Provisional text
JUDGMENT OF THE COURT (Third Chamber)
24 September 2026 ( * )
[para_4]( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 1(2) – Concept of ‘mandatory statutory or regulatory provisions’ – Article 6 – Effects of a finding that a term is unfair – Continued existence of the contract without unfair terms – Concept of ‘supplementary national provisions’ – Article 7(1) – Power of the national court to address the consequences of the removal of an unfair term – Conditions – Long-term energy supply contract containing unfair price adjustment clauses – Power of sellers or suppliers unilaterally to replace an unfair price adjustment clause with a term allegedly compliant with that directive )
[para_5]In Case C‑900/24,
[para_6]REQUEST for a preliminary ruling under Article 267 TFEU from the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), made by decision of 10 December 2024, received at the Court on 27 December 2024, in the proceedings
SVB – Neues Schweizer Viertel Betriebs + Service GmbH & Co. KG
[para_8]v
[para_9]Glarner Straße 5 GbR,
[para_10]THE COURT (Third Chamber),
[para_11]composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei, S. Rodin, N. Piçarra (Rapporteur) and N. Fenger, Judges,
[para_12]Advocate General: R. Norkus,
[para_13]Registrar: R. Șereș, Administrator,
[para_14]having regard to the written procedure and further to the hearing on 12 March 2026,
[para_15]after considering the observations submitted on behalf of:
[para_16]– SVB – Neues Schweizer Viertel Betriebs + Service GmbH & Co. KG, by H.‑J. Hainz, M. Schröder and J. Semmler, Rechtsanwälte,
[para_17]– Glarner Straße 5 GbR, by M. Stelzner, Rechtsanwalt,
[para_18]– the German Government, by J. Möller and N. Scheffel, acting as Agents,
[para_19]– the European Commission, by P. Kienapfel and E. Schmidt, acting as Agents,
[para_20]having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
[para_21]gives the following
Judgment
[para_23]1 This request for a preliminary ruling concerns the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
[para_24]2 The request has been made in proceedings between SVB – Neues Schweizer Viertel Betriebs + Service GmbH & Co. KG, an energy supply undertaking (‘SVB’), and Glarner Straße 5 GbR, a German civil law company (‘Glarner’), concerning a request for reimbursement filed by Glarner in respect of sums wrongly paid to SVB in performance of an energy supply contract which contains unfair terms.
Legal context
European Union law
Directive 93/13
3 The thirteenth recital of Directive 93/13 states:
[para_29]‘Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1(2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’.
4 Under Article 1(2) of that directive:
[para_31]‘The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’
[para_32]5 Article 2(b) of that directive defines ‘consumer’ as ‘any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’.
6 Under Article 6(1) of that directive:
[para_34]‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
7 Article 7(1) of Directive 93/13 provides:
[para_36]‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’
Directive 2011/83/EU
[para_38]8 Recital 13 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), states:
[para_39]‘… For instance, Member States may decide to extend the application of the rules of this Directive to legal persons or to natural persons who are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or small and medium-sized enterprises …’
German law
The Civil Code
[para_42]9 Under Paragraph 133 of the Bürgerliches Gesetzbuch of 18 August 1896 (RGBl. 1896, p. 195), in the version published on 2 January 2002 (BGBl. 2002 I, p. 42, 2909, and 2003 I, p. 738), as last amended by Article 14 of the Law of 23 October 2024 (BGBl. 2024 I, No 323) (‘the Civil Code’):
[para_43]‘In interpreting a declaration of intent, the true intention shall be sought without the interpretation being limited to the literal meaning of the declaration.’
10 Under Paragraph 157 of the Civil Code:
[para_45]‘Contracts shall be interpreted as required by good faith, taking customary practice into consideration.’
11 Paragraph 306 of the Civil Code provides:
[para_47]‘1. If general terms and conditions have not been incorporated into the contract or have been incorporated only in part, or if they are void, the contract shall remain valid as to the remainder.
[para_48]2. In so far as those terms have not been incorporated into the contract or are void, the content of the contract shall be governed by statutory provisions.
