BGH Rules on Price Increase in Gas Contracts for Special Customers

In two rulings against the North German utility EWE AG based in Oldenburg, the Federal Court of Justice (Bundesgerichtshof – BGH) held that EWE did not have a statutory right to raise prices pursuant to AVBGasV, as the relevant statutory provision only applied to so-called tariff customers (Tarifkunden).  The plaintiffs were special customers (Sonderkunden) to which the statutory tariff provisions did not apply. The BGH reversed the rulings of the lower instance.

The Ordinance on General Terms and Conditions for the Gas Supply of Standard Customers (AVBGasV) previously regulated the supply of gas to tariff customers. It was replaced by the Ordinance on General Terms and Conditions for Basic and Back-Up Supply of Standard Customers with Gas from the Low Pressure Gas Network (GasGVV) in November 2006. As the plaintiffs were special customers with negotiated contracts, the legality of the price increase by EWE depended on the question of whether EWE had a contractual right to raise prices, BGH said. As the lower instance had not considered the matter, the BGH remanded the cases for consideration, pointing out that if a unilateral right to raise prices existed, the increase had to be measured against the yardstick of a provision in the Civil Law Code, which stipulates that such unilateral decisions have to be just (Billigkeitskontrolle, § 315 BGB).

The magazine Focus points out the importance of the rulings beyond the individual case. According to BGH, gas suppliers are not entitled to agree to less favourable conditions than the ones for standard customers with long-term contracts with their special customers, or else the clause is void. This was reportedly the case with the EWE customers as of 1 April 2007. Contrary to the GasGVV, which then applied, customers were only informed by public notice. Besides, the period of notice was shorter than required by the GasGVV.

Hence, special customers would not have to pay the raised prices as of 1 April 2007 or can claim the money back. The latter is a new aspect in the BGH rulings, Focus emphazised.

As the full texts of the rulings have not yet been published, it remains to be seen whether this interpretation is supported by the decisions.

Source: BGH, press release no. 146/2010, decisions of 14 July 2010, ref. nos. VIII ZR 6/08 and VIII ZR 327/07, Focus

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