Must a closed distribution system take part in congestion management?

Yes, the operator of a closed distribution system must take part in congestion management. On 2 June 2026 the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb) upheld that obligation, but with an important limit: it applies only as far as a contribution is factually possible and compatible with the safe operation of the private grid (ECLI:NL:CBB:2026:234).

The ruling matters to you if you run an internal electricity grid on a business park, industrial estate, port area or chemical cluster. The Tribunal confirmed that the Authority for Consumers and Markets (Autoriteit Consument en Markt, ACM) could extend the congestion management rules to closed distribution systems. It also confirmed that the obligation is addressed only to you as the operator, in your role as a consumer on the public grid. The companies connected to your grid are not bound by it. That leaves a practical problem: the flexibility the grid operator wants is held by those companies, not by you. Below we explain what the ruling decides, what it does not decide, and what you should arrange now.

What is a closed distribution system?

A closed distribution system (gesloten distributiesysteem) is a private electricity grid on a defined site. Think of an industrial estate, a port or chemical complex, or a business park. The companies on the site are not connected directly to the public grid. They are connected to the internal grid of the system operator. The site as a whole draws electricity from the public grid at one or more connection points.

The legal basis changed at the start of 2026. The Energiewet has replaced the Elektriciteitswet 1998 and the Gaswet. Where the Elektriciteitswet worked with an exemption for a gesloten distributiesysteem, the Energiewet uses the term closed system (gesloten systeem). The ACM recognises such a system under Article 3.7 of the Energiewet. Note that the CBb ruling was given under the old rules: it tests the Elektriciteitswet 1998 and the Netcode elektriciteit as they stood before the Energiewet took effect.

The conditions for closed status follow the European Electricity Directive. In short, the processes of the users on the site must be integrated for specific technical or safety reasons, or the system must mainly distribute electricity for the owner’s own use. The system should not supply household customers, apart from a limited number of people linked to the site. Recognition matters because a closed system is exempt from a number of obligations that bind public grid operators, including parts of the tariff rules and of the electricity code. Under Article 15(6) of the Elektriciteitswet 1998, for example, the Netcode terms did not apply between the operator of a closed system and its users.

That partial exemption was exactly what was at stake. The question was whether an obligation designed for consumers on the public grid could be imposed on a party whose special position rests on not being an ordinary grid operator at all.

What does congestion management require?

Congestion management means the grid operator pays grid users to use less capacity at busy times, so that scarce transport capacity on a full grid can be shared. Physically reinforcing the grid takes years. In the meantime, the grid operator contracts with consumers and producers who are prepared to draw or feed in less than their contract allows during the hours when the constraint bites. In return they receive a payment. The capacity freed up in this way can then be offered to other users.

The amended Netcode elektriciteit turned this from a voluntary market into a duty. According to the CBb ruling, consumers with more than 60 MW of contracted transport capacity must always offer their flexible capacity (Article 9.1(3) Netcode). In a congestion area, the duty can also apply to consumers between 1 and 60 MW, with the grid operator setting the exact threshold (Article 9.1(4) Netcode). The code attaches a financial consequence to a failure to offer. For redispatch this was €1.25 per MW of contracted transport capacity for each imbalance settlement period in which the obligation is not met (Article 9.1g(2)). For capacity limitation it was €120 per MW per day (Article 9.1h(2)). Neither amount is due in a case of force majeure (overmacht). The ACM sets these amounts in the code, so always check the version of the code that currently applies to you.

For a closed system, this duty runs into an obvious difficulty. As the operator you own cables, switchgear and transformers. You do not own the processes that can be turned up or down. Whatever flexibility exists on the site belongs to the connected companies. You can only offer it if they agree to make it available.

What was the dispute before the CBb about?

The industry association VEMW challenged two ACM code decisions that extended congestion management to closed distribution systems. The joint grid operators, through Netbeheer Nederland, had proposed these changes in May and November 2023. The ACM adopted them in a decision of 8 February 2024 (Staatscourant 2024, 4917) and a decision of 22 August 2024 (Staatscourant 2024, 27562). Under the amended code the operator of a closed system is treated as a consumer at its connection to the public grid. It must also facilitate its connected parties in making voluntary bids of flexibility (Article 5.10 Netcode). In practice, the operator must therefore make arrangements with the parties behind its connection.

VEMW raised three grounds of appeal. First, it argued that the rules were outside the ACM’s powers. In its view they regulated the private relationship between the operator and its connected parties, which the Elektriciteitswet 1998 had deliberately placed outside the ordinary regime. Second, it argued that the obligation could not be performed. The operator has no controllable assets of its own and cannot compel its connected companies to provide flexibility. Third, it argued that the code contained no clear exemption to protect the operator’s statutory duty to keep its own grid safe and reliable. An internal grid on a chemical or port site is designed around continuous processes, not around flexible switching.

What did the Tribunal decide on 2 June 2026?

The CBb dismissed the appeal, so both code decisions stand. The reasoning, however, narrows the obligation considerably, and that reasoning is what you should read as an operator.