[para_49]3. The contract shall be void where its continued existence, taking into consideration also the alteration referred to in subparagraph 2, would result in undue hardship for one of the parties.’
12 Paragraph 812(1) of the Civil Code provides:
[para_51]‘Any person who obtains something without legal cause as a result of the performance of another person or otherwise at that other person’s expense shall be obliged to surrender to that other person what has been obtained.’
13 Under Paragraph 818(2) of the Civil Code:
[para_53]‘Where surrender is not possible due to the nature of what has been obtained, or where, for another reason, the recipient is not in a position to surrender what has been obtained, the recipient shall reimburse the value.’
The Regulation on general terms and conditions for the supply of district heating
[para_55]14 Under Paragraph 24(4) of the Verordnung über Allgemeine Bedingungen für die Versorgung mit Fernwärme (Regulation on general terms and conditions for the supply of district heating), of 20 June 1980 (BGBl. I, p. 742), as last amended by Article 1 of the Regulation of 13 July 2022 (BGBl. 2022 I, p. 1134):
[para_56]‘Price adjustment clauses must be drafted in such a way as to take due account of both the evolution of costs connected to the generation and supply of district heating by the undertaking, and market conditions. The clauses must show the relevant calculation factors in full and in such a way as to be readily understood. When price adjustment clauses are applied, the percentage share of the price factor covering fuel costs in each price adjustment must be shown separately.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
[para_58]15 On 21 November 2012, Glarner concluded with SVB a contract, corresponding to SVB’s standard form contract, for the supply of district heating, which stipulated pricing comprising a supply charge, a consumption charge and a metering charge. That contract, which had a minimum term of ten years, contained two separate price adjustment clauses, one concerning the supply and metering charges and the other concerning the consumption charge.
[para_59]16 SVB invoiced Glarner for the supply of heating for the period from 2015 to 2020, with annual adjustments of the consumption charge on the basis of the relevant contract term. Furthermore, by letter of 24 April 2019, SVB unilaterally changed that contract term with effect from 1 May 2019.
[para_60]17 Glarner paid SVB the amounts resulting from the statements drawn up pursuant to that term, without challenging them, until 3 July 2019, when it claimed that both the contractual price adjustment clauses and the clause which unilaterally replaced the price adjustment clause in respect of the consumption charge were void. It brought an action against SVB before the Landgericht Berlin (Regional Court, Berlin, Germany), by which it sought the reimbursement of overpayments in respect of the period from 2015 to 2018 and a declaration that those clauses were void.
[para_61]18 On 6 November 2020, that court ruled that the contractual price adjustment clauses, including that resulting from the unilateral change in 2019, were void and that, therefore, the statements should have been drawn up on the basis of the prices agreed upon in 2012.
[para_62]19 SVB lodged an appeal against that decision before the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), which is the referring court. That court found that the price adjustment clause in respect of the consumption charge specified in Paragraph 8(4) of the contract for the supply of district heating was void on the ground that it did not meet the transparency requirement imposed in the first sentence of Paragraph 24(4) of the Regulation on general terms and conditions for the supply of district heating.
[para_63]20 The referring court is uncertain as to the effects of such a finding of invalidity, in the light of Article 6(1) and Article 7(1) of Directive 93/13 and, in particular, as to the compatibility with those provisions of the settled case-law of the Bundesgerichtshof (Federal Court of Justice, Germany), according to which the consequences of such a finding must be addressed by means of supplementary contract interpretation in the sense that the customer may not rely on the ineffectiveness of price increases if the customer has not challenged them within a period of three years from receipt of the annual statements in which the price increases were applied for the first time. Consequently, the price reached – pursuant to the clauses that were subsequently declared void – three years before the consumer’s first challenge definitively replaces the price initially agreed upon in the contract and must be viewed in legal terms as the price agreed between the parties when the contract was concluded (‘the three-year rule’).
