Probably, nobody will really be surprised to hear that market prices for electricity and gas are currently skyrocketing and that energy suppliers are trying to pass these increases on to their customers through appropriately worded general terms and conditions. From a "legal" point of view, however, things may look somewhat different:
1. Applicability review rediscovered (sec. 864a of the Austrian Civil Code/ABGB)
In the context of the review of clauses in class actions (sec. 28 of the Austrian Consumer Protection Act/KSchG), case law handed down by the Austrian Supreme Court is increasingly referring to the review ofapplicability under sec. 864a of the Austrian Civil Code in addition to the review of the content under sec. 879 par. 3 of the Austrian Civil Code and sec. 6 par. 3 of the Austrian Consumer Protection Act (transparency requirement) (in this context cf. to an early Supreme Court ruling under 5 Ob 103/21i ecolex 2022/71, 124 (Th. Rabl), and most recently Supreme Court ruling 9 Ob 46/21m ZaK 2022/199, 117).
It is well known that under sec. 864a of the Civil Code (i) provisions of unusual content in general terms and conditions or contract forms used by one party to the contract do not become part of the contract if (ii) they are disadvantageous to theother party and (iii) the other party did not have to expect them under the circumstances, especially given the external appearance of the documents. However, such a "surprise" can be avoided if one party to the contract has specifically indicated it to the other party. Sec. 864a of the Civil Code does not only apply to consumer transactions, but also between entrepreneurs.
2. The development: From 3 Ob 139/19s via 5 Ob 103/21i to 9 Ob 46/21m
The most recent ruling of the Supreme Court which continues the series of relevant case law in matters of energy suppliers’ general terms and conditions (Supreme Court ruling 3 Ob 139/19s VbR 2019/134, 216 [Gelbmann]), is highly explosive.
Whilst it was not entirely clear in Supreme Court ruling 5 Ob 103/21i why it waspossible to speak of a surprise there, the matter becomes clearer in Supreme Court ruling 9 Ob 46/21m - with reference to previous case law on heat supply contracts (Supreme Court ruling 10 Ob 50/11t): Customers could be impermissibly surprised if a price adjustment clause, although thematically correct, were placed in the GTC section on "price changes" with a reference to "value guarantee" as a justified reason for a price increase, although no value guarantee in the conventional sense - i.e. a price adjustment pro futuro - was agreed at all, but price adjustments on the basis of an index starting value long before the conclusion of the contract were possible. This would give the electricity trader the right to considerably increase prices even shortly after conclusion of the contract. However, pre-dating the index linkage to a point in time before the conclusion of the contract is not per se a violation of sec. 864a of the Civil Code; it depends on whether the pre-dating is specified or limited with regard to its scope in time or not. If the clause contains neither a cap on the period for pre-dating nor on the amount, the electricity customer typically does not have to expect such a clause. The fact that the clause is disadvantageous would notbe negated even if the electricity customer paid the same price as all other customers in the same region.
3. No remedy through the new sec. 80 par. 2a of the Act on the Electricity Sector and Organisation (ElWOG 2010)
Supreme Court ruling 9 Ob 46/21m was issued before the amendment to ElWOG 2010 in Federal Law Gazette I No. 7/2022 came into force, introducing i.a. a new right to change prices for electricity suppliers (especially in the consumer sector) in sec. 80 par. 2a ElWOG 2010. The amendment, which incidentally only refers to electricity supply contracts and not gas supply contracts, is not keep away the prohibition of surprise clauses insec. 864a of the Civil Code because the new sec. 80 par. 5 ElWOG 2010 stipulates that the provisions of the Civil Code (including sec. 864a) remain unaffected by the amendment. Therefore, related case law will also have to be observed in the future.
4. Many important questions left unanswered!
However, Supreme Court ruling 9 Ob 46/21m will certainly not be the end of the ongoing dispute about the permissibility of price changes in electricity and gas supply contracts: The ruling remains silent on whether customers were made aware ofthis clause when they concluded the contract or when the clause was introduced. If this was the case, it would be difficult to obtain (at least) an "unconditional" injunction in the course of a class action under sec. 28 of the Consumer Protection Act, even if case law also leaves questions arising in this context unanswered (see only Supreme Court ruling 4 Ob 164/12i RdW 2013/203). Moreover, Supreme Court ruling 9 Ob 46/21m (just like ruling Ob 103/21i) is also silent on whether the current indices in electricity and gas supply contracts (CPI, ÖSPI or ÖGPI) which are all still in use, are permissible interms of content. And of course, it is still unresolved how this relates to the amendment of ElWOG 2010 in Federal Law Gazette I no. 7/2022.
Thus, things continue to be extremely exciting in this area of energy law!
If you have any questions about this and other issues of energy laws, the KWR Energy Team is ready to help at all times.