Sharing Energy as Part of the Sharing Economy? New Developments in the EU Energy Transition: Legal Analysis

The global and European energy markets are changing profoundly before our eyes. The European Union (EU), wishing to achieve energy independence soon, including independence from fuel supplies, is turning its attention to renewable energy sources. It is no longer only important to achieve a high level of use of renewable energy sources, but also to maintain local energy security by supporting local energy production from renewable sources at the level of individual EU member states. This is taking place in very different directions and through various support tools.

At the same time, with the development of new technologies, a sharing trend is beginning to develop in society. This trend involves the sharing of resources and goods using primarily the Internet and various online platforms. Sharing of goods and resources does not bypass the energy market either. It has emerged that energy – like any other good or resource – can be shared and, with today’s advances in technology, can be transferred ‘from place to place.’

The sharing energy phenomenon also finds support today on the regulatory side in EU law. Amongst others, there is Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the Promotion of the Use of Energy from Renewable Sources

Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the Promotion of the Use of Energy from Renewable Sources [2018] OJ L 328.

and Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on Common Rules for the Internal Market in Electricity

Directive (EU) 2019/944 of the European Parliament and of the Council of June 5, 2019 on Common Rules for the Internal Market in Electricity and Amending Directive 2012/27/U [2019] OJ L 158.

, which provide for forms of a decentralised energy market and certain forms of community energy in the form of electricity prosumers and various types of energy communities.

The basic research question addressed in this study is how does the sharing energy phenomenon fit into the broader sharing economy phenomenon today? It also asks in what way does EU regulation currently support the development of the sharing energy phenomenon? In view of the research questions posed in this way, the aim of this article is to verify the thesis that there is a link in the legal space between the sharing energy phenomenon and energy-related regulation at EU level.

The research area in this paper is focused on EU law, in which the provisions of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources and Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market in electricity play a central role. The article also includes references to Polish law. Above all, the dogmatic-legal method was used as the research method here; based on this method, the provisions of legal acts were analysed. In addition to the dogmatic-legal method, the theoretical-legal method was also used. The historical-legal method was also used in some sections of the work.

II.

Sharing Economy and the Idea of Sharing Resources and Goods

Since 2008, we have seen the development of the cultural and social phenomenon of sharing goods in the West. For many consumers, it is more important for them today to have access to something than to own a particular thing

Justyna Ziobrowska, Sharing economy jako nowy trend konsumencki in U. Kalina-Prasznic (ed), Własność w prawie i gospodarce, (E-Wydawnictwo. Prawnicza i Ekonomiczna Biblioteka Cyfrowa. Wydział Prawa, Administracji i Ekonomii Uniwersytetu Wrocławskiego, Wrocław 2017) 262.

. The strong growth of the sharing economy phenomenon is also linked to the technological trend of ‘speeding up’ access to goods. Nowadays, it is no longer necessary to purchase a physical medium in order to listen to music or watch a film, as this is possible by logging on to the relevant streaming portal online. It is also worth mentioning here another driving element of this phenomenon – which may be crisis. Without elaborating extensively here, it is important to emphasise that the aforementioned access to goods can be caused, for example, by a deliberate limitation of a certain resource, in which case sharing instead of ownership may become the only effective solution.

The sharing economy is defined as ‘a peer-to-peer based sharing of access to goods and services, which are facilitated by community-based online platforms’.

Mi Zhifu and Coffman D’Maris, ‘The Sharing Economy Promotes Sustainable Societies’ (2019) 10 (1) Nature Communications 1.

This is one of the basic definitions that describe the phenomenon. Why basic? The sharing economy phenomenon is a highly evolving category. Defining it solely through the prism of access to digital platforms no longer seems sufficient. Indeed, the development of this phenomenon has been very much influenced by the idea of sustainable development. The literature rightly points out that ‘the sharing economy is being praised for its contribution to promoting sustainable development, which refers to a development model that meets the current needs of people while not compromising on the resource needs of future generations’.

