The message is clear: for electricity and gas bills, contractual changes are only possible under specific conditions. This is what the Authority for Energy, Networks and the Environment (Arera) and the Antitrust have established with a joint statement that aims to put an end to the attempts, put in place by some sellers, to circumvent Article 3 of the Bis Aid Decree which prohibits the improper use of unilateral changes to electricity and gas contracts. In fact, the Authorities received numerous reports from consumers for alleged violations of the provision both in the context of the aforementioned amendments and in that relating to improper use of the seller’s withdrawal tools and resolution for excessive burdens. Here, then, is what sellers can unilaterally change and what is prohibited.
What does the Aid bis decree provide?
Let’s start by remembering what Article 3 of Legislative Decree 115 of 2022 provides: “Until April 30, 2023 – states the provision – the effectiveness of any contractual clause that allows the company supplying electricity and natural gas to modify unilaterally the general terms and conditions relating to the definition of the price even if the right of withdrawal is contractually recognized to the counterpart “. The same article then establishes that, until the same date,” the notices communicated for the aforementioned purposes before the date of entry are ineffective in force of this decree, unless the contractual changes have already been completed “.
Stop to unilateral changes in contractual conditions
The perimeter, therefore, is very precise and includes some cases, starting with the unilateral changes, that is, those governed by article 13 of the Code of commercial conduct. These are the cases in which, during the period of execution and validity of a supply contract, the seller decides to make use, for a justified reason, of a contractual clause in which the possibility of unilaterally changing specific contractual conditions is explicitly foreseen. According to the note issued by the two Authorities, these clauses fully fall within the scope of application of the Aid Decree bis.
No block for the automatic evolution of conditions
On the other hand, the so-called automatic evolutions of the economic conditions are not blocked by the provision, that is to say the modifications and / or updates of the economic conditions already provided for by the contractual conditions at the time of stipulation. As a rule, they involve an increase in the unit fees determined by the seller, the expiration or reduction of discounts, the passage from a fixed price to a variable price or the passage from a variable price to a fixed price. However, being clarified by Arera and Antitrust, already provided for in the contractual conditions, on which the seller and user have given their consent, they do not have the character of one-sidedness and therefore are not excluded from the limits set by the Legislative Decree.
Yes to the renewal of the economic conditions of the Placet offers
The areas excluded from the application of the decree also include the renewal of the economic conditions of the Placet offers which consist of contractual offers whose conditions are entirely established by the Authority with the exception of the price of which the Authority establishes only the structure, while the value is decided by the seller, the regulation provides for a specific procedure for the renewal of the economic conditions (which must take place every 12 months). of unilateral variation, as it consists of activities aimed at concluding a new contract under the same conditions as the one expiring. The renewal, however, can be regulated in various ways in the context of a contract concluded between the parties ». Ergo, it is not one of the cases covered by the provision.