The success of the renewable energy transition in the Netherlands has created a paradox: the rapid deployment of solar parks and wind farms has outpaced the expansion of the physical infrastructure required to transport that energy. This has resulted in widespread “netcongestie” (grid congestion), creating significant waiting lists (wachtrij) for grid connections and leading to frequent refusals of transport capacity by grid operators (netbeheerders).
For energy producers, developers, and legal professionals operating within the Dutch energy sector, understanding the legal mechanisms behind congestion management is no longer optional—it is a critical operational requirement.
This article provides a comprehensive analysis of the legal framework governing congestion management, specifically focusing on the transition from the Elektriciteitswet 1998 to the Energiewet (effective 1 January 2026). It explores the strict obligations placed on grid operators, the rights of producers to fair access, and the specific legal remedies available when transport is unlawfully refused.
The Legal Framework: From Elektriciteitswet 1998 to the Energiewet
The Dutch energy landscape is currently undergoing a significant legislative shift. On 1 January 2026, the Energiewet enters into force, replacing the longstanding Elektriciteitswet 1998 and the Gaswet. This new legislation is designed to modernise the regulatory framework, consolidate scattered regulations, and provide better tools to address the current reality of grid scarcity.
It is important to note that while much of the existing case law (ECLI references) and regulatory history cites the Elektriciteitswet 1998, the fundamental principles—such as the duty to transport and the prohibition of discrimination—remain applicable and are reinforced under the Energiewet.
The Hierarchy of Regulations
Congestion management is governed by a multi-layered legal framework:
- The Energiewet: Establishes the primary duties of the grid operator to provide connections and transport capacity (replacing Article 24 of the Elektriciteitswet 1998).
- The Netcode Elektriciteit: Provides the detailed technical and operational rules. Specifically, Chapter 9 outlines the procedures for congestion management, including the obligations of producers to offer flexibility (Article 9.1f) and the products used to mitigate congestion (Article 9.31).
- ACM Decisions: The Authority for Consumers and Markets (ACM) issues code decisions and settles disputes, creating binding precedents on how capacity must be allocated.
Obligations Regarding Congestion Management
The relationship between a grid operator and a producer is not purely commercial; it is heavily regulated to ensure the security of supply and the advancement of the energy transition.
The Grid Operator’s Duty: Exhausting All Options
Under the Energiewet, grid operators have a statutory duty to transport electricity. They cannot simply refuse access because the grid is “full” on paper. Before refusing a transport request, the grid operator must demonstrate that they have exhausted all available congestion management measures.
According to Article 9.31 of the Netcode elektriciteit, grid operators are legally obliged to apply congestion management when physical congestion occurs or is imminent. This involves contracting flexibility from connected parties to relieve pressure on the grid.
The Producer’s Duty: Offering Flexibility
The obligation is mutual. Under Article 9.1f of the Netcode elektriciteit, producers (particularly those with a contracted capacity above a certain threshold, such as significant solar or wind assets) are generally obliged to offer their available dispatchable capacity to the grid operator for congestion management purposes. This ensures that the liquidity required to manage the grid is available.
Congestion Management Products
The Netcode defines specific products that grid operators must use to manage capacity:
- Redispatch (Bijlage 11): The grid operator instructs a producer to increase or decrease generation in exchange for financial compensation.
- Capacity Limitation (Bijlage 12): A producer agrees (or is instructed) to limit their feed-in capacity during peak times.
These mechanisms allow more parties to be connected to the grid than the physical peak capacity would traditionally allow, relying on the fact that not all producers generate at maximum capacity simultaneously.
Physical Congestion vs. Contractual Congestion
One of the most critical distinctions in Dutch energy law is the difference between physical congestion and contractual congestion. This distinction is frequently the subject of litigation (see ECLI:NL:RBGEL:2023:5258).
Contractual Congestion (Paper Congestion)
Contractual congestion occurs when the sum of all contracted transport rights exceeds the technical capacity of the grid components. However, this is often a theoretical “paper” reality. In practice, solar parks do not produce at night, and wind farms do not produce during still weather.
Legal Implication: Contractual congestion is not a valid ground for refusing a transport request. If the grid operator refuses transport solely because the “books are full,” despite there being physical room on the lines during relevant periods, they are acting in violation of the Energiewet and the principle of non-discrimination.
Physical Congestion
Physical congestion refers to the actual thermal or voltage limits of the cables and transformers being reached. This is the “copper” reality.
Legal Implication: A grid operator may only refuse transport if they can prove that granting access would lead to physical overload and that applying congestion management (redispatch) cannot solve the issue. The burden of proof lies heavily with the grid operator to substantiate this physical reality with verifiable data.
Price Regulation and Contractual Freedom
While producers and grid operators must enter into contracts for congestion management services, their freedom to negotiate terms is significantly restricted by the regulatory framework.
