Recyclable packaging priced separately - CJEU in Verband Sozialer Wettbewerb (C-543/21)

The CJEU agreed today with the opinion of AG Emiliou in the case Verband Sozialer Wettbewerb (C-543/21). I commented on this opinion previously on our blog (see here), and as the CJEU confirmed the AG's opinion today, my remarks expressed in the previous blog stand. 

To briefly remind our readers, the referring German court asked for a clarification on the concept of a 'selling price' from Directive 98/6/EC on price indication. The question was whether consumers purchasing goods in returnable (glass) containers should see the deposit for the returnable container included in the product price, as it would be part of the final selling price, unavoidable and foreseeable. The CJEU confirms that this is not the case and that such deposits should be priced separately. 

Both AG Emiliou and the CJEU focused mainly on the avoidability of the deposit becoming a final part of the selling price, as even if consumers decide not to return the container and obtain a reimbursement, in theory they could and maybe even should have done so (paras 21-23). Additional argument relates again to the legislative aim of ensuring consumers make better-informed decisions. CJEU states that consumers receiving separate information on the price of a product and on a deposit for a container would be better able to compare products available on the market, and different deposit schemes (paras 25-27). The CJEU invokes the average consumer concept as a benchmark for a consumer who should be able to add the two price points together and assess the final price. The latter is a response to the Commission's concern about possible confusion as to the final price of vulnerable consumers (para 62 AG Emiliou's opinion). 

Proposal for Green Claims Directive

The second proposal published on March 22 by the European Commission was for a new Green Claims Directive (COM/2023/166 final - Directive on substantiation and communication of explicit environmental claims).

Boxed Water Is Better on Unsplash

The aim of this proposal is to improve consumer protection against greenwashing and misleading environmental claims, as well as providing consumers with better quality information on the environmental impact of consumer products. This could facilitate consumers making environment-friendly choices. Further, the proposal aims to benefit traders by facilitating fair competition on the environmental sustainability of their products. The envisaged way to achieve this is by introducing common minimum rules on what constitutes a green claim and when traders could make such claims. 

The proposal addresses:

