Distribution system operator discretion and procedural protection of market participants in EU electricity network access

This article analyses how EU electricity law organises procedural protection when access to distribution networks depends on the discretion of distribution system operators (DSOs). It argues that network access is not framed as an automatic subjective right but operates through a model of regulatory obligations: DSOs make technically grounded, case-by-case assessments, constrained mainly by the requirements of objectivity and non-discrimination, and corrected primarily through national regulatory authority dispute settlement and ex post judicial review. The article’s main contribution is to shift the focus from “who has access” to how discretion is allocated, limited, and made legally accountable under the requirements of the rule of law (legal certainty, predictability, and effective control of discretion). A functional comparison with EU electronic communications law shows that telecommunications law embeds more explicit procedural structuring, which supports predictability and has coincided with the development of a richer body of case law at EU level concerning regulatory discretion. By contrast, distribution-level electricity access disputes remain largely channelled through national regulatory and judicial frameworks, leaving procedural clarity and timing more fragmented across Member States. The article concludes that in discretion-based access regimes, the quality of the rule of law depends not only on substantive standards, but on contestability and timing—that is, how quickly and effectively market participants can challenge access-related decisions that condition market participation.