The Polish anti-monopoly regulator UOKiK started the case against Gazprom and its European partners for the Nord Stream-2 project. According to UOKiK, the companies violated the ban of the regulator for the creation of a joint venture, issued in August 2016. Although the European companies did not become shareholders in Nord Stream 2 AG, the Polish regulator believes that the provision of loans by European companies to Gazprom within the framework of this project violates the antimonopoly legislation.
The Polish authorities are making another attempt to hamper the Nord Stream-2 project. Local anti-monopoly regulator UOKiK announced on Wednesday that it is starting an investigation into Gazprom and five European companies - Shell, Engie, Wintershall, Uniper and OMV. At the end of 2015, these companies requested permission from UOKiK to set up a joint venture for Nord Stream-2 - it was expected that European companies would receive 10% of the project company Nord Stream 2 AG (Switzerland), while Gazprom would have 50 %. The filing of the request was caused by the fact that Gazprom and Shell have substantial business in Poland, similar permits were also requested in other countries. However, the Polish regulator de facto banned the deal.
As a result, European companies could not become shareholders of Nord Stream 2 AG, but in April 2017 they signed an agreement with Gazprom on financing the project and became its creditors. At the moment, the five companies have issued bridge loans for € 1.5 billion, while 100% of Nord Stream 2 AG shares are pledged for these and future loans.
But UOKiK believed that the conclusion of an agreement on the financing of the project instead of joining the capital of the project company is "an obvious attempt" to circumvent the ban of the regulator. "In fact, the goal of both events was the same. Both the creation of the joint venture and the conclusion of subsequent agreements were mainly aimed at financing the construction of Nord Stream 2, "the UOKiK said. The regulator reminds that for violation of the regulator's regulation in the field of mergers, he can fine companies up to 10% of the proceeds (in the market where the violation was committed), and also apply other measures - to oblige to sell assets, to divide business, etc.
However, the decision of UOKiK is hardly capable of directly interfering with the Nord Stream-2 project, since the gas pipeline does not pass through the territory or waters of Poland.
The financing of the project is also carried out in other countries: Nord Stream 2 AG itself is registered in Switzerland, as is Shell's project financing structure, similar structures of Wintershall, Uniper and OMV are registered in the Netherlands. Thus, UOKiK may theoretically impose a fine on the Polish business of Gazprom or Shell, and may also try to obtain security measures that suspend the construction of the pipeline or its financing in other EU countries, but for this the Polish regulator will have to prove its case courts of these countries.
"There is a national and supranational antitrust law in the EU. If the Polish regulator imposes a fine or some structural measures within its authority, the affected companies will be able to apply to a local court that may reconsider the decision of UOKiK, "said Alexander Pakhomov, managing partner of the Law and Business Criminal Code. If the Polish courts side with the regulator, the companies will have the opportunity to refer the dispute to the EU court. The lawyer notes that "formally legally the companies did not violate anything, since the regulator banned the creation of a joint venture, and they agreed to provide loans, these are other legal relationships."
Poland consistently opposes the Northern Stream-2, trying to stop it by all possible means. So, the authorities of the country actively support the adoption of amendments to the EU gas directive, which spread the rules of the Third energy package for offshore gas pipelines. The draft amendments provide for the most stringent regulation for new projects, whereas for the gas pipelines already commissioned, various exceptions are possible. Since Gazprom intends to introduce Nord Stream 2 into operation in the fourth quarter of 2019, the opponents of the project are trying to speed up the adoption of the directive, but so far the process is slow. Thus, if UOKiK succeeds in its investigation, at least to slow the construction of the "Nord Stream-2", this would already help the Polish authorities in their efforts.
Earlier, Warsaw had already acted in a similar way, filing two lawsuits in an attempt to challenge Gazprom's extended access to the Opal gas pipeline: the interim measures imposed in December 2016 at the request of Poland and the structure of the Polish state-owned company PGNiG, although eventually canceled, "Gazprom" to use Opal at full capacity.