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The Role of the Highest Administrative Court and the Protection of the Interests of the Energy Consumers in the Netherlands
Abstract
This report analyses 83 key judgments of the highest administrative court for energy cases in the Netherlands - the Appeals Tribunal for Trade and Industry (hereafter: CBB) - to examine how the CBB has lived up to the EU law principle of effective legal protection in practice in the energy sector. For the purpose of answering the central question of this paper, a normative framework has been developed for assessing the judgements of the CBB. The requirements that follow from the EU law principle of effective legal protection are subdivided in five themes that relate to the specific duties of the CBB to grant effective legal protection to the energy consumers. These themes are analyzed in an intensive way, each involving a review of key cases of the CBB that are related to the relevant themes. The report concludes that the CBB has not fully and consistently complied with the requirements of effective legal protection when reviewing administrative decisions in the energy sector. The analysis of the key cases in the energy sector shows a mixed picture. It concludes with some recommendations for the legislator and the CBB to enhance the legal protection of the energy consumers in the future.
Independent National Regulatory Authorities (NRAs) play an important role in the implementation and enforcement of European energy directives and regulation. The Dutch Autoriteit Consument en Markt (Authority for Consumers and Markets, hereafter: ACM) has been provided broad discretionary powers to regulate the energy market. This chapter examines the way in which the Dutch College van Beroep voor het bedrijfsleven (Appeals Tribunal for Trade and Industry, hereafter: CBB) has reviewed energy regulations. This chapter concludes that initially the CBB was very hesitant in reviewing the ACM’s energy regulation, since it scrutinized administrative energy decisions of the ACM based on its discretionary powers very marginally in the period between 2002 and 2013. As a result of this marginal judicial review of the ACM’s energy regulations, it has been extremely hard for appellants to realise effective judicial protection in the period between 2002 and 2013. However, in more recent judgements from 2014 and onwards, the CBB has become stricter in reviewing the ACM’s energy regulations. The CBB has done this by reviewing the substance of decisions more intensely on procedural grounds. This chapter suggests that the CBB, when reviewing the ACM’s energy regulations, should continue its recent intensification of the judicial review of regulatory decisions and favour the adoption of a procedural-proportionality review. By applying a procedural-proportionality review, courts will be given more instruments to ensure that energy regulations are made in a fair, well-informed, proportional and transparent way, which could enhance both the democratic legitimacy of energy regulations and the democratic accountability of the ACM.
The energy system of the future is smart and sustainable, with IT applications making it possible to efficiently match supply of and demand for sustainable energy. It will turn consumers into active players, responding to financial incentives to either or not use energy at specific moments, or supply self-generated energy to the system. The system will be organized in such a way that everybody will charge their cars when the sun is shining, for instance, or will postpone their use of energy when there is not enough sunshine or wind. This paper points out that new European and national legislation is needed to ensure that innovations for energy transition can take place and for market parties and consumers to take on new roles. It is argued that not only the substance of energy legislation needs to be adapted to facilitate the energy transition. Also procedures for the implementation of important energy decisions and the required level of legal protection will have to be adjusted to the new systems and to the active role of consumers. Procedural innovations are needed to improve the position of energy consumers, giving them more of a say, increasing their participation, and offering them legal protection in regard to decisions on energy regulations by the energy regulators, such as the Dutch Autoriteit Consument en Markt (ACM – Consumer and Market Authority), that affect their interests where affordable, reliable and sustainable energy supply is concerned. It is important that consumers be given better opportunities to exert influence in advance on the conditions and rates for access to the energy system. By creating support for the content of energy decisions, time–consuming and expensive legal procedures afterwards can be prevented.
In March 2014, the OECD issued a report in which it indicated that the Netherlands “has an excellent track record on water management in several areas”. The OECD mentions for example that the Netherlands has developed a “strong economy and robust water industry”, this despite that 55% of the Netherlands’ territory is below sea level. However, the OECD also concluded that Dutch water governance “relies on a system of many checks and balances … [and] that system presents some limitations.” In response to the conclusion of the OECD, this article discusses the current framework of economic regulation of the Dutch drinking water sector. The article develops a normative framework to assess whether the current organization of economic regulation is adequate. The assessment examines to which extent the principles of good regulation are observed by economic regulation of the drinking water sector. It is concluded that the Dutch framework of economic regulation of the drinking water sector displays several weaknesses in light of the principles of good regulation. In particular, the principles of transparency and independency need better observance. As a result the protection of the interests of the users of drinking water is at stake. This article ends with some recommendations to enhance the quality of economic regulation of the Dutch drinking water sector.