Bulgarian Energy Holding EAD and Others v European Commission (T-136/19)

Contents

Judgment of the General Court (Fourth Chamber, Extended Composition)25 October 2023^note(Competition — Abuse of a dominant position — Internal market in natural gas — Decision finding an infringement of Article 102 TFEU — Regulated market — Definition of the relevant market — Romanian Transit Pipeline 1 — Holder of an exclusive right to use the Romanian Pipeline 1 — Refusal to grant access — Public supply obligation — State action defence — Transmission system operator — Storage system operator — Anticompetitive strategy — Exclusionary effects — Single and continuous infringement — Rights of the defence)In Case T‑136/19,Bulgarian Energy Holding EAD, established in Sofia (Bulgaria),Bulgartransgaz EAD, established in Sofia,Bulgargaz EAD, established in Sofia,represented by M. Powell, A. Komninos, H. Gafsen and W. De Catelle, lawyers,supported byRepublic of Bulgaria, represented by L. Zaharieva and T. Mitova, acting as Agents,vEuropean Commission, represented by H. van Vliet, G. Meessen, J. Szczodrowski and C. Georgieva, acting as Agents,supported byOvergas Inc., established in Sofia, represented by S. Cappellari and S. Gröss, lawyers,THE GENERAL COURT (Fourth Chamber, Extended Composition),composed, at the time of the deliberations, of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,Registrar: I. Kurme, Administrator,having regard to the written part of the procedure,further to the hearing on 29 September 2022,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.…

I. Background to the dispute

2BEH is a company wholly owned by the Bulgarian State. The Bulgarian State’s rights in BEH are exercised by the Bulgarian Minister for Energy. BEH has several subsidiaries which operate in the energy sector in Bulgaria. In the gas sector, it holds 100% of the capital of its subsidiaries Bulgargaz and Bulgartransgaz.

3Bulgargaz is the public gas supplier in Bulgaria.

4Bulgartransgaz is:– the licensed gas transmission system operator (‘TSO’) in Bulgaria; on that basis, it operates the Bulgarian gas transmission network (‘the transmission network’) and the Bulgarian transit pipeline;– the storage system operator (‘SSO’) of the only natural gas storage facility of that country, situated underground in Chiren (‘the Chiren storage facility’).

A. Factual background…

1. Gas supply in Bulgaria

6During the infringement period, there were two sources of gas supply in Bulgaria, namely domestic production and imports from Russia. Since domestic production was negligible at that time, the country’s supply depended almost entirely on imports of Russian gas.

7The Russian gas was transported to Bulgaria via Ukraine, and then Romania, through three pipelines, namely the Romanian Transit Pipelines 1, 2 and 3, managed by Transgaz SA, the gas transmission system operator in Romania.

8The Romanian Transit Pipeline 1 (‘the Romanian Pipeline 1’) crossed Romania from the entry point at Gas Metering Station Isaccea 1, situated on the Ukrainian-Romanian border, up to the Negru Vodă 1 entry point of the transmission network, situated on the Romanian-Bulgarian border. The transmission network, which in turn was connected to the Chiren storage facility, was a purely national network to which the majority of customers and local distribution networks in Bulgaria were connected, with the exception of customers and distribution networks situated in the south-west of Bulgaria.

9The Romanian Transit Pipelines 2 and 3 transported the Russian gas from the Ukrainian-Romanian border to the Romanian-Bulgarian border at the Negru Vodă 2 and 3 entry points, and merged on Bulgarian territory, forming the Bulgarian transit pipeline. That pipeline was used for limited supplies in the south-west of Bulgaria and mainly transported gas to the former Yugoslav Republic of Macedonia, Greece and Türkiye.

10Accordingly, at least until April 2016, the Romanian Pipeline 1 was the only viable option for transporting gas to Bulgaria with the aim of supplying most parts of the country.

11The Romanian Pipeline 1, which has a total annual capacity of 7.4 billion cubic metres, was built in 1974 in accordance with the intergovernmental agreement concluded between the People’s Republic of Bulgaria and the Socialist Republic of Romania on 29 November 1970 (‘the 1970 Intergovernmental Agreement’).

12On 5 July 1974, Bulgargaz’s predecessor, the company Neftochim, concluded an agreement with the company Rompetrol, Transgaz’s predecessor, for the use of the Romanian Pipeline 1. That agreement remained in force until 2005.

13On 18 February 2003, the Republic of Bulgaria and Romania concluded a new intergovernmental agreement (‘the 2003 Intergovernmental Agreement’). Under Article 3 of that agreement, the contracting parties committed to requiring their respective gas operators, namely Bulgargaz and Transgaz, to enter into a new contract for the use of the Romanian Pipeline 1 in order to reflect the new transit tariffs.

14Thus, on 19 October 2005, Transgaz and Bulgargaz concluded a new agreement (‘the 2005 Agreement’), under which Bulgargaz was granted exclusive use of the Romanian Pipeline 1 until 31 December 2011. That contract essentially guaranteed a capacity of 6.49 billion cubic metres per year. In return, Bulgargaz paid Transgaz a fixed annual fee, irrespective of the capacity actually used. In 2009, that agreement was extended until 31 December 2016.

2. Gas supply in Bulgaria

15During the infringement period, Bulgargaz purchased gas from Russia and was the sole or the main importer of Russian gas to Bulgaria. It had also acquired the majority of domestic gas production. Bulgargaz was thus the main gas supplier, on the one hand, as regards upstream wholesale trade and, on the other hand, as regards final customers, namely the companies directly connected to the transmission network.

16During the infringement period, Bulgargaz operated as a public gas supplier on the Bulgarian markets under licence No JI-214-14/29.11.2006 for the public supply of gas in the territory of the Republic of Bulgaria (‘Bulgargaz’s licence’). That licence had been awarded to it by Decision No P-046 of the Komisia za energiyno i vodno regulirane (Energy and Water Regulatory Commission, Bulgaria; ‘the Bulgarian regulator’) of 29 November 2006 (‘the decision of the Bulgarian regulator’), on the basis of the ЗАКОН ЗА ЕНЕРГЕТИКАТА (Law on Energy) of 9 December 2003 (DV No 107 of 9 December 2003), which was most recently amended on 13 December 2018 (DV No 103 of 13 December 2018) (‘the Bulgarian Law on Energy’) for a term of 35 years (Article 2.6.1 of that licence).…

4. The Chiren storage facility

21Natural gas can be stored for later use in underground gas storage facilities. Those facilities can serve as a tool to adjust supply according to demand, mainly in view of the seasonal variations in demand for gas. In addition, especially when there is a high dependence on a single source of supply, those facilities may provide important back-up possibilities in case of disruption of supply.

22In Bulgaria, the Chiren storage facility, which has a capacity of 0.5 billion cubic metres, was the only existing storage facility during the infringement period. It was not a multicycle storage facility, since gas could only be injected into it during the ‘summer’ months and withdrawn during the ‘winter’ months.…

C. Contested decision

34In the contested decision, the Commission concluded, in essence, that the applicants had committed a single and continuous infringement of Article 102 TFEU between 30 July 2010 and 1 January 2015 (see recital 653).…

II. Forms of order sought

56The applicants, supported by the Republic of Bulgaria, claim, in the final form of order sought, that the Court should:– adopt a measure of organisation of procedure or a measure of inquiry, ordering the Commission to produce the statement of objections in Case AT.39816 – Upstream gas supplies in Central and Eastern Europe (‘the Gazprom case’), and the related documents in so far as they concern the Bulgarian gas market;– annul the contested decision in whole or in part, in so far as it concerns them or one of them;– failing that, annul or reduce the fine imposed on them;– order the Commission to pay the costs.

57The Commission, supported by Overgas, contends that the Court should:– dismiss the action;– order the applicants to pay the costs.

III. Law

58The applicants put forward seven pleas in law, alleging, respectively:– first, infringement of their rights of defence, the principle of good administration and the principle of transparency;– second, a failure to state reasons and errors of law and of fact concerning the definition of the market for capacity services on Romanian Pipeline 1;– third, an incorrect finding that the applicants held a dominant position on the relevant markets;– fourth, an incorrect finding that they abused a dominant position;– fifth, an incorrect assessment of the duration of the alleged infringement;– sixth, that they were deprived of the possibility of terminating the case by means of commitments, in accordance with Article 9 of Regulation No 1/2003;– seventh, that there were errors in the calculation of the amount of the fine.…

A. The second plea in law, alleging a failure to state reasons and errors of law and of fact concerning the definition of the market for capacity services on the Romanian Pipeline 1…

3. The third part, alleging errors of law and errors in the assessment of the facts in the definition of the market for capacity services on the Romanian Pipeline 1

79The applicants, supported by the Republic of Bulgaria, submit that the definition of the market for capacity services on the Romanian Pipeline 1 is vitiated by:– an error of law, in that the Commission failed to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1;– a first error in the assessment of the facts, in that the Commission did not identify Transgaz as being a supplier of capacity-related services on the Romanian Pipeline 1;– a second error in the assessment of the facts, in that the Commission identified Bulgargaz as being a supplier of capacity on that pipeline, and not as being a buyer.

80It is appropriate to begin with the joint examination of the first two errors raised by the applicants.

(a)The errors of law and of fact based, respectively, on the argument that the Commission failed to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1 and did not identify Transgaz as being a supplier of that capacity

81The applicants submit that Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36) distinguishes between primary and secondary gas capacity markets. They state that, under that regulation, only the TSO may sell capacity on the primary market, whereas network users may only resell capacity on the secondary market. Thus, by failing to distinguish between primary and secondary gas capacity markets, the Commission, first, erred in law by adopting a definition of the market for capacity services on the Romanian Pipeline 1 that was contrary to Regulation No 715/2009 and, second, disregarded the fact that Transgaz was the supplier on that primary market.

82In that regard, it is true that Regulation No 715/2009 draws a distinction between primary and secondary gas capacity markets. Under that regulation, the primary market is the market of the capacity traded directly by the TSO (see Article 2(1)(22)), whereas the secondary market is the market of the capacity traded otherwise than on the primary market (see Article 2(1)(6)).

83However, recital 34 of Regulation No 715/2009 states that that regulation, as with the guidelines adopted pursuant to it, is without prejudice to the application of EU competition rules.

84In addition, as is apparent from paragraphs 2 and 3 of the Notice on market definition, the concept of market in competition matters differs from other definitions of market often used in other contexts (judgment of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 97). Its main objective is to identify in a systematic way the competitive constraints that the undertakings concerned face (judgment of 18 May 2022, Wieland-Werke v Commission, T‑251/19, not published, EU:T:2022:296, paragraph 40).

85Thus, in the context of the application of Article 102 TFEU, the definition of the relevant market is carried out in order to define the boundaries within which it must be assessed whether an undertaking is able to behave, to an appreciable extent, independently of its competitors, its customers and, ultimately, consumers and therefore whether it holds a dominant position within the meaning of that provision (judgments of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 37, and of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 30).

86According to settled case-law, for the purposes of investigating the possibly dominant position of an undertaking, the possibilities of competition must be judged in the context of the market comprising the totality of the products or services which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products or services; those possibilities of competition must also be assessed in the light of the competitive conditions and of the structure of supply and demand (see judgments of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 37 and the case-law cited, and of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 31 and the case-law cited).

87Therefore, in order to determine whether the Commission was required to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1, it is necessary to ascertain whether, during the infringement period, that distinction was relevant in relation to the services offered on each of those markets, in order thus to define the boundaries within which the question of whether the applicants held a dominant position on that relevant market had to be assessed.

88It is common ground that, during the infringement period, the Romanian Pipeline 1 was the only viable route for transporting Russian gas to Bulgaria, with the result that the capacity services on that pipeline were not interchangeable with other services within the meaning of the case-law cited in paragraph 86 above, for the purposes of transporting gas between Russia and Bulgaria. It follows a contrario, and still within the meaning of the same case-law, that the capacity services on the primary and secondary markets on the Romanian Pipeline 1 constituted a range of services particularly suitable for satisfying constant needs and, therefore, were interchangeable with each other.

89In that respect, the Commission rightly noted that, during the infringement period, Bulgargaz had, under the 2005 Agreement, not only reserved all capacity on the Romanian Pipeline 1, but could also prevent any attempt by Transgaz to grant capacity to third parties on the primary market (see recitals 260 and 261 of the contested decision). Article 17.1 of that agreement stipulated that ‘the [Romanian] [P]ipeline [1] shall be used exclusively for [Bulgargaz], and without [Bulgargaz]’s consent[,] it shall not be allowed to connect other consumers to that pipeline, and no other natural gas amounts shall be transited’.

90Thus, despite the fact that Transgaz was the TSO of the Romanian Pipeline 1, during the infringement period:– Bulgargaz was the only operator able to offer capacity services on that pipeline on the secondary market, as a result of the exclusive use of that infrastructure granted to it by the 2005 Agreement;– Bulgargaz also had, by virtue of the right of prior consent conferred on it by the 2005 Agreement, the possibility of opposing any request for access on the primary market.

91Therefore, the distinction between the primary and secondary markets was irrelevant for the analysis under Article 102 TFEU.

92The applicants consider that that conclusion is incorrect because, in their view, under Regulation No 715/2009 Transgaz was required unilaterally to take over the capacity that Bulgargaz had not used on the Romanian Pipeline 1 and to offer it to third parties, irrespective of the existence of the 2005 Agreement. In that regard, they state that that regulation and the guidelines annexed to that regulation in the version in force until 16 September 2012 (‘the 2009 Guidelines’) concerning the procedures for managing contractual congestion have direct effect. Accordingly, they submit that the fact that Romania did not implement those rules cannot adversely affect them.

