Orlen v Commission (Appeal - Competition - Gas markets of Central and Eastern Europe - Judgment) [2024] EUECJ C-255/22P (26 September 2024)

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( Appeal – Competition – Gas markets of Central and Eastern Europe – Article 102 TFEU – Article 54 of the Agreement on the European Economic Area – Abuse of dominant position – Upstream gas supplies in Central and Eastern Europe – Regulation (EC) No 1/2003 – Article 9(1) – Decision of the European Commission to make binding the individual commitments proposed by an undertaking – Action for annulment – Adequacy of those commitments in the light of the competition concerns identified in the statement of objections – Nature of the EU Courts’ power of review – Commission decision not to require commitments in relation to some of the initial concerns – Principle of good administration – Principle of proportionality – Obligation to state reasons – Energy policy objectives of the European Union – Article 194 TFEU – Principle of energy solidarity )

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 April 2022,

Orlen S.A., formerly Polski Koncern Naftowy Orlen S.A., successor in title to Polskie Górnictwo Naftowe i Gazownictwo S.A., established in Płock (Poland), represented by K. Karasiewicz, radca prawny, T. Kaźmierczak, K. Kicun and P. Moskwa, adwokaci,

European Commission, represented by G. Meessen, I. Söderlund and J. Szczodrowski, acting as Agents,

Republic of Poland, represented by B. Majczyna, K. Rudzińska and S. Żyrek, acting as Agents,

represented by E. Borovikov, J. Venit, avocats, J.T. Hainz, J. Karenfort, W. Murzin, Rechtsanwälte, and N. Tuominen, avocată,

Overgas Inc., established in Sofia (Bulgaria), represented by S. Cappellari, S. Gröss, N. Jacobi, Rechtsanwälte, and J. Sroczyński, radca prawny,

composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl (Rapporteur), J. Passer and M.L. Arastey Sahún, Judges,

having regard to the written procedure and further to the hearing on 21 February 2024,

after hearing the Opinion of the Advocate General at the sitting on 6 June 2024,

1 By its appeal, Orlen S.A., formerly Polski Koncern Naftowy Orlen S.A., successor in title to Polskie Górnictwo Naftowe i Gazownictwo S.A., asks the Court of Justice to set aside the judgment of the General Court of the European Union of 2 February 2022, Polskie Górnictwo Naftowe i Gazownictwo v Commission (Commitments by Gazprom) (T‑616/18, EU:T:2022:43; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of Commission Decision C(2018) 3106 final of 24 May 2018 relating to a proceeding under Article 102 [TFEU] and Article 54 of the EEA Agreement (Case AT.39816 – Upstream gas supplies in Central and Eastern Europe) (‘the decision at issue’).

2 The background to the case was set out in paragraphs 1 to 36 of the judgment under appeal, as follows:

‘I. Background to the dispute and developments following the bringing of the action

1 The applicant, Polskie Górnictwo Naftowe i Gazownictwo …, is the parent company of the PGNiG group, which is active in the oil and gas sector, primarily in Poland. That group’s activities include natural gas and crude oil exploration and production, as well as the import, sale and distribution of gas.

2 The [appellant] seeks the annulment of [the decision at issue], which made binding the commitments proposed by Gazprom PJSC and Gazprom export LLC (together, “Gazprom”).

3 The [decision at issue] closed the administrative procedure conducted by the [European] Commission, which examined, in the light of the prohibition of abuse of a dominant position laid down in Article 102 TFEU, the compatibility with EU law of some of Gazprom’s practices affecting the gas sector in certain Central and Eastern European countries (“the CEE countries”), namely Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia (together, “the CEE countries concerned”).

4 Between 2011 and 2015, the Commission took several measures in order to investigate the functioning of the gas markets in Central and Eastern Europe. In particular, under Articles 18 and 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), the Commission sent requests for information to various market participants, which included Gazprom and some of its customers, including the [appellant], and conducted inspections, inter alia at the premises of the [appellant] in 2011. The administrative procedure relating to that investigation and directly at issue in the present case was registered as “Case AT.39816 – Upstream gas supplies in Central and Eastern Europe” (“Case AT.39816”).

5 In the context of that case, on 31 August 2012, the Commission formally initiated proceedings with a view to adopting, under Article 11(6) of Regulation No 1/2003 and Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), a decision pursuant to Chapter III of Regulation No 1/2003.

6 On 22 April 2015, pursuant to Article 10 of Regulation No 773/2004, the Commission sent a statement of objections to Gazprom (“the statement of objections”). In that statement of objections, the Commission had come to a preliminarily conclusion that Gazprom held a dominant position on national markets for the upstream wholesale supply of gas in the CEE countries concerned and that it was abusing that position by engaging in an anti-competitive strategy for the purpose of fragmenting and isolating those markets and thereby preventing the free flow of gas in the CEE countries concerned in breach of Article 102 TFEU.

7 The Commission had considered that Gazprom’s strategy involved three sets of anti-competitive practices affecting customers in the CEE countries concerned (“the relevant customers”) and the contracts concluded by those customers with Gazprom (“the contracts concerned”):

– first, Gazprom had imposed territorial restrictions in its gas supply contracts with wholesalers and certain industrial customers in the CEE countries concerned (“the objections concerning territorial restrictions”), restrictions which allegedly resulted from contractual clauses, prohibiting exports outside the territory of supply or requiring the gas supplied to be used in a given territory; Gazprom also allegedly used other measures preventing the cross-border flow of gas.

– secondly, those territorial restrictions had allowed Gazprom to pursue an unfair pricing policy in five of the CEE countries concerned, namely Bulgaria, Estonia, Latvia, Lithuania and Poland (“the five CEE countries concerned by the pricing practices”), by charging excessive prices in that they were significantly higher than the level of Gazprom’s costs or of certain prices regarded as price benchmarks (“the objections concerning pricing practices”);

– thirdly, Gazprom had made its supplies of gas in Bulgaria and Poland conditional on its obtaining certain commitments from wholesalers in relation to gas transport infrastructure; those commitments concerned, on the one hand, investments by the Bulgarian wholesaler in the South Stream pipeline project and, on the other hand, acceptance by the Polish wholesaler, namely the [appellant], of Gazprom’s having increased control over the management of the Polish section of the Yamal pipeline, one of the main gas transit pipelines in Poland (“the Yamal objections”).

8 On 29 September 2015, Gazprom responded to the statement of objections by challenging the Commission’s competition concerns and, pursuant to Article 12 of Regulation No 773/2004, was subsequently heard at an oral hearing held on 15 December 2015.

9 On 14 February 2017, while continuing to dispute the competition concerns contained in the statement of objections, Gazprom submitted formal proposed commitments (“the initial commitments”) pursuant to Article 9 of Regulation No 1/2003. That proposal had been preceded by informal proposals for commitments.

10 On 16 March 2017, with a view to obtaining the observations of the interested parties on the initial commitments, the Commission published a communication in the Official Journal of the European Union pursuant to Article 27(4) of Regulation No 1/2003 (OJ 2017 C 81, p. 9), containing a summary of Case AT.39816 and the main content of the initial commitments. Pursuant to the same provision, interested parties were given a period of seven weeks from the date of publication of that communication to submit their observations (“the market test”). The Commission received 44 sets of observations from interested parties, including from the applicant, the Polish Government, the President of the Urząd Regulacji Energetyki (Polish Energy Regulatory Office; “the Polish Energy Regulator”) and Gaz-System S.A., the operator of the Polish section of the Yamal pipeline.

11 On 15 March 2018, after receiving non-confidential versions of the interested parties’ observations on the initial commitments, Gazprom submitted revised proposed commitments (“the final commitments”).

12 In accordance with Article 14 of Regulation No 1/2003, the Commission consulted the Advisory Committee on Restrictive Practices and Dominant Positions (“the Advisory Committee”) and inter alia communicated to it a preliminary draft decision. On 2 May 2018, the Advisory Committee issued a favourable opinion on that preliminary draft decision. Moreover, pursuant to Article 16 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29), the Hearing Officer issued his final report on 2 May 2018.

13 On 24 May 2018, the Commission adopted the [decision at issue], to which the final commitments were annexed. By that decision, the Commission approved and made binding those commitments and closed the administrative proceedings, concluding that there were no longer grounds for action by the Commission in relation to the potentially abusive practices initially identified in the statement of objections.

14 In the [decision at issue], the Commission first set out a preliminary assessment of Gazprom’s practices, before presenting the initial commitments, the results of the market test and the final commitments. Next, the Commission set out its assessment of the final commitments and its reasons for considering them satisfactory in view of its competition concerns.

15 In section 4 of the [decision at issue], setting out the preliminary assessment, the Commission defined the relevant markets as the national markets for the upstream wholesale supply of gas. In that regard, it also found that Gazprom held a dominant position on the relevant markets in the CEE countries concerned.