• Explicit environmental/green claims (Article 2(1) and (2))
• Comment 1: This proposal does not contain an independent definition of an environmental claim. It refers here to another proposed Directive (empowering consumers for the green transition through better protection against unfair practices and better information - COM/2022/143 final), which suggested amending Unfair Commercial Practices Directive by adding this definition in its Article 2(o). Empowering Consumers for the Green Transition Directive was proposed a year ago by the Commission but still awaits approval by the Parliament. If it is adopted then environmental claims will be defined as: "any message or representation, which is not mandatory under Union law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, in the context of a commercial communication, which states or implies that a product or trader has a positive or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time". We are still awaiting the introduction of this definition, which aims to already prohibit the use of generic environmental claims like 'eco-friendly' or 'green'.
• Comment 2: The above is a very broad definition, but the new proposal aims only to apply to explicit environmental claims. This would be 'an environmental claim that is in textual form or contained in an environmental label'. The explicitness is then related to the form in which the claim is being made, rather than its content. Whilst this test will be easier to apply, providing more legal certainty, it is unclear why, for example, a graphic symbol (logo) on an environmental label will be more explicit than in a company name. This notion also leaves unaddressed overall (misleading) impression of many messages as presenting 'environmentally-friendly' products, e.g. by the communication using green-themed colours and images.
• Substantiation of claims (Article 3)
• Comment 1: One of the recognised issues with greenwashing is the lack of common standards on substantiation of environmental claims. The Commission introduces now various guidelines (para 1), which traders are supposed to follow whilst assessing whether their claims are substantiated and could be communicated. This assessment focuses on the life-cycle of a product, seemingly limiting the option to make green claims related to only part of the product/production process. Additionally, when there is lack of harmonisation in applying the guidelines that creates obstacles for the functioning of the internal market, the Commission reserves the right to adopt delegated acts (paras 4 and 5) further specifying, e.g. materials or processes that contribute or cannot contribute to relevant environmental impacts. Considering the so-far observed lack of harmonisation, we may have expected the proposal to already include some of these further specifications, e.g. in the form of a black list of green claims. Already, the European Environmental Bureau (EEB) commented on the regrettable 'lack of a clear ban on carbon neutral claims and on the use of green claims on products that contain hazardous chemicals' (see here). Similarly, also BEUC called for an outright ban of such misleading claims (see here). Although going forward, it makes sense for the Commission to reserve the right to act quickly on improving the market practices across the EU on substantiating green claims.
• Comment 2: To minimise the information cost for microenterprises, the proposal does not require them to follow the substantiation of claims process, unless they intend to have their green claims verified and certified. This would then be the choice of microenterprises, i.e. whether to follow the procedure from the proposal in light of any expected benefits from certification outweighing its costs.
• Communication of claims (Article 5)
• Comment 1: Green claims communicated to consumers are not only to be substantiated following the set requirements (incl. reliance on scientific evidence), but also be significant from a life-cycle perspective of a product. This should limit the amount of green claims used by traders, introducing more transparency and minimising the potential for misleading consumers. 
• Comment 2: Consumers should receive information on how to use the product to achieve its expected environmental performance, where the product use influences environmental impacts (e.g. waste sorting, use patterns impacting product longevity - Recital 34). This information should accompany the claim and could allow consumers (as well as competitors and enforcers) to easier assess the veracity of the claim. 
• Comment 3: There are additional rules specifying how green claims are to be communicated. Any claim related to future environmental performance (e.g. traders joining initiatives that will improve circularity of their products) should include a time-bound commitment for improvements of trader's operations and value chains, rather than rely on overall offsetting of negative environmental impacts, not only following from traders' own actions (Recital 35). This aims to counteract confusing climate-related claims, but as noted by the BEUC and the EEB will not be as effective as an outright prohibition of such claims. Para 6 specifies in detail what substantiating information should accompany a green claim and how it should be made available to consumers. There is a question here as to the impact that this detailed information may have on consumers' attentiveness and understanding thereof, as well as to the feasibility of placing all this information on product packaging.
• Environmental labelling (Article 8)
• Comment 1: To limit the proliferation of environmental labels, para 3 prohibits further adoption of national or regional environmental labelling schemes. Previously existing labelling schemes may continue their operation in the EU, provided they are in compliance with the proposal. New environmental labels awarded in third countries will require approval of the Commission prior to products carrying them entering the EU market (para 4). Details of all these approval processes are still to be determined.
• Comment 2: The proposal addresses also the issue of private environmental labelling schemes. These may only exist if they 'provide added value in terms of their environmental ambition' compared to existing EU, national and regional schemes, and if they are compliant with the proposal. This suggests that the new proposed private environmental labelling schemes will not be able to simply replicate environmental assessments already conducted by other available labelling scheme providers.
• Verification of claims (Articles 10-11)
• Comment 1: It is up to the Member States to set up procedures allowing for the green claims' verification. This means that the verification process will vary across the EU, in costs and procedure. However, it will need to take place before the green claim is communicated to consumers. Any self-certified environmental labels will constitute an unfair commercial practice (Recital 42). This suggests that traders will not be made able to make environmental claims spontaneously.
• Comment 2: Verifiers will be accredited third-party conformity assessment bodies, independent from traders or products whose green claims they are assessing. They will issue a certificate of conformity, where appropriate, upon verifying the claim. This certificate is not, however, guiding for the assessment of the environmental claim by authorities or courts. The proposal does not address the issue of the liability of verifiers for incorrectly verifying/certifying certain claims.

It excludes from its scope:

• Claims covered by existing EU rules 
• Comment 1: The proposal contains a long list of already binding EU rules that address various aspects of traders making environmental claims, such as the EU Ecolabel, the organic food logo, energy labelling, ecodesign requirements. It also anticipates, in its Article 1(2)(p), the adoption of future EU rules further addressing explicit green claims and excludes them a priori from its scope of application (e.g. the forthcoming 'Count Emissions EU', see Recital 13). Whilst from the legislative perspective this solution is the easiest to implement, it may not provide the necessary transparency in the market. For consumers and traders both, it will be handy to have comprehensive  graphs/illustrations/tables prepared outlining which rules apply to which products or claims, what the main differences are in these.

The proposal aims to provide more details related to enforcing the UCPD against unfair environmental claims of traders. It also foresees that consumer organisations will be able to act on the Representative Actions Directive in enforcing collective consumer interests in having access to non-misleading green claims (Article 24). The sanctions that traders could expect for making unsubstantiated green claims may be severe: up to 4% of profits, confiscation of profits and a ban from public procurement contracts, access to public funding for up to 12 months (Article 17).