93In that regard, it should be noted that, under Regulation No 715/2009:– ‘firm capacity’ is the gas transmission capacity contractually guaranteed as uninterruptible by the TSO (see Article 2(1)(16));– ‘technical capacity’ is the maximum firm capacity that the TSO can offer to the network users, taking account of system integrity and the operational requirements of the transmission network (see Article 2(1)(18));– there is ‘contractual congestion’ where the level of firm capacity demand exceeds the technical capacity (see Article 2(1)(21));– ‘unused capacity’ is firm capacity which a network user has acquired under a transport contract but which that user has not nominated by the deadline specified in the contract (see Article 2(1)(4));– ‘interruptible capacity’ is gas transmission capacity that may be interrupted by the TSO in accordance with the conditions stipulated in the transport contract (see Article 2(1)(13)).

94Article 16(3)(a) of Regulation No 715/2009 provides that, in the event of contractual congestion, the TSO is to offer unused capacity on the primary market at least on a day-ahead and interruptible basis.

95The 2009 Guidelines, which supplemented Regulation No 715/2009, provided, in point 2.2(1), that, in the event that contracted capacity went unused, TSOs were to make that capacity available on the primary market on an interruptible basis via contracts of differing duration. However, that obligation related only to cases where unused capacity was not offered by the relevant network user on the secondary market at a reasonable price.

96However, as regards the possibility of withdrawing and reallocating unused capacity as firm capacity, the 2009 Guidelines provided only, in point 2.2(4) thereof, that, where appropriate, TSOs would make reasonable endeavours to offer at least parts of the unused capacity to the market as firm capacity.

97Two findings are apparent from Article 16(3)(a) of Regulation No 715/2009, interpreted in the light of the 2009 Guidelines. In the first place, Transgaz had to offer unused capacity on the Romanian Pipeline 1 only if Bulgargaz did not offer it on the secondary market at a reasonable price. In the second place, in such a case, Transgaz was only obliged to offer Bulgargaz’s unused capacity to third parties as short-term and interruptible capacity, and not as firm capacity.

98In recital 35 of the contested decision, which is not disputed by the applicants, the Commission stated that downstream gas suppliers could not normally rely on interruptible capacity in order to respect their supply obligations to their customers, because that capacity was not guaranteed by the TSO. Therefore, Transgaz’s offer of Bulgargaz’s unused capacity as short-term and interruptible capacity would not have enabled that TSO to meet the constant needs of the undertakings wishing to obtain access to the Romanian Pipeline 1.

99The amendment of the 2009 Guidelines by the adoption of Commission Decision 2012/490/EU of 24 August 2012 on amending Annex I to Regulation No 715/2009 (OJ 2012 L 231, p. 16; ‘the 2012 Guidelines’) confirms that the obligation laid down in Article 16(3) of Regulation No 715/2009 was insufficient. It is apparent from recital 2 of Decision 2012/490/EU that the 2012 Guidelines were adopted because practice had shown that, despite the application of certain congestion-management principles such as the offering of interruptible capacities, contractual congestion remained an obstacle to the development of a well-functioning internal market in gas.

100Therefore, in order to resolve that situation, the 2012 Guidelines laid down four different procedures the purpose of which was to enable TSOs, in the event of contractual congestion, to reallocate the unused capacity as firm capacity. Only three of those procedures had to be implemented from 1 October 2013 and, therefore, during the infringement period.

101In the present case, the applicants refer to two of those mechanisms, namely, first, the mechanism for increasing capacity through a system of oversubscription and buy-back provided for in point 2.2.2 of the 2012 Guidelines (‘the oversubscription and buy-back mechanism’) and, second, the long-term ‘use it or lose it’ (UIOLI) mechanism, provided for in point 2.2.5 of those guidelines (‘the UIOLI mechanism’ and, together with the oversubscription and buy-back mechanism, ‘the incentive mechanisms’).

102In the first place, the oversubscription and buy-back mechanism allowed the TSO to increase the capacity of its network by offering, as firm capacity, the additional capacity exceeding what could be transported. The TSO had to buy back the capacity that was ultimately nominated by the users exceeding what the gas transmission network was able to transport (see point 2.2.2(1) and (6) of the 2012 Guidelines). In order to encourage the TSO to bear the risks associated with overselling, the system provided for financial compensation (see point 2.2.2(3) of the 2012 Guidelines).

103In order for the oversubscription and buy-back mechanism to apply, the 2012 Guidelines provided that it had to be approved in advance by the national regulatory authority (‘the national regulator’) and be the subject of consultations with the national regulators of adjacent Member States (see point 2.2.2(1) of those guidelines).

104In the second place, under the UIOLI mechanism, the national regulators were obliged to require TSOs to withdraw, partially or fully, systematically underutilised contracted capacity on an interconnection point by a network user where that user had not sold or offered under reasonable conditions its unused capacity and where other network users requested firm capacity (see point 2.2.5(1) of the 2012 Guidelines).

105However, for the TSO to be able to use the UIOLI mechanism, the national regulator first had to verify whether the conditions laid down by the 2012 Guidelines enabling a TSO to withdraw capacity were satisfied (see point 2.2.5(1) and (4) of the 2012 Guidelines).

106The applicants submit, in essence, that, from 2012, Transgaz could have used the incentive mechanisms unilaterally to withdraw Bulgargaz’s unused capacity on the Romanian Pipeline 1 and to reallocate it to third parties.

107In that regard, it is apparent from paragraphs 103 to 105 above that, in order for those incentive mechanisms to apply, the Romanian regulator had to adopt certain preliminary measures.

108In recitals 293 and 294 of the contested decision, the Commission found that the Romanian regulator had not, at the time, taken the necessary preliminary measures to enable the TSO to use the incentive mechanisms.

109However, the applicants dispute the need for intervention by the Romanian regulator in order for Transgaz to be able to offer to third parties Bulgargaz’s unused capacity on the Romanian Pipeline 1.

110The applicants’ position does not stand up to analysis. In the absence of prior intervention by the national regulator during the infringement period, the incentive mechanisms could not be implemented (see paragraphs 103 and 105 above). That means that, during that period, Transgaz could not have relied on those mechanisms unilaterally to withdraw Bulgargaz’s unused capacity on the Romanian Pipeline 1 and to offer it to third parties as firm capacity. Therefore, Transgaz could offer that unused capacity to third parties, under Regulation No 715/2009, only as short-term and interruptible capacity.

111As follows from paragraph 98 above, a short-term and interruptible offer would not have enabled Transgaz, in practice, to circumvent the restrictions imposed by the 2005 Agreement and, thus, to meet the constant needs of suppliers wishing to have access to the Romanian Pipeline 1, given that such capacity would not have been attractive to downstream gas suppliers because it did not allow them to respect their supply obligations to their customers.

112In those circumstances, the distinction between the primary and secondary gas capacity markets was irrelevant in the present case for the assessment of whether the applicants enjoyed a dominant position in respect of the capacity services on the Romanian Pipeline 1. As stated in paragraph 89 above, as a result of the 2005 Agreement, not only was Bulgargaz, throughout the infringement period, the only possible supplier of capacity services on the Romanian Pipeline 1 on the secondary market, but it also controlled third-party access to the primary market due to exclusive use of that pipeline and the right of prior consent which it held under the 2005 Agreement. Similarly, since Transgaz could offer unused capacity, without Bulgargaz’s consent, only as short-term and interruptible capacity during the infringement period, the Commission did not make an error of assessment in not finding that Transgaz was a supplier in the context of the definition of the market for capacity services on the Romanian Pipeline 1.

113Those conclusions are not called into question by the other arguments put forward by the applicants.

114In the first place, the applicants submit that the Commission’s definition of the market for capacity services on the Romanian Pipeline 1 departs from its decision-making practice.

115It must be noted that the Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings, other product and service markets or other geographic markets at different times (see judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 55 and the case-law cited). Furthermore, economic operators are not entitled to have a legitimate expectation that a previous practice in taking decisions that is capable of being varied will be maintained, depending on changing circumstances or the evolution of the Commission’s analysis (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraphs 142 and 143).

116Thus, the applicants are not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case (judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 118; see also judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 55 and the case-law cited).

117In the second place, the applicants submit that Legea nr. 123/2012 energiei electrice şi a gazelor naturale (Law No 123/2012 on electricity and natural gas) of 10 July 2012 (Monitorul Oficial al României, part I, No 485 of 16 July 2012; ‘the Romanian Law on Energy’) incorporated Regulation No 715/2009 and gave Transgaz, as the TSO, power to withdraw unused capacity on the Romanian Pipeline I. In that regard, they refer to Article 130(1) and Article 194 of that law, and to the methodology for allocating capacity on the Romanian Pipeline I, published by the Romanian regulator on 11 July 2012 (Monitorul Oficial al României, part I, No 472 of 11 July 2012; ‘the capacity allocation methodology’).

118That argument cannot succeed for the following reasons.

119First, Article 130(1) of the Romanian Law on Energy did not apply to the Romanian Pipeline 1. That provision required the TSO to allocate capacity within the interconnection pipelines, in accordance with Regulation No 715/2009 (see Article 130(1)(q) of the Romanian Law on Energy). According to that law, an interconnection pipeline was a transmission pipeline crossing a border between two Member States of the European Union for the sole purpose of connecting the gas transmission systems of those two States (see Article 100(34) of that law). The Romanian Pipeline 1 was not connected to the Romanian gas transmission network during the infringement period and therefore was not an interconnection pipeline within the meaning of Article 130(1) of the Romanian Law on Energy.

120Second, Article 194 of the Romanian Law on Energy provided that an infringement, by the TSO, of the provisions concerning capacity allocation and congestion management mechanisms laid down by EU law also constituted an infringement of the relevant Romanian rules (see Article 194(36) of that law). However, in so far as, as follows from paragraph 110 above, the EU legislation in force at the time did not allow Transgaz to withdraw unused capacity and reallocate it to third parties as firm capacity, Article 194 of the Romanian Law on Energy also did not empower it to act to that effect.

121Third, as regards the capacity allocation methodology, it did not require Transgaz, as TSO, to withdraw any existing capacity that Bulgargaz had not used, but only obliged Transgaz to sell the available capacity on that pipeline (see Article 1 of that methodology), namely capacity that was not the subject of a contract. Under Article 17.1 of the 2005 Agreement, ‘the [Romanian] [P]ipeline [1] shall be used exclusively for [Bulgargaz], and without [Bulgargaz’s] consent[,] it shall not be allowed to connect other consumers to that pipeline, and no other natural gas amounts shall be transited except those which [Bulgargaz] delivered to [Transgaz] at the [Gas Metering Station] Isaccea 1’. Since that agreement remained in force throughout the infringement period, it is clear that there was no available capacity that Transgaz could have sold to third-party undertakings on that pipeline at that time.

122Accordingly, the complaints alleging that the Commission erred in law by failing to distinguish between the primary and secondary capacity markets on the Romanian Pipeline 1, and alleging that the Commission made an error of assessment by failing to identify Transgaz as being a supplier of those capacities, must be rejected.

(b)The error of fact regarding the identification of Bulgargaz as being a supplier on the Romanian Pipeline 1

123In the first place, the applicants claim that Bulgargaz was merely a buyer of capacity services on the Romanian Pipeline 1 on the primary market for those services, and not a supplier of those services.

124The contested decision does not classify Bulgargaz as a supplier on the primary market for capacity services on the Romanian Pipeline 1. The Commission merely stated that Transgaz had allocated capacity on that primary market to Bulgargaz by concluding the 2005 Agreement (see recital 291 of the contested decision). However, as follows from paragraphs 89 and 90 above, in view of the exclusive use of that pipeline and the right of prior consent, which were granted to Bulgargaz by Article 17.1 of that agreement, which remained in force throughout the infringement period, the Commission found that Transgaz could not offer third parties capacity on the primary market without Bulgargaz’s consent and that, therefore, Bulgargaz was the only one that could provide third parties with access to the Romanian Pipeline 1 (see recitals 261, 288 and 306 of the contested decision).

125Accordingly, the applicants’ argument that the Commission incorrectly classified Bulgargaz as a supplier on the primary market for capacity services on the Romanian Pipeline 1 must be rejected.

126In the second place, the applicants submit that the Commission incorrectly concluded, in recital 292 of the contested decision, that Bulgargaz could resell capacity on the secondary market for the Romanian Pipeline 1 during the infringement period, when Transgaz had not yet adopted the rules permitting such trade in accordance with Article 22 of Regulation No 715/2009.

127In that regard, it is true that Article 22 of Regulation No 715/2009 required the TSOs to adopt certain measures to enable and facilitate the trade of capacity on the secondary market. However, it should be noted that, on 31 January 2013, Bulgargaz concluded an agreement with Overgas under which Overgas was granted access to the Romanian Pipeline 1, even though the measures envisaged by Article 22 of that regulation had still not been adopted by Transgaz.

128Therefore, as the Commission found in recital 292 of the contested decision, the fact that Transgaz had not adopted the measures envisaged by Article 22 of Regulation No 715/2009 did not, in practice, constitute an obstacle to Bulgargaz being able to offer capacity on the secondary market for capacity on the Romanian Pipeline 1.

129It follows that the applicants’ complaint that the Commission made an error of fact in finding that Bulgargaz could provide capacity on the Romanian Pipeline 1 is unfounded.

130Consequently, the present part and, therefore, the second plea in its entirety must be rejected.

B. The third plea in law, alleging an incorrect finding that the applicants held a dominant position on the relevant markets

131The applicants dispute the finding in recitals 426 and 427 of the contested decision that the BEH Group held, through Bulgargaz and Bulgartransgaz, a dominant position on the five relevant markets.

132There are two parts to this plea. The applicants submit that the Commission incorrectly concluded, first, that Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1 and, second, that BEH indirectly held such a position on the five markets in question.

1. The first part, alleging an incorrect finding that Bulgargaz held a dominant position on the market for capacity services on the Romanian Pipeline 1

133In the first place, the applicants submit that the definition of the market for capacity services on the Romanian Pipeline 1 is vitiated by errors of law and of fact. Therefore, the finding that Bulgargaz is dominant on that market is also incorrect.

134In that regard, it follows from the analysis of the second plea that the Commission did not make an error of law or of fact when defining the market for capacity services on the Romanian Pipeline 1. It follows that the applicants’ first argument must be rejected at the outset.