16 The Commission considered that Gazprom may have abused its dominant position, in breach of Article 102 TFEU, by engaging in an anticompetitive strategy aimed at preventing the free flow of gas in the CEE countries concerned and thereby isolating the relevant markets in those countries. In particular, the Commission considered that that strategy involved three sets of anti-competitive practices corresponding, in essence, to the competition concerns identified in the statement of objections and set out in paragraph 7 above.

17 As regards the Yamal objections, although, in the context of the market test, some of the interested parties had called into question the absence of commitments addressing those objections, the Commission explained, in recital 138 of the [decision at issue], that, following further investigation, its preliminary competition concerns had not been confirmed. On the one hand, it stated that, in a decision of 19 May 2015 certifying Gaz-System as an independent system operator (“the independent system operator”) of the Polish section of the Yamal pipeline (“the certification decision”), the Polish Energy Regulator had concluded, inter alia, that Gaz-System exercised decisive control over investment decisions relating to that section of the pipeline and over implementation of those decisions. Therefore, neither System Gazociągów Tranzytowych EuRoPol Gaz S.A. (“EuRoPol”), as the owner of the gas pipeline, nor Gazprom, as EuRoPol’s shareholder, was in a position to block those decisions. On the other hand, the Commission noted the intergovernmental character of relations between the parties active in the gas sector in Poland, in particular as regards the construction and operation of the Polish section of the Yamal pipeline, and concluded that that fact may have to a large extent determined the behaviour of the parties concerned.

18 The final commitments, which are annexed to the [decision at issue], are intended to address the Commission’s competition concerns.

19 As regards, in the first place, the commitments to address the concerns relating to territorial restrictions (“the commitments relating to territorial restrictions”), Gazprom first of all committed itself, in essence, to removing, from gas supply contracts concluded with its customers established in the CEE countries concerned, all provisions that directly or indirectly prohibited or impeded the free flow of gas in the region formed by the CEE countries concerned.

20 Next, in order to allow gas flows between, on the one hand, Bulgaria and the Baltic States and, on the other hand, the other CEE countries concerned, in spite of the infrastructural isolation of the former, Gazprom undertook to take measures in order to offer the relevant customers the possibility to request that all or parts of their contractual gas volumes delivered at certain delivery points in Hungary, Poland and Slovakia be delivered instead at another delivery point in Bulgaria or the Baltic States. Following the market test, Gazprom has, in the final commitments, inter alia strengthened its proposal concerning the change in delivery points.

21 Moreover, in order to enable the Bulgarian transmission system operator to control flows in Bulgaria, Gazprom has in particular committed itself to taking action to amend the relevant gas supply and transport contracts in order to enable the conclusion of interconnection agreements between Bulgaria and other Member States, in particular Greece, and the adjustment of the gas allocation method.

22 In the second place, as regards the commitments to address the pricing concerns (“the commitments relating to pricing practices”), Gazprom undertook to introduce price review clauses or, where appropriate, to modify existing clauses in the contracts with its relevant customers in Bulgaria, Estonia, Latvia, Lithuania and Poland. Those new or amended price review clauses provide, inter alia, that if the parties do not agree on a new price within 120 days, either party may refer the dispute to an arbitral tribunal, which must base its decision on the pricing guidelines included in those clauses and be established in the European Union. In addition, the revised prices will apply retroactively from the date of notification of the price review request.

23 In the third place, as regards the commitments associated with the competition concerns relating to the supply of gas at a given price being made conditional on obtaining from the Bulgarian wholesaler an assurance concerning investments in the South Stream pipeline project, Gazprom undertook to allow the Bulgarian partners involved in that project to withdraw from it without seeking to hold them civilly liable and without recovering the gas price rebates it had granted in return for their participation in that project. Moreover, in the light of the announced abandonment of the Bulgarian section of that pipeline project, Gazprom also undertook not to claim any damages as specific compensation associated with that abandonment.

24 In the [decision at issue], the Commission concluded, in essence, that the final commitments were effective and necessary, without being disproportionate, to address its competition concerns, and stated that it had taken into account, in that regard, developments in the gas markets since notification of the statement of objections. In particular, it noted, first, that Gazprom had already taken certain steps to bring its behaviour more in line with competition law; secondly, that the gas infrastructure situation had improved in some of the CEE countries concerned, namely the Czech Republic, Hungary, Poland and Slovakia, so as to make the cross-border flow of gas possible, even though the gas markets in the Baltic States and Bulgaria remained isolated from the other EU gas markets, and; thirdly, that, as a result of the fall in oil prices, some long-term gas prices resulting from formulae indexed to prices of oil products had also fallen.

25 Accordingly, the Commission decided to make the final commitments binding pursuant to Article 9 of Regulation No 1/2003. As regards their period of application, the [decision at issue] provides that they are to be applicable for a period of eight years from the date of notification of that decision to Gazprom, with the exception of the commitments relating to the South Stream pipeline project, referred to in paragraph 23 above, which are binding for a period of 15 years from that date.

The Commitments as listed in the Annex shall be binding on [Gazprom], and any legal entity directly or indirectly controlled by it for a period of eight years, except for the Commitments listed in paragraph 21 of the Annex for which the period shall be fifteen years, from the date set out in the Commitments.

It is hereby concluded that there are no longer grounds for action [by the Commission] in this Case”

27 In parallel with the administrative proceedings initiated by the Commission and giving rise to the [decision at issue], the applicant had, on 9 March 2017 and pursuant to Article 5 of Regulation No 773/2004, lodged a complaint alleging abusive practices by Gazprom (“the complaint”). Those practices, which overlapped to a great extent with the concerns already set out in the statement of objections, included, inter alia, claims relating to abuse by Gazprom in connection with the Polish section of the Yamal pipeline.

28 On 29 March 2017, the Commission acknowledged receipt of the complaint, which was subsequently registered as “Case AT.40497 – gas prices” (“Case AT.40497”).

29 In a letter of 31 March 2017 to the applicant, the Commission noted that the practices set out in the complaint and those covered by the initial commitments appeared to overlap and invited the applicant to submit observations on those commitments in the context of the market test launched on 16 March 2017. After obtaining an extension of the time limit applicable, the applicant lodged its observations on 19 May 2017.

30 On 15 May 2017, Gazprom submitted its observations on the complaint to the Commission.

31 By a letter sent to the applicant on 23 January 2018 (“the letter concerning the intended rejection of the complaint”), the Commission, in accordance with Article 7(1) of Regulation No 773/2004, stated that it intended to reject the complaint and requested that the applicant make its views known within four weeks of receipt of that letter. The Commission also sent a non-confidential version of the statement of objections and a non-confidential version of Gazprom’s observations on the complaint, referred to in paragraph 30 above.

32 On 2 March 2018, the applicant lodged observations in response to the letter concerning the intended rejection of the complaint. In addition to expressing its dissatisfaction with the conclusions contained in that letter, the applicant criticised the Commission’s conduct of the investigation and noted that the Commission had infringed the applicant’s rights as a complainant in Case AT.39816, in particular in so far as, despite numerous requests, the Commission had neither given the applicant access to the statement of objections for almost a year, nor allowed it to lodge observations on that statement.

33 On 5 September 2018, that is to say after the adoption of the contested decision, the applicant made a reasoned request to the Hearing Officer within the meaning of Article 7(2)(b) of Decision 2011/695, in which it requested access to all the documents on which the Commission based its provisional assessment set out in the letter concerning the intended rejection of the complaint, in particular access to a version of the statement of objections from which less information is omitted. On 17 September 2018, the Hearing Officer transferred to the Commission’s Directorate-General (DG) for Competition the requests for access made in that letter of 5 September 2018. By letter of 25 September 2018, the Commission rejected the requests for access to documents made by the applicant in its letters of 2 March and 5 September 2018.

34 On 24 January 2019, the applicant sent a letter to the Commissioner for Competition in which it called upon the Commission, under the second paragraph of Article 265 TFEU, to act either by adopting a decision rejecting the complaint or by continuing the procedure in Case AT.40497. On 8 February 2019, the Commission replied to that letter, recalling that the complaint had already given rise to several exchanges between them. The Commission also stated, with regard to Case AT.39816, that it had adopted the [decision at issue], which, inter alia, took into account the observations submitted by the applicant in the context of the market test, and, with regard to Case AT.40497, that it had sent the letter concerning the intended rejection of the complaint, to which the applicant had replied, and that it was finalising its analysis of the complaint.

35 On 17 April 2019, the Commission adopted Decision C(2019) 3003 final rejecting the complaint (Case AT.40497 – Polish gas prices).

36 On 25 June 2019, [the appellant] brought an action before the General Court against that decision rejecting its complaint, registered as Case T‑399/19.’

3 By application lodged at the Registry of the General Court on 15 October 2018, Polskie Górnictwo Naftowe i Gazownictwo brought an action for annulment of the decision at issue.

