Response to CBb ruling: ACM has the independent power to set a prioritization framework and to make choices
On March 11, 2025, the Dutch Trade and Industry Appeals Tribunal (CBb), the highest administrative-law court in the Netherlands, ruled on the appeal filed by 14 companies and trade associations against the code amendment decision on opportunities for prioritization of transport requests (in Dutch: codebesluit prioriteringsruimte transportverzoeken). In this code decision, the Netherlands Authority for Consumer and Markets (ACM) gives system operators the ability to prioritize projects that contribute to major social objectives: projects such as schools, hospitals, and police stations can be given priority in getting connected to the grid. According to the CBb, ACM has the independent power to set a prioritization framework and to make its own choices. However, ACM does have to better assess and better justify which parties must have priority. The CBb reverses the code amendment decision, and gives ACM until January 1, 2026 to make adjustments to the current prioritization framework. The current framework will remain in effect until then.
What are the next steps?
The CBb’s ruling offers certainty regarding ACM’s powers as well as the boundaries within which ACM can set the framework. ACM will examine the ruling in greater detail, and will soon provide more information on what the next steps will be. ACM finds it important that parties with major social objectives are able to get priority next year as well.
What does prioritizing projects with a social function entail?
There are many areas in the Netherlands where there is currently insufficient grid capacity to fully meet demand for transport capacity. As a result, long waiting lists have emerged in such ‘congestion areas.’ System operators traditionally granted access to the grid on a first-come-first-serve basis. In order to accommodate the desire that is widely held across the Netherlands to use a different approach to these waiting lists, ACM created a prioritization framework. System operators have applied this prioritization framework since last year, and regularly receive priority requests.
The parties that appealed against the prioritization framework agree with ACM that system operators must be able to prioritize projects with social objectives. However, they believe that they, too, need to be included in the prioritization framework (or in a different category). ACM did not include these parties in the framework because the framework will become ineffective if too many parties need to be given priority. The CBb agrees with this point, but rules that ACM must better justify which parties are and are not included in the framework. The CBb also says that this does not mean that the framework must be expanded with more parties. In addition, ACM must ensure that the framework is sufficiently flexible and effective in order to be able to anticipate the challenges of the energy transition.