The German energy provider Stromio went out of business and canceled all end consumer contracts on the 21st of December. However, due to 'technical reasons' the email notifying customers of this arrived at a later date on the 28th.

Stromio had contractually guaranteed a fixed price (unless otherwise notified with proper lead time) for the current year of the contract. However, due to the cancellation customer are switched to the regional default provider with different prices (most likely higher).

Given that the notification arrived after the fact with literally negative time to react, customer might now face an unexpected increased energy bill until a new contract has been signed with a different provider. Acquiring a new contract is fairly easy yet not instantaneous. Do customer have to pay the difference of energy prices and if not does the default provider have to legally fight Stromio for the difference or the consumer?

  • How much of a difference could a week make (percentage wise compared to a year of charges)? And, how could one collect it in a cost effective manner from a bankrupt energy provider?
    – ohwilleke
    Dec 28, 2021 at 16:49
  • With soaring wholesale prices do you think you would have been able to find a supplier that wasn't more expensive than your fixed price deal that put the provider out of business? The reason for a delay could be that all the staff went home because they would not get paid, and it took the Administrator a week to get hold of customer contact details. Dec 28, 2021 at 23:33
  • @ohwilleke The reason Stromio quoted for going out of business is a (occasional) 400% price hike, if the consumer expected to pay 30ct/kwH and the default provider charges the current price, they are now stuck with 120ct. Nearly a euro more per kw/H. A NAS consumes roughly 50 Watt * 24h -> 1,2kwh/day, thus, you are paying a Euro more per day for a single NAS. A fridge is around 100 to 250Watt, which adds another 2-5 euro per day in the worst case. This could add up to unexpected expenses which might not be in your budget. There might not be any money left but who has to figure that out?
    – Sim
    Dec 29, 2021 at 11:30
  • @WeatherVane sure there might be some reason, but is this sufficient justification? Would the same also hold if they delayed notification for a month, a year, never? Basically a consumer had a valid basic needs contract they used to calculate ongoing living costs and suddenly they have to deal with an unexpected price hike, does the consumer have to calculate with such risk even for basic needs such as electricity?
    – Sim
    Dec 29, 2021 at 11:39
  • 1
    The hypothetical cases of 'unreasonable' delay are irrelevant. It may not have been possible for the Administrator to inform you sooner. The default provider has no concern with, or obligation to, the previous contract between you and Stromio. Why should they reimburse you? And as mentioned, if Stromio is bankrupt they won't pay. Perhaps there is a social fund you can apply to, in case of hardship. Dec 29, 2021 at 11:49

1 Answer 1

  1. The primary source to answer your question is the Stromio contract itself. If it does not contain any provisions pertinent to such a situation:
  2. It is correct that you are automatically switched to the local Essential Service Provider (Grundversorger, § 36 Ⅱ 1 EnWG). In default of delivery by Stromio, the ESP is in charge of supplying electricity in lieu of Stromio, § 38 Ⅰ 1 EnWG. This is an example of a contract by law. Because the laws govern so, there is now a contract between you and the ESP. You can terminate this contract within two weeks notice, § 20 Ⅰ 1 StromGVV, but you (and only you) still have to meet all your obligations.
  3. Recovery against Stromio? §§ 280 Ⅰ, Ⅲ, 283 BGB
    1. Obligation, § 280 Ⅰ 1 BGB? → Effective cancellation of contract by Stromio?
      1. Provisions in contract granting the right to terminate contract without notice due to economic hardship? ✘
      2. Force majeure, § 314 Ⅰ BGB, ✘ b/c commercial risk burden of any entrepreneur
      3. ⇒ Contract between you and Stromio continues to exist, even though Stromio will never again meet its obligations.
    2. Breach of duty?
      1. § 283 BGB → § 275 Ⅰ BGB: it is impossible to deliver electricity in the past and it does not make sense to deliver electricity today when it was actually needed on December 22, 2021. ✔
      2. No defense? ✔ § 275 Ⅱ BGB ✘ cf. above, § 320 BGB ✘
      3. ⇒ Breach of duty ✔
    3. Responsibility, § 276 Ⅰ 1 BGB? ✔ According to the email, Stromio deliberately stopped delivery.
    4. Causal damage? ✔ You would’ve (presumably) paid less if Stromio continued delivery.
    5. You can charge Stromio the difference you had to pay more.
  4. Write them a (registered) letter, enclose the ESP’s bill, refer to your quote you had with Stromio, highlight the difference (“€12.34 due”), indicate your banking account, and set a reasonable deadline. It is unlikely they will fulfill your demands, but still.
  5. The ESP is unaware of all of these troubles. They do not have a contract with Stromio. They will not sue them.
  • This is not a case of § 286 BGB, but a "Schadenersatz statt der Leistung". As the obligation got impossible when the delivery-time is gone (Fixschuld), it is a case of § 283 BGB.
    – K-HB
    Jan 4, 2022 at 10:38
  • Doesn’t the customer continue to have an interest in delivery of electricity by Stromio? Then I must’ve read my notes wrongly. Second semester law school is a bit of a past now for me. Jan 4, 2022 at 12:40
  • I'm not really sure, too. Never read something sepcifically on a electricity contract. But it seams to me as a similar constellation as a working-contract, where we use § 283 BGB: The creditor wants (and has a right to) elctricity/working force now. He may have a interest in getting electricity/working force later (e.g. he only wants to load battery packs / one can postpone the work), but the owed obligation is not longer possible.
    – K-HB
    Jan 4, 2022 at 15:47

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