Judgment;Summary — ECLI:EU:C:2025:35
Date: 2025-01-23
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-518/23 – 1 
Case C-518/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
10 August 2023 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
27 July 2023 
Applicant and appellant in the appeal on a point of law: 
Bundesverband der Verbraucherzentralen und 
Verbraucherverbände – Verbraucherzentrale Bundesverband e. V. 
Defendant and respondent in the appeal on a point of law: 
NEW Niederrhein Energie und Wasser GmbH 
  
Subject matter of the main proceedings 
Consumer protection – Advertising – Electricity price – Directive 2005/29/EC – 
Articles 7(1) and (4)(c) – Information on the manner in which the price is 
calculated 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Must the information to be provided by the trader pursuant to Article 7(1) and 
(4)(c) of Directive 2005/29/EC on the manner in which the price is calculated in a 
pricing system which depends on consumption be such that the consumer can, on 
the basis of the information provided, make an independent calculation of the 
price if he or she knows his or her consumption? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-518/23 
 
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Provisions of European Union law relied on 
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 
2005 concerning unfair business-to-consumer commercial practices in the internal 
market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 
98/27/EC and 2002/65/EC of the European Parliament and of the Council and 
Regulation (EC) No 2006/2004 of the European Parliament and of the Council 
(‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), corrigendum 
OJ 2009 L 253, p. 18), in particular Article 7(1) and (4)(c) 
Provisions of national law 
Gesetz gegen den unlauteren Wettbewerb (Law against Unfair Competition; ‘the 
UWG’), in particular Paragraph 5a(1) and Paragraph 5b(1) No 3 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is the umbrella organisation of the 16 consumer organisations in 
Germany. The defendant is an energy supply company active throughout 
Germany that supplies electricity to private households, including customers who 
purchase heating current for night storage heaters. During off-peak hours at night, 
the defendant offers its electricity to those customers at a low tariff. This tariff is 
more favourable than the high tariff applicable during other hours. Customers 
equipped with night storage heaters use low-tariff electricity to load their heaters. 
2 Depending on local conditions, the consumption of heating current and general-
purpose electricity of these customers is measured separately or jointly. In the 
case of joint measurement, a two-part tariff meter with two disk drives is used. 
One disk drive measures electricity consumption during low-tariff off-peak times 
and the other measures electricity consumption during the other, high-tariff hours. 
However, as well as heating current, general-purpose electricity is also provided 
during the times when the low tariff applies, which cannot be measured 
separately. Some distribution system operators therefore impose a ‘compensatory 
amount’ on electricity suppliers, by which, on flat-rate basis, part of the electricity 
consumption measured at the low tariff is invoiced according to the high tariff. 
The defendant passes on to its customers the compensatory amount imposed by 
the system operators. The local system operator where the defendant has its 
registered office imposes a compensatory amount of 25% on the defendant. 
3 In its general terms and conditions, which the customer must confirm by clicking 
when making an online order, the defendant states that the local system operator 
determines the off-peak hours and the compensatory amount. It also indicates the 
off-peak hours and the period of validity of the low tariff that have been set by the 
local system operator where the defendant has its registered office and designates 
25% as the compensatory amount set by that system operator. 
NEW NIEDERRHEIN ENERGIE UND WASSER GMBH 
 
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4 On its website, the defendant offers a tariff calculator for its electricity tariffs, 
which can also be used by customers who purchase heating current and have a 
two-part tariff meter. In the tariff calculator, they must enter their postcode and 
their consumption volumes in the high and the low tariffs. At the end of the 
transaction, customers receive a tariff offer which they can accept. 
5 The applicant objects to the tariff proposals generated by the defendant using its 
tariff calculator. It argues that the total price indicated is too low because it does 
not take account of the compensatory amount. 
6 The applicant has applied for the defendant to be ordered to desist, inter alia, from 
advertising or having advertised an offer for heating current and, throughout the 
entire ordering process, from failing to indicate or have indicated to the consumer 
the specific amount of compensation in the method it uses to invoice heating 
current when heating current and household electricity are measured jointly with a 
two-part tariff meter (‘application for a prohibitory injunction’). 