Xusen Cheng, Jian Mou, and Xiangbin Yan, ‘Sharing Economy Enabled Digital Platforms for Development’ (2021) 27 (4) Information Technology for Development 635–644.

The economic idea of sharing rather than owning resources is in perfect harmony with sustainable development. For instance, the sharing economy is beneficial to economic benefits, as it plays an important role in cost savings for consumers, increased earnings for suppliers, and profits for operators of SEDPs

Ibid.

In 2016, a communication was published within the EU entitled ‘European Agenda for the Sharing Economy’, which broadly described the phenomenon under discussion here. Among other things, it pointed out that the sharing economy refers to business models in which activity takes place through the intermediation of collaborative platforms that create a publicly accessible market for the temporary use of goods or services, often provided by private individuals

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions European Agenda for the Sharing Economy [SWD (2016) 184 final] Brussels, 2.6.2016 COM (2016) 356 final.

. It also stated that the sharing economy includes three categories of participants:

service providers sharing their goods, resources, time, or skills; these can be individuals offering services on an occasional basis (‘peers’) or service providers professionally engaged in providing services (‘professional service providers’)

users of the above services

intermediaries connecting, via an online platform, suppliers with users and facilitating transactions between them (‘collaboration platforms’)

Ibid.

Shortly after this communication, i.e., in 2017, the European Parliament Resolution of 15 June 2017 on a European Agenda for the Sharing Economy (European Agenda for the Sharing Economy) appeared

European Agenda for the Sharing Economy European Parliament resolution of June 15, 2017 on the European Agenda for the Sharing Economy (2017/2003(INI)) (2018/C 331/18) P8 TA (2017) 0271.

. In this document, one of the elements is to draw attention to the need to see the sharing economy not only as a set of new business models to offer goods and services, but also as a new form of integration of economy and society, where the basis of the services offered is the diversity of relationships that enable the combination of economic and social relations and create new forms of communities and new models of economic activity.

The sharing economy phenomenon has recently become a very important part of the digital change of society in Europe. This digital change, also understood as digitisation and computerisation, affects almost all areas of our daily life. One of the pillars of the EU’s activities for 2021–2027 will be the Digital Europe Programme

Proposal, Regulation of the European Parliament and of the Council establishing the “Digital Europe” programme for 2021–2027, Brussels, 6.6.2018, COM (2018) 434 final, 2018/0227 (COD).

. This programme states, among other things, that digital transformation is affecting all sectors of the economy and changing the way we live, work, and communicate. While in the past, Europe’s prosperity was based on transport, industrial infrastructure, the education system, and high-quality public services, in the future, the basis for prosperity will be investment in strategic digital capabilities and strategic digital infrastructure, upgrading skills and modernising the interface between government and citizens. Funding models are also developing in this area – based on so-called crowdfounding, which is particularly noticeable in the energy industry

Wouter De Broeck, ‘Crowdfunding Platforms for Renewable Energy Investments: An Overview of Best Practices in the EU’ (2018) 15 International Journal of Sustainable Energy Planning and Management 03–10 <dx.doi.org/10.5278/ijsepm.2018.15.2>.

III.

The Wealth-sharing Phenomenon: A Problem for the Legal System?

The phenomenon of sharing undoubtedly ‘escapes’ to some extent the legal system of the EU and its individual member states. This is due to the fact that the current legal systems referred to above operate on the basis of the concept of the right to property. Already Article 17 of the EU Charter of Fundamental Rights

Charter of Fundamental Rights of the European Union [2016] OJ C 202.

states that everyone has the right to own, use, dispose of, and bequeath lawfully acquired property. No one may be deprived of his or her property except in the public interest, in the cases and under the conditions provided for by law, with fair compensation for its loss paid in due time. The use of property may be subject to statutory regulation to the extent that it is necessary in the general interest. Meanwhile, the phenomenon of sharing is related to new social processes and therefore also to new types of legal relations

See Tremblay-Huet Sabrina, ‘Making Sense of the Public Discourse on Airbnb and Labour: What about Labour Rights?’’ in Derek McKee (ed), Law and the Sharing Economy: Regulating Online Market Platforms (University of Ottawa Press 2018).

