The First Civil Senate of the Federal Court of Justice (BGH), which is responsible among other things for competition law, today ruled that the "Switch & Profit" call diversion offered by Deutsche Telekom AG is illegal under competition law.
The parties compete in the field of telephone services. The defendant is Deutsche Telekom AG. It advertises an offer whereby it provides its fixed network customers who also have a mobile telephone connection of any provider with a call forwarding option. Calls originating from a telephone connection of the fixed network of Deutsche Telekom and directed to the mobile telephone connection of the customer are diverted to the fixed network connection of the customer. The called customer receives a credit for this case. The defendant charges the caller the tariff for calls from its fixed network to the mobile network. An interconnection fee, which the defendant has to pay to the operator of the mobile network for calls from the fixed network to the mobile network, does not apply. The plaintiff (E-Plus) considers the defendant's offer to be anti-competitive and has filed a claim against the defendant for injunctive relief, a declaration of liability for damages and the provision of information.
The lower courts largely upheld the claim.
The Federal Court of Justice confirmed the prohibition imposed by the Court of Appeal. It assumed a deliberate obstruction of the plaintiff due to the call diversion offered by the defendant. The Federal Court of Justice saw the unfairness of the defendant's conduct in the fact that it took advantage of the plaintiff's services when activating the call diversion and collected the fees incurred for the call to the mobile network.
The fixed network customer of the defendant making the call dials the mobile phone number of the called party because he expects to reach his desired interlocutor under this phone number. He has decided to also use the service of the mobile network operator. The plaintiff ensures the accessibility of its customers by maintaining its mobile network. The defendant exploits this service through the call diversion it offers, since the caller would not dial the mobile number without the provision of the mobile connection and the operation of the mobile network. If the defendant does not forward the call to the plaintiff's network because of the activation of the call diversion, it prevents the accrual of the concentration fee and hinders the plaintiff in bringing its services to bear on the market in an appropriate manner through its own efforts and in recovering its investments.
Judgment of the Federal Court of Justice (BGH) of 7 October 2009 I ZR 150/07 - Call diversion -.
Lower courts:
OLG Cologne - Judgment of 24 August 2007 6 U 237/06 , cf. CR 2008, 365
Cologne Regional Court - Judgment of 24 November 2006 81 O 31/06
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
