Austrian OGH on Electricity Supplier’s Right to Adjust Charges

Jul 4, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) reviewed the General Terms and Conditions of an electricity provider to ascertain whether the provider held a statutory right to modify charges.

The plaintiff consumer had an electricity supply contract with the defendant supplier based on the defendant’s General Terms and Conditions for Electricity (GTC Electricity).

Supplier raised electricity charges without consent

In a letter dated 16 January 2023, the defendant notified the plaintiff of their intention to increase the electricity price and the basic monthly fee, effective from 1 March 2023. The plaintiff responded by stating that the fee increase was invalid and that he would remit the higher fee ‘only subject to legal clarification and reclaim’. Subsequently, the defendant issued a notice of ordinary termination of the electricity supply contract.

The plaintiff requested a court declaration that the announced increase in the electricity tariff was invalid. Alternatively, the plaintiff sought repayment of the overcharged fees. The defendant moved to dismiss the claim, citing Section 80 (2a) of the Austrian Electricity Industry and Organization Act (Elektrizitätswirtschafts- und organisationsgesetz, hereinafter ElWOG).

The court of first instance dismissed the claim for a declaratory judgment and upheld the alternative claim for payment. The court of appeal confirmed this initial decision. Section 80 (2a) of the ElWOG does not establish a statutory right for the supplier to alter charges. Furthermore, the clause in the General Terms and Conditions for Electricity fails to specify the particular circumstances that would justify a tariff increase, rendering it non-transparent.

Clause in question deemed invalid

The OGH considered whether Section 80 (2a) of the ElWOG confers a statutory right for suppliers to adjust prices following the amendment of the ElWOG with Federal Law Gazette I 2022/7. The OGH examined the issue of whether the recent amendment to the ElWOG, as promulgated in Federal Law Gazette I 2022/7, now codifies a statutory right for suppliers to modify prices under Section 80 (2a).

Even after the amendment to Federal Law Gazette I 2022/7, a ‘special private right in the energy supply sector’ does not exist in the form of a statutory right to alter prices that deviates from the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB). Instead, Section 80 (2a) of the ElWOG mandates the contractual reservation of the right to change prices.

Furthermore, the OGH emphasized that the clause in question is grossly disadvantageous within the meaning of Section 879 (3) of the ABGB, as it leaves the determination of the reason for a change in charges to the decision of the defendant. Since the clause does not contain any restrictions on the choice of the relevant circumstance, it is also non-transparent pursuant to Section 6 (3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG).

OGH 4 Ob 179/24p (11 April 2025)