4 By document lodged at the Registry of the General Court on 26 February 2019, Gazprom sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By documents lodged at the Registry of the General Court on 25 February, 27 February and 28 February 2019, Overgas Inc., the Republic of Lithuania and the Republic of Poland sought leave to intervene in support of the form of order sought by Polskie Górnictwo Naftowe i Gazownictwo.

5 By decision of 5 April 2019, the President of the First Chamber of the General Court, after the main parties had been heard, granted the Republic of Poland leave to intervene. By orders of 17 May 2019, after the main parties had been heard, she granted the Republic of Lithuania, Gazprom and Overgas leave to intervene.

6 On 4 October 2019, following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which Case T‑616/18 was accordingly allocated.

7 By letters from the Registry of the General Court of 17 December 2019, in the context of measures of organisation of procedure, Polskie Górnictwo Naftowe i Gazownictwo was requested to produce several documents and the Commission was invited to reply in writing to a question concerning the confidentiality of certain information contained in the confidential version of the statement of objections.

8 By order of the same date, the General Court ordered the Commission, under the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and Article 91(b) and Article 92(3) of the Rules of Procedure of the General Court, and subject to the application of Article 103 of those rules, to produce a full copy of the confidential version of the statement of objections.

9 The parties duly complied, within the prescribed periods, with the measures of organisation of procedure adopted on 17 December 2019 and with that order.

10 On 8 June 2020, on a proposal from the Eighth Chamber, the General Court decided to refer Case T‑616/18 to the Eighth Chamber, Extended Composition. Since a member of that Chamber, in its Extended Composition, was unable to sit, the President of the Court was designated to complete that extended Chamber by decision of 15 June 2020.

11 Moreover, as regards the full copy of the confidential version of the statement of objections produced by the Commission, the General Court decided to bring that document to the attention of the representatives of Polskie Górnictwo Naftowe i Gazownictwo, subject to the giving of prior confidentiality undertakings, so that the latter could present observations on it. Those representatives having provided signed confidentiality undertakings, the document was served on them and Polskie Górnictwo Naftowe i Gazownictwo submitted its observations on 8 December 2020.

12 The parties presented oral argument and answered the questions put to them by the General Court at the hearing on 18 and 19 May 2021. On that occasion, the General Court also stated that it acknowledged the comments on the report for the hearing made by the Commission on 27 April 2021.

13 Furthermore, in the context of questions put by the General Court on the admissibility of the action, the Commission revised its position on the admissibility of the action and argued that Polskie Górnictwo Naftowe i Gazownictwo had not established its legal interest in bringing proceedings in the present case, with the result that the action was not admissible.

14 Polskie Górnictwo Naftowe i Gazownictwo made requests for confidential treatment vis-à-vis the Republic of Lithuania, the Republic of Poland, Gazprom and Overgas, concerning certain information contained in various procedural documents. The latter parties did not object to those requests.

15 In support of its action, Polskie Górnictwo Naftowe i Gazownictwo put forward six pleas in law, alleging, in essence:

– first, infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission committed a manifest error of assessment in concluding that the Yamal objections were unfounded and in accepting commitments which did not in any way address those objections;

– secondly, infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning pricing practices;

– thirdly, infringement of Article 9 of Regulation No 1/2003, read together with Article 102 TFEU, and breach of the principle of proportionality, in that the Commission accepted the final commitments even though they did not adequately address the objections concerning territorial restrictions;

– fourthly, infringement of Article 194(1) TFEU, read together with Article 7 TFEU, in that the contested decision is contrary to the energy-policy objectives of the European Union and in that the Commission failed to take account of the negative impact of that decision on the European gas supply market;

– fifthly, infringement of Article 18(1) TFEU and breach of the principle of equal treatment, in that the Commission discriminated between Gazprom’s customers operating in the Western European Member States and those operating in the CEE countries, and

– sixthly, misuse of powers and infringement of essential procedural requirements, in that, by the contested decision, the Commission disregarded the objective of Article 9 of Regulation No 1/2003 and the limits of its powers in the management of the administrative procedure.

16 By the judgment under appeal, the General Court rejected all of those pleas and, accordingly, dismissed that action in its entirety.

III. Procedure before the Court of Justice and forms of order sought in the appeal and the cross-appeal

– in the alternative, refer the case back to the General Court for review in accordance with the judgment of the Court of Justice;

– order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court.

20 Overgas and the Republic of Poland contend that the Court should uphold the appeal.

25 In support of its appeal, Orlen raises four grounds of appeal alleging: (i) infringement of Article 9 of Regulation No 1/2003; (ii) infringement of Article 194 TFEU, read in conjunction with Article 9 of that regulation; (iii) infringement of Article 9(1) of that regulation, and (iv) infringement of Article 9(2) of that regulation.

26 Gazprom maintains, without formally raising a plea of inadmissibility, that the appeal is inadmissible.

27 According to Gazprom, Orlen thus does not have a vested and current interest in the setting aside of the judgment under appeal, since such an interest cannot concern a future and hypothetical situation. The setting aside of that judgment that was sought would not be such as to give it satisfaction, since, as early as November 2019, it informed Gazprom that it did not intend to renew the long-term gas supply contract beyond 2022. It took the necessary steps to terminate its commercial relations with Gazprom before the end of that year. Consequently, Orlen and the Republic of Poland are no longer concerned by the supply of gas by Gazprom, with the result that even the most favourable outcome of the appeal would not give satisfaction to Orlen.

28 Gazprom further submits that their lack of sufficient clarity should lead the Court of Justice to reject as inadmissible the complaints set out in paragraphs 154 and 161 of the appeal.

29 The Commission, for its part, contends that the following are in part inadmissible: the first part of the first ground of appeal, in so far as Orlen challenges the review of legality carried out by the General Court in relation to complex economic transactions without, however, alleging the existence of manifest errors of assessment, and the second part of the third ground of appeal, on account of lack of clarity of the claims set out therein.

30 In the first place, it follows from the settled case-law of the Court of Justice that any natural or legal person who brings an appeal must, as well as when he or she brings an action for annulment, have an interest in bringing proceedings, the existence of which must be assessed in the light of the subject matter of that appeal or that action, on the one hand, and the date on which it is brought, on the other. Failure to comply with this essential requirement constitutes a ground of inadmissibility of public policy which may, at any time, be raised ex officio by the EU judicature of its own motion (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 81 and the case-law cited).

31 Furthermore, that interest in bringing proceedings must, like the purpose of the dispute itself, continue until the final decision. Consequently, the disappearance of that interest or that subject matter during the proceedings may lead the EU judicature to find, if necessary of its own motion, that there is no longer any need to adjudicate on the action (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 82 and the case-law cited).

32 In general, both the existence and the continuing existence of an interest in bringing proceedings presuppose that the action or the appeal is liable, if successful, to procure an advantage to the natural or legal person who brought it. In all cases, that question must be assessed specifically (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 83 and the case-law cited).

33 In the present case, Gazprom disputes the admissibility of the appeal on the ground that Orlen has no vested and current interest in the setting aside of the judgment under appeal, given, inter alia, the termination of their contractual relations on 31 December 2022. In that regard, it is common ground that, until that date, and therefore also after the appeal was lodged on 8 April 2022, contractual relations linked Gazprom and Polskie Górnictwo Naftowe i Gazownictwo.

34 Since, during the period from 8 April 2022 to 31 December 2022, the decision at issue produced legal effects on the Polish gas and oil market in which Orlen operates, in so far as its legal predecessor was a contractual partner of Gazprom, Orlen can rely, in accordance with the case-law, on the consequences of the illegalities which it alleges and the nature of the damage which it claims to have suffered (see, to that effect, judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraph 160 and the case-law cited) in order to obtain compensation for that damage.

35 Furthermore, Orlen stated in its reply, without being contradicted, that several arbitration proceedings between Orlen and Gazprom concerning the implementation of the Yamal pipeline contract, including price issues, were ongoing. In addition, after the appeal was lodged, proceedings had been initiated concerning Gazprom’s discontinuation of its gas supplies as from 27 April 2022.

36 It follows from the foregoing that Gazprom is wrong to dispute that Orlen has a vested and current interest in seeking to have the judgment under appeal set aside.

37 In the second place, it follows from the second subparagraph of Article 256(1) 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 that an appeal must indicate precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (judgment of 11 January 2024, Foz v Council, C‑524/22 P, EU:C:2024:23, paragraph 26 and the case-law cited).

38 In the present case, contrary to the Commission’s claims concerning the insufficiently clear nature of the second part of the third ground of appeal and those of Gazprom, of the same nature, relating to the complaints set out in paragraphs 154 and 161 of that appeal, the appeal identifies with sufficient precision, in each of the passages in question, the contested elements of the judgment under appeal and sets out the reasons why they reveal a failure to have regard to the case-law relating to the concept of manifest error of assessment and an error of law concerning the interpretation of Article 9(2)(a) of Regulation No 1/2003.

