Anyone distributing electricity through their own network on an industrial estate, port area, campus or business park must first answer one key legal question: what exactly is this network? In practice, people quickly refer to a private network, but legally that term means little. What is decisive is whether it concerns a closed distribution system, a direct line or merely an installation. It is precisely that classification that determines which statutory regime applies, which obligations apply towards connected parties and how much room there is to operate the system privately.
The Energy Act (Energiewet) has applied since 1 January 2026, replacing the Electricity Act 1998 and the Gas Act. It kept the instrument but changed the name: what the Electricity Act 1998 called a gesloten distributiesysteem, a closed distribution system, the Energy Act calls a gesloten systeem, a closed system (art. 3.7 Energiewet). The substance is recognisable, but the terminology in older contracts, site regulations and adviser memoranda no longer matches the statute. A closed system is not an unregulated internal network: it is a legally recognised system within a defined location, to which a lighter but real regime applies, and operating one requires a recognition from the Netherlands Authority for Consumers and Markets. For operators of private networks it is therefore essential to keep the distinction between a closed system, a direct line and an installation clearly in mind.
What is a closed system under the Energy Act?
A CDS is essentially a distribution system within a geographically defined industrial, commercial or otherwise functionally connected location, used to distribute electricity to a limited group of users. Think of an industrial cluster, port area, logistics site or multi-tenant campus with its own internal energy infrastructure. The defining feature is that the system is not intended for public distribution to an indeterminate group of customers, but for use within a closed site or organisational structure.
The rationale behind this regime is practical. At many of these locations, the users are technically, operationally or economically intertwined. The energy infrastructure then forms part of a broader site organisation, in which it does not fit well to apply the full public grid management regime one to one. The Energy Act therefore leaves room for a separate framework for this type of closed system.
That does not mean, however, that every internal network is automatically a CDS. The classification does not depend on the name the parties give to their infrastructure, but on the actual configuration of the system, the function of the network, the nature of the location and the group of connected parties. A network only qualifies as a CDS if it legally and factually meets the statutory characteristics of a closed distribution system.
A CDS is not the same as a private network
In practice, the term “private network” is often used for all energy infrastructure that is not owned by a public grid operator. As a working term that is understandable, but legally the concept is too broad. A private network can be a CDS, but also a direct line or an installation. Without further classification, the term therefore says little about the applicable legal framework.
That is precisely where things often go wrong in practice. A site operator regards its own network as an internal company network, while legally it may be a distribution system to which specific energy rules apply. Conversely, systems are sometimes positioned as a CDS too quickly, while the actual set-up does not match that well. In both cases risks arise: in supervision, in contracts with users or when expanding and restructuring the site.
For a legally sustainable arrangement, what is decisive is therefore not the commercial or technical name of the network, but the question of what function the system serves and how the network is actually used.
CDS, direct line and installation: the right delineation
The distinction between a CDS, a direct line and an installation is fundamental.
A CDS is a closed distribution system within a defined location, on which multiple users may rely for their electricity supply. The operator then effectively manages an internal distribution network with its own legal position within energy law.
A direct line has a different function. It involves a direct connection between a production installation and one or more customers. The emphasis is then not on distribution within a site, but on the direct link between generation and consumption.
An installation stands alongside that again. It does not involve a distribution system for several separate connected parties, but the own electrical installation of one party behind one connection. In that case, precisely the network character that is needed to enter the domain of a CDS or distribution systems is absent.
This delineation is often decisive in practice. Not only for the question of which statutory regime applies, but also for the way in which ownership, use, tariffs, expansions and liabilities must be arranged contractually.
Why the classification is so important legally
The question of whether a system qualifies as a CDS is not an academic preliminary issue. The classification determines the legal architecture of the entire site. It touches, among other things, on the position of the operator, the rights of connected parties, the possibilities for new entrants, the relationship with the public grid operator and the room for customisation in contracts and conditions.
Without the correct classification, friction almost always arises. An operator who assumes that it merely manages an internal network may be confronted with obligations towards users that it had not factored in. Connected parties, in turn, may believe they are entitled to access, transport or transparent conditions, while the operator reasons primarily from ownership and site management. The result is often a discussion about the legal status of the network, even before tariffs, capacity or connection requests can be addressed substantively.
