Breaking up Is Hard to Do: Dutch Unbundling Legislation and the Free Movement of Capital

Abstract

This paper seeks to analyse the ruling (hereinafter: the Essent ruling) handed down by the Grand Chamber of the Court of Justice of the European Union (hereinafter: CJEU) on 22 October 2013 on the compatibility with EU law of Dutch legislation concerning ownership unbundling in the electricity and natural gas sectors. The ruling concerns the interpretation of Article 63 TFEU (free movement of capital) and Article 345 TFEU.

The paper starts by briefly outlining the developments in the EU energy market since the 1990s and the contents of the Dutch legislation at issue. This is followed by a short description of the factual background to the cases and the preliminary questions. The analysis then shifts to three important legal issues. The first is the interaction between Article 345 TFEU and the free movement rules. The second is the dividing line between purely economic interests and overriding reasons in the general interest. A final issue to be touched upon is that of so-called ‘gold plating’, i.e., the situation in which the requirements laid down in the implementing legislation of a Member State go further than those set out in relevant EU directives.