40 The Commission’s claim that the first part of the first ground of appeal is inadmissible, as regards Orlen’s failure to rely on a manifest error of assessment concerning complex economic transactions, must be rejected. Orlen put forward that first part in the context of a ground of appeal alleging infringement, by the General Court, of Article 9 of Regulation No 1/2003. It maintained, admittedly succinctly, that the General Court should have verified whether, by accepting Gazprom’s commitments, the Commission had correctly analysed them in the light of the statement of objections, ‘that is to say, without committing a manifest error’. Thus, Orlen put the Court of Justice fully in a position to identify the scope of that first part and to rule on the merits of the analysis set out in that regard in the judgment under appeal.

42 Under Article 9 of Regulation No 1/2003, where the Commission intends to adopt a decision requiring that an infringement be brought to an end, it may make the commitments offered by the undertakings concerned binding if they meet the concerns expressed to those undertakings by the Commission in its preliminary assessment.

43 That article intends to ensure that the competition rules laid down in the FEU Treaty are applied effectively, by means of the adoption of decisions making commitments, proposed by the parties and considered appropriate by the Commission, binding in order to provide a more rapid solution to the competition problems identified by the Commission, instead of proceeding by making a formal finding of an infringement. More particularly, that article is based on considerations of procedural economy, and enables undertakings to participate fully in the procedure, by putting forward the solutions which appear to them to be the most appropriate and capable of addressing the Commission’s concerns (see, to that effect, judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 35).

44 Although Article 9, unlike Article 7 of Regulation No 1/2003, does not expressly refer to proportionality, the principle of proportionality, as a general principle of European Union law, is nonetheless a criterion for the lawfulness of any act of the institutions of the Union, including decisions taken by the Commission in its capacity of competition authority (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 36).

45 Given that Article 9 of that regulation provides merely that in proceedings under that provision, as follows from recital 13 of that regulation, the Commission is not required to make a finding of an infringement, its task is confined to examining, and possibly accepting, the commitments offered by the undertakings concerned in the light of the problems identified by it in its preliminary assessment and having regard to the aims pursued. Application of the principle of proportionality by the Commission in the context of the abovementioned Article 9 concerns merely the verification that the commitments in question address the concerns it expressed to the undertakings concerned and that they have not offered less onerous commitments that also address those concerns adequately (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 40 and 41).

46 In making that verification, the Commission must, however, take into consideration the interests of third parties, since the fact that the individual commitments offered by an undertaking have been made binding by the Commission does not mean that other undertakings are deprived of the possibility of protecting the rights they may have in connection with their relations with that undertaking (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraphs 41 and 49). When the Commission verifies commitments not from the perspective of whether they are appropriate to address its competition concerns, but also with regard to their effect on the interests of third parties, the principle of proportionality requires that those third parties’ rights are not rendered meaningless (judgment of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 106).

47 It follows from the foregoing considerations that, owing to the specific nature of Article 9 of Regulation No 1/2003, first, as the Advocate General stated in point 39 of his Opinion, the appropriate test, in the light of the Commission’s concerns as expressed in its preliminary assessment, is to determine whether the commitments are sufficient to address adequately those concerns, without the Commission being required itself to seek out less onerous or more moderate solutions than the commitments offered to it and, secondly, the judicial review of the Commission’s analysis of those commitments relates solely to whether the Commission committed a manifest error of assessment (see, to that effect, judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 42).

48 Consequently, as the Advocate General stated in point 97 of his Opinion, such a review does not mean that the Commission’s analysis is untainted by any irregularity; the Commission has a certain margin for error, provided that the error in question is not manifest.

49 Moreover, from a procedural point of view, it should be noted that Article 9 of Regulation No 1/2003 leaves the Commission free to define the form which ‘its preliminary assessment’, referred to in paragraph 1 of that article, should take. In practice, as the Commission confirmed at the hearing, that assessment often corresponds to a statement of objections addressed to the undertaking accused of conduct contrary to Article 101 or Article 102 TFEU, on the basis of Article 7 of that regulation. Where that is the case, as in the present case, the case-law relating to such procedural acts applies, since no provision of that regulation justifies treating a statement of objections differently depending on whether it forms the basis for a decision adopted on the basis of Article 7 or Article 9 of that regulation, since that article does not provide, in particular, for the possibility of a review of the preliminary assessment.

50 In that regard, it follows from settled case-law that the statement of objections is a procedural and preparatory document which, in order to ensure that the rights of defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing it from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of that statement that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission on the basis of the observations submitted to it by the parties and other findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 66 and the case-law cited).

51 Thus, the Commission is not required to explain, in a decision which it adopts under Article 9 of Regulation No 1/2003, the reasons for abandoning one or more complaints corresponding to certain of its initial concerns, whether with regard to the undertaking whose commitments are made binding, the sole addressee of the statement of objections and, more generally, the preliminary assessment referred to in Article 9, or with regard to interested third parties (see, to that effect, judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 67 and the case-law cited).

52 That does not, of course, preclude the Commission from considering, on its own initiative, that it is useful to provide guidance in that regard, in order to allow for better understanding of that decision.

53 In paragraph 83 of the judgment under appeal, the General Court held that ‘in the circumstances of the present case and, in particular, in the absence of a revised preliminary assessment, Article 9 of Regulation No 1/2003 required the Commission, contrary to what it maintains, to have reasons for the absence of a commitment to address the Yamal objections’. It added, in paragraph 85 of that judgment, that ‘in the present case, in any event, it must be noted that the Commission presented its reasons for not imposing a commitment to address the Yamal objections, reasons which take the form of the two grounds set out in recital 138 of the [decision at issue]’, that is to say the certification decision and the intergovernmental nature of relations in the gas sector in Poland.

54 In its response, the Commission stated that that analysis constituted an error of law, but stated that it had no effect on the operative part of the judgment under appeal and could not, therefore, lead to that judgment’s being set aside. It therefore requested the Court to substitute the grounds in that regard.

55 It is appropriate to grant that request and to hold, in the light of the considerations set out in paragraphs 49 to 52 of the present judgment, that the General Court was wrong to refer to the need, for the Commission, in the event that certain objections set out in the statement of objections, which acted as a preliminary assessment within the meaning of Article 9(1) of Regulation No 1/2003, were abandoned, to send a revised preliminary assessment.

56 That being so, that error did not affect the operative part of the judgment under appeal, since the General Court rightly pointed out that the Commission had stated reasons for the decision at issue concerning the reasons for the abandonment of the Yamal objections, as was pointed out in paragraph 53 of the present judgment, which it was at liberty to do.

57 It should be added that, as a result of the abandonment of those complaints, it is only in so far as Orlen demonstrates that that abandonment made the commitments given by Gazprom and approved by the Commission manifestly insufficient that Orlen would be justified in challenging the lawfulness of the decision at issue on account of that abandonment.

58 The first ground of the main appeal, alleging infringement of Article 9 of Regulation No 1/2003, consists of three parts.

59 By the first part of its first ground of appeal, Orlen submits that the General Court infringed Article 9 of Regulation No 1/2003 in so far as it found that the Commission had correctly assessed the adequacy of the commitments proposed by Gazprom, even though they did not address the concerns which it had set out in the statement of objections and were not forward-looking, that is to say, capable, by their very nature, of preventing future similar breaches. In the present case, the General Court ought to have ascertained whether the Commission had analysed the adequacy of those commitments in the light of the competition concerns which it had identified in the statement of objections.

60 In particular, Orlen considers that, in paragraphs 208, 209 and 237 of the judgment under appeal, the General Court analysed the adequacy of those commitments by separating them entirely from the statement of objections.

61 In so doing, according to Orlen, the General Court infringed the principle of the protection of legitimate expectations, that is to say, Orlen’s expectation that the decision making the same commitments binding, although not the same in nature as a decision based on Article 7 of Regulation No 1/2003, would address all the Commission’s concerns and put an end to Gazprom’s infringements.

64 First, it is apparent that, at least implicitly, in criticising the General Court’s failure to take into account exhaustively, in order to assess the sufficiency of the commitments given by Gazprom, the complaints set out in the statement of objections, Orlen includes the Yamal objections, which were abandoned by the Commission before the decision at issue was adopted, as is apparent from paragraph 17 of the judgment under appeal, reproduced in paragraph 2 of the present judgment. That line of argument is therefore partly ineffective.

65 Secondly, as the Commission rightly observed, Orlen has not established, in the context of the first part of its first ground of appeal, the existence of a manifest error of assessment in the Commission’s assessment of the adequacy of the commitments proposed by Gazprom in order to address the concerns which the Commission had expressed in the statement of objections, or a failure by the General Court to criticise such a manifest error of assessment. Orlen confines itself, in that regard, to mere assertions. As has been pointed out in paragraphs 47 and 48 of the present judgment, judicial review of a decision adopted pursuant to Article 9 of Regulation No 1/2003 concerns only whether the Commission committed such an error, which must be specifically demonstrated by the party making the claim.

