2The background to the case was set out in paragraphs 1 to 36 of the judgment under appeal, as follows:‘I. Background to the dispute and developments following the bringing of the action1 The applicant, Polskie Górnictwo Naftowe i Gazownictwo …, is the parent company of the PGNiG group, which is active in the oil and gas sector, primarily in Poland. That group’s activities include natural gas and crude oil exploration and production, as well as the import, sale and distribution of gas.2 The [appellant] seeks the annulment of [the decision at issue], which made binding the commitments proposed by Gazprom PJSC and Gazprom export LLC (together, “Gazprom”).3 The [decision at issue] closed the administrative procedure conducted by the [European] Commission, which examined, in the light of the prohibition of abuse of a dominant position laid down in Article 102 TFEU, the compatibility with EU law of some of Gazprom’s practices affecting the gas sector in certain Central and Eastern European countries (“the CEE countries”), namely Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland and Slovakia (together, “the CEE countries concerned”).A. The administrative procedure which gave rise to the [decision at issue]4 Between 2011 and 2015, the Commission took several measures in order to investigate the functioning of the gas markets in Central and Eastern Europe. In particular, under Articles 18 and 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), the Commission sent requests for information to various market participants, which included Gazprom and some of its customers, including the [appellant], and conducted inspections, inter alia at the premises of the [appellant] in 2011. The administrative procedure relating to that investigation and directly at issue in the present case was registered as “Case AT.39816 – Upstream gas supplies in Central and Eastern Europe” (“Case AT.39816”).5 In the context of that case, on 31 August 2012, the Commission formally initiated proceedings with a view to adopting, under Article 11(6) of Regulation No 1/2003 and Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), a decision pursuant to Chapter III of Regulation No 1/2003.6 On 22 April 2015, pursuant to Article 10 of Regulation No 773/2004, the Commission sent a statement of objections to Gazprom (“the statement of objections”). In that statement of objections, the Commission had come to a preliminarily conclusion that Gazprom held a dominant position on national markets for the upstream wholesale supply of gas in the CEE countries concerned and that it was abusing that position by engaging in an anti-competitive strategy for the purpose of fragmenting and isolating those markets and thereby preventing the free flow of gas in the CEE countries concerned in breach of Article 102 TFEU.7 The Commission had considered that Gazprom’s strategy involved three sets of anti-competitive practices affecting customers in the CEE countries concerned (“the relevant customers”) and the contracts concluded by those customers with Gazprom (“the contracts concerned”):– first, Gazprom had imposed territorial restrictions in its gas supply contracts with wholesalers and certain industrial customers in the CEE countries concerned (“the objections concerning territorial restrictions”), restrictions which allegedly resulted from contractual clauses, prohibiting exports outside the territory of supply or requiring the gas supplied to be used in a given territory; Gazprom also allegedly used other measures preventing the cross-border flow of gas.– secondly, those territorial restrictions had allowed Gazprom to pursue an unfair pricing policy in five of the CEE countries concerned, namely Bulgaria, Estonia, Latvia, Lithuania and Poland (“the five CEE countries concerned by the pricing practices”), by charging excessive prices in that they were significantly higher than the level of Gazprom’s costs or of certain prices regarded as price benchmarks (“the objections concerning pricing practices”);– thirdly, Gazprom had made its supplies of gas in Bulgaria and Poland conditional on its obtaining certain commitments from wholesalers in relation to gas transport infrastructure; those commitments concerned, on the one hand, investments by the Bulgarian wholesaler in the South Stream pipeline project and, on the other hand, acceptance by the Polish wholesaler, namely the [appellant], of Gazprom’s having increased control over the management of the Polish section of the Yamal pipeline, one of the main gas transit pipelines in Poland (“the Yamal objections”).8 On 29 September 2015, Gazprom responded to the statement of objections by challenging the Commission’s competition concerns and, pursuant to Article 12 of Regulation No 773/2004, was subsequently heard at an oral hearing held on 15 December 2015.9 On 14 February 2017, while continuing to dispute the competition concerns contained in the statement of objections, Gazprom submitted formal proposed commitments (“the initial commitments”) pursuant to Article 9 of Regulation No 1/2003. That proposal had been preceded by informal proposals for commitments.10 On 16 March 2017, with a view to obtaining the observations of the interested parties on the initial commitments, the Commission published a communication in the Official Journal of the European Union pursuant to Article 27(4) of Regulation No 1/2003 (OJ 2017 C 81, p. 9), containing a summary of Case AT.39816 and the main content of the initial commitments. Pursuant to the same provision, interested parties were given a period of seven weeks from the date of publication of that communication to submit their observations (“the market test”). The Commission received 44 sets of observations from interested parties, including from the applicant, the Polish Government, the President of the Urząd Regulacji Energetyki (Polish Energy Regulatory Office; “the Polish Energy Regulator”) and Gaz-System S.A., the operator of the Polish section of the Yamal pipeline.11 On 15 March 2018, after receiving non-confidential versions of the interested parties’ observations on the initial commitments, Gazprom submitted revised proposed commitments (“the final commitments”).12 In accordance with Article 14 of Regulation No 1/2003, the Commission consulted the Advisory Committee on Restrictive Practices and Dominant Positions (“the Advisory Committee”) and inter alia communicated to it a preliminary