That is why the analysis must always begin with the structure of the system itself: where is the network located, who is connected, what function does the network serve and how does the system relate to the rest of the electricity system? Only then can an operating model be designed in a legally sound manner.
Obligations of the CDS operator
A closed system falls under a lighter regime than a public distribution grid, but that does not mean the operator has free rein. The Energy Act requires the operator to be designated (art. 3.6) and the system itself to be recognised as a closed system by the ACM (art. 3.7); a direct line, by contrast, requires only a notification to the ACM (art. 3.9). Without that recognition, the network is legally an ordinary distribution system and the full grid management regime applies, which is precisely the outcome most site owners are trying to avoid. Even within a recognised closed system, obligations remain towards connected parties and, depending on the situation, towards parties wishing to gain access.
In practice, this mainly revolves around careful handling of connection and transport requests, objective and transparent conditions and a tariff structure that is explainable and defensible. That requires more than just technical operation of cables and installations. A CDS operator must also organise its position properly in legal terms: in contracts, in site regulations, in the allocation of costs and in the way different users are treated.
This is all the more important because at many locations the energy infrastructure forms part of broader commercial and spatial arrangements. Whoever owns the site is not automatically free to operate the energy infrastructure entirely at its own discretion. As soon as a CDS is involved, the operation acquires a public-law dimension that works through into the private relationships on the site.
What the Energy Act means for existing and new site networks
With the Energy Act, in force since 1 January 2026, the statutory foundation under closed energy infrastructure has changed. The core of the concept remains recognisable, but it has been renamed, renumbered and embedded in a new statutory framework, and the technical rules now sit in the codes made under that Act, in particular the Systeemcode elektriciteit. Recognitions and exemptions granted under the Electricity Act 1998 do not simply carry their old wording forward, so existing structures have to be reviewed against the new provisions rather than assumed to be compliant. We set out the qualifying criteria in more detail in our article on when a grid qualifies as a closed system.
Operators of existing private networks cannot simply assume that their current arrangement fits unchanged within the new framework. This applies not only to the technical configuration of the system, but also to the delineation of the network, the composition of the user group, the contractual structure and the relationship with the public grid. Where things have often grown pragmatically in the past, the Energy Act calls for a sharper legal underpinning of the chosen structure.
The same applies to new projects. Anyone developing energy infrastructure for a business park, campus or cluster today would be wise to classify the system legally from the drawing board onwards. Repairing afterwards is usually more expensive and legally more complex than structuring in advance.
The relationship with the public grid
A closed system does not operate in a vacuum. It is connected to the broader electricity system and thereby to the public grid operator, and it is at that interface that most questions arise in practice: transport capacity at the transfer point, grid congestion, expansion of connection capacity, feed-in from decentralised generation and responsibility for reinforcing the infrastructure. Congestion management is governed by the Systeemcode elektriciteit made under the Energy Act, and the question of how far the operator of a closed system is drawn into it is one of the live issues in this field.
For operators it is therefore not sufficient to look only at the internal structure of the site. Equally important is how the CDS relates to the surrounding grid. A legally sustainable and practically workable set-up requires alignment between the internal rights of users and the external constraints of the public system. Particularly in a time of grid congestion, this is not a side issue but a core part of the operation.
Where do disputes arise in practice?
Most disputes concerning private networks and CDSs can be traced back to four recurring themes.
First, there is the classification question: is it a CDS, a direct line or an installation? As long as there is uncertainty about that, the other rights and obligations also remain diffuse.
Second, discussions regularly arise about access and connection. New users on a site want access to the existing energy infrastructure, while the operator believes that the system is not set up for that or that admission leads to undesirable costs or restrictions.
Third, there are tariff and conditions issues. As soon as several users depend on one internal network, discussion almost inevitably arises about cost allocation, transparency and the question of the extent to which the operator may take its own commercial interests into account.