135In the second place, the applicants submit that, even if the definition of the market for capacity services on the Romanian Pipeline 1 were correct, the Commission’s assessment that Bulgargaz held a dominant position on that market is incorrect.

136More specifically, the applicants claim that the contested decision does not contain an analysis of the market structure or the market power of the undertakings active on the Romanian Pipeline 1, in breach of the requirements set out in points 13 to 15 of the Communication on Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7). Accordingly, they consider that the Commission has not established to the requisite legal standard that Bulgargaz was dominant on the market for capacity services on the Romanian Pipeline 1.

137In that regard, it should be noted that, according to settled case-law, a dominant position referred to in Article 102 TFEU relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, of the consumers. In general, a dominant position derives from a combination of various factors which, taken separately, are not necessarily determinative (judgments of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraphs 65 and 66, and of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraphs 38 and 39).

138Furthermore, the existence of a dominant position does not preclude some competition, but enables the undertaking which profits by it, if not to determine, to have an appreciable influence on the conditions under which competition will develop and, in any event, to act largely in disregard of it so long as such conduct does not operate to its detriment (judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 39).

139In the present case, the Commission noted that gas transmission infrastructures constituted a natural monopoly and that, therefore, the undertaking that controlled capacity on those infrastructures became an unavoidable trading partner whose market power could not be neutralised. As regards the Romanian Pipeline 1, the Commission concluded that, during the infringement period, it was Bulgargaz that controlled any possible third-party access to that pipeline (see recitals 335, 418 and 420 of the contested decision).

140The applicants submit that that assessment is vitiated by four errors.

(a)The first complaint, alleging that the Commission erred in finding that Bulgargaz controlled third-party access to the Romanian Pipeline 1

141The applicants submit that the Commission was wrong in finding that Bulgargaz controlled third-party access to the Romanian Pipeline 1. They state that that control was exercised by Transgaz, as the TSO of that infrastructure.

142In support of that complaint, in the first place, the applicants submit that, even if the 2005 Agreement were an exclusivity agreement, Bulgargaz was granted only consultative rights as regards the possibility of offering capacity to third parties, and those rights were never used.

143In that regard, it should be recalled that, according to the wording of Article 17.1 of the 2005 Agreement, ‘the [Romanian] [P]ipeline [1] shall be used exclusively for [Bulgargaz], and without [Bulgargaz’s] consent[,] it shall not be allowed to connect other consumers to that pipeline, and no other natural gas amounts shall be transited’.

144It is therefore clear that Transgaz could not offer third parties capacity on the Romanian Pipeline 1 without first obtaining Bulgargaz’s consent.

145That interpretation of the 2005 Agreement is supported by the discussions between Transgaz and BEH at their meeting on 24 January 2011. It is apparent from the minutes of that meeting prepared by BEH, dated 31 January 2011, that Transgaz asked BEH whether it was possible to recover part of the unused capacity on the Romanian Pipeline 1 with a view to the future construction of a liquefied natural gas terminal near Constanţa (Romania) (‘the terminal in Constanţa’). BEH replied that the entire capacity of that pipeline had been reserved for Bulgargaz, but that the possibility raised by Transgaz could nevertheless be the subject of a discussion which, first, had to take place at governmental level (see recital 297(a) of the contested decision).

146It follows that, contrary to what the applicants submit, the 2005 Agreement did not grant Bulgargaz mere consultation rights, but granted it a genuine power of prior consent in relation to any attempt by Transgaz to take over unused capacity on the Romanian Pipeline 1, including to offer such capacity to third parties.

147In the second place, the applicants consider that the fact that Bulgargaz sublet part of its capacity to Overgas from 2013 does not support the conclusion that Bulgargaz controlled access to the Romanian Pipeline 1. They argue that that was merely a gesture of good faith by Bulgargaz to Overgas, given that the rules permitting trade on the secondary market had not yet been established.

148In that respect, it should be noted that the fact that Bulgargaz sublet to Overgas part of the capacity of the Romanian Pipeline 1, irrespective of that having allegedly been an act of good faith, illustrates that, as a matter of fact, Bulgargaz succeeded in giving third parties access to that pipeline, despite the absence of rules governing the secondary market for capacity services.

149That fact was relevant to the analysis carried out in the contested decision since, under the 2005 Agreement, Bulgargaz had reserved capacity on the Romanian Pipeline 1 under exclusivity conditions. Therefore, a third party wishing to have access to that pipeline during the infringement period would have obtained it only if Bulgargaz had agreed to Transgaz offering capacity in accordance with the terms of Article 17.1 of the 2005 Agreement, or if Bulgargaz had agreed to sublet part of its capacity, as it did with Overgas from 1 January 2013.

150It follows that the Commission was fully entitled to find that Bulgargaz controlled third-party access to the Romanian Pipeline 1 during the infringement period.

151The first complaint must, therefore, be rejected.

(b)The second complaint, alleging that the Commission did not identify Transgaz as being a supplier of capacity services on the Romanian Pipeline 1

152The applicants submit that the assessment of Bulgargaz’s dominant position on the market for capacity services on the Romanian Pipeline 1 is vitiated by an error of fact, in that it does not identify all the suppliers of capacity services on that market.

153On that point, the applicants complain that the Commission ignored the fact that Bulgargaz was not the TSO of the Romanian Pipeline 1 and that Transgaz had regulatory powers allowing it to withdraw unused capacity unilaterally in order to offer it to third parties. In so doing, the Commission failed to identify the primary and dominant supplier on the market for capacity services on the Romanian Pipeline 1.

154In that regard, it must be noted, in the first place, that, as follows from paragraphs 89 and 90 above, and from the analysis of the first complaint, the Commission found that, although Bulgargaz was not the TSO of the Romanian Pipeline 1, it controlled access to it under the 2005 Agreement.

155In the second place, it is apparent from the contested decision that, before examining whether Bulgargaz enjoyed a dominant position on the market for capacity services on the Romanian Pipeline 1, the Commission correctly concluded that, during the infringement period, Transgaz could not have unilaterally withdrawn capacity and offered it to third parties as firm capacity (see paragraphs 97 and 98 above).

156In that regard, in its analysis, the Commission stated that the 2012 Guidelines, under which TSOs could implement the incentive mechanisms, which allowed them to combat capacity hoarding and thus offer unused contractual capacity to third parties on a long-term basis, did not enter into force until 1 October 2013. It also found that, in order for Transgaz to be able to implement those mechanisms, those guidelines required the Romanian regulator to adopt certain measures beforehand and that, in the present case, those measures had not been adopted before the end of the infringement period (see recitals 293 and 294 of the contested decision).

157Therefore, the applicants cannot argue that the Commission’s analysis ignored the fact that Transgaz was the TSO of the Romanian Pipeline 1 or that the Commission did not examine the issue of Transgaz’s regulatory powers, before concluding that Bulgargaz held a dominant position on the market for capacity services on that pipeline.

158The applicants consider, in any event, that the Commission’s interpretation of the applicable regulatory framework is incorrect and that the involvement of the Romanian regulator was not required in order for Transgaz to be able to offer Bulgargaz’s unused capacity on the Romanian Pipeline 1 to third parties.

159It should be noted that, during the infringement period, Regulation No 715/2009, interpreted in the light of the 2009 and 2012 Guidelines, did not allow Transgaz to offer to third parties Bulgargaz’s unused capacity on the Romanian Pipeline 1 as firm capacity without Bulgargaz’s consent. The regulatory framework applicable at that time allowed Transgaz unilaterally to withdraw Bulgargaz’s unused contractual capacity, in order to offer it to third parties, only as interruptible and short-term capacity, which, as follows from paragraphs 93 to 111 above, would have been insufficient to allow Transgaz to give third parties access to enable the latter to respect their obligations to their customers. By contrast, the possibility of offering unused capacity as firm capacity required the prior intervention of the Romanian regulator, as follows from paragraphs 102 to 107 above. However, the Romanian regulator did not take the necessary measures during the infringement period.

160It follows that, during the infringement period, Transgaz could, without Bulgargaz’s consent, offer only limited and insufficient capacity services on the Romanian Pipeline 1 to third parties. Therefore, the fact that the EU regulatory framework allowed Transgaz to offer unused capacity as short-term and interruptible capacity was insufficient to enable Transgaz to circumvent the restrictions imposed by Article 17.1 of the 2005 Agreement and thus could not have an appreciable effect on the actual control exercised by Bulgargaz over the Romanian Pipeline 1.

161In those circumstances, it must be held that the Commission was right not to identify Transgaz as being a genuine alternative source of supply for third parties wishing to have access to the Romanian Pipeline 1 during the infringement period.

162That conclusion is not called into question by the applicants’ other arguments.

163In the first place, in support of their argument that Transgaz could have unilaterally withdrawn capacity on the Romanian Pipeline 1 from Bulgargaz, the applicants rely on Commission Regulation (EU) No 984/2013 of 14 October 2013 establishing a Network Code on Capacity Allocation Mechanisms in Gas Transmission Systems and supplementing Regulation No 715/2009 (OJ 2013 L 273, p. 5).

164It is apparent from Article 28 of Regulation No 984/2013 that the relevant provisions of that regulation did not enter into force until 1 November 2015, that is to say, after the end of the infringement period. Accordingly, those provisions cannot affect the assessment of the facts and the applicants’ argument must be rejected at the outset as being ineffective.

165In the second place, the applicants complain that the Commission failed to obtain the views of Transgaz and the Romanian regulator on whether Bulgargaz enjoyed a dominant position on the market for capacity services on the Romanian Pipeline 1.

166That argument must be rejected since, in order to assess the powers conferred on the TSOs by EU law and by the applicable national law and thus to take a position on whether Bulgargaz enjoyed a dominant position on the market for capacity services on the Romanian Pipeline 1, the Commission’s legal assessment did not depend on the views of Transgaz or the Romanian regulator.

167In the third place, the applicants submit, in essence, that the Commission could not conclude that Bulgargaz was dominant on the market for capacity services on the Romanian Pipeline 1 because the Commission had already concluded, in Case AT.40335 – Romanian gas interconnectors (‘the Transgaz case’), that Transgaz held a dominant position on that same market.

168In that regard, it is apparent from Commission Decision C(2020) 1232 of 6 March 2020 relating to a proceeding under Article 102 TFEU (the Transgaz case), as published on its website, that, following the preliminary assessment of that case, the Commission concluded that Transgaz enjoyed a dominant position within the meaning of Article 102 TFEU on the market for natural gas transmission in Romania, including transmission through the interconnectors with neighbouring countries. It stated, however, that the three transit pipelines operated at the same time by Transgaz, including the Romanian Pipeline 1 supplying the Bulgarian market, were not part of the Commission’s preliminary assessment since they were not connected to the Romanian gas transmission network (see recital 25 of the decision of 6 March 2020).

169The Commission therefore did not conclude, in the Transgaz case, that the undertaking under investigation held a dominant position on the market for capacity services on the Romanian Pipeline 1.

170Therefore, the applicants’ argument that the Commission’s preliminary findings in the Transgaz case prevented it from concluding that Bulgargaz was dominant on the market for capacity services on the Romanian Pipeline 1 during the infringement period must be rejected.

171The second complaint must therefore be rejected.…

C. The fourth plea in law, alleging an incorrect finding of abuse of a dominant position by the applicants

223The fourth plea consists, in essence, of six ‘sub-pleas’. The first three allege, respectively, errors of law and of fact vitiating the contested decision as regards the finding that the applicants refused access to:– the Romanian Pipeline 1;– the transmission network;– the Chiren storage facility.…

1. Applicable principles and case-law…

(c)The concept of abuse of a dominant position

235Under the first paragraph of Article 102 TFEU, any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.

236A dominant undertaking therefore has a special responsibility not to allow its behaviour to impair genuine, undistorted competition in the internal market (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 135; see, also, judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 40 and the case-law cited).

237Although Article 102 TFEU lists abusive practices, that list does not exhaust the methods of abusing a dominant position prohibited by the FEU Treaty (see judgment of 15 March 2007, British Airways v Commission, C‑95/04 P, EU:C:2007:166, paragraph 57 and the case-law cited).

238Thus, according to settled case-law, the concept of ‘abuse of a dominant position’ within the meaning of Article 102 TFEU is an objective concept relating to the conduct of a dominant undertaking which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 148 and the case-law cited).

239Lastly, it must be noted that if conduct such as that under examination in the present case is to be characterised as abusive, that presupposes that that conduct was capable of restricting competition and, in particular, of producing the alleged exclusionary effect, in that it was capable of making it more difficult for competitors to enter or remain on the market in question and, by so doing, was capable of having an impact on the market structure. That assessment must be undertaken having regard to all the relevant facts surrounding that conduct (see judgments of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 154 and the case-law cited, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraphs 50, 61, 64 and 72 and the case-law cited).

240However, those exclusionary effects must not be purely hypothetical. As a result, the Commission cannot rely on the effects that that practice might produce or might have produced if certain specific circumstances – which were not prevailing on the market at the time when that practice was implemented and which did not, at the time, appear likely to arise – had arisen or did arise (see, to that effect, judgments of 6 October 2015, Post Danmark, C‑23/14, EU:C:2015:651, paragraph 65, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 70).…

2. The first ‘sub-plea’, alleging an incorrect finding that access to the Romanian Pipeline 1 was refused…

(b)The second part, alleging an error of law in the application of the essential facilities doctrine in that an abusive refusal to supply was imputed to Bulgargaz, even though the latter was merely a user of the Romanian Pipeline 1

250The applicants submit that the contested decision is vitiated by an error of law, in that it imputes to Bulgargaz an abusive refusal to supply on the Romanian Pipeline 1, when Bulgargaz was neither the owner nor the TSO of that essential facility, and was merely a user of it. According to the judgments of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569; ‘the judgment in Bronner’), and of 10 July 1991, RTE v Commission (T‑69/89, EU:T:1991:39), on which the Commission based its analysis in recital 549 of the contested decision, and the subsequent case-law relating to a refusal to grant access to an essential facility, abusive conduct can be imputed only to the owner or operator of that facility, in the sense that access to essential facilities has always been intrinsically linked to the ownership and control of the facility or service in question.…

254Next, it is apparent from recitals 532 and 549 to 564 of the contested decision that the Commission assessed the validity of Bulgargaz’s conduct on the market for capacity services on the Romanian Pipeline 1 in the light of the case-law resulting from paragraph 41 of the judgment in Bronner and also from paragraph 73 of the judgment of 10 July 1991, RTE v Commission (T‑69/89, EU:T:1991:39).

