summary of the case

On 30 April 2021, the Ministerial Council adopted Decision 2021/01/MC-EnC in Case ECS-13/17 establishing a breach of Energy Community  law by declaring that due to the unjustified exclusion by Srbijagas of the Horgoš entry point from unrestricted and non-discriminatory third party access and from open capacity allocation procedures, Serbia violates Article 32 of Directive 2009/73/EC and Article 16 of Regulation 715/2009, as incorporated in the Energy Community, and therefore fails to fulfil its obligations under Article 6, 10 and 11 of the Treaty.

Serbia was required to take all appropriate measures to rectify the breach identified in Article 1 of Decision 2021/01/MC-EnC and ensure compliance with Energy Community law immediately, as well as to report regularly to the Secretariat and the Permanent High Level Group about the measures taken. The Secretariat was invited to initiate a procedure under Article 92 of the Treaty in case the breaches were not rectified by 1 July 2021.

The breach has not been remedied. Therefore, the Secretariat initiated Case ECS-13/17S by submitting a Reasoned Request to the Ministerial Council under Article 92 of the Treaty.

In its Reasoned Request, the Secretariat submitted that the non-implementation of a Ministerial Council Decision 2021/01/MC-EnC under Article 91 of the Treaty by Serbia in itself constitutes a breach of Energy Community law. The Secretariat requested the Ministerial Council to declare that the breach identified is serious and persistent breach within the meaning of Article 92(1) of the Treaty.

Due to lack of unanimity, the Ministerial Council did not adopt a decision on the Reasoned Request, and serious and persistent breach was not established neither in 2021 nor in 2022.