New Green Deal proposals published today: Right to repair

Photo by Kilian Seiler on Unsplash

The European Commission published two new legislative proposals today implementing the programme of the European Green Deal for Consumers: Proposal for a Directive on new rules on substantiating green claims and Proposal for a Directive on common rules promoting the repair of goods (text of both proposals may be found here). Below we provide our first thoughts on the proposal on the right to repair. 

Promoting the right to repair (COM(2023) 155 final)

Consumer Sales Directive prioritises consumers' access to and choice of two remedies in case goods are defective (non-conforming the contract): repair and replacement. Traders may refuse the remedy chosen by consumers if it is impossible to provide or it would be disproportionate to provide it. Infamously, the assessment of disproportionality does not account for environmental impact of the to-be-provided remedy (although some national courts started to include this impact in their assessment). Consumers are often not incentivised to ask for repair, which may be perceived as more time-consuming, less trustworthy, difficult to obtain. For traders repairing goods is also often a less preferred solution, e.g. due to the need to keep spare parts available, arrange repair points.

The new proposal aims to address the above-mentioned issues and incentivise more uptake of repair as a chosen remedy, which should also incentivise producers and traders 'to develop more sustainable business models' (see Commission's press release here).

What are the proposed legislative changes:

• Sellers to offer repair, unless it is more expensive than replacement.
• Comment 1: This limits the choice of consumers as to their remedy. We could argue that the choice left to consumers is illusory. Unless repair is more expensive, consumers have to accept it. If replacement is cheaper but consumers would exercise their choice for repair instead, sellers would be able to claim disproportionality of remedies and provide replacement instead. 
• Comment 2: Proponents of promoting repair as leading to more sustainable consumption are bound to be disappointed by this middle-of-the-way solution. It is worth noting, that previously unless repair was more expensive than replacement, there was no disproportionality when consumers asked for repair, thus sellers needed to provide it to consumers, as well. The only difference then is that now consumers will need to accept repair even if it was not their first choice. This may increase the number of repairs on the market, but would the change really be significant? It will depend on what is calculated in the price of repair vs replacement (e.g. price of environmental impact?), the availability of spare parts etc. Assessment of disproportionality remains key and has not been further addressed by the proposal.
• Consumers to have a right of repair against producers for products that are technically repairable under EU law, when their legal guarantee with sellers expires (that is which are covered by reparability requirements)
• Comment 1: This new right fills the gap that often occurred when the product would malfunction immediately after the legal guarantee's expiry date, or when non-conformity at the moment of delivery could not be established. However, the scope of the application of this new right is rather limited (see below).
• Comment 2: Repairability requirements are any EU law requirements listed in Annex II that enable a product to be repaired. This limits the applicability of this new right to specific product categories, e.g. washing machines, dishwashers, refrigerators, vacuum cleaners, servers, mobile phones, aligning this proposal to the previously adopted Ecodesign rules. 
• Comment 3: It is producers' choice whether to repair for free (commercial guarantee) or against payment (with the hope that market pressures will keep the price reasonable). Producers may be discouraged from providing this right for free as it would drive their product prices up, unless there would be a clear and clever way to emphasise them providing free repairs. It will be interesting to observe whether consumers' transactional choices will be impacted by the difference in the provision of repair services.
• Comment 4: For goods produced outside the EU, consumers could still expect repair - either from these producers or other traders within the EU. This, as we know, may be a right that will be difficult to enforce in practice.
• Producers' duty to inform about products they are obliged to repair themselves
• Comment 1: The aim of this new information piece is to ensure consumers know they can turn to producers for repair. However, there is lack of specificity, as to how this information is to be provided to reach consumers. Well, besides required transparency, as usual. This information may be more effective if it was provided by sellers, highlighted at the point of contracting.
• Online matchmaking repair platform to connect consumers with repair points, sellers of refurbished goods in their area
• Comment 1: Article 7 introduces an obligation for the Member States to establish at least one such platform. This means that cross-border buyers may be somewhat inconvenienced, as the platforms are bound to differ in each MS The platforms need to have search functionality for goods, location of repair, repair conditions (time), availability of temporary replacement goods, ancillary services, quality standards, refurbished goods sellers. It should allow directly asking for the ERIF, as well as display of any adopted national repairability labels.
• Comment 2: Repairers may choose whether to register on the platform and MS may place conditions on who can access the repair platform. Repairers may be incentivised to register due to competition on the market, but it is also clear that some of them may not opt in. This will leave consumers with fewer choices and less transparency.
• European Repair Information Form (ERIF) available on request from repairers - to assure transparency to repair conditions and price
• Comment 1: This is supposed to facilitate comparison between different repair providers. It is interesting, however, that the form is not available by default, but only upon consumer request. This limits transparency as many consumers may not know to or take the time to ask for this form, esp. if they are looking for a quick fix of their product's problem.
• Comment 2: Consumers may be asked to pay for costs that repairers incur to provide this form. This is quite baffling, honestly, as repair remains a free remedy pursuant to the CSD, which right this new framework may undermine. Hopefully, the EP will re-write this part of the proposed Article 4 (para 3).
• Comment 3: The benefit of the proposed framework is that the ERIF would remain fixed for 30 days from the day it is provided. Consumers may then take their time comparing various offers available on the repair market.
• European quality standard for repair services - to help identifying repairers of higher quality
• Comment 1: The Commission's plan is to facilitate development of a voluntary European quality standard for repair services (Recital 27). There is then no specific standard in mind yet, which could provide more transparency as to repair quality. In the hopes that one (or more) is adopted soon, Article 7 mentions that any European or national quality standards would need to be searchable on online comparison platforms. 

