The Energy Regulation and Markets Review - Stikeman Elliott

Netherlands
awaiting the outcome of its recent request for a preliminary ruling to the Court of Justice
of the European Union on the compatibility of the group prohibition with European
law, in particular the principle of the free movement of capital.
The Acts also contain restrictions on network operators that are unbundled from
production and supply companies. These restrictions seek to ensure the organisational
and financial independence of the network operator and to prevent cross-subsidisation
and the dissemination of strategic information. Moreover, the Acts stipulate that the
network operators may only perform their statutory tasks, minimise the outsourcing of
activities by the network operator and restrict the activities that may be performed by the
group to which the network operator belongs to infrastructural activities.
ii Transmission/transportation and distribution access
The Acts provide for a system of regulated third-party access to the transmission and
distribution networks. The network operator must, on request, provide third parties with
a connection to its network (with an exception for large-scale gas users), and, except in
cases of lack of capacity, carry out the transport of electricity or gas against tariffs and
conditions set by the NCA. Oil and gas production pipelines are not subject to thirdparty
access provisions and for LNG and gas storage facilities a lighter regime applies.
Amendments to the Acts that will provide for preferential transportation for
renewable electricity in case of congestion, are expected to enter into force soon.
iii Rates and tariffs
Pursuant to the Acts, the maximum tariffs for the transmission and distribution of
electricity and gas are set by the NCA on the basis of CPI-X pricing. The tariffs are set
annually by the NCA for each individual network operator, based on the previous year’s
tariffs and taking into account changes in the consumer price index and an efficiency
discount (and in the case of the network operators of regional grids, by a factor reflecting
the quality of the grid in terms of outages). The efficiency factor is based on benchmarking
and is set for a period of between three and five years for electricity network operators,
gas network operators as well as the electricity and gas transmission system operators
TenneT and GTS. The regulated rates for metering services to small-scale users are set
separately. The applicable rates for network users are largely determined by the capacity
of their connection.
iv Security and technology restrictions
The Acts currently do not include provisions aimed at protecting homeland security or
the safety of critical infrastructure or systems other than a general obligation for network
operators to operate their networks in a safe and reliable manner. An amendment to
the Acts has been proposed that would give network operators, gas storage companies
and LNG companies a more specific obligation to protect their infrastructure against
terrorism and cyber crime. The details of this obligation will be laid down in secondary
legislation. The Minister will be given the power to give binding instructions in this area.
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