Poland - Consumer on energy market - UOKiK's Report
13 undertakings and 44 standard forms inspected, and 101 reservations - these present the results of the latest analysis of agreements applied by electricity undertakings. UOKiK had reservations to all inspected undertaking.
The Office inspects the standard forms of agreements on regular basis in respect of applying inadmissable clauses. The latest action covered electricity sellers and distributors and it is the first research conducted by UOKiK in this respect. Report on inspection of agreements applied by 13 electricity undertakings clearly demonstrates that the rights of consumers using the services are frequently infringed.
This year the Branch Office of UOKiK in Wrocław, under the nationwide inspection performed by UOKiK, controlled agreements, general provisions thereof and regulations applied by most powerful electricity undertakings – sellers and distributors of electricity: Enea and Enea Operator in Poznań, Energa Obrót and Energa Operator in Gdańska, EnergiaPro in Wrocław, Enion in Kraków, PGE Dystrybucja in Lublin, PGE Obrót in Rzeszów, RWE Stoen Operator and RWE Polska in Warsaw, Tauron Sprzedaż in Kraków, Vattenfall Distribution Poland as well as Vattenfall Sales Poland in Gliwice.
Nearly all the inspected agreements included contrary to law and not homogenous provisions. Within 44 inspected standard forms, as much as 37 showed irregularities. Additionally, they included 101 types of infringements. In most cases the President of UOKiK questioned the liability-restricting clauses of undertakings regarding inadequate contract performance and not including in contracts essential information required by law. Ten undertakings did not specify the payment deadline in their agreements, and twelve granted themselves the unilateral right to dissolve a contract with the consumer.
Within 44 inspected standard forms, as much as 37 showed irregularities. Additionally, they included 101 types of infringements. In most cases the President of UOKiK questioned the liability-restricting clauses of undertakings regarding inadequate contract performance and not including in contracts essential information required by law
Excluding the liability for failure to provide electricity
The doubts of the President of the Office raised inter alia clauses where undertakings avoided liability for breaks in electricity supply because of e.g. strikes, gales, or force majeure. Thus, a consumer cannot claim a compensation. According to law, force majeure is a sudden event that can’t be predicted. UOKiK takes the stance that strikes and weather conditions not always can be classified as such. In particular, if they happen regularly and may be predicted – like snowfall in our part of Europe. Applying the clause questioned by UOKiK the undertakings may omit liability even when they could avoid the damage, and consequently the consumer loses the possibility to gain compensation for break in energy supply. This clause was applied by six of inspected undertakings. Therefore, the President of UOKiK plans to institute the proceedings regarding infrigement of collective consumer interests.
Unlawful guaranty
Moreover, the President of UOKiK questioned the clause that stated the following: whenever a supplier decides that incurring the consumer’s payment for electricity is at risk, he may demand a security (...) Failure (...) to fulfil the requirement of providing security, entitles the supplier to withdraw from the contract without respect to period of notice (...).The Office claims there is neither legal basis to claim warranty to the contract nor provisions allowing to dissolve the contract without the notice in the case the condition is not fulfilled. The extract from the agreement (content presented above) may mislead the consumers of poor financial status regarding the methods the electricity suppier may apply. The President of the Office intends to institute the proceedings in this case.
Net costs refund
Standard forms of agreements included inter alia the provision determining when a consumer is obliged to partly perfom the works so as to be connected to electricity network. In most cases such works are performed by a skilled worker by consumer’s commission. Payments with electricity undertaking are settled based on invoices issued. UOKiK stated that the clauses applied can only guarantee the consumer the refund of net value of the price incurred beforehand to the worker. Thus, the consumer misses the opportunity to gain full compensation for works performed (including VAT). The Office intends to bring an action to the Court of Competition and Consumer Protection to regard the clause as inadmissable.
Increasing the fee for connection
The President of the Office questioned the clauses allowing the change of fee for connecting the network, which could happen even after concluding the contract. At the same time – the consumer had no right to resign from the contract. Under the law, whenever a price of service is changed, a consumer must be vested the right to withdraw from the contract. Therefore, the President of the Office intends to bring an action to the Court of Competition and Consumer Protection to regard the clause as inadmissable.
Unconditional payment
The standard forms of agrement inspected by the Office include clauses which determine conditions regarding payments settlement for connecting estates to electrical network. According to one of questioned clauses, a consumer who did not accept the cost of performed works, was forced to incur to payments first, so as not to be able to pursue claims. Electricity supplier informed inter alia that prospective claims concerning the fee can be pursued by the investor only after all the payments regarding the contract performance have been incurred. Under the law, a recepient should be allowed to verify prices at the stage of contract performance. UOKiK intends to bring an sction to the Court of Competition and Consumer Protection to regard the clause as inadmissable.
UOKiK’s activities
As a result of inspection, the President of the Office intends to bring an action to regard the provisions applied by 10 electrical undertakings as inadmissable clauses. Additionally, the President plans to institute 13 proceedings concerning the infringement of collective consumer interests.
At the same time UOKiK would like to remind that whenever any difficulties arie, consumers may get the assistance of Consumer Federation. Furthermore, they may turn to the Spokesman for Fuel and Energy Consumers operating at the Energy Regulatory Office.The consumers may get there support in their disputes with undertakings which fail to perform the agreement or do not fulfil all contracts’ requirements.
Read the press release.