7 By its application for a prohibitory injunction, the applicant challenges the 
defendant’s advertising on its website, containing an offer for heating current 
without any express reference to the specific compensatory amount in the method 
used to invoice heating current. At no point in the ordering process is there any 
reference to the applicable compensatory amount as a percentage. It is only in the 
defendant’s general terms and conditions that reference is made to the flat-rate 
compensation percentage between the low tariff and the high tariff, namely 25%. 
The defendant does not inform the consumer, in the context of the ordering 
process which includes the use of the tariff calculator, of the percentage of the 
compensatory amount imposed by the system operator and passed on by it for the 
postcode specifically entered by the customer. 
8 The Landgericht (Regional Court, Germany) dismissed the action. The 
Oberlandesgericht (Higher Regional Court, Germany) dismissed the applicant’s 
appeal against that decision. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The application for a prohibitory injunction must be granted where the 
information to be provided by the defendant in accordance with Paragraph 5a(1) 
and Paragraph 5b(1) No 3 of the UWG (Article 7(1) and (4)(c) of Directive 
2005/29) on the manner in which the price is calculated must include, by way of 
‘material information’, the percentage of the compensatory amount applicable to 
the customer concerned. 
10 Under Paragraph 5a(1) of the UWG, a person acts unfairly by misleading a 
consumer or other market participant by withholding from him or her material 
information, (No 1) which the consumer or other market participant requires, 
depending on the circumstances, to take an informed transactional decision, and 
(No 2) the withholding of which is likely to cause the consumer or other market 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-518/23 
 
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participant to take a transactional decision that he or she would not have taken 
otherwise. Under Paragraph 5a(3) of the UWG, when assessing whether material 
information has been withheld, consideration is to be given to the following: 
(No 1) the limitations of space or time imposed by the medium used to 
communicate the commercial practice, and (No 2) any measures taken by the 
trader to make the information available to consumers or other market participants 
by means other than by the medium used to communicate the commercial 
practice. Those rules constitute a transposition of Article 7(1) to (3) in conjunction 
with Article 2(k) of Directive 2005/29. 
11 Where goods or services are offered with reference to their characteristics and 
price in such a manner appropriate to the medium of communication used that an 
average consumer can conclude the transaction, Paragraph 5b(1) of the UWG lists 
the information that is regarded as material within the meaning of Paragraph 5a(1) 
of the UWG if it is not already apparent from the circumstances. This provision 
transposes Article 7(4) in conjunction with Article 2(i) of Directive 2005/29. 
Under Paragraph 5b(1) No 3 of the UWG, that information includes the total price 
or in cases where on account of the nature of the goods or services such a price 
cannot be calculated in advance, the manner in which the price is calculated and, 
where appropriate, all additional freight, delivery or postal charges or, where those 
costs cannot be calculated in advance, the fact that such additional costs may be 
payable. That provision has its origin in Article 7(4)(c) of Directive 2005/29. 
12 The supply of electricity which the defendant advertises vis-à-vis consumers is 
offered in such a manner in accordance with Paragraph 5b(1) of the UWG that an 
average consumer can conclude the transaction. 
13 When transposing Article 7(4) of Directive 2005/29, the German legislature 
chose, rather than the concept of ‘invitation to purchase’ used in that directive, the 
definition that goods or services are offered in such a manner that the average 
consumer is in a position to conclude the transaction. According to a directive-
compliant interpretation of Paragraph 5b(1) of the UWG, as required by this 
transposition, the existence of an invitation to purchase within the meaning of 
Article 7(4) of Directive 2005/29 is sufficient to constitute an offer within the 
meaning of this provision. According to the case-law of the Court, that is the case 
as soon as the information on the product advertised and its price is sufficient for 
the consumer to be able to take a transactional decision, without it being necessary 
for the commercial communication also to offer an actual opportunity to purchase 
the product or for it to appear in connection with such an opportunity (see 
judgment of the Court of 12 May 2011, Ving Sverige, C-122/10, EU:C:2011:299, 
paragraph 33). Under Article 2(k) of Directive 2005/29 (Paragraph 2(1) No 1 of 
the UWG), a transactional decision includes any decision by a consumer 
concerning whether, how and on what terms to purchase; according to the case-
law of the Court, this also includes the decision directly related to that decision, in 
particular the decision to enter a shop (see judgment of 19 December 2013, Trento 
Sviluppo and Centrale Adriatica, C-281/12, EU:C:2013:859, paragraph 36) and, 
in the view of the referring court, visiting an online sales portal. 
