The connection and transmission obligation of electricity
Grid operators are obliged under Section 23 of the Electricity Act 1998 (E Act) to provide, upon request, a connection to the grid they operate (the connection obligation). Section 24 of the E Act also imposes an obligation on grid operators to provide the transportation of electricity to and from the connection point (the transportation obligation). However, no transmission obligation applies when the grid operator "does not reasonably have capacity available. This phenomenon is known as congestion. There must then be physical congestion and not merely contractual congestion. Rejecting a request for transmission capacity is thus permitted under certain circumstances. Small users are better protected by the E Act than large users, but nowadays transport requests for small users can also be refused.[1]
For more on this topic, I refer you to my colleague Thijs Cornel's blog on developing in times of grid tightness.
The connection and supply obligation of drinking water
The protection of drinking water sources and the quality of drinking water is guaranteed, among other things, in the European Water Framework Directive, the Drinking Water Act and the Drinking Water Decree. The connection obligation for (owners of) drinking water companies is included in Article 8 paragraph 1 of the Drinking Water Act. The drinking water company is obliged, upon request, to make an offer to provide that person with a water connection to the mains network it manages. Article 8 paragraph 2 of the Drinking Water Act concerns the obligation to supply. The drinking water company must, within its established distribution area, make an offer to the person requesting it to supply drinking water to that person using the mains network managed by it. So far, the duties for network operators and drinking water companies are similar.
The legal duty of drinking water companies
With water companies, however, it is important to note that their statutory duty is limited to supplying drinking water for the purpose of the public drinking water supply. This means that water companies must supply consumers and other customers as far as the public drinking water supply is concerned. The public drinking water supply refers to the production and distribution of drinking water companies. Although this supply obligation is strict, drinking water companies are already indicating that they may not be able to meet it in the future. However, there is no ground for refusal except in the case of non-payment. Disconnection of drinking water is then possible.
A recent ruling by the Court of Appeal in The Hague held that this is different if minor children are present at the address.[2] If no water is available to produce drinking water, water companies may be able to invoke force majeure. However, an appeal to force majeure by network operators in the context of the connection obligation (shortage of personnel, materials, etc.) has not yet been honored, so the drinking water companies will then have to be of good cheer.
Denying drinking water requests to business customers
In the past year, water companies have had to refuse several requests from business customers (companies). This is permitted. Drinking water companies may supply business customers within their distribution area, but they may also refuse a connection or supply based on the general terms and conditions of the drinking water company. Pursuant to Article 8 paragraph 3 of the Drinking Water Act, these conditions must be reasonable, transparent and non-discriminatory (compare Article 23 paragraph 3 of the E Act). Restriction or interruption of the supply is possible, for example, in the interest of a good public drinking water supply and in case of special circumstances.[3]
In addition, the government may decide to set further rules for the supply of water other than drinking water. This can be done by order in council, otherwise known as a further elaboration of a law. The government may determine that one or more sections of the Drinking Water Act do not apply to water intended exclusively for purposes specified by that order. To date, the minister has not made use of this possibility.
Connection & transportation: electricity vs. drinking water
Both the obligation to transport electricity and the obligation to supply drinking water are subject to exceptional situations. In case the grid operator of electricity has no reasonable (physical) capacity left, a refusal of transport is possible. Refusal to deliver water is only possible if it concerns water other than drinking water for the purpose of public drinking water supply. The obligation to supply drinking water to households cannot (yet) be waived, which makes meeting the demand for connection in future residential construction even more urgent.
Looking to the future
It is conceivable that in the near future more and more applications for drinking water will be refused. The responsibility to take appropriate measures to meet the need for drinking water in the future lies primarily with the drinking water companies. For example, water companies are looking for new sources of ground and surface water. To do so, however, they need (permit) space. This is where the role of the (decentralized) government comes into the picture. They must weigh up the importance of drinking water production on the one hand and the many interests that may conflict with it (nature, residential and living environment, etc.) on the other.
With the arrival of the Environment Act on Jan. 1, 2024, more governments will be faced with a duty of care. The Environment Act and the Drinking Water Act provide tools for water companies and governments to sustainably secure the public drinking water supply. Cooperation between water companies, central government, provinces, water boards and municipalities is very important in this regard.
[1] Gelderland District Court Nov. 24, 2023, ECLI:NL:RBGEL:2023:6730.
[2] The Hague Court of Appeal March 19, 2024, ECLI:NL:GHDHA:2024:363.
[3] See, e.g., Article 8 of Vewin's Model General Terms and Conditions for Drinking Water 2012.
