Rejection of new customers in replacement supply: is that even possible?

The East German regional supplier Mitgas has dared to venture out. He has refused to accept former customers in the basic and replacement supply. Namely “because of economic unreasonableness”, as a company spokeswoman announced. (The ZfK reported.)

But is that also legally permissible?

“Indefinite” legal term

Mitgas obviously relies on Section 36 of the Energy Industry Act. There it says in paragraph one, sentence three: “The obligation to provide a basic supply does not exist if the supply for the energy supply company is not reasonable for economic reasons.”

But what does “unreasonable for economic reasons” mean? It is an “indefinite” legal term, says energy lawyer Holger Schneidewindt from the consumer advice center in North Rhine-Westphalia.

“Companies need to let their pants down”

“The question is: Are utilities only doing this to save their margin, which is very high in the basic supply, or are there more serious economic risks? The companies have to let their pants down and explain why they are doing this.”

In response to a ZfK request, the Federal Network Agency pointed out that a high threshold should be set in the event of economic unreasonableness. “It must be checked for each individual case – based on the customer.”

Exceptional situation as an argument

Lawyer Christina Will from the law firm Rosin Büdenbender is of the opinion that basic providers must justify such a step “very well”. Enormous additional costs due to the replacement of gas in an exceptional situation like now could, however, from their point of view represent an argument for the unacceptability.

Mitgas argues that it could not foresee such a high increase in customers due to the delivery stop by the provider According to the company’s own information, there are around 5,000 cases in the company’s basic supply area.

Basic and substitute providers

Therefore, the customer growth was not taken into account either in the gas procurement or in the calculation of the basic and replacement supply prices. Furthermore, the procurement costs have risen significantly in the past few months.

In the Mitgas case, there is another aspect. Paragraph 36 of the Energy Industry Act determines the basic supply obligation, not the replacement supply obligation.

Replacement supply for three months

As a reminder: in the event of insolvency or delivery stops of a provider, its customers usually fall into the replacement supply first. The substitute supplier is identical to the basic supplier of the area.

The latter carries out the replacement care for a maximum of three months. If the customer has not yet decided on a new provider, he switches to the basic service. That applies at least to household customers. (The ZfK reported.)

Federal Network Agency becomes clear

The question now is: does Paragraph 36 also apply to substitute suppliers? No, thinks the Federal Network Agency. “This rule only applies to basic services,” she writes. “There is no such reason for an exception in the substitute pension scheme.” (aba)

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