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14 The defendant’s contested advertising constitutes an invitation to purchase and 
therefore an offer within the meaning of Paragraph 5b(1) of the UWG. When 
using the defendant’s tariff calculator, the consumer receives the material 
information he or she requires in order to take the transactional decision to 
conclude an electricity supply contract with the defendant. The defendant’s 
website even allows the consumer to conclude a contract for the supply of 
electricity directly with it on the basis of the result of the tariff calculation. Since 
the relevant transactional decision is already located in the beginning of the 
ordering process, the reference in the defendant’s general terms and conditions to 
the compensatory amount which it brings to the consumer’s attention during that 
ordering process is not capable, if only for temporal reasons, of fulfilling the 
defendant’s obligation to provide information. 
15 In the case in dispute, the defendant must therefore in principle provide, as soon as 
the invitation to purchase is made, information on the manner in which the price is 
calculated in accordance with Article 7(1) and (4)(c) of Directive 2005/29 
(Paragraph 5a(1) and Paragraph 5b(1) No 3 of the UWG). 
16 Due to the nature of the product, the (total) price for the supply of electricity 
cannot be calculated in advance, as it depends on the amount of electricity actually 
consumed. The amount of electricity actually consumed may differ from the 
amount of electricity which the consumer enters in the defendant’s tariff 
calculator. 
17 In the case in dispute, the question cannot be answered without doubt whether the 
information to be provided under Article 7(1) and (4)(c) of Directive 2005/29 
(Paragraph 5a(1) and Paragraph 5b(1) No 3 of the UWG) on the manner in which 
the price is calculated in a pricing system which depends on consumption must be 
such that the customer can, on the basis of the information provided, make an 
independent calculation of the price if he or she knows his or her consumption. 
18 It is clear from the case-law of the Court that the manner in which the price is 
calculated includes the detailed rules for calculating the final price as well as, 
where appropriate, the additional charges or the fact that additional charges are 
payable (see judgement of 12 May 2011, Ving Sverige, C-122/10, EU:C:2011:299, 
paragraph 65). To this extent, the national court is required to examine whether 
the omission of the detailed rules for calculating the final price prevents the 
consumer from taking an informed transactional decision and, consequently, leads 
him or her to take a transactional decision which he or she would not otherwise 
have taken. It is also for the national court to take into consideration the 
limitations forming an integral part of the medium of communication used; the 
nature and the characteristics of the product and the other measures that the trader 
has actually taken to make the information available to consumers (see judgments 
of 12 May 2011, Ving Sverige, C-122/10, EU:C:2011:299, paragraphs 65 to 72, 
and of 26 October 2016, Canal Digital Danmark, C-611/14, EU:C:2016:800, 
paragraphs 58 and 62 to 64). 
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19 The consumer requires information on the specific percentage of the 
compensatory amount in order to take an informed decision and the withholding 
of that information is likely to lead him or her to take a transactional decision that 
he or she would not have taken otherwise. 
20 The conditions laid down in Paragraph 5a(1) Nos 1 and 2 of the UWG 
(Article 7(1) of Directive 2005/29) that the consumer requires the information 
withheld from him or her, depending on the circumstances, to take an informed 
decision and that the withholding of that information is likely to cause the 
consumer to take a transactional decision that he or she would not have taken 
otherwise, constitute additional elements which must be examined independently. 
21 Some distribution system operators impose a compensatory amount on electricity 
suppliers. The percentage of the compensatory amount therefore depends on the 
system operator’s decision. In addition, on appeal on a point of law, it is 
appropriate to rely, in favour of the applicant, on its disputed assertion that not all 
electricity suppliers pass on to customers the compensatory amount imposed by 
the system operator. It follows that the other conditions of Paragraph 5a(1) Nos 1 
and 2 of the UWG are fulfilled in the case in dispute, since only the percentage of 
the compensatory amount taken into account by the defendant in calculating the 
price makes it possible to compare the defendant’s offer with that of other 
electricity suppliers. Moreover, that is also the case even if all electricity suppliers 
pass on the compensatory amount imposed by the system operator to customers in 
the same way, since there may be two competing offers, one of which has a more 
advantageous price in the low tariff and the other a more advantageous price in the 
high tariff. Which offer is more advantageous for the consumer then (also) 
depends on the percentage of the compensatory amount. 