It is worth it to note the new term proposed by the Directive: 'Repairer' is a natural or legal person who offers a repair service for commercial purposes, incl. independent repair points, producers, sellers.

Deposit on recyclable packaging not included in a selling price - AG Emiliou in Verband Sozialer Wettbewerb (C-543/21)

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Last week, on February 2, AG Emiliou issued his opinion in the case Verband Sozialer Wettbewerb (C-543/21) concerning interpretation of the 'selling price' from the Price Indication Directive (Directive 98/6/EC). The facts of the case concerned yoghurts and drinks sold in glass containers, which consumers could return for re-use and recycling purposes. The products were sold at a specified total price 'plus ... deposit'. The question discussed was whether the total selling price should have included the cost of the deposit. 

Article 2(a) Directive 98/6 determines as a 'selling price' the 'final price for the unit of a product, or a given quantity of the product'. A few points in AG Emiliou's opinion drew my attention:

Final components of the price 

AG Emiliou refers to a previous case in Citroën Commerce (C-475/14) where the Court determined two conditions for qualifying a component of the price as a 'final one': 1) it needs to be a pecuniary consideration for the acquisition of the product; 2) unavoidability and foreseeability thereof (paras 38-40). Whilst the first condition seems to be fulfilled here by consumers paying money as the deposit on the glass container, acquisition of which is necessary to purchase a drink/yoghurt, the second condition is more difficult to pin down here. On the one hand side, the deposit has to be paid at the time of the purchase, thus it could be deemed unavoidable. On the other hand, consumers may get their money back if they return the packaging, which could make the payment ultimately avoidable (para 48).  The question then is whether we assess the unavoidability of payment at the moment of the purchase of a product, or by looking holistically at a given transaction. Even in the latter case, there could be situations when consumers do not return the deposit and thus forfeit the payment, not necessarily voluntarily. The Commission draws attention in its submission to the fact that tourists may leave the country with a container and not be able to return, that glass containers may easily be broken or even repurposed by consumers themselves at home, all of which would not allow consumers to reclaim the deposit (para 49). To AG Emiliou these would not be typical situations though (para 51), invoking German governments submission that at least in case of plastic containers - 96% would be returned for recycling. There is a difference though in durability of plastic vs glass containers, and Germany has quite a long history in recycling efforts, compared to many other European countries. However, one cannot but agree with AG Emiliou that the deposit at least can and even should be refunded (para 52), which could lead the CJEU to conclude that it is an avoidable part of the price. 

Selling price vs price per unit

An interesting argument to not count the deposit within the selling price is made by AG Emiliou in reference to the need to allow consumers to have insights into price per unit of a product. Indeed, if we would include deposit price in the product price, this could obscure the comparison between yoghurt/drink prices of competitors, if consumers would return the packaging and be refunded their deposit money (paras 59-61, 65). At the same time, AG Emiliou does not give enough weight to the Commission's argument, in my opinion, that not including deposit money in the selling price may mislead consumers (esp. vulnerable consumers) as to the total price of the product at the moment of its purchase (para 62).

