billion cubic metres per year. From Lubmin, the gas conveyed by the Nord Stream 2 pipeline has to be transported by onshore pipelines.
15 On 17 April 2019, the European Parliament and the Council of the European Union adopted the directive at issue, which entered into force on the twentieth day following its publication in the Official Journal of the European Union, that is, on 23 May 2019.
16 By application lodged at the Registry of the General Court on 26 July 2019, the appellant brought an action before that court seeking the annulment of the directive at issue in its entirety, raising six pleas in law to that effect.
17 In point 4 of the operative part of the order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210), the General Court dismissed the action brought by the appellant as inadmissible.
18 By judgment of 12 July 2022, Nord Stream 2 v Parliament and Council (C‑348/20 P, ‘the judgment of the Court of Justice in Nord Stream 2’, EU:C:2022:548), first, the Court of Justice set aside point 4 of the operative part of the order of 20 May 2020, Nord Stream 2 v Parliament and Council (T‑526/19, EU:T:2020:210). Second, the Court of Justice held that the appellant’s action was admissible in so far as it was directed against Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue. The Court of Justice referred the case back to the General Court for a decision on the merits of that action.
19 Following the referral of the case back to it, the General Court recalled, in the judgment under appeal, as regards the appellant’s claim for annulment of the directive at issue in its entirety, that, in the judgment of the Court of Justice in Nord Stream 2, the Court of Justice had found that Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue, were severable from the other provisions of Directive 2009/73, as amended by the directive at issue.
20 The General Court therefore held that the Court of Justice had given a final ruling that the appellant was not entitled to seek the annulment of the directive at issue in its entirety. By contrast, in the light of the clarifications provided by the appellant at the hearing before the General Court, the General Court held that its action was admissible in so far as it sought the annulment of Article 49a of Directive 2009/73, as inserted by the directive at issue.
21 As regards the examination of the merits of the appellant’s action, the appellant put forward six pleas in law, alleging: (i) infringement of the principle of equal treatment; (ii) infringement of the principle of proportionality; (iii) infringement of the principle of legal certainty; (iv) misuse of powers; (v) infringement of essential procedural requirements; and (vi) infringement of the obligation to state reasons. At the hearing before the General Court, the appellant withdrew the sixth plea in law.
22 By the judgment under appeal, the General Court rejected the first to fifth pleas in law and, therefore, rejected the claim for annulment of Article 49a of Directive 2009/73, as inserted by the directive at issue, in its entirety.
23 As regards the application for measures of organisation of procedure made by the appellant by separate document, lodged at the Registry of the General Court on 29 November 2019, requesting that the General Court require the Council to produce the unredacted versions of 25 documents, which contained, inter alia, the observations submitted by the Member States on the proposal for a directive and to which one of its employees had obtained only partial access on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), as well as two other documents to which access had been refused to that employee, the General Court held that, following the order of 17 February 2023, Nord Stream 2 v Parliament and Council (T‑526/19 RENV, EU:T:2023:85), there was no longer any need to adjudicate on the request for measures of organisation of procedure in so far as it sought the production of unredacted versions of the observations of the Federal Republic of Germany of 11 December 2017 and 21 January 2019.
24 Furthermore, the General Court rejected the request for measures of organisation of procedure relating to the documents in respect of which that request had not become devoid of purpose, in the light, first, of the reasons on which that request was based, second, of the documents to which the appellant had had access and of the use which it had made of them and, third, of the grounds upon which the various pleas in law relied on by the appellant had been rejected.
25 Consequently, the General Court dismissed the appellant’s action in its entirety.
Forms of order sought
26 By its appeal, the appellant claims that the Court of Justice should:
– set aside the judgment under appeal, in particular points 1 to 3 of the operative part;
– rule on the substance and annul the directive at issue in its entirety or, in the alternative, annul Article 49a inserted by that directive, or, in the further alternative, annul the words ‘completed before 23 May 2019’ in Article 49a(1);
– in the even further alternative, refer the case back to the General Court to rule on the substance; and
– order the Parliament and the Council to pay the costs incurred by the appellant, including those incurred before the General Court.
27 The Parliament and the Council contend that the Court of Justice should:
– dismiss the appeal; and
– order the appellant to pay the costs.
28 The Commission contends that the Court of Justice should:
– dismiss the appeal; and
– order the appellant to pay the costs.
29 The Republic of Poland contends that the Court of Justice should:
– declare that the appeal is inadmissible to the extent that it concerns Article 36 of Directive 2009/73, as amended by the directive at issue, and in so far as it seeks annulment of the directive at issue in its entirety and it seeks, in the alternative, annulment of the words ‘completed before 23 May 2019’, and dismiss the appeal as to the remainder;
– in the alternative, dismiss the appeal in its entirety; and
– order the appellant to pay the costs.
The appeal
30 By its appeal, the appellant puts forward seven grounds of appeal. The first ground of appeal alleges that the General Court erred in law by failing to comply with the judgment of the Court of Justice in Nord Stream 2 as required by Article 61 of the Statute of the Court of Justice of the European Union. The second ground of appeal alleges that the General Court erred in law in that it distorted the facts and evidence. By its third ground of appeal, the appellant submits that the General Court erred in law by failing to take measures of inquiry and by rejecting the appellant’s request for measures of organisation of procedure or measures of inquiry. The fourth to sixth grounds of appeal allege that the General Court erred in law in finding that there was no infringement, respectively, of the principle of legal certainty, of the principle of equal treatment and of the principle of proportionality. Last, by the seventh ground of appeal, the appellant alleges that the General Court erred in law in finding that there was no misuse of powers.
Admissibility of the appeal
Arguments of the parties
31 The Republic of Poland contends that the appeal is inadmissible to the extent that it concerns Article 36 of Directive 2009/73, as amended by the directive at issue, and in so far as it seeks annulment of the directive at issue in its entirety and it seeks, in the alternative, annulment of the words ‘completed before 23 May 2019’ in Article 49a of Directive 2009/73, as inserted by the directive at issue.
32 First of all, the Republic of Poland submits that, in the judgment of the Court of Justice in Nord Stream 2, the Court of Justice held that the appellant’s action for annulment was admissible only in so far as it was directed against Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue. Next, at the hearing before the General Court, the appellant stated that it did not seek the annulment of Article 36 of Directive 2009/73, as amended by the directive at issue. Last, on several occasions in its appeal, the appellant asks the Court of Justice, in essence, to re-examine the assessment of the facts made by the General Court and, in addition, the appellant’s head of claim seeking the annulment of the words ‘completed before 23 May 2019’ in Article 49a(1) of Directive 2009/73, as inserted by the directive at issue, is a new head of claim on appeal.
33 According to the appellant, the claims that the appeal is inadmissible are unfounded. It submits that it stated at the hearing before the General Court that, if the interplay between Article 49a(1) of Directive 2009/73, as inserted by the directive at issue, and Article 36 of Directive 2009/73, as amended by the directive at issue, is a breach of fundamental rights, that justifies the annulment of the directive at issue in its entirety. It is only if the Court of Justice disagrees that it may confine itself to annulling only Article 49a, or parts thereof. Only in that latter scenario, the appellant is not seeking the annulment of Article 36. Furthermore, the appellant claims that it has sufficiently identified the errors of law in the judgment under appeal which it is challenging.
Findings of the Court
34 In the first place, it should be noted, first, that the General Court found, in paragraph 28 of the judgment under appeal, that, in the judgment of the Court of Justice in Nord Stream 2, the Court of Justice had given a final ruling that the appellant was not entitled to seek the annulment of the directive at issue in its entirety. As the General Court recalled in paragraph 24 of the judgment under appeal, in point 3 of the operative part of the judgment of the Court of Justice in Nord Stream 2, the Court of Justice held that the appellant’s action was admissible to the extent that it was directed against Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue.