Finally, disputes arise upon transformation of the site: sale, redevelopment, expansion, carve-outs, changes of users or transfer of infrastructure. It is precisely at those moments that it becomes clear whether the network is legally robustly structured or has mainly grown pragmatically.
Practical lesson for the market
For the market, the most important lesson is that the term “private network” is insufficient as a starting point. The relevant question is always whether the actual structure of the system fits within the regime of the CDS or whether something else applies legally. That analysis should not be made only once a dispute arises, but already when setting up the site, connecting users and recording contractual relationships.
This applies in particular under the Energy Act. It makes even clearer that closed energy infrastructure can only be operated sustainably if technology, contracts and legal classification align. A network that functions technically excellently, but is legally improperly arranged, remains vulnerable to supervision, conflicts with connected parties and problems with expansion or transfer.
The closed system under the Energy Act
Under the Energy Act, the closed system, still widely called a closed distribution system after the old terminology, is the central legal framework for closed electricity networks at industrial and commercial locations. It is not an informal internal network but a specifically regulated system within a defined environment, with a limited group of users, a designated operator and a recognition from the ACM.
For operators of private networks, the core therefore always lies in the classification of the system. Only once it is established whether it is a CDS, a direct line or an installation can operation, contracts, tariffs and access be given shape responsibly. Anyone working with their own energy infrastructure under the Energy Act would be wise to make that analysis in good time and carefully. That not only prevents legal risks, but also creates the basis for a stable and future-proof arrangement of the site.
Do you have questions about the classification of a private network, the arrangement of a closed distribution system or the consequences of the Energy Act for your site or cluster? The energy law specialists at Law & More regularly advise on the structuring, operation and disputes surrounding closed energy infrastructure.
The position of connected parties on a closed system
The sections above look at the closed system from the operator’s side. Below is the mirror image: what a business connected to a closed system can expect, and where its rights under the Energiewet begin and end.
Existing exemptions and transitional law
For closed distribution systems that already existed before 1 January 2026, the Energiewet provides for transitional law. An old exemption granted under the Elektriciteitswet 1998 is, for its remaining term, treated as a recognition and as a designation of the operator under the Energiewet. This means that an existing GDS has not been left without a legal basis from one day to the next, but it does not mean that existing business operations may simply continue unchanged.
Existing tariff structures and conditions may also continue to have effect: structures and conditions that were in force immediately before the entry into force of the relevant Energiewet provision may, within the transitional arrangement, be regarded as approved methods or conditions. It is therefore important for both the operator and the connected party to consult the precise transitional provision before assuming that old arrangements have simply lapsed, or conversely that they simply continue to apply unchanged. The available material does not support the conclusion that there is a single general rule that applies exactly the same transitional regime to every exemption, tariff structure or contractual condition; this must be assessed on a case-by-case basis.
Connection, transport and supply: three distinct questions
A careful analysis of the position of the connected party requires a clear distinction between three questions that are often conflated in practice: the question of connection to the system, the question of the transport of energy over that system, and the question of the supply of energy by a supplier. The Energiewet regulates these subjects separately, and the consequences of a dispute can differ significantly depending on whether it concerns connection, transport or supply.
The operator of a closed system is required, on request, to make an offer for the provision, management and maintenance of a connection, and for the provision of transport of electricity or gas over its system. Refusal is possible where there is, on reasonable grounds, insufficient transport capacity available; such a refusal must then be properly substantiated. For the connected party, this means that a mere reference to a lack of capacity is not sufficient: the operator may be required to provide insight into the concrete technical limitation, the available and required capacity, and the way in which the remaining capacity is allocated.
As regards supply, the starting point is that an end user is in principle free to conclude an agreement with a supplier of its choice. For GDS operators that also supply energy themselves or are otherwise commercially involved with the site, this means that system management on the one hand and supply or other commercial services on the other may not simply be combined. Access to the system may not, in practice, be made conditional on taking energy or other non-network-related services from the operator or a party affiliated with it.
