CDS atpažinimas iš ACM: sąlygos, procedūra ir trūkumai

Under the Dutch Energy Act (Energiewet), a private electricity or gas network only qualifies as a closed distribution system (CDS) once the Netherlands Authority for Consumers and Markets (ACM) has recognised it under Article 3.7. Recognition is a separate step from the designation of the operator (Article 3.6); without both, the owner must itself perform all statutory tasks of a system operator (Article 3.1(3)).

The ACM decides on a recognition application within six months, a period it can extend once by up to six months (Article 3.54 of the Energy Regulation). Our overview article on privatūs tinklai ir uždaros paskirstymo sistemos explains the broader regime.

Why do you need recognition and a designated operator?

Article 3.1 of the Energy Act requires the owner of a distribution system to ensure that the system is recognised as a closed system (or has a certified operator) and that an operator has been designated. The ACM first recognises the system under Article 3.7 and then, on the owner’s application, designates the operator the owner nominates under Article 3.6.

Owners that held an exemption under Article 15 of the Electricity Act 1998 do not need to apply straight away. Under Article 7.32 of the Energy Act, that exemption counts as a recognition and designation for as long as it runs. Check the end date now, because a new application takes months.

Which conditions must the system meet?

Article 3.7(1) of the Energy Act sets an exhaustive list of conditions. The ACM recognises the system, on the owner’s application, only if all of them are met:

• no public system operator has already been designated for the system;
• the applicant is not part of an infrastructure group (a group that also runs a public grid);
• the connected parties’ operations or production processes are integrated with the system for specific technical or safety reasons, or the system mainly supplies the owner or related companies;
• the system lies within a geographically defined industrial or commercial site, or a site with shared services;
• fewer than 1,000 parties are connected;
• no households are supplied, except incidental use by a small number of households of people employed by or similarly linked to the owner;
• the ACM considers safety and reliability sufficiently safeguarded;
• for electricity, the voltage does not exceed 220 kV.

A system that has yet to be built can also be recognised, once the permits needed for its construction have been granted and the conditions are met (Article 3.7(2)).

What should the application file contain?

The ACM assesses facts, so the file must show each condition in documents. In practice that means a map of the system boundaries and the transfer point to the public grid, a list of all connected parties and their role on the site, and evidence of the technical or functional integration.

Add documents proving ownership of the cables, stations and other assets. Ownership, land registration and actual operation of a network often do not coincide, and mismatches between the drawn boundaries and the situation on site are a common cause of delay.

How does the procedure work and how long does it take?

The ACM must decide as soon as possible and at the latest six months after receiving the application; it can extend this once by up to six months (Article 3.54 of the Energy Regulation). If the file is incomplete, the ACM can ask for additional information and suspend the period under Article 4:15 of the General Administrative Law Act (Awb).

Interested parties, including connected parties and the regional grid operator, can lodge an objection (bezwaar) against the decision within six weeks (Article 6:7 Awb). After that, appeal lies to the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb). Including preparation, a recognition process can take a year or more, so plan it into any site development or network acquisition.

A refusal is not the end of the road. Our article on what to do when a grid operator refuses a connection describes the administrative remedies.

What duties does the operator have after recognition?

The operator must, on request, make an offer for the use, management and maintenance of a connection and for the transport of electricity or gas over its system (Article 3.105(2) Energy Act). It may refuse only if there is reasonably insufficient transport capacity, and must give a proper justification (Article 3.105(3)).

Further duties follow from the Energy Act and the Energy Decree (Energiebesluit). The operator keeps a connection register (Article 4.6 Energy Act), charges tariffs based on a published, cost-reflective calculation method (Article 3.114), and offers connected parties with a small connection a transparent, simple and inexpensive complaints procedure (Article 3.34 Energy Decree). Our article on closed-system tariffs explains the tariff standard.

What rights do connected parties have?

Connected parties on a CDS do not simply have the same position as customers of a public grid operator. Much of their relationship with the operator rests on the connection and transport agreements, so those contracts must regulate capacity, tariffs, outages and complaints in detail.

Connected parties are not without remedies. They can complain to the ACM about the way the operator performs its statutory tasks under Article 5.4 of the Energy Act; the ACM decides within two months and its decision is binding. Whether a CDS must itself take part in spūsčių valdymas is a separate question on which the CBb has given guidance.

When can the ACM withdraw a recognition?

The ACM that granted the recognition may also withdraw it (Article 3.8(2) Energy Act). Article 3.2 of the Energy Decree lists four grounds:

• the system no longer meets the conditions of Article 3.7;
• the system is not run by the designated operator;
• the operator breaches its duties under Articles 3.104 and 3.105(2)-(3) of the Energy Act;
• the application contained incorrect or incomplete information that would have led to a different decision.

Changes on site can therefore affect the basis of the recognition: a larger site, more connected parties approaching the 1,000 limit, households moving in, or a sale of the network. Discuss such changes with the ACM before they take effect and, where needed, apply for a new recognition.

Which mistakes cause delay or enforcement?

Five problems recur in practice:

• operating without recognition because the network was wrongly classified as an installation or a direct line;
• system boundaries drawn too narrowly, so later expansions fall outside the recognition, or too widely, so the network includes parts the owner does not control;
• gaps in the evidence of ownership of cables and stations;
• underestimating connected parties, who can object to the decision and complain to the ACM afterwards;
• a thin contractual framework for connection, transport, tariffs, capacity limits and complaints.

What should you check as the owner or operator?

• When does your old Article 15 exemption end, and when must you file for recognition?
• Does your system meet every condition of Article 3.7(1), including the 1,000-party and 220 kV limits?
• Can you prove ownership of every part of the network inside the drawn boundaries?
• Have you applied for designation of your operator under Article 3.6?
• Are your connection and transport agreements and complaints procedure in line with Article 3.105 and Article 3.34 of the Energy Decree?

What should you check as a connected party?

• Is the network you are connected to recognised, or covered by an exemption that is still running?
• Has your request for a connection or transport offer been answered, and is any refusal properly reasoned?
• Do your agreements state capacity, tariffs and outage arrangements clearly?
• Do you want to object to a recognition decision within the six-week deadline?

What can we do for you with CDS recognition?

Mūsų energetikos teisininkai guide owners, operators and connected parties through the ACM procedure and any proceedings before the CBb.

• We test your network against each condition of Article 3.7 of the Energy Act.
• We prepare the recognition and operator-designation applications and the supporting file.
• We answer the ACM’s requests for information and monitor the decision period.
• We draft connection and transport agreements and a complaints procedure.
• We lodge or defend an objection and appeal to the CBb, or respond to a proposed withdrawal.

Santrauka

• A closed distribution system needs ACM recognition under Article 3.7 and a designated operator under Article 3.6 of the Energy Act.
• The conditions include a defined site, fewer than 1,000 connected parties, no households and a maximum of 220 kV.
• The ACM decides within six months, extendable once by six months; objection and appeal to the CBb follow.
• Old Electricity Act exemptions count as recognition only for their remaining term (Article 7.32).
• The ACM can withdraw a recognition on the grounds in Article 3.2 of the Energy Decree.

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