Background and reason
Pricing and price changes in energy supply contracts have always been a key issue, both for energy suppliers as well as energy consumers. With its latest ruling, the Austrian Supreme Court (OGH) has now made important clarifications, whereas the Austrian Electricity Industry and Organization Act (ElWOG 2010) does not provide for a staturory right of energy suppliers to change prices but specifies the requirements for the admissibility of (unilateral) price adjustment clauses.
Supreme Court: No unilateral price changes without a contractual basis
In a recent decision (8Ob115/24f), the Supreme Court clarified the legal situation regarding price adjustments in electricity supply contracts within the framework of basic supply. In this case, an energy supplier had increased prices for existing customers within the scope of basic supply significantly, citing the statutory provisions of Section 80(2a) ElWOG 2010 and a corresponding clause in its general terms and conditions (GTC). In this context, the energy supplier's GTC referred to the provisions of ElWOG 2010 and reproduced some of these provisions verbatim, but without providing for a specific contractual right to change prices.
Taking into account the literature available to date and relevant case law, including the case law of the European Court of Justive,the OGH clarified that Section 80(2a) ElWOG 2010 does not standardise a statutory right to change prices in the narrow sense. Rather, any price adjustment requires an effective contractual agreement. The statutory provisions merely regulate the modalities and conditions for a permissible price change, but do not create an independent right for the energy supplier to make changes outside the contract. Without a sufficiently specific and transparent price adjustment clause in the contract, a unilateral price increase is therefore not admissible.
Furthermore, price adjustment clauses are also subject to strict content and transparency controls under the law governing general terms and conditions within the scope of application of the ElWOG 2010. The Supreme Court emphasises that the reasons, conditions and scope of possible price changes must already be clearly and comprehensively regulated within the clause itself. Clauses that grant the supplier unlimited rights to make changes are grossly disadvantageous and therefore invalid. Simply reproducing the wording of the law in the general terms and conditions does not meet the requirements of transparency and specificity.
Literature overview: No special private law – the ABGB remains the benchmark
In the literature to date, the question of whether the ElWOG 2010 provides energy suppliers with an independent legal right to change prices has been assessed in a differentiated manner. According to the previous case law of the Austrian Supreme Court, it has confirmed that the ElWOG 2010 does not establish ‘special private law’ for energy suppliers. The OGH now cleary confirmed that unilateral price changes by the nergy supplier require a contractual basis that complies with the AGBG provisions and, where applicable, the Consumer Protection Act (KSchG). In particular, the transparency requirement and the principle of equivalence are relevant in this regard.
Relevance for small businesses and business-related transactions
An important aspect is that the consumer protection provisions of the ElWOG 2010 apply not only to consumers but also to small businesses. This means that the strict requirements for price change clauses must also be observed in business-related electricity supply contracts, for example for small businesses, medical practices or law firms. Therefore, energy suppliers must also ensure that their contractual clauses meet the legal requirements for transparency and specificity in B2B constellations.
Practical advice and outlook
Energy suppliers are strongly advised to carefully review existing and new contractual clauses on price adjustments and to make them clear, transparent and comprehensible. Invalid clauses can lead to reimbursement claims and significantly impair calculation security
The current Supreme Court ruling and literature demonstrate that legal certainty can only be achieved through clear, legally compliant and transparent contract drafting.
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