At the end of November 2015, the Potsdam Regional Court upheld an action brought by the Hamburg Consumer Advice Centre (Verbraucherzentrale Hamburg), which sued a mobile phone provider for not referring a customer to contact the third party provider directly regarding allegedly existing claims from so-called third party providers and to pay the third party provider's charges listed in the mobile phone bill to the mobile phone provider anyway.
The mobile phone company had repeatedly requested the customer to pay the fees of the third party provider listed in the mobile phone company's invoice to the mobile phone company and otherwise threatened to possibly block the connection. The customer was not aware of the third-party provider and had only concluded a contract with the mobile phone company itself. The Regional Court also stated in its decision that only the mobile phone company was the customer's contractual partner and not any third party provider. The court also referred, among other things, to § 404 of the German Civil Code (BGB), which states that a debtor can raise objections to claims against a new creditor. "New creditor" in this case is the mobile phone provider. The referral of the mobile phone provider to the third party provider regarding possible credit notes is contrary to § 404 BGB.
A reference by the mobile phone company to contact the third party directly via the mobile phone company's bill regarding the assertion of any damages incurred due to the billing of the services not claimed by the customer by the third party provider, but nevertheless to pay the billed amount to the mobile phone company, was thus ruled inadmissible by the Regional Court. Only the mobile phone company was the contractual partner. In addition, the reference to the third party provider was also not permissible according to § 5 para. 1 sentence 2 no. 7 UWG and thus constituted unfair competition.
Third-party providers are companies that usually offer a service in the mobile communications sector that is rarely or never used by the consumer, but is billed by the mobile communications company. These are usually subscriptions through which the third party providers try to earn money from the mobile phone customers who have never used these subscription services. The names of the third-party providers or the company names are almost always completely unknown to the bill recipients. Often, these are also companies that have their headquarters abroad.
It should be noted that you can have a "third-party provider block" set up free of charge with mobile phone providers if you do not want to use such services. These third-party subscription traps are also increasingly hidden in apps, which can be seen as "advertisements" in apps, for example at the top or bottom of the opened app. In some cases, a subscription is only triggered by clicking on the advertising banner and the services are then - surprisingly for the customer - billed by the mobile phone provider on the next mobile phone bill.
Our law firm has become aware of numerous different third-party providers through various mandates that we have been able to successfully conclude. If you also discover items on your mobile phone bill that are unclear or even suggest a third-party provider, we will be happy to help you. For this purpose, you can make an appointment with us at our office.
Judgment of the Potsdam Regional Court of 26.11.2015, file number 2 O 340/14
Goldberg Attorneys at Law 2016
Communicated by Timo Möllers
E-mail: info@goldberg.de