66 Thirdly, Orlen’s criticisms relating to a failure to carry out a forward-looking analysis to assess the adequacy of the commitments proposed by Gazprom, on the one hand, do not establish the existence of a manifest error of assessment in that regard and, on the other hand, relate to conclusions drawn by the General Court from findings of fact not called into question by Orlen, namely that, at least for a number of contracts concerned, they could not be considered to include references, in the price-setting or price review clauses, to competitive and clearly defined price benchmarks. The General Court alone inferred from this that the absence from the price review clauses of a clearly defined, competitive and publicly available price benchmark, such as the prices at competitive gas hubs, was one of the main factors which could have led to unfair prices in the five CEE countries concerned by the pricing practices.

67 Fourthly, the assertion that the General Court endorsed the Commission’s choice to allow the subsequent correction of the proposed commitments is based on a misinterpretation of the judgment under appeal and of the decision at issue. In the first place, the mere mention, in paragraph 423 of that judgment, of the fact that the EU institutions or the national regulatory authorities in the gas sector may take action in order to amend the rules in that sector or, where appropriate, in order to ensure compliance with those rules, does not relate, contrary to Orlen’s assertions, to the possibility of correcting such commitments. In the second place, the mere fact that the Commission recalls that the commitments at issue are capable of giving rise, if they are not complied with by the undertaking concerned, to the reopening of the proceedings pursuant to Article 9(2) of Regulation No 1/2003 reflects a desire not to supplement those commitments ex post, but to ensure compliance with them.

68 Fifthly, it should be noted that, according to settled case-law, the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator whom an institution has, by giving him or her precise insurances, caused to entertain justified expectations may rely on that principle (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 134 and the case-law cited).

69 An economic operator cannot rely on the content of a statement of objections, the preparatory and provisional nature of which has been recalled in paragraph 50 of the present judgment, including where it serves as a preliminary assessment, the name of which reflects its non-definitive nature, in order to conclude that the Commission has given it precise assurances that all the concerns set out in such documents correspond to commitments contained in the final decision (see, by analogy, judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 135 and the case-law cited).

71 By the second part of its first ground of appeal, Orlen claims that the General Court manifestly distorted the facts on numerous occasions, which led it to misapply Article 9 of Regulation No 1/2003 and to find, wrongly, that the Commission had not made a manifest error of assessment as regards the adequacy of the commitments proposed by Gazprom.

72 Thus, first of all, according to Orlen, the General Court wrongly held that Gazprom’s practice consisted essentially in preventing gas imports, whereas its practices were aimed primarily, in reality, as expressly described in the statement of objections, at preventing the re-export of gas by the operators of the CEE countries concerned, which would have had a direct impact on the fluidity of the wholesale gas market. In so doing, the General Court bypassed the crux of the question of the territorial restrictions applied by Gazprom, set out in the statement of objections, which consisted of preventing, not gas imports into, but resale by, CEE countries. In the absence of such distortion, the General Court would have been obliged to accept that Gazprom had not responded adequately to the objections concerning territorial restrictions set out in the statement of objections.

73 Orlen asserts that, next, the General Court wrongly held that the Commission had identified, in the statement of objections, four forms of non-contractual methods and omitted the threat of retaliatory measures, of various kinds, on the part of Gazprom, which led it to consider wrongly that Gazprom’s commitment, which did not cover all of the Commission’s concerns set out in the statement of objections, was nevertheless adequate.

74 Lastly, Orlen maintains that the General Court stated incorrectly that the fact that national courts may grant an application for annulment of an arbitration award if they consider that such an award is contrary to Article 102 TFEU or to a decision based on Article 9 of Regulation No 1/2003 could lead to the arbitral tribunals ensuring that their awards comply with the provisions of the FEU Treaty, when such an assertion is speculative and unsubstantiated.

76 It should be noted once again that the objective pursued by the Commission, when it adopts a decision making binding an undertaking’s commitments under Article 9(1) of Regulation No 1/2003, is to address the concerns which it has expressed concerning the existence of anticompetitive conduct and, in the interests of procedural economy, to secure rapidly, through those commitments, satisfactory competitive operation on the market concerned. That said, in the present case, it cannot be ruled out that, after the adoption of the decision at issue, the remedies approved by the Commission, seeking to restore in the Polish market, in which Orlen operates, fully competitive gas supply and distribution conditions, did not immediately produce their effects or did not correspond to the subjective expectations of a particular economic operator, in this case Orlen. There is no reason to infer therefrom, nonetheless, that that decision is vitiated by manifest errors of assessment, which the General Court failed to censure.

77 In particular, as the Commission submits, the General Court correctly assessed imports of gas from Germany into Poland in its assessment of the obligation to change delivery points, which was previously referred to in recital 170 of the decision at issue. Thus, it is not disputed that, since the adoption of the statement of objections, Poland has benefited from the improvement of cross-border gas transport infrastructure to a significant extent, since imports have become possible without changing the delivery point. Therefore, the General Court did not err in law in its review of the Commission’s assessment of the question of gas imports into Poland in connection with the assessment of the appropriateness of Gazprom’s lack of commitment to set up a greater number of delivery points liable to change and affecting Poland.

78 Although Orlen submits that the General Court failed to take into account, as regards the assessment of the adequacy of Gazprom’s commitments, acts such as the various threats of retaliation made by Gazprom, it appears that such an argument has no factual basis, since the General Court referred, in particular, to such conduct in paragraph 95 of the judgment under appeal.

79 Lastly, the General Court was right to state that arbitral tribunals will be inclined to ensure that the arbitral award adopted complies with Article 102 TFEU, a consideration which cannot, in any event, lead to the setting aside of the judgment under appeal.

81 By the third part of its first ground of appeal, Orlen submits that the General Court failed to take into consideration the Commission’s obligation to act, in the exercise of its legal power to assess complex economic and technical matters, in compliance with the provisions of the TFEU and the fundamental principles of the EU legal order. The principle of energy solidarity, derived from Article 194 TFEU and having the status of a general principle of EU law, is one of those fundamental principles. The Commission’s discretion in the matter is therefore limited by its obligation to act in accordance with the provisions of the FEU Treaty and the general principles of EU law.

82 Orlen maintains that, by limiting the criteria which should guide the Commission when examining the commitments at issue, the General Court infringed Article 9(1) of Regulation No 1/2003, since the Commission, by relying on an overly restrictive interpretation of the guidelines deriving from the judgments of 29 June 2010, Commission v Alrosa (C‑441/07 P, EU:C:2010:377), and of 15 September 2016, Morningstar v Commission (T‑76/14, EU:T:2016:481), not only failed to take account of the principle of energy solidarity, but also ignored the fact that the nature of the case falls within the scope of the energy sector.

84 The Court of Justice considers it appropriate to examine the third part of the first ground of appeal together with the second ground of appeal.

85 Orlen’s second ground of appeal alleges infringement of Article 194 TFEU, read in conjunction with Article 9 of Regulation No 1/2003. The General Court thus made numerous errors in interpreting Article 194 TFEU.

86 According to Orlen, it follows from the most recent case-law, illustrated by the judgment of 15 July 2021, Germany v Poland (C‑848/19 P, EU:C:2021:598, paragraphs 43, 44, 47, 50 and 51), that the principle of solidarity set out in the latter article forms the basis of all the objectives of the European Union’s energy policy, serving as the thread that brings them together and gives them coherence, and that, consequently, the acts adopted by the EU institutions, including by the Commission under that policy, must be interpreted, and their legality assessed, in the light of that principle, without its applicability being dependent on raising questions relating to the field of energy during the procedure conducted by the Commission. That principle cannot be equated with, or be limited to, the requirement to ensure security of supply.

87 Orlen asserts that the correct interpretation of Article 194 TFEU can therefore be summed up in a three-step test. It is necessary, in the first place, to assess whether the matter concerns an act relating to energy matters. In the second place, irrespective of whether the parties have raised questions relating to that matter, the EU bodies are required to ascertain whether the adoption of that act would adversely affect the interests of the various stakeholders concerned. In the third place, it is necessary to assess whether the advantages brought about by the adoption of that act outweigh its negative effects.

