The Affordability of Energy: How Much Protection for the Vulnerable Consumers?

Affordability is a new alien concept penetrating the field of contract and consumer law as one of the obligations related to the provision of universal services or public service in the context of services of general economic interest. Affordability becomes an important element of the European social model (using Scharf's terminology; Scharf, J Common Mark Stud 40: 645-670, 2002) and its constitutional dimension will be confirmed by the Treaty of Lisbon and the Charter of Fundamental Rights of the European Union (EU). The major European Commission policy tool for ensuring the Affordability of Energy Supply is, on the one hand, functioning competition, which should bring about reasonable prices in general, and on the other hand, regulation targeted at so-called vulnerable consumers. First tested in the UK, it was later spread mainly by the requirements of the Second Energy Package in other Member States (MS). The Third Energy Package (to be implemented by March 2011) further develops this idea and clarifies the set of obligations that the protection of consumers and ensuring the Affordability of Energy Supply require in the understanding of the EU legislator. One could speculate to what extent this is a reaction to the fact that some MS and, in particular, the new MS did not implement the consumer protection requirements of the Second Energy Package, but rather opted for very different regulatory strategies. This paper will examine different regulatory strategies employed in four MS (the UK, France, the Czech Republic, and Slovakia), with special focus on the situation in the two new MS, in order to respond to the question as to whether these different regulatory strategies provide what is promised, i.e., affordable energy for all.