In late november 2015, the Potsdam Regional Court ruled in favor of a lawsuit brought by the Hamburg Consumer Protection Center. The lawsuit challenged a mobile network operator's practice of directing a customer, concerning allegedly existing claims from third-party providers, not to contact the third-party provider directly regarding wrongly billed charges, while simultaneously requiring the customer to settle these third-party fees, listed on the mobile phone bill, with the mobile network operator.
The mobile network operator had repeatedly demanded that the customer settle the third-party provider's fees, as listed on the mobile network operator's bill, with the mobile network operator, threatening potential service suspension otherwise. The customer was unaware of the third-party provider and had only entered into a contract with the mobile network operator itself. Consequently, the Regional Court stated in its judgment that only the mobile network operator is the customer's contractual partner, not any third-party provider. The court also referred, inter alia, to § 404 of the German Civil Code (BGB), which stipulates that a debtor can raise objections against claims made by a new creditor. In this context, the mobile network operator is considered the 'new creditor.' The mobile network operator's instruction to contact the third-party provider regarding any credits is, among other things, contrary to § 404 BGB.
The Regional Court therefore deemed inadmissible the mobile network operator's instruction to customers to contact the third-party provider directly regarding any damages resulting from the billing of unrequested services by the third-party provider via the mobile network operator's bill, while still requiring the customer to settle the billed amount with the mobile network operator. It was established that only the mobile network operator is the contractual partner. Moreover, the referral to third-party providers is also impermissible under § 5 para. 1 sentence 2 no. 7 of the German Act Against Unfair Competition (UWG), thereby constituting unfair competition.
Third-party providers are typically companies operating in the mobile communications sector that offer services rarely or never utilized by the consumer, yet are billed through the mobile network operator. These often involve subscriptions through which third-party providers attempt to generate revenue from mobile customers who have never actually used these services. The names of these third-party providers or their company designations are almost always entirely unknown to the bill recipients. Frequently, these companies are also based abroad.
It should be noted that a 'third-party provider block' can be activated free of charge with mobile network operators if one wishes to avoid such services. These subscription traps from third-party providers are increasingly concealed within applications, often appearing as 'advertisements' at the top or bottom of the open app. In some instances, merely clicking on an advertising banner can activate a subscription, leading to unexpected charges for these services appearing on the customer's subsequent mobile phone bill from their mobile network operator.
Our firm has encountered numerous different third-party providers through various successfully concluded mandates. Should you identify any unclear items on your mobile phone bill, or if you suspect charges from a third-party provider, we are ready to provide assistance. You may schedule an appointment with us at our offices for this purpose.
Judgment of the Potsdam Regional Court of november 26, 2015, file number 2 O 340/14
Goldberg Attorneys at Law 2016
Reported by Timo Möllers
Email: info@goldberg.de