88 In the present case, Orlen maintains that it is indisputable that the contested decision falls within the scope of the energy sector, since, by that decision, the Commission required Gazprom to change its manner of collaboration with the relevant customers and, therefore, that decision produced effects on the EU gas market and the conditions prevailing therein for at least eight years following its adoption. Moreover, the Commission presented the procedure leading to the adoption of the same decision as an essential element of the measures to promote an open and integrated gas market. However, the General Court, like the Commission, completely ignored the fact that the decision at issue fell within the field of energy, wrongly suggesting, inter alia, that the Commission was not bound, in the context of the examination of Gazprom’s commitments, by the principle of energy solidarity. There is nothing to suggest that the application of that principle is excluded or limited in the context of the Commission’s action based on Regulation No 1/2003, including Article 9 thereof, when that action can be identified as falling within the field of energy.

89 According to Orlen, the General Court’s approach would deprive Article 194 TFEU of any practical effect with regard to the Commission’s action seeking to implement both the objectives of competition law in the broad sense and those relating to the functioning of the EU energy market. Failure to analyse those commitments from the perspective of that principle would also deprive Article 9(1) of Regulation No 1/2003 of any practical effect.

91 It must be noted that, according to the case-law of the Court of Justice, there is nothing that would permit the inference that the principle of solidarity referred to in Article 194(1) TFEU cannot, as such, produce binding legal effects on the Member States and institutions of the European Union. On the contrary, that principle, as is apparent from the wording and structure of that provision, forms the basis of all of the objectives of the European Union’s energy policy, serving as the thread that brings them together and gives them coherence (judgment of 15 July 2021, Germany v Poland, C‑848/19 P, EU:C:2021:598, paragraph 43).

92 It follows, in particular, that acts adopted by the EU institutions, including by the Commission under that policy, must be interpreted, and their legality assessed, in the light of the principle of energy solidarity (judgment of 15 July 2021, Germany v Poland, C‑848/19 P, EU:C:2021:598, paragraph 44).

93 That principle, like general principles of EU law, constitutes a criterion for assessing the legality of measures adopted by the EU institutions (judgment of 15 July 2021, Germany v Poland, C‑848/19 P, EU:C:2021:598, paragraph 45).

94 Thus, the EU institutions and the Member States must take into account the principle of energy solidarity, referred to in Article 194 TFEU, in the context of the establishment and functioning of the internal market and, in particular, the internal market in natural gas, by ensuring security of energy supply in the European Union, which means not only dealing with emergencies when they arise, but also adopting measures to prevent crisis situations. To that end, it is necessary to assess whether there are risks for the energy interests of the Member States and the European Union, and in particular to security of energy supply (judgment of 15 July 2021, Germany v Poland, C‑848/19 P, EU:C:2021:598, paragraph 69).

95 In the present case, first, in paragraph 420 of the judgment under appeal, the General Court emphasised that commitments made following a procedure based on Article 9(1) of Regulation No 1/2003 could not lead to a result which is contrary to the specific provisions of the Treaties. It follows that the General Court was therefore fully entitled to find, first, that the Commission, acting pursuant to that provision, however had to comply with the obligation to act in compliance with the TFEU provisions and the general principles of EU law, and, secondly, that the Commission was required to verify whether the commitments proposed in that procedure infringed, as such, the provisions of the TFEU, including Article 194(1) TFEU.

96 Those obligations mean that, as the Advocate General stated in point 58 of his Opinion, the Commission cannot accept commitments that could result in an infringement of Article 194 TFEU and thus undermine the objectives pursued by the principle of energy solidarity or the security of energy supply in the European Union, despite the fact that those commitments may respond to the competition concerns raised by the Commission on the market concerned. However, that does not mean that the Commission, acting as competition regulator in the context of the procedure provided for in Regulation No 1/2003, has the power to impose independent obligations going beyond those intended to remedy the competition issues identified in its investigation, by requiring more binding commitments in that regard.

97 It is therefore without erring in law that, in paragraph 422 of the judgment under appeal, the General Court refused to treat the application of the principle of energy solidarity by the Commission as analogous to the imposition of positive obligations on the latter going beyond the scope of the complaints directed against Gazprom, or to the imposition of more binding obligations on it.

98 Furthermore, Orlen does not state how the decision at issue disregards the specific objectives of the European Union’s energy policy.

99 In that regard, the fact that the Commission did not expressly refer to the principle of energy solidarity in the contested decision does not mean that it did not take it into account and that that decision does not comply with it.

100 On the contrary, the decision at issue contains elements which clearly indicate that the Commission, at the time of the adoption of that decision, took account of the objectives of the European Union’s energy policy, by ensuring, inter alia, the free movement of gas across borders and providing consumers of the EEC countries concerned with alternative supplies from neighbouring countries, as well as ensuring that prices do not depart from the Western European competitiveness indicators, when it assessed the adequacy of Gazprom’s commitments.

101 The third part of the first ground of appeal must therefore be rejected and, accordingly, the first ground of appeal must be dismissed in its entirety, as must the second ground of appeal.

102 By its third ground of appeal, alleging infringement of Article 9(1) of Regulation No 1/2003, Orlen submits that the General Court misinterpreted the concept of ‘manifest error of assessment’ in its examination of the Commission’s assessment of complex economic and technical issues relating to the analysis of the adequacy of Gazprom’s commitments. According to the case-law of the Court of Justice, that concept corresponds to four scenarios, namely the failure to assess correctly the relevant facts underlying the analysis of the author of the decision, the failure of that author to take account of essential factors, the fact that the author of the decision based that analysis on an irrelevant factor and failure to observe the standard of proof. In those circumstances, the General Court is required, inter alia, to assess whether the evidence on which the Commission relied is sufficiently precise, reliable and consistent, whether it contains a set of relevant data that must be taken into account in order to assess a complex situation, whether it is capable of substantiating the conclusions drawn from it by the Commission and, finally, whether it enables a forward-looking analysis to be carried out, by virtue of its quality.

104 By the first part of its third ground of appeal, concerning the General Court’s failure to take into consideration the cumulative effect of the Commission’s errors on its overall analysis of the adequacy of Gazprom’s commitments, Orlen submits, inter alia, that the need to take that cumulative effect into account follows from the settled case-law of the EU Courts. The General Court wrongly considered, in the judgment under appeal, that it could assess those errors independently of each other, that is to say, analyse separately any measure and any potential error on the part of the Commission, without thus making an overall assessment of the Commission’s action. It was on the basis of such separate analyses that the General Court concluded that there was no manifest error of assessment, whereas taking into account those errors cumulatively would have led it to recognise the existence of such a manifest error, given that the various elements of Gazprom’s commitments were neither isolated nor without relevance to one other. Gazprom’s commitments relating to pricing practices and territorial restrictions are complex mechanisms, consisting of elements which are largely interdependent.

105 Orlen maintains that such an incorrect application of the criteria for reviewing a manifest error of assessment is present, in particular, in the General Court’s assessment of the Commission’s abandonment of the Yamal objections.

106 According to Orlen, in any event, the decision at issue should also have been annulled by the General Court in so far as it did not address all the competition concerns expressed by the Commission.

108 First, as regards the arguments relating to the abandonment of the Yamal objections and the failure to address all the Commission’s initial concerns including those objections, they must be rejected with reference to paragraphs 57 and 64 of the present judgment.

109 Secondly, it is for the applicant seeking the annulment of a decision adopted by the Commission under Article 9 of Regulation No 1/2003 to establish that the Commission committed a manifest error of assessment. In the present case, Orlen confines itself to an abstract line of reasoning, based on the idea of a combination of errors, without demonstrating its specific relevance. In that regard, the Commission submits that Orlen had not argued before the General Court that an overall assessment of all the errors alleged against the Commission should have been carried out. It is apparent from paragraph 398 of the judgment under appeal that only Overgas had raised such an argument, which was examined and then correctly rejected by the General Court.

110 Thirdly, contrary to what Orlen maintains, it is not apparent from either the decision at issue or the judgment under appeal that the Commission or the General Court dispensed with an overall analysis of the commitments undertaken by Gazprom.

111 Thus, with regard to the Commission, the overall approach that it adopted in the assessment of the commitments is borne out by recitals 160 to 164 of the decision at issue. In that regard, the Commission’s decision to present separately the proportionality of each commitment in relation to the concerns that it had identified, cannot suffice to call into question that overall approach.

112 With regard to the General Court, it is apparent from paragraphs 195 to 202 and 310 to 319 of the judgment under appeal that the General Court carried out an overall assessment of both the pricing commitments and of the commitments concerning territorial restrictions. Paragraph 398 of the judgment under appeal, previously referred to in paragraph 109 of the present judgment, is another example of an overall assessment in order to assess the possible existence of a manifest error of assessment.

113 Fourthly, it is necessary to refute Orlen’s assertion that the General Court should have found that a manifest error of assessment on the part of the Commission arose, in the present case, from the accumulation of simple errors which the Commission allegedly committed. That could be the case only if the General Court had found at least one of the commitments accepted by the Commission to be inadequate so as to also call into question other commitments and if it had been shown that they were linked. However, that is not the case.

