The multi-member Court of First Instance of Athens decided to dismiss the lawsuits against PPC for the adjustment clause in the accounts.

According to ERTthe court dismissed lawsuits filed by consumer organizations, Bar Associations, professional associations, and consumers, seeking the annulment of the readjustment clause in electricity tariffs.

Among other things, it was stated in the lawsuits that PPC “abusing its dominant position in the domestic electricity market, acting in a dual and alternating manner as the case may be, sometimes as a supplier and sometimes as a producer of electricity, engaged in unfair and especially unfair commercial practices, consisting on the one hand in the application of the above invalid, as non-transparent, general terms, on the one hand, in the misleading failure to provide essential information about the invoicing process, imposed unilaterally and without provision in the supply contracts the clause for the adjustment of supply charges, which creating complete confusion as to the charges and manner of their calculation, with the sole purpose of leading the consumer to make a transaction decision that he would not have otherwise made…”.

The court makes extensive reference to the directives and regulations of the European Union for electricity, as well as the harmonization of our country with Community law, for the gradual liberalization of the electricity market, as well as the legislative framework that historically governs the operation and PPC activity. In the decision it is noted that “the electricity market has now been reduced to a stock exchange product and is shaped by the Hellenic Energy Exchange”, emphasizing that “the clause is not only unacceptable but constitutes a commercially acceptable practice in the electricity market in order for the invoiced supply of electricity energy to meet the principle of cost-orientation.”

According to the rationale of the decision, “adjustment clauses, on the one hand, affect the determination of the price, on the other hand, they are not entirely expected in variable tariff agreements. The consumer who chooses to enter into an energy supply contract not at a fixed price but at a variable tariff, certainly knows that the variation is made on the basis of a contractual clause, the adjustment clause. Therefore, the clauses in question, like any clause for the adjustment of the price in the case of a variable amount of the benefit, are not subject to an abuse check but only to a transparency check”.

PPC, as reported, proceeded to activate the readjustment clause from August 5, 2021 at the suggestion of RAE which, in its context, informed the consumer public of its intention to apply. “At the time the clause was inserted, the consumer had at his disposal all the essential information required to make an informed transaction decision”, the decision points out, noting that RAE, within the framework of its supervisory competence, decided to recommend the application of the clause .

“According to the operative part of the RAE decision, the implementation of this clause is left to the potential discretion of the suppliers and their possibility to adopt other equivalent measures is recognized… Therefore each supplier can determine its own adjustment clause based on the possible risk… RAE acted proactively and imposed measures in the form of a recommendation to suppliers. ..”, notes the decision which recognizes the possibility of suppliers to adjust the price, following the changes in the cost of electricity for them”.

The court, taking into account the special conditions that prevailed and above all that “in the specific period of time 5.8.2021 the rapid increase in the cost of electricity internationally could not be foreseen”, fully justifies the application of the clause emphasizing: “In any case, the purpose of of the relevant clause is neither the benefit nor the damage of the customer, but the compliance of the defendant with the principles of invoicing provided for in the KPIE, i.e. the principle of transparency as specified by the 409/2020 decision of the RAE”.

However, the decision states that based on the Electricity Supply Code (Government Gazette April 2013), any tariff adjustment mechanism must be transparent, clear in terms of its calculation to the consumer and offer sufficient options to manage the risk of seasonal variation of prices.

“In particular, the readjustment clauses must expose in a transparent manner the reason and the method of change in the cost of electricity so that the consumer can control the price change with clear, objective and verifiable criteria”, points out the decision, which adds that “PPC may, at its sole discretion, at any time during the validity of the Contract, adjust or modify the conditions and the tariff, while the consumer has the right to terminate it”.

In addition, according to the decision, “the supplier is obliged to provide his counterparty with the possibility to terminate the contract, i.e. he must allow him to withdraw from the contract to the extent that he considers that the readjustment is unprofitable for him”.

The court refers to decisions of the CJEU and notes that it should be possible for the consumer’s right to be exercised. “Something like this will not apply according to the CJEU when the consumer does not have the possibility to change supplier or when he has not been informed in a proper way and in time about the impending modification.”

However, the decision considers that “the activation of the mechanism of the readjustment clause will arise as an exceptional case when the values ​​of the variable quantity X move to levels that are difficult to predict” while “PPC can, of its own free will, at any time during its validity Contract to readjust modifies the conditions and the invoice while the consumer has the right to terminate it”.