[para_64]21 The referring court explains that, according to that case-law, the contract for the supply of heating cannot continue in existence without that supplementary interpretation following the finding that the price adjustment clause in respect of the consumption charge is void. That court explains, moreover, that that interpretation is based on the general rules on interpretation of contracts stated in Paragraphs 133 and 157 of the Civil Code, under which, for the purposes of contract interpretation, respectively, the true intention is to be sought without the interpretation being limited to the literal meaning of the expressions used, and contracts must be interpreted as required by good faith, taking customary practice into consideration.
[para_65]22 That court, first, queries whether those principles of supplementary interpretation of a contract constitute ‘national provisions of a general nature’, within the meaning of the case-law of the Court of Justice, which would preclude the consequences of unfair contract terms being declared void to be addressed, or whether those provisions constitute ‘supplementary provisions of national law’ which are capable of addressing those consequences, in the event that the consumer is exposed to particularly unfavourable consequences resulting from the contract being declared void after the unfair terms contained therein have been declared void.
[para_66]23 That court doubts that the consumer, in the present case, would be exposed to unfavourable consequences in the event that the contract for the supply of district heating is declared void. It is of the view that the consumer would be in a more favourable situation if that contract remained in force without the ‘three-year rule’ being applied, observing that, in order to determine whether that consumer is at a disadvantage, the consumer’s declared intent must be decisive.
[para_67]24 Secondly, the referring court is uncertain as to whether Paragraph 306(3) of the Civil Code, interpreted as meaning that the invalidity of an unfair price adjustment clause in respect of the consumption charge leads to the invalidity of the contract for the supply of heating in the event that the continued existence of that contract would result in undue hardship for one of the parties, is compatible with Article 6(1) and Article 7(1) of Directive 93/13. According to that court, the fact that the national court takes into account the situation of only one of those parties, in the present case the energy supplier, in determining whether the continued existence of the contract without that unfair term is legally possible cannot be the decisive criterion that determines the fate of the contract.
[para_68]25 That court takes the view that energy supply contracts, which include the contract at issue in the main proceedings, unlike loan agreements, can still be performed where an unfair price adjustment clause has been declared void and adds that, even without the supplementary interpretation which the ‘three-year rule’ represents, there are, in German law, consensual mechanisms to amend a contract, which take into account the interests of both the energy supplier and the consumer.
[para_69]26 Thirdly, that court has doubts as to whether a national rule enabling energy suppliers unilaterally to replace a price adjustment clause that has been declared unfair with a new, valid price adjustment clause without the consent of the consumer is compatible with Article 6(1) of Directive 93/13. That court takes the view that such a rule is contrary to the objective of Article 7(1) of that directive which is to end the use of unfair terms, and that that rule cannot be characterised as a contractual term reflecting mandatory statutory or regulatory provisions within the meaning of Article 1(2) of that directive.
[para_70]27 In those circumstances, the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
[para_71]‘(1) Are Article 6(1) and Article 7(1) of [Directive 93/13] to be interpreted as precluding national legislation or judicial practice based on national legislation under which, in the case of long-term energy supply contracts in respect of which the customer has not challenged price increases for an extended period of time and is now claiming that price increases dating back a long time are also ineffective, the regulatory gap created by an ineffective price adjustment clause or ineffective incorporation of a price adjustment clause is normally filled by means of supplementary contract interpretation to the effect that the customer cannot rely on the ineffectiveness of price increases leading to a price higher than the initial price agreed if the customer has not challenged these in the first three years after receipt of the respective annual bills in which the price increase was applied for the first time?
[para_72](2) Are Article 6(1) and Article 7(1) of [Directive 93/13] to be interpreted as precluding national legislation or judicial practice based on national legislation, under which long-term energy supply contracts, in respect of which the customer has not challenged price increases arising from an ineffective price adjustment clause or ineffective incorporation of a price adjustment clause in the contract for an extended period of time and is now claiming that price increases dating back a long time are also ineffective, are to be regarded as ineffective?
