Throttling of speed for "unlimited" data volume inadmissible

The Potsdam Regional Court has upheld a complaint by the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) against E-Plus concerning the considerable throttling of the data volume of an internet flat rate. The judgement is not yet legally binding, but is of decisive importance for the mobile phone industry.

The consumer association sued the mobile phone provider E-Plus to the effect that the data volume provided was titled and advertised as "unlimited" and that this clause was included in the general terms and conditions to the contract. At the same time, the same clause stipulated that the high-speed data volume of 21.6 Mbit/s only applies to the first 500 MB of the data volume used, after which the speed is throttled to GPRS speed of 56 Kbit/s. This is, according to the Potsdam Regional Court, illegal. According to the Potsdam Regional Court, this is inadmissible, also for similar wording with the same content, as can be seen from the application for an injunction.

In the run-up to the trial, E-Plus refused to admit to the warning violations by issuing a cease-and-desist declaration and thereby eliminating the risk of repetition.

The Regional Court ruled on 14 January 2016 that the inadmissible wording of the offered service may not become part of the contract by including the passage 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 in such a way that it can be assumed that the contract has not been fulfilled. In this case, the mobile phone company advertised on its website that unlimited data volume would be made available, but only then stated the restriction. The provision of unlimited data volume was considered by the court to be the main obligation of the mobile phone provider in the offered tariff. 

The court found that among the apps and internet services offered today, it can always be assumed that sufficient internet power is available to use these services. Here, there is also the fact that streaming services will soon be able to be used abroad (see our article Europe-wide provision of online content services planned by EU Commission). The court correctly recognises that the throttling to 56 Kbit/s represents a reduction of the offered high-speed data speed to 0.002 times. This is "quasi a non-provision of internet use".

The plaintiff asserts a further claim for injunctive relief to the effect that, with regard to service numbers and connections to foreign radio networks, contract changes are "agreed" which do not correspond to the mobile phone customer's application.

With regard to the second application for an injunction, the court finds that the mobile phone provider reserves the right to restrict the use of service numbers and the use of foreign networks (both data roaming and telephony) on the basis of the customer's creditworthiness. This is inadmissible because it constitutes a change in the content of the contract after the customer has made his application. This change in the contract is equivalent to a rejection of the application and constitutes a new offer by the mobile phone company to the customer.

E-Plus still has the option of appealing against the ruling to the Higher Regional Court. The ruling is therefore not yet legally binding and it remains to be seen whether E-Plus will appeal.


Goldberg Attorneys at Law 2016

Communicated by Timo Möllers