The “Market-Conform” Standard
The price for congestion management services is regulated by Article 9.31(3) of the Netcode elektriciteit. It states that the price “must not be higher than is customary in normal economic transactions.”
This prevents producers from exploiting their position to demand exorbitant fees for redispatch services, but it also protects producers by ensuring they receive fair market compensation for curtailed energy (often including lost subsidies like SDE++).
Limited Negotiation Room
Contracts are largely standardized. The definition of the product (redispatch), the operational requirements, and the technical specifications are dictated by the Netcode. Parties cannot negotiate terms that would deviate from the code or result in discriminatory treatment compared to other grid users.
Disputes often arise regarding what constitutes a “customary” price. While the ACM reviews methods collectively, individual price disputes are settled via the ACM’s dispute resolution procedure (geschilbeslechting) or the civil courts. Producers cannot force an ex-ante individual price review by the ACM; the system relies on ex-post dispute resolution.
Refusal of Transport: Procedural Requirements
When a grid operator refuses transport, the Energiewet (formerly Article 24(2) Elektriciteitswet 1998) imposes a strict motivation requirement.
The Duty to Motivate
A refusal must be “reasoned” (met redenen omkleed). The grid operator cannot issue a generic rejection letter stating that the area is congested. They must provide:
- Specific data regarding the capacity of the relevant substation and cables.
- Evidence that congestion management was investigated.
- The specific prioritization criteria used (e.g., the queue order).
Recent jurisprudence (ECLI:NL:RBGEL:2025:847; ECLI:NL:GHARL:2024:6926) confirms that courts rigorously test these motivations. If a grid operator fails to provide sufficient transparency regarding the queue or the physical state of the net, the refusal may be deemed unlawful.
Non-Discriminatory Allocation
Transport capacity must be allocated in a non-discriminatory manner. This is usually managed via a “first-come, first-served” principle based on the date of the request. However, the application of this queue must be transparent. If a grid operator allows a later applicant to connect while refusing an earlier one without objective technical justification, this constitutes prohibited discrimination.
The Role of the ACM: Supervision and Dispute Resolution
The Autoriteit Consument en Markt (ACM) plays a pivotal role in the energy sector. Their mandate includes supervising compliance with the Energiewet and the Netcode.
Dispute Resolution (Geschilbeslechting)
Under Article 51 of the Energiewet (formerly Elektriciteitswet 1998), any party having a dispute with a grid operator regarding the application of the regulations can file a complaint with the ACM.
- Nature: The ACM issues a binding decision.
- Scope: This can cover refusal of transport, connection delays, or disputes over congestion pricing.
- Appeal: Decisions can be appealed to the Trade and Industry Appeals Tribunal (CBb).
Collective vs. Individual Review
It is important to understand the limits of the ACM. They review the methods and procedures of grid operators collectively (e.g., approving the congestion management investigation maps). They do not proactively check every individual contract price unless a specific dispute is filed.
Legal Remedies for Producers
If a producer believes a transport refusal is unjustified or that congestion management is being applied unlawfully, several legal routes are available.
1. ACM Complaint Procedure
This is the specialized administrative route. It is often cost-effective and results in a decision by technical experts. The ACM can order the grid operator to make an offer for transport if the refusal is found to be unsubstantiated.
2. Civil Court (Civiele Rechter)
Producers can initiate civil proceedings to enforce the obligation to contract or transport.
- Kort Geding (Summary Proceedings): Used for urgent matters, such as preventing a project from losing its SDE++ subsidy due to connection delays.
- Merits Proceedings: Used for claiming damages or complex declarative judgments.
3. Compensation Claims
If a grid operator has acted unlawfully (e.g., by refusing transport when capacity was available, or by discriminating in the queue), the producer may claim damages.
- Legal Basis: Article 6:162 BW (Tort/Onrechtmatige daad) or Article 8:88 Awb (if following an administrative decision).
- Damages: Claims can cover lost profits (gederfde winst), lost subsidies, and ongoing operational costs.
- Burden of Proof: The producer must prove the unlawful act, the damage, and the causal link. However, the grid operator has a duty to provide the necessary data (Article 79 Energiewet) to allow the producer to substantiate their claim.
4. Administrative Appeal
If the dispute involves a decision by the ACM, the producer can appeal to the CBb. In urgent cases, a preliminary injunction (voorlopige voorziening) can be requested to suspend an ACM decision.
Conclusion
The transition to the Energiewet in 2026 marks a maturing of the Dutch legal framework for energy. While grid congestion poses a severe operational threat to renewable energy projects, the law provides robust protections for producers. The key takeaway is that “congestion” is not a magic word that grants grid operators blanket immunity.
Transport refusals must be physically necessitated, properly motivated, and preceded by a rigorous attempt at congestion management. For producers, documenting the process, demanding transparency regarding queue positions, and understanding the distinction between contractual and physical congestion are essential steps in securing grid access.