. The concept of the right to property in terms of the sharing phenomenon is moving into the background somewhat. It is, of course, still important, but for the end user (for example, the consumer), the mere possibility of using a good or resource – without having to dispose of these goods and resources – as one’s own property is a much more important element. And here it is worth pointing out that the sharing phenomenon can have two different facets.

In its first form, sharing may involve making one’s own goods or resources available to others in a direct way. Such a situation occurs in the case of making available, for example, tangible goods (such as car rental via an application). In this case, the legal nature of the relationship is similar to that of a lease and is linked to the obligation to return the good in an undisturbed state.

The second aspect of the phenomenon in question is more complicated, as it consists in making one’s own goods available to a third party, who through the created Internet platform further ‘distributes’ such a resource to other entities. In this case, from a legal point of view, one may speak of so-called licences. In this case, there is also the exercise of copyright and related rights, which is regulated by EU law as part of the internal market

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights in the Digital Single Market and Amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance.) [2019] OJ L 130.

So why might the sharing phenomenon be problematic for the current legal system?

Firstly, there is the problem of ‘dilution’ of liability for any diminution in the value of the good enjoyed. Rather, the hitherto legal construction was based on the presence of the parties to the legal relationship in question at the time it was handed over for use. Nowadays, transactions are handled through web-based applications that operate without the presence of natural or legal persons at the same time and in the same place. The handing over of a thing for use therefore takes place without the physical presence of, for example, its owner or the person disposing of the good in question. As a result, it is not possible, on an ongoing basis, to monitor the condition of the asset or assets. Possible information on the condition of the asset is based in most cases on a form of notification, very often only made by the ‘next’ person using the same asset. This raises a legal problem in the form of the now familiar concept of surrender of the item in an undamaged state. It would therefore appear that the current legal regulation relating to the moment of submission of a party’s declaration of intent as to the quality of the thing is not currently an effective solution and does not properly safeguard the interests of the parties here.

Secondly, the current legal system is not yet fully adapted to the functioning of modern cross-border transactions, where the parties to a legal relationship are subject to different legal regimes. The problem is complicated by the fact that there are a large number of companies from other countries operating in the European market in several EU member states simultaneously. At the time of payment for a network service, we are dealing with a so-called cross-border transaction, as payments are made to another country outside the EU. EU law, as in the case of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights in the Digital Single Market, tries to regulate these new phenomena, but due to the very rapid development of technology, this is not always possible. This is shown, for example, by the course of the case and the judgement of the Court of Justice of the EU in UBER v Spain

Judgment of the Court (Grand Chamber), 20 December 2017 ( *1 ) (Reference for a preliminary ruling, art. 56 TFEU, art 58(1) TFEU, Services in the Field of Transport; Directive 2006/123/EC, Services in the Internal Market;, Directive 2000/31/EC, Directive 98/34/EC, Information Society Services, Intermediation Service to Connect, by Means of a Smartphone Application and for Remuneration, Non-professional Drivers Using Their Own Vehicle with Persons Who Wish to Make Urban Journeys, Requirement for Authorisation), In Case C-434/15.

. The issue of tax issues – also of a cross-border nature – is also linked to this point.

IV.

The EU Energy Market as a Space for the Realisation of the Idea of Sharing

The Treaty on the Functioning of the EU

Treaty on the Functioning of the European Union of December 13, 2007. Consolidated version [2007] OJ C 202.

states in Article 194 that in the context of the establishment or functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between member states, to ensure the functioning of the energy market; ensure security of energy supply in the Union; promote energy efficiency and energy saving and the development of new and renewable forms of energy; and promote the interconnection of energy networks. Energy has also become an area where competences are shared between the Union and the member states (so-called shared competences).

