The III Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for legal disputes on telecommunications service contracts, had to decide on the following facts:
The Federal Association of Consumer Centres and Consumer Organisations (Bundesverband der Verbraucherzentralen und Verbraucherverbände e. V.) objected, inter alia, to three clauses of the General Terms and Conditions used by the defendant - a telecommunications company - in contracts with consumers for mobile telephone services.
The clauses objected to include the following three clauses still at issue in the appeal proceedings:
"7. use by third parties
...
7.2 The customer shall also pay the prices incurred by .... unauthorised use of the provided services by third parties if and to the extent that the customer is responsible for such use.
7.3 After the loss of the ... card, the customer shall only pay the connection charges that have accrued up to the receipt of the notification of the loss of the card by .... The same applies to prices for services to which ... provides access.
7.4
...
11.Default
...
11.2 If the customer is in arrears with payment obligations of at least € 15.50, ... may block the mobile telephone connection at the customer's expense."
The Regional Court of Cologne (LG Köln) ordered the defendant to cease and desist from using these clauses as requested.
On the appeal of the defendant, the Court of Appeal (OLG Köln) amended the judgement of the Regional Court and dismissed the action with regard to the claim for injunctive relief concerning Nos. 7.2 and 7.3. The Court of Appeal dismissed the further appeal. With the appeal admitted by the Court of Appeal, the plaintiff continued to pursue its claim for injunctive relief with regard to clauses no. 7.2 and 7.3 and the defendant continued to pursue its claim for dismissal of the action with regard to clause no. 11.2. Both appeals were unsuccessful.
In the opinion of the Federal Supreme Court, the plaintiff's appeal was unfounded because clauses no. 7.2. and 7.3. of the General Terms and Conditions used by the defendant withstand a content review. The Federal Court of Justice considered them to be provisions on remuneration and, on this basis, did not find any unreasonable disadvantage for the defendant's customers. The provision of mobile telephony services is a virtually completely mechanised, anonymous mass business. The defendant has no knowledge of the specific person calling up the mobile telephony service. Therefore, the defendant cannot assess whether the request for the mobile telephony service is made with the customer's consent. It must be able to rely on the customer taking the necessary precautions when using his mobile phone to prevent unauthorised persons from gaining access to mobile services. Requiring the mobile phone customer to do everything in his power to prevent unauthorised use by third parties does not put him at an unreasonable disadvantage. A different question is how the duties of care incumbent on the customer in his sphere of risk are constituted in detail. The special risks, for example with regard to the loss of the SIM card, if necessary including the mobile phone, which result precisely from the fact that the mobile telephony service is available at any location and thus also outside the protected sphere of the home of the subscriber, can be taken into account by not overstretching the requirements for the customer's duties of care. However, this does not call into question the effectiveness of the general terms and conditions at issue here from the perspective of an unreasonable disadvantage to the defendant's customers.
The Federal Court of Justice has only taken from clause no. 7.3. a time limit on the charges payable by the customer in the event of loss of the SiM card, which therefore does not disadvantage the customer but limits his payment obligations.
The Federal Court of Justice dismissed the defendant's appeal because clause 11.2 does not stand up to a review of its content and is invalid under section 307(1) sentence 1, (2) no. 1 BGB. It unreasonably disadvantages the respective mobile phone customers of the defendant contrary to good faith. The blocking of the mobile phone connection constitutes the exercise of a right of retention. In particular, clause no. 11.2 deviates from section 320 para. 2 BGB to the disadvantage of the customer. Accordingly, the defendant is not entitled to a right of retention with regard to the mobile telephony services still to be provided if only a relatively minor part of the consideration is still outstanding. This cannot be ruled out in the case of a delay of an amount of 15.50 euros, which according to the clause justifies the blocking. In doing so, the Senate took into account in particular that the legislator in § 45k para. 2 sentence 1 TKG has set the amount of € 75 as a prerequisite for a block for telephone service providers in the fixed network area. The Federal Court of Justice considered this legislative assessment to be transferable to contracts for mobile telephony services in the context of the review of general terms and conditions.
Judgment of the BGH of 17 February 2011 - III ZR 35/10
Lower courts:
Cologne Regional Court Judgment of 17 June 2009 - 26 O 150/08
OLG Cologne Judgment of 22 January 2010 - 6 U 119/09
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
