Introduction

As energy prices continue to rise across Europe, it is not just low-income households experiencing energy poverty who are at risk, but middle-class homes are increasingly vulnerable due to their disposable income shrinking because of the energy crisis.

In Housing Rights Watch, we have for the first time addressed how the right to access energy intersects with the right to housing. Organisations working with vulnerable households such as FEANTSA are calling on EU Member States to take immediate measures to protect the right to access energy more and more. These measures notably include banning disconnections, but also guaranteeing the supply of a minimum amount of energy for all, establishing social tariffs as well as reinforcing consumer rights to avoid arrears in energy bills.

International Human Rights Law

Although a stand-alone right to access energy is not recognised directly in international human rights law,  it is part of other rights such as the right to an adequate standard of living which is included in article 11 of the International Covenant of Economic and Social Rights: “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing.”[1] The right to housing includes, according to the UN Committee on Economic and Social Rights, energy, cooking, lighting and heating. [2]

This committee has issued concrete recommendations to states in relation to access to electricity and gas. The committee recommended Germany to adopt effective measures to ensure that all households are able to meet their basic electricity needs, avoiding power shutdowns for households that are unable to pay for their minimum necessities. It recommended Belgium to take the necessary measures to ensure a minimum supply of energy, even when a meter is installed. It also recommended that they expand coverage for recipients of social benefits by allocating more financial resources to the gas and electricity fund.[3]

It’s probably in relation to the right to water where the legal language is stronger when it comes to disconnections. The UN Special rapporteur on the right to safe drinking  water has become vocal on this issue, stating that “regulatory frameworks should set an outright prohibition on disconnections due to inability to pay”. Furthermore, they affirm that disconnections constitute  a regressive measure, and it violates the human right to water and sanitation.

Some of these international rights are making their way into court decisions but have not always trickled down to national and regional policies in most countries.

EU Framework

The European Pillar of Social Rights, which is supposed to underpin the EU’s social dimension, includes Pillar 20 “Access to essential services”, which encompasses water, sanitation, energy, transport, financial services and digital communications.  However, the EPSR has no binding force.

Both the Electricity Markets Directive[4] and the Gas Directive[5] require EU Member States to ensure there are adequate safeguards to protect vulnerable customers. In the Electricity Directive, the definition of vulnerable customers (article 28) is left to the Member States. It can refer to energy poverty and the prohibition to carry out electricity disconnections to said consumers in critical times. The term can also refer to certain income levels, the share of disposable income that consumers spend on energy, the energy efficiency of homes or critical dependence on electrical equipment due to health, age, or other reasons.

The Drinking Water Directive[6] has been used as a model to guarantee a minimum amount of energy. Its article 16 established that Member States shall take the necessary measures to improve or maintain access to water intended for human consumption for all, in particular for vulnerable and marginalised groups, as defined by the Member States. For that purpose, Member States shall: take measures that they consider necessary and appropriate to ensure that there is access to water intended for human consumption for vulnerable and marginalised groups.

The concept of vulnerable consumers in European Union law is narrower than that found in the academic literature. They are defined in the Unfair Commercial Practices Directive, which requires additional protection for consumers who are 'particularly vulnerable due to their mental or physical infirmity, age or credulity'. This definition has been subject to much criticism, as it does not take the different variables that can make consumers vulnerable into account. Provisions protecting vulnerable consumers can be found in other horizontal consumer legislation, as well as in sector-specific legislation, for instance in the field of energy, finance or food. [7]

The Commission adopted in October 2022 a Communication on Energy Prices to tackle the exceptional rise in global energy prices, which was projected to last through the winter, and included, among others, the possibility of putting safeguards in place to avoid disconnections from the grid.

The European Commission (DG Energy) together with high-level representatives of European consumer organisations, regulators, distributors, and energy suppliers identified a common ground for additional voluntary consumer protection measures which go beyond the existing regulatory framework throughout this winter. A Joint Declaration on enhanced consumer protection this winter encourages companies, regulators, and consumer organisations to  implement  specific measures to support consumers in the energy crisis until at least the end of March 2023.[8] Suppliers should provide tailored solutions for customers based on their individual circumstances to the maximum possible extent, including alternatives to disconnections until the end of March 2023,  especially for customers facing first-time difficulties to pay their energy bills.

The European Commission is currently working on a new initiative on protecting vulnerable energy consumers. It’s not clear to us what instrument they are thinking of but will focus on obligation on transparency of contracts and recourse and to avoid disconnections – building on COVID experience.

National practices

In response to COVID19 and to the current cost of living crisis, several EU Member States had introduced or strengthened disconnection bans.[9]  Such measures have proved fast and clearly protective. See below some good examples in Europe:

• In France, there is since 2013 a ban on electricity disconnection in the winter, energy providers can’t disconnect consumers between 1 November and 31 March. In addition, the energy company EDF has announced a voluntary policy not to disconnect its consumers and instead introduce a guaranteed minimum level of  service provision. [10]
• Energy cut-offs are illegal in Spain when applied to vulnerable consumers and those at risk of social exclusion. This measure has been extended until 31 December 2023.
• In Greece, there is a national ban on electricity disconnections for vulnerable groups during the winter (November to March) and the summer (July and August).[11]
• In Ireland, the Commission for the Regulation of Utilities (CRU) announced that it would not disconnect anyone’s energy supply between 1 December 2022 and 28 February 2023.
• In Brussels, all disconnections must be authorised by a judge, who examines that a strict procedure (that includes a notification to the public social services centre) has been respected and that the disconnection is not abusive. There is a winter truce, so no disconnections are allowed between 1 October and 31 March. If a disconnection is authorised, the household will instead be supplied by the DSO (acting as a social supplier) at the social tariff rate until 31 March 2023.

Despite these good examples, protection varies massively between EU countries, and there is scope to build on these experiences to guarantee a basic right to energy in Europe.

A report on the “Right to affordable, clean energy for all Europeans” published by EAPN/ EPSU [12] recommended at the beginning of 2022 to ban all disconnections and take effective steps to prevent self-disconnections by users of prepayment meters and maintain regulated prices beyond 2025, recognising them as a core tool to secure the right to energy for all households.

Several organisations such as the the Right to Energy Alliance  requested a ban on disconnections even before the pandemic.[13] More recently, organisations such as Greenpeace, member of the alliance, have insisted on the need to offer people a minimum level of protection by banning energy disconnections in the EU.[14]

Housing Rights Watch is currently working with our European partners, Fondation Abbe Pierre, to ask the European Commission for a right to access energy to all European households. We believe that energy is more than ever a basic right and access to it must remain at the heart of the energy transition and the fight against poverty.