Due to rapid technological developments in the EU, an energy market based on renewable energy sources has started to develop. The EU is also supporting these developments in connection with environmental and climate protection values. Without analysing the evolution of EU law related to the energy market in detail here, it is nevertheless worth pointing out that the real breakthrough in the development of legal regulation (with regard to renewable energy sources) dates from the publication of the Clean Energy for Europeans Communication and with it the Winter Package

See Clean Energy for All Europeans Package <https://energy.ec.europa.eu/topics/energy-strategy/clean-energy-all-europeans-package_en> accessed 02 March 2023.

. Today, among other things, Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the Promotion of the Use of Energy from Renewable Sources and Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on Common Rules for the Internal Market in Electricity are in force.

Both directives lay the foundations for a new decentralised energy market in Europe. Let us start from the content of recital 65 to Directive 2018/2001, where it is indicated that it should be possible to develop decentralised technologies based on renewable energy and storage, under non-discriminatory conditions and without hindering the financing of infrastructure investments. The move towards decentralised energy production has many benefits, including the use of local energy sources, greater local security of energy supply, shorter transport distances, and reduced transmission losses. Such decentralisation also promotes community development and cohesion by providing sources of income and creating local jobs. Długosz is right that the changes that are taking place in grid energy are a result of technological changes, the development of energy and IT techniques, the digitalisation of energy processes. This gives opportunities to look for new methods of network supply of energy and fuels, use of distributed energy sources with irregular operation, introduction of such a model of network supply of energy and fuels, in which energy and fuel consumers play a greater role than before

Tomasz Długosz, ‘Społeczności energetyczne z pakietu dyrektyw Czysta energia dla wszystkich Europejczyków’ (2022) 1 (69) Forum Prawnicze 41.

The trends described above have a deeper connection to the European energy democracy strand. The essence of energy democracy is first and foremost freedom in the broadest sense and respect for this freedom by the state and the EU. This freedom manifests itself at various levels:

Mariusz Szyrski, Energetyka lokalna. Studium administracyjnoprawne (Wydawnictwo UKSW 2019) 32.

firstly, we can speak here of freedom of access to energy; the idea of energy democracy presupposes free access to energy and therefore also the minimisation of energy poverty;

secondly, within the concept of energy democracy, the freedom in question relates to the choice of the energy source itself; it is primarily about the unfettered possibility of choice, not only in terms of the energy supplier (choice of energy company), but also the source of that energy. The very possibility of choice of conduct is one of the fundamental elements of the democratisation of social life;

thirdly, energy democracy is characterised by the freedom to dispose of the energy generated at the installation and to some extent to be independent of the economy, the state of energy supply, or certain external phenomena. The freedom to dispose of energy is very important for self-sufficiency processes, which seems to be one of the key issues within energy democracy

Ibid.

As can be seen, the idea of energy democracy is very capacious. Developments in technology in recent years, including in particular technologies in the field of electricity generation, are now giving (and will continue to give in the future) an extremely wide range of possibilities for action. These phenomena are referred to by various terms in the literature. As indicated above, for example, the term ‘decentralisation of energy’ is used, and the term ‘distributed energy’ is also common. It turns out that the old model of energy generation based on large energy companies with a state monopoly is no longer an effective solution in the face of technological change. A decentralised energy market is based on synergy between the activities of the state and those of citizens and private companies. The existence of technology giving the possibility to generate electricity and heat for one’s own use is a very important energy revolution of our time.

And this is where the issue of the sharing phenomenon comes in, as energy, like any good or resource, can be co-created and then shared. In EU regulation, renewable energy refers to energy from renewable non-fossil sources, namely wind energy, solar energy (solar thermal and photovoltaic energy) and geothermal energy, ambient energy, tidal, wave and other ocean energy, hydropower, biomass and gas from landfills, sewage treatment plants, and biological sources (biogas).