255According to that case-law, the refusal by an undertaking in a dominant position to supply a service to which third parties must have access in order to be able to carry on an activity on a neighbouring market, in particular downstream, constitutes an infringement of Article 102 TFEU if the following three cumulative conditions are met:– refusal of the service is likely to eliminate all competition on the part of the person requesting the service in that market;– the service in question is indispensable for carrying on that person’s business, inasmuch as there is no actual or potential substitute for that service;– that refusal cannot be objectively justified.

256The conditions set out in the judgment in Bronner apply, in principle, to infrastructures or to services that are often described as an ‘essential facility’ in the sense that they are indispensable for carrying on a business on a market where there is no actual or potential substitute (judgments of 15 September 1998, European Night Services and Others v Commission, T‑374/94, T‑375/94, T‑384/94 and T‑388/94, EU:T:1998:198, paragraphs 208 and 212, and of 10 November 2021, Google and Alphabet v Commission (Google Shopping), T‑612/17, under appeal, EU:T:2021:763, paragraph 215), so that refusing access may lead to the elimination of all competition on the part of the person requesting access.

257In that regard, the Court has already pointed out that a finding that a dominant undertaking had abused its position due to a refusal to conclude a contract with a competitor had the consequence of forcing that undertaking to conclude a contract with that competitor. Such an obligation is especially detrimental to the freedom of contract and the right to property of the dominant undertaking, since an undertaking, even if dominant, remains, in principle, free to refuse to conclude contracts and to use the infrastructure it has developed for its own needs (judgment of 25 March 2021, Slovak Telekom v Commission, C‑165/19 P, EU:C:2021:239, paragraph 46).

258Thus, the case-law on ‘essential facilities’ relates to situations in which that freedom to conclude contracts and, in particular, the free exercise of an exclusive right, being a right which rewards investment or innovation, may be limited in the interest of undistorted competition in the internal market, to the exclusion of any other conduct (see, to that effect, judgments of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 679, and of 10 November 2021, Google and Alphabet v Commission (Google Shopping), T‑612/17, under appeal, EU:T:2021:763, paragraph 215).

259In the present case, as the applicants rightly submit, Bulgargaz was not the owner of the Romanian Pipeline 1. Nevertheless, it is apparent from the file and from paragraph 14 above that, under the 2005 Agreement, Bulgargaz benefited from exclusive use of that infrastructure.

260In that regard, it should be noted, in the first place, that it is common ground between the parties that, during the infringement period, the Romanian Pipeline 1 was the only viable route for transporting Russian gas to Bulgaria (see paragraph 88 above). It was therefore an essential facility within the meaning of the judgment in Bronner (see paragraph 256 above).

261In the second place, as follows from paragraphs 143 and 144 above, the 2005 Agreement provided, first, that the Romanian Pipeline 1 was reserved for the exclusive use of Bulgargaz and, second, that Transgaz could not offer capacity on that pipeline to third parties without first obtaining Bulgargaz’s consent. Consequently, although Bulgargaz was not the owner of the Romanian Pipeline 1, the exclusive right enjoyed by it took the form, during the infringement period, of a situation of control and, therefore, of a dominant position on the market for capacity services on that pipeline in so far as third-party access to the Romanian Pipeline 1 was impossible without Bulgargaz’s consent.

262In that regard, it should be noted, as Advocate General Rantos did in his Opinion in European Superleague Company (C‑333/21, EU:C:2022:993, point 138), that, in accordance with the ‘essential facilities’ doctrine, a dominant undertaking which owns or controls an ‘essential infrastructure’ may be forced to cooperate with its competitors by giving them access to that infrastructure without any discrimination.

263In those circumstances, the nature of the exclusive right linking Bulgargaz to the infrastructure is irrelevant, since that exclusive right took the form of a situation of control over the Romanian Pipeline 1 which constituted an ‘essential facility’ within the meaning of the case-law cited in paragraph 256 above. Moreover, the applicants themselves expressly acknowledge that the case-law on ‘essential facilities’ applies to situations associated with the control of that facility, even though they consider, wrongly, that the status of owner is also required.

264Yet, the legal nature of the link between the dominant undertaking and the infrastructure or service which it controls cannot be a decisive factor in determining whether a refusal of access to an ‘essential facility’ by an undertaking in a dominant position constitutes an infringement of Article 102 TFEU.

265The Commission was therefore right to assess Bulgargaz’s conduct on the market for capacity services on the Romanian Pipeline 1 in the light, inter alia, of paragraph 41 of the judgment in Bronner.

266That conclusion is not invalidated by the recent judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12), delivered after the close of the oral part of the procedure in the present case, but which confirmed the General Court’s analysis in the judgment of 18 November 2020, Lietuvos geležinkeliai v Commission (T‑814/17, EU:T:2020:545). In that case, which concerned the removal of a railway track, the Court of Justice held that the destruction of an infrastructure by a dominant undertaking, a situation in which the infrastructure inevitably becomes unusable not only by competitors, but also by the dominant undertaking itself, must be distinguished from that of a refusal of access, as provided for in the case-law arising from the judgment in Bronner (judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C‑42/21 P, EU:C:2023:12, paragraphs 81 and 83).

267Against this background, it is true that the Court of Justice confirmed that the analysis in the light of the criteria arising from the judgment in Bronner was required in the event of a refusal of access to an infrastructure owned by the dominant undertaking and which it has developed for the needs of its own business by means of its own investments. It also concluded that the General Court had not erred in law in holding, in essence, that, having regard to their purpose, those criteria do not apply where, in a situation where the infrastructure has been destroyed, the infrastructure in question was financed by means not of investments specific to the dominant undertaking, but by means of public funds and that that undertaking is not the owner of that infrastructure (judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C‑42/21 P, EU:C:2023:12, paragraphs 86 and 87).

268However, that case-law does not preclude the application of the criteria arising from the judgment in Bronner in a situation such as that in the present case, where, first, as follows from paragraphs 261 to 263 above, although Bulgargaz was not the owner of the Romanian Pipeline 1, it enjoyed an exclusive right over it which took the form, during the infringement period, of a situation of control comparable to that of an owner and where, second, although it is true that Bulgargaz did not develop the Romanian Pipeline 1, the fact remains that, under the 2005 Agreement, it paid, in return for the use of that infrastructure, a fixed annual fee thus constituting its investment in relation to the exclusive right which had been granted to it by Transgaz.

269Therefore, the second part, alleging that the judgment in Bronner and the case-law arising from it concerning the refusal to grant access to an ‘essential facility’ can apply only to the undertaking which owns the property and controls it, must be rejected.…

(g)The seventh part, alleging the lack of probative value of the reservation of the entire capacity on the Romanian Pipeline 1

470The applicants dispute, in essence, the probative value of the reservation, for Bulgargaz, of the entire capacity of the Romanian Pipeline 1 in order to establish a refusal to supply, when no individual request for access to that pipeline was refused.

471The Commission disputes this part.

472As a preliminary point, it must be noted that the reservation of the entire capacity of the Romanian Pipeline 1, provided for in Article 17.1 of the 2005 Agreement, when Bulgargaz used only a limited part of the available capacity, is one of the factors on which the Commission relied in order to demonstrate:– first, and as confirmed in the analysis in the context of the third plea (see paragraphs 133 to 171 above), the existence of Bulgargaz’s dominant position on the market for capacity services on the Romanian Pipeline 1;– second, the existence of capacity hoarding on the Romanian Pipeline 1, which constituted Bulgargaz’s refusal to supply (see recital 534(a) of the contested decision); the Commission thus took the view that Bulgargaz should either have renounced the exclusivity stipulated for its benefit in the 2005 Agreement or should have offered the capacity of the Romanian Pipeline 1 on the secondary market in accordance with an objective, transparent and non-discriminatory procedure (see recitals 542, 563 and 564 of the contested decision).

473In the first place, according to settled case-law, a finding that an undertaking has a dominant position is not in itself a ground of criticism of the undertaking concerned. It is the abuse of such a dominant position that is prohibited by Article 102 TFEU (see judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 21 and the case-law cited).

474In that regard, it is for the Commission, in order to characterise such abuse, to identify how the undertaking in question, by using its dominant position, has had recourse to methods different from those governing normal competition, which have had the effect of hindering the maintenance of the degree of competition existing in the market or the growth of that competition (see judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 24 and the case-law cited).

475Thus, the contractual exclusivity granted to Bulgargaz by the 2005 Agreement, even though Bulgargaz used only part of the capacity of the Romanian Pipeline 1, cannot constitute an abuse of that applicant’s dominant position if the Commission has not proved that Bulgargaz’s conduct had, in fact, given it the ability to foreclose competitors from the Bulgarian gas supply markets, in particular within the meaning of the judgment in Bronner and the subsequent case-law concerning the refusal of access to an ‘essential facility’ cited in paragraphs 255 and 256 above.

476The facts show that Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1, provided for in Article 17.1 of the 2005 Agreement, did not prevent it, from the time of the first request for access to the unused capacity of that pipeline which it received on 23 November 2012, from granting Overgas that access, from 1 January 2013, and the Commission has not succeeded in demonstrating that that access was late or unsatisfactory and therefore that Bulgargaz’s conduct fell, in that regard, within the scope of Article 102 TFEU.

477Nor has the Commission established to the requisite legal standard that Bulgargaz abusively refused requests for access from other third parties. Thus:– it follows from paragraph 284 above that the Commission has neither demonstrated, nor even alleged, that Transgaz’s request of 24 January 2011 constituted a request for access to the Romanian Pipeline 1 seeking to allow that operator to enter the Bulgarian gas supply markets, which, moreover, the Commission acknowledged at the hearing; according to the case-law, the applicants were therefore not required to respond favourably to that request (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 42, 43 and 46);– the Commission also conceded that it had no proof that Transgaz had forwarded to Bulgargaz individual requests for access to the Romanian Pipeline 1 from third parties, in particular those sent to it by Overgas in 2010;– nor has the Commission established that C Energy Group’s request of 26 September 2013 was sufficiently precise and serious so as to constitute a request for access to the Romanian Pipeline 1, to which Bulgargaz was required to respond (see analysis of the sixth part above).

478Furthermore, the Commission could not rely on the assumption that, due to Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1, third parties refrained from submitting requests for access to that capacity (see recital 278 and the end of recital 537 of the contested decision). It has not adduced any evidence establishing that they refrained from doing so and, therefore, has not discharged its burden of proof. It should also be noted that, under Article 17.3 of the 2005 Agreement, the latter and its content were confidential and that the Commission has failed to demonstrate that, despite that confidentiality clause, third parties could have been aware of the exclusivity clause that was set out in the 2005 Agreement for the benefit of Bulgargaz. In any event, even if the third parties did refrain from making a request, since those third parties did not, by definition, make any request in that regard, Bulgargaz cannot be criticised for refusing access due to not replying to requests which were never sent to it.

479In the second place, the Commission found that the part of the infringement relating to the Romanian Pipeline 1 continued only until 1 January 2015, that is to say, up until the date from which Bulgargaz, in the Commission’s view, granted third parties satisfactory access to that pipeline (see recital 651 of the contested decision).

480It must be stated that, on that date, the provisions of the 2005 Agreement granting Bulgargaz exclusive use of the Romanian Pipeline 1 were still in force. It was not until 30 September 2016 that that contractual exclusivity ended, when the 2005 Agreement was terminated, that is to say, one year and nine months after the end of the infringement period. Consequently, the Commission itself has implicitly accepted that the existence of that contractual right of exclusivity was not decisive.

481In that context, the evidence relating to Bulgargaz’s reservation of the entire capacity of the Romanian Pipeline 1 under the 2005 Agreement, even though Bulgargaz used only part of it, is insufficient to establish the alleged abuse on the market for the capacity of that pipeline.

482The seventh part must therefore be upheld.

(h)The eighth part, alleging that the discussions relating to the renegotiation of the 2005 Agreement have no probative value

483The applicants, supported by the Republic of Bulgaria, dispute the probative value of the discussions relating to the renegotiation of the 2005 Agreement. In that regard, the contested decision incorrectly establishes that those intergovernmental discussions constituted a refusal to grant access to the Romanian Pipeline 1 and that Bulgargaz had not acted constructively during the negotiations relating to the 2005 Agreement. In that regard, they put forward three complaints:– the intergovernmental nature of the renegotiation of the 2005 Agreement;– the constructive nature of their conduct during the negotiations;– the fact that they are not responsible for the duration of those negotiations.

484The Commission disputes this part.

(1)The first complaint, regarding the intergovernmental nature of the renegotiation of the 2005 Agreement

485The applicants, supported by the Republic of Bulgaria, submit that the discussions on the renegotiation of the 2005 Agreement were initiated and took place at intergovernmental level, involving the governmental and regulatory authorities of the Republic of Bulgaria and Romania. Those discussions cannot therefore be imputed to Bulgargaz. The applicants rely on three elements in that regard:– the fact that the 2005 Agreement stemmed from the 2003 Intergovernmental Agreement;– the fact that the purpose of the renegotiation of the 2005 Agreement was to resolve the concerns raised in the infringement proceedings against Romania;– the central nature of the security of gas supply in Bulgaria and Bulgargaz’s role as a public supplier in the renegotiation of the 2005 Agreement.…

(iii)The central nature of the security of gas supply in Bulgaria and the role of Bulgargaz, as a public supplier, in the renegotiation of the 2005 Agreement

529The applicants submit that, in the context of the renegotiation of the 2005 Agreement, Bulgargaz acted as a public supplier of last resort, entrusted with a service of general economic interest and, as such, was required to ensure gas supply throughout Bulgaria. According to the applicants, the proposal for Transgaz’s guarantee of a minimum capacity of [3-4] billion cubic metres (out of a total capacity of 7.4 billion cubic metres) per year on the Romanian Pipeline 1 met Bulgargaz’s public supply obligations.