35 It must be stated that the General Court’s reading of the judgment of the Court of Justice in Nord Stream 2 is correct. Consequently, since, in accordance with the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where a case is referred back to the General Court, that court is bound by the decision of the Court of Justice on points of law, the appellant was not entitled to seek the annulment of the directive at issue in its entirety.
36 Second, as the General Court stated in paragraph 21 of the judgment under appeal, which was not disputed by the appellant, the appellant had confirmed at the hearing before that court that, if the General Court were to decide not to annul the directive at issue in its entirety, it did not seek the annulment of Article 36 of Directive 2009/73, as amended by the directive at issue. In that case, as is apparent from paragraph 20 of the judgment under appeal, the appellant confined itself to seeking, in the alternative, the annulment of Article 49a of Directive 2009/73, as inserted by the directive at issue.
37 It follows from the foregoing that the General Court correctly held that the appellant’s action was admissible only in so far as it sought the annulment of that Article 49a.
38 In the second place, first, the Republic of Poland’s contention that, on several occasions in its appeal, the appellant is, in essence, asking the Court of Justice to re-examine the factual assessment made by the General Court would not, in itself, result in the appeal being inadmissible; rather, should that contention prove to be well founded, it would result in the grounds of appeal or parts of those grounds which relate to such an assessment of the facts by the General Court being inadmissible. Such a contention, which, moreover, has also been made by the respondents and by the Commission, will thus be dealt with in the examination of the various grounds of appeal.
39 Second, since the appellant is entitled to seek the annulment of Article 49a(1) of Directive 2009/73, as inserted by the directive at issue, it must be held that its claim seeking the annulment of the words ‘completed before 23 May 2019’ in that Article 49a is admissible on appeal.
40 It follows from the foregoing that the appeal is inadmissible in so far as it seeks, in the event that the judgment under appeal is set aside, the annulment of the directive at issue in its entirety.
Substance
The first ground of appeal
– Arguments of the parties
41 The appellant submits that the General Court erred in law by failing to comply with the judgment of the Court of Justice in Nord Stream 2 as required by Article 61 of the Statute of the Court of Justice of the European Union. The first ground of appeal may be divided, in essence, into four parts.
42 First, the appellant claims that the General Court misconstrued the difference between being eligible to apply for a derogation and being granted it. Disregarding paragraph 161 of the judgment of the Court of Justice in Nord Stream 2, the General Court examined, for example in paragraphs 49, 50, 92, 94, 181 et seq. of the judgment under appeal, whether the appellant could benefit from the derogations provided for in Articles 36 or 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue.
43 Second, according to the appellant, the General Court makes unfounded or incorrect statements, such as the statement in paragraph 220 of the judgment under appeal suggesting that the derogations are not automatic, or the statement in paragraph 119 of that judgment to the effect that the directive at issue applies to all existing or planned pipelines. The General Court also failed to examine whether there was any justification for the difference in treatment between the appellant and the operators of all other existing or future interconnectors, recognised in paragraph 161 of the judgment of the Court of Justice in Nord Stream 2.
44 Third, the appellant claims that, although it sought the annulment of the directive at issue in its entirety, the General Court examined that claim only in the light of Article 49a of Directive 2009/73, as inserted by the directive at issue. Since, as the appellant emphasised and as is apparent from paragraph 162 of the judgment of the Court of Justice in Nord Stream 2 and the Opinion of Advocate General Bobek in Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2021:831), it is the combined effect of Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue, that gives rise to the unequal treatment, the General Court could not validly confine itself to analysing Article 49a of Directive 2009/73, as inserted by the directive at issue.
45 Fourth, the General Court misinterpreted the findings of the Court of Justice as to the severability of Articles 36 and 49a. The appellant explained before the General Court that the Court of Justice had not examined the legal consequences of the annulment of Articles 36 and 49a, which is a question of substance to which the General Court did not respond.
46 The Parliament and the Council, supported by the Republic of Poland and the Commission, contend that the first ground of appeal must be rejected as in part inadmissible and in part unfounded.
– Findings of the Court
47 According to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned is to be inadmissible (judgments of 15 April 2021, FV v Council, C‑875/19 P, EU:C:2021:283, paragraph 26, and of 16 April 2026, Colombani v EEAS (Passive or collective harassment), C‑343/23 P, EU:C:2026:294, paragraph 77).
48 Accordingly, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the argument is based are not indicated sufficiently coherently and intelligibly in the text of that ground of appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be declared inadmissible (judgments of 4 October 2018, Staelen v Ombudsman, C‑45/18 P, EU:C:2018:814, paragraph 15, and of 16 April 2026, Colombani v EEAS (Passive or collective harassment), C‑343/23 P, EU:C:2026:294, paragraph 78).
49 In the present case, it must be held that the first part of the first ground of appeal does not satisfy those requirements and must therefore be rejected as inadmissible. It is true that the appellant refers to several paragraphs of the judgment under appeal. However, that part of the ground of appeal lacks clarity and does not satisfy the minimum requirements for the Court to exercise its powers of judicial review on appeal.
50 Without additional information to support the line of argument underpinning that part of the ground of appeal, the Court of Justice is not in a position to understand the scope of the appellant’s complaint that, in essence, the General Court conflated being eligible to apply for an exemption or derogation with being granted such an exemption or derogation.
51 As regards the second part of the first ground of appeal, it must be observed that the appellant has failed to explain in a sufficiently clear and precise manner how the General Court’s statements referred to in that part are unfounded or incorrect, such as the statement in paragraph 220 of the judgment under appeal, which, according to the appellant, suggests that the derogations are not automatic, or the statement in paragraph 219 of that judgment to the effect that the directive at issue applies to all existing or planned pipelines. In that regard, the appellant confines itself to general claims which do not enable the Court to exercise its power of review on appeal.
52 In addition, the appellant’s claim that, since it was acknowledged in the judgment of the Court of Justice in Nord Stream 2 that there was a difference in treatment between the appellant and the other pipeline operators, the General Court should have examined the possible justification for that difference in treatment, cannot succeed.
53 It should be noted that, in paragraphs 49, 50, 92 and 94 of the judgment under appeal, cited by the appellant, the General Court correctly reproduced the guidance set out in the judgment of the Court of Justice in Nord Stream 2, in particular in paragraphs 104, 160 and 161 of the latter judgment. It is true that, in paragraphs 160 and 161 of the latter judgment, the Court of Justice held that the appellant’s pipeline was the only one to which neither Article 36 of Directive 2009/73, as amended by the directive at issue, nor Article 49a of Directive 2009/73, as inserted by the directive at issue, applied, and in respect of which no derogation in those provisions could be requested. However, that does not permit the inference that the Court of Justice concluded that there was a difference in treatment between the appellant and the other pipeline operators in connection with an examination relating to a potential infringement of the principle of equal treatment.
54 In that regard, it should be pointed out that the judgment of the Court of Justice in Nord Stream 2 concerns only the examination of whether the action for annulment brought by the appellant before the General Court was admissible. It was in the context of analysing whether the appellant was directly and individually concerned by the directive at issue that the Court of Justice examined whether the appellant could benefit from the derogations provided for in Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue.
55 It is clear from reading the judgment of the Court of Justice in Nord Stream 2 that the Court of Justice in no way examined whether there was any difference in treatment between the appellant and the other pipeline operators. In particular, there is no assessment in that judgment as to whether the situation of the appellant’s pipeline is comparable to offshore pipelines between a Member State and a third country completed before the date of entry into force of the directive at issue, and therefore falling within the scope of Article 49a of Directive 2009/73, as inserted by the directive at issue. It follows that the appellant’s line of argument is based on an incorrect premiss as regards the analysis in the judgment of the Court of Justice in Nord Stream 2.
