OGH: Specification of price adjustments in the energy sector

Jan 28, 2022 Benn-Ibler Rechtsanwälte

The Association for Consumer Information brought an action against an Innsbruck energy supplier on the grounds of inadmissible clauses on price adjustments in the course of basic supply and on written form requirements. The ruling in question thus creates framework conditions for price adjustments in the energy sector.

The Supreme Court (Oberster Gerichtshof, OGH) targeted six current clauses of the general terms and conditions of supply (GTCS) of the energy supplier. One of the clauses objected to contained the provision that in the event of an announced price increase or decrease, the consumer is deemed to have given his consent if he does not submit a written objection within two weeks. Furthermore, price adjustments are to take place a maximum of two times per calendar year and price increases at the earliest two months after conclusion of the contract.

The Austrian Electricity Price Index (Österreichische Strompreisindex, ÖSPI) serves as the basis for the adjustments. The energy supplier is only entitled to a price increase to the extent of the percentage increase from the initial value to the reference value. The initial value is the arithmetic mean of the index values of the ÖSPI for the last 14 months preceding the third month before the last price increase took effect; the reference value is the arithmetic mean of the index values for the last 14 months preceding the third month before the announced price increase took effect. With the price increase, the new reference value is the new initial value.

The OGH considers the clause on increase dates to be non-transparent to the detriment of the consumer. The increase in charges was rather dependent on the will of the defendant and violated Section 6 para 1 no 5 and para 2 no 3 Consumer Protection Act (Konsumentenschutzgesetz, KSchG). The fact that those clauses on the initial and reference value refer to a clause already found to be non-transparent also makes them inadmissible in principle and, due to the possibility that - as in April 2020 - a price increase of almost 50% can happen, also unusual and surprising according to Sec. 864a Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

5 Ob 103/21i (28.09.2021)