[para_73](3) Are Article 6(1) and Article 7(1) of [Directive 93/13] to be interpreted as precluding national legislation or judicial practice based on national legislation, under which a district heating supplier has the right and – in so far as the interests of the customer so require – an obligation to unilaterally amend a price adjustment clause applied by the district heating supplier vis-à-vis end customers – which has been ineffective since the start of the contract or has been ineffective since a particular point in time thereafter – including during the ongoing supply relationship with effect for the future, if and to the extent that this ensures the clause is then effective?’
Procedure before the Court
[para_75]28 On 24 February 2025, the Court sent a request for information to the referring court asking it to state whether it was of the view that Glarner came within the concept of ‘consumer’ within the meaning of Article 2(b) of Directive 93/13 and, if so, to specify the legislative basis and/or basis in case-law on which that conclusion was reached.
[para_76]29 In its reply, received at the Court on 6 March 2025, the referring court stated that Glarner is ‘a consumer’ within the meaning of Article 2(b) of that directive, as implemented by Paragraph 13 of the Civil Code. The referring court also explained that recognition of the legal personality of civil law companies by case-law and by Paragraph 705(2) of the Civil Code after the entry into force of Directive 93/13 did not have the consequence of depriving those civil law companies of consumer protection under EU law, as long as they are acting for non-commercial purposes.
[para_77]30 Article 2(b) of Directive 93/13 defines the concept of ‘consumer’ as any natural person who, in contracts covered by that directive, is acting for purposes which are outside his or her trade, business or profession. It follows from that provision that two cumulative conditions must be satisfied in order for a person to come within the scope of that concept, namely that that person be a natural person and, moreover, that he or she is not acting for purposes relating to his or her trade, business or profession (see, to that effect, judgment of 2 April 2020, Condominio di Milano, via Meda , C‑329/19, EU:C:2020:263, paragraph 24, and order of 25 February 2026, Bytové družstvo , C‑168/25, EU:C:2026:136, paragraph 36).
[para_78]31 Status as a ‘consumer’ must be assessed by reference to a functional criterion, consisting in an assessment of whether the contractual relation at issue has arisen in the course of activities outside a trade, business or profession. It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that that directive defines the contracts to which it applies (judgment of 13 November 2025, Šiľarský , C‑197/24, EU:C:2025:876, paragraphs 45 and 46 and the case-law cited).
[para_79]32 Furthermore, in order to ensure compliance with the objectives pursued by the EU legislature in the sphere of consumer contracts, and the consistency of EU law, account must be taken, in particular, of the definition of ‘consumer’ in other rules of EU law, such as Directive 2011/83 which has the same objective as Directive 93/13 – to achieve a high level of consumer protection – and which contains a definition of that concept which is largely equivalent to that in Article 2(b) of Directive 93/13. Recital 13 of Directive 2011/83 makes clear that Member States may decide to extend the application of that directive to legal persons or to natural persons who are not consumers within the meaning of that directive (see, to that effect, judgment of 2 April 2020, Condominio di Milano, via Meda , C‑329/19, EU:C:2020:263, paragraph 34).
[para_80]33 However, it is apparent from the referring court’s reply referred to in paragraph 29 of the present judgment that German legislation and case-law extend the protection of Directive 93/13 to civil law companies such as Glarner and, moreover, that Glarner is acting, in the dispute in the main proceedings, for purposes which are outside its trade, business or profession. Therefore, that civil law company may be treated as a ‘consumer’ within the meaning of Article 2(b) of that directive.
Consideration of the questions referred
The first and second questions
[para_83]34 By its first and second questions, which can be examined together, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation or a national judicial practice under which a long-term energy supply contract continues to bind the parties after an unfair price adjustment clause used therein has been found to be void, provided that the terms of that contract are subject to supplementary interpretation in the sense that the consumer may rely on the ineffectiveness of price increases based on that clause only if he or she has challenged those increases within three years from receipt of the first annual account statement reflecting those increases.
[para_84]35 In the first place, it follows from Article 6(1) of Directive 93/13 that unfair terms used in a contract concluded with a consumer by a seller or supplier are not, as provided for under the applicable national law, to be binding on that consumer and that the contract is to continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.