22 It has not been established, nor is it evident that the defendant, which advertises 
on its website by including a tariff calculator, is subject to restrictions as a result 
of the means of communication which it uses. 
23 The case in dispute raises the question, which cannot be answered without doubt, 
as to how the criterion of ‘the manner in which the price is calculated’ within the 
meaning of Article 7(1) and (4)(c) of Directive 2005/29 (Paragraph 5a(1) and 
Paragraph 5b(1) No 3 of the UWG) is to be interpreted. The question referred for 
a preliminary ruling seeks clarification of whether the information which the 
trader must provide on the manner in which the price is calculated in a pricing 
system which depends on consumption must be such that the customer can, on the 
basis of the information provided, make an independent calculation of the price if 
he or she knows his or her consumption. 
24 The wording ‘the manner in which the price is calculated’ allows an interpretation 
to the effect that it is sufficient for the trader merely to provide general 
information on the elements relevant for the calculation of the price and on the 
details of the price calculation. In so far as the Court has held that the obligation to 
provide information on the manner in which the price is calculated also applies to 
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the details of the calculation of the final price (see judgment of the Court of 
12 May 2011, Ving Sverige, C-122/10, EU:C:2011:299, paragraph 65), this also 
does not preclude such an interpretation from the outset. 
25 The objective of Directive 2005/29, consisting in ensuring a high level of 
consumer protection (see recitals 5 and 6 and Article 1 of Directive 2005/29; 
judgment of 26 October 2016, Canal Digital Danmark, C-611/14, 
EU:C:2016:800, paragraphs 25 et seq. and 62), might support the idea that the 
information must enable the consumer to calculate the price. However, no further 
clarification of the concept of ‘the manner in which the price is calculated’ can be 
found in Directive 2005/29. 
26 The legislative context of Article 7(4)(c) of Directive 2005/29 could also militate 
against the assumption that a general reference to a compensatory amount to be 
taken into account is sufficient. As regards the additional freight, delivery or 
postage charges which cannot reasonably be calculated in advance, it is sufficient 
in accordance with that legislative context to state that such additional charges 
may be payable. However, that part of the provision does not relate to information 
on the manner in which the price is calculated (see Opinion of Advocate General 
Mengozzi in Citroën Commerce, C-476/14, EU:C:2015:814, paragraph 73). This 
could indicate that more detailed information is necessary in this respect. The 
dispute does not concern additional costs, but the details of the calculation of the 
final price. 
27 The referring court notes, in addition, that the withholding of information 
presupposes that the information falls within the trader’s field of business and 
responsibility or that the trader is in a position to obtain that information by 
making reasonable efforts. This takes into account that information obligations 
limit the freedom to conduct a business (Article 16 of the Charter of Fundamental 
Rights of the European Union) and therefore must be proportionate. It is true that 
Article 7(3) of Directive 2005/29 only lays down provisions on limitations of 
space and time of the communication medium used by the trader, but not on the 
availability or obtaining of the information. Were that aspect to be disregarded 
entirely, however, the trader would, in such cases, have to refrain from such 
advertising in the form of an invitation to purchase and have recourse to other 
forms of advertising. However, the Court of Appeal, as the court hearing the 
substance of the case, did not find that it would be impossible for the defendant to 
obtain information on the percentages of the compensatory amount. It is true that, 
in the judgment on appeal, it stated that it was not possible for the defendant to 
indicate a specific compensatory amount, but there were no findings as to the 
burden that would be imposed on the defendant to compile the compensatory 
percentages in a database, in so far as it was already aware of them, and to 
supplement the compensatory percentages of which it was not yet aware by 
consulting the distribution system operators concerned and to keep the 
information up-to-date.