56 It should, in any event, be noted that, contrary to the appellant’s claims, in paragraphs 150 to 167 of the judgment under appeal, the General Court examined, for the sake of completeness, whether there was any justification for a possible difference in treatment between the appellant and the other pipeline operators.
57 With regard to the third part of the first ground of appeal, the appellant cannot validly complain, in essence, that the General Court restricted its assessment regarding the alleged infringement of the principle of equal treatment to Article 49a of Directive 2009/73, as inserted by the directive at issue. It is apparent from examining the admissibility of the appeal that the General Court correctly held that the appellant’s action was admissible only in so far as it sought the annulment of Article 49a.
58 As regards, last, the fourth part of the first ground of appeal, the appellant cannot validly claim that the General Court misinterpreted the findings of the Court of Justice as to the severability of Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue.
59 It is sufficient to note in that regard that the General Court accurately followed the assessment in paragraph 165 of the judgment of the Court of Justice in Nord Stream 2, according to which those Articles 36 and 49a ‘are severable from the other provisions of Directive 2009/73, as amended by the directive at issue’. The appellant’s assertion that those Articles 36 and 49a are not severable from the directive at issue, in particular from point 17 of Article 2 thereof, is therefore clearly at odds with the judgment of the Court of Justice in Nord Stream 2, which the General Court was required to follow with regard to the points of law decided by that judgment.
60 It follows from the foregoing considerations that the first ground of appeal must be rejected as being in part inadmissible and in part unfounded.
The third ground of appeal and the second part of the second ground of appeal
– Arguments of the parties
61 By the third ground of appeal and the second part of the second ground of appeal, which it is appropriate to examine together and in the second place, the appellant claims, in essence, that the General Court erred in law by failing to take measures of inquiry and by rejecting its request for measures of organisation of procedure or measures of inquiry.
62 According to the first part of the third ground of appeal, the General Court erred in law in basing its findings on the absence of documents which it never requested the appellant to submit.
63 The appellant recalls that it follows from the combined provisions of Article 89 and Article 91(b) of the Rules of Procedure of the General Court that a request for production of documents is a measure of inquiry which the General Court may order at any stage of the proceedings. The General Court’s discretion in that regard cannot be exercised without taking into account the obligation to comply with the rule that the parties should be heard, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.
64 According to the appellant, the General Court did not in any way suggest that it needed documents or financial information, which nevertheless proved to be essential to the decision that it reached. Had it indicated that those documents or that information could be materially relevant to the proceedings before the delivery of the judgment under appeal, the appellant could have easily submitted them. Thus, in paragraphs 84 to 89 of the judgment under appeal, the General Court was not entitled to base its decision on the assertion that the appellant had not produced the contracts for the acquisition of pipes, the contract for the heavy concrete coating of pipes and the contract for the installation of pipes.
65 The appellant submits that, contrary to what the General Court suggested in paragraph 84 et seq. of the judgment under appeal, since the appellant had taken a final investment decision when the legislative proposal for the adoption of the directive at issue had been submitted, it was not required to attempt to reverse that decision or the investments already made or to cancel the contracts concluded, and even less so for the purpose of creating an ‘artificial situation’ that would potentially make it eligible for the derogation provided for in Article 36 of Directive 2009/73, as amended by the directive at issue. Furthermore, an obligation to cancel investments already made would be contrary to ‘reasonable economic interests’.
66 In that regard, the appellant submits, in the second part of the second ground of appeal, that the General Court should have asked it to provide further information and additional evidence before rejecting its claim relating to the irreversible nature of the investments. The General Court should first have drawn the appellant’s attention to that point, failing which the appellant’s right to be heard was infringed.
67 In addition, the General Court’s finding in paragraphs 109, 163 and 252 of the judgment under appeal that the directive at issue and the absence of any possibility of benefiting from a derogation provided for in Articles 36 or 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue, do not prevent the appellant from operating its pipeline in economic conditions, is, according to the appellant, based on a procedural error. The General Court ignored the appellant’s arguments proving the contrary, while relying on other material which the appellant had not produced, which also resulted in an infringement of its right to be heard.
68 By the second part of the third ground of appeal, the appellant claims that the General Court erred in law in that it did not ascertain the real objectives of the directive at issue and its appropriateness for attaining the publicly stated objectives, by simply – and indeed solely – relying on the text of that directive and the official Commission documents. Even though the appellant has demonstrated that the declared objectives were ‘not genuine’, as is shown, moreover, by the Opinion of Advocate General Bobek in Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2021:831), the General Court did not examine its arguments in that regard.
69 Furthermore, the appellant submits that, by rejecting, in paragraphs 326 to 334 of the judgment under appeal, the request for measures of organisation of procedure or measures of inquiry submitted by the appellant on 29 November 2019, the General Court erred in law in so far as it referred to its examination regarding the misuse of powers and the principles of equal treatment, proportionality and legal certainty, since that examination is vitiated by errors of law.
70 The Parliament and the Council, supported by the Republic of Poland and the Commission, contend that the third ground of appeal must be rejected as inadmissible and, in any event, as unfounded.
– Findings of the Court
71 As regards the first part of the third ground of appeal, it must, first, be borne in mind that, under Article 85(1) of the Rules of Procedure of the General Court, evidence produced or offered is to be submitted in the first exchange of pleadings.
72 In accordance with settled case-law, the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented. Whether or not the evidence before it is sufficient is a matter to be appraised by the General Court alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (judgment of 2 October 2025, WV v EEAS, C‑243/24 P, EU:C:2025:742, paragraph 87 and the case-law cited).
73 In particular, it is for the Courts of the European Union to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure concerned on measures of inquiry, whether it is necessary for a document to be produced (judgment of 14 May 2020, NKT Verwaltungs and NKT v Commission, C‑607/18 P, EU:C:2020:385, paragraph 287 and the case-law cited). That is also the case as regards measures of organisation of procedure, as is apparent from Article 90(1) of the Rules of Procedure of the General Court.
74 In that regard, it should be recalled that, in its examination of the plea alleging infringement of the principle of legal certainty, the General Court stated, in paragraph 83 of the judgment under appeal, that the appellant was in a position to foresee, on the basis of the information available to it, that an EU measure that would affect its interests, namely the directive at issue, would be adopted. In paragraph 84 of that judgment, the General Court stated that the appellant had not shown that it had been unable to make changes in order to be able to benefit from the derogation provided for in Article 36 of Directive 2009/73, as amended by the directive at issue, when the latter directive entered into force.
75 That conclusion is based on two factors that are apparent from paragraphs 85 and 86 of the judgment under appeal. First, the appellant did not claim that, no later than the date of the proposal for a directive, it had attempted to interrupt or suspend performance of the contracts which it had previously concluded, or that it had attempted to renegotiate them. Second, the appellant had not shown that, by that date, it was unable to interrupt or suspend its project and, more generally, that its investments had become irreversible.
76 It was following those statements that the General Court found, in paragraph 87 of the judgment under appeal, that the appellant had not produced the three contracts to which it had referred before the General Court and which, it had explained, had been concluded on 6 April 2016, 6 September 2016 and 6 April 2017 respectively. In addition, in paragraph 87, the General Court specifically referred to two annexes produced by the appellant.
77 Furthermore, it is apparent from paragraphs 90 and 91 of the judgment under appeal that the General Court also relied on other evidence, such as the gas transportation agreement which the appellant had concluded on 23 April 2017 and the financing agreements concluded by the appellant in April and June 2017.
78 It is thus clear from the paragraphs of the judgment under appeal cited in paragraphs 75 to 78 of the present judgment that, in its unfettered assessment of the facts, the General Court examined whether or not the evidence submitted before it was sufficient.
79 It follows that the appellant cannot validly claim that the General Court based ‘its decision on the assertion that the appellant had not submitted [the contracts referred to in paragraph 76 of the present judgment]’. On the contrary, the General Court based its conclusion on the matters set out in paragraphs 85 to 87, 90 and 91 of the judgment under appeal.
