The Federal Court of Justice has ruled that the mobile phone operator E-Plus is not obliged to allow the use of its SIM cards in so-called GSM gateways.
GSM gateways are devices with which telephone calls from the fixed network can be received and - using a corresponding SIM card - forwarded to the mobile network of the called subscriber. It is not necessary to feed the fixed network call into the mobile network at a fixed transfer point (interconnection point).
The defendant had purchased SIM cards from E-Plus on end-user terms and used them in GSM gateways without indicating this intention of use. E-Plus, which lost money as a result, therefore sued the defendant for injunctive relief and damages, among other things. With its counterclaim, the defendant wanted E-Plus to allow the use of SIM cards in GSM gateways.
The Court of Appeal partially upheld the defendant: E-Plus abuses its dominant position on the relevant market for the termination of calls in its mobile network in breach of Art 82 EC (now: Art 102 as amended by the Lisbon Treaties) if it generally prohibits the use of GSM gateways. However, E-Plus was not obliged to provide the cards at retail conditions. Rather, it may charge an appropriate fee and agree on special terms of use adapted to the use of GSM gateways.
In the opinion of the Federal Court of Justice, E-Plus did not act abusively within the meaning of Article 82 EC by refusing to provide SIM cards for the purpose of use in GSM converters. The decisive factor was that access to the mobile telephone network of E-Plus was regulated by order of the Federal Network Agency pursuant to § 21 TKG to the effect that E-Plus must grant interconnection of its mobile telephone network with other telephone networks at a fixed handover point at a connection fee set by the Federal Network Agency. Therefore, an undertaking which has a dominant position in the market for certain telecommunications services does not in principle act abusively if it grants access to the market it dominates only under the conditions set by the regulatory authority under section 21 TKG.
Judgment of the BGH of 29 June 2010 - KZR 31/08
Previous instance: OLG Düsseldorf - Judgment of 13 March 2008 - VI U (Kart) 29/06/10
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