530In that regard, it is apparent from the draft memorandum of understanding that the renegotiation of the 2005 Agreement was to lead, first, to the removal of Bulgargaz’s exclusive right to use the Romanian Pipeline 1 and, second, to the amendment of the fixed annual fee paid to Transgaz under that agreement, in order to address the Commission’s concerns raised in the infringement proceedings against Romania.

531At the meeting of 10 October 2012, Bulgargaz put forward the proposal for the guarantee of a minimum capacity of [3-4] billion cubic metres per year, while indicating to Transgaz that, in return, it was prepared to release the remaining available capacity (see recital 297(h) of the contested decision and paragraph 468 above).

532It was then agreed, at the meeting of 9 December 2013 between Bulgargaz, Transgaz and the regulatory and governmental authorities of the Republic of Bulgaria and Romania, to decide on the approach to be taken to request the Commission to approve the proposal for the guarantee of a minimum capacity. The parties agreed on a series of actions to progress the negotiations. Thus:– Bulgargaz was to send a letter to Transgaz detailing its proposal and stating that it gave its consent for the capacity on the Romanian Pipeline 1 to be released, apart from the amount that it had requested to be reserved;– the Bulgarian regulator was to send a letter to Transgaz supporting the proposed amendment of the 2005 Agreement and was to state the reasons justifying the proposal for the guarantee of a minimum capacity;– the Bulgarian Ministry of Economy, Energy and Tourism was to send a letter to Transgaz setting out the reasons justifying the preservation of the 2005 Agreement until the end of 2016.

533Following that meeting, by its letter of 14 December 2013 referred to in paragraph 525 above, Bulgargaz informed Transgaz that it agreed to return to it the unused capacity on the Romanian Pipeline 1 on condition that the ‘transit service price’, namely the fixed annual fee stipulated in the 2005 Agreement, be modified. Bulgargaz therefore proposed that they discuss the amendment of the exclusivity clause provided for in Article 17.1 of the 2005 Agreement, as well as the fixed annual fee. It also indicated that, if Transgaz accepted its proposal, it would be prepared to sign an amendment agreement.

534On 13 January 2014, the Deputy Minister of Economy of the Republic of Bulgaria sent a letter to his Romanian counterpart, setting out the reasons why the 2005 Agreement was important for the country’s security of gas supply (‘the Bulgarian ministerial letter’), which stated the following:‘Natural gas supplies to Bulgaria are secured primarily through imports from a single source (the Russian Federation) along a single route (through the territories of Ukraine, Moldova and Romania), on the basis of long-term contracts. Currently, alternative sources and routes are not available yet, interconnections with the gas transmission systems of the neighbouring countries lack to a large extent, while gas storage capacities and especially daily withdrawal rates are insufficient. Those factors determine the risks as regards security of supplies, which was demonstrated during the gas [crisis] of January 2009 when Bulgaria was the most affected EU [Member State]. The single external source and the long-term supply contracts impact the low degree of liberalisation of the gas market in the country and determine the important role of the public provider [Bulgargaz].The calculations using the N-1 formula for the infrastructure standard, according to Article 6 of Regulation (EU) No 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply, show that in the event of disruption of the single largest gas infrastructure (from Russia through Ukraine, Moldova and Romania), the capacity of the remaining infrastructure (reverse flow from Greece and increased domestic gas production and withdrawal from Chiren Underground Gas Storage) will not be able to supply the required volume of gas to satisfy total gas demand on the territory of Bulgaria for a day of exceptionally high gas demand occurring with a statistical probability of once in 20 years …’

535Thus, the Bulgarian ministerial letter shows that the proposal for the guarantee of a minimum capacity was justified by Bulgaria’s very high dependence on gas from Russia in order to ensure security of supply in its territory and, therefore, on access to the Romanian Pipeline 1, which was the only network capable of transporting that gas to Bulgaria.

536The letter which the Bulgarian regulator sent to the Romanian regulator on 16 January 2014 emphasised that Bulgargaz was almost entirely dependent, upstream, on a single gas supplier, namely Gazprom and its subsidiaries Overgas and Wintershall Erdgas Handelshaus Zug (‘WIEE’), and that the 2005 Agreement was thus ‘exceptionally important’ for the security of supply in the Republic of Bulgaria.

537On 13 January 2014, Transgaz replied to Bulgargaz’s letter of 14 December 2013 referred to in paragraph 525 above, pointing out that EU law and the orders published by the Romanian regulator in 2012 required that all the capacity on the Romanian Pipeline 1 be offered to the market and allocated in a transparent manner. However, given the circumstances associated with the security of gas supply in Bulgaria as well as the close cooperation between the Republic of Bulgaria and Romania, Transgaz accepted the solution to offer only Bulgargaz’s unused capacity to the market, subject to the Commission’s approval in that regard.

538Transgaz thus stated that Bulgargaz’s proposal to be reserved part of the capacity of the Romanian Pipeline 1 indeed derogated from the applicable regulatory framework, which required the TSO to offer at auction the entire capacity of that pipeline on the market, but that, in the light of the close cooperation of the Republic of Bulgaria with Romania, it accepted the proposal because it considered that it was justified by the security of gas supply in Bulgaria.

539It is apparent from the discussions referred to in paragraphs 531 to 538 above that the security of gas supply in Bulgaria, and the importance of the Romanian Pipeline 1 in that regard, were a central concern in the renegotiation of the 2005 Agreement, which explains the high degree of involvement of the Bulgarian authorities in those discussions.

540The applicants’ third argument is therefore well founded.…

(i)Conclusions on the first ‘sub-plea’

688It follows from all the considerations set out above that the only parts of the first ‘sub-plea’ that must be rejected are the first, alleging an error of law in that Article 102 TFEU was applied to a bilaterally agreed contractual clause, the second, alleging an error of law in that an abusive refusal to supply was imputed to Bulgargaz, who was merely a user of the Romanian Pipeline 1, and the fourth, alleging an inadequate statement of reasons in the contested decision concerning the inclusion, in the infringement, of a restriction on Overgas gaining access to the Romanian Pipeline 1.

689By contrast, in so far as it follows from the analysis of the other parts that the Commission has not adduced firm, precise and consistent evidence, within the meaning of the case-law referred to in paragraph 227 above, to establish to the requisite legal standard that the conduct alleged against Bulgargaz concerning access to the Romanian Pipeline 1 constituted a refusal of access capable of falling within the scope of Article 102 TFEU, those parts and, therefore, the first ‘sub-plea’ must be upheld.…

5. Conclusion on the fourth plea

1106It follows from the foregoing that the Commission has not established to the requisite legal standard that there was a refusal to grant access to the three infrastructures held by the BEH Group that was capable of falling within the scope of Article 102 TFEU as regards:– first, Bulgargaz’s conduct in relation to access to the Romanian Pipeline 1 between 31 January 2011 and 1 January 2015 (see the third and the fifth to eighth parts of the first ‘sub-plea’, and the conclusions drawn in paragraph 689 above);– second, Bulgartransgaz’s conduct in relation to access to the transmission network between 30 July 2010 and 1 January 2015 (see the fifth part of the second ‘sub-plea’ and the conclusions drawn in paragraph 954 above);– third, Bulgartransgaz’s conduct in relation to access to the Chiren storage facility before 5 June 2012 (see paragraphs 1092 to 1100 above).

1107By contrast, the information in the file demonstrates that Bulgartransgaz’s conduct regarding access to the Chiren storage facility was capable of restricting competition on the Bulgarian gas supply markets between 5 June 2012 and 19 September 2014 (see paragraphs 1101 to 1104 above).

1108That being so, it should be noted that the system of judicial review of Commission decisions regarding infringements which it finds under Article 102 TFEU consists in a review of the legality in accordance with Article 263 TFEU (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42).

1109In reviewing the legality of acts under Article 263 TFEU, the EU judicature cannot substitute its own reasoning for that of the author of the act in question (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited). As Advocate General Kokott observed in her Opinion in Frucona Košice v Commission (C‑73/11 P, EU:C:2012:535, point 92), the prohibition of a substitution, by the EU judicature, of the reasoning of the author of the contested act reflects the cassatory nature of the action for annulment, which is based on the principle of institutional balance which characterises the structure and functioning of the European Union. Observance of that institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions.

1110Thus, although the Commission has the power to adopt decisions applying Article 102 TFEU, the EU judicature has jurisdiction under Article 263 TFEU, inter alia, to review the legality of the reasoning of those decisions, without being able, in principle, to substitute its own reasoning for that of the Commission or to supplement the Commission’s reasoning.

1111In that regard, it should be noted that the statement of reasons for the contested decision is based on two fundamental pillars, namely, first, the anticompetitive strategy implemented by the applicants aimed at protecting Bulgargaz’s dominant position on the Bulgarian gas supply markets and, second, the concept of a ‘single and continuous infringement’.

1. The anticompetitive strategy

1112The contested decision found that the applicants’ conduct in relation to the Romanian Pipeline 1, the transmission network and the Chiren storage facility, which consisted of preventing, restricting and delaying access to each of those infrastructures, formed part of an anticompetitive strategy aimed at protecting Bulgargaz’s dominant position on the Bulgarian gas supply markets by foreclosing third-party access to those markets (see recital 389, recital 454(b) and recitals 467, 569, 572 and 643). According to the Commission, that strategy was designed by BEH and implemented by its subsidiaries Bulgargaz and Bulgartransgaz (see recital 570 of that decision).

1113In that regard, in recital 567 of the contested decision, the Commission explained that, given the fragmented nature of the practices at issue, in order to prove that overall strategy, it relied on a body of evidence demonstrating:– the consistency of the infringement over time;– the comparable nature and complementarity of the practices in question;– the common standard of the applicants’ conduct relating to each infrastructure, consisting of the ability to foreclose the competitors from the Bulgarian gas supply markets.

1114Thus, the Commission observed, first, that those practices, consisting of capacity hoarding on the Romanian Pipeline 1 and preventing, restricting and delaying access to the transmission network and to the Chiren storage facility ‘complemented and mutually reinforced each other’ (see recital 577 of the contested decision).

1115Second, the Commission emphasised that ‘the practices were explicitly interlinked, by making access to the … transmission network (controlled by Bulgartransgaz) conditional upon third-party access to the Romanian Transit Pipeline (controlled by Bulgargaz and subject to authorisation by BEH)’ (see recital 577 of the contested decision). In that regard, it must be noted that the Commission concluded that Bulgartransgaz’s requirement that proof be provided as to reserved capacity on the Romanian Pipeline 1 operated by Bulgargaz, which belonged to the same group of undertakings, had ‘made … access [to the transmission network] de facto impossible until 2013’ (see recitals 475 and 480 of the contested decision).

1116Third, the Commission stated that the transmission network was the only infrastructure capable of transporting gas to the Chiren storage facility and that, therefore, access to that network was required in order to obtain access to the storage. It also found that the ability to access that facility during the infringement period was ‘indirectly linked to the ability to access the Romanian Transit Pipeline 1[, which] … was the only route bringing gas to the … Tran[s]mission Network during [that] period’ (see recital 578 of the contested decision).

1117The Commission therefore concluded that Bulgartransgaz and Bulgargaz had been ‘able to influence and jointly contribute to the prevention, restriction and delay of third-party access to the infrastructure owned or controlled by the BEH group’ (see recital 579 of the contested decision). It also stated, first, that Bulgargaz and Bulgartransgaz coordinated their behaviour in relation to third-party access requests, while dealing with each other as entities within an integrated undertaking, and, second, that BEH was directly involved in all the practices at issue (see recital 579 of that decision).

2.A single and continuous infringement

1118The Commission concluded that the applicants had committed a single and continuous infringement of Article 102 TFEU between 30 July 2010 and 1 January 2015 by refusing third-party access to the Romanian Pipeline 1, the transmission network and the Chiren storage facility, which had resulted in foreclosure of the Bulgarian gas supply markets (see Articles 1 and 2 and recitals 1, 2 and 450 of the contested decision).

1119According to the case-law, the concept of a ‘single and continuous infringement’ relates to a series of actions which form part of an overall plan because their identical object distorts competition within the internal market. For the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they complement each other inasmuch as each of them is intended to deal with one or more consequences of the normal pattern of competition and, by interacting, contribute to the realisation of the objectives intended within the framework of that overall plan. In that regard, it will be necessary to take into account any circumstance capable of establishing or casting doubt on that complementary link, such as the period of application, the content (including the methods used) and, correlatively, the objective of the various actions in question (judgments of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 89; of 1 July 2010, AstraZeneca v Commission, T‑321/05, EU:T:2010:266, paragraph 892; and of 8 September 2016, Arrow Group and Arrow Generics v Commission, T‑467/13, not published, EU:T:2016:450, paragraph 384).

1120In the present case, in order to demonstrate that all of the applicants’ practices constituted a single and continuous infringement, in recitals 608, 609 and 614 of the contested decision, the Commission relied, in essence, on the fact that they formed part of a ‘comprehensive and long-term plan to foreclose [Bulgarian] gas supply markets … to the benefit of Bulgargaz’.

1121In that regard, first, the Commission again stated that Bulgargaz itself had the ability to foreclose its competitors and to restrict the possibility of viable competition on the Bulgarian gas supply markets by hoarding capacity on the Romanian Pipeline 1 (see recitals 611 and 624 of the contested decision).

