Should EU Consumer Law Be Used to Close a Presumed Enforcement Gap Under EU Competition Law? The Unintended Consequences of Invitel and RWE Vertrieb

With two recent preliminary rulings regarding the interpretation to be given to a consumer contract term that allows the supplier in a contract of indeterminate duration unilaterally to alter the tariffs, the European Court of Justice has imposed an acceleration on the enforcement of EU rules against unfair terms in consumer contracts, which might turn out to be in stark contrast with the long-established, cautious approach towards allegations of excessive prices under competition law. Specifically, in its rulings in Invitel and RWE Vertrieb, the Court imposed what appears to be an unworkable disclosure obligation, which, in practice, rules out the option unilaterally to amend the price in contracts of indeterminate duration. This is so regardless of whether the consumer is given the right to terminate the contract. In this respect, the requirement that the right of termination can actually be exercised appears to be far too onerous in comparison with the prevailing treatment of alleged excessive prices under art.102 TFEU