In an interlocutory judgment rendered on 24 February 2012, the Supreme Court of the Netherlands has decided to refer three questions on how EU law should be interpreted to the Court of Justice of the European Union ("CJEU"). The Supreme Court is of the opinion that answers to these questions are necessary for it to be able to come to a final decision on the appeals before it. The three questions can be summarised as follows:

  • Is the privatisation ban covered by "the system of property ownership" as referred to in the Treaty on the functioning of the European Union?
  • If so, is it correct that the rules on the free movement of capital are inapplicable in this case?
  • The aims of the Independent Network Management Act (Wet onafhankelijk netbeheer) are to make the energy market transparent and to prevent interference with competition. Are the interests served by these aims purely economic in nature, or are they general interests which can justify a limitation on the free movement of capital?

These three questions go to the core of the matter. The first two questions pertain to the issue of whether the group ban and the ban on side activities are even subject to the rules on the free movement of capital. After all, the unbundling Act provides that the shares in a network manager must be entirely in public hands (whether directly or indirectly), whereby private investors are precluded from in any way investing in network managers. In posing the first two questions, the Supreme Court wishes to obtain clarity from the CJEU on the extent to which such an absolute privatisation ban falls within the scope of applicability of the rules on the free movement of capital. The third question is relevant in the event that the CJEU decides that the group ban and the ban on side activities are indeed subject to the abovementioned rules. The question then is whether the interests of promoting the transparency of the energy market and preventing interference with competition can justify a limitation on the free movement of capital.