1122Second, the Commission stated that ‘the BEH group’s three practices’ linked, respectively, to the three infrastructures which it controlled ‘complemented and mutually reinforced each other and were implemented with the single aim of foreclosing the [Bulgarian] gas supply markets’ (see recital 612 of the contested decision). It found, in that regard, that access to the transmission network and, therefore, to the Chiren storage facility was conditional upon first obtaining access to the Romanian Pipeline 1, which was, during the infringement period, the only available infrastructure for the transportation of gas through that network and, therefore, to that storage facility (see recitals 51, 578 and 611 of the contested decision).

1123Therefore, as is apparent from recitals 578 and 611 of the contested decision and as the Commission states, moreover, in its defence, ‘without access to the Transit Pipeline 1, (potential) competitors had no access to the transmission network, and consequently also [no access] to the [Chiren] storage facility’.

1124Third, the Commission reiterated that Bulgargaz and Bulgartransgaz coordinated with each other regarding the examination of access requests by third parties and dealt with each other as entities within an integrated undertaking (see recitals 579 and 612 of the contested decision).

1125Fourth, the Commission found, once again, that the practices complained of were also ‘explicitly interlinked’ in so far as ‘access to the … transmission network (controlled by Bulgartransgaz) [was] conditional upon third-party access to the Romanian Transit Pipeline 1 (controlled by Bulgargaz) and subject to authorisation by BEH’ (see recital 612 of the contested decision). It emphasised that, even after January 2012, BEH had retained control over Bulgartransgaz, since access to the transmission network, and thereby, indirectly, access to the Chiren storage facility, was conditional upon first obtaining, from Bulgargaz, access to the Romanian Pipeline 1, which itself was subject to BEH’s prior approval (see recital 611 of the contested decision).

1126According to the Commission, the link between those practices enabled:– first, the three applicants to influence each others’ behaviour with the result that, together, they contributed to preventing, restricting and delaying third-party access to the infrastructures owned or controlled by the BEH Group;– second, the BEH Group to coordinate its behaviour in a consistent manner by applying similar methods (see recital 612 of the contested decision).

1127It follows from all the considerations set out in paragraphs 1112 to 1126 above that:– neither in the grounds of the contested decision, nor even less in the operative part of that decision, did the Commission impute to the applicants a number of separate infringements, each of which was allegedly linked, respectively, to one of the infrastructures in question;– the anticompetitive strategy of which the applicants are accused is a key constituent element of the single and continuous infringement imputed to them by the contested decision; they are accused of having contributed to the implementation of that strategy, which was based on the interdependence of the conduct relating to each of the three gas infrastructures in question and had the sole objective of foreclosing the Bulgarian gas supply markets in order to protect Bulgargaz’s dominant position on those markets;– the Commission stated, on several occasions, in the contested decision, that Bulgargaz’s actions concerning the Romanian Pipeline 1 were essential, and sufficient on their own, to foreclose the access of its potential competitors to those markets.

1128It follows that the allegedly abusive conduct relating to the Romanian Pipeline 1 is the linchpin on which the Commission’s analysis and the statement of reasons for the contested decision are based as regards the constituent elements of the single and continuous infringement identified.

1129In that context, the fact that Bulgartransgaz hindered company C’s access to the Chiren storage facility in June 2012 and Overgas’ access between 1 January 2013 and mid-2014 (see paragraphs 1101 to 1104 above) and that that conduct had, by itself, the ability to produce anticompetitive effects on the Bulgarian gas supply markets cannot, by itself, justify the finding, in the contested decision, that there was a single and continuous infringement of Article 102 TFEU imputable to the applicants.

1130It should be noted that Articles 1 and 2 of the contested decision find that the applicants committed ‘a single and continuous infringement of Article 102 [TFEU] [in that they refused] third-party access to the … transmission network, the Romanian … Pipeline 1 and [the] Chiren [storage facility] resulting in foreclosure of the gas supply markets in Bulgaria’ from ‘30 July 2010 … until 1 January 2015’.

1131Therefore, in the light of all the forms of conduct alleged against the applicants in the contested decision and the emphasis placed by that decision on their interdependence, complementarity and mutual reinforcement, it cannot be inferred from the operative part of the contested decision that the operative part is based on a number of grounds concerning separate forms of abusive conduct each of which would, in itself, be sufficient to justify the operative part.

1132According to the settled case-law cited in paragraphs 234 and 1109 above, in the context of a review of legality under Article 263 TFEU, the EU judicature cannot substitute its own reasoning for that of the author of the act at issue. In the present case, the finding, in the operative part of the contested decision, that there was a single and continuous infringement imputable to the applicants, indicating the nature and scope of that infringement of EU competition rules and which is inseparable from the statement of reasons for that decision, encompasses all of the applicants’ forms of conduct relating to the three gas infrastructures in question. As noted in paragraphs 1113 and 1131 above, the characterisation of the single and continuous infringement is based on the complementarity and interdependence of the number of forms of conduct.

1133In those circumstances, the sole ground relating to Bulgartransgaz’s conduct concerning the Chiren storage facility after June 2012 cannot, without distorting the contested decision by substituting a new assessment of the facts for that of the Commission contrary to the case-law cited in paragraph 1109 above, constitute the essential, or even sufficient, statement of reasons capable by itself of justifying the operative part of that decision.

1134It follows from the foregoing that the Commission has not established to the requisite legal standard the infringement in the form of an abuse of a dominant position imputed to the applicants by the contested decision.

1135The fourth plea must therefore be upheld, and there is no need to examine the other ‘sub-pleas’ raised by the applicants.

D. The first plea, alleging substantive procedural defects affecting the exercise of the applicants’ rights of defence and breach of the principle of good administration…

1. The first and second parts, alleging infringement of the obligations to record and place on the file the documents relating to the Commission’s meetings with Overgas, and alleging insufficient access to those documents

1142During the administrative procedure, the Commission organised a total of eight meetings with Overgas:– the first five took place before the statement of objections was communicated to the applicants, more specifically on 13 October 2010, on 13 January, 17 March and 15 December 2011 and on 17 June 2013 (‘the meetings of 2010 to 2013’);– the remaining three meetings took place after the adoption of the statement of objections, more specifically on 13 October 2015 and on 17 March and 20 October 2016 (‘the meetings of 2015 and 2016’ and, together with the meetings of 2010 to 2013, ‘the meetings with Overgas’).

1143The Commission states that, after each of those eight meetings with Overgas, it drew up non-confidential brief notes as well as confidential detailed minutes. At the hearing, the Commission admitted that it could not indicate precisely the date on which the latter documents were drawn up, but that, because of their degree of detail, it assumed that those documents had been drafted just after each meeting.

1144In addition, following each of those meetings with the Commission, with the exception of those of 13 October 2015 and 17 March 2016, Overgas submitted written observations (‘the follow-up observations’), in which it developed the arguments raised during those meetings.

1145It is also apparent from the file that the applicants first of all had access, inter alia, to the brief notes of the meetings of 2010 to 2013 and to a non-confidential version of the follow-up observations in the context of the access to the file following the statement of objections. On 5 January 2018, following the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632), which clarified the Commission’s obligations to keep records and to keep the file in proceedings initiated to penalise infringements of competition rules, they put forward a new request for, inter alia, access to the detailed minutes and notes of any other meeting between the Commission and Overgas.

1146On 23 March 2018, the Commission replied, admitting that it had had three meetings with Overgas after the statement of objections, namely the meetings of 2015 and 2016; it sent the brief notes of those meetings to the applicants at that point. However, it refused access to the detailed minutes on the ground that, on the one hand, they contained confidential information and, on the other hand, no evidence could be found in those detailed minutes that was not already present in the other non-confidential documents to which the applicants had had access, given that they had also had access to the follow-up observations.

1147The applicants therefore sent their access request to the Hearing Officer who, in his response of 14 May 2018, stated that he considered that the refusal to disclose the detailed minutes was justified on grounds of confidentiality and that those documents did not contain any additional exculpatory evidence. However, in order to balance the effective exercise of the applicants’ rights of defence with Overgas’ legitimate confidentiality concerns, the Hearing Officer proposed limited access to the detailed minutes of the meetings with Overgas, through the applicants’ external representatives, in the context of a data room procedure.

1148In addition, by letter of 18 June 2018 (‘the letter of 18 June 2018’), the applicants requested the Commission to give them access to a less redacted version of the follow-up observations, which the Commission refused.

1149On 28 June 2018, the applicants’ external representatives obtained access to the detailed minutes of the meetings with Overgas, in the context of a data room procedure. In line with the instructions given by the Commission, the applicants’ external representatives were able to take into the data room hard copies of the statement of objections, the Letter of Facts, the brief notes of the meetings with Overgas and the non-confidential versions of the follow-up observations.

1150On that occasion, the applicants’ external representatives drafted the confidential data room report in which they expressed their views on the information which they regarded as exculpatory evidence in the detailed minutes. A non-confidential version of that report (‘the non-confidential data room report’) was drawn up under the supervision of the Commission and communicated to the applicants. The representatives were able to use the information made available to them in the data room for the purposes of defending the applicants, however the representatives could not disclose any confidential information (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 20 to 22).

1151In the context of the first two parts of their first plea, the applicants put forward, in essence, two sets of arguments:– the first targets the procedure for the recording and placing of the brief notes and detailed minutes on the file;– the second concerns the access granted to the detailed minutes and follow-up observations.

1152For the purposes of the analysis, it must first be ascertained whether the Commission did in fact commit the procedural errors alleged by the applicants; if so, it will then be necessary to examine the consequences of such errors on their rights of defence, and in particular to ascertain whether, in the light of the factual and legal circumstances specific to the present case, the applicants have adequately demonstrated that they would have been better able to ensure their defence had there been no procedural error on the part of the Commission (judgments of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraph 31; of 13 December 2018, Deutsche Telekom v Commission, T‑827/14, EU:T:2018:930, paragraph 129; and of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358, paragraphs 160 and 202).

2. The existence of procedural defects

1153As a preliminary point, it should be noted that access to the file, provided for in Article 27(2) of Regulation No 1/2003 and in Article 15(1) and (2) of Regulation No 773/2004, is one of the procedural safeguards enabling the principle of equality of arms to be applied and the rights of defence of the parties concerned by the procedure conducted by the Commission to be protected. They are entitled to have access to the investigation file, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information.

1154The right of access to the file means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (see judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 54 and the case-law cited).

1155The scope of the right of access to the file as an integral part of the rights of the defence has been the subject of recent case-law which has further clarified the contours of the Commission’s obligations, in particular as regards its recording obligations (see, to that effect, judgments of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632; of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358; and of 14 September 2022, Google and Alphabet v Commission (Google Android), T‑604/18, under appeal, EU:T:2022:541).

1156In that regard, it must be noted that Article 19(1) of Regulation No 1/2003 provides that, in order to carry out the duties assigned to it, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation. That provision therefore constitutes the legal basis empowering the Commission to conduct an interview in the context of an investigation and is intended to apply to any interview conducted for the purpose of collecting information relating to the subject matter of an investigation (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 84 and 86).

1157When it conducts such an interview, the Commission is, under Article 3 of Regulation No 773/2004, required to record, in a form of its choosing, the statements made by the persons interviewed (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 90 and 91).

1158Thus, whilst it is, admittedly, permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation, it cannot be for the Commission alone to determine the evidence of use in the defence of the undertaking concerned (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 126, and of 16 June 2011, FMC Foret v Commission, T‑191/06, EU:T:2011:277, paragraph 306).

1159From that point of view, interviews conducted for the purposes of collecting information on the subject matter of the investigation, which therefore fall within the scope of Article 19 of Regulation No 1/2003, must be recorded and cannot be omitted from the file (see, to that effect, judgment of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358, paragraph 199).

1160Furthermore, the Commission’s obligation, under Article 3 of Regulation No 773/2004, to record, in a form of its choosing, the statements made by the persons interviewed during an administrative investigation, cannot be given concrete expression in the drafting of a brief summary of the subjects addressed during the interview. The Commission must be in a position to provide an indication of the content of the discussions that took place, in particular as regards the nature of the information provided during the interview on the subjects raised (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 92).

1161It is in the light of those principles that it is necessary to examine the applicants’ arguments alleging that the Commission failed to fulfil its obligations to record, to place in the file and to grant access to that file.

(a)The first complaint, alleging a failure properly to record and include in the file the statements made during the meetings with Overgas

1162The applicants, supported by the Republic of Bulgaria, claim that the way in which the Commission recorded or failed to record its meetings with Overgas, and the way in which it included in the file the statements made during those meetings, is contrary to the recording obligations under Article 19 of Regulation No 1/2003, read in conjunction with Article 3 of Regulation No 773/2004. In that way, the Commission also infringed the principles of good administration and transparency as well as the applicants’ rights of defence. As a consequence, the Court cannot exercise its power of review.

1163It is necessary, in that regard, to distinguish between, on the one hand, the arguments relating to the meetings with Overgas from 2010 to 2013 and, on the other, those relating to the meetings of 2015 and 2016.

1164The Court considers that it is appropriate to begin by analysing the arguments concerning the meetings of 2015 and 2016.

(1)The meetings of 2015 and 2016

1165The applicants submit that:– no records of the meetings of 2015 and 2016 were added to the file during the investigation;– the Commission acknowledged the existence of those meetings and of the detailed minutes relating to those meetings only in response to a request by the applicants of 5 January 2018, following which access to brief notes was granted on 23 March 2018.

1166The Commission states that, as soon as the applicants asked whether it had had any other meetings with Overgas after the statement of objections, the Commission informed them of the meetings of 2015 and 2016, and sent them the brief notes relating to those meetings.

1167In that regard, the Commission submits that, under paragraph 27 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101 and 102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7), a party will be granted access to documents received after notification of the objections at later stages of the administrative procedure, only where such documents may constitute new evidence, whether of an incriminating or of an exculpatory nature, pertaining to the allegations concerning that party in the statement of objections.

1168According to the Commission, the documents relating to the meetings of 2015 and 2016 constituted neither the basis of the objections addressed to the applicants, nor new evidence as regards the allegations already made and, therefore, it was under no obligation to include the brief notes or the detailed minutes of the meetings of 2015 and 2016 in the file and to give access to them. Moreover, it was for the Commission alone to assess the potentially exculpatory nature of those documents.

