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OLG Cologne decision on the permissibility of separate new-customer tariffs in basic electricity and gas supply
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In its order of 25 March 2022 (Ref. 6 W 10/22), the Higher Regional Court (OLG) of Cologne set a key course for the design of electricity and gas tariffs. The subject of the proceedings was whether energy supply companies are entitled to offer different tariffs for new customers that differ from the conditions for existing customers in basic supply. This issue gained relevance particularly against the backdrop of increasing price dynamics and adjustments in the energy market.
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Background to the legal dispute
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In the underlying case, a consumer advice center objected to an energy supplier’s practice of offering different prices to different customer groups within the framework of basic supply. The consumer advice center considered this to be a violation of the German Energy Industry Act (EnWG). In the claimant’s view, within statutory basic supply, suppliers may not apply different pricing to new and existing customers.
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The Regional Court of Cologne initially granted the claim for injunctive relief. The energy supply company challenged this by filing an immediate appeal and sought to have the decision set aside.
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Key statements of the higher-court decision
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The OLG Cologne set aside the Regional Court’s decision and indicated a different assessment regarding the scope for structuring basic supply tariffs. In the Senate’s view, there is generally no insurmountable obligation to supply all customers within basic supply on identical terms. Rather, under certain conditions, differentiation between new and existing customers may be permissible. What is essential is that the statutory framework is complied with and that the reasons for a price divergence are objectively justified.
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The court explained that, in view of extraordinary market circumstances—such as drastic price increases on the energy market—suppliers have a legitimate interest in countering economic burdens. Nevertheless, the price split must be implemented transparently and must not lead to an unreasonable disadvantage for certain consumer groups. In particular, it depends on whether Section 36 EnWG, which governs the conditions of basic supply, is violated. The court answered this in the negative in the present case and emphasized that the existing legal situation does not impose a blanket prohibition on price differentiation.
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Significance for energy suppliers and market participants
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The order clarifies that, in special situations, suppliers may be entitled to implement separate tariffs for new and existing customers. The prerequisite remains that the principles of transparency and equal treatment are observed and regulatory requirements are complied with. The design of such pricing models therefore remains manageable for suppliers, provided the statutory framework is respected.
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Notes on the procedural status
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According to the case file, at the time of publication the appeal proceedings before the OLG Cologne did not provide for any further level of legal remedy. As a rule, the presumption of innocence applies as long as there is no final, legally binding decision in any potential main proceedings. The presentation is based on the published decision of the OLG Cologne (available, among others, at urteile.news).
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Implications for companies and investors
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The current case law of the OLG Cologne entails significant implications for energy supply companies and market participants regarding the structuring of contract models and tariffs. Companies, investors, and experienced market participants facing challenges or legal questions in connection with litigation and disputed proceedings can find detailed information on this under Litigation. A well-founded engagement with the current legal situation can be advantageous, particularly in a dynamic market environment.
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