8 The prosumer concept in the Winter Package
The development of the prosumer concept is part of a broader movement in EU energy law and policy towards greater participation of citizens in the electricity system.(1) European Commission, ‘A Framework Strategy for a Resilient Energy Union’ (n 1) 2. While market regulation traditionally looks at consumers as passive players,(2) Anna Butenko and Kati Cseres, ‘The Regulatory Consumer: Prosumer-Driven Local Energy Production Initiatives’ (Social Science Research Network 2015) SSRN Scholarly Paper ID 2631990 4 <https://papers.ssrn.com/abstract=2631990> accessed 15 January 2018; Lavrijssen and Carrillo Parra (n 13) 1208. the initial liberalisation of the electricity markets(3) For an overview of the liberalisation process, see: Angus Johnston and Guy Block, EU Energy Law (Oxford University Press 2012). made it clear that consumers have an essential role to play in well-functioning markets.(4) Lucia Reisch and Hans Micklitz, ‘Consumers and Deregulation of the Electricity Market in Germany’ (2006) 29 Journal of Consumer Policy 399, 406. Open and flexible electricity markets require consumers to behave like rational economic participants and take active decisions about their electricity use.(5) Butenko and Cseres (n 50) 7.
The 2007 communication ‘An Energy Policy for Europe’ was one of the first major EU documents to recognise the role of consumers.(6) European Commission, ‘An Energy Policy for Europe’ (2007) COM(2017) 1 final; Malte Fiedler, ‘The Making of the EU Internal Energy Market’ (Rosa Luxemburg Stiftung 2015) 6.Notable reiterations include the EU’s Energy 2020 strategy,(7) European Commission, ‘Energy 2020: A Strategy for Competitive, Sustainable and Secure Energy’ (2011) COM(2010) 639 final 5. the Energy Roadmap 2050(8) European Commission, Energy Roadmap 2050 (Publications Office of the European Union 2012). and the annual Citizens’ Energy Forum.(9) European Commission, ‘Citizens’ Energy Forum’ (Brussels 2009) Press release MEMO/09/429 <http://europa.eu/rapid/press-release MEMO-09-429 en.htm?lo-cale=EN> accessed 18 January 2018.
The Winter Package greatly expands the role of the consumer.(10) Officially known as the Clean Energy for All Europeans Package; however, the colloquial Winter Package name is well known and its use is widespread. The consumer should not only act as a rational market participant; he is also expected to engage in prosumer activities.(11) European Commission, ‘New Electricity Market Design: A Fair Deal for Consumers’ (2016) 2 <https://ec.europa.eu/energy/sites/ener/files/documents/technical_memo_marketsconsumers.pdf> accessed 18 January 2018. However, the Winter Package does not mention the words prosumer, prosumption or prosumerism. Instead, the concept of prosumption is captured by several different terms, spread out over the legislative proposal.
In the paragraphs below, we will discuss these different terms. We will focus on three recurring issues: the personal scope of the term, the material scope of the term, and whether the prosumer activities can constitute a ‘primary commercial or professional activity’. Our thesis is that the significant overlap between these terms shows that the expression of the prosumer concept does not warrant four different terms. Instead, it would be better to develop one overarching prosumer definition.