1169However, it is apparent from the brief notes and the detailed minutes that the meetings of 2015 and 2016 were aimed at gathering information relating to the subject matter of the investigation which led to the adoption of the contested decision.

1170From that perspective, in the light of the case-law cited in paragraphs 1157 and 1159 above, interviews aimed at gathering information on the subject matter of the investigation and therefore falling within the scope of Article 19 of Regulation No 1/2003, such as the interviews in question, must be recorded and cannot be omitted from the investigation file.

1171It is true that the possibility of drawing a distinction between documents relevant to the investigation and those which are not and, consequently, the possibility of excluding the latter from the investigation file remains essential in order to prevent the Commission from being exposed to an excessive procedural burden. Nevertheless, it is not for the Commission to exclude material from the file by exercising its supposed discretion as to the potentially incriminatory or exculpatory nature of those documents, since the absence of any written record of an interview would prevent the Court from verifying whether the Commission complied with the provisions of Regulation No 1/2003 and, more generally, whether the rights of the undertakings and natural persons involved in an investigation have been fully respected.

1172Furthermore, the recording obligation laid down in Article 3 of Regulation No 773/2004 would be deprived of any practical effect if the Commission were allowed to exclude, on its own initiative, the recording of certain meetings, particularly since, in the circumstances of the present case, the interviews took place with Overgas, who played a not-insignificant role in the Commission’s decision to open and continue the investigation and who alleged that the applicants had engaged in anticompetitive practices in respect of Overgas.

1173It follows that the Commission’s arguments based on the absence of an obligation to record and place on the file the minutes of the meetings of 2015 and 2016 which took place with Overgas after the statement of objections was issued cannot succeed.

1174Lastly, in so far as the applicants submit that the Commission failed to inform them of the meetings of 2015 and 2016, it must be noted that, during the administrative procedure which led to the adoption of the contested decision, the Commission did not actually refer to the interviews which it had had with Overgas after the statement of objections.

1175As follows from paragraphs 1157 and 1159 above, the Commission cannot fail to include in the investigation file a record of interviews such as the meetings of 2015 and 2016 and, consequently, cannot fail to inform the parties of those meetings.

1176It follows that the applicants’ arguments relating to the Commission’s failure to fulfil its obligations regarding the meetings of 2015 and 2016 are well founded, in so far as the Commission should have recorded the statements made during those meetings, should have placed in the file the documents relating to those meetings, and should have updated the index of the file to enable the applicants to be informed of the interviews in question, subject to the protection of the confidentiality of certain information legitimately claimed by Overgas.

1177The Commission therefore made a procedural error by failing properly to record the statements made during the meetings of 2015 and 2016 and to place them on the file, and by failing to inform the applicants of those meetings.

(2)The meetings of 2010 to 2013

1178The applicants:– criticise the Commission for not properly recording the meetings of 2010 to 2013, since it included only the brief notes in the file, which contained only vague and general summaries; furthermore, the brief notes were placed in the file only several years after those meetings were held, in 2014, which may have weakened their accuracy;– complain that it was not until 2018 that they discovered that there were detailed minutes in relation to the short notes, which were not in the file; they claim that the Commission could not explain why those minutes had been kept outside the file.

1179Those failures are also reflected in the index of the investigation file, provided after the adoption of the statement of objections, which did not list in sufficient detail the documents gathered during the investigation and failed to indicate, in particular, the detailed minutes of the meetings with Overgas.

1180The Commission argues in response that there is no requirement that evidence be placed on the file and included in the index relating to the time when the meetings took place and when the relevant notes were drawn up. It claims that, in any event, the contested decision is not based either on the brief notes or on the detailed minutes of the meetings in question.

1181The Commission also maintains that, as a result of the access given to the brief notes of the meetings of 2010 to 2013 after the statement of objections, the applicants were indeed in a position to exercise their rights of defence, which they did by submitting their responses to that statement as well as subsequent observations in which they relied, as mitigating circumstances, on certain elements referred to at those meetings. It also submits that the follow-up observations submitted by Overgas, which developed the points raised during those meetings, were placed on the file and disclosed to the applicants.

1182In that regard, it must be stated that the brief notes of the meetings with Overgas to which the applicants had access take up, for each meeting, less than half a page. Each half-page contains an indication of the date of the meeting, the participants and the topics discussed during the meeting, described in no more than five to eight lines.

1183The content of the brief notes is thus manifestly insufficient to reflect the content of the discussions that actually took place between the Commission and Overgas and, in particular, the nature of the information provided by Overgas on the topics addressed.

1184There is nothing in the wording of Article 19(1) of Regulation No 1/2003, or in the objective it pursues, to suggest that the legislature intended to introduce a distinction between, on the one hand, ‘brief notes’, finalised for the purposes of access to the file, and ‘detailed minutes’, intended to remain confidential. Such an interpretation would be tantamount to depriving the right of access to the file of all practical effect, as referred to in paragraph 1153 above, as well as the principle of equality of arms.

1185In that regard, the fact, referred to by the Commission, that the contested decision is not based either on the brief notes or on the detailed minutes, is irrelevant. The right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68).

1186It follows that, as regards the brief notes of the meetings of 2010 to 2013, the Commission did not comply with its obligations under Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004 and in the light of the case-law cited in paragraphs 1157 and 1159 above. That failure to fulfil obligations was demonstrated, first, by the introduction of an unjustified distinction between two types of document, namely the detailed minutes, intended for internal use, and the brief notes, intended for the file and thus to be accessed by the applicants, and, second, by the manifest inadequacy of those notes in terms of setting out the content of the discussions between the Commission and Overgas, in particular the nature of the information provided by the latter on the topics addressed, as required by the case-law cited in paragraph 1160 above.

1187However, the Court considers that the lapse of time between the meetings of 2010 to 2013 and the inclusion in the file, which was not until 2014, of the brief notes relating to those meetings does not support the conclusion, by itself and in the absence of other evidence or, at least, clear indicia, that the Commission failed to fulfil its obligations as regards access to the file.

1188In the first place, despite the late inclusion, in the file, of the brief notes of the meetings with Overgas, the applicants had the opportunity to take those notes into account and to exercise their rights of defence, not only by submitting their response to the statement of objections, but also and above all, as follows from paragraph 1147 above, by submitting arguments to the Hearing Officer regarding their request for access to the detailed minutes, which gave rise to the grant of access in the context of a data room.

1189In the second place, as regards the argument concerning the alleged lack of accuracy of the brief notes of the meetings of 2010 to 2013, based on the fact that they were included late in the file, even if the Commission had prepared those notes in 2014, the reliability of their content would have been liable to be affected only if the detailed minutes of those same meetings, which would necessarily have been the basis for the drafting of those brief notes, had also been drawn up in 2014. In such circumstances, the fact that a significant period of time elapsed between, on the one hand, the meetings and, on the other, the preparation of the detailed minutes relating to those meetings could give rise to doubts as to the accuracy of those minutes and, consequently, the brief notes drawn from them.

1190In the present case, the applicants have not adduced any evidence or indicia to support the conclusion that the detailed minutes were prepared years after the holding of, inter alia, the meetings of 2010 to 2013. On the contrary, as the Commission submitted at the hearing, the level of detail in those minutes constitutes evidence that they were drawn up on a date close to that of the meetings to which they relate.

1191In the light of the considerations set out in paragraphs 1182 to 1186 above, the applicants’ arguments concerning the Commission’s failure to fulfil its obligations in relation to the meetings of 2010 to 2013 are well founded, in so far as the brief notes were manifestly insufficient to provide an account of the content of the discussions between the Commission and Overgas, within the meaning of the case-law cited in paragraph 1160 above.

1192The Commission therefore made a procedural error by failing properly to record the statements made during the meetings of 2010 to 2013 and to include them in the file.

1193As regards the Commission’s argument that any possible failure to fulfil obligations arising from the excessively vague and general nature of the brief notes was remedied, first, by the access to non-confidential versions of the follow-up observations and, second, by the access to the detailed minutes in the context of the data room procedure, the applicants submit, in essence, that, due to heavy redactions, the access to those documents was of no use for their defence. Thus, that argument and the second complaint overlap, and it is therefore appropriate to analyse them together.

(b)The second complaint, regarding the access to the detailed minutes and to the follow-up observations

1194The applicants criticise the Commission, first, for having given them restricted access to the detailed minutes and, second, for having refused them access to some of the follow-up observations, on the pretext that the information contained in those documents was confidential.

1195Thus, in the first place, the applicants take issue with the fact that the right of access to the detailed minutes of the meetings with Overgas was replaced, following numerous requests for access, by restricted access, through their external representatives, in the context of a data room procedure. The report drawn up by those representatives, which was sent to the applicants in non-confidential form, was, because of the heavy redactions, devoid of value for their defence.

1196By contrast, the Commission insists that the access which the applicants’ external representatives were granted to the detailed minutes of the meetings with Overgas in the context of the data room procedure enabled the applicants to express their views on the information contained in those minutes and thus to exercise their rights of defence, while respecting Overgas’ legitimate concerns regarding confidentiality.

1197In the second place, the applicants submit that the confidential follow-up observations could potentially have contained exculpatory evidence, so that access to a less redacted version of those documents would have enabled them better to exercise their rights of defence.

1198The Commission argues in response that, precisely because of the access to the follow-up observations, the applicants were able to exercise their rights of defence by submitting their response to the statement of objections.

1199The Commission also states that, between access to the file and the submission of their response to the statement of objections, the applicants never complained that they were unable to exercise their rights of defence effectively because of the redaction of the confidential parts of the follow-up observations. Furthermore, any subsequent request for access would have been late and unjustified, given that the applicants had already exercised their right to be heard regarding those documents.

1200In addition, the Commission submits that most of the follow-up observations were not redacted and that it did not use the redacted information in its analysis that led to the adoption of the contested decision.

1201It follows from paragraphs 1194 to 1200 above that, in essence, the arguments put forward by the parties in the context of this complaint raise two issues, which it is appropriate to analyse in the following order:– the first issue concerns the absence of an immediate challenge to the redactions in the follow-up observations to which the applicants had access;– the second issue concerns the allegedly excessive redactions, on the one hand, in the detailed minutes which were accessed in the data room and, on the other hand, in the follow-up observations.

(1)The obligation to challenge the redactions in the follow-up observations immediately

1202As regards the letter of 18 June 2018, by which the applicants requested access to a less redacted version of the follow-up observations, the Commission submits that the disclosure of the non-confidential versions of those observations to the applicants had already taken place on 2 and 8 April 2015 and that, up until their response to the Letter of Facts was submitted on 9 December 2016, the applicants had never indicated that they could not exercise their rights of defence effectively because of the redactions in those observations.

1203It is apparent from the letter of 18 June 2018 that the request for access to less redacted versions of the follow-up observations was linked to the fact that, when setting up the data room, the Commission had authorised the applicants’ external representatives to take into that data room, among other documents, the redacted versions of the follow-up observations. In putting forward their request, the applicants stated, for each of the follow-up observations, what role the redacted information could have played in the preparation of their defence, also in the light of the new information which might have emerged from the access in the data room.

1204The applicants’ request for access to less redacted follow-up observations was therefore indirectly triggered, in essence, by the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632). It was on the basis of that new case-law, reinforcing their rights of defence, that the applicants requested the Commission, on 5 January 2018, to grant them access to full and detailed notes of any calls and meetings with Overgas. That approach, as follows from paragraph 1203 above, gave rise to the data room procedure, for which the applicants received the detailed rules setting how that data room was to operate. Those rules provided, inter alia, that the redacted versions of the follow-up observations formed part of the limited number of documents that the applicants’ external representatives could bring into the data room.

1205In that regard, it cannot be ruled out that a more complete version of the follow-up observations could have enabled the applicants to have a better understanding of the documents to which they had access in the data room through their external representatives and, consequently, could have enabled them to exercise their rights of defence more effectively. In those circumstances, they cannot be criticised for having requested, only at that stage, more detailed access to those follow-up observations.

1206It follows that the absence of an immediate challenge to the redactions in the follow-up observations disclosed to the applicants after the statement of objections cannot be relied on against them in order to prevent them from claiming that their rights of defence were infringed.

(2)The access to the documents made available in the data room and to the excessively redacted versions of the follow-up observations

1207When granting or refusing access to part of the file during investigation procedures, the Commission is, in particular, required to balance undertakings’ right to the protection of business secrets against safeguarding the rights of the defence (see judgments of 29 June 1995, ICI v Commission, T‑36/91, EU:T:1995:118, paragraph 98, and of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 631).

1208In that regard, it should be noted that, in accordance with the order of 26 May 2021, Bulgarian Energy Holding and Others v Commission (T‑136/19, not published) and in accordance with Article 91(b) of the Rules of Procedure, and in view of the guarantees provided for in Article 103(1) of those rules, the Commission lodged in the file:– the detailed minutes of the meetings with Overgas and the latter’s confidentiality claims relating to those minutes;– the confidential versions of the follow-up observations;– the confidential data room report.

1209Subsequently, in the context of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), and in accordance with Article 103(1) and (2) of the Rules of Procedure, the Court examined the documents referred to in paragraph 1208 above on the basis of the matters of law and of fact relied on by the Commission as to the confidential nature of those documents vis-à-vis the applicants and their relevance for the purpose of ruling on the dispute, in the light, where necessary, of weighing that confidentiality against the requirements of the right to effective judicial protection, in particular the adversarial principle (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 5 to 10).

1210In particular, the Court noted that the applicants’ external representatives had been authorised by the Commission to communicate only the non-confidential version of their data room report to their clients (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 20 to 22).

1211It is apparent from the analysis carried out in paragraphs 26 and 27 of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that several pieces of information which had been redacted in the non-confidential data room report were not, or, in any event, were no longer, confidential. The Court therefore included the confidential data room report in the file, with the exception of two short pieces of information which were of no relevance for the purpose of ruling on the dispute.

