OGH: No Price Change Notifications for Floating Rate Plans

May 17, 2024 Benn-Ibler Rechtsanwälte

Energy suppliers are not obliged to inform customers in advance of changes to flexibly calculated gas prices in floating rate plans, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled.

Since 2009, the claimant and the defendant energy company in the case at hand have had a gas supply contract. The contract provides for a floating rate plan, under which the price of gas is linked to the stock exchange price and therefore changes regularly. The plaintiff claimed that she had not been informed in good time of the price increases, which had caused her financial loss because she would have used less gas if she had been aware of the increase in costs. She therefore sought a refund of part of her gas bill. According to the plaintiff, she should have been informed of the price changes under section 125(2) of the Austrian Gaswirtschaftsgesetz 2011 (Natural Gas Act, hereinafter GWG 2011).

However, the OGH ruled in favour of the power company, finding that there is no obligation to inform customers in writing of each and every change when prices are adjusted.

Pursuant to Section 125(2) of the GWG, changes to the General Terms and Conditions and to the contractually agreed fees shall only be permitted in accordance with the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) and the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG). Customers must be notified of such changes in writing in a personal letter or, upon request, electronically. This letter must clearly indicate the amended General Terms and Conditions. If the contractual relationship is terminated in the event that the customer objects to the changes to the conditions or fees, the contractual relationship ends on the last day of the month following a three-month period.

However, this provision does not apply to price changes under floating rate plans, according to the OGH. The reason for this is that this provision is primarily aimed at contracts where a fixed plan has been agreed and the supplier has the right to unilaterally change the price. In addition, Section 125a (4a) of the GWG 2011 has introduced a provision (which is not yet applicable in this case) that deals specifically with floating rate plans.

OGH 3 Ob 26/24f (3 April 2024)