80 In addition, it should be pointed out that the appellant itself referred to evidence, namely the contracts for the acquisition of pipes, the contract for the heavy concrete coating of pipes and the contract for the installation of pipes, in order to substantiate its claims relating, in particular, to the alleged irreversible nature of its investments. Nevertheless, even though it bears the burden of proof, the appellant failed to produce that evidence before the General Court. Thus, since the appellant has not claimed that it was in any way not possible, for instance on account of force majeure, for it to produce that evidence, it cannot validly criticise the General Court for not ordering a measure of organisation of procedure or a measure of inquiry in order to grant it a further opportunity to produce that evidence.
81 Second, as regards the appellant’s claim that, contrary to what is suggested in paragraph 84 et seq. of the judgment under appeal, it could not be required to attempt to reverse its final investment decision or to cancel the contracts already concluded, it is sufficient to note that that claim seeks, in essence, to call into question the General Court’s assessment of the facts and evidence.
82 As noted in paragraph 79 of the present judgment, the General Court examined, in paragraph 84 et seq. of the judgment under appeal, in its unfettered assessment of the facts, whether or not the evidence submitted before it was sufficient. It must be held that the appellant’s claim does not set out any specific information capable of demonstrating any distortion of those facts and that evidence.
83 In so far as, by that claim, the appellant claims that the General Court unduly imposed on it a legal obligation to make changes by attempting, inter alia, to interrupt or suspend the performance of contracts which it had previously concluded, it is clear that that argument is based on a misreading of paragraph 84 of the judgment under appeal. In that paragraph 84, the General Court did not indicate that the appellant was under such an obligation, but merely found that the appellant had not shown that it was unable to make changes in order to be able to benefit from the exemption provided for in Article 36 of Directive 2009/73, as amended by the directive at issue.
84 Third, as regards the appellant’s claims concerning paragraphs 109, 163 and 252 of the judgment under appeal, those paragraphs are not vitiated by any procedural error since, in any event, in paragraphs 256 to 259 of the judgment under appeal, the General Court examined the issue of the possible financial consequences for the appellant, in the light of the figures put forward by the appellant as to the extent of its investments, and explained to the requisite standard why, in its view, the appellant had failed to prove those consequences. The General Court therefore did not ignore the appellant’s arguments in that regard.
85 Furthermore, contrary to the appellant’s claims, paragraphs 258 and 259 of the judgment under appeal cannot be read as showing that the General Court based its analysis on other material that was not produced by the appellant. It follows from those paragraphs 258 and 259 only that the General Court considered the material produced by the appellant to be insufficient to demonstrate the validity of its arguments.
86 In the light of the foregoing considerations, the first part of the third ground of appeal and the second part of the second ground of appeal must be rejected as in part inadmissible and in part unfounded.
87 As regards the second part of the third ground of appeal, it should be noted, first, that the appellant refers, in essence, to the sixth ground of appeal as regards the claim that the General Court did not ascertain the real objectives of the directive at issue. Accordingly, the appellant’s line of argument will be analysed in the examination of that sixth ground of appeal.
88 Second, in paragraphs 326 to 334 of the judgment under appeal, the General Court rejected the appellant’s request for measures of organisation of procedure, in essence, on three grounds, one of which related to the fact that the General Court had rejected the first to third pleas for annulment raised by the appellant. The appellant claims that the rejection of that request constitutes an error of law, in so far as the General Court’s assessments relating to those three pleas for annulment, which are challenged in the fourth to seventh grounds of appeal, are themselves vitiated by an error of law. Accordingly, the question of the merits of the appellant’s claim concerning such a refusal to order measures of organisation of procedure depends on the outcome of the examination of those other grounds of appeal and will therefore be dealt with following the examination of those other grounds of appeal.
89 It follows from the foregoing considerations that the first part of the third ground of appeal and the second part of the second ground of appeal must be rejected and that it is appropriate to rule on the merits of the second part of the third ground of appeal after analysing the fourth to seventh grounds of appeal.
The fourth ground of appeal
– Arguments of the parties
90 According to the appellant, the General Court made errors in law in finding that there was no infringement of the principle of legal certainty.
91 In the first place, the appellant submits that the General Court distorted the facts and evidence regarding the public discussion preceding the pre-announcement of the proposal for a directive on 13 September 2017. Prior to that announcement, the appellant had no reason to assume that the directive at issue would apply to offshore import pipelines in the future, contrary to long-standing practice.
92 In that regard, first of all, concerning paragraphs 55 to 65 of the judgment under appeal, the appellant submits that the General Court substantiated its suggestion that the changes to the scope of Directive 2009/73 were foreseeable by referring to general concerns about gas supply and to other manifestly incorrect statements dating back to 2010, to the objectives of Directive 2009/73, to Decision No 994/2012/EU of the European Parliament and of the Council of 25 October 2012 establishing an information exchange mechanism with regard to intergovernmental agreements between Member States and third countries in the field of energy (OJ 2012 L 299, p. 13), and to more general concerns about gas supply and gas supply agreements, by making comparisons with the situation of onshore pipelines (Yamal) and onshore sections of the South Stream project, and by indicating that any new infrastructure should be fully in line with the Third Energy Package and the European Union’s energy policy objectives.
93 According to the appellant, those statements have nothing to do with the extension of the scope of Directive 2009/73 to offshore pipelines and no legislative initiatives or draft legislation were announced in the years following those statements or discussed in any policy documents prior to the proposal that led to the adoption of the directive at issue. To suggest that those statements indicated a change in the law is thus a distortion of the facts.
94 Next, the General Court’s assessment, in paragraphs 67 to 72 of the judgment under appeal, that the political discussion surrounding the Nord Stream 2 pipeline project eliminates the protection of legitimate expectations would entail that all projects that are subject to political discussion and/or measures lose that fundamental protection. The political statements made reveal something that the General Court did not consider, which is the political pressure at EU level to take action against the Nord Stream 2 pipeline, which led to the adoption of the directive at issue.
95 Last, contrary to what the General Court argues in paragraph 76 et seq. of the judgment under appeal, the Commission’s proposal to negotiate an intergovernmental agreement with the Russian Federation concerning the Nord Stream 2 pipeline project cannot be interpreted as suggesting that a change in law was imminent. Moreover, the General Court did not provide any explanation in that regard.
96 The appellant adds that, at the time of the announcement of the proposal for a directive and at the time of that proposal, it had made substantial and irreversible investments. Accordingly, at those times, it was too late to avoid a massive devaluation of those investments, especially since it was unclear when the directive at issue would be approved and enter into force or what its final content would be. In that regard, the appellant states that it should have been entitled to a transitional period or to a compensation system.
97 In the second place, the appellant claims that the General Court distorted the facts and evidence and omitted to take appropriate measures of inquiry regarding the appellant’s final investment decision, the investments made by it and the irreversible nature of those investments.
98 In paragraphs 52, 86, 87 and 89 of the judgment under appeal, the General Court calls into question the contracts which the appellant had signed, the existence of which constitutes an uncontested fact for the parties, taking the view that the documents in the file did not contain sufficient evidence concerning those contracts, but without giving the slightest indication or taking any measure of inquiry during the proceedings before it in order to ascertain those facts.
99 Furthermore, the appellant submits that the General Court erred in law in finding that the appellant had not shown that it could not have interrupted making its investments or have amended the proposed arrangements for the operation of the project and, more generally, that its investments had become irreversible.
100 First of all, the appellant claims to have demonstrated that its contracts for the construction of the pipeline could be suspended or cancelled only at the cost of considerable economic damage. The irreversible nature of its investments was an undisputed fact which did not require any further evidence. In that regard, according to the appellant, the General Court’s assessment relating to the examination of the irreversible nature of the investments is imprecise and unfounded.
