The Potsdam Regional Court has upheld a lawsuit filed by the Federation of German Consumer Organisations (vzbv) against E-Plus, concerning the significant throttling of data volume for an internet flat rate. The judgment is not yet legally binding but is of significant importance for the mobile communications industry.
The consumer protection agency sued the mobile network operator E-Plus on the grounds that the provided data volume was labeled and advertised as “unlimited,” and this clause was included in the General Terms and Conditions of the contract. Simultaneously, the same clause stipulated that the high-speed data volume of 21.6 Mbit/s only applied to the first 500 MB of data consumed, after which the speed would be throttled to GPRS speed of 56 Kbit/s. According to the Potsdam Regional Court, this is inadmissible, even for similar formulations of identical content, as evident from the injunction application.
Prior to the proceedings, E-Plus refused to admit the warned violations by submitting a cease and desist declaration and thereby eliminate the risk of recurrence.
The Regional Court now ruled in its judgment of January 14, 2016, that the inadmissible wording of the offered service may not become part of the contract through the inclusion of the clause in the General Terms and Conditions. Such a restriction of the high-speed data volume is unreasonable and restricts the subject matter of the contract to such an extent that non-performance of the contract can be assumed. The mobile communications company advertised on its website that unlimited data volume would be provided, but only subsequently stated the restriction. The provision of unlimited data volume was considered by the court in the offered tariff as the mobile network operator's primary contractual obligation.
The court found that with the apps and internet services offered today, it can always be assumed that sufficient internet performance is available to utilize these services. Furthermore, there is the circumstance that streaming services will soon also be usable abroad (see our article on this: EU Commission plans Europe-wide provision of online content services). The court correctly recognized that throttling to 56 Kbit/s represents a reduction of the offered high-speed data speed to 0.002 times its original value. This is “virtually a non-provision of internet usage.”
The plaintiff asserts a further claim for injunctive relief on the grounds that, with regard to service numbers and connections to foreign mobile networks, contractual changes are “agreed” which do not align with the mobile customer's application.
Regarding the second application for injunctive relief, the court determined that the mobile network operator reserves the right to restrict the use of service numbers and the use of foreign networks (both data roaming and telephony) based on the customer's creditworthiness. This is inadmissible, as it constitutes a change to the contract's content after the customer has submitted their application. This alteration of the contract is equivalent to a rejection of the application and constitutes a new offer from the mobile communications company to the customer.
E-Plus has the option to appeal the judgment to the Higher Regional Court. The judgment is therefore not yet legally binding, and it remains to be seen whether E-Plus will appeal.
Goldberg Attorneys at Law 2016
Reported by Timo Möllers
Email: info@goldberg.de
