The permission to lay the Nord Stream-2 gas pipeline issued by Denmark at the end of October does not solve all the problems of the project. Gazprom also has to ensure full loading of the pipe, which is legally hindered by amendments to the EU gas directive. The situation may be resolved by the new Bundestag bill, which, if passed, will essentially annul the toughened EU rules. But in parallel, Gazprom began to work out a backup plan with the creation of a separate operator company for the pipe section in German waters.
The governing parliamentary coalition of Germany, the CDU / CSU and the SPD, is going to vote on the night of November 8 for amendments that de facto remove from the Nord Stream 2 project all the risks associated with amendments to the EU gas directive. These amendments, adopted in the spring, extend the draft rules of the Third Package on the separation of activities to the draft, which may lead to a low gas pipeline load. The EU Gas Directive is binding on each member state, but leaves it up to them to choose how to apply it.
Thus, parliamentarians propose amendments to the Law on Energy, which eliminate the key point of the EU directive – that only gas pipelines put into operation before May 23, 2019 can easily get exceptions from the Third Energy Package. Nord Stream 2 is likely to be commissioned in the first months of 2020, which would not allow it to receive an exception.
Changes to the EU gas directive should affect the 12-mile stretch of the gas pipeline located in the territorial waters of Germany. Compliance with the requirements of the Third Energy Package means that the pipeline must have a transparent tariff setting, an operator independent of Gazprom (now it is Nord Stream 2 AG, 100% controlled by a monopoly), and third parties must be allowed to use the facilities. In practice, this company, which lies at the bottom of the sea, cannot be connected by any company other than Gazprom.
The parliamentarians explain their position by the fact that at the time of the amendments to the EU gas directive, investments in Nord Stream-2 were mainly made, and this is more important than the deadline for the project to be completed.
The project worth € 9.5 billion was funded, including by two German companies – Uniper and Wintershall. The Bundestag profile committee on economics and energy recommended the adoption of the bill.
But, even if the law is approved, the question remains whether the European Commission, which was the main lobbyist for the change in the gas directive, or other EU countries to dispute such exemptions for Gazprom. The head of the gas and oil markets department of the German Ministry of Finance, Stefan Rolle, very streamlinedly told Bloomberg on November 7 that he did not see the possibility of completely exempting Nord Stream-2 from fulfilling the requirements of the EU gas directive. “This is not 100% that BNetzA (Federal Network Agency of Germany.— "B") will take a negative decision on the release, but I would say that it is likely that they can’t take a positive decision on this matter, ”the official told the agency, noting that German domestic law cannot diverge from European standards. At the same time, in his opinion, Gazprom should consider creating an independent operator for the 12-mile pipe section.
According to Handelsblatt, Gazprom has already begun to work out this alternative option by creating a separate operator company.
She, according to the publication, will be transferred to management the last 12 miles of the pipeline in the territorial waters of Germany, after which they will be sold to a third party. Gazprom does not comment on this to Kommersant.
As Advisor to the Pen & Paper Bar Association, attorney Sergei Glandin, the issue of adopting the gas directive concerns the EU common market, therefore, the European Commission has the right to initiate a procedure for issuing an opinion on a violation of an EU contract (infringement procedure) by a member state. At the same time, other EU members, as the lawyer notes, cannot start such a dispute, since the EU law does not provide for this, and the principle of sovereign equality of states and non-interference in internal affairs expressly prohibits contesting the German internal act.
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