Initial situation of the proceedings and the role of the Federal Court of Justice
On July 31, 2023, the Federal Court of Justice (BGH) had the opportunity to clarify fundamental questions regarding the handling of new customer bonuses in the event of an energy supplier’s insolvency within the framework of a model declaratory action (Case No. IX ZR 267/20). The decision concerned situations in which consumers asserted claims to contractually agreed new customer bonuses against the insolvency administrator after the opening of insolvency proceedings.
The action was originally brought by a consumer advice center against the insolvency administrator of a regional electricity supplier. The central issue was how new customer bonuses, which would have been generously granted in the case of regular contract fulfillment, should be treated in insolvency, and whether these should be registered as insolvency claims or paid out as estate liabilities.
Legal assessment of the model declaratory action
Classification of consumers’ claims
In the energy market, new customer bonuses are a common tool for customer acquisition and are incorporated into a multitude of contracts. In the underlying case, numerous customers did not receive the full contractual service due to early contract termination as a result of insolvency. The BGH examined whether, under these circumstances, there is nevertheless an entitlement to partial payment of the new customer bonus and under which insolvency law conditions this applies.
Division of claims: insolvency claims and estate liabilities
A decisive aspect of the proceedings was the determination of the advisable qualification of claims under the Insolvency Code (InsO). The BGH made it clear that claims arising from bonus agreements established before the opening of insolvency proceedings are regularly to be classified as insolvency claims under Section 38 InsO. For consumers, this means that the claim can be registered in the insolvency proceedings, but preferential satisfaction compared to other creditors is excluded. However, if the insolvency administrator was contractually obligated to fulfill the contract after the opening of proceedings, estate liabilities under Section 55 InsO may arise in individual cases.
Consequences for ongoing consumer contracts
The decision makes it clear that the wording and design of the supply contract are of crucial importance. Only if the bonus becomes contractually due with ongoing contract performance after the opening of insolvency proceedings can the new customer bonus be claimed as an estate liability. Otherwise, outstanding bonuses are treated as insolvency claims alongside those of other creditors.
This clarification by the highest court thus provides transparency for customers as well as insolvency administrators on how to handle bonus claims during insolvency. The model declaratory action has proven to be an efficient way to resolve fundamental legal questions for a large number of affected persons and to bundle the rights of customers.
Impacts on practice and further considerations
Significance for energy supply contracts
The current decision of the BGH has implications beyond the specific case for numerous similar cases. Energy suppliers, insolvency administrators, and customers should closely examine under which circumstances bonus promises remain valid in insolvency cases and how they are to be legally classified. It is also advisable to critically review the contractual structure of bonuses and their maturity to avoid future disputes.
In addition to the classification under insolvency law, this also touches on relevant questions from contract law, consumer protection, and procedural law.
Strengthening collective legal protection through model declaratory actions
The proceedings underline that the model declaratory action is an increasingly important instrument for consumers and associations to achieve effective legal protection in cases of mass legal questions. Through the highest court’s ruling, legal certainty is also improved for future insolvency cases in the energy market.
Conclusion and further information
With its ruling, the BGH has decided central legal questions regarding the treatment of new customer bonuses in the context of the insolvency of energy supply companies. This provides clear legal guidance for both affected customers and insolvency administrators and companies in the energy sector.
For companies, investors, and private investors who are confronted with such or comparable issues, an early legal analysis of the respective contractual situation and the insolvency law framework can be of considerable importance.
If you have further questions regarding the insolvency and contract law topics presented, the lawyers of MTR Legal Rechtsanwälte are available for thorough analysis and support.