Environmental context

'Deposit-refund schemes are, above all, tools of environmental policy...' - thus starts para 69 introducing AG Emiliou's arguments based on the green agenda of the EU policymakers, highlighting various recent developments aimed at promoting recycling of consumer goods packaging. This concludes with a claim that by splitting the price, providing a separate quote for the deposit, consumers' attention may be easier drawn to the fact that the container could be recycled or reused (para 77). First, this argument makes information design/transparency claims, without, however, justifying them by referring to any literature showing that providing consumers with a separate price point would indeed increase their awareness of the recyclability of a container. Second, it is interesting to observe how interpretation conducted through the lens of current policy objectives could introduce new meaning to old provisions.

Proposal on Empowering Consumers for the Green Transition/Part 2

 Last week, I posted a summary of the main changes the Proposed directive for empowering consumers for the green transition would bring to the Unfair Commercial Practices Directive. Today's second part will be devoted to the Consumer Rights Directive. 

Next to preventing "greenwashing" and unsubstantiated claims, the Commission aims that consumers get the right information, that is information that allows to make them more sustainable choices - in particular choosing for more energy efficient, durable and reparable products. 

Six items are added to the pre-contractual information requirements, both for distance and off-premises contracts and for other transactions coming under the scope of the Directive. 

These six additional items concern guarantees, updates and repairs (including some complicated language about telling consumers what they have not received information on).  

–information on the existence and length, of a producer’s commercial guarantee of durability for all types of goods, when this information is made available by the producer; 

–information that no information has been provided by the producer about the existence of a producer’s guarantee of durability for energy-using goods;

–the existence and length of the period during which the producer commits to providing software updates for goods with digital elements;

–the existence and length of the period during which the provider commits to providing software updates for digital content and digital services; 

–the reparability score of the good as applicable under Union law; 

–other repair information, should no reparability score be available at Union level – such as information on the availability of spare parts and a repair manual.

The guarantee information, in particular, needs to be provided also in the context of contracts concluded with electronic means, before the consumer concludes the contract. This includes the possibly confusing "non-information" referred to above ("information that no information has been provided... about the existence of a producer's guarantee of durability"). The proposal explains that, for energy-using goods, providers also need to give information concerning durability when this can be easily and reliably calculated - so the "negative information" above means sellers would have to say something like "we make no promises as to the product's durability". The proposal explains that 

The problem of limited durability contrary to consumer expectations is most relevant for energy-using goods, which are goods that function from an external energy source. Consumers are also most interested in receiving information about the expected durability of this category of goods. For these reasons, only for this category of goods, consumers should be made aware that the information about the existence of a producer’s commercial guarantee of durability of more than two years has not been provided by the producer.

While the reasoning seems plausible, the text is particularly clumsy and could use a clarification/exemplifications.  Here's to the hope that it can be improved in the legislative process - form is substance, even in consumer law :). 

Finally, it is interesting to observe that the reference to an applicable reparability score is, so far, aspirational - no such European scheme exists, despite the warm reception of the French initiative which for the first time established such scoring in Europe (the so-called "indice de réparabilité"). In this respect, a petition has been launched months ago by the Greens, but I could find no official update connecting this reference in the proposal to actual legislative initiatives in the indicated directions. 

This is it for now - while normally information requirement may not be the most exciting of developments, the connected issues here, such as the reparability score and the fight against planned obsolescence all give us reason to think that there will be quite something to report on in the near future. Stay tuned!

Proposal on Empowering Consumers for the Green Transition/part 1

Last week, the Commission has presented a new proposal in the context of its Consumer agenda and circular economy action plan, the Proposal for a Directive on Empowering Consumers for the Green Transition. The proposal aims to empower consumers to play their role in the transition to a circular economy by providing them more information concerning key sustainability features of the products they buy and by clearing out misleading information – also known as greenwashing.  

The Directive has a relatively short text with only two main articles, amending respectively the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive (CRD) to add a few items. I will split the overview in two posts in order to avoid a text wall, so here we go with the first part: changes to the UCPD.

 

First off, the proposal adds a number of practices to the blacklist of practices that are always unfair under articles 6 and 7 UCPD. These include, in essence:

• Displaying sustainability labels which are not based on a certification scheme or established by public authorities;
• Unsubstantiated or inflated environmental claims, including when mandatory requirements are presented as distinctive features of the product;
• Omitting to inform consumers about planned obsolescence features or about the adverse impact certain updates may have on product functionality;
• Omitting to inform consumers of the limited reparability of a product or of the fact that the product is designed to limit its functionality when used in combination with non-original spare parts;
• Inducing the consumer to replace parts of a good earlier than necessary.  