draft decision. On 2 May 2018, the Advisory Committee issued a favourable opinion on that preliminary draft decision. Moreover, pursuant to Article 16 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29), the Hearing Officer issued his final report on 2 May 2018.13 On 24 May 2018, the Commission adopted the [decision at issue], to which the final commitments were annexed. By that decision, the Commission approved and made binding those commitments and closed the administrative proceedings, concluding that there were no longer grounds for action by the Commission in relation to the potentially abusive practices initially identified in the statement of objections.B. The [decision at issue]14 In the [decision at issue], the Commission first set out a preliminary assessment of Gazprom’s practices, before presenting the initial commitments, the results of the market test and the final commitments. Next, the Commission set out its assessment of the final commitments and its reasons for considering them satisfactory in view of its competition concerns.1. The preliminary assessment of the practices in question15 In section 4 of the [decision at issue], setting out the preliminary assessment, the Commission defined the relevant markets as the national markets for the upstream wholesale supply of gas. In that regard, it also found that Gazprom held a dominant position on the relevant markets in the CEE countries concerned.16 The Commission considered that Gazprom may have abused its dominant position, in breach of Article 102 TFEU, by engaging in an anticompetitive strategy aimed at preventing the free flow of gas in the CEE countries concerned and thereby isolating the relevant markets in those countries. In particular, the Commission considered that that strategy involved three sets of anti-competitive practices corresponding, in essence, to the competition concerns identified in the statement of objections and set out in paragraph 7 above.17 As regards the Yamal objections, although, in the context of the market test, some of the interested parties had called into question the absence of commitments addressing those objections, the Commission explained, in recital 138 of the [decision at issue], that, following further investigation, its preliminary competition concerns had not been confirmed. On the one hand, it stated that, in a decision of 19 May 2015 certifying Gaz-System as an independent system operator (“the independent system operator”) of the Polish section of the Yamal pipeline (“the certification decision”), the Polish Energy Regulator had concluded, inter alia, that Gaz-System exercised decisive control over investment decisions relating to that section of the pipeline and over implementation of those decisions. Therefore, neither System Gazociągów Tranzytowych EuRoPol Gaz S.A. (“EuRoPol”), as the owner of the gas pipeline, nor Gazprom, as EuRoPol’s shareholder, was in a position to block those decisions. On the other hand, the Commission noted the intergovernmental character of relations between the parties active in the gas sector in Poland, in particular as regards the construction and operation of the Polish section of the Yamal pipeline, and concluded that that fact may have to a large extent determined the behaviour of the parties concerned.2. The content of the final commitments18 The final commitments, which are annexed to the [decision at issue], are intended to address the Commission’s competition concerns.19 As regards, in the first place, the commitments to address the concerns relating to territorial restrictions (“the commitments relating to territorial restrictions”), Gazprom first of all committed itself, in essence, to removing, from gas supply contracts concluded with its customers established in the CEE countries concerned, all provisions that directly or indirectly prohibited or impeded the free flow of gas in the region formed by the CEE countries concerned.20 Next, in order to allow gas flows between, on the one hand, Bulgaria and the Baltic States and, on the other hand, the other CEE countries concerned, in spite of the infrastructural isolation of the former, Gazprom undertook to take measures in order to offer the relevant customers the possibility to request that all or parts of their contractual gas volumes delivered at certain delivery points in Hungary, Poland and Slovakia be delivered instead at another delivery point in Bulgaria or the Baltic States. Following the market test, Gazprom has, in the final commitments, inter alia strengthened its proposal concerning the change in delivery points.21 Moreover, in order to enable the Bulgarian transmission system operator to control flows in Bulgaria, Gazprom has in particular committed itself to taking action to amend the relevant gas supply and transport contracts in order to enable the conclusion of interconnection agreements between Bulgaria and other Member States, in particular Greece, and the adjustment of the gas allocation method.22 In the second place, as regards the commitments to address the pricing concerns (“the commitments relating to pricing practices”), Gazprom undertook to introduce price review clauses or, where appropriate, to modify existing clauses in the contracts with its relevant customers in Bulgaria, Estonia, Latvia, Lithuania and Poland. Those new or amended price review clauses provide, inter alia, that if the parties do not agree on a new price within 120 days, either party may refer the dispute to an arbitral tribunal, which must base its decision on the pricing guidelines included in those clauses and be established in the European Union. In addition, the revised prices will apply retroactively from the date of notification of the price review request.23 In the third place, as regards the commitments associated with the competition concerns relating to the supply of gas at a given price being made conditional on obtaining from the Bulgarian wholesaler an assurance concerning investments in the South Stream pipeline project, Gazprom undertook to allow the Bulgarian partners involved in that project to withdraw from it without seeking to hold them civilly liable and without recovering the gas price rebates it had granted in return for their participation in that project. Moreover, in the light of the announced abandonment of the Bulgarian section of that pipeline project, Gazprom also undertook not to claim any