For industrial large consumers, data centres, greenhouse horticulture businesses and project developers, energy law comes down to two questions: will I get a connection, and will I get transport? The Energiewet (Energy Act), which replaces the Electricity Act 1998 and the Gas Act, answers both questions afresh. This article sets out what changes for large consumers on connection and transport, and which new rights and obligations come with it. For the full picture of the overhaul, see our article on the Dutch Energy Act.
The duty to connect on a full grid
The starting point remains that the network operator is obliged to offer a connection to anyone who asks for one. Practice in recent years has shown that this starting point is under pressure: in large parts of the country the grid is full and connection and transport requests are placed on waiting lists. We wrote earlier about when a network operator may refuse your connection. The Energy Act codifies the lessons of that period: the duty to connect remains, but the act and the underlying codes give the operator a clearer framework for dealing with scarcity, including time limits, room for prioritisation and a duty to be transparent about available capacity. For large consumers this means the legal battle shifts from whether there is a duty to connect to how the operator allocates scarce capacity, and whether it does so correctly.
Transport: from fixed certainty to flexible products
The biggest change lies in transport. Under the old law contracted transport capacity was a relatively static matter: those who held capacity kept it, and those who did not were left out. The Energy Act facilitates a broader range of contract forms, including flexible and time-bound transport rights, under which the customer can obtain a discount or priority in exchange for a willingness to be curtailed or limited at peak moments. That offers opportunities: a business able to make its process flexible can obtain capacity sooner and more cheaply. At the same time these products call for sharp contractual arrangements on availability, compensation and the operational consequences of curtailment.
Congestion management: taking part is the norm
Under the Energy Act congestion management is no longer an emergency measure but a structural part of the system. Large consumers with controllable capacity may be required to offer flexibility against payment, and can conversely turn that into a revenue model. We described the detail of this system, from bidding obligations to the payment mechanism, in our article on congestion management: rights, obligations and remedies. The Energy Act consolidates this practice and sharpens the relationship between operator and customer further. It pays to map your own flexibility before the network operator does.
New roles, new opportunities
The act also gives large consumers new room to act. As an active customer a business may generate, store and feed back electricity, and combine those activities with participation in flexibility and balancing markets, whether or not through an aggregator. Cable pooling and sharing a connection make it possible to use scarce grid capacity more efficiently, for instance by combining solar, wind and battery storage behind a single connection. Such structures do require a well-considered legal set-up: who is the connected party, who bears the balancing risk, how are costs and revenues divided, and what happens in the event of congestion?
Obligations: metering, sharing and cooperating
Against the new rights stand obligations. Under the Energy Act large consumers face more extensive duties around metering and data exchange: the energy system runs on data, and the act settles who must supply which data and who may use it. In addition, an active attitude may be expected of large consumers in congestion areas. A party that refuses to cooperate in congestion management while obliged to do so risks enforcement and liability.
What does this mean for your contracts?
The transition to the Energy Act is a natural moment to review the connection and transport agreement, the supply contracts and any flexibility contracts. References to old statutory provisions and codes need updating, and the new contract forms deserve a place in the company’s capacity strategy. Anyone taking investment decisions that depend on grid capacity would do well to assess critically how enforceable the network operator’s commitments really are.
Conclusion
The Energy Act gives large consumers more instruments than ever to manage their energy position actively, but attaches sharper obligations around flexibility and data. Those who know the new rules can obtain grid capacity where competitors are on the waiting list. Our energy law lawyers advise large consumers on connection and transport disputes, flexibility contracts and the strategic consequences of the Energy Act. Contact us for an analysis of your position.
