On 11 March 2025 (ECLI:NL:CBB:2025:145), the Trade and Industry Appeals Tribunal (“CBb”) ruled on the appeals that had been lodged against the prioritization framework of the ACM. The ACM prioritization framework contains the functions of parties that get priority with their transport requests to the grid operator. The highest administrative court ruled that the ACM should have substantiated better which parties with a social function will be included in the framework. One of these appeals had been lodged by VodafoneZiggo.
What is this case about?
Grid congestion is a large social problem. The grid cannot cope with the growing demand for electricity, which results in long waiting times for parties before they are connected to the grid and before they actually receive or can supply power. This is a problem for parties seeking a new connection or parties wishing to reinforce their existing connection. Residential areas, hospitals, supermarkets: all these parties have to wait for electricity until there is room on the grid.
The Electricity Act 1998 provides that the grid operator cannot discriminate between parties making a transport request. For years, this has been implemented according to the first come first served principle (“FCFS”): the grid operator handles transport requests in order of receipt. Due to grid congestion, the FCFS principle is no longer working optimally. From a societal point of view, it is desirable for parties with social importance to get priority over others who are in the queue. That is why the ACM established the prioritization framework. So far, everyone still agreed with the ACM.
What is behind the appeals?
To define the scope, the ACM only looked at the EU Security of Gas Supply Regulation. This Regulation was adopted by the European Union in order to further collaboration between Member States to prevent disruptions in gas supply. Under this Regulation, Member States can designate parties that supply “essential social services” related to healthcare, essential social care, emergency, security, education or public administration. These parties are the last to be disconnected if there is a disruption in gas supply. The ACM subsequently used these categories to create a strict dividing line within the prioritization framework.
Besides, the ACM chose not to include ‘chain effects’. This means that the ACM has not included any services in the framework that are necessary for the functioning of a social function that is included in the framework. An example of the above is that the emergency services can only function with the help of telecommunications. According to the ACM, telecommunication services are only ‘chain effects’.
The parties did not agree. In short:
- The ACM cannot base itself exclusively on the Security of Gas Supply Regulation. This regulation concerns gas, not electricity. The parties have been excluded from the framework solely because they are not dependent on gas.
- The ACM did not wish to involve any other laws and regulations in its consideration, although there are numerous laws in which certain services are designated because of their social importance. For example, the CER Directive on the resilience of critical entities and the NIS2 Directive on ensuring cyber security in the European Union. In these and other laws, telecommunication services are always designated because of their social importance.
- Some parties are subject to statutory obligations. They cannot meet those obligations if they do not have the necessary transport capacity.
- The ACM cannot rule out all chain effects. Some functions are of great social importance, precisely because they are necessary for the functioning of society.
What does the CBb say?
The CBb found for VodafoneZiggo and the other professional parties. According to the CBb, the ACM has the power to establish such a framework and has to carefully weigh the interests of which parties will be included in this framework. It will not do to adhere rigidly to the Security of Gas Supply Regulation. So, back to the drawing board it is.
The CBb also gave the following messages:
- Because grid congestion will still be a problem in the coming ten years, the ACM might include a flexibility clause in the framework, so that it can add a function or a party if necessary.
- The CBb pointed out to the ACM that the parties have rightly referred to all kinds of laws and statutory obligations, which must be involved in the weighing of interests.
- The CBb does agree with the ACM that the functions must not be formulated so broadly that the framework becomes devoid of meaning. This ruling therefore does not mean that all parties who have appealed will indeed be included in the new framework.
In the end, the ruling is not so bad for the ACM. The CBb expressly considered that the ACM has the power to make a weighing of interests within the statutory frameworks individually, and that this is in line with its public task. The ACM was the first supervisory authority in the European Union to have established such a framework. The ACM itself also indicated that it is searching. This ruling gives the ACM the necessary certainty to make a new consideration independently.
The CBb nullified the ACM’s decision, but made the provision that the current framework will remain in effect until 1 January 2026. The ACM has time until then to adopt a new framework.
We are curious how the ACM will proceed after this.
The prioritization framework offers no direct solution for grid congestion and will only offer solace for a few social parties in the short term. Other parties that are confronted with grid congestion can search for creative solutions in collaboration with other parties. Kennedy Van der Laan will be happy to help you. For inspiration, please visit our website.
