Enlarge image
Natural gas compressor station in Mallnow, Brandenburg, near the German-Polish border: Mainly Russian natural gas
Photo: Patrick Pleul / ZB / dpa
SPIEGEL:
Economics Minister Robert Habeck has stated that the federal government will not accept any breach of the gas supply contracts by Russia.
What legal consequences could European governments, companies or citizens draw at all?
Friday:
The supply contracts are concluded between market players, i.e. between Russian export companies such as Gazprom or Rosneft and European import companies such as Uniper, RWE, EnBW or Wingas.
In principle, therefore, only private-law companies are involved and obliged to supply or accept the gas.
The governments can at most build up political pressure or prohibit the fulfillment of the contract through sovereign measures.
But there is no immediate contractual basis for the German government to say that Gazprom must do this or that.
SPIEGEL:
What leeway do the companies involved have if Russia stops exporting?
Friday:
If the government in Moscow bans exports, Russian companies must comply with the ban under Russian law.
We in Europe will then no longer get gas.
The Russian companies do not meet their obligations from the supply contracts, but they also have real obstacles to doing so.
This means that non-delivery is equally legitimate at the level of contract law.
The Russian exporter is unable to deliver, and accordingly the German importers are of course also unable to continue to deliver the gas to the German customers.
SPIEGEL:
Could the Germans claim damages?
Freitag:
Claims for damages are theoretically conceivable, yes.
But they could not be asserted against Russia within the EU, since we have no jurisdiction over the Russian state, since it would act sovereignly with an export ban.
And it cannot be assumed that under Russian law there is any state liability at all.
Of course, the Russian courts would say no.
Complaints in Russia would therefore probably be pointless.
SPIEGEL:
What do these transnational agreements look like in general, are there special clauses for special situations such as war?
Freitag:
I don't know the contracts in question for the gas supply business.
But I strongly assume that these are largely standardized contracts in which provisions are certainly made to prevent delivery problems and other contractual disruptions.
Typically, so-called
material adverse changes
or
force majeure are taken into account there
, i.e. fundamental disruptions to the contractual structure and force majeure.
In this regard, the suspension of contractual obligations, contract adjustments or termination rights are often agreed.
But that depends on the specific agreements between the parties, so discretion is very important.
In any case, wars are a case of force majeure, and when force majeure occurs, contractual obligations are regularly suspended.
Accordingly, there is no claim for payment despite the lack of delivery.
At least that would be exactly the same according to German statutory law.
SPIEGEL:
Gas is used by German industry, for example to make steel or glass, but also for medicines and food.
If Russia were to stop exports, could major customers in Germany sue?
Friday:
Of course, both large and small customers have a contractual right to the gas quantities ordered within the agreed periods.
But if we have a disruption in the delivery of German intermediaries, then they can of course also refer to any embargo measures towards their customers.
You are then entitled to stop making the deliveries.
Which infrastructures and customers are to be supplied with priority is currently being clarified by the Federal Network Agency and the Federal Ministry of Economics.
They will determine who is to be supplied first.
If, for example, private consumers and hospitals have to be supplied as a priority, then the chemical industry has to take a back seat.
Even if private contract law and public energy law are fundamentally separate,
SPIEGEL:
So some parties will get nothing from the system.
Friday:
That is correct.
To put it bluntly: In such a case, those customers who are no longer getting gas are the ones who are tricked.
The intermediaries also miss out on corresponding profits from the sale.
If necessary, the state must intervene, for example with financial aid, before significant damage occurs.
That is already being discussed.
However, cash payments could not prevent the loss of production.
It will therefore no longer be possible to manufacture products in the economic cycle.
SPIEGEL:
Does the federal government have the option of accessing frozen Russian funds or possessions in order to ultimately burden Russia in a roundabout way?
Friday:
The current EU embargo measures typically only order the freezing of funds with regard to accounts, but not immediate expropriation.
With regard to other assets of Russian citizens and companies, only the power of disposal of the beneficiaries is currently restricted.
Whether one actually resorts to expropriations later on would have to be clarified politically and constitutionally.
This has not happened in the past.
SPIEGEL:
In the event of an EU embargo, could Russian companies sue the Europeans?
Friday:
We would then have the mirror image problem.
In this case, the European importing companies follow the instructions, which are binding for them, not to accept the gas supplies offered.
This means that deliveries would simply no longer be possible.
For their part, Gazprom or Rosneft and the Russian exporters would ultimately suffer damage, but could only sue to a limited extent, since these are measures of the European Union that import companies have to implement.
In any case, they could not assert claims for damages against the EU in the EU and under European law.
SPIEGEL:
Could German and European companies hope for anything from the European Union in this case?
Friday:
It would be a significant intervention in the supply contracts, the affected energy companies would then have to make a special sacrifice in the interest of the general public.
However, the European measure would still be legal.
However, since this is a very serious encroachment on the property rights of European companies, there is much to suggest that compensation must be ordered in order to make the embargo proportionate.
In the event of a dispute, the European Court of Justice would have to decide on this.
SPIEGEL:
How realistic is a positive verdict for entrepreneurs before the European Court of Justice?
Freitag:
The ECJ has ruled in the past, albeit in a slightly different legal context, that lawful legislative measures by the EU do not in principle trigger any obligation to pay compensation.
Claims for damages would therefore probably be rejected.
But, as said, compensation may be required to make the measure legal.
However, we are talking about billions here, which may be so high that they go beyond the state framework.
The ECJ will also take this into account.
SPIEGEL:
What about private individuals, could they assert their claims?
Freitag:
Consumers have their supply contracts with their gas suppliers and therefore have a fundamental right to fulfillment.
However, the Federal Network Agency will clarify to what extent the suppliers are entitled and obliged to supply under public law.
At the end of the day, this decision will also be taken into account at the contractual level.
And if we do have a legitimate embargo, then consumer and enterprise customers may well be out of luck.
DER SPIEGEL:
Has there ever been a situation like this in recent history?
Friday:
The EU has been taking embargo measures against individuals, terrorist organizations and states in various contexts for a long time.
And as early as World War I, sanctions were imposed on the German Reich, which also occupied the German courts.
There you have orientation for the current situation.
Of course, recent measures have seldom been as extensive as the current ones.
We now have geographical proximity to the war zone and much closer economic ties to the warring factions than in the past.
From the EU's point of view, it has never been as important economically as it is today.
