No Non-Transparent Clauses for PV Feed-In Customers

May 7, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with assessing the legality of a provision within an energy company's terms and conditions that authorised the imposition of a compensation charge on customers who operate photovoltaic systems.

In the case at hand, the defendant energy supplier had not only supplied electricity to their customers but also purchased surplus electricity from their photovoltaic systems for a fee. A clause in the tariff schedule provided that a monthly compensation charge, resulting from discrepancies between forecast and actual electricity volumes, would be passed on to customers.

PV feed-in customers remain consumers

The primary issue considered was whether these customers should be designated as consumers or traders. The OGH determined that, although electricity was supplied to the grid, this did not constitute a commercial activity, as the customers did not engage systematically in the market nor maintain an ongoing organisational structure for economic purposes. As such, these transactions are classified as consumer transactions, requiring the clause to be evaluated according to the standards set by consumer protection law.

Clause on balancing energy lacks transparency

The disputed clause was found to lack transparency as defined by Section 6(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, SchG). It failed to specify the criteria for determining the compensation charge, with neither the relevant forecast parameters nor the calculation methodology adequately disclosed. Consequently, consumers could not identify their possible financial responsibilities, making it impossible to evaluate the economic impact of the clause. Furthermore, merely referencing figure publication on the website was considered insufficient.

Risk of repetition despite amendment of the GT&Cs

Although the defendant subsequently removed the clause from the tariff sheet and updated its contracts, the OGH determined that there remained a risk of recurrence. The primary rationale was that the company considered the clause permissible, and therefore, no assurance could be given that it would not be reintroduced in the future.  

OGH 9 Ob 20/26w (18 March 2026)