[para_85]36 The objective of that provision is to substitute for the formal balance, established by the contract concerned, between the rights and obligations of the parties, real balance re-establishing equality between them, without cancelling all contracts containing unfair terms (see, to that effect, judgment of 23 November 2023, Provident Polska , C‑321/22, EU:C:2023:911, paragraph 81 and the case-law cited).
[para_86]37 Article 6(1) of Directive 93/13 does not itself set out the criteria governing the possibility of a contract ‘continuing in existence without the unfair terms’ but rather leaves it to the national legal order to determine those criteria in a manner consistent with EU law (see, to that effect, judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract) , C‑630/23, EU:C:2025:302, paragraph 53 and the case-law cited).
[para_87]38 Under that provision, a contract must, in principle, continue in existence without any amendment other than that resulting from the deletion of the unfair terms, as long as, in accordance with the rules of domestic law, that is legally possible according to an objective approach. Accordingly, the situation of one of the parties to that contract cannot be regarded as the decisive criterion determining the fate of the contract (see, to that effect, judgments of 23 November 2023, Provident Polska , C‑321/22, EU:C:2023:911, paragraphs 81 and 82, and of 30 April 2025, AxFina Hungary (Continued existence of the contract) , C‑630/23, EU:C:2025:302, paragraph 58).
[para_88]39 The finding, by the competent court, that a contractual term is unfair must, in any event, make it possible to restore the legal and factual situation of the consumer in the absence of such an unfair term. Unless the objective determination of the consequences to be drawn, in accordance with national law, from such a finding as regards the continuation, or otherwise, of the contract of which it forms part leaves no discretion or room for interpretation to the national court, that court cannot conclude that that contract is null and void if it is possible to restore the consumer’s legal and factual situation as it would have been in the absence of that unfair term whilst allowing that contract to continue in existence (see, to that effect, judgment of 23 November 2023, Provident Polska , C‑321/22, EU:C:2023:911, paragraphs 83 and 86 and the case-law cited).
[para_89]40 In the event that the invalidity of an unfair term requires the national court to declare the contract as a whole to be void, thereby exposing the consumer to particularly unfavourable consequences, so that the consumer would thus be penalised, Article 6(1) of Directive 93/13 does not preclude that court from replacing that unfair term with a supplementary provision of domestic law or a provision applicable where the parties to the contract at issue so agree (see, to that effect, judgment of 16 March 2023, M.B. and Others (Effects of the invalidation of a contract) , C‑6/22, EU:C:2023:216, paragraph 55 and the case-law cited).
[para_90]41 However, that provision precludes gaps in a contract caused by the invalidity of unfair terms used therein from being filled solely on the basis of national provisions of a general nature which have not been subject to a specific assessment by the legislature with a view to establishing a balance between all the rights and obligations of the parties to a contract and, as a result, are not covered by the presumption that they are not unfair. The same is true for national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree (see, to that effect, judgment of 16 March 2023, M.B. and Others (Effects of the invalidation of a contract) , C‑6/22, EU:C:2023:216, paragraph 56 and the case-law cited).
[para_91]42 In the second place, it follows from Article 7(1) of Directive 93/13 that consumers must have, in their respective national legal systems, ‘adequate and effective means … to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’.
[para_92]43 That provision precludes national courts from substituting a judicial interpretation for an unfair term. Those courts are required to disapply an unfair contractual term so that it does not have binding effects on the consumer, without being empowered to revise its content (see, to that effect, judgment of 8 September 2022, D.B.P. and Others (Mortgage loans denominated in foreign currency) , C‑80/21 to C‑82/21, EU:C:2022:646, paragraphs 79 and 80).
[para_93]44 If it were open to the national court to revise the content of unfair terms used in contracts concluded between sellers or suppliers and consumers, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect on sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be modified, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgment of 30 April 2025, AxFina Hungary (Continued existence of the contract) , C‑630/23, EU:C:2025:302, paragraph 57 and the case-law cited).
