According to the Universal Service Directive, subscribers to electronic communication services have the right to withdraw from their contract without penalty upon notice of modification to the conditions of the contract.

The standard terms and conditions of A1 Telekom Austria state that subscribers may not withdraw from their contract where the charges are adjusted in accordance with an objective annual consumer price index compiled by the Austrian Institute for Statistics (Statistik Österreich).

Against that background, the Austrian Supreme Court wanted to know whether such an adjustment in charges constitutes a modification to the conditions of the contract within the meaning of the directive which, if so, would give subscribers the right to withdraw from their contract.

In the judgment C-326/14 of November 26, 2015, the Court of Justice holds that that is not the case.

According to the Court, the EU legislature recognised that undertakings providing electronic communication services may have a legitimate interest in being able to adjust the prices and charges for their services.

The Court notes, in addition, that the term at issue contained in A1 Telekom Austria’s standard terms and conditions provides for an adjustment of charges in accordance with changes in an objective annual consumer price index compiled by a public institution.

A price adjustment clause thus provided for, which is based on a clear, comprehensive and easily accessible method of indexation, resulting from State decisions and mechanisms, does not place end-users in a contractual situation any different from that which arises from a contract formed by standard terms and conditions that contain such a price adjustment.

Consequently, where such a change in charges occurs, that change cannot be characterised as a modification to the conditions of the contract.