Record the contracted capacity separately
A point that regularly gives rise to disputes in practice is the assumption that the technical connection capacity is equal to the contractually available transport capacity. That is not necessarily the case. Case law concerning public networks shows that it is for the applicant itself to determine the desired contracted transport capacity and to verify whether the network operator’s offer corresponds to it. This case law concerns the public network and therefore does not constitute a direct GDS rule, but the practical point of attention is equally relevant for a GDS: a high technical connection capacity offers no guarantee of an equally high contracted transport capacity.
For companies electrifying their production processes, wishing to install charging infrastructure, or otherwise seeing their energy needs grow, this distinction is essential. In the connection and transport agreement, it is advisable to record separately: the technical connection capacity, the contracted transport capacity for offtake and for any feed-in, the procedure for increasing that capacity, the consequences of exceeding it, and the criteria that apply in the event of capacity scarcity.
Capacity scarcity, congestion and investment issues
With increasing congestion on the Dutch electricity grid, the question of capacity allocation and investment in grid reinforcement has also become more important within closed distribution systems. The available material does not support the conclusion that exactly the same congestion management regime applies to every closed system as applies to the public network; such a categorical statement would oversimplify the statutory reality. It is, however, plausible that an operator relying on capacity scarcity must substantiate this concretely, and that the remaining capacity may not be allocated arbitrarily or solely in favour of affiliated parties.
Restraint with absolute statements is also warranted on the question of who must finance a necessary grid reinforcement. There is no general rule providing that the costs of a system reinforcement may never be placed on a single connected party; it is, however, plausible that an investment benefiting the entire system, and therefore all connected parties, cannot simply be allocated in full to a single party without further justification. Connected parties confronted with a substantial investment proposal would do well to ask for the technical justification, the expected useful life of the investment, and the extent to which other connected parties also benefit from it.
Tariffs, general terms and conditions, and transparency
An important difference from the public network is that the operator of a closed system does not have its tariffs approved in advance by the ACM in the same way as a regular network operator. This does not mean, however, that it may freely charge any tariff. The Energiewet requires that the tariff be based on a calculation method drawn up and published by the operator in advance, which results in tariffs that reflect the costs of performing its tasks and obligations and that are transparent and non-discriminatory.
For the connected party, this means that a high tariff is not, in itself, decisive. The relevant question is whether the tariff results from a calculation method that was knowable in advance, and whether the underlying costs can be verifiably attributed to the performance of a statutory task. A connected party that doubts the reasonableness of a tariff can ask the ACM to assess whether the calculation method or the tariff meets these requirements; it is not the case, however, that the ACM automatically claws back or adjusts every tariff in every case. The ACM can determine that the operator must adjust its calculation method or tariff where it finds that the statutory requirements have not been met; whether, and to what extent, amounts already paid can be reclaimed is generally a separate, additional civil-law question.
The general terms and conditions of the operator of a closed system must also be reasonable, transparent and non-discriminatory. For connected parties with a small connection acting in the course of a profession or business, provisions of the Dutch Civil Code on general terms and conditions may also apply by analogy. The same protection does not automatically apply to large commercial connected parties; their position must be assessed on the basis of the specific agreement, the statutory tariff and transparency norms, and the general rules of the law of obligations. An operator using a broad exemption clause, a unilateral amendment clause or an open cost clause must be able to justify the commercial and technical necessity of doing so; such a clause is not automatically voidable without further review, but nor is it automatically valid.
Grid congestion and a reasonable period for connection
Case law on public networks offers useful points of reference for the way in which connection, transport and grid expansion must be distinguished from one another as a matter of law, even though that case law is not a direct GDS framework. For example, in case law on congestion on the public network, it has been held that established grid congestion does not, without more, give rise to a right to an increase in the contracted transport capacity, and that an agreement for connection and transport must be interpreted in light of the circumstances of the case, in which the actually available grid capacity also plays a role.
For a closed system, this suggests that a comparable, contractual and factual approach is appropriate: whether a connected party is entitled to a particular capacity cannot be considered in isolation from the capacity actually available on the system and the way in which the agreement describes that capacity. A reasonable period for realising a connection remains a relevant point of assessment in this context, even where the precise period will not be identical in every GDS situation to that on the public network.
