Summary

After two unsuccessful attempts to affect the Nord Stream 2 pipeline project by virtue of EU gas market regulation, the Commission tabled a legislative proposal to amend the Gas Market Directive in a way that would extend its scope of application to external gas pipelines bringing gas to the EU internal market. After extended talks and several consecutive versions of a possible amendment, on 12 February 2019 the trilogue reached a compromise on key issues relating to the amendments to the Gas Directive. The trilogue cemented the agreement suggested by France and Germany, where the application of Gas Market Directive was restricted to “territory and territorial sea of the Member State where the first interconnection point is located”.

Unlike the initial proposal from the Commission, the new wording means that the Gas Market Directive amendment only applies to the section of the pipeline located in the territorial sea of the Member State where the first connection point is located. This is an improvement to the original proposal as it excludes the violation of United National Law of the Sea Convention (UNCLOS) as well as eliminates the problems arising from multiple jurisdictions applying the Gas Market Directive to their offshore territories. However, despite of this, several key issues in the amendment remain problematic.

This article will first provide for some background to the amendment and then move to examine its details. Before concluding, the article will discuss the tension of the amendment with WTO rules and general principles of EU law.

Footnotes omitted from this introduction