Even though the US-German deal on Nord Stream 2 is not final, in case the contentious pipeline is completed, Poland will still be able to prevent the gas from flowing for a long time – writes Wojciech Jakóbik, editor in chief at BiznesAlert.pl.
The resistance to the Nord Steam 2 deal expressed by the German opposition parties and the US Congress means there is still hope the agreement will be revised to benefit the critics from Poland, Ukraine and the entire Central and Eastern Europe. Another delay in the construction of Nord Stream 2, which is still possible, could force the new government in Germany, or the US Congress to take action to stop the construction. However, this scenario is becoming less probable by the day. If it turns out that Gazprom’s pipe will be completed, there is still no guarantee whether and when it will start deliveries. This is because of three reasons:
1. The current US sanctions prevent companies from certifying the Nord Stream 2. This is why Norway’s DNV GL withdrew from the project after the restrictions had been introduced. Russians need to bypass this problem, but it is unclear whether they will find a way. The current sanctions against Nord Stream 2 may be expanded, or new entities eager to certify the pipe could be added. The US Congress which has criticized the US-German deal may radicalize Washington’s position on this issue.
2. The EU gas directive, which was revised with a big participation of Poles, makes it mandatory for Nord Stream 2 to abide by EU anti-monopoly regulations, which involve the obligation to appoint an independent operator, introduce fair tariffs and allow third parties to tap into the pipe. According to Germany’s Federal Network Agency Bundesnetzagentur, that role will be played by Nord Stream 2 AG, a company that is entirely owned by Gazprom. Following in Russia’s footsteps, Germany is pursuing the fait accompli policy as well by having applied for the certification of the operator already in June 2021. Such a choice can be questioned by the European Commission without whose approval it will not be possible to start gas deliveries via the pipe. It is worth adding that the operator has been targeted by America’s sanctions, which at this point are suspended in order to strike a deal on Nord Stream 2 with Germany. If the deal collapses, and the US sanctions are introduced, the company will not be able to function, which means Gazprom will have to look for a different operator and will not be able to start deliveries.
3. Poland’s victory at the European Court of Justice in the OPAL dispute can be used as a precedence in another disagreement about Nord Stream 2. OPAL is an onshore leg of Nord Stream 1, a pipe that transmits gas from Russia to Germany. Poles went to court to question the fact that Gazprom was exempted from abiding by the third energy package, which was proposed by Germany’s Federal Network Agency. Russians wanted to have the entire OPAL capacity for themselves to be able to fully use the Nord Stream 1. The court supported Poland’s claim and rejected Germany’s complaint. At the same time it ruled that the energy solidarity principle makes it illegal to take actions such as the ones taken by Germany, as they are detrimental to other member states, in this case Poland. The Nord Stream 2 pipeline also has an onshore leg in Germany called EUGAL. The same court dispute could erupt over the land pipe, and it could result in deliveries being halted until the argument is settled. However, it is worth reminding that in the case of EUGAL the fait accompli policy has been already implemented, because as of April 2021 it transmits gas without Nord Stream 2, and its capacity is most certainly fully booked, which would make it difficult to stop the transmission until the legal dispute is resolved. On the other hand, Bundesnetzagentur did not agree to excluding the Nord Stream 2 from the third energy package, and the dispute over this issue will be settled on the 25th of August.
Therefore, Poland together with other critics of the Nord Stream 2 pipeline could play for time and negotiate a better deal on the gas pipeline by removing issues with security deficits raised by Kiev and Warsaw. It is also worth raising the price of the agreement by expecting Americans and Germans to support projects that are important for Poland and Central and Eastern Europe, with nuclear power at the top of the list. This is why one should appreciate the efforts put into staying in touch with the potential successors of Angela Merkel, including the Green Party candidate Annalena Baerbock who has already rejected the deal, and future opponents of Joe Biden, as well as the US Congress, which doesn’t accept the agreement as well.