Complaints, the ACM and the civil courts
If a dispute escalates, the connected party in principle has two routes available, which do not exclude one another. The ACM is competent to rule on a complaint from a party concerning the manner in which the operator exercises its tasks and powers under the Energiewet, or complies with its statutory obligations. Such a complaint is treated as an application for a decision; the ACM decides in principle within two months, and its decision is binding, without prejudice to the possibility of administrative appeal. This route is suitable for questions concerning compliance with statutory obligations, such as access, tariffs, transparency and non-discrimination.
The civil courts are the appropriate route for purely contractual disputes, the repayment of amounts overpaid, damages, the annulment or disapplication of contractual clauses, termination, and urgent interim measures such as summary proceedings in the event of a threatened disconnection. Filing a complaint with the ACM does not affect the possibility of using other legal remedies; the ACM route is therefore not exclusive, but the ACM itself does not assess claims for damages. A party wishing to obtain repayment or damages following an ACM ruling that a tariff does not meet the statutory requirements will, as a rule, have to bring a separate civil claim and substantiate the amount of the claim, the causal link and the damage independently. In the event of an acutely threatened disconnection, for example due to a disputed invoice, summary proceedings may offer a solution, although the court will in that case too require a genuine urgent interest; a mere wish for quick clarity on the validity of a tariff change will generally not be sufficient for that purpose.
Change of operator: sale, restructuring and bankruptcy
Industrial sites with a closed system are regularly traded, restructured or transferred to another group company. The statutory obligations attached to the system, such as the connection and transport obligation and the tariff and transparency norms, in principle continue to attach to the system regardless of who operates it. Whether the existing connection and transport agreement automatically transfers to a new operator is a separate, contractual question that depends on the transaction structure chosen: in a share transfer, the contracting party generally remains the same legal entity, whereas in an asset transfer, agreements do not transfer automatically, and a transfer of contract requires its own legal basis and, absent prior consent, the cooperation of the connected party.
In the event of a threatened bankruptcy of the operator, the risk to connected parties is real: the continuity of management, maintenance and energy supply may be jeopardised, while the connected party itself has no influence over the operator’s financial position. We advise connected parties in such a situation to obtain, at an early stage, an assessment of what security they can negotiate, such as a guarantee from a parent company, a maintenance reserve, or arrangements for the event that an administrator does not continue the management of the system.
The connected party as a contracting party: avoid falling behind
The best legal protection begins with the contract. A company establishing itself on an industrial park with a GDS would do well to critically review the connection and transport agreement before signing: is the tariff system transparent and bounded, are there arrangements for capacity in the event of expansion, what are the service and fault-response arrangements, including response times, and what happens in the event of a sale of the network or the site? The term of the agreement and the possibility of exit also deserve attention: a connected party cannot, in practice, simply switch to another operator, so the agreement determines the relationship for a long period.
Existing connected parties who have accepted onerous conditions are in principle free to seek renegotiation or to ask the ACM for a review; agreeing to a clause at the time the agreement was entered into does not, without more, preclude a later review. It is, however, advisable to act promptly: the longer a tariff is applied and paid without challenge, the more complex the discussion about recovering amounts overpaid in the past may become, having regard among other things to limitation periods and the question of whether inaction can be interpreted as acceptance.
Practical checklist
For the operator of a closed system, it is advisable to check whether the recognition, designation and transitional status of the system are up to date and in order, whether the tariff method has been published in advance and is verifiably substantiated, whether capacity refusals are motivated concretely and on technical grounds, whether general terms and conditions and amendment clauses are reasonable and transparent, and whether, in the event of a sale, restructuring or threatened discontinuity, timely attention is paid to the continuity of management and supply.
For the connected party, it is advisable to request the recognition and designation of the operator, to record the contracted transport capacity separately from the technical connection capacity, to ask for the calculation method and underlying costs in the event of tariff changes, to have capacity requests and refusals substantiated in writing, to have general terms and conditions reviewed before signing, and to retain relevant documents such as invoices, correspondence and capacity calculations with a view to a possible ACM complaint or civil proceedings.
Frequently asked questions
What is a closed system under the Energy Act?
