THE BOTTOM LINE
- Explicit Consent is King: Businesses, particularly in the utility sector, cannot assume a new property owner wants their service, even if consumption is occurring. Dutch consumer law requires clear, affirmative action from the consumer to establish a payment obligation.
- “Unjust Enrichment” Is No Silver Bullet: Relying on the legal principle of “unjust enrichment” to claim payment from a consumer for unsolicited services is a failing strategy. Specific consumer protection laws can override this general principle.
- Operational Risk: This ruling highlights a significant operational risk. Companies must have robust procedures to detect service consumption without a valid contract and must act decisively to either formalize an agreement or cease the service to prevent financial losses.
THE DETAILS
A Dutch grid operator recently learned a costly lesson about the strength of consumer protection laws. The company supplied electricity and gas to a residential property for over six months without an active contract after the previous agreement was terminated. When it discovered the new owner had been consuming energy, it sued him for damages of over €7,600, arguing that he had been “unjustly enriched”. The operator believed that since the owner benefited from the energy, he should be legally required to pay for it. The court, however, saw things very differently.
The case was decided on a powerful piece of Dutch consumer legislation: Article 7:7 of the Civil Code. This provision explicitly protects consumers from having to pay for unsolicited goods and services. The court emphasized that for essential utilities like electricity and gas, this rule still applies. The burden of proof was placed squarely on the grid operator to demonstrate that the new property owner had affirmatively requested the energy supply for the period in question. Simply failing to refuse the service is not considered acceptance under the law.
The grid operator’s arguments ultimately fell short. It pointed out that the owner eventually did sign an energy contract, suggesting he must have intended to use the service all along. The court dismissed this, stating that the new contract only created an obligation from the date it was signed, not retroactively. Citing the legislative history, the court noted that a new resident must take a clear, positive step—such as formally taking over an old contract or signing a new one—to signal their desire for the service. Without such proof for the disputed period, the energy was legally classified as an unsolicited supply, leaving the operator unable to recover its costs.
SOURCE
Source: Rechtbank Midden-Nederland