With the above in mind, the phenomenon of energy sharing can therefore be considered on two levels. Firstly, it concerns the activities of individuals and households themselves in the prosumer model. The second space concerns the operation of so-called energy communities. The currently known business models offer the possibility of viewing energy as a shareable good. An interesting analysis in this regard was presented in his work by Frederik Plewnia, who concluded that there is a wide range of business models within a shared energy system

Frederik Plewnia, ‘The Energy System and the Sharing Economy: Interfaces and Overlaps and What to Learn from Them’ (2019) 12 Energies 15.

. He also indicated that there is potential for organisations to develop and adapt their business models in an energy system moving towards more decentralised and renewable energy technologies

Ibid.

Sharing Energy in a Prosumer Model

With the development of new technologies in energy and electricity generation, the prosumer model has also developed. This model refers to the possibility of generating electricity under one’s own conditions (i.e., in a household setting for one’s own needs and transmitting the surplus electricity generated to the electricity grid.) The prosumer energy model is inextricably linked to renewable energy sources. The sharing energy phenomenon in the activity of energy prosumers thus consists of the possibility to ‘share’ the electricity generated by transferring its surplus to the electricity grid. The literature points out that ‘the need to define renewable energy prosumers, stems from the ever-increasing importance of subsistence generation’

Borys Budka, ‘Prosument, prosument wirtualny i prosument zbiorowy energii elektrycznej: uwagi krytyczne’ (2022) 2 IKAR 61.

. The development of the prosumer market throughout the EU has made it necessary to create a basic framework that allows prosumers to generate, use, store, and sell electricity without excessive burdens

Ibid.

The most recent provisions from the above-mentioned EU directives regulate the legal definition of a prosumer. According to Article 2(14) of Directive 2018/2001, a renewable energy prosumer means a final consumer operating within his or her premises with defined boundaries or, if allowed by the member state, within other premises, who generates renewable electricity for his or her own consumption and who may store or sell the electricity generated himself or herself, provided that, in the case of a non-household renewable energy prosumer, these activities do not constitute his or her principal commercial or professional activity. The relevant conditions in this directive are therefore that the prosumer must be a person who is categorised as a so-called final consumer of electricity. Electricity must also be generated on one’s own farm or farm network. One of the exemptions is also to be engaged in the business of generating electricity. From a technical point of view, it is possible for almost every citizen in the EU to become a prosumer, either individually or in a collective

Energy Prosumers in Europe Citizen Participation in the Energy Transition, EEA Report No 01/2022.

. One could put solar panels on top of many buildings, and there are plenty of other options, depending on where one lives. This may require local or regional expansion of the electricity grid or the development of heat infrastructure, but, from a technical perspective, this potential is achievable.

According to Directive 2018/2001, EU member states shall ensure that prosumers of renewable energy, operating alone or through concentrators, have the right to: -

generate renewable energy, including for their own consumption, store, and sell their surplus renewable electricity production, including through renewable electricity purchase agreements, through electricity suppliers and through peer-to-peer trading arrangements, while not being subject to: ○

in relation to the electricity they take from or feed into the grid, discriminatory or disproportionate procedures and charges and network charges that do not reflect costs;

○

with regard to self-generated electricity from renewable sources remaining on their premises – discriminatory or disproportionate procedures and any charges;

install and operate electricity storage systems connected to facilities generating renewable electricity for their own use without being subject to any dual charges, including grid charges for the stored electricity remaining at their facilities;

preserve their rights and obligations as end users;

be remunerated, where appropriate also from support schemes, for the self-generated renewable electricity they feed into the grid, reflecting the market value of that electricity and able to take into account its long-term value to the grid, the environment, and society.

With the sharing energy phenomenon in mind, a particularly important element in the business of energy prosumers is the peer-to-peer (P2P) element. P2P is not a new business model and was developed some time ago with the development of online platforms. As the literature rightly points out, ‘P2P platforms started to develop rapidly in many industries already during the buoyant growth of social media’

Dariusz Strzębicki, ‘Rozwój modeli biznesowych P2P w turystyce na przykładzie Airbnb’ (2019) 2 (24) Zeszyty Naukowe. Turystyka i Rekreacja 81.