Based on occasional news, it seems plausible that at least some of these practices were in fact already the target of national enforcement policies. More innovative is the opening to a broader meaning of “sustainability” in some of the provisions, which is explained in the recitals: “Information provided by traders on the social sustainability of products, such as working conditions, charity contributions or animal welfare, should not mislead consumers either.” Hence in the proposal’s article 1, 

‘sustainability label’ means any voluntary trust mark, quality mark or equivalent, either public or private, that aims to set apart and promote a product, a process or a business with reference to its environmental or social aspects or both. 

Comparably, “sustainability information tools” are defined as 

software, including a website, part of a website or an application, operated by or on behalf of a trader, which provides information to consumers about environmental or social aspects of products, or which compares products on those aspects;

Why does the Directive engage with such information tools?

 

According to the proposal, if a trader provides such tools, they would have to include “information about the method of comparison, the products which are the object of comparison and the suppliers of those products, as well as the measures in place to keep that information up to date”. All this information shall be considered “material information” to the ends of article 7 UCPD, meaning that failure to include it (in a way reasonably accessible to the consumer) will be considered a misleading omission. 

 

This is, given the state of real-world developments, perhaps a bit disappointing: in particular, it says nothing about more socially pressing omissions: should a seller who, for instance, has been made aware of terrible working conditions at their production sites not make mention of that on their website, at least when they hint in any way to their efforts (which doesn’t seem prohibited – “unsubstantiated environmental claims” would be forbidden but in the social compartment only made-up labels seem to be covered)? It may well be that some member states could read this requirement into the directive’s spirit since the proposal does not amend the general unfairness and misleading-ness tests. However, it would be even better if loopholes like this one would be addressed in the political process in the months to come. 

Energy price spike: Commission announces toolbox including consumer alleviation measures

Europe – like most of the world – sits in the middle of an energy crunch. Natural gas prices have gone up in the three digits (!) since 2020 and consumers are feeling the brunt: to give but an example, in the Netherlands several smaller companies have either informed their consumers that their monthly payments will have to go up considerably starting next January, or even have tried to terminate their fixed-term, fixed-price contracts in advance – to the point that the Consumer authority warned them that they do, in fact, need to comply with their contractual obligations (or go to court, one may add).

The spike in gas (and oil) prices has been mainly caused by the global production chains picking up again as the pandemic seems to have gone past its peak moment. For consumers, however, the origins of the phenomenon are less salient than its consequences on their ability to heat their homes this coming winter. Furthermore, energy anxiety in advanced and high-impact countries risk undermining the energy transition goals that have been set up in the past few years: suffice it to say that China has announced that its plans not to open new coal power plants will have to be reconsidered. 

Against this background, the Commission has announced this week a “toolbox” meant to guide Member States in the effort to soften the impact of this new crisis on consumers, and in particular vulnerable households who suffer or are exposed to energy poverty. While some elements in the toolbox are related to general energy policy and hence not so interesting to report on here, a few are worth mentioning, in particular:

•     Provide emergency income support for energy-poor consumers, for example through vouchers or partial bill payments, which can be supported with EU ETS revenues;
•       Authorise temporary deferrals of bill payments;
•       Put in place safeguards to avoid disconnections from the grid;
•       Provide temporary, targeted reductions in taxation rates for vulnerable households; 

The first measure seems to be inspired by actions recently taken in France, but also seems to mirror practice in the (formerly MS) UK. It goes without saying that this could be difficult for some MS to bear, especially after years of crisis in which the pandemic has already put a strain on public finances.  

Deferrals may be a more attractive option for public actors, but they may exacerbate problems for providers, some of which have – to take the UK’s example – already declared bankruptcy since last month.  

Safeguards against disconnections should be already part of the policy kit in this area. According to both the 2019 Electricity Directive and the Natural Gas Directive, Member States have the option to ban disconnections “at critical times” to protect vulnerable consumers. What these critical times are, however, is not defined, and neither is the notion of vulnerable consumers – which may or may not, according to the directive, refer to energy poverty.

The Commission’s communication emphasizes that in the long term, energy transition is the best insurance against price fluctuations on the fossil markets. This process, according to the Commission, should thus not be jeopardized by the current crisis. 

The toolbox has been positively received by BEUC; Member States, however, may or may not be receptive to the Commission’s push to put immediate relief centerstage, being divided on many points including the extent of the current threat for prices on their own as well as social cohesion.