My CEPS paper published in November examining the legal and policy issues surrounding Nordstream 2 has had over 3000 downloads and sparked significant debate. I will be discussing the legal issues surrounding Nordstream 2 at the upcoming Lennart Meri and Globsec conferences. There is an initial response from Nordstream 2 by Mr Lissek. To my mind however the most substantial response to my paper has been by Professor Kim Talus in his the Application of EU Energy and Certain National Laws of Baltic Sea Countries to the Nordstream 2 Pipeline Project
One of the main contentions is whether EU law applies to Nordstream 2. I find it difficult to see how one can argue as a matter of principle that EU law does not apply at least to the inland waters of the Member States, and their territorial waters, and possibly following the Habitats case to the exclusive economic zone. The key issue I would therefore argue is whether the EU energy law regime envisages the application of the regime to import pipelines. Professor Talus argues robustly and coherently that EU law energy regime is not envisaged as applying to import pipelines. This is clearly a much more compelling argument than that of some of the Nordstream lobbyists who seek to distinguish between import pipelines running on the seabed and those running on land. However, the difficulty with Professor Talus’s argument is that EU law has been applied already to two import pipelines Yamal, and Southstream. More recently parts of the Commission have been much more circumspect and the Legal Service of the European Commission produced a four page note seeking to argue that EU law may not apply to Nordstream 2. It is despite that note difficult to evade the reality that EU law has in fact been applied to import pipelines-and that the Union’s legal regime-in order to ensure uniform application of competitive conditions amongst all market operators requires to be substantially applied to both import and non-import supply pipelines.