. Social networks of various kinds, such as Facebook and Twitter, had already accustomed Internet users to certain patterns and mechanisms for establishing and maintaining interpersonal relationships in the virtual world. They have developed one-to-one, one-to-many, and many-to-many communication solutions and technologies, which means that social relationships can be both effectively established and nurtured

Ibid.

. Today, such models provide many benefits to users, including reduced transaction costs, better use of resources and products in the economy, easier access to a large selection of products, lower product prices, entrepreneurship, and community development. E-business models based on the sharing economy are innovative ventures, transforming many industries and markets

Ibid. 87.

Directive 2018/2001 uses the concept of P2P trading in the energy market. According to Article 2 (18) of the Directive, P2P trade in renewable energy means the sale of renewable energy between market participants on the basis of a contract containing predefined conditions for the automated execution of and payment for the transaction either directly between market participants or indirectly through a certified third-party market participant, such as a concentrator. The right to conduct such partner trading is without prejudice to the rights and obligations of the parties acting as end-users, producers, suppliers, or concentrators. The notion of partnership trading is closely linked in the wording of the Directive to the activities of energy prosumers.

The literature asks which actors are covered by the term ‘peer’. Some authors apply a rather philosophical approach, which states that P2P trading is a structure where all peers cooperate with what they have available for a commons-based distribution of goods. Others use a more limited understanding and relate it to flexible, independent, grid-connected, and direct exchanges of electricity

Lucila de Almeida, Nikolas Klausmann, Henri van Soest, Viola Cappelli, Peer-to-Peer Trading and Energy Community in the Electricity Market - Analysing the Literature on Law and Regulation and Looking Ahead to Future Challenges <https://ssrn.com/abstract=3821689> or <http://dx.doi.org/10.2139/ssrn.3821689> accessed 02 March 2023.

The P2P model in prosumer activities was analysed in one report by the IRENA organisation. It rightly states that P2P trading allows consumers to have control over their electricity consumption and its price, increasing flexibility in the system

IRENA (2020) Innovation Landscape Brief: Peer-to-peer Electricity Trading <https://www.irena.org/-/media/Files/IRENA/Agency/Publication/2020/Jul/IRENA_Peer-to-peer_electricity_trading_2020.pdf?la=en&hash=AB7E0CFED5A51CFD75EB2CC1FB635B64329BB439> accessed 02 March 2023.

. Among other things, the report cites a pilot project conducted in Malaysia. Preliminary findings of the pilot project show that P2P electricity trading helps to balance local generation and demand and has the potential to enable large penetration of renewable electricity in the grid. If carried out at the distribution level, P2P trading can reduce peak demand and grid congestion in the main grid. With P2P trading available, the amount of electricity sold back to the grid is very small compared to the amount of electricity traded in the community. This illustrates the better use of distributed energy resources inside the community through P2P energy trading

Ibid.

In the P2P model under discussion, so-called net metering based on smart metering and meters must play a key role in prosumer activities. This is already regulated in detail in Directive 2019/944 on Common Rules for the Internal Market in Electricity (Article 19 et seq.)

In order to promote energy efficiency and empower end-users, countries member states or, if a member state so decides, the regulatory authority shall strongly recommend that electricity undertakings and other market actors optimise the use of electricity, inter alia through the provision of energy management services, the development of innovative pricing formulas, and the introduction of smart metering systems that are interoperable, in particular with consumer energy management systems and smart grids, in compliance with applicable EU data protection legislation.

Sharing Energy in the Energy Community Business Model

Along with the development of regulations related to the activities of prosumers in the EU energy market (i.e. individual entities), we are also seeing a strong development of regulations related to so-called energy communities. Decision makers in the EU recognise the need to develop the electricity grid not only on the basis of individual entities, but also (and perhaps above all) on the basis of entire communities, for which the element of local energy security is important. The community approach makes it possible to link the problem of local energy security to the activities of local authorities operating in a given area of an EU member state. Going down to the local (or regional) level in thinking about energy security is crucial to understanding the phenomenon of sharing energy in a changing Europe. This is why all the legislation that has followed the Winter Package oscillates around such an assumption and develops the concept of local energy communities.

