In the Media it was already buzzing around for a while that ExxonMobil had started a procedure against the Council of the European Union with respect to Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices. ExxonMobil Producing Netherlands BV (EMPN) and Mobil Erdgas-Erdöl GmbH (Hamburg, Germany) (MEEG) already brought their action on December 28, 2022. In the Official Journal of the European Union of February 13, 2023 the Parties, the form of order sought and the pleas in law and main arguments have been published. Because of several reasons this is obviously a very interesting case and one that is certainly worth following. The case has been given case number T-802/22.

Parties

Applicants: ExxonMobil Producing Netherlands BV (Breda, Netherlands), Mobil Erdgas-Erdöl GmbH (Hamburg, Germany).

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

-    annul Articles 14 (Support to final energy customers through a temporary solidarity contribution), 15 (Base for calculating the temporary solidarity contribution) and 16 (Rate for calculating the temporary solidarity contribution) of Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices, insofar as those provisions mandate a solidarity contribution on EMPN and MEEG, being Union companies and permanent establishments with activities in the crude petroleum, natural gas, coal and refinery sectors;

-    order the Council of the European Union to pay the applicants’ costs, including the costs relating to any intervening parties.

Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law.

1.  First plea in law, alleging lack of competence insofar as Articles 14, 15 and 16 of Regulation (EU) 2022/1854 infringe the principle of conferral laid down in Articles 4(1) and 5(1) of the Treaty of the European Union.

2.  Second plea in law, alleging lack of competence insofar as Article 122(1) of the Treaty on the Functioning of the European Union provides an invalid legal basis.

3.  Third plea in law, alleging infringement of the Treaties insofar as Articles 14, 15 and 16 of Regulation (EU) 2022/1854 infringe the general principle of equal treatment, also enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union.

4.  Fourth plea in law, alleging infringement of the Treaties insofar as Articles 14, 15 and 16 of Regulation (EU) 2022/1854 infringe Article 17 of the Charter of Fundamental Rights of the European Union.

5.  Fifth plea in law, alleging infringement of the Treaties insofar as Articles 14, 15 and 16 of Regulation (EU) 2022/1854 infringe Article 16 of the Charter of Fundamental Rights of the European Union.

6.  Sixth plea in law, alleging infringement of a rule of law relating to the application of the Treaties insofar as Articles 14, 15 and 16 of Regulation (EU) 2022/1854 infringe the general principle of proportionality enshrined in Article 5(4) of the Treaty of the European Union; and

7.  Seventh plea in law, alleging infringement of a rule of law relating to the application of the Treaties insofar as Articles 14, 15 and 16 of Regulation (EU) 2022/1854 infringe the general principle of legal certainty and the presumption against retroactivity.

The text of Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices can be found here.

The progress of the case can be followed here on the website of the Court of Justice of the European Union.

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