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Stek victorious for Enexis in landmark appeal on scarcity of electricity transport capacity

Lawyers:
Jan Erik Janssen
Stephanie Dielemans
Bart van Oorschot

Stek has successfully represented energy distribution company Enexis in appeal before the Court of Appeal Den Bosch against a preliminary relief judgement in which Enexis had been ordered to make an offer for a new connection with a guaranteed transport capacity of 60 MW. Enexis argued in appeal that it had complied with with its connection obligation but that an exception to the transport obligation applied because it did not reasonably have sufficiently transport capacity within the meaning of section 24, subsection 2, of the Dutch Electricity Act. In appel, Enexis has emphasized inter alia (1) the need to use forecasts for the expected usage of transport capacity, (2) the difference in position between connected parties with transport capacity and parties that request an offer for transport, and (3) the application of the principle ‘first come, first served’ (FCFS) to such requests.

By judgment of 28 July 2020 the Court of Appeal Den Bosch quashed the preliminary relief judgment and rejected the claims of Energiepark Pottendijk. The appeal court sided with Enexis that (1) prudent network management requires not to wait until physical congestion occurs but to make reasoned forecasts and translate those into policy and operations, (2) the situation of a party that for the first time makes a request for transport is not in a relevant way comparable to the situation of a party that has already been offered transport capacity and (3) Enexis may apply the FCFS principle in allocating scarce transport capacity over new requests. Consequently, the Court of Appeal Den Bosch concludes that Enexis could discriminate between the applicant Energiepark Pottendijk and existing connected parties with transport capacity, has met its connection obligation and was not required to make Energiepark Pottendijk a transportation offer.

Click here for the judgment of the Court of Appeal Den Bosch (in Dutch).