In the Netherlands Government Gazette dated 21 January 2009, the Minister of Economic Affairs announced its policy rules concerning the granting of an exemption from the obligation to appoint a grid manager in accordance with article 15, second paragraph, of the Electricity Act 1998 and article 2a, first paragraph, of the Gas Act ("Policy Rules").
The Electricity Act 1998 ("E-Act") and the Gas Act ("G-Act") both contain an obligation for grid owners to appoint independent grid managers. The purpose of this obligation is to create non-discriminatory access for customers to the grid to guarantee the operation of the free market. Both Acts provide for the possibility to request exemptions from this obligation. Requests for such exemptions are increasingly made with regard to privately owned electricity grids on business parks, those requests being based on article 15(2) opening words and under b of the E-Act. The Policy Rules pertain specifically to the application of this provision.
Before addressing the Policy Rules, we will briefly set out a decision of the European Court of Justice ("the Court") in the Citiworks-case.
The case concerns the electricity grid of the Leipzig airport, to which, under German energy law, the obligation to provide third parties access to the grid ("Third Party Access"), do not apply. The Court ruled that small private electricity grids qualify as distribution grids within the meaning of the European Directive concerning common rules for the internal market in electricity and that, therefore, the owners of such grids must comply with the obligations included in this Directive, including the obligation to grant Third Party Access.
After analysis of the Citiworks-case, the Netherlands Competition Authority ("NMa") concluded that exemptions from the obligation to appoint a grid manager in accordance with article 15 E-Act (and article 2a G-Act) can still be granted, provided that special attention is devoted to Third Party Access.
Article 15, second paragraph under subsection b of the E-Act provides that the Minister of Economic Affairs may grant an exemption to the obligation to appoint a grid manager, upon receipt by the Minister of a request from the owner of a grid, if (i) the request concerns a grid to which a limited number of other natural persons or legal persons are connected, (ii) the relevant grid is intended to supply a number of cooperating natural persons or legal persons with electricity and (iii) the cooperation of these persons is aimed at a reliable, sustainable, functional and environmentally sound energy household in his establishments.
The Policy Rules provide an interpretation of the conditions that must be met in order to qualify for an exemption:
The applicant demonstrates that at the time of the application for the exemption at least half of the (future)consumers are known and that the consumers envisage a cooperation;
- Special characteristics of the grid
The applicant demonstrates that the grid or the grid management requires such special characteristics, when compared to the requirements generally applicable to grids or grid management, that the grid cannot be (effectively) operated by a grid manager;
- Limited size area
The applicant argues convincingly that the relevant establishments of the cooperating persons are located in each other's proximity and in an area of limited size.
Third Party Access
In the event that an exemption from the obligation to appoint a grid manager is granted, the Policy Rules provide that conditions will be attached to the exemption in respect of Third Party Access and tariffs in order to procure that the exemption holder:
- provides a person who requests for transportation of electricity on his grid, an offer for this transportation, unless the exemption holder lacks capacity;
- provides for a system of Third Party Access based on objective and non-discriminatory tariffs;
- applies such tariffs in a non-discriminatory way.
The Policy Rules do not preclude the discretion provided to the Minister of Economic Affairs under article 15(2) of the E-Act with regard to a request for exemption from the obligation to appoint a grid manager.
For the sake of completeness, we note that an exemption from the obligation to appoint a grid manager may also be requested in accordance with article 15(2)(a) and (c) E-Act.
Finally, no exemption from the obligation to appoint a grid manager under article 15, second paragraph E-Act will be granted in the event that the applicant is a grid manager or is connected to a grid manager of a group company. An exception is made if it cannot be reasonably expected from the applicant, which is, or is connected to, a grid manager, that he designates a grid manager for the grid the request pertains to. This would, in any case, mean that the "connected" grid manager, refrains from involvement in the management of the grid which is the subject of the request.
The Policy Rules apply to requests which were made at the time the Policy Rules take effect, being 23 January 2009, but on which there has not yet been a decision.