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This decision by the Vienna Commercial Court has now been confirmed by the Vienna Higher Regional Court (OLG). Due to the inadmissibility of the clause, the legal basis for the increased tariffs charged no longer applies. According to the Association for Consumer Information (VKI), the corresponding increase amounts must be refunded. The verdict is not yet legally binding.
The Association for Consumer Information (VKI) had sued the partially state-owned, listed energy company Verbund because of the price increase over a clause in the “General Terms and Conditions for Electricity” that were valid at the time. As usual, this was done on behalf of the Ministry of Social Affairs.
“In May 2022, around 400,000 Verbund AG electricity customers were informed about price increases,” said Consumer Protection Minister Johannes Rauch (Greens) in a statement to the APA. “Affected consumers have rightly complained, even though VERBUND AG advertises “electricity from 100% Austrian hydropower” and the company actually generates large amounts of electricity from hydropower itself, but makes its prices dependent on a stock market index.” That is irrelevant.
“Victory for consumer protection”
“The judgment now imposed by the Higher Regional Court in the second instance is a victory for consumer protection. As soon as the judgment is final, I expect the association to reimburse consumers,” said Rauch.
The price increase clause referred to the Austrian Electricity Price Index (ÖSPI), which is dependent on the stock market price. According to VKI, consumers complained that the energy provider, which advertises “electricity 100 percent from Austrian hydropower” and generates large amounts of electricity from hydropower itself, ties its prices to an index that depends on the stock market price.
During its examination, the VKI came to the conclusion that “there are significant legal arguments against the admissibility of the adjustment clause used by the association for electricity prices. The commercial court and now the OLG came to the same view. The latter essentially takes issue with the method of calculating the price increase: At At the conclusion of the contract, an initial index value was set according to the price adjustment clause, which was in the past.
This initial value was calculated as the average of the weighted ÖSPI monthly values for the six-month period preceding the calendar quarter in which the contract was concluded. In the event of a price increase, however, the average of the weighted ÖSPI monthly values for the last six months should be used, according to the VKI. According to the court according to VKI, this approach can lead to a massive price increase shortly after the contract is concluded.
“Reasons other than the commercial court”
However, consumers do not have to accept this under the heading of “value preservation”. This is especially true when “electricity from 100 percent hydropower” is advertised and the price increase does not correspond to the electricity provider’s procurement strategy.
“The Vienna Higher Regional Court confirms the inadmissibility of the clause, but gives different reasons for this than the Vienna Higher Regional Court in the first instance,” explains VKI lawyer Maximilian Kemetmüller. “The fact that the courts give different reasons for the inadmissibility of the clause confirms to us that this clause is inadmissible for a variety of reasons. It is regrettable that the Vienna Higher Regional Court did not deal with all the reasons.” Rauch also emphasized that consumers must have all information about price changes and generally about their energy contracts available at a glance in an understandable way.
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