On the statutory framework, the Tribunal held that the obligations in Article 5.10 are addressed exclusively to the operator of the closed system in its role as a consumer on the public grid. They create no duty for the companies connected behind that connection. Those companies remain outside the congestion management regime and cannot be compelled by the code to offer anything. The special position of the closed system is therefore left intact. The fact that the operator depends in practice on its connected parties does not make the obligation unlawful. The Tribunal found the rules compatible with the ACM’s power under Article 31 of the Elektriciteitswet 1998 to set conditions on the conduct of grid operators and consumers.

On workability, the Tribunal held that there is no absolute duty to deliver flexible capacity. A consumer cannot be required to contribute where that is factually impossible. Where a contribution is not possible, or only to a lesser extent, the code requires the consumer to inform the grid operator in writing and with reasons (Article 9.1f(4) Netcode). Where that impossibility is shown, no financial consequence attaches. The Tribunal regarded the duty to give reasons as reasonable and necessary. Without an explanation, the grid operator has no way of testing whether the stated impossibility is real.

On safety, the Tribunal confirmed that the core task of any system operator is to operate its grid safely and reliably, and that this task comes first. The operator of a closed system does not have to offer flexible capacity where the safety and reliable operation of its own grid stand in the way. This can be a valid reason to decline even where connected companies would in principle be willing to make flexibility available. Here too you must substantiate your position in writing.

What does the ruling mean in your favour?

The ruling is not simply a defeat for private grids. Read closely, it gives you three safeguards.

First, the obligation is an obligation of effort within the bounds of what is possible, not an obligation of result. If you have genuinely tried to arrange flexibility with your connected parties and have failed, you are not in breach merely because no capacity was offered.

Second, the connected companies acquire no duty from the code. Any duty they have must be created by contract, in the connection and transport agreements or the site regulations that govern their relationship with you. That requires negotiation. Existing site contracts often do not deal with it.

Third, the written substantiation is your main safeguard. Both the impossibility exception and the safety exception depend on you explaining your position in writing and in time. If you simply do not respond to a request from the grid operator, you have no defence, whatever the underlying facts. Your written record is what turns a genuine constraint into a legal position.

What should you arrange now as a closed system operator?

Start by mapping the flexibility that actually exists on your site, then review your contracts and your internal procedures. Ask which connected companies have processes that can be shifted in time. Ask which have their own generation, storage or emergency capacity, and what each of them would lose by reducing consumption during peak hours. Without that picture, you cannot say anything credible to the grid operator, the ACM or a court.

Then look at the contracts. Because the code creates no duty for connected parties, you need a contractual basis to call on their flexibility. You also need a basis to pass on both the payment received and any financial consequence of non-performance. That means revisiting the internal connection and transport agreements. Deal clearly with these points:

• how the congestion management payments are shared;
• who bears any financial consequence under the code;
• how much notice a company gets before it is asked to reduce;
• what happens when two connected parties are asked at the same time.

These clauses are often missing from current site documentation, and they cannot be improvised when the first request arrives.

Set up the reporting line before you need it. Decide who in your organisation receives a request from the grid operator and who assesses whether a contribution is possible. Decide on what technical basis a safety objection is formulated, and who signs the written response. Keep the underlying analysis, because your substantiation will be tested against it.

Finally, review your recognition itself. The move to the Energiewet has changed the terminology for closed systems. If your position rested on an exemption under the Elektriciteitswet 1998, confirm how your status now stands under Article 3.7 of the Energiewet and which obligations follow from it. A grid that has grown, taken on new users or added a higher-voltage section may no longer sit where the original decision placed it.

How does this fit the wider congestion picture?

The ruling is one step in a broader trend: the regulator is drawing more types of grid user into solving congestion instead of waiting for grid reinforcement. Alongside the congestion management obligation, the code provides for transport rights that are deliberately less than firm. Time-bound contracts give you capacity only outside agreed peak hours. Under a capacity limitation contract, you accept a cap in return for access you could not otherwise obtain. For a site that cannot get a heavier connection at all, those instruments are often the only route to expansion.

The direction is therefore consistent. Capacity goes to those who are prepared to be flexible about when they use it. The obligations attached to a connection increasingly follow from the code rather than from the individual contract. Operators of private grids have long stood somewhat apart from that regime. You should assume that the distance is narrowing, not widening.

Congestion management is only one part of the rules for private grids. For recognition, connection and transport agreements and disputes with grid operators, see our page on energy law.

In summary

• The CBb upheld on 2 June 2026 that operators of closed distribution systems must take part in congestion management (ECLI:NL:CBB:2026:234).
• The obligation is addressed only to the operator as a consumer on the public grid; the connected companies are not bound by the code.
• There is no duty to do the impossible: if a contribution is factually impossible, or would endanger the safety and reliability of your grid, you must explain this to the grid operator in writing and with reasons.
• Where impossibility is shown, or in a case of force majeure, no financial consequence is due.
• Arrange now: an inventory of flexibility on site, contract terms with your connected parties, and a clear internal reporting line.

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