Jasmin Solar Pty Ltd and Diamond Energy Pty Ltd - s.87B undertaking

The ACCC considered that in the absence of the Undertaking, the Notified Conduct would be likely to result in detriment to the public that would exceed the likely benefit to the public.

The objective of the Undertaking is to:

(i)            address the ACCC's concerns that Jasmin Solar Customers may be exposed to prices significantly in excess of the prices that they would be free to obtain in the absence of the Notified Conduct;

(ii)          address the ACCC’s concerns that Jasmin Solar Customers may be exposed to other risks as a result of the Notified Conduct during the 16 Year Term of their agreements with Jasmin Solar; and

(iii)         ensure, to the greatest extent possible, that the potential benefits of the Notified Conduct continue to outweigh the potential detriments associated with the Notified Conduct for the duration of the 16 Year Term of the agreements between Jasmin Solar and its customers.  

The Undertaking addresses the ACCC’s concerns by:

(i)            requiring the Jasmin Solar Energy Retailer (Diamond Energy) to supply electricity to Jasmin Solar Customers at prices that are reflective of those that would be available to those customers in the absence of the Notified Conduct; 

(ii)          requiring Jasmin Solar to obtain ACCC approval in the event that Jasmin Solar wants another entity or person to become an energy retailer supplying electricity to Jasmin Solar Customers, which may include that entity or person giving a section 87B undertaking to the ACCC, including in the event that Diamond Energy is replaced as the Jasmin Solar Energy Retailer; 

(iii)         requiring Jasmin Solar to comply with the retailer pricing commitments if Jasmin Solar replaces the Jasmin Solar Energy Retailer as an energy retailer supplying electricity to some or all Jasmin Solar Customers;

(iv)         requiring Jasmin Solar to obtain ACCC approval in the event that a Change of Control of Jasmin Solar's business to another person or entity is expected to occur before the withdrawal of the Undertaking in accordance with clause 4.1, which may include that entity or person giving a section 87B undertaking to the ACCC;

(v)          requiring Jasmin Solar to provide Jasmin Solar Customers with a minimum three year retail warranty on the Solar System and in some circumstances, assisting Jasmin Solar Customers in making warranty claims outside of this period where the Jasmin Solar Customer has consumer guarantee rights under the Australian Consumer Law or rights under a manufacturer's warranty;

(vi)         preventing Jasmin Solar from requiring Jasmin Solar Customers to pay contract termination fees (the Termination Amount) if the Solar System fails during the period under which the Jasmin Solar Customer has consumer guarantee rights  under the Australian Consumer Law or rights under a manufacturer's warranty for any reason other than wilful action, neglect or negligence by the Jasmin Solar Customer; 

(vii)        providing an effective dispute resolution mechanism in the event of a dispute between Jasmin Solar and a Jasmin Solar Customer relating to the payment of the Termination Amount; 

(viii)      requiring Jasmin Solar and the Jasmin Solar Energy Retailer to inform customers of their rights arising from the obligations contained in the Undertaking; and

(ix)         providing effective oversight of Jasmin Solar's and the Jasmin Solar Energy Retailer's compliance with the Undertaking.