1212In that regard, it is apparent from the analysis of the non-confidential version of the data room report to which the applicants had access that that version did not contain, in essence, any additional information in the light of the brief notes to which they had previously had access during the administrative procedure.

1213Even if, at the time of the data room procedure, certain information in the confidential version of the data room report, especially as regards the information resulting from the detailed minutes of the meetings of 2015 and 2016, was able to remain confidential, the information in the detailed minutes of the meetings of 2010 to 2013 was, by then, historical in nature.

1214It follows that the Commission was not entitled to redact any relevant information in the data room report to the point that the non-confidential version of that report was practically equivalent to the brief notes.

1215Such a situation could, in practice, compromise the purpose of the data room procedure, namely to protect confidential information while giving access to the evidence that a party needs in order to substantiate its position. That is all the more so since, as the applicants have argued, the data room procedure, as it took place in the present case, was capable of affecting the rights of defence of the applicants, which were able to exercise those rights only indirectly, through their external representatives.

1216It follows from the considerations set out in paragraphs 1207 to 1215 above that, by granting the applicants excessively restricted access to the file in the context of the data room procedure, the Commission made a procedural error capable of giving rise to an infringement of the applicants’ rights of defence.

1217Next, as regards the follow-up observations, in the first place, it must be noted that, for the meetings of 2015 and 2016, Overgas submitted such observations only in relation to the meeting of 20 October 2016. The Court notes that, as stated in paragraphs 51 to 57 of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that document is irrelevant for the purpose of ruling on the dispute.

1218In the second place, as follows from paragraph 49 of the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), the allegedly non-confidential version of the follow-up observations on the meeting of 17 June 2013 did not contain any redaction.

1219In the third place, following the verification of the nature of the information in the follow-up observations on the first four meetings of 2010 to 2013, the Court granted the applicants access to less redacted versions of those follow-up observations (order of 14 March 2022, Bulgarian Energy Holding and Others v Commission, T‑136/19, EU:T:2022:149, paragraphs 34 to 48).

1220In that regard, the Court notes that the information in the follow-up observations on the meetings of 2010 to 2013 had already lost its confidential nature by the time the applicants, by the letter of 18 June 2018, requested access.

1221Consequently, by refusing access to less redacted versions of the follow-up observations, in particular those of the meetings of 13 October 2010 and of 13 January, 17 March and 15 December 2011, the Commission also made a procedural error capable of giving rise to an infringement of the applicants’ rights of defence.

(c)Conclusion on the procedural defects

1222It follows from the considerations set out in paragraphs 1177, 1192 and 1211 to 1221 above that the Commission made a procedural error by refusing the applicants a level of access to the file that would have been sufficient to ensure the exercise of their rights of defence.

1223Thus, within the meaning of the case-law referred to in paragraph 1152 above, it is necessary, at this stage, to determine whether, in view of the factual and legal circumstances specific to the present case, the applicants have adequately demonstrated that they would have been better able to ensure their defence had there been no procedural error on the part of the Commission. If that is not demonstrated, no infringement of their rights of defence can be established (judgment of 14 September 2022, Google and Alphabet v Commission (Google Android), T‑604/18, under appeal, EU:T:2022:541, paragraph 934).

3. The effects of the identified errors in terms of the guarantee of the applicants’ rights of defence

1224In their observations lodged on 27 April 2022 (‘the observations of 27 April 2022’), following the Commission’s production of the non-confidential documents pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), the applicants provided clarifications in order to demonstrate specifically that access to certain pieces of information in the file, which were not disclosed during the administrative procedure, would have enabled them better to ensure their defence.

1225It is in the light of those arguments that it is necessary to analyse, inter alia, the evidence which was disclosed to the applicants following the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), and which, on account of its origin, its detail and the circumstances in which Overgas provided it to the Commission, would have enabled the applicants to substantiate significantly or consolidate certain arguments in their defence.

1226In that regard, it must be noted at the outset that the infringement of the right of access to the file is not remedied by the mere fact that access was made possible, as in the present case, during the judicial proceedings. As the examination undertaken by the General Court is limited to review of the pleas in law put forward, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. Moreover, belated disclosure of documents in the file does not return the undertaking which has brought the action against the Commission decision to the situation in which it would have been if it had been able to rely on those documents in presenting its written and oral observations to that institution before the adoption of the contested decision (judgments of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 51, and of 15 June 2022, Qualcomm v Commission (Qualcomm – Exclusivity payments), T‑235/18, EU:T:2022:358, paragraph 200).

(a)The undisclosed elements of the detailed minutes

1227In their observations of 27 April 2022, the applicants state that there are a number of pieces of information which emerged from the summaries of the detailed minutes in the confidential data room report to which they had access pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), which could have enabled them better to ensure their defence. The Court considers that it is sufficient, for the purposes of the examination required under the case-law cited in paragraphs 1152 and 1223 above, to focus the analysis on the following elements.

1228In the first place, the applicants submit that it is apparent from the summary of the meeting of 13 October 2010 that Overgas considered that the Bulgarian Government was preventing it from supplying gas to customers in Bulgaria. In particular, it is apparent from that summary that Overgas considered the Bulgarian gas supply markets to be very difficult to operate due to the incorrect and incomplete transposition of the EU directives and the constant interference by the government in favour of Bulgargaz and Bulgartransgaz.

1229The Court notes that it is apparent, however, from the follow-up observations of 18 November 2010, to which the applicants had access during the administrative procedure, that Overgas considered that the applicants were committing infringements of Article 102 TFEU with the support of the Bulgarian regulator and the Bulgarian Government.

1230Thus, the Court finds that the applicants’ clarifications as to the usefulness of the statements set out in paragraph 1228 above for the exercise of their rights of defence are well founded. Those are elements which could have been capable of confirming and substantiating the applicants’ argument that the difficulties encountered by Overgas in entering the Bulgarian gas supply markets were not attributable to them, in particular in view of the fact that the Commission had, in response to Overgas’ allegations, raised the possibility that those difficulties might be due to errors or failures by the Republic of Bulgaria in the transposition of European legislation.

1231In the second place, the applicants state, in their observations of 27 April 2022, that it is apparent from the summary of the meeting of 13 January 2011 that Overgas considered that Transgaz, and not the applicants, controlled access to the Romanian Pipeline 1.

1232The contested decision states, in recital 296, that Overgas had contacted Transgaz to request access to the Romanian Pipeline 1 but did not, however, expressly make a statement as to the entity having control over that pipeline. The Court considers, as do the applicants, that the statement in question could have been used as exculpatory evidence to support the applicants’ position, as set out in recital 282 of the contested decision, that Transgaz, as the TSO, was the entity responsible for granting and managing third-party access to the Romanian Pipeline 1.

1233In the third place, the applicants claim that the summary of the meeting of 15 December 2011 shows that the Commission and Overgas agreed that the first request for access to the transmission network was submitted on 29 September 2010, which confirms their position that all the contact prior to that date did not constitute requests for access and that, consequently, the abuse could not have started on 30 July 2010.

1234In the context of the second ‘sub-plea’ of their fourth plea, the applicants submit that the letter of 30 July 2010 could not constitute a request for access to the transmission network and that the Commission incorrectly classified, in recital 101 of the contested decision, the contact between Overgas and Bulgartransgaz prior to 29 September 2010 as requests for access to that network. As follows from paragraphs 790 to 797 above, the summary of the meeting of 15 December 2011 clearly shows that the Commission itself found, during that meeting, that Overgas’ first request to Bulgartransgaz for access was dated 29 September 2011. That factor, which is not consistent with the considerations set out by the Commission in the contested decision, clearly has a bearing on the assessment of the starting date of the alleged abuse, the assessment of the applicants’ conduct, the duration of the infringement and, therefore, the level of the fine. The applicants are therefore right to maintain that disclosure of that material could have enabled them better to ensure their defence.

1235In the fourth place, it is apparent from the summary of the meeting of 17 June 2013 that Overgas had, inter alia, confirmed to the Commission that it had had access to the Romanian Pipeline 1 and to the transmission network since 1 January 2013 and that, for both of those infrastructures, the duration of the relevant agreements had been extended until 31 December 2013. According to the applicants, that statement would have enabled them to strengthen their argument that no abuse had taken place after Overgas gained access to the Romanian Pipeline 1 and to the transmission network on 1 January 2013.

1236In that regard, it should be noted that, as early as the stage of the application initiating proceedings, the applicants claimed, as they had done during the administrative procedure, that Overgas had never requested that the 2013 pipeline access agreement be valid for a particular period and that Overgas had never challenged the three-month duration of that agreement. The applicants also argued that the access to the transmission network granted to Overgas for 2013 was not restrictive.

1237In those circumstances, the fact that, as is apparent from the summary of its meeting with the Commission of 17 June 2013, that is, a few months after the signing of the 2013 pipeline access agreement, Overgas did not express its dissatisfaction with the access granted to the Romanian Pipeline 1 and to the transmission network could have been used by the applicants to substantiate their argument that there was no abuse regarding those infrastructures, at least from 2013.

1238It thus follows from the considerations set out in paragraphs 1228 to 1237 above that the applicants have established to the requisite legal standard that, had the Commission not committed the procedural irregularity with regard to access to the information in the detailed minutes, they would have had access to information that could have enabled them better to ensure their defence (judgment of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 52). Moreover, as follows from paragraphs 1233 and 1234 above, read in conjunction with paragraphs 790 to 797 above, some of the information referred to by the applicants in their observations of 27 April 2022 could even have called into question the content of the contested decision.

(b)The undisclosed elements of the follow-up observations

1239In their observations of 27 April 2022, the applicants focus their criticisms, regarding the overly restricted access granted in respect of the follow-up observations during the administrative procedure, on two documents.

1240In the first place, the applicants submit that it is apparent from the follow-up observations of 18 November 2010 in their less redacted version, to which the applicants had access pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that Overgas had acknowledged that the demand resulting from the claimed agreements for the supply of nine industrial customers in 2011 amounted to more than 260 million cubic metres. The applicants emphasise that those quantities were considerably lower than the volume in respect of which, as is apparent from recital 101(e) of the contested decision, Overgas had sought access to the transmission network, which amounted to more than 1 billion cubic metres.

1241The Court finds that the applicants would have been better able to ensure their rights of defence by using the information referred to in paragraph 1240 above to support their argument that Overgas had significantly inflated the quantities in respect of which it was requesting access to the transmission network in 2011 and that, therefore, the applicants had been forced to request clarification at the meeting held with Overgas on 1 December 2010.

1242In the second place, the applicants claim that it is apparent from the follow-up observations of 10 June 2011, in a less confidential version to which they had access pursuant to the order of 14 March 2022, Bulgarian Energy Holding and Others v Commission (T‑136/19, EU:T:2022:149), that Overgas based its complaint on the misleading premiss that its entry into the Bulgarian gas supply markets would have increased alternatives sources of gas supply, which would have obliged suppliers to establish their prices on market economy principles.

1243In their observations of 27 April 2022, the applicants submit that, in 2011, Bulgaria had only one upstream source of supply of gas, namely Gazprom, to which Overgas had direct access, whereas Bulgargaz had only indirect access to that supply, through Overgas. They state that, at that time, Overgas was Gazprom’s intermediary in Bulgaria and was under investigation for abuse of a dominant position, inter alia because it was charging Bulgargaz excessive prices. Thus, not only would Overgas’ entry into the Bulgarian market not have increased competition downstream, but Bulgargaz would not, in any event, have been able to purchase gas on reasonable terms.

1244In that regard, the Court finds that the applicants are right to claim that knowledge of the information referred to in paragraph 1242 above would have enabled them better to ensure their defence, in particular by arguing before the Commission that the conditions relating to healthy competition on the downstream market were not satisfied, mainly because of Overgas (and Gazprom), which could have supported their defence based on an objective justification or, at least, their arguments in favour of a reduction of the fine.

1245It follows from the considerations set out in paragraphs 1239 to 1244 above that the applicants have established to the requisite legal standard that, had it not been for the errors made by the Commission with regard to the information in Overgas’ follow-up observations, they would have had access to information which could have enabled them better to ensure their defence during the administrative procedure, within the meaning of the case-law cited in paragraph 1238 above.

(c)Conclusion on the first and second parts

1246It follows from the analysis of the defects in the administrative procedure set out in paragraphs 1153 to 1223 above and from their consequences for the applicants’ rights of defence, examined in paragraphs 1224 to 1245 above, that the first and second parts of the first plea must be upheld.…

E. Conclusion on the claim for annulment of the contested decision

1259Since both the fourth plea, alleging an incorrect finding of abuse of a dominant position, and the first plea, alleging infringement of the rights of the defence, have been upheld, the contested decision must be annulled in its entirety, without it being necessary to rule on the other pleas in law relied on.

1260It follows, consequently, that there is no need to grant the applicants’ applications for measures of organisation of procedure or measures of enquiry aimed at obtaining first, the statement of objections in the Gazprom case and the documents to which it relates in so far as they concern the Bulgarian gas market and, second, the documents underlying the Transgaz case since, as matters now stand, those applications are of no interest in the resolution of the dispute (see, to that effect, judgments of 25 June 2002, British American Tobacco (Investments) v Commission, T‑311/00, EU:T:2002:167, paragraph 50, and of 9 March 2022, Zardini v Commission, T‑511/20, not published, EU:T:2022:122, paragraph 58).…

Operative part

On those grounds,THE GENERAL COURT (Fourth Chamber, Extended Composition)hereby:

1.Annuls Commission Decision C(2018) 8806 final of 17 December 2018 relating to proceedings under Article 102 TFEU (Case AT.39849 – BEH Gas);

2.Orders the European Commission to bear its own costs and to pay those incurred by Bulgarian Energy Holding EAD, Bulgartransgaz EAD and Bulgargaz EAD;

3.Orders the Republic of Bulgaria and Overgas Inc. to bear their own costs.

Delivered in open court in Luxembourg on 25 October 2023.