September 2024

Decision of the Multi-Member Court of First Instance of Athens regarding the Rejection of a Claim for the Return of approximately €450,000 due to an Allegedly Illegal Electricity Price Adjustment Clause

The decision no. 2159/2024 of the Multi-Member Court of First Instance of Athens has been issued, which rejected the lawsuit of a company operating in the tourism sector against an electricity provider. The company had requested that the provider be obliged to pay approximately €450,000 to it, according to the provisions of unjust enrichment, due to allegedly illegal and abusive pre-drafted terms concerning adjustments of the electricity price.

Excerpts from the most significant parts of decision no. 2159/2024 of the Multi-Member Court of First Instance of Athens, which accepted our arguments, are provided below:

'The price adjustment clause was included as a general term of the contract, which determines the main provision for the customer (consideration), namely one of the essential elements of the contract, which must be agreed upon by the parties for it to be considered concluded. This term defines the method of calculating the consideration that the customer must pay for the energy supply. {...} In any case, however, there is no issue of uncertainty in the consideration, as the parties had mutually agreed that the amount of each consideration would result from the supplier's current pricing. Furthermore, contrary to the plaintiff's claims, the provision in the contract granting one contracting party the right to determine the consideration or to modify the contract terms by unilateral declaration does not constitute an arbitrary but an agreed method of changing the contractual terms. The consent of the party not participating in the contract has been given by recognizing the other party's formative right to unilaterally amend the contract. The contentious term, resulting from the exercise of this formative right, was set as a general transaction term but had previously become the subject of an agreement, which the plaintiff clearly accepted, thereby subjecting it to abuse control in the sense of observing the principle of transparency, which, as stated above, is met in this case. This is because the defendant made it clear that in exceptional circumstances, as defined in clause 15.3 of the contract in question, they are entitled to a unilateral pricing adjustment, provided this is communicated to their customer. Thus, the defendant proceeded promptly to adequately inform the plaintiff of the contentious modification, complying with both the Electricity Supply Code and the requirements of good faith in the performance of obligations (articles 178, 288 of the Civil Code). Moreover, as already stated, the plaintiff was entirely free to terminate the contract at any time if they wished, without any additional financial burden or time limitation for them and could turn to a more advantageous electricity provider, which they did not do. {...} Additionally, it is noted that the average consumer, and even more so the plaintiff, as a merchant with a broad scope of activity, should reasonably expect revisions of electricity prices, given that this commodity is susceptible to price changes due to unforeseen geopolitical developments, such as the increase in other energy sources (oil, natural gas).'

The decision imposed the court costs on the plaintiff, while it also rejected the related additional intervention of the legal entity with the name 'HELLENIC CHAMBER OF HOTELS' in favor of the plaintiff company - counterparty."