Monday

20th May 2019

EU lawyers give Russia pipeline a free pass

  • EU leaders switch on previous Russia-German pipeline, Nord Stream 1, in 2011 (Photo: nordstream.com)

Whether it is the legal service of the Quai d'Orsay in France, that of Her Majesty's foreign office in the UK, or that of the German foreign office, all government legal services recognise the need to maintain credibility.

In any opinions they provide to government, they understand they have to effectively address contrary arguments and understand the economic and political context in which they are asked for their input.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

  • Former German chancellor Schroeder now works as a Russian lobbyist (Photo: nord-stream2.com)

The leaked legal opinion of the EU Council's legal service, which examined the European Commission's proposed mandate in respect of Nord Stream 2, filed on 27 September, failed on both these counts.

Precedents

For example, the Council's service makes the argument that the EU's 2009 gas directive (part of the third energy package) cannot apply to export pipelines bringing fossil fuels into Union territory.

The legal service argues that Article 2(17) of the directive limits its application to a "transmission line which crosses … a border between member states for the sole purpose of connecting the national transmission systems of those states".

Whether one agrees or not with that argument, as a matter of fact the 2009 gas directive has been applied to export pipelines bringing natural gas into the Union.

The Commission has insisted that Poland applies the full liberalisation regime envisaged under the 2009 directive to the Yamal Pipeline.

That pipeline, like Nord Stream 2, is not a pipeline that connects two member states. Instead, it flows through two non-member states, Russia and Belarus, and then into Poland.

Equally, the Commission instituted infringement proceedings against Bulgaria for failing to apply the 2009 directive to the South Stream pipeline.

Again, the South Stream pipeline in landing on Bulgarian soil would not have provided a connection with another member state.

Instead it was a pipeline connecting Russia, a non-member state, via its territory and the exclusive economic zones of the Black Sea and into Bulgaria.

To provide a credible legal opinion, the Council's legal service would have to at least distinguish the Yamal and South Stream cases under EU law from Nord Stream 2.

Not only did the legal service fail to do this, neither Yamal nor South Stream are even mentioned in the text.

Recital 36

The Council service also failed to address contrary arguments in respect of the opinion of the Commission's energy department in 2016.

The Commission made a compelling argument that EU law applied to export pipelines.

Its opinion points out that Recital 36 of the EU statute, which provides for "the possibility of temporary derogations … for security of supply reasons, in particular, to new pipelines within the [EU] transporting gas from third countries into the [EU]".

It could, as a consequence of Recital 36, be argued that the EU legislature did not have the intention of excluding export pipelines from the scope of its jurisdiction.

Article 36

On top of this, one of the key arguments deployed by the legal service to deny that the 2009 statute can apply to export pipelines was to focus on Article 36.

Article 36 lists the type of projects that may be exempted from the full burden of the liberalisation regime contained in the statute.

The legal service argued that as export pipelines are not listed as being capable of an exemption, the statute was not intended to apply to them.

But this overlooks the argument made by the Commission's energy department that a number of language versions of the statute indicate that the types of project listed in Article 36 are illustrative only.

That would mean that other projects not explicitly listed in Article 36, such as Nord Stream 2, are capable of exemption. P

The Council's legal service did not address this argument at all.

Stunner

For Baltic and central and eastern European (CEE) governments, perhaps the most stunning part of the opinion is contained in paragraph 11 of the EU Council text.

Here, the legal service says that "the assumption that the opening of supplementary routes or capacities [with Nord Stream 2] might increase the Union's dependence on its external energy providers is, at the very least counter-intuitive".

This sentence would have some credibility if was an analysis from 1997, When the EU included only Western European states, not 2017.

In 1997, Western European states in the European Community had never seen their supplies of gas cut off by Russia, even at the height of Cold War tensions.

However, the same was not true of the Baltic countries and CEE states.

There were at least 40 Russian state inspired and politically motivated energy cut-offs between 1991 and 2004 targeted at states across the region.

There were even more since they joined the EU - in 2006, 2009, 2014 and 2015.

In this context Baltic and CEE states see the Yamal and Brotherhood pipelines as providing a degree of transit security - one cannot cut of the CEE states without cutting off states in Western Europe.

Nord Stream 2 would remove such transit security.

Transit security

The threat from Nord Stream 2, which the Council's legal service seem to be wholly unaware of, was highlighted by former German foreign minister Sigmar Gabriel's attempts to reassure CEE capitals.

In 2016, he tried to persuade a number of governments that all would be well with Nord Stream 2 because additional pipeline capacity could be built from west to east, with Germany supporting the onward supply of natural gas to the CEE states.

CEE governments pointed out to Berlin that the problem with the generous German offer was that it was an offer the Germans could not actually guarantee.

