The Third Civil Senate of the Federal Court of Justice (BGH), responsible, among other things, for legal disputes concerning telecommunication service contracts, was tasked with deciding on the following facts:
The Federation of German Consumer Organisations (Bundesverband der Verbraucherzentralen und Verbraucherverbände e. V.) objected, among other things, to three clauses in the General Terms and Conditions used by the defendant – a telecommunications company – in contracts with consumers for mobile communication services.
The contested clauses include the following three clauses, which remained subject to dispute in the appeal proceedings:
“7. Use by Third Parties
...
7.2 The customer is also liable for charges incurred through unauthorised use of the provided services by third parties, if and to the extent that the customer is responsible for such use.
7.3 Following the loss of the ... card, the customer is only liable for connection charges incurred until the report of the card's loss was received by .... The same applies to charges for services to which ... provides access.
7.4
...
11. Default
...
11.2 If the customer defaults on payment obligations amounting to at least €15.50, ... may suspend the mobile connection at the customer's expense.”
The Regional Court of Cologne (LG Köln) ruled, as requested, that the defendant must cease using these clauses.
The Higher Regional Court (OLG Köln), acting on the defendant's appeal, amended the Regional Court's judgment and dismissed the claim for injunctive relief concerning clauses 7.2 and 7.3. The Higher Regional Court rejected the remaining part of the appeal. With the appeal permitted by the Higher Regional Court, the plaintiff continued to pursue his request for an injunction regarding clauses 7.2 and 7.3, while the defendant continued her motion to dismiss the action concerning clause 11.2. Both appeals were unsuccessful.
The Federal Court of Justice found the plaintiff's appeal unfounded because clauses 7.2 and 7.3 of the General Terms and Conditions used by the defendant withstand a content review. It considered these clauses as remuneration regulations and, based on this assessment, found no unreasonable disadvantage for the defendant's customers. The provision of mobile communication services is a practically fully automated, anonymous mass transaction. The defendant has no knowledge of the specific individual accessing the mobile communication service. Therefore, it cannot ascertain whether the service is being accessed with the customer's approval. The defendant must be able to rely on the customer taking the necessary precautions when using their mobile phone to prevent unauthorised access to mobile communication services. Requiring the mobile customer to prevent unauthorised use by third parties, to the best of their ability, does not unduly disadvantage them. A separate issue is the precise nature of the duties of care incumbent upon the customer within their sphere of risk. The specific risks, such as the loss of the SIM card, potentially including the mobile phone, which arise precisely from the fact that mobile communication services are available everywhere and thus also outside the protected sphere of the subscriber's home, can be addressed by ensuring that the requirements for the customer's duties of care are not excessive. However, this does not call into question the validity 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 interpreted clause 7.3 as merely imposing a time limit on the charges payable by the customer in the event of SIM card loss, which therefore does not disadvantage the customer but rather limits their payment obligations.
The Federal Court of Justice rejected the defendant's appeal because clause 11.2 does not withstand a content review and is invalid under § 307 para. 1 sentence 1, para. 2 no. 1 BGB. It unreasonably disadvantages the defendant's mobile communication customers contrary to good faith. The suspension of the mobile connection essentially constitutes the exercise of a right of retention. Specifically, clause 11.2 deviates from § 320 para. 2 BGB to the detriment of the customer. Accordingly, the defendant is not entitled to a right of retention regarding mobile communication services yet to be rendered if only a relatively minor part of the consideration remains outstanding. This cannot be excluded in the event of default on an amount of €15.50, which, according to the clause, justifies the suspension. In this context, the Senate particularly considered that the legislator, in § 45k para. 2 sentence 1 TKG, set the amount of €75 as a prerequisite for suspension for fixed-network telecommunication service providers. The Federal Court of Justice deemed this legislative valuation transferable to contracts for mobile communication services within the scope of reviewing General Terms and Conditions.
Judgment of the BGH of February 17, 2011 – III ZR 35/10
Lower Courts:
LG Köln Judgment of June 17, 2009 – 26 O 150/08
OLG Köln Judgment of January 22, 2010 – 6 U 119/09
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
