No increases in the absence of a clear Expiration date. However, increases are valid if the contractual term has been clearly communicated to consumers. This is the summary of the resolution issued by theAntitrust after the sentence of Council of State relating to the unilateral changes to the contracts (with price increases) adopted by the various electricity companies.
The sentence of the Council of State and the resolution of the Antitrust
On the basis of the principles expressed by the Council of State to which Iren had appealed, the Antitrust Authority (AGCM) partially confirmed the precautionary measures issued on 12 December against Enel, Eni, Edison, Acea and Engie. The Authority has suspended the unilateral changes of the economic conditions not expiring, in violation of the Consumer Code and in contrast with the art. 3 of the Decree Law of 9 August 2022, n. 115 (so-called Aid bis), converted into Law no. 142 of 21 September 2022.
In fact, the Aiuti Bis decree had established the suspension from 10 August 2022 to 30 September 2023 of the effectiveness of the contractual clauses that allow companies to change the supply price and the related notice communications, unless the price changes have already completed before the entry into force of the decree itself. The Council of State has reduced the margin of action of article 3 to only "ius variandi for contracts that have not expired and not to contractual renewals resulting from deadlines agreed by the parties".
Speaking in simple terms, according to Palazzo Spada, in the presence of a clear expiry date communicated to the consumer the renewal proposal is legitimate, as well as price increases. If, on the other hand, the expiry date has not been clearly communicated to consumers, the proposal of new (worse) economic conditions cannot be carried out.
What happens now?
Considering the conditions described above, the Antitrust has confirmed the precautionary measures against Enel, Eni, Edison, Acea and Engie "by suspending the effectiveness of all communications of unilateral changes and/or renewal/updating/variation of the economic conditions of the offer of open-ended contracts, without a clear, effective and predetermined or predeterminable expiry". The companies will therefore not be able to apply the changes they have established (including price increases) on bills that do not have an effective expiry and they will have to notify the Authority by the end of the execution of the suspension measures.
Su Hera and A2A, on the other hand, the Authority has not identified the details for the confirmation of the related precautionary measures, given that, on the basis of the documents acquired, it appears that the changes communicated by the same concerned economic offers actually expiring.
Milleproroghe: no price increases until 30 June
News on the subject also comes from Milleproroghe decree. Based on the provisions, any contractual clause that allows the electricity and natural gas supplier to unilaterally modify the general conditions of the contract will not be effective until 30 June 2023. In other words, it is a 2-month extension, from 30 April to the new deadline in June, of the deadline for applying the rule contained in the "Aiuti bis" decree.
“The standard aims at a double objective: protect citizens and consumers in these difficult months and at the same time guarantee and protect the economic initiative of those companies most exposed to the persistence of the instability of the energy markets”, specifies Minister Gilberto Pichetto.
“As Mase and as a Government, the commitment to support families and entrepreneurs in this difficult situation is maximum. I thank the president of the Antitrust Rustichelli who reported the matter allowing us to collaborate in resolving the problem”, added the minister.
In fact, the law clarifies the point at the center of the dispute between the Antitrust and the company, establishing that the suspension of the unilateral amendments does not apply to those clauses which allow the contractual economic conditions to be updated upon expiry of the same, in compliance with the terms of notice and without prejudice to the counterparty's right of withdrawal. A clarification necessary to also protect supplier companies, which in the face of increases in natural gas prices "almost 7 times compared to the average of recent years", would be forced to "sell energy for the next few months at a price significantly lower than the of purchase".