114 While it is true that, in the context of its assessment of the adequacy of the commitments relating to delivery points, the General Court identified certain irregularities affecting the examination of those commitments by the Commission, it did not however consider that such circumstances could have an impact on the effectiveness of those commitments. As the Advocate General observed in point 96 of his Opinion, the General Court’s criticisms of the Commission’s assessment relate more to the methodological approach adopted by the Commission in the context of its analysis than to the insufficiency of commitments.

115 It should also be borne in mind, as has been pointed out in paragraph 48 of the present judgment, that the existence of a manifest error of assessment cannot correspond to the presence of a mere irregularity or omission on the part of the Commission, since a certain degree of seriousness, capable of calling into question the validity of the analysis which the Commission carried out, must be reached.

117 By the second part of its third ground of appeal, alleging failure to take into account the forward-looking nature of Gazprom’s commitments in the analysis of the adequacy of the various elements making up those commitments, Orlen submits that, according to the case-law of the Court of Justice, as regards commitments aimed at removing competition concerns (that is to say, putting an end to the anticompetitive practices identified by the Commission in the preliminary assessment, restoring competition on the market and avoiding repetition of the infringements), the Commission must approach with particular caution predictions that a situation will develop negatively. In that context, the General Court would be required to verify whether the Commission correctly carried out that analysis, relying both on the ‘applicable historical experience’ and on the ‘verification of the likelihood that all the conditions are met, which must be cumulatively met’.

118 Orlen maintains that, in the present case, the analysis of the appropriateness of the undertaking consisting of the insertion of a price review clause solely in relation to the situation on the market on the date of adoption of the decision at issue, in disregard of any forward-looking element, is the first example of an error committed by the General Court.

119 According to Orlen, a second example of such a failure by the General Court to review the existence of an adequate forward-looking analysis by the Commission is the failure to verify the number of cumulative conditions to be met in order to achieve the objective of the price commitment, set out in paragraph 135 of the decision at issue, which seeks to ensure that Gazprom’s customers have a clear contractual right guaranteeing that their gas prices remain fair and competitive in the future.

120 Accordingly, Orlen asserts that the General Court did not correctly assess the relevant facts underlying its analysis and each of the abovementioned errors had a direct impact on the decision at issue.

122 Orlen’s assertions are invalidated by the content of both the decision at issue and the judgment under appeal.

123 Thus, contrary to what Orlen submits, the Commission and the General Court clearly took into account the potential future development of the market, as is apparent from paragraph 158 of the judgment under appeal, which is why, in paragraph 155 of that judgment, the General Court considered it sufficient that the final commitments contained a price review clause and not an immediate amendment of the pricing formulae laid down by the existing clauses.

124 Orlen misinterprets that paragraph of the judgment under appeal in claiming that the General Court assessed the adequacy of the price review clause proposed by Gazprom only in the light of the market situation existing at the time of the adoption of the decision at issue. The General Court merely confirmed that the Commission had also correctly taken into account, in its assessment, the market situation existing at the time of the adoption of that decision. Moreover, it is clear from paragraphs 156 to 158 of the judgment under appeal that the General Court did in fact review the accuracy of the Commission’s forward-looking assessment. In that regard, the fact that, when that decision was adopted, the prices were competitive had to be considered in connection with the grant to Gazprom of a period of 10 weeks to amend all the contracts and to incorporate a price review clause in those contracts.

125 Moreover, the General Court also sufficiently assessed the manner in which, thanks to the price review clauses introduced by the undertakings, it was possible to avoid repetition of a situation in which the prices would have been excessive.

126 Consequently, the second part of the third ground of appeal, and accordingly that ground of appeal, must be rejected.

127 The first ground of appeal alleges infringement of Article 9(2) of Regulation No 1/2003.

129 By the first part of its fourth ground of appeal, Orlen submits that the General Court based the power, provided for in Article 9(2) of Regulation No 1/2003, to reopen the proceedings on the breach of a commitment the content of which was interpreted by it on the basis of the grounds of the decision at issue and not of its operative part.

130 Orlen maintains that it is clear from Article 9(2)(b) that, in the event of non-fulfilment by the undertaking concerned of the commitments which had been accepted by the Commission, the Commission is authorised to reopen the proceedings. It is therefore crucial to determine unambiguously the content of the commitment at issue.

131 According to Orlen, in that regard, the interpretation of the operative part of the contested decision should consist not of supplementing the content of the commitments set out in that operative part, as the General Court did, but in interpreting them, in particular in the event of doubts as to the literal interpretation of that operative part. That is borne out by the case-law according to which, in principle, an action must be directed against the operative part of a legal act and not against the grounds thereof, unless the content of the latter has an effect on the substance of the decision set out in the operative part of that act or constitutes the essential basis for it.

132 Orlen asserts that the General Court not only interpreted the content of the commitments relating to pricing practices, which form part of the operative part of the decision at issue, in the light of the grounds of that decision, but also, on the one hand, wrongly extended that content by encompassing elements which clearly did not appear in that operative part and, on the other hand, referred, on the basis of that decision, thus extended, to the possibility of reopening the proceedings, in particular in the event of non-observance, by arbitral tribunals, of data relating to ‘hub prices’ allowing revised prices to be defined. Since the Commission did not clearly state what it meant by non-performance of a commitment in the light of the grounds for reopening the proceedings, the General Court could not lawfully derive from it an argument in favour of the adequacy of the commitment in question.

133 Moreover, Orlen submits that the Commission is not required to reopen the proceedings in the event of Gazprom’s breach of its commitments, since it has a wide discretion in that regard. Accordingly, the argument that the Commission’s power to reopen the proceedings in the event of a breach of those commitments proves that they are adequate is unfounded.

135 As has already been stated in paragraph 67 of the present judgment, the mere fact of recalling that commitments are capable of giving rise, if they are not complied with by the undertaking concerned, to a reopening of the proceedings pursuant to Article 9(2) of Regulation No 1/2003 reflects an intention not to supplement those commitments ex post, but to ensure compliance with them. It was in the same vein that the General Court referred to the possibility of reopening the proceedings and imposing a fine, pursuant to Article 23(2)(c) of Regulation No 1/2003, in the event of Gazprom's failing to fulfil its commitments. It is a mere reminder for Gazprom to comply with those commitments.

136 Moreover, it is perfectly logical for the General Court to have interpreted the content of the operative part of the contested decision in the light of the grounds of that decision. To rely on the grounds of that decision in order to support the correct interpretation of its operative part is not an error of law, but a matter of customary interpretative technique. In so doing, contrary to what Orlen claims, the General Court did not supplement that operative part with elements which were not included in it, but merely interpreted it in the light of the content of that reasoning. In particular, the General Court merely explained, in response to Orlen’s claims, what was to be understood by the commitment described in Section 19 (iv) of the final commitments, without contradicting or going beyond the wording of that paragraph, but by adopting a reasonable interpretation of that commitment on the basis of its content and purpose.

137 Accordingly, the first part of the fourth ground of appeal must be rejected.

138 By the second part of its fourth ground of appeal, Orlen puts forward the argument that the General Court based the power, provided for in Article 9(2)(a) of Regulation No 1/2003, to reopen the proceedings by accentuating circumstances on which the decision at issue was not based and which had no connection with the subject matter of that decision.

139 According to Orlen, the correct interpretation of that provision would allow the Commission to reopen the proceedings where there has been a material change in any of the facts on which the decision concerned was based. That provision therefore concerns facts which existed at the time when the Commission adopted its decision and which, therefore, had been examined by it. However, the General Court failed to have regard to that interpretation by applying it, in particular, to two types of circumstances.

140 First, Orlen claims that the General Court considered that, even if the convergence of gas and oil prices was a short-term situation, any lack of convergence in the future would constitute a change in circumstances existing at the time of the adoption of the contested decision, which would entitle the Commission to act under the same provision.

141 Secondly, Orlen submits that the General Court also considered that the absence of certain circumstances at the time of the adoption of that decision, such as the fact that the Nord Stream 2 pipeline was not operational, the lack of any restrictions on the supply of gas by Gazprom or the lack of new conditions for the supply of gas imposed by Gazprom, had to be taken into account, since, if such facts were to arise in the future, they would be capable of leading to a reopening of the proceedings by the Commission under Article 9(2)(a) of Regulation No 1/2003.

142 Orlen claims that, accordingly, the General Court considered that future and indeterminate events as regards their scope and nature, which, by their nature, did not constitute facts underlying the decision at issue, would justify such a reopening, which is contrary to the correct interpretation of that provision.

144 As the Commission observed in its response, Article 9(2)(a) of Regulation No 1/2003 illustrates the fact that the commitments approved by that institution logically exist only in so far as the circumstances which led to their adoption are not substantially altered, failing which it is necessary to reopen the proceedings in order to adjust the commitments concerned to the new circumstances.

