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Court rulings

Highest administrative-law court in the Netherlands rules in ACM’s favor in Kingspan and Cohesie cases regarding 18-week connection deadline for electricity

23-09-2020

Today, the Dutch Trade and Industry Appeals Tribunal (CBb), which is the highest administrative-law court in the Netherlands, handed down rulings in two appeal cases regarding the reasonable time period in which system operators must realize connections for electricity.

In two dispute decisions, the Netherlands Authority for Consumers and Markets (ACM) established that system operator Liander violated the Dutch Electricity Act, because it failed to realize two connections for production installations for sustainable electricity within the statutory deadline. In the appeal proceedings, the CBb ruled in ACM’s favor. The Dutch Electricity Act stipulates that connections with a capacity lower than 10 MVA, which was the case here, must be realized within an 18-week period.

Appeal proceedings

In the appeal proceedings, Liander argued that, in the case of production installations for sustainable electricity, system operators have the opportunity to invoke an exception to this deadline of 18 weeks (the so-called hardship clause), if they are able to demonstrate that they cannot be blamed for failing to meet this deadline. According to Liander, it could not be blamed for installing the connections too late, because it was dealing with a staffing shortage, and because the number of requests for connections has increased. According to ACM, however, Liander, under the Dutch Electricity Act, can only invoke the hardship clause for connections with a capacity higher than 10 MVA, and connections with a capacity lower than 10 MVA must always be realized within 18 weeks. The CBb concurred with ACM’s position, and disallowed Liander’s appeal.

Statutory framework

The current statutory framework requires that system operators must always be able to install connections with a capacity lower than 10 MVA within 18 weeks, including connections for production installations for sustainable electricity. Installing the connections is one of the core duties of system operators. A market participant requesting a connection is unable to acquire a connection in any other way, and is therefore completely dependent on the system operator. The duty to connect ensures that everybody is entitled to a connection, and the 18-week deadline offers users certainty about the timing of the connection, and it also rules out unequal treatment in this area.