germany consumer-protection
Energy provider retrospectively canceld contract, switching consumer to default provider. Who has to pay difference of energy prices?
<p>The German energy provider <a href="https://www.stromio.de/" rel="nofollow noreferrer">Stromio</a> 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.</p>
<p>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).</p>
<p>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. <strong>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?</strong></p>

<ol>
<li>The primary source to answer your question is the Stromio contract itself.
If it does not contain any provisions pertinent to such a situation:</li>
<li>It is correct that you are automatically switched to the local Essential Service Provider (<em>Grundversorger</em>, <a href="https://www.gesetze-im-internet.de/enwg_2005/__36.html" rel="nofollow noreferrer">§ 36 Ⅱ 1 EnWG</a>).
In default of delivery by Stromio, the ESP is in charge of supplying electricity in lieu of Stromio, <a href="https://www.gesetze-im-internet.de/enwg_2005/__38.html" rel="nofollow noreferrer">§ 38 Ⅰ 1 EnWG</a>.
This is an example of a contract <em>by</em> <em>law</em>.
Because the laws govern so, there is now a contract between you and the ESP.
You can terminate this contract within two weeks notice, <a href="https://www.gesetze-im-internet.de/stromgvv/__20.html" rel="nofollow noreferrer">§ 20 Ⅰ 1 StromGVV</a>, but <em>you</em> (and only you) still have to meet all your obligations.</li>
<li>Recovery against Stromio? §§ <a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0841" rel="nofollow noreferrer">280</a> Ⅰ, Ⅲ, <a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0853" rel="nofollow noreferrer">283</a> BGB
<ol>
<li>Obligation, § 280 Ⅰ 1 BGB? → Effective cancellation of contract by Stromio?
<ol>
<li>Provisions in contract granting the right to terminate contract without notice due to economic hardship? ✘</li>
<li>Force majeure, <a href="https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p1150" rel="nofollow noreferrer">§ 314 Ⅰ BGB</a>, ✘ b/c commercial risk burden of <em>any</em> entrepreneur</li>
<li>⇒ Contract between you and Stromio continues to exist, even though Stromio will never again meet its obligations.</li>
</ol>
</li>
<li>Breach of duty?
<ol>
<li>§ 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. ✔</li>
<li>No defense? ✔ § 275 Ⅱ BGB ✘ cf. above, § 320 BGB ✘</li>
<li>⇒ Breach of duty ✔</li>
</ol>
</li>
<li>Responsibility, § 276 Ⅰ 1 BGB? ✔ According to the email, Stromio <em>deliberately</em> stopped delivery.</li>
<li>Causal damage? ✔ You would’ve (presumably) paid less if Stromio continued delivery.</li>
<li>⇒ <em>You</em> can charge Stromio the difference you had to pay more.</li>
</ol>
</li>
<li>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.</li>
<li>The ESP is unaware of all of these troubles.
They do not have a contract with Stromio.
They will not sue them.</li>
</ol>
