The Federal Supreme Court (BGH) has ruled in two cases on the effectiveness of price adjustment clauses in district heating supply contracts.
In the first case (case no.: VIII ZR 273/09), the plaintiff, a municipal utility company, demanded residual payment of district heating for 2006 from the defendant housing association. The plaintiff increased the heat work price four times in 2006, which the defendant countered and only made payments on the basis of the heat work price from 2005. The district heating supply contract concluded between the parties states the following with regard to the change in this heat work price:
"...The commodity price for the quantities to be charged shall change in accordance with the formula below:
WAP = WAP0 + 1.26 x (HEL - 31.24) €/MWh ..."
Where WAP stands for the current and WAP0 for the original heating work price. The factor labelled "HEL" is the price for light heating oil published monthly by the Federal Statistical Office.
The Regional Court of Dessau-Roßlau upheld the action, the Higher Regional Court of Naumburg dismissed it on appeal by the defendant. The utility company's appeal against this decision was unsuccessful.
In the second case (case no.: VIII ZR 66/09), the plaintiff, also a municipal utility company, demanded payment from the defendants for district heating supplied in the years 2001 to 2003 for the flat rented by the defendants. Although the defendants paid the instalments demanded by the plaintiff, they did not settle the respective final accounts, which the plaintiff based on the prices of its current price sheets in each case.
The price provisions used by the plaintiff during the relevant period read in part as follows:
HEL L
"AP = AP0 x (0.5 x.........+ 0.2 x ...... + 0.3 x fEG)"
HEL0 L0
"HEL" also refers to the price for light heating oil published by the Federal Statistical Office, "L" corresponds to the respective index for the collectively agreed hourly wage in district heating supply. The factor "fEG" is defined in the contract as follows:
"fEG = respective price change factor for gas purchases by ... [plaintiff] compared to the status as of 01.01.97 - it is determined on the basis of the provisions in the gas purchase contract of ... [plaintiff] and communicated to ... [plaintiff] by the upstream supplier (currently BEB Erdgas und Erdöl GmbH). fEG = 1.0000 base value as of 01.01.97)".
The Lübeck District Court dismissed the action, the Lübeck Regional Court upheld it on appeal by the plaintiff. The district heating customers' appeal against this was successful.
The VIII. Civil Senate of the Federal Court of Justice has ruled that customers can defend themselves against the energy supplier's demand for payment with the objection that the price adjustment clause on which the price increases are based is invalid. It is true that § 30 AVBFernwärmeV only entitles the customer to refuse payment if there is an obvious error. However, according to the case law of the Federal Court of Justice, the exclusion of objections in Section 30 AVBFernwärmeV does not cover objections by the customer that are not limited to mere billing or calculation errors but concern the basis of the contractual relationship. This is the case if the customer objects to the validity of a price adjustment clause pre-formulated by the utility company.
The Federal Court of Justice has also ruled that price adjustment clauses only meet the requirements of Section 24(3) AVBFernwärmeV if they contain a cost element in addition to a market element. This is the only way to ensure that, in addition to the development of costs on the heating market, the costs incurred by the supply company for the production and provision (e.g. transport, distribution) of district heating are also adequately taken into account in a price adjustment. Furthermore, Section 24 (3) AVBFernwärmeV requires price adjustment clauses to be drafted in such a transparent manner that the customer can sufficiently recognise the extent of the price increase to be expected from the wording.
The price adjustment clauses in the cases decided today do not meet the requirements described. In the first case, the price adjustment clause did not take into account the specific costs of producing district heating by the plaintiff and thus the cost element required by section 24(3) AVBFernwärmeV. This is because the clause used for the heating work price provides for the price of extra light heating oil ("HEL") as the only variable, but the plaintiff uses natural gas to generate heat and has not explained whether and to what extent the development of its own natural gas procurement costs is also aligned with the "HEL" factor it uses or at least a similar one.
In the second case, the "fEG" factor does not meet the transparency requirements because it is not disclosed to the customer how this factor is calculated and therefore he cannot understand which criteria have an influence on the plaintiff's gas purchase price. The proceedings were referred back to the Court of Appeal so that findings can be made as to whether the plaintiff's demand for additional payment - as claimed by the plaintiff - is also justified on the basis of the prices applicable at the time of the conclusion of the contract, i.e. without taking into account the price increases that have taken place.
Judgment of the BGH of 6 April 2011 - VIII ZR 273/09
Lower courts:
LG Dessau-Roßlau - Judgment of 29 December 2008 - 2 O 633/06
OLG Naumburg - Judgment of 17 September 2009 - 1 U 23/09 (published in ZNER 2009, 400)
and
Judgment of the Federal Supreme Court of 6 April 2011 - VIII ZR 66/09
Lower courts:
AG Lübeck - Judgment of 8 November 2006 - 25 C 3539/04
LG Lübeck - Judgment of 22 January 2009 - 14 S 283/06 (published in IR 2009, 91)
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
