Is Cutting People's Electricity Off 'Cut Off' from the Ratione Materiae Jurisdiction of the CJEU and the ECtHR?

Abstract

Irrespective of whether one adheres to the premise that human rights is an area of international law that is characterised by its own telos-oriented legal rules or not, the undeniable fact is that the protection of human rights was and remains one of the cornerstones of international legal regulation, and its content is one that constantly evolves. In such an ever-shifting normative landscape, the present book aims to examine the role of human rights in regulating adequate provision of essential public services from a ‘law and governance’ perspective. These services include access to water, electricity and healthcare services. Within that context, the goal of this Chapter will be to shed some inquisitive light on the question of whether access to electricity, as one manifestation of access to energy, although not yet a recognised human right may, nonetheless, be protected under existing human rights instruments. Essentially, the question can be stripped down to whether, until access to energy and electricity becomes a recognised and regulated human right, its nucleus can in the meantime be found by virtue of interpretative methods to fall within the scope ratione materiae of existing human rights instruments. An exhaustive analysis of all relevant human rights treaties would be by virtue of their sheer number impossible, and by virtue of the inherently hypothetical nature of the inquiry counter-productive. For these reasons, a more qualitative approach has been opted for. The line of our inquiry will be the following: We will start from a very recent case taken from the domestic jurisprudence of Greece where access to electricity was both used as leverage for payment of taxes and formed the basis of the courts’ judicial reasoning. This will then open the door for reviewing whether in Europe there is an international legal framework that allows protection of access to electricity either directly (as a right in its own merit) or indirectly (through an evolutive interpretation of a right already protected under an international instrument). Since several European States are members of the European Union (EU) and all of them are members of the Council of Europe (CoE), the two main instruments that will be examined are respectively the Charter of Fundamental Rights of the EU and the European Convention on Human Rights (ECHR). The need to examine both these instruments is underlined by the ongoing discussion surrounding EU’s accession to the ECHR, which, should it happen, would mean that the final say on the scope of a particular right would belong to the European Court of Human Rights (ECtHR). In this manner, the present Chapter will offer an answer to the question of whether the socio-economic nature of the right of access to electricity is by virtue of the EU and CoE-relevant human rights instruments a lex lata, lex ferenda, or mere wishful thinking within Europe.