A closed system, called a gesloten systeem in the Energy Act and formerly a closed distribution system, is a system within a geographically defined industrial, commercial or functionally connected location, used to distribute electricity to a limited group of users. Think of an industrial cluster, port area or multi-tenant campus with its own internal energy infrastructure. The system is not intended for public distribution, but for use within a closed site or organisational structure, and it must be recognised as such by the ACM under article 3.7 of the Energy Act.
Is a private network the same as a CDS?
No. The term “private network” is used in practice for all energy infrastructure that is not owned by a public grid operator, but legally that term is too broad. A private network can be a closed system, but also a direct line or an installation. Without further classification, the term says nothing about the applicable legal framework.
What is the difference between a CDS, a direct line and an installation?
A closed system is a system on which multiple users rely for their electricity supply and which the ACM has recognised as such (article 3.7 Energy Act). A direct line is a direct connection between a production installation and one or more customers, and requires only a notification to the ACM (article 3.9 Energy Act). An installation is the own electrical installation of one party behind one connection, and lacks the network character needed to qualify as a system at all.
Does a CDS operator have obligations towards users?
Yes. A closed system falls under a lighter regime than a public distribution grid, but the operator still has obligations. In practice, this involves careful handling of connection and transport requests, objective and transparent conditions and a tariff structure that is explainable and defensible. As soon as a closed system is involved, the operation also acquires a public-law dimension that works through into the private relationships on the site.
Can the owner of a site operate the energy infrastructure entirely at its own discretion?
Not automatically. Ownership of a site does not give unlimited freedom regarding the energy infrastructure. As soon as the network qualifies as a closed system, specific energy-law rules apply. Those rules touch on the rights of connected parties, the possibilities for new entrants and the relationship with the public grid operator.
What has the Energy Act changed for existing private networks?
The Energy Act, in force since 1 January 2026, replaced the Electricity Act 1998 and renamed the closed distribution system a closed system. Operators of existing private networks cannot simply assume that their current arrangement and their existing recognition fit unchanged within the new framework. This applies to the technical configuration, the delineation of the network, the user group, the contractual structure and the relationship with the public grid. The act calls for a sharper legal underpinning of the chosen structure.
How does a CDS relate to the public electricity grid?
A closed system does not operate in isolation. The system is connected to the broader electricity system and thereby to the public grid operator. At that interface, questions arise about, among other things, transport capacity, congestion, expansion of connection capacity and feed-in from decentralised generation. A legally sustainable set-up requires alignment between the internal rights of users and the external constraints of the public system.
What do most disputes concerning private networks arise about?
Most disputes can be traced back to four themes: the classification question (is it a closed system, a direct line or an installation?), discussions about access and connection of new users, tariff and conditions issues regarding cost allocation and transparency, and conflicts upon transformation of the site such as sale, redevelopment or transfer of infrastructure.
When should the legal classification of a network be made?
As early as possible, preferably already when setting up the site. Repairing afterwards is usually more expensive and legally more complex than structuring in advance. Anyone developing energy infrastructure for a business park, campus or cluster today would be wise to classify the system legally from the drawing board onwards.
Below we answer a number of questions that connected parties and operators most frequently ask us in practice about the position of the connected party under the Energiewet.
What rights does a commercial connected party have under the Energiewet?
The connected party is in principle entitled to connection and transport, to the extent that capacity is available for this. In addition, the operator must apply reasonable, transparent and non-discriminatory tariffs and conditions. This statutory protection exists alongside the agreement; a contract cannot simply override the statutory minimum standards of the Energiewet.
May the operator make connection conditional on taking energy?
An operator may not simply make access to the GDS conditional on entering into a supply agreement or taking additional services. Such a linkage warrants critical assessment where it in practice results in a company being denied access unless it also takes other commercial services from the operator or an affiliated party.
Can the operator refuse a connection or an expansion?
This is possible where there is, on reasonable grounds, insufficient transport capacity available, but the refusal must be factually substantiated. The connected party can ask about the technical limitation, the available capacity, the consequences of the request, and the possibilities for expansion or reinforcement. The remaining capacity must be allocated on objective, transparent and non-discriminatory grounds; there is, however, no guarantee that capacity will always be available.
