Case law

Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, ANNEX I, 1.

1. Reference within standard contract terms to a retention of data in connection with the contract merely represents a reference required by § 33 (1), 1st sentence BDSG (Bundesdatenschutzgesetz – Federal Data Protection Act) and not a pre-formulated contractual condition within the meaning of § 1 AGBG (Allgemeine Geschäftsbedingungsgesetz – Standard Contract Terms Act).
2. A limitation of liability to 5,000 DM in contracts for the supply of electricity against consumers does not represent an incommensurate disadvantage according to § 9 AGBG (=Art. 3 (1) Unfair Contract Terms Directive 83/13/EC), even with an interpretation consistent with the Directive.

The applicant is an incorporated consumer protection association, the respondent an energy supply business that supplies household with electricity. It distinguishes between two types of households. Firstly, there are so-called household tariff customers, who constitute the majority of customers. These are supplied by the respondent in the context of the general obligation to supply according to § 10 EnWG (Energiewirtschaftsgesetz - Energy Market Act). The AVBEltV (Verordnung über Allgemeinen Bedingungen für die Elektrizitätsversorgung – Regulation on General Conditions for the Supply of Electricity) applies to them. In addition to these customers, the respondent offers price structures at conditions that deviate from the tariff approved by the relevant authority. The electricity supply contract with these so-called contract customers were based on the “General terms and conditions for the supply of special contract household customers with electricity” (status 1.9.1999), at least until filing of the applicant’s suit on 17.2.2000.
The applicant challenged a total of seven clauses contained in the respondent’s general conditions. Clauses which remained relevant for the Berufung (appeal on points of fact and law) were clauses no. 16 para. 2, which provides a limitation of liability of e GmbH to 5,000 DM in each case for property damage and pecuniary damage, as well as clause no. 28 which reads “Data collected in connection with the electricity supply contract will be retained by… for purposes of data processing”.
The OLG (Oberlandesgericht – higher regional court) regarded the clauses as valid.

The OLG stated firstly that no. 28 of the general terms and conditions do not have any effect on contractual formulation. It merely concerns a reference to data retention required by § 33 (1), 1st sentence BDSG. In the absence of a “contractual binding”, clause no. 28, although a formal constituent of the respondent’s general conditions, is not a pre-formulated “contractual binding” within the meaning of § 1 AGBG and is therefore permissible.
In relation to clause no. 16, para. 2 of the general conditions, the Senate is of the view that the clause does not represent an incommensurate disadvantage of the contractual partner within the meaning of § 9 (1), 1st sentence AGBG. Therefore, the applicant has no right to an injunction according to § 13 AGBG. In its assessment, the Senate referred to the judgment of the BGH (Bundesgerichtshof – Federal Supreme Court) of 25.2.1998, in which the BGH considered a clause of the same wording in contracts with special business customers as permissible. In contrast to the view of the LG, that in consequence of the subsequent liberalisation of the energy market by the introduction of the EnWG the BGH judgment is no longer good law and that a different constellation exists due to the use against consumers in this case, the Senate followed the judgment of the BGH. It argued that even following the liberalisation of the electricity market, the monopolies of the network providers had not changed and the damaging events covered by no. 16 of the general conditions remained the same.
The Senate likewise did not heed the argument of the LG, according to which the clause no. 16 (2) of the conditions was void when assessed by Art. 3 (1) and (3) in conjunction with Annex no. 1 lit. b of the Unfair Contract Terms Directive. It is not apparent why Art. 3 (1) of the Directive, on an interpretation of § 9 AGBG consistently with the Directive, should secure a higher level of consumer protection. In the present case, there is no “improper limitation” of liability for non-performance or poor performance of contractual obligations within the meaning of no. 1b of the Annex to the aforementioned Directive. In particular, the upper limit of liability of 5,000 DM against consumers to cover property damage and pecuniary damage should, according to any kind of life experience, cover the normal run of cases. The clause is therefore valid.

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