With the availability of cheaper technology and the rise of digitalisation, consumers can actively participate in markets and also offer their own services or self-/co-produce products and services. Active consumers are fundamental building-blocks of the European Union’s goal to achieve smart, sustainable and inclusive growth in Europe. In the energy sector active consumers play a key role in promoting competition, ensuring affordable energy prices and security of supply, as well as contributing to the EU’s environmental and climate goals. By engaging in more efficient energy use, consumers are crucial actors to manage the energy transition. However, the present legal framework does not fully facilitate this active role. The aim of this article is to answer the question how EU law conceptualises and supports the active role of consumers in the regulation of energy markets.

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This paper analyzes whether and how EU law implements the public policy discourse in market regulation that addresses consumers in a new active role: not as passive beneficiaries of market regulation but as active or even pro-active market actors, who not only consume but may produce or even trade on markets. Consumers' actions became key to the well-functioning of markets: they are entrusted to regulate markets and contribute to the competitiveness and the legitimacy of market processes. In the EU, consumers are expected to contribute both to EU market integration and to European society. The question this paper addresses is whether EU law reflects this new regulatory capacity of consumers in market regulation. The relevance of this issue is that if this new regulatory role of the consumer is not matched with a corresponding legal framework, the mismatch between legal rules and consumers' new role in market regulation may lead to regulatory ineffectiveness and legal uncertainty. If technological developments make this active consumer role possible and the consumers themselves want to fulfil it, there is in fact a gap between law and technological development, which can lead to the problem of 'regulatory disconnection'. These problems are especially present in the EU energy sector, where technical developments such as smart meters, solar panels, decentralized energy storage enable a proactive role for energy consumers. Consumers are often prosumers of energy i.e. consumers who produce their own energy. This paper critically analyzes current EU law on the (energy) consumers' new role in market regulation. It analyzes normative EU law concepts and definitions of the consumer and examines whether the legal rules comply with the concept of the active regulatory consumer. The paper uses a case-study of the prosumer-driven local energy production initiatives and examines whether the energy consumers' new role creates regulatory disconnection.

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