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The Commission failed to respect the Polish wholesaler’s procedural rights in the proceedings which led to the adoption of that decision


Between 2011 and 2015, the European Commission took several measures in order to investigate the functioning of the gas markets in central and eastern Europe. In that context, it launched an investigation into Gazprom PJSC and Gazprom export LLC (together, ‘Gazprom’) in relation to the supply of gas in eight Member States, namely Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia (‘the countries concerned’). On 22 April 2015, the Commission sent a statement of objections 1 to Gazprom, claiming that it was abusing its dominant position on the national markets for the upstream wholesale supply of gas in the countries concerned for the purpose of preventing the free flow of gas there in breach of Article 102 TFEU, which prohibits such abuse. In the statement of objections, the Commission considered, among other things, that Gazprom had made its supplies of gas in Poland conditional on its obtaining certain commitments relating to gas transport infrastructure. Those commitments concerned acceptance by the applicant, the Polish wholesaler Polskie Górnictwo Naftowe i Gazownictwo S.A., of Gazprom having increased control over the management of investments regarding the Polish section of the Yamal pipeline, one of the main gas transit pipelines in Poland (‘the Yamal objections’). By decision of 24 May 2018, 2 the Commission approved and made binding the commitments proposed by Gazprom in response to the former's competition concerns and closed the administrative proceedings in that case. In parallel with those proceedings, the applicant lodged a complaint on 9 March 2017, alleging abusive practices by Gazprom, which overlapped to a great extent with the concerns expressed by the Commission in the statement of objections. The complaint included claims that Gazprom, amid a supply shortfall that the applicant faced in 2009 and 2010, had made the conclusion of a contract for the supply of additional volumes of gas subject to conditions that were intended, in particular, to increase Gazprom’s influence over the operation of the Polish section of the Yamal pipeline (‘the claims concerning infrastructure-related conditions’). Those claims, in part, denounced practices that were similar to those concerned by the Yamal objections.