Currently, there are two independent definitions of energy communities in EU legislation related to the functioning of the energy market. These are the definition of a renewable energy community (Directive 2018/2001 on the Promotion of the Use of Energy from Renewable Sources) and the definition of a citizens’ energy community (Directive 2019/944 on Common Rules for the Internal Market in Electricity).

A renewable energy community means a legal entity: -

which, in accordance with applicable national law, is based on open and voluntary participation, is independent, and is effectively controlled by shareholders or members located in close proximity to the renewable energy projects owned and developed by that legal entity;

whose shareholders or members are natural persons, SMEs or local authorities, including municipalities;

whose primary objective, rather than financial gain, is to bring environmental, economic, or social benefits to its stakeholders, members, or the local areas in which it operates.

The second definition (citizen energy community) means a legal entity that: -

is based on voluntary and open participation and which is effectively controlled by members or shareholders who are individuals, local authorities, including municipalities, or small businesses;

has as its primary objective the provision, not of financial gain, but rather of environmental, economic, or social benefits for its members or shareholders or the local areas in which it operates; and

may be engaged in the generation, including from renewable sources, distribution, supply, consumption, aggregation or storage of energy, the provision of energy efficiency or electric vehicle charging services, or the provision of other energy services to its members or shareholders.

A thorough analysis of the differences between the two concepts was made by Tomasz Długosz. In his work, he came to the right overall conclusion that ‘the new provisions on energy communities in the EU directives harmonise the citizens’ initiatives - initiatives that are already developing in the energy sector’. According to this author ‘they use one model for energy communities, but provide for different regulatory regimes for CECs and RECs

Tomasz Długosz, (No 17) 56.

.’ The definitions indicated above show that the main premise of energy communities is not profit making but rather goals of an environmental nature. Generating electricity for the benefit of the local community, based on renewable sources, are already an objective in themselves. In these directives, the EU legislator has ensured that models based on energy communities are not discriminated against in the energy market. This is ensured by a legal regulation that stipulates that member states are, firstly, obliged to adopt appropriate legal regulation to support decentralised local energy markets and, secondly, to direct legal regulation (via the member states) to the energy companies associated with electricity generation in the area. This type of mechanism is designed to implement the solutions applied in the local market into the central electricity grid.

The models referred to above in the electricity system of EU member states very often take the form of energy cooperatives. This type of designation exists in several EU member states, but internal regulations vary.

As an example, Poland introduced energy cooperatives along the lines of other cooperatives of an economic nature. In Polish law, an energy cooperative is defined as a cooperative within the meaning of the Act of 16 September 1982, Co-operative Law, or the Act of 4 October 2018 on Farmers’ Co-operatives, the object of which is the generation of electricity or biogas, or heat, in renewable energy source installations and balancing the demand for electricity, biogas, or heat, exclusively for the energy cooperative’s own needs and those of its members, connected to an area-defined electricity distribution network with a rated voltage of less than 110 kV, or a gas distribution network, or a district heating network.

Looking from the market side, the main advantage of the energy cooperative business is that the entire energy cooperative, whose members are private entities (including individuals), can generate electricity. The advantage in the operation of an energy cooperative is also that it accounts for its activities as an independent market entity. Staying on Polish ground, the settlement of the energy cooperative consists in the fact that the so-called obliged seller

The obligation to purchase electricity is carried out by an electricity seller appointed by the President of URE, known as the obliged seller on the basis of a contract.

settles with the energy cooperative the amount of electricity injected into the electricity distribution network against the amount of electricity taken from the network for its own consumption by the energy cooperative and its members at a ratio of 1 to 0.6. There is also the advantage that the energy cooperative does not pay the following on the amount of electricity generated in all the energy cooperative’s renewable energy installations and subsequently consumed by all the energy cooperative’s electricity consumers: its billing charges and distribution service charges, the amount of which depends on the amount of electricity consumed by all the energy cooperative’s generators and consumers.

