Information duties on price calculation in electricity supply contracts (CJEU C-518/23, new)

The energy consumers are entering a new era of digitalisation in the energy market, and as a result, gaining access to innovative offers and services that were before non-existent to households. Supported by technologies such as smart meters, the legislative reforms in the Electricity Market Directive enable consumers and suppliers to design offers in various ways, including fixed or variable prices, a single offer covering the entire household’s consumption, or multiple offers or multiple suppliers tailored to specific appliances. While the technology empowers consumers to access this variety of offers, it also increases complexity in the manner prices are offered and calculated, which might challenge consumer protection, when it results, for instance, in misleading omissions. The case C-518/23, NEW concerns an invitation to purchase. NEW displays a calculator on their webpage to inform consumers about the electricity price offer, which may vary according to consumption patterns. However, the calculator does not consider a so-called ‘compensatory amount’, a mechanism in which Distribution System Operators (DSOs) charge suppliers for the portion of electricity consumed during off-peak hours that is not for heating purposes. Is this a misleading omission in an invitation to purchase? This article is structured in the following way. Section II. is devoted to contextualising the case within the legal reforms of the Electricity Market Directive in 2019 and 2024, with particular attention to the aim of empowering and protecting consumers during the digital and green transitions in the electricity sector. Section III. provides a reconstruction of the factual, legal, and procedural background of the case. Section III. focuses on the reasoning of the Court, which offered an interpretation of Articles 7(1) and 7(4)(c) of the UCPD. Section IV. dives into the critical assessment of the case, which is subdivided in three claims: (i) the relevance of the decision in a context of increasing complexity of offers, price calculation, and billing in the electricity market; (ii) the degree of material information required and the manner in which consumers must be informed; and (iii) the concept of the ‘average consumer’ and the potential overreach of the ‘homo oeconomicus’ standard. Section V. concludes.