Comments on the draft for the new Energy Act could be submitted until Feb. 11, 2021. The bill contains, among other things, rules on the management of data so that access to and exchange of this data will be better secured. In this article, Femmie Schets of Holla Advocaten discusses the role of data within the energy system.
The transition to a future CO2-free energy supply goes (partly) hand in hand with the digitization of the energy system. Consider the rollout of smart metering systems that can be read remotely. This will result in faster and more detailed availability of metering and consumption data. By extension, data exchange within the energy system is also developing more and more. This offers various opportunities. For example, data can be used to better align supply and demand. This gives the energy system the flexibility it needs to cope with the capricious nature of new energy sources (such as solar and wind).
Furthermore, data can be used to provide end customers with faster and more detailed insight into their consumption and consumption costs, and to refine financial settlement (think more accurate billing and allocation of imbalance differences). Finally, there is a transition to more "self-determination by end customers," such as through the sale of self-generated electricity. This requires not only better and faster access to data, but also the ability to have more control over their own data.
In light of the aforementioned developments, the bill contains further rules around the collection, management and exchange of data within the energy system.
First, the legislator proposes to optimize the metering chain. For end customers with a small connection, this includes a statutory meter obligation, which stipulates that the connected party must have a metering device at each allocation point. In addition, for small connections the metering responsibility will in principle rest with distribution system operators, including the power and duty to place and manage a metering device at each allocation point. With the latter, the said system operators are given an additional responsibility, while the 'metering company' in the current laws and regulations will be abolished. Finally, the bill offers room to set further quality requirements for parties responsible for metering.
Second, the bill aims to create transparency and better ensure that necessary data is available and exchangeable at all times. Much data is already exchanged within the energy system, ranging from (technical) data on connections to customer consumption data. However, the current legal system is unclear and, partly due to the entry into force of the General Data Protection Regulation ("AVG"), is reaching its limits. As a result, relevant data is not always (or cannot be) exchanged. The bill therefore lays down in more detail which data may be used for which processes, what conditions apply and which actors are involved (see below under C).
It is also proposed, with a view to the functioning of the energy system, to increase, under strict conditions, the availability of high-quality and high-frequency metering data. A key element here is the reading of smart metering devices at a small connection. Distribution system operators will be tasked with collecting metering data every 15 minutes (electricity) or every hour (gas). Among other things, this will allow the costs of any imbalance between energy supply and demand to be allocated more accurately to the actual party causing it. This should result in a fairer financial settlement and a reduction of (increasing) social costs.
Of course, measurement data must be handled with care. In addition to explicitly defining processes and conditions under which data may be used, the bill also prescribes technical measures. For example, consumption data for the aforementioned allocation of balance differences must be aggregated to the level of the energy supplier, the balancing responsible party and network area combination, so that the data cannot be traced back to individual connected parties.
Third and finally, the bill contains rules on data management, so that access to and exchange of these data is also better secured.
The bill requires both individual transmission and distribution system operators and further designated (market) parties to maintain a "register. This register must clearly show data collected and received. The bill sets various requirements for the management of these registers, for example with respect to data quality and data security.
For the purpose of efficient and effective data exchange, the legislator considers it important to provide centralized and standardized access to the aforementioned registers through a new figure within the energy system: the data exchange entity. The tasks of this entity will be carried out through a partnership of the system operators. Given the public importance of data exchange, the bill also sets further requirements here, for example with regard to data security, identification and transparency. Moreover, the data exchange entity must act in a reasonable, transparent and non-discriminatory manner; thus, the entity may not favor system operators over other involved parties.
Finally, as mentioned, the bill lays down which data may be exchanged for which processes, the conditions for doing so and the actors involved. In doing so, the bill first distinguishes according to the nature of the data (namely, data that is collected, supplied, received, processed, accessed and exchanged). It then distinguishes between the following processes:
the operation of the energy system. This includes a wide range of processes, including connection utilization, metering, electricity and gas allocation, billing, ensuring security of supply and system operation;
obtaining access by an affiliate, thereby adhering to the general principle that an affiliate should have the opportunity to see what data is known about him;
the exchange based on an obligation in another law. If another law requires access to or exchange of (energy) data from a connected party to another party, it can be fulfilled under this bill;
Exchange at the request of the affiliate. An affiliate may itself request access to and exchange of data (of the affiliate) to a third party;
Data for the purpose of the transition to a clean energy supply. Under certain conditions, relevant data can be used, for example to prepare policy advice or strategy processes. The Regional Strategies are a concrete example of this.
A ministerial regulation yet to be drawn up will set further rules on the exact design of the processes, the conditions that processes and data must meet, and - in short - which parties may be involved in data exchange.
It is also important to note that the above processes partly involve data that can be regarded as personal data within the meaning of the AVG. However, a large part of the data is also not covered by the AVG (think, for example, of company data or data that cannot be traced back to the natural persons concerned). Nevertheless, the bill has chosen, where logical and possible, to adhere to the general principles of the AVG.
If a data security breach with significant consequences for personal and business data occurs, the responsible party (e.g., the data sharing entity or the individual transmission or distribution system operator) must report this incident without delay. What is striking here is that such a notification must be made to the Authority for the Consumer and Market ("ACM"). This while in principle the Autoriteit Persoonsgegevens ('AP') supervises compliance with the statutory rules for the protection of personal data.
The foregoing does not alter the fact that a personal data breach must (also) be reported to the AP. This means that a double duty to report arises. It is therefore important to make a sharp distinction between personal data and 'ordinary' data in the register described above.
It follows from the bill that the legislature sees the exchange of data as the foundation of the energy system. We also see a major role for data in making our energy supply more sustainable. Moreover, we consider it an interesting development that the "active consumer" can play an important role within the energy system. However, the proposal also raises questions because the legislator - for the sake of flexibility - chooses to elaborate a large number of rules only later by ministerial regulation. In our view, this does not enhance legal certainty. We will keep a close eye on the further course of the legislative process and will be happy to keep you informed.
The Energy Bill is not the only proposal on the legislative agenda for the energy transition. See also, for example, our series of contributions on the Collective Heat Supply Act (Warmtewet 2), which went into consultation last year and whose responses have recently been processed by the legislature.
Source: Holla Lawyers
