"Unilateral" price adjustment clause in contracts is invalid

On 15 July 2009, the Federal Supreme Court had to decide whether a gas supply company may use the following clause in a special customer contract:

"k. [= Defendant] may adjust the fixed price and the consumption price in accordance with Section 5 (2) GasGVV. This is a unilateral determination of performance which we will exercise at our reasonable discretion. Insofar as the fixed price or the consumption price changes, you may terminate the contract in accordance with Section 20 GasGVV."

The plaintiff consumer protection association demanded that the defendant cease using the pre-formulated price adjustment clause on the grounds that the clause unreasonably disadvantaged the defendant's customers. The Regional Court dismissed the action. The Court of Appeal dismissed the appeal.

The plaintiff's appeal was successful. The VIII. Civil Senate of the Federal Court of Justice ruled that the consumer protection association can demand from the defendant under section 1 UKlaG to refrain from using the contested price adjustment clause because it unreasonably disadvantages the defendant's special customers contrary to the requirements of good faith and is therefore invalid under section 307 (1) sentence 1 BGB.

The Senate stated that Section 5(2) of the Gas Basic Supply Ordinance (GasGVV), like the predecessor provision of Section 4(1) and (2) of the Ordinance on General Terms and Conditions for the Supply of Gas to Tariff Customers (AVBGasV), grants the gas supplier a statutory right to change prices in the area of basic supply (tariff customer relationship). The court further ruled that a price adjustment clause which takes over the statutory right to change prices existing in the area of basic supply according to § 5 para. 2 GasGVV unchanged into a standard special customer contract, i.e. which does not deviate from it to the disadvantage of the customer, withstands a content review. § Section 5 (2) GasGVV, like Section 4 (1) and (2) AVBGasV for special customer contracts with household customers, has a "model function in the broader sense". The legislator of the AGB Act (§ 23 para. 2 no. 2 AGBG, now § 310 para. 2 sentence 1 BGB) wanted to leave it up to the supply companies to structure their general terms and conditions with special customers in accordance with the general supply conditions, because special customers, even if they are consumers, do not need stronger protection than tariff customers.

However, in contrast to the Court of Appeal, the Senate is of the opinion that the content of the contested price adjustment provision of the defendant - at least when interpreted in the most anti-customer way - does not fully comply with Section 5 (2) GasGVV and is therefore invalid pursuant to Section 307 (1) BGB. This is because the clause - unlike Section 5 (2) GasGVV in its direct scope of application - only contains a right of the defendant to adjust prices and not at the same time the obligation to take into account fallen gas procurement costs according to the same standards as increased costs.

The wording ("may adjust") allows an interpretation according to which the defendant is only entitled, but not obliged, to adjust the price at certain times according to the same standards, irrespective of the direction in which the gas procurement costs have developed since the conclusion of the contract or since the last price adjustment. Nor does anything to the contrary result with the necessary clarity from the reference to Section 5 (2) GasGVV and the unilateral determination of performance according to equitable discretion.

The granting of a right of termination in accordance with Section 20 GasGVV is not suitable to compensate for the unreasonable disadvantage caused by the price adjustment clause because the basic supply customer is entitled to this right of termination even if a price adjustment is made in direct application of Section 5 (2) GasGVV. According to the guiding principle of the Basic Supply Ordinance, a price adjustment provision that is reasonable in itself is therefore inseparably linked to the right of termination.

Judgment of the Federal Supreme Court of 15 July 2009 - VIII ZR 56/08

Lower courts:

Regional Court of Verden - Judgment of 5 July 2007 - 5 O 419/06

OLG Celle - Judgment of 17 January 2008 - 13 U 152/07


Source: Press release of the BGH


Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de