The CBb's reasoning was that the ACM's decision was carelessly prepared and that the grounds for the decision were inadequate. This means that the ACM will have to develop a new framework if necessary. The current prioritisation framework will remain in force until 1 January 2026 at the latest.

The prioritisation framework was established with the aim of giving priority to parties with a significant social interest when processing transport requests, replacing the 'first come, first served' principle. However, several organisations, including Dutch Railway passengers (NS Reizigers B.V.), have lodged an appeal because they believe that their interests have not been sufficiently taken into account in the decision-making process.

Preparation of the prioritisation framework by the ACM

The ACM developed the prioritisation framework in order to reduce waiting times for transport capacity on the electricity network, particularly in areas where transport capacity is scarce. The framework is based on the European Gas Security of Supply Regulation and gives priority to parties serving a higher public interest, such as defence, police, acute health care, drinking water supply, housing and education.

The CBb ruled that the ACM should have taken into account a wider range of interests when developing the prioritisation framework and should not have based it solely on the European Gas Security of Supply Regulation. This Regulation focuses on solidarity between Member States in the event of gas shortages, which is a different context to that of the electricity market. The ACM should also have taken into account other European and national legislation in its decision-making.

Reasons for insufficient compliance with the prioritisation framework

In addition, the ACM should have paid more attention to the arguments put forward by various parties who argued that functions such as telecommunications, public transport, GP care, data centres, waste management and urban transport are also of great social importance and should therefore also be prioritised. The CBb shared this view, stating that the ACM should have made an independent, careful assessment of all relevant interests.

Our role

We acted for NS Reizigers in this case. The daily supply of electricity is a very important matter for NS Reizigers, especially in view of its expansion plans for the coming years. In addition, the special position of NS Reizigers was partly due to the fact that they (their trains) do not have their own connection to the electricity grid, but use the connections that ProRail has to the electricity grids.

The ACM will now have to review the prioritisation decision, and the question of whether NS Reizigers should be included in the prioritisation decision will have to be addressed again. There are good reasons for this - as we have presented to the CBb - and it is expected that a satisfactory outcome can be achieved in good consultation with the ACM.

With our extensive knowledge of both national and European regulations, we have been instrumental in successfully representing the interests of our appellants and challenging the prioritisation framework. For more information about this appeal or our legal services in complex regulatory matters, please contact one of our experts.