101 Next, since it was not possible to foresee the time limits for the adoption of the directive at issue, the appellant continued to develop its pipeline on the basis of a regulatory regime which, it had reasonably believed, applied and would continue to apply.
102 Last, the appellant claims that the General Court’s suggestion that contracts and project structures could have been altered when the proposal for a directive was published lacks any basis in the case file. The General Court did not explain on what basis and at what point in time the appellant would be expected to have made such alterations, which, in any event, are unrealistic from an economic point of view. In that regard, according to the appellant, the General Court relied on speculative and erroneous assumptions.
103 The appellant adds that the General Court’s suggestion that the appellant had not demonstrated the irreversible nature of its investments at the time of the proposal for a mandate to negotiate an intergovernmental agreement with the Russian Federation concerning the appellant’s pipeline is an infringement of the appellant’s right to be heard.
104 In its reply, the appellant submits, first, that it could legitimately rely on the consistent legal practice concerning offshore import pipelines into the European Union. The General Court failed to recognise that the emergence of legitimate expectations must be assessed at the time of the final investment decision. Thus, a prudent operator could reasonably have expected that all existing investments relating to offshore import pipelines would be treated equally.
105 Moreover, the appellant submits that its legitimate expectations could not have been extinguished before the proposal for a directive was submitted in November 2017. The context in which the directive at issue was adopted undeniably shows that it is a targeted legislative action akin to a ‘Lex Nord Stream 2’. The appellant maintains that the case-law of both the European Court of Human Rights and the Bundesverfassungsgericht (Federal Constitutional Court, Germany) regarding the principle of the protection of legitimate expectations supports its position.
106 Second, the appellant submits that the General Court’s examination of the facts is vitiated by errors of law. The legislative process shows both the pursuit of general objectives relating to the internal market and explicit references to the appellant’s project. The General Court highlighted only the former and underestimated the latter, which led to a distortion of the facts and evidence.
107 In addition, the directive at issue governs gas transmission infrastructure, not gas supply contracts, with the result that it cannot achieve its purported aim of reducing dependency on Russian gas.
108 The Parliament and the Council, supported by the Republic of Poland and the Commission, contend that the fourth ground of appeal must be rejected as unfounded.
– Findings of the Court
109 It should be noted that, in connection with the fourth ground of appeal, the appellant disputes, in essence, the General Court’s assessment relating to the infringement of the principle of the protection of legitimate expectations, as a corollary of the principle of legal certainty.
110 It is settled case-law, recalled by the General Court in paragraph 46 of the judgment under appeal, that the right to rely on the principle of the protection of legitimate expectations extends, as a corollary of the principle of legal certainty, to any individual in a situation where EU authorities have caused him or her to entertain legitimate expectations. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such expectations. However, a person may not plead breach of the principle unless he or she has been given precise assurances by the authorities. Similarly, if a prudent and alert economic operator can foresee that the adoption of an EU measure is likely to affect his or her interests, he or she cannot plead that principle if the measure is adopted (judgments of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 153, and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 616).
111 Furthermore, the Court has held that an economic operator may not place legitimate reliance on there being no alteration of an existing situation by the EU legislature, but can call into question only the arrangements for the implementation of such an alteration (judgment of 4 October 2024, of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 617 and the case-law cited).
112 In the present case, in the light of certain arguments put forward by the appellant, it must be emphasised, as a preliminary point, that it is true that the General Court recalled, in paragraph 49 of the judgment under appeal, that, in the judgment of the Court of Justice in Nord Stream 2, the Court of Justice held that, on the date of adoption of the directive at issue, the appellant could not benefit from the derogations provided for in Article 36 of Directive 2009/73, as amended by the directive at issue, and Article 49a of Directive 2009/73, as inserted by the directive at issue.
113 Nevertheless, the General Court did not err in law in stating, in paragraph 50 of the judgment under appeal, that that fact did not make it possible to demonstrate that the EU legislature had infringed the principle of the protection of legitimate expectations, as a corollary of the principle of legal certainty. Observance of the principle of the protection of legitimate expectations requires an assessment of the criteria established by the case-law of the Court of Justice, referred to in paragraphs 110 and 111 of the present judgment.
114 Having made that preliminary observation, as regards the first part of the fourth ground of appeal, according to which the General Court distorted the facts and evidence relating to the public discussion preceding the pre-announcement of the proposal for a directive on 13 September 2017, it must be stated that there is no distortion of the facts and evidence in paragraphs 55 to 72 of the judgment under appeal, relating to the context in which the appellant decided to invest, or in paragraphs 76 to 94 of that judgment, relating to the fact that the appellant continued to make investments.
115 First, the appellant has not demonstrated that the General Court, in the analysis set out in paragraphs 55 to 65 of the judgment under appeal, distorted the numerous positions adopted by the institutions to the effect that, in general, imports of energy into the European Union and pipelines between a Member State and a third country are, on the basis of the existing law or on the basis of law which would be amended, fully subject to the rules governing the internal energy market. The appellant cannot, in that regard, validly claim that the statements which the General Court took into account in its analysis ‘have nothing to do with the extension of the scope of [Directive 2009/73]’.
116 Second, the General Court cannot be criticised for relying, in paragraph 67 et seq. of the judgment under appeal, on political statements of several Member States and of the Parliament and the Commission in order to note that they had clearly expressed their desire for the Nord Stream 2 pipeline to be subject to the obligations laid down by Directive 2009/73 when they became aware of the existence of that project. In the analysis of the third plea for annulment, relating to infringement of the principle of legal certainty, the General Court was correct in examining the political and legal context of the appellant’s project in order to establish whether the appellant was in a position to foresee the adoption of the measure at issue. In that regard, the appellant has not shown that the General Court distorted such evidence.
117 Third, the Commission’s request to obtain a mandate from the Member States to negotiate an agreement on the Nord Stream 2 pipeline with the Russian Federation is a relevant factor in examining such a political and legal context and, in particular, whether the appellant could foresee that the Nord Stream 2 pipeline would be subject to the obligations laid down by Directive 2009/73. The General Court took such a request by the Commission into consideration in paragraph 76 et seq. of the judgment under appeal. In that regard, contrary to the appellant’s claims, paragraphs 77 to 80 of the judgment under appeal contain explanations as to why the General Court considered such a mandate to be relevant.
118 In any event, it should be noted, as is stated, in essence, by the Council, that the General Court’s examination of the third plea in the action for annulment shows that the EU institutions had not given the appellant any assurances, in the form of precise, unconditional and consistent information, capable of giving rise to legitimate expectations on its part that EU law would continue not to be applied to the Nord Stream 2 pipeline. On the contrary, it is apparent from paragraph 54 et seq. of the judgment under appeal that, since 2010, there have been several indications that the obligations laid down by Directive 2009/73 would apply to pipelines between a Member State and a third country in general and to the Nord Stream 2 pipeline in particular. It follows that the appellant cannot validly claim that, on the basis of the principle of the protection of legitimate expectations, the General Court should have found that the appellant should have been entitled to a transitional period or to a compensation system.
119 As regards, last, the appellant’s other claims that, in essence, it was entitled to expect that the investments which it had already made would be protected, that it was too late, on the date of the proposal for a directive, for it to be able to avoid the depreciation of its investments and that it was difficult to foresee whether the directive at issue would be approved and would enter into force, or what its final content would be, it is sufficient to state that those claims seek to challenge the General Court’s assessment of the facts and evidence, without, however, setting out any specific information capable of demonstrating any distortion of those facts and that evidence. In any event, those claims are ineffective. Even if the General Court had erred in that regard, that would have had no effect on the dismissal of the appellant’s action, since it is apparent from the examination of the first part of the fourth ground of appeal that, in the present case, there were no assurances, within the meaning of the case-law cited in paragraph 110 of the present judgment, that would enable the appellant to rely on the principle of the protection of legitimate expectations.