They pointed to the experience in 2014 and 2015 when Gazprom cut gas supplies to CEE states in an attempt to stop gas being moved from west to east in a reverse flow to support Ukraine.

Berlin was met with the rejoinder: "If they can do it to Kiev, they could do it to us".

Alan Riley is a law professor at City University in London

Markets shun Nord Stream 2 amid US threat

Markets unwilling to lend money to finance the Russia gas pipeline due to risk of US sanctions, forcing its EU backers to "review" their plans.

News in Brief

  1. EU flies rainbow flag on anti-homophobia day
  2. EU to freeze money and visas of foreign cyber-attackers
  3. EU reassures US on arms sales
  4. Use euros over dollars in energy contracts, France says
  5. UK cross-party Brexit talks collapse
  6. Climate activists occupy German-Russian gas pipeline
  7. Farage got €515,000 of private perks
  8. French EU commissioner urges Italy not to overspend

Planned German coal exit boosts case for Nord Stream 2

German commission recommends phasing out coal power over the next 19 years - which will provide additional arguments to build the controversial Nord Stream 2 pipeline from Russia, which both the European Commission and the US have reservations about.

Stakeholders' Highlights

  1. Vote for the EU Sutainable Energy AwardsCast your vote for your favourite EUSEW Award finalist. You choose the winner of 2019 Citizen’s Award.
  2. Nordic Council of MinistersEducation gets refugees into work
  3. Counter BalanceSign the petition to help reform the EU’s Bank
  4. UNICEFChild rights organisations encourage candidates for EU elections to become Child Rights Champions
  5. UNESDAUNESDA Outlines 2019-2024 Aspirations: Sustainability, Responsibility, Competitiveness
  6. Counter BalanceRecord citizens’ input to EU bank’s consultation calls on EIB to abandon fossil fuels
  7. International Partnership for Human RightsAnnual EU-Turkmenistan Human Rights Dialogue takes place in Ashgabat
  8. Nordic Council of MinistersNew campaign: spot, capture and share Traces of North
  9. Nordic Council of MinistersLeading Nordic candidates go head-to-head in EU election debate
  10. Nordic Council of MinistersNew Secretary General: Nordic co-operation must benefit everybody
  11. Platform for Peace and JusticeMEP Kati Piri: “Our red line on Turkey has been crossed”
  12. UNICEF2018 deadliest year yet for children in Syria as war enters 9th year

Stakeholders' Highlights

  1. Nordic Council of MinistersNordic commitment to driving global gender equality
  2. International Partnership for Human RightsMeet your defender: Rasul Jafarov leading human rights defender from Azerbaijan
  3. UNICEFUNICEF Hosts MEPs in Jordan Ahead of Brussels Conference on the Future of Syria
  4. Nordic Council of MinistersNordic talks on parental leave at the UN
  5. International Partnership for Human RightsTrial of Chechen prisoner of conscience and human rights activist Oyub Titiev continues.
  6. Nordic Council of MinistersNordic food policy inspires India to be a sustainable superpower
  7. Nordic Council of MinistersMilestone for Nordic-Baltic e-ID
  8. Counter BalanceEU bank urged to free itself from fossil fuels and take climate leadership
  9. Intercultural Dialogue PlatformRoundtable: Muslim Heresy and the Politics of Human Rights, Dr. Matthew J. Nelson
  10. Platform for Peace and JusticeTurkey suffering from the lack of the rule of law
  11. UNESDASoft Drinks Europe welcomes Tim Brett as its new president
  12. Nordic Council of MinistersNordic ministers take the lead in combatting climate change

Stakeholders' Highlights

  1. Counter BalanceEuropean Parliament takes incoherent steps on climate in future EU investments
  2. International Partnership For Human RightsKyrgyz authorities have to immediately release human rights defender Azimjon Askarov
  3. Nordic Council of MinistersSeminar on disability and user involvement
  4. Nordic Council of MinistersInternational appetite for Nordic food policies
  5. Nordic Council of MinistersNew Nordic Innovation House in Hong Kong
  6. Nordic Council of MinistersNordic Region has chance to become world leader when it comes to start-ups
  7. Nordic Council of MinistersTheresa May: “We will not be turning our backs on the Nordic region”
  8. International Partnership for Human RightsOpen letter to Emmanuel Macron ahead of Uzbek president's visit
  9. International Partnership for Human RightsRaising key human rights concerns during visit of Turkmenistan's foreign minister
  10. Nordic Council of MinistersState of the Nordic Region presented in Brussels
  11. Nordic Council of MinistersThe vital bioeconomy. New issue of “Sustainable Growth the Nordic Way” out now
  12. Nordic Council of MinistersThe Nordic gender effect goes international

Join EUobserver

Support quality EU news

Join us