145 First, contrary to what Orlen submits, the General Court merely recalled, in paragraph 426 of the judgment under appeal, that the Commission could, where appropriate, make use of the power, provided for in that provision, to reopen the proceedings if one of the facts on which the decision concerned is based underwent a material change, in particular in the event of changes in the gas markets.

146 Secondly, it did not err in law in its interpretation of the words ‘where there has been a material change in any of the facts on which the decision was based’ in that provision. In particular, it did not state that all the future events to which Orlen’s concerns related, in particular regarding the Nord Stream 2 pipeline, constituted such a change.

147 The General Court did not therefore extend excessively the scope of Article 9(2)(b) of Regulation No 1/2003.

148 Consequently, the second part of the fourth ground of appeal must be rejected.

149 It follows from all of the foregoing that that ground of appeal must be rejected and, accordingly, the appeal must be dismissed in its entirety.

150 By its cross-appeal, Overgas asks the Court to set aside the judgment under appeal.

151 Gazprom submits that Overgas has no interest in bringing the cross-appeal. Furthermore, it is not directly affected by the judgment under appeal. Consequently, the appeal is inadmissible.

152 First, according to Gazprom, the final commitments do not adversely affect Overgas’s economic or legal interests. Even if it acknowledges that there should probably have been better commitments, that does not prove that the final commitments are detrimental to Overgas.

153 Secondly, Gazprom maintains that the invalidation of the final commitments would not confer any advantage on Overgas. On the contrary, if they had been invalidated, it would not have been certain that the Commission would have made more stringent commitments binding or that Gazprom would have been willing to undertake them. The mere hypothetical and theoretical possibility of the existence of allegedly ‘better’ commitments is not sufficient to establish the admissibility of the cross-appeal.

154 In its reply, Overgas submits that the cross-appeal is admissible, since it is directly affected, within the meaning of Article 56(2) of the Statute of the Court of Justice of the European Union, by the decision at issue. It would clearly be in its economic interest to obtain a more favourable decision from the Commission, consisting of effective legal measures. Such a result cannot be achieved de jure until the contested decision is annulled.

156 It is sufficient to note that Overgas’s interest in bringing the cross-appeal is established, even though it operates on the gas market in Bulgaria, which is not directly the subject of the final commitments made binding by the contested decision, since it was an intervener at first instance in support of the form of order sought by Polskie Górnictwo Naftowe i Gazownictwo, and, by the judgment under appeal, the General Court dismissed the action brought by the latter.

158 By its first ground of appeal, Overgas submits that the General Court infringed Article 40(2), read in conjunction with Article 53(1), of the Statute of the Court of Justice of the European Union, in so far as it held that the arguments put forward by Overgas in its statement in intervention were inadmissible in so far as they concerned the Bulgarian gas system.

159 Overgas maintains that the General Court was wrong to consider that those arguments went beyond the subject matter of the dispute. It is not for the General Court, but for the applicant alone, that is to say, in the present case, Polskie Górnictwo Naftowe i Gazownictwo, to determine the subject matter of the dispute in the context of an action for annulment. Polskie Górnictwo Naftowe i Gazownictwo defined the subject matter of the dispute broadly, including as regards territorial restrictions. The commitments concerning Bulgaria therefore form part of that subject matter. Furthermore, the General Court’s interpretation of the approach adopted by Polskie Górnictwo Naftowe i Gazownictwo, in particular as regards the potential limitations of the subject matter of the dispute, is partially contradictory, to a large extent ambiguous and generally irreconcilable with the clear position of Polskie Górnictwo Naftowe i Gazownictwo, as set out in its application.

160 In support of that analysis, Overgas asserts that the pleas put forward at first instance by Polskie Górnictwo Naftowe i Gazownictwo concerned a number of problems and errors highlighted in the content of the decision at issue, in respect of which the Polish market, of which Polskie Górnictwo Naftowe i Gazownictwo had better knowledge, was only one example, without entailing the exclusion of the Bulgarian gas market from the subject matter of the dispute.

161 Orlen maintains that the first ground of appeal and Overgas’s claim that the judgment under appeal should be set aside in its entirety should be upheld.

162 The Commission contends that the first ground of the cross-appeal should be rejected.

163 First of all, it should be noted that, in the context of the commitment relating to Bulgaria, Gazprom undertook to amend the gas supply and transport contracts in order to remove contractual obstacles for the Bulgarian transmission system operator and thus to bring that network into line with the requirements of secondary EU law. Those requirements concern, inter alia, the implementation of an entry-exit system, the conclusion of interconnection agreements between operators of networks in neighbouring countries and the rules for the allocation of gas volumes between several network users at interconnection points. Those requirements facilitate cross-border trade in gas, promote competition and ensure the integration of the internal market.

164 Next, in its application before the General Court, Polskie Górnictwo Naftowe i Gazownictwo referred to the commitment relating to Bulgaria only once and did not put forward any plea relating to the adequacy of that commitment. On the contrary, it argued that Gazprom should have proposed, and that the Commission should have made a commitment similar to that relating to Bulgaria mandatory for other gas markets in the EEC countries, including Poland. Thus, there is no doubt that that latter commitment went beyond the subject matter of the proceedings brought before the General Court.

165 Lastly, in paragraph 409 of the judgment under appeal, the General Court did indeed respond to Polskie Górnictwo Naftowe i Gazownictwo’s plea concerning the inadequacy of the commitments relating to the territorial restrictions as a whole and found, in that regard, that the Commission had not committed a manifest error of assessment. However, the General Court took into account, in its assessment, the fact that Polskie Górnictwo Naftowe i Gazownictwo had not challenged the adequacy of the commitment relating to Bulgaria.

166 It is therefore established that the commitment relating to Bulgaria did not fall within the subject matter of the dispute as defined in the application lodged before the General Court, with the result that the General Court was right to hold that the arguments put forward by Overgas in its statement in intervention were inadmissible in so far as they concerned the Bulgarian gas system.

168 By its second ground of appeal, Overgas submits that the General Court infringed its obligation to state reasons under Article 36 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 53(1) thereof.

169 In particular, according to Overgas, the General Court did not specify the methods for calculating the four factors limiting the scope of the commitments relating to delivery points, how it was necessary to measure the cumulative effects of those four factors, or the reference point used to reach the conclusion that even those cumulative effects did not result in a manifest error of assessment by the Commission at the time of acceptance of those commitments. The General Court did not provide any explanation as to the method which it applied in that regard, let alone as regards its application to the particular circumstances of the case.

170 Orlen does not take a position on this second ground of appeal. The Commission considers that it is inadmissible because it is too imprecise.

171 It must be borne in mind that the obligation to state reasons requires the General Court only to clearly and unequivocally disclose the reasoning followed by it in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 26 July 2017, Staatliche Porzellan-Manufaktur Meissen v EUIPO, C‑471/16 P, EU:C:2017:602, paragraph 28 and the case-law cited) but not to provide reasoning which responds exhaustively to all the arguments put forward by the parties to the dispute (see, to that effect, judgment of 4 March 2021, Liaño Reig v SRB, C‑947/19 P, EU:C:2021:172, paragraph 27 and the case-law cited).

172 In the present case, it is apparent in particular from paragraphs 77 and 114 of the present judgment that the General Court reviewed and gave reasons for its analysis of the Commission’s assessment of the commitments concerning the delivery points. The fact that the relevant passages of the judgment under appeal are not as detailed as Overgas would have wished does not support the conclusion that the General Court gave insufficient reasons for that judgment in that regard.

173 The second ground of the cross-appeal must therefore be rejected and, consequently, the cross-appeal must be dismissed in its entirety.

174 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.

175 Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

176 In the present case, since Orlen has been unsuccessful in the appeal, it must be ordered to bear its own costs and to pay those incurred by the Commission and by Gazprom in the context of that appeal, in accordance with the forms of order sought by those parties. Since Overgas has been unsuccessful in its cross-appeal, it must be ordered to bear its own costs and to pay those incurred by the Commission and Gazprom in the cross-appeal, in accordance with the forms of order sought by the latter.

177 In accordance with Article 140(1) of the Rules of Procedure of the Court of Justice, also applicable to appeal proceedings by virtue of Article 184(1) of those rules, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Republic of Poland, intervener at first instance, must therefore bear its own costs.

2. Orders Orlen S.A. to bear its own costs and to pay those incurred by the European Commission, Gazprom PJSC and Gazprom export LLC in the appeal;

3. Orders Overgas Inc. to bear its own costs and to pay those incurred by the European Commission, Gazprom PJSC and Gazprom export LLC in the cross-appeal;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Orlen v Commission (Appeal - Competition - Gas markets of Central and Eastern Europe - Judgment) [2024] EUECJ C-255/22P (26 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C25522P.html Cite as: [2024] EUECJ C-255/22P, ECLI:EU:C:2024:790, EU:C:2024:790

Court of Justice of the European Communities (including Court of First Instance Decisions)