d. Prosumption as a ‘primary commercial or professional activity’
The requirement that prosumer activities are not undertaken as a ‘primary commercial or professional activity’ (PCPA) is a recurring theme throughout the Winter Package. This requirement allows for a distinction between the established professional electricity market players and small-scale prosumers. This barrier serves two purposes. On the one hand, it allows prosumers to maintain the benefits of being a consumer, such as coverage by consumer protection rules. On the other hand, it enables prosumers to escape the heavy financial and administrative burdens imposed on professional electricity market players.
The definition of the active customer excludes prosumption as a PCPA. The threshold above which prosumer activities can be considered as someone’s PCPA is not determined. Unfortunately, this limits the potential of prosumers to participate in the energy market, which goes against the broader goals of the European energy union.(1) European Commission, ‘Transforming Europe’s Energy System - Commission’s Energy Summer Package Leads the Way’ (2015) <http://europa.eu/rapid/press-release IP-15-5358 en.htm> accessed 18 January 2018. In addition, it creates a lot of uncertainty for entrepreneurs and investors and stymies the development of new, creative business models based on prosumption.(2) Lavrijssen and Carrillo Parra (n 13) 1211.
The definition of the local energy community does not explicitly mention any limitations on the exercise of prosumer activities as a PCPA. In addition, even though local energy communities are most often value-driven, the existence of profit-driven local energy communities is not excluded, and local energy communities can be incorporated. It therefore seems possible for the local energy community to undertake prosumer activities as a PCPA.
Renewable self-consumers are not allowed to undertake prosumer activities as a PCPA, except in cases where he or she is a non-household renewable consumer. This implies that households could make their prosumer activities a PCPA. However, the renewable self-consumer is a special type of active customer, as was mentioned earlier. Consequently, the exception for households seems to contradict the more restrictive active customer definition, which excludes all prosumption as a PCPA. As a result, it is not clear in which situations (if any) the household exception could apply. In the case of the renewable self-consumer, the threshold for determining when prosumption becomes a PCPA is quantified. Households are considered prosumers if they feed less than 10 MWh into the grid on an annual basis. For legal persons, the threshold is 500 MWh of electricity fed into the grid on an annual basis.(3) Art 21§1(c) proposed renewable energy directive; however, Member States can set a different threshold. While this quantification provides welcome clarity compared to the open-ended prohibition in the active customer definition, it is not clear why the threshold was set at this specific level.
Finally, the renewable energy community does not rule out prosumer activities constituting a PCPA.
It appears that the restriction on prosumer activities as a PCPA only applies to individuals, except in the case of active customers acting jointly. The directives do not explain why the PCPA threshold is determined for renewable self-consumers, while it remains undetermined for active customers.