On January 26, 2022, the court ruled that Ennatuurlijk wrongly charges or has charged an annual connection fee to a large number of households that are connected to the heating network of Ennatuurlijk. The case was brought in 2019 by Municipal Heating Foundation Eindhoven (hereafter SSE). Ennatuurlijk does not agree with the judge’s ruling. Therefore, Ennatuurlijk filed an appeal on April 25, 2022. We have informed you about this earlier.
What is the dispute about?
Ennatuurlijk charges most households in Eindhoven with municipal heating for 30 years an interest-bearing and also indexed ‘connection fee’. After a term of 30 years, this sums up to an amount of approximately 5000 euros per household. This is in addition to the connection costs that residents have already paid to have their homes connected to the heat network. The first owners of a self-built home paid the connection costs at the time directly to Ennatuurlijk or its legal predecessors (Essent, NRE, PNEM, ECM). For project homes, the connection costs were included in the purchase price of the house and the project developer paid the connection costs directly to (the legal predecessor of) Ennatuurlijk. In our opinion, the annual connection fee has not been agreed with the residents.
The court ruling and the appeal are in principle applicable to current and former customers of Ennatuurlijk who pay or have paid an annual connection fee. However, there are three exceptions:
- Owners or tenants who in 2016 or later accepted Ennatuurlijk’s offer to reduce the annual connection fee to zero euros over three years. By signing a so-called settlement agreement, these residents waived their right to reclaim the annual connection fees already paid.
- First owners of a self-built home who signed a settlement agreement in 2019 or later on our advice. They have already received back the annual connection fees and now no longer pay an annual connection fee. This was the result of three pilot procedures initiated on our initiative in 2012 and completed in 2018.
- Residents who entered into an agreement with Ennatuurlijk on January 1, 2014 or later. As of January 1, 2014, the Heat Act came into force. Since then, Ennatuurlijk has not charged an annual connection fee for new connections, or this connection fee has been explicitly stated in the delivery contract.
If the court ruling and the appeal do not apply to you, read on under the heading ‘Other points of dispute’.
The appeal procedure is mainly in writing. On October 11, 2022, Ennatuurlijk sent a so-called statement of objections to the Court of Appeal. That is a document stating why Ennatuurlijk disagrees with the court’s ruling. On March 27, 2023, SSE responded to this in writing. This is called the statement of reply. After a possible new exchange of written views, either party may request the Court of Appeal to provide further oral explanation of the case. In addition, the court may ask either party to provide additional information or evidence. The court is then expected to reach a final judgment (ruling). The court will then either confirm or set aside the earlier judgment of the District Court. In the first case, the District Court’s ruling will stand. In the second case, the Court of Appeal will make a new decision.
Usually, the parties resign themselves to a decision of the Court of Appeal. However, it is possible for both parties to appeal to the Supreme Court up to three months after the final judgment of the Court of Appeal. This is called an appeal in cassation. During a cassation procedure it is only examined to what extent the previous judges have applied the law correctly. The contents of the case is no longer examined.
As Courts of Appeal face huge backlogs, it can take many months before a verdict is reached. If a cassation procedure is subsequently initiated, then it may take at least an additional year. Despite the long time frame, we look forward to the outcome of the procedure(s) with confidence. Residents who have signed up for the collective action will be kept informed of progress by email.
Other points of dispute
Due to the judge’s ruling, we have asked Ennatuurlijk to what extent they are prepared to discuss the other points of dispute with us, such as the rent for the heat exchanger, the heat tariff and the ‘rentabiliteitsbijdrage’. Ennatuurlijk has indicated that there is no reason to rediscuss these points at the moment. This means that these other points of dispute remain current. We are in consultation with legal assistance insurers, among others, about the feasibility and financing of legal procedure for these points of dispute.
SSE has been campaigning since 2015 against unjustified costs for district heating, including the annual connection fee, the high heating tariffs and the rental of the delivery set. In order to take decisive action and pay the costs of legal proceedings, the foundation started a collective action in 2018. The court has now ruled on the annual connection fee. The other points of dispute are still open. Residents can still join the collective.