120 As regards the second part of the fourth ground of appeal, first, the appellant repeats the claim relating to the failure to order a measure of inquiry, which was rejected in the examination of the first part of the third ground of appeal and the second part of the second ground of appeal.
121 Second, the claim that the General Court erred in finding that the appellant had not demonstrated the irreversible nature of its investments is ineffective for the reason set out in paragraph 119 of the present judgment.
122 In the light of the foregoing considerations, the fourth ground of appeal must be rejected.
The fifth ground of appeal
– Arguments of the parties
123 The appellant claims that the General Court erred in law in finding, in paragraphs 115 to 168 of the judgment under appeal, that there was no infringement of the principle of equal treatment.
124 First, as is apparent, according to the appellant, from the first ground of appeal, the General Court did not draw the correct conclusions from the judgment of the Court of Justice in Nord Stream 2. Although, in that judgment, the Court of Justice established that the difference in treatment lies in the fact that the appellant is not eligible for a derogation, the General Court made no assessment of the difference in treatment between the appellant and the operators of all other existing or future interconnectors, which are eligible for a derogation, within the meaning of Directive 2009/73, as amended by the directive at issue.
125 Second, the General Court restricted its assessment to Article 49a of Directive 2009/73, as inserted by the directive at issue, and essentially confined itself to examining whether the criterion of completion in that Article 49a constitutes a legitimate criterion capable of justifying a difference in treatment.
126 The Parliament and the Council, supported by the Republic of Poland and the Commission, contend that the fifth ground of appeal is, in part, inadmissible and, in part, unfounded and, in any event, unfounded in its entirety.
– Findings of the Court
127 It should be noted that, by the fifth ground of appeal, the appellant repeats, in essence, the claims which it made in connection with the first ground of appeal.
128 It follows that, for the same reasons as those for which that first ground of appeal was rejected, the fifth ground of appeal must be rejected as in part inadmissible and in part unfounded.
The sixth ground of appeal
– Arguments of the parties
129 The appellant claims that the General Court erred in law in finding, in paragraphs 182 to 235 of the judgment under appeal, that there was no infringement of the principle of proportionality.
130 In the first place, according to the appellant, the General Court distorted the facts and evidence regarding the public benefits of the directive at issue. The appellant claims to have shown, relying in particular on the statements of several Member States and EU institutions, that the real objective underlying the directive at issue was to prevent or complicate the Nord Stream 2 pipeline project.
131 In that regard, the appellant submits that the General Court disregarded the Opinion of Advocate General Bobek in Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2021:831) and did not examine the appellant’s response to a question put to it by the General Court.
132 Furthermore, contrary to the case-law relating to the discretion of the EU legislature, the General Court failed to examine whether the directive at issue is in fact based on objective criteria which are appropriate for attaining the objective pursued. Moreover, the General Court failed to fulfil its obligations as regards compliance with the conditions for the exercise of its judicial review, which required a detailed economic assessment and, in particular, verification that the evidence relied on was factually accurate, reliable and consistent.
133 The appellant adds that the General Court did not examine to the requisite legal standard the arguments put forward by the appellant and did not give sufficient reasons for its decision in that it did not examine in detail the ‘critical question’ in the case, which is that of the stated and actual objectives of the directive at issue.
134 Regarding the existence of an impermissible intent to discriminate on the part of the EU legislature that adopted the directive at issue, the General Court’s assessment cannot be restricted to official EU documents since ‘this would open the floodgates for abuse’, in the sense that discriminatory measures could be implemented under the guise of seemingly neutral rules. Since the appellant has revealed the true objective of the directive at issue and the Opinion of Advocate General Bobek in Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2021:831) has confirmed the targeted nature of that directive, the General Court could not have restricted its assessment of the objectives of that directive to official EU documents and should have ordered measures of inquiry.
135 The appellant adds that the General Court substantiates its findings by referring to gas supply and the concentration of the gas supply to the European Union, which is incorrect since those have nothing to do with the impact of the directive at issue or the case, which concerns the regulated or unregulated gas transmission operation of a single pipeline.
136 In the second place, the appellant submits that, in paragraph 183 et seq. of the judgment under appeal, the General Court distorted the facts and evidence regarding the public benefits of the directive at issue in relation to legal certainty. Since, by its content and practical effects, the directive at issue applies only to the operation of the Nord Stream 2 pipeline, that directive does not guarantee a uniform legal framework intended to avoid a ‘legal vacuum’. In that regard, the ground set out in paragraph 191 of the judgment under appeal, according to which several offshore pipelines are subject to international agreements which incorporate the fundamental principles of the directive at issue, is not sufficiently substantiated.
137 In the third place, according to the appellant, in paragraph 196 et seq. of the judgment under appeal, the General Court distorted the facts and evidence regarding the public benefits of the directive at issue in relation to competition and security of supply.
138 The appellant claims at the outset that, contrary to the General Court’s approach, the relevant question is whether the application of the rules of the directive at issue to the operation of the appellant’s pipeline promotes the objectives of that directive. In that regard, the General Court failed to apply the correct test for reviewing the proportionality of the directive at issue.
139 According to the appellant, regulation of a short section of an offshore import pipeline, such as that of Nord Stream 2, has no positive impact on competition or security of supply. Contrary to what the General Court held in paragraph 216 of the judgment under appeal, such regulation would not make it possible to avoid the threat to security of supply on account of Gazprom’s strengthened position on the market.
140 Similarly, the appellant submits that the General Court cannot validly claim, in paragraphs 215 and 218 to 221 of the judgment under appeal, that the appellant’s project leads to a concentration of the entry points of gas imported into the European Union and of the transmission routes and is liable to deter the construction or development of alternative import infrastructures, or that the directive at issue applies to all existing and future gas pipelines, whether onshore or offshore.
141 In that regard, the appellant maintains that the General Court erred in law when it held, in paragraph 39 of the judgment under appeal, that, according to the settled case-law of the Court of Justice relating to the relevant time for assessing the legality of an act of EU law, it could not take into consideration the fact that all other offshore import pipelines between third countries and the European Union had obtained a derogation under Article 49a of Directive 2009/73, as inserted by the directive at issue.
142 More specifically, the inability of the directive at issue to promote the objectives of avoiding distortions of competition and negative effects on security of supply is confirmed, first, by the fact that the provisions relating to the unbundling of the transmission system and the transmission system operator in Directive 2009/73 apply to only one offshore import pipeline. Where an offshore pipeline originates in a third country and feeds energy into the transmission system of a Member State, the question of whether that pipeline, as a ‘one-way highway’ for gas from a single supplier, is regulated or not is irrelevant to the question of security of supply and distortion of competition in the European Union. In that regard, the reference, in paragraph 201 of the judgment under appeal, to the judgment of 2 September 2021, Commission v Germany (Transposition of Directives 2009/72 and 2009/73) (C‑718/18, EU:C:2021:662), is ‘misleading’.
143 Second, contrary to what the General Court stated in paragraph 206 et seq. of the judgment under appeal, the provisions on third-party access to the energy infrastructure are not appropriate for promoting the alleged objectives of preventing distortions of competition and negative impacts on security of supply. In that regard, the General Court confines itself to abstract assertions and fails to demonstrate that a right of physical connection to the appellant’s offshore pipeline, connecting the transmission system of a third country with the transmission system of a Member State, is realistic.
144 Furthermore, contrary to what is stated in paragraph 209 et seq. of the judgment under appeal, the directive at issue is not necessary in order to impose information and transparency obligations relating to the operation and maintenance of important infrastructure. Nor does that directive strike a fair balance in the light of the extent of its effects on the appellant, which go far beyond information and transparency obligations, even though that directive is not in the public interest.