Frequently Asked Questions (FAQ)
1. What legal remedies are available to a producer if the grid operator unjustly refuses transport despite offered flexibility?
If a grid operator refuses transport despite the producer offering flexibility, the producer has two primary legal routes. First, they can file a complaint with the ACM under Article 51 of the Energiewet (formerly Elektriciteitswet 1998), requesting a binding decision to enforce the transport obligation. Alternatively, or in parallel, the producer can summon the grid operator in civil court (potentially via summary proceedings or kort geding) to demand performance of the contract or specific performance of the statutory duty to transport, arguing that the refusal violates the Energiewet.
2. To what extent can a producer claim compensation for the unlawful application of congestion management by the grid operator?
A producer can claim compensation if they can prove the grid operator acted unlawfully (tort/onrechtmatige daad), for example, by discriminating in the queue or failing to apply mandatory congestion management measures. Damages can include lost income (including missed subsidies) and consequential losses. Under the Besluit schadevergoeding net op zee, specific compensation regimes apply for offshore connections. For onshore cases, the producer must prove the unlawful act, the damage, and the causal link (Article 6:162 BW or Article 8:88 Awb).
3. What criteria does the judge use to assess the non-discriminatory distribution of transport capacity by the grid operator?
Judges assess non-discrimination based on the principles of objectivity and transparency derived from Article 24 of the Energiewet (formerly Elektriciteitswet 1998). The grid operator must demonstrate that they applied a consistent “first-come, first-served” principle or another objective prioritization mechanism published in the Netcode. Any deviation from the queue must be objectively justified by technical limitations or regulatory exemptions; arbitrary deviations or lack of transparency regarding the queue position will be deemed discriminatory (ECLI:NL:RBGEL:2025:847).
4. What freedom do parties have when negotiating a congestion management contract?
Contractual freedom is significantly limited by the regulatory framework. While parties must sign a contract, the core terms—such as the definition of the redispatch product and the operational response times—are mandated by the Netcode elektriciteit. Parties cannot negotiate terms that deviate from these technical standards. Furthermore, the price is capped by regulations to ensure it is not higher than customary in normal economic transactions, preventing purely commercial price setting.
5. How is the price for congestion management services legally capped, and how is market conformity tested?
The price is capped by Article 9.31(3) of the Netcode elektriciteit, which states it must not exceed what is customary in normal economic transactions. Market conformity is tested ex-post by the ACM in dispute resolutions or by the civil court. They compare the agreed price against market data, historical prices, and the underlying costs of the producer (including opportunity costs). There is no pre-approved price list; the “market” determines the cap.
6. Can a producer force the grid operator to provide additional motivation for a refusal based on physical congestion?
Yes. Under Article 24 of the Energiewet (formerly Elektriciteitswet) and Article 9.6 of the Netcode, a refusal must be “reasoned.” Case law confirms that generic statements about congestion are insufficient. A producer can legally enforce—via the ACM or civil court—that the grid operator provides specific data regarding the substation capacity, the relevant congestion management investigations, and the queue status to substantiate the claim of physical congestion.
7. What role does the ACM play in disputes over congestion management, and how does the dispute resolution procedure work?
The ACM acts as the independent dispute settler for the energy sector. Under Article 51 of the Energiewet, a party can submit a formal complaint. The ACM investigates whether the grid operator has acted in accordance with the law and the Netcode. The procedure involves an exchange of written views and often a hearing. The resulting decision is binding on both parties, though it is subject to appeal at the CBb.
8. Can a producer have the ACM assess beforehand whether an offered congestion management price is market-conform?
No, a producer cannot force the ACM to perform an ex-ante (preliminary) individual assessment of a specific price offer in the absence of a dispute. The ACM reviews methods collectively. However, if negotiations break down and a dispute arises regarding the price, the producer can then initiate a formal dispute resolution procedure, at which point the ACM will retrospectively assess if the price was market-conform.
9. Which arguments are most successful when challenging non-market-conform congestion management prices?
The most successful arguments rely on transparency and comparative data. A producer should argue that the grid operator failed to provide an objective basis for their price or ignored the producer’s actual opportunity costs (e.g., lost subsidy revenue). Citing Article 9.31 of the Netcode, the producer can argue that the offered price does not reflect “normal economic transactions” by providing evidence of higher prices paid for similar flexibility services in the market or neighboring regions.
10. What is the difference between physical and contractual congestion, and why is this distinction crucial for producers?
Contractual congestion means all transport rights are booked on paper, even if they aren’t fully used. Physical congestion means the cables are actually reaching their thermal limits. This distinction is crucial because contractual congestion is not a valid legal ground to refuse transport. A producer can successfully challenge a refusal if they can prove (or force the grid operator to admit) that the congestion is merely contractual, compelling the grid operator to apply congestion management and offer access.