damages as specific compensation associated with that abandonment.3. The assessment and implementation of the final commitments24 In the [decision at issue], the Commission concluded, in essence, that the final commitments were effective and necessary, without being disproportionate, to address its competition concerns, and stated that it had taken into account, in that regard, developments in the gas markets since notification of the statement of objections. In particular, it noted, first, that Gazprom had already taken certain steps to bring its behaviour more in line with competition law; secondly, that the gas infrastructure situation had improved in some of the CEE countries concerned, namely the Czech Republic, Hungary, Poland and Slovakia, so as to make the cross-border flow of gas possible, even though the gas markets in the Baltic States and Bulgaria remained isolated from the other EU gas markets, and; thirdly, that, as a result of the fall in oil prices, some long-term gas prices resulting from formulae indexed to prices of oil products had also fallen.25 Accordingly, the Commission decided to make the final commitments binding pursuant to Article 9 of Regulation No 1/2003. As regards their period of application, the [decision at issue] provides that they are to be applicable for a period of eight years from the date of notification of that decision to Gazprom, with the exception of the commitments relating to the South Stream pipeline project, referred to in paragraph 23 above, which are binding for a period of 15 years from that date.26 The operative part of the [decision at issue] reads as follows:“Article 1The Commitments as listed in the Annex shall be binding on [Gazprom], and any legal entity directly or indirectly controlled by it for a period of eight years, except for the Commitments listed in paragraph 21 of the Annex for which the period shall be 15 years, from the date set out in the Commitments.Article 2It is hereby concluded that there are no longer grounds for action [by the Commission] in this Case”C. The complaint27 In parallel with the administrative proceedings initiated by the Commission and giving rise to the [decision at issue], the applicant had, on 9 March 2017 and pursuant to Article 5 of Regulation No 773/2004, lodged a complaint alleging abusive practices by Gazprom (“the complaint”). Those practices, which overlapped to a great extent with the concerns already set out in the statement of objections, included, inter alia, claims relating to abuse by Gazprom in connection with the Polish section of the Yamal pipeline.28 On 29 March 2017, the Commission acknowledged receipt of the complaint, which was subsequently registered as “Case AT.40497 – gas prices” (“Case AT.40497”).29 In a letter of 31 March 2017 to the applicant, the Commission noted that the practices set out in the complaint and those covered by the initial commitments appeared to overlap and invited the applicant to submit observations on those commitments in the context of the market test launched on 16 March 2017. After obtaining an extension of the time limit applicable, the applicant lodged its observations on 19 May 2017.30 On 15 May 2017, Gazprom submitted its observations on the complaint to the Commission.31 By a letter sent to the applicant on 23 January 2018 (“the letter concerning the intended rejection of the complaint”), the Commission, in accordance with Article 7(1) of Regulation No 773/2004, stated that it intended to reject the complaint and requested that the applicant make its views known within four weeks of receipt of that letter. The Commission also sent a non-confidential version of the statement of objections and a non-confidential version of Gazprom’s observations on the complaint, referred to in paragraph 30 above.32 On 2 March 2018, the applicant lodged observations in response to the letter concerning the intended rejection of the complaint. In addition to expressing its dissatisfaction with the conclusions contained in that letter, the applicant criticised the Commission’s conduct of the investigation and noted that the Commission had infringed the applicant’s rights as a complainant in Case AT.39816, in particular in so far as, despite numerous requests, the Commission had neither given the applicant access to the statement of objections for almost a year, nor allowed it to lodge observations on that statement.33 On 5 September 2018, that is to say after the adoption of the contested decision, the applicant made a reasoned request to the Hearing Officer within the meaning of Article 7(2)(b) of Decision 2011/695, in which it requested access to all the documents on which the Commission based its provisional assessment set out in the letter concerning the intended rejection of the complaint, in particular access to a version of the statement of objections from which less information is omitted. On 17 September 2018, the Hearing Officer transferred to the Commission’s Directorate-General (DG) for Competition the requests for access made in that letter of 5 September 2018. By letter of 25 September 2018, the Commission rejected the requests for access to documents made by the applicant in its letters of 2 March and 5 September 2018.34 On 24 January 2019, the applicant sent a letter to the Commissioner for Competition in which it called upon the Commission, under the second paragraph of Article 265 TFEU, to act either by adopting a decision rejecting the complaint or by continuing the procedure in Case AT.40497. On 8 February 2019, the Commission replied to that letter, recalling that the complaint had already given rise to several exchanges between them. The Commission also stated, with regard to Case AT.39816, that it had adopted the [decision at issue], which, inter alia, took into account the observations submitted by the applicant in the context of the market test, and, with regard to Case AT.40497, that it had sent the letter concerning the intended rejection of the complaint, to which the applicant had replied, and that it was finalising its analysis of the complaint.35 On 17 April 2019, the Commission adopted Decision C(2019) 3003 final rejecting the complaint (Case AT.40497 – Polish gas prices).36 On 25 June 2019, [the appellant] brought an action before the General Court against that decision rejecting its complaint, registered as Case T‑399/19.’
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