145 Third, as regards paragraphs 229 to 232 of the judgment under appeal, the appellant submits that it did not claim that its offshore pipeline was an upstream pipeline network, within the meaning of point 2 of Article 2 of Directive 2009/73, merely that an application of the provisions of that directive to its offshore pipeline was just as unjustified as the application of that directive to upstream pipeline networks. It submits that there is no actual or potential competition between the various potentially interested parties for access to the infrastructure along the route of its pipeline.
146 Fourth, the appellant claims that the alleged public benefits of the directive at issue do not outweigh its strong impact on the appellant, since the obligations stemming from that directive affect and disadvantage it disproportionately.
147 In that regard, contrary to what is stated in paragraph 246 et seq. of the judgment under appeal, the fact that the appellant cannot operate its pipeline as it had initially envisaged demonstrates that the directive at issue imposes disproportionate constraints on it. The General Court committed a serious procedural error in not accepting proof concerning the economic consequences of that directive for the appellant.
148 In addition, several of the General Court’s statements are unfounded. Thus, the statement, in paragraph 247 of the judgment under appeal, that Directive 2009/73 provides for a choice between three ‘unbundling models’ is irrelevant, since, as the appellant explained before the General Court, that choice necessarily entails an obligation to unbundle the transmission system and the transmission system operator, which makes the appellant’s corporate structure impossible.
149 Moreover, contrary to what is stated in paragraph 254 of the judgment under appeal, renegotiating the gas transportation agreement and adapting it to the obligations laid down by the directive at issue would lead to unreasonable disadvantages for the appellant. The General Court did not carry out the correct analysis in that regard, since it based its reasoning on such renegotiation and adaptation not being impossible for the appellant.
150 The appellant also challenges paragraph 255 of the judgment under appeal and states that the fact that the contractual partner is a wholly owned subsidiary does not mean that financing agreements can simply be adjusted or amended, since the parent company must agree to it. In addition, other investors finance 50% of the Nord Stream 2 project, which makes such renegotiation unrealistic.
151 Furthermore, the appellant submits that it has comprehensively demonstrated that it had already made irreversible investments at the time of the Commission’s request for a mandate to negotiate an intergovernmental agreement with the Russian Federation and that the concluded contracts could not be cancelled or that a termination or adjustment would have entailed unreasonable costs.
152 The Parliament and the Council, supported by the Republic of Poland and the Commission, dispute the appellant’s arguments.
– Findings of the Court
153 The sixth ground of appeal may be divided, in essence, into three parts.
154 In the first place, as regards the claim that the General Court distorted the facts and evidence relating to the public benefits of the directive at issue, it should be noted, first of all, that the General Court did not err in law when it examined the objectives pursued by the directive at issue in the light of the recitals of that directive and the travaux préparatoires leading to its adoption, since, as is apparent from the settled case-law of the Court of Justice, that is a standard method of interpreting an act of EU law (see, to that effect, judgment of 11 September 2025, Österreichische Zahnärztekammer, C‑115/24, EU:C:2025:694, paragraph 62 and the case-law cited).
155 Next, the appellant cannot validly complain that the General Court disregarded its arguments relating to the supposed or actual objectives of the directive at issue. First, that complaint relates, in particular, to paragraphs 178 to 180, 183 to 194 and 196 to 211 of the judgment under appeal, which form part of the General Court’s analysis of the second plea in the action for annulment, alleging infringement of the principle of proportionality, a plea in connection with which the appellant had not put forward such arguments. On the contrary, reading the application at first instance shows that, in connection with that second plea for annulment, the appellant had referred to the stated objectives of the directive at issue. It was in connection with the fourth plea for annulment, alleging misuse of powers, that the appellant relied on those arguments, as is apparent in particular from paragraph 158 of the application initiating proceedings before the General Court. As is apparent from paragraph 266 et seq. of the judgment under appeal, the General Court did indeed examine those arguments in its examination of that fourth plea.
156 Furthermore, it must be borne in mind, first, that the Court of Justice and the General Court are not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 26 March 2026, Pumpyanskiy and Others v Council, C‑696/23 P, C‑704/23 P, C‑711/23 P, C‑35/24 P and C‑111/24 P, EU:C:2026:245, paragraph 73 and the case-law cited). Second, it should be noted that, in paragraphs 182 to 235 of the judgment under appeal, with regard to whether the directive at issue is appropriate for attaining the objectives pursued by it, the General Court did not exceed the limits of its judicial review, but carried out the examination which it was required to carry out. In that regard, it is clear from the assessment in those paragraphs that the General Court responded to the appellant’s arguments and took into account the relevant evidence available to it. It examined in particular the situation of the appellant’s pipeline, inter alia, in the light of gas supply and the concentration of the gas supply to the European Union.
157 In the second place, as regards the claim that the General Court distorted the facts and evidence regarding the public benefits of the directive at issue in relation to legal certainty, it should be noted that the General Court did not distort the facts and evidence when it concluded, in paragraph 188 of the judgment under appeal, relying on a correct reading of the recitals of the directive at issue, that the directive at issue avoided a ‘legal vacuum’ in so far as it applied to the section of offshore gas pipelines between a Member State and a third country passing through the territorial waters of a Member State, such as the section of the Nord Stream 2 pipeline which passes through German territorial waters.
158 Furthermore, the General Court’s statement, in paragraph 191 of the judgment under appeal, that the fundamental principles of the regulatory framework established in Directive 2009/73 are reflected in several international agreements concluded between Member States and third countries or between the European Union and third countries and are systematically applied to onshore pipelines between a Member State and a third country is not vitiated by any failure to state reasons. That statement, which is in the proposal for a directive, enables the appellant to understand sufficiently the reasons why the General Court concluded, in paragraph 192 of that judgment, that the application of the obligations laid down by Directive 2009/73 to all gas pipelines between a Member State and a third country contributed to the consistency of the applicable law, without it being necessary, in that regard, for the General Court to specify which international agreements were meant.
159 In the third place, as regards the claim that the General Court distorted the facts and evidence regarding the public benefits of the directive at issue in relation to competition and security of supply, it should be noted, first, that the General Court, in paragraph 212 et seq. of the judgment under appeal, applied the correct test to determine whether the directive at issue was appropriate for preventing distortions of competition and negative impacts on security of supply.
160 Second, the appellant’s criticisms of the General Court’s assessment in paragraphs 215, 216 and 218 of the judgment under appeal are inadmissible in so far as they seek, in essence, to challenge the General Court’s assessment of the facts and evidence without, however, setting out any specific information capable of demonstrating any distortion of those facts and that evidence.
161 Furthermore, contrary to what the appellant claims, it is sufficient to note that paragraphs 219 and 220 of the judgment under appeal, in which the General Court stated, respectively, that the directive at issue applied to all existing and future pipelines, whether onshore or offshore, and that the derogations provided for in Articles 36 and 49a of Directive 2009/73, as amended and inserted respectively by the directive at issue, were not automatic, followed from a correct reading of the provisions of the latter directive.
162 Furthermore, the appellant’s criticism of paragraph 221 of the judgment under appeal is based on a misreading of that paragraph 221. In that paragraph 221, the General Court did not state that all offshore import pipelines were already subject to the obligations laid down by the directive at issue, but stated that that directive had been adopted in a context in which ‘many pipelines completed between a Member State and a third country, in particular onshore pipelines, were already subject to the obligations laid down by Directive 2009/73’ as a result, inter alia, of international agreements.
163 Moreover, contrary to what the appellant claims, it should be noted that, in paragraphs 38 and 39 of the judgment under appeal, the General Court was fully entitled to hold, in accordance with the settled case-law of the Court of Justice, that, in an action for annulment, the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 37). It therefore correctly held that the fact, alleged by the appellant, that other pipelines between a Member State and a third country, situated offshore and completed before 23 May 2019, had all obtained a derogation on the basis of Article 49a of Directive 2009/73, as inserted by the directive at issue, after the adoption of the latter directive could not be taken into consideration.
