Prioritisation Framework of the ACM to be overhauled

Connecting with the new realities

Due to the growing economy, digitalization and the energy transition, grid operators, businesses and households increasingly face grid congestion. Grid congestion is the overloading of the electricity grid caused by excessive demand or supply of electricity and often occurs during peak hours. At such times, the electricity grid is unable to handle the total demand or supply, with the risk of overloading the electricity grid. Despite substantial efforts by grid operators and (the upcoming) billions of investments, it is anticipated that the shortage of grid capacity will not be resolved in the short term. In fact, the situation is expected to worsen due to the energy transition and the increase in electricity demand and supply. This is a major problem for parties that are waiting for a grid connection or want to expand their existing connection.

On April 12, 2024, the ACM introduced a new prioritisation framework. In congested areas, grid operators will be obliged to prioritise certain parties with a social function. Parties that assist in alleviating grid congestion, contribute to safety or meet basic societal needs are given priority in accessing the electricity grid. In doing so, the ACM deviates from the first-come-first-served principle, which is no longer compatible with the new realities of the congested grid. Because of this principle, grid operators were not allowed to prioritise parties with a social function. This resulted in extended waiting times for essential social projects and expansions. However, prioritizing a party with a social function quickly comes at the expense of others. Consequently, it was anticipated that the court would eventually have to rule on this prioritisation framework. 

Reason of the dispute

A total of 14 parties, including VodafoneZiggo Group, KPN, ProRail, Transport and Logistics Netherlands, and HTM, have appealed against the ACM's prioritisation framework. The core of their argument is that the prioritisation framework has been carelessly prepared and is insufficiently motivated. The ACM based its framework solely on the European Gas Security of Supply Regulation, which is aimed at preventing disruptions in the gas supply by allowing social parties to give priority to gas supply. However, the appellants argued that the ACM used an overly narrow perspective when developing the prioritisation framework. Other important priorities, frameworks and obligations set by the (European) legislator, such as in the field of sustainability and cybersecurity, have been wrongly ignored by the ACM.

In addition, the ACM decided not to include 'chain effects' in its framework. Chain effects refer to the interdependence of parties within and outside the prioritisation framework. The appellants argued that certain parties are so closely linked to the functions and social parties included in the prioritisation framework that they cannot operate effectively without the involvement of those non-prioritised parties. This may apply to collective facilities in residential areas for example.

The CBb largely agrees with the appeal and instructs the ACM to better motivate its choices. The CBb states that the ACM must consider a broader range of European and national regulations and policies in its assessment, as well as pay closer attention to the legal obligations of parties and their chain effects. The ACM must also take into account the changing circumstances surrounding grid congestion. In this regard, the CBb proposes to add a flexibility clause to the prioritisation framework, allowing the ACM to easily include a function or party when necessary.

Additionally, the CBb confirms that the ACM may establish such a prioritisation framework. This power (and necessity) was not disputed by the appellants. In a letter to parliament from the (then) Minister for Climate and Energy dated 8 February 2022, it was assumed that ACM would not be allowed to adopt such a framework because of the prohibition of discrimination within the gas and electricity market. This ruling clearly indicates a shift in perspective regarding the necessity and legitimacy of the prioritisation framework. As long as grid congestion persists to this extent, this framework is likely to remain both relevant and necessary.

The ACM has until January 1, 2026 to better motivate and justify its prioritisation framework. In order to ensure that grid operators can continue prioritizing parties that serve an important public interest, the ACM aims to publish a new draft decision on the new prioritisation framework by the end of June 2025. And the ACM plans to finalize and publish the new prioritisation framework by December 2025 at the latest, so that grid operators can apply this new framework from January 1, 2026. 

What does this mean for (market) parties? 

The prioritisation framework remains in place, and parties that clearly fall into one of the categories seem to be able to rely on their current place within the framework. However, the ACM must better motivate its policy choices and apply a broader assessment, that also takes into account the chain effects of various parties. This may result in certain non-prioritised parties, which are closely linked to a specific category, being classified within that category. Additionally, it is not inconceivable that a new category could emerge based on a more comprehensive assessment. However, a significant expansion of the prioritisation framework seems unlikely, as this would undermine its objectives, and the CBb has not mentioned expansion as an obligation.

However, the other thousands of (market) parties that fall outside the current prioritisation framework will remain in uncertainty. Not only will the waiting time most likely increase, but with the entry into force of the new Energy Act, grid operators are only obliged to honour new connection requests within a 'reasonable' period of time instead of within a predetermined period. But the definition of a 'reasonable' period remains unclear.

It may thus be interesting for these parties to explore alternative options. An interesting option here is the flexible purchase of electricity. Outside peak hours, there is often more than enough capacity available to meet the demand (or supply). Parties that can adapt their (business) processes to reduce their power consumption during peak times can take advantage of the flexible contracts that the ACM has developed as part of its measures to combat congestion. This can give such parties a priority position among grid operators over less flexible parties.

Another option that is being explored to combat grid congestion is to promote energy sharing at the local level. The new Energy Act facilitates this by legally recognizing energy cooperatives and allowing them to supply energy to their members without a license. This approach can lead to a more efficient and smarter way of using energy, allowing the parties or members to meet their energy needs more quickly, even when they fall outside the prioritisation framework.

It is expected that grid congestion will continue to significantly impact (business) life in the Netherlands in the coming years. However, parties that can creatively manage their electricity consumption are likely to adapt better to this new reality. We are therefore happy to think along with you about which options may be of interest to you. 

CBb ruling: ECLI:NL:CBB:2025:145