[para_94]45 In the present case, first, it is apparent from the request for a preliminary ruling that, under the ‘three-year rule’, the consumer cannot rely on the ineffectiveness of the price increases if he or she has not challenged them within three years from receipt of the annual statements in which those increases were first implemented. Thus, each price increase is definitively obtained by the energy supplier three years after the consumer was informed thereof by means of a statement and failed to challenge it. Therefore, it appears that, contrary to the requirements recalled in the two preceding paragraphs of the present judgment, the application of that rule maintains, to the detriment of the consumer, save in the three years preceding such a challenge, the effects of price adjustment clauses which have been declared unfair.
[para_95]46 Secondly, regarding the continued existence of the contract without those unfair terms, it is for the referring court to determine in the light of the case-law recalled in paragraphs 38 to 40 of the present judgment whether the interpretation of Paragraph 306(3) of the Civil Code adopted by the Bundesgerichtshof (Federal Court of Justice) enables the court hearing the matter to assess the effects of declaring the contract void for the contracting parties, without those effects on their own being decisive, and to assess whether there are any particularly unfavourable consequences for the consumer in the event that that contract is declared void.
[para_96]47 That court will, inter alia, have to verify whether, as observed by the Commission at the hearing, the right to reimbursement of part of the payments made by Glarner, based on the provisions of German law in the field of unjust enrichment, excludes such unfavourable consequences for that consumer in the event that the contract at issue in the main proceedings should be declared void following the invalidation of the price adjustment clause used therein.
[para_97]48 Thirdly, it is apparent from the request for a preliminary ruling that the case-law of the Bundesgerichtshof (Federal Court of Justice) recalled in paragraph 20 of the present judgment is based on Paragraphs 133 and 157 of the Civil Code which lay down the general rules of interpretation of declarations of intent and of contracts.
[para_98]49 Subject to the checks to be carried out by the referring court, those provisions, in so far as they are similar to the national provisions of a general nature referred to in paragraph 41 of the present judgment, do not make it possible to address the consequences resulting from the unfair price adjustment clause used in the contract at issue in the main proceedings being declared void.
[para_99]50 It is also apparent from the request for a preliminary ruling, as well as from the written observations of the German Government and the views expressed at the hearing, that, if the consumer is informed that the case-law on supplementary interpretation of the contract will be applied and of its consequences, the consumer can neither object to that application nor request that the contract be annulled in its entirety.
[para_100]51 For the purposes of assessing the consequences for the consumer of a contract being annulled in its entirety or of the deletion of an unfair term, the wishes expressed by the consumer in that regard are the decisive factor (see, to that effect, judgment of 3 October 2019, Dziubak , C‑260/18, EU:C:2019:819, paragraph 56).
[para_101]52 It follows from all of the foregoing that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation or a national judicial practice under which a long-term energy supply contract continues to bind the parties after an unfair price adjustment clause used therein has been found to be void, provided that the terms of that contract are subject to supplementary interpretation in the sense that the consumer may rely on the ineffectiveness of price increases based on that clause only if he or she has challenged those increases within three years from receipt of the first annual account statement reflecting those increases.
The third question
[para_103]53 By its third question, the referring court asks, in essence, whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation or a national judicial practice which enables or requires sellers or suppliers to make unilateral changes, with future effect, to a price adjustment clause used in an energy supply contract where that clause has been declared void due to its unfair nature.
[para_104]54 At the outset, it should be determined whether, as claimed by SVB and the German Government in their written observations, the right to make unilateral changes to a price adjustment clause that is conferred on sellers and suppliers reflects a mandatory statutory or regulatory provision within the meaning of Article 1(2) of Directive 93/13.
[para_105]55 Under that provision, the contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the European Union are party, particularly in the transport area, are not to be subject to the provisions of that directive.
[para_106]56 Having regard to the objective of that directive, which is to protect consumers against unfair terms used in contracts concluded with a seller or supplier, Article 1(2) of that directive is to be strictly construed (see, to that effect, judgment of 12 February 2026, PKO BP (Critical benchmark) , C‑471/24, EU:C:2026:85, paragraph 69 and the case-law cited).