It has been pointed out that the norms for energy cooperatives in Poland should be assessed positively; they provide opportunities to build highly efficient models for RES sources based on increasing energy demand and striving to stabilise energy costs, while providing additional capacity for industrial RES installations without the need to provide direct subsidies to generators

Magdalena Czarnecka and Tomasz Ogłódek, Prawo energetyczne. Ustawa o odnawialnych źródłach energii. Ustawa o rynku mocy. Ustawa o inwestycjach w zakresie elektrowni wiatrowych. Komentarz (C H Beck 2020) 145.

Summary

The sharing economy phenomenon, as indicated in this article, is very broad and affects many areas of social life. One such area is energy, within which we can already speak of the sharing energy phenomenon. The introduction to this paper asks two main research questions: (1) how does the sharing energy phenomenon today fit into the broader sharing economy phenomenon? (2) how does EU regulation currently support the development of the sharing energy phenomenon? In order to answer these questions, the EU’s legal regulation relating to the sharing energy phenomenon was analysed first and foremost, addressing the activities of energy prosumers and energy communities. In the course of the analysis, which is one of the answers to the research questions, it emerged that there is a correlation between the existence of the sharing economy phenomenon and sharing energy in the legal space. The sharing energy phenomenon turns out to be part of a larger trend, which is precisely the sharing economy; moreover, EU legal regulation allows for this conclusion. Support for sharing energy from EU law is evident primarily in the introduction of new organisational and legal forms and the introduction of mechanisms to support their operation and financing.

When one of the first legal regulations on the activities of energy communities in EU law appeared a few years ago, it aroused considerable discussion. Among other things, questions were raised as to how (given the level of technological development at the time) such a far-reaching decentralisation of the energy market was possible. Nowadays, virtually no one discusses the lack of technological possibilities for the development of such communities or the activities of energy prosumers anymore. What is discussed are above all the directions of such development, as well as the limitations associated with legal regulation, not only and exclusively at the EU level, but above all at the level of regulation of the member states. Above all, the level of involvement of local government in the realisation of the idea of local energy security is discussed. Very often these discussions turn to the financial side (i.e., the financial capacity of local authorities). However, it turns out that this issue is not a foregone conclusion, as solutions for the energy activities of local communities may be based not only and exclusively on state funding, but also (and perhaps above all) on private funding within the framework of, for example, public-private projects

See: Pei Huang, Mengjie Han, Xingxing Zhang, Syed Asad Hussain, Rohit Jayprakash Bhagat, Deepu Hogarehalli Kumar ‘Characterization and optimization of energy sharing performances in energy-sharing communities in Sweden, Canada and Germany’ (2022) 326 Applied Energy.

The legal regulation adopted at the EU level in the form of two definitions of energy communities (i.e. the renewable energy community) (Directive 2018/2001 on the Promotion of the Use of Energy from Renewable Sources) and the citizens’ energy community (Directive 2019/944 on Common Rules for the Internal Market in Electricity) provides a really good basis for micro-environments for the development of decentralised forms of local energy to be created in the laws of EU member states. And this is indeed happening, as it is evident from the European Commission’s reports that the individual EU member states are implementing their internal regulations in this regard.

eISSN:: 2084-1264
Sprache:: Englisch

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Sharing Energy as Part of the Sharing Economy? New Developments in the EU Energy Transition: Legal Analysis

Online veröffentlicht: 22. Feb. 2024

Seitenbereich: -

DOI: https://doi.org/10.2478/wrlae-2023-0002

SchlüsselwörterSharing economy, energy law, RES, renewable energy sources

© 2023 Mariusz Szyrski, published by Sciendo

This work is licensed under the Creative Commons Attribution 4.0 International License.

Schlüsselwörter
Sharing economy, energy law, RES, renewable energy sources