What is the difference between connection capacity and transport capacity?
The technical capacity of a connection is not always the same as the transport capacity that is contractually available. In the connection and transport agreement, it is therefore advisable to record separately: the technical connection capacity, the contracted transport capacity, the capacity for offtake and any feed-in, the procedure for expansion, and the consequences of exceeding it. For companies wishing to electrify, install charging infrastructure or expand their production capacity, this distinction is essential.
Who pays for a necessary grid reinforcement?
This depends on the technical necessity, the contractual arrangements, and the extent to which the investment benefits multiple connected parties. The operator must be able to explain why a particular allocation of costs is reasonable. Passing on the full cost of a system reinforcement to a single connected party without justification, while other companies also benefit from it, can be challenged; there is, however, no categorical rule that this is never permitted.
May the operator set its tariffs freely?
No. Although a closed system is not regulated by the ACM in advance in the same way as a public network, the operator must, under the Energiewet, apply a calculation method published in advance that results in tariffs that are cost-reflective, transparent and non-discriminatory. The connected party must be able to understand how the tariff is composed and what costs underlie it.
What can I do about an unexpected tariff increase?
First ask in writing for the new tariff calculation, the contractual basis, the underlying costs, the date and manner of publication, and the consequences for other connected parties. Then make clear that any payment made is made under protest. In the event of a dispute over statutory compliance, the connected party can involve the ACM; for repayment, damages or an urgent injunction, civil proceedings are generally required.
Can the ACM review a closed system tariff?
The connected party can ask the ACM to review the calculation method or the tariff against the statutory requirements of cost-reflectivity, transparency and non-discrimination. If the ACM establishes a breach, it can determine that the operator must adjust its method or tariff. A tariff found unreasonable by the ACM can no longer simply be enforced; repayment of amounts already paid generally has to be claimed separately under civil law, and not every ACM ruling automatically results in an obligation to repay.
When should I go to the civil courts?
The civil courts are the appropriate forum where the connected party seeks a private-law outcome, such as performance of the connection or transport agreement, repayment of amounts overpaid, damages, annulment or disapplication of a contractual clause, termination, or an injunction or order in summary proceedings. The ACM route and the civil route can be used alongside one another: the ACM assesses statutory compliance, while the civil courts can determine the contractual and financial consequences of that.
Which documents should I keep as a connected party?
Keep, at a minimum, the recognition or exemption of the closed system, the connection and transport agreement, the general terms and conditions, tariff sheets and tariff amendments, capacity requests and technical reports, invoices and metering data, correspondence about faults, capacity and tariffs, and arrangements regarding the transfer or change of operator. These documents are important for an ACM complaint, civil proceedings, and the assessment of damage or repayment.
Which contractual provisions deserve particular attention?
Pay particular attention to unilateral powers to amend tariffs, open-ended cost clauses, limited or unclear liability, the absence of guaranteed transport capacity, unclear fault-response and repair times, a long term without an exit arrangement, automatic transfer to a new operator, linkage to supply or lease, an investment obligation without a cost cap, and the absence of arrangements regarding ownership and maintenance. A contract should describe not only what is delivered at the outset, but also what happens in the event of expansion, scarcity, faults, sale and bankruptcy.
What happens if the operator is sold?
The statutory obligations attached to the closed system in principle continue to exist in the event of a change of operator. The contractual position must be assessed separately. In a share transfer, the original legal entity generally remains the contracting party; in an asset transfer, a transfer of contract is not automatic. The connected party would do well to check whether its agreement has been validly transferred and whether the succeeding operator is permitted to continue applying the same tariffs and conditions.
What can I do in the event of a threatened bankruptcy of the operator?
A bankruptcy can have consequences for the management, maintenance and continuity of the energy supply. Connected parties would be well advised to have it assessed at an early stage whether security has been arranged, such as a guarantee from a parent company, a maintenance reserve, or an arrangement for temporary management. It is also important to establish who owns the cables, transformers, metering equipment and other essential assets.