[para_107]57 In addition, the exclusion established by that provision is justified by the fact that it is, in principle, legitimate to presume that the national legislature has struck a balance between all the rights and obligations of the parties to certain contracts, a balance which the EU legislature expressly intended to preserve. Moreover, the fact that such a balance has been struck by the national legislature does not constitute a condition for the application of the exclusion laid down by that provision, but the justification for such an exclusion (see, to that effect, judgment of 30 May 2024, Raiffeisen Bank , C‑176/23, EU:C:2024:443, paragraph 24 and the case-law cited).
[para_108]58 In order for a contractual term to ‘reflect’ a mandatory statutory or regulatory provision within the meaning of Article 1(2) of Directive 93/13, read in the light of the thirteenth recital thereof, that term must reproduce the normative content of a mandatory provision applicable to the relevant contract so that it may be regarded as expressing in concrete terms the same legal rule as that envisaged in that mandatory provision. That is the case not only where the contractual term corresponds verbatim to the mandatory provision or contains an express reference to that mandatory provision, but also where that term, although expressed in different terms, is substantively equivalent to that mandatory provision (see, to that effect, judgment of 6 July 2023, First Bank , C‑593/22, EU:C:2023:555, paragraph 25).
[para_109]59 In the present case, it is for the referring court to carry out the necessary assessments, taking into consideration, inter alia, the nature, general scheme and terms of the energy supply contract at issue in the main proceedings and its legal and factual context, in order to determine whether the right that is conferred on the energy supplier to make unilateral changes to the price adjustment clause at issue in the main proceedings reflects, within the meaning of Article 1(2) of Directive 93/13, Paragraph 24(4) of the Regulation on general terms and conditions for the supply of district heating.
[para_110]60 However, it is apparent from the request for a preliminary ruling that Paragraph 24(4), which SVB and the German Government claim is ‘a mandatory regulatory provision’ within the meaning of Article 1(2) of that directive, contains general requirements in relation to the conditions which must be satisfied by price adjustment clauses in order to take into account ‘in an appropriate manner’ the evolution of costs connected to the generation and supply of district heating by the undertaking, as well as market conditions. Moreover, Paragraph 24(4) does not require that the agreed price be adjusted after an unfair price adjustment clause has been declared void.
[para_111]61 In those circumstances, subject to the checks to be carried out by the referring court, Paragraph 24(4) of the Regulation on general terms and conditions for the supply of district heating does not appear capable of being characterised as a ‘mandatory regulatory provision’ within the meaning of Article 1(2) of that directive.
[para_112]62 Furthermore, in order to assess the validity of a term allowing the seller or supplier unilaterally to change the price for the supply of energy, it is essential to determine whether the standard form contract signed by the consumer sets out in transparent fashion the reason for and method of the variation of that price, so that that consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to that price. While the level of information required may vary according to the particular circumstances of the case and the goods or services concerned, the lack of information on the point before the contract is concluded cannot, in principle, be compensated for by the mere fact that consumers will, during the performance of the contract, be informed in good time of a variation of the charges and of their right to terminate the contract if they do not wish to accept the variation (see, to that effect, judgment of 21 March 2013, RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraphs 49 and 51).
[para_113]63 In the light of the foregoing, Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding national legislation or a national judicial practice which enables or requires an energy supplier to make unilateral changes, with future effect, to a price adjustment clause which has been declared void due to its unfair nature.
Costs
[para_115]64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
[para_117]1. Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
[para_118]must be interpreted as precluding national legislation or a national judicial practice under which a long-term energy supply contract continues to bind the parties after an unfair price adjustment clause used therein has been found to be void, provided that the terms of that contract are subject to supplementary interpretation in the sense that the consumer may rely on the ineffectiveness of price increases based on that clause only if he or she has challenged those increases within three years from receipt of the first annual account statement reflecting those increases.
2. Article 6(1) and Article 7(1) of Directive 93/13
[para_120]must be interpreted as precluding national legislation or a national judicial practice which enables or requires an energy supplier to make unilateral changes, with future effect, to a price adjustment clause which has been declared void due to its unfair nature.
[para_121][Signatures]
[para_122]* Language of the case: German.