According to the Naftogaz legal office, the Federal Network Agency of Germany (BundesNetzAgentur, BNetzA) decision to accept Naftogaz participation in the certification process will make it possible to submit arguments against the applicant’s certification and obliges BNetzA to take these arguments into consideration.
The acceptance of Naftogaz in the certification process at this stage enhances the chances of similar inclusion by the European Commission in the next stage of the certification process. The European Commission is a participant in the certification process independent of BNetzA, representing the interests of all European Union member states.
In addition, the BNetzA decision explicitly states that the "economic interests of Naftogaz may be significantly violated in the future." The German regulator’s recognition of this fact increases Naftogaz’s chances of appealing successfully to the German courts against the certification of NS2, if this proves necessary.
As noted by the Legal Department of Naftogaz, the applicant was adamantly against Naftogaz participation in the certification process. The applicant submitted its objections to the regulator against Naftogaz involvement. However, these were rejected.
It is worth recalling that Naftogaz welcomed the recent decision by BNetzA and is ready to provide the regulator with its legal position in the nearest future. This position is based on the fact that Nord Stream 2 AG cannot be certified without ensuring its full compliance with European and international laws.
Naftogaz engagement in certification of Nord Stream-2 AG operator will ensure greater transparency. This is reasonable as Naftogaz is one of the largest participants in the European gas market and a major resource buyer, so the company has direct interest in the market being truly competitive.
The launch of NS2 would strengthen Gazprom’s dominant position and impact energy markets in Slovakia, Hungary, the Czech Republic, Austria and other European countries. The pipeline does not comply with a range of requirements set out in European legislation. Crucially, the pipeline operator is directly tied to Gazprom. Access to gas transmission through NS2 along the entire gas pipeline (from the starting point in Russia to the end point in Germany) is not provided to other customers, as is required by law.
BNetzA was initially scheduled to prepare its draft decision on certification or rejection of the Nord Stream-2 AG operator’s application within four months of the beginning of the certification process. However, on 16 November 2021, BNetzA suspended the certification process for an indefinite term.
In addition, on 15 November, BNetzA granted a request of LLC Gas TSO of Ukraine pertaining to participation in the certification procedure for gas pipeline operator Nord Stream 2 AG.