German Federal Court of Justice (BGH) on Stricter Duties For Suppliers of Last Resort - Case Comment BGH VIII ZR 148/17

The German Federal Court of Justice (BGH)  recently ruled on the responsibilities of electricity companies that are acting as `suppliers of last resort´ towards German electricity customers. Until now their responsibilities stopped at the meter in the house of customers. This is about to change in certain cases. The judgement can have repercussions for the appraisal of supplier of last resort-duties in other European jurisdictions.

German electricity customers, whose annual electricity consumption increased more than 1000 per cent within a year, according to a meter reading by its energy supplier EWE, refused to pay the enterprise. EWE, which is nominated as supplier of last resort for the north-west of Germany, asked 9073 Euros of an elderly couple, living a modest lifestyle, for a purported annual electricity consumption of 31814 kwh in 2014/2015. This is about ten times the average consumption of a usual German house-hold with three persons. The company inspected the meter, found that it was working accurately and insisted on getting the money.

In such extreme cases it is not sufficient for electricity suppliers to check whether the installed meter is working sufficiently, ruled the Federal Court of Justice. The burden of proof is reversed and suppliers have to provide other evidence for their claim that such an unusually high amount of electricity was actually consumed. The basis is § 17 Abs. 1 Satz 2 Nr. 1 of the German Stromgrund-versorgungsverordnung (StromGVV), which allows customers to refuse payments, if they object to claims and there is the `serious possibility of an obvious mistake´. This applies in the current case, despite the meter reading said the Federal Constitutional Court.

The ruling can have consequences for suppliers of last resort all around Europe. Customers in jurisdictions that have a provision similar to § 17 Abs. 1 Satz 2 Nr. 1 Stromgrund-versorgungsverordnung (StromGVV) will be encouraged by the ruling to refuse paying extraordinary high bills. The facts of the case are available from the webpage of the Federal Court of Justice (German language version only). Additional press coverage can be found here.

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