The Advocate General of the Dutch Supreme Court recently issued an opinion on the admissibility of the Independent Grid Management Act. A court of appeal had ruled that this 'Unbundling Act' was non-binding as it was in conflict with article 63 of the Treaty on the Functioning of the European Union. But the Advocate General disagreed, stating that claimants Essent, Eneco and Delta are not grid operators or foreign investors, and this means that the Unbundling Act cannot be declared non-binding on them pursuant to article 63.
Eneco and Delta had also argued that the Unbundling Act violated article 1 of the First Protocol to the European Convention on Human Rights (right of ownership). But the court of appeal did not rule on this issue as it had already held the Unbundling Act in conflict with EU law. In his opinion, the Advocate General proposed that the court of appeal's judgment be reversed and that another court of appeal consider the right of ownership issue. The Supreme Court is expected to deliver its ruling on 9 January 2015.
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