BGH: More Gas Price Adjustment Clause Decisions

In a recent ruling, the Federal Court of Justice (Bundesgerichtshof – BGH) again declared a gas price adjustment clause in a contract with a special customer void. In another gas case, it asked the European Court of Justice for a ruling.

As in a case confirmed by the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) last year, BGH held that the price adjustment clause pursuant to the Ordinance on General Terms and Conditions for the Gas Supply of Standard Customers (AVBGasV) was not directly applicable to contracts with special customers.

Furthermore, defendant did not have a contractual right to raise prices, as its price adjustment clause unduly discriminated plaintiff, denying him an extraordinary termination right (Sonderkündigungsrecht) as provided in AVBGasV. This was not remedied by the fact that the contract referred to the exact section in AVBGasV, calling it “AVB”. BGH held this was unclear, as defendant had referred to “AVBGasV” in the next section of its terms and conditions.

This case again demonstrates the importance of a precise wording of contracts.

In another case concerning gas price increases, which plaintiff considers unvalid, BGH requested a ruling by the Court of Justice of the European Union pursuant to Article 267 TFEU aimed at interpreting Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas.

Sources: Federal Court of Justice ref. no. VIII ZR 295/09 and ref. no. VIII ZR 162/09 of 9 February 2011

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