Published 5 October 2018
This article examines the on-going developments relating to one pipeline project and the European Commission and its DG Energy's efforts to complicate the realization of Nord Stream 2 pipeline project bringing gas from Russia to Germany. The article argues that the progress towards what is currently a proposal to modify the 2009 Gas Market Directive is in clear violation of general principle of non-discrimination as applied by the Court of Justice of the European Union ("CJEU").
When examining the compatibility of the proposal with the principle of non-discrimination it is necessary to pay heed to (i) background to the proposal, (ii) content of the proposal in its current form as well as (iii) various developments and suggested amendments to the original proposal. As will be shown in the article, the developments leading to the proposal show clearly that the intention of the legislative change has little to do with the objectives stated in the proposal and is clearly linked with the Nord Stream 2 project. Examining the content of the proposal, it is apparent that the objectives of the proposal cannot be reached, and that the intention comes back to one single project. Finally, this becomes even more apparent when examining proposed amendments to the original proposal.
The article will start with a brief examination of the principle of non-discrimination under EU law and its application in the case law of the CJEU. It will thereafter provide the context for the proposal for amending the Gas Market Directive, before then examining the content of the proposal from the point of view of the principle of non-discrimination.