164 In the fourth place, it should be noted that the appellant makes more specific claims relating, first, to the requirements relating to the unbundling of the transmission system and the transmission system operator, second, to third-party access to the system and to tariff and non-tariff transparency, third, to the situation of upstream pipelines and, fourth, to the alleged public benefits of the directive at issue.
165 In that regard, concerning, first, the obligations to unbundle the transmission system and the transmission system operator, the General Court explained in paragraphs 201 to 205 of the judgment under appeal, relying on a correct reading of the provisions of Directive 2009/73, the reasons why such obligations were appropriate for attaining the objectives pursued by the directive at issue. In that regard, in paragraph 201 of the judgment under appeal, it correctly recalled that, in a situation where natural gas or electricity produced outside the European Union by an undertaking is transported within the European Union through a transmission system that is owned by the same undertaking, there is an obvious risk of discriminatory conduct in the operation of that network, capable of affecting the transportation of the energy products of competitors (judgment of 2 September 2021, Commission v Germany (Transposition of Directives 2009/72 and 2009/73), C‑718/18, EU:C:2021:662, paragraph 37).
166 Accordingly, as stated, in essence, by the Parliament, making the appellant’s project subject to the obligations laid down by Directive 2009/73, in particular those relating to the unbundling of the transmission system and the transmission system operator, contributes to ensuring that dominant gas suppliers cannot abuse their position by intervening in the transmission and distribution sectors.
167 Second, it is true that, as the General Court stated in paragraph 206 of the judgment under appeal, as regards the third-party access obligation laid down in Article 32 of Directive 2009/73, gas pipelines between a Member State and a third country and, in particular, the Nord Stream 2 pipeline do not necessarily have an interconnection point and a request for access from a third party may only be a possibility.
168 Nevertheless, as the General Court stated in paragraph 207 of the judgment under appeal, that third-party access obligation covers existing ‘and future’ requests for access and has two aspects, namely the obligation to permit the physical connection to the pipeline and ‘the obligation to permit access to transport capacities under fair conditions’. It follows that, as the General Court stated in paragraph 208 of the judgment under appeal, third parties are entitled not only to connect to pipelines, irrespective of whether they are onshore or offshore pipelines, as regards the section of pipeline which falls within the territorial scope of EU law, but also to access the transmission capacities of those pipelines. Thus, the General Court’s assessment that the third-party access obligations laid down in the directive at issue, which extends the application of Directive 2009/73 to pipelines between a Member State and a third country, are appropriate for preventing distortions of competition and negative impacts on security of supply is not invalidated merely because it is unlikely that there will be requests from a third party to connect to the appellant’s pipeline, assuming that that is established.
169 As regards the extension of the requirements of tariff and non-tariff transparency imposed by Directive 2009/73, as amended by the directive at issue, to pipelines between a Member State and a third country, it is sufficient to note that, in paragraphs 209 to 211 of the judgment under appeal, the General Court did not err in law since, as is apparent from those paragraphs, it is clear that a lack of transparency in the operation of gas pipelines, even on the sections of pipelines between a Member State and a third country, is liable to have negative impacts on the objective of ensuring security of supply pursued by Directive 2009/73.
170 Third, the appellant’s arguments calling into question the General Court’s assessment relating to the lack of similarities between its pipeline and the upstream pipelines, which refer to paragraphs 229 to 233 of the judgment under appeal, are ineffective since, in paragraph 234 of that judgment, the General Court correctly stated that Directive 2009/73 also applied to upstream pipelines and that Article 34 thereof also provided for a third-party access obligation.
171 Fourth, as regards the claims that the alleged public benefits of the directive at issue do not outweigh the strong economic impact on the appellant, it should, first of all, be noted that, in order to justify those claims, the appellant refers to the alleged errors of law on which it relied in connection with the fourth and fifth grounds of appeal, which have been rejected.
172 Next, it is true that, in paragraph 247 of the judgment under appeal, the General Court confined itself to stating that Directive 2009/73 provided for three ‘unbundling models’, without indicating whether those three models entailed disproportionate economic consequences for the appellant. Nevertheless, that statement, read in the light of paragraph 248 of that judgment, enables the appellant to understand that the General Court considered, implicitly but necessarily, that having a choice between those three models, within the ‘sufficiently long period of time’ available to it, afforded the appellant opportunities to adapt its project in order to reduce the impact of any negative consequences of the chosen model.
173 Moreover, and in any event, to accept the appellant’s argument that its corporate structure should be regarded as a relevant, or even sufficient, factor for the purpose of finding that it was not possible for the appellant to comply with the obligation to unbundle the transmission system and the transmission system operator would be tantamount to rendering that unbundling obligation ineffective, since that obligation is intended specifically to prevent, as is apparent from Article 9(1)(b) of Directive 2009/73, the same person from exercising direct or indirect control, inter alia, over an undertaking performing the functions of production or supply, and any right over a transmission system operator or a transmission system.
174 Last, the appellant’s claims relating to paragraphs 254 and 255 of the judgment under appeal must be rejected as inadmissible, since those paragraphs 254 and 255 contain the General Court’s assessment of facts and evidence, and the appellant has failed to demonstrate any distortion in that regard.
175 It follows from the foregoing considerations that the sixth ground of appeal must be rejected as in part inadmissible and in part unfounded.
The seventh ground of appeal
– Arguments of the parties
176 The appellant submits that the General Court erred in law in finding, in paragraph 265 et seq. of the judgment under appeal, that there had been no misuse of powers in the adoption of the directive at issue.
177 Since, for the reasons set out in its appeal, the General Court failed properly to consider the facts and evidence before it regarding the real aim and effects of the directive at issue, the Opinion of Advocate General Bobek in Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2021:831), or the judgment of the Court of Justice in Nord Stream 2, those errors of law give rise to a further error of law consisting in the failure to find that there had been a misuse of powers.
178 The Parliament and the Council, supported by the Republic of Poland and the Commission, dispute the appellant’s arguments.
– Findings of the Court
179 As regards the seventh ground of appeal, it is sufficient to note that the appellant repeats, in essence, its arguments relating to the failure to take into account the actual objectives of the directive at issue, and therefore, given the considerations set out, inter alia, in the examination of the third ground of appeal, that seventh ground of appeal must be rejected.
180 In so far as the fourth to seventh grounds of appeal have been rejected, the second part of the third ground of appeal and the remainder of the second ground of appeal, which refers, in essence, to that extent, to the claims made in those grounds of appeal, must be rejected.
181 It follows from all the foregoing considerations that the appeal must be dismissed in its entirety.
Costs
182 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
183 Under Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
184 Since the Parliament and the Council have applied for costs to be awarded against Nord Stream 2 and it has been unsuccessful, Nord Stream 2 must be ordered to bear its own costs and to pay those incurred by the Parliament and the Council.
185 In accordance with Article 140(1) of the Rules of Procedure of the Court of Justice, which also applies to appeal proceedings by virtue of Article 184(1) of those rules of procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
186 In the present case, the Republic of Poland and the Commission are to bear their own costs.
On those grounds, the Court (Eighth Chamber) hereby:
1. Dismisses the appeal;
2. Orders Nord Stream 2 AG to bear its own costs and to pay those incurred by the European Parliament and the Council of the European Union;
3. Declares that the Republic of Poland and the European Commission are to bear their own costs.
|
Fenger |
Lycourgos |
Spineanu-Matei |
Delivered in open court in Luxembourg on 5 November 2026.
|
V. Di Bucci |
N. Fenger |
|
Registrar |
President of the Chamber |
* Language of the case: English.