The EU is finally losing the opportunity to block the construction of Nord Stream 2
The European Union cannot itself negotiate with Russia on the status of the Nord Stream 2 gas pipeline project; this issue falls within the sphere of mixed competence of the EU and member countries of the union. This conclusion follows from the conclusion of the legal service of the European Council regarding possible negotiations between the European Commission and the Russian Federation on the status of the gas pipeline project, reports “Kommersant”.
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For these negotiations, the European Commission was going to receive a mandate from all EU members, but at the insistence of Berlin and Vienna, the vote on the issue was postponed until a legal analysis was received. But, based on the conclusions of lawyers reviewed by the publication, receiving such a mandate looks extremely unlikely.
“The legal service of the European Council rejected almost all of the EC’s arguments. Firstly, it confirmed the earlier conclusion of the EC legal service that EU energy legislation cannot apply to imported gas pipelines from third countries, such as Nord Stream 2. It is also noted that there is no “legal uncertainty” in the status of Nord Stream 2 which the EC stated, there is no conflict of jurisdiction: the offshore part of the pipeline through the Baltic is regulated by international maritime law, and the land sections by the legislation of Russia and Germany.
The thesis that the new gas pipeline threatens the security of supplies or increases the dependence of EU countries on external suppliers was considered by the legal service of the European Council to be “at least contrary to common sense.” The EC's argument that Nord Stream 2 threatens gas transit through Ukraine, which would be in the EU's interests to preserve, was considered insufficiently substantiated. Lawyers also came to the conclusion that any measures by the EC regarding Nord Stream 2 can only relate to issues of the operation of the gas pipeline, and not its creation and commissioning,” the publication notes.
In addition, the key to the future fate of the issue of the mandate of the European Commission is the conclusion of the legal service of the European Council that such negotiations in the energy sector, according to the EU Treaty, cannot be the exclusive competence of the EU; this is the sphere of mixed competence of the EU and its member country, in this case Germany.
That is, the EC does not have the right to independently conclude any agreement with Russia, unless the European Council grants the EC such powers, and this should be unanimously supported by all EU member states, although until now the European Commission believed that a qualified majority would be enough to obtain a mandate .
“Moreover, according to the legal service of the European Council, even if such an agreement is reached in the EU, measures that can be applied to Nord Stream 2 should not violate Germany’s right to choose sources of gas supply or impose restrictions on such supplies. And since Berlin and Vienna have already declared their reluctance to approve the mandate, this issue looks closed,” writes Kommersant.
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