A provider of mobile telephony services is not allowed to charge a fee in its general terms and conditions (AGB) for the payment of remaining credit when terminating a prepaid mobile telephony contract. The 2nd civil senate of the Schleswig-Holstein Higher Regional Court upheld the action of the Federal Association of Consumer Centres and Consumer Associations against the mobile phone provider in its judgement of 27 March 2012.
The facts of the case:
The plaintiff, the German Federal Association, demanded that the mobile communications provider based in Schleswig-Holstein refrain from including various clauses in its general terms and conditions for contracts for mobile communications services because, in its view, they unreasonably disadvantaged the customer. These included a "service charge" of EUR 6, which was levied on termination of a prepaid mobile communications contract for payment of the remaining credit balance. Furthermore, the plaintiff Federal Association objected to the fact that the following charges were levied for all contracts for mobile communications services (so-called prepaid rates and postpaid rates) according to the price list of the mobile communications provider: for a "return debit note under the responsibility of the customer" an amount of EUR 19.95 and as a "reminder charge" an amount of EUR 9.95.
Since the mobile communications provider did not change its general terms and conditions, the Federal Association took legal action. In the first instance, the Kiel Regional Court upheld the complaint. The mobile communications provider appealed to the Schleswig-Holstein Higher Regional Court.
For the reasons:
The disputed clauses in the general terms and conditions are invalid because they unreasonably disadvantage customers contrary to the requirements of good faith.
After termination of the mobile communications contract, the customer has a claim to repayment of a prepaid credit balance, even without this being separately regulated in the terms and conditions of the contract. Thus, the payment of the remaining credit is not a genuine service for which the mobile communications provider can demand a fee. The provider is not "generously" granting a right to payment of the credit balance, but is attempting to pass on expenses for the fulfillment of its own obligations to the customer via the charge. This is not compatible with the fundamental idea of the statutory provision.
Fees of 9.95 euros per reminder and 19.95 euros per return debit note are excessive. They exceed the damage to be expected according to the "ordinary course of events". A reminder as such only incurs costs for the production and printing of a letter prefabricated by a computer program in view of today's possibilities for rationalization, for paper and envelope, pro rata personnel costs for "bagging" and postage costs. Even the most generous treatment does not result in an amount of 9.95 euros. In the case of a return debit note, bank charges amount to a maximum of 8.11 euros. In addition, the costs for printing and sending a customer letter would be added as damage due to the return debit note, if a reminder has not already been sent.
(Schleswig-Holstein Higher Regional Court, judgement of 27.03.2012, file number 2 U 2/11)
Source: Press release of the Schleswig-Holstein Higher Regional Court, Dr. Christine von Milczewski
Judge at the Higher Regional Court,Press Officer
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
