Regulierte Industrien | Haslinger / Nagele, Illustration: Karl-Heinz Wasserbacher

OGH: No special private law in the energy supply sector

Authors: Johannes Hartlieb and Alexander Gimona

The Supreme Court of Justice (OGH) has answered a fundamental question of the liberalized electricity market in a much-noticed decision of March 28th, 2025 (8 Ob 115/24f): Are energy suppliers allowed to adjust prices unilaterally? And if so, on what basis?

The case centered on a tariff adjustment by a major electricity supplier. The adjustment was justified by the recently introduced section 80 para. 2a ElWOG, which the electricity supplier interpreted as a statutory right to change prices.

“In summary, it must be noted that a ‘special private law in the energy supply sector’ in the sense of a statutory right to change prices still does not exist. Rather, section 80 para. 2a of the ElWOG 2010 requires a contractual reservation of the right to change.” Supreme Court of Justice 8 Ob 115/24f

This interpretation has now been rejected by the Supreme Court. The court makes it unequivocally clear: Section 80 para. 2a ElWOG does not establish a statutory right to change prices, but merely formal and substantive requirements for price adjustment clauses. A contractual basis is still required – namely, a transparent, legally sound price adjustment clause in the general terms and conditions (GTC). And this is precisely what was missing in this case.

The ruling at a glance

No statutory right to change prices: Section 80 para. 2a ElWOG requires a contractual provision. A mere reference to the law does not replace a valid agreement.
GTC clause insufficient: The clause in the general terms and conditions was non-transparent and objectively vague, thereby violating section 6 para. 3 of the Consumer Protection Act (KSchG) and section 879 para. 3 of the General Civil Code (ABGB), rendering it completely invalid.
Customers retain the upper hand: Energy suppliers who want to change prices must specify concrete and comprehensible criteria – right from the start.
The so-called “symmetry requirement” – the obligation to reduce prices when costs fall – has also not been sufficiently implemented.
The new regulations are not to apply to floating tariffs.

Signal effect for the industry

The Supreme Court of Justice clearly rejects the idea of a “special private law” in the energy market. A contract remains a contract – and any change requires a valid agreement. The decision is therefore not an isolated case, but of fundamental importance for all providers who rely on section 80 para. 2a ElWOG 2010.

“The provisions of the Consumer Protection Act are … only replaced insofar as an independent regulation is established. However, section 80 para. 2a ElWOG 2010 does not contain any regulation particularly regarding the transparency requirement.” Supreme Court of Justice 8 Ob 115/24f

Especially relevant: The often-cited principle of symmetry, which states that cost reductions must also be accompanied by price reductions, was also not sufficiently taken into account. And even if information had been provided in accordance with section 80 para. 2a, this is irrelevant without a contractual basis.

Relevance for practice

The decision has far-reaching significance for the entire energy sector. It clarifies that price adjustments must be contractually agreed and transparently regulated. A mere reference to statutory provisions is not sufficient. Companies wishing to invoke section 80 ElWOG 2010 will have to revise their general terms and conditions in the future to avoid the risk of their price adjustment clauses being invalid. For end customers, this means that tariff adjustments must not come out of the blue. There needs to be a comprehensible basis – and, in case of doubt, a right of termination.

Conclusion

The Supreme Court of Justice once again places contract law at the center of the energy market. Anyone who wants to change prices needs a clear, transparent